ORDER
1. This petition is field under Articles 226 and 227 of the Constitution of India to issue a writ of certiorari or any other appropriate writ, order or direction to quash the award dated 17-5-1990 passed in Reference No. ID 180 of 1986 (Annexure-A) and pass such other reliefs.
2. The brief facts of the case are: the 1st respondent was appointed by the petitioner as TTR driver on daily wages by an Order No. YG/F. 35/6711-13, dated 21-1-1981 for a period of 3 months subject to certain conditions incorporated therein. He reported for duty on 21-1-1981 and was driving jeep bearing No. MER 3013. On 29-4-1981 at 10.05 a.m. the jeep met with an accident due to rash and negligent driving by the respondent. The Police Sub-Inspector, Ambika Nagar after conducting investigation filed a charge sheet against the respondent before the JMFC Court, Haliyal. The driver was arrested by the police and was later released on bail. On 13-5-1981 he was terminated from service. Subsequently the Criminal Court has acquitted him and thereafter he made an application on 11-7-1983 for appointment which was rejected. The petitioner issued an endorsement No. YG/F 35/2306, dated 15-7-1983 stating that due to his negligence of duties, the vehicle met with the accident causing heavy damages to the vehicle, etc. Hence the respondent raised conciliation proceedings. As the conciliation proceedings failed, the matter was referred to the Labour Court in Ref. No. ID 180 of 1986. The 2nd respondent after recording evidence has held that the respondent 1 is entitled to be reinstated in service together with full back wages from 13-5-1981 till the date of reinstatement and also other consequential benefits. This order is questioned in this petition.
3. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents.
4. The learned Counsel for the petitioner at the very outset submitted that the respondent 1 had not worked in the Department for a minimum period of 240 days in a calendar year. He was appointed only for a period of 3 months. Though he worked from 1978 in none of the years he had worked for 240 days. Therefore, the termination is valid and the respondent cannot contend that enquiry was contemplated or he was entitled for retrenchment compensation with notice as contemplated under Section 25-F, etc.
5. Per contra, the learned Counsel for the respondent submitted that the impugned order does not call for interference in view of the fact that though the respondent was appointed as a TTR, in actual fact he was working in the Department continuously. The petitioner has terminated the services of the respondent only on the ground that he caused the
accident due to his rash and negligent driving which was not accepted by the Criminal Court. On the other hand, the Criminal Court honourably acquitted him. Under the circumstances, the petitioner ought to have reinstated him into service. Even otherwise, the petitioner was entitled for an enquiry as contemplated under the ID Act. Therefore, the order of the 2nd respondent does not call for interference.
6. It is an admitted fact that respondent 1 has subsequently been reinstated by the petitioner. Therefore, even if this Court were to come to a different conclusion his appointment need not be disturbed. With this background, it is now necessary to consider the grievance of the petitioner. The main grievance of the petitioner is awarding of full back wages with continuity of service to the respondent. In the normal course, if the delinquent workman is ordered to be reinstated, he is entitled for all the benefits including the back wages. However, the learned Counsel for the petitioner vehemently argued that this is a discretionary power given to the Court and the Court may decline to award back wages depending on the circumstances of each case.
7. To substantiate his argument, the petitioner contended that the respondent 1 was only a TTR daily wages employee. He never worked for more than 240 days in any calendar year. Though this has been refuted by the respondent, he has not placed any material before the Court to show that he had satisfied the requirement of Section 25-B(2)(a)(ii) of the Act. From a perusal of the impugned order, it is clear that the 2nd respondent has not considered this question notwithstanding the fact that the respondent has raised it in the claim petition. Under the circumstances, it is now necessary to find out as to whether the impugned order in regard to awarding back wages calls for interference. The petitioner has produced the appointment order as per Annexure-B dated 21-1-1981. According to this, he was appointed as TTR driver on daily wages at Rs. 4.83 plus usual allowance for a period of three months or till the regular driver was posted to bis place whichever was earlier from 21-1 1981 subject to the following conditions:
(1)The appointment is purely temporary and does not guarantee for further continuance in the board.
(2)He should not be absent from his duties without prior approval of the concerned Assistant Engineer, Elecl./Jr. Engineer, Elecl.
(3)If his work is found unsatisfactory his services will be terminated without notice during the period of incumbency.
It appears from the order, the 2nd respondent proceeded on the assumption that he is a temporary employee and notice is necessary under Section 25-F of the Act. Unless it is established that he has satisfied the requirement of Section 25-B, the question of taking action under Section 25-F does not arise. The petitioner has produced Annexure-E showing the number of days he worked in 1978, 1979 and 1981. He has not worked in 1980 at all. At no point of time, he had worked for a minimum period of 240 days. He has not attained the status of temporary em-
ployee. On the other hand, he was only a casual employee. Therefore, the action as contemplated under Section 25-F was not necessary. Be that as it may, just because the Criminal Court has acquitted the respondent, it does not imply that he is entitled to be reinstated. From a perusal of the judgment of the Criminal Court also, it is abundantly clear that he was acquitted for want of evidence. More particularly, the I.M.V. was not examined and there were no eye-witnesses. The Criminal Court also proceeded on the basis of 313 statement and the report of the I.M.V. which was not marked. From that also it cannot be said that it was an honourable acquittal. On the other hand, he was acquitted giving the benefit of doubt. Even if it is held to be valid, still in view of the appointment order issued in favour of the respondent by efflux of time, he would have lost the job because his appointment was purely casual i.e., for a period of 3 months or till the regular driver was appointed. Whether he would have been appointed after this period was uncertain and he also could not have asserted as a matter of right. Under those circumstances, the finding of the Labour Court that the petitioner was entitled for reinstatement with back wages is unsustainable.
8. One more factor cannot be lost sight of in this case. Though the 1st respondent was terminated from service w.e.f. 13-5-1981, he raised industrial dispute only on 11-7-1983. He made the application for appointment obviously after the Criminal Court acquitted him. Thereafter, he raised the industrial dispute having failed in conciliation proceedings. There was considerable delay in raising the industrial dispute. Therefore, from the above discussion it is abundantly clear that it is not the object of the Court to grant back wages blindly merely on the ground that he was acquitted by the Criminal Court. Here also it is necessary to mention that the fact that he had caused the accident and the Department has sustained a loss to the tune of Rs. 13,000/- and odd. He has taken the defence that the accident was due to sudden brake failure. But being a driver, he should have been vigilant and seen that the jeep was in a good condition before using the vehicle.
9. The learned Counsel for the respondent however submitted placing reliance on a decision by the Allahabad High Court in Sushil Kumar Pandey v Director, Balvikas Seva Evam Paushtik Ahar and Others, wherein it is held as follows:
“The petitioner appointed on daily wage basis with a condition that his service would be liable to termination without any notice, under Section 25-F of the U.P. Industrial Disputes Act was given to him before his services were terminated is also misplaced, because the provisions of that section would not be attracted to the present case”.
The learned Counsel placed reliance on a decision in K.S.R.T.C. v M.N. Subba Rao and Another , wherein this Court has held:
“The reinstated employee is entitled to full back wages. Back wages can be reduced only if employer is able to prove gainful employment during period of unemployment. High Court not entitled to lay down any rule of fifty per cent back wages”.
However, it is further held that each case depends on its own facts. Hence it is clear that even this Court has held that the Court has to mould the reliefs depending on the facts of each case.
10. For the foregoing reasons, I hold that the impugned order calls for interference. In the light of the above, I proceed to pass the following:
ORDER
1. The 1st respondent is not entitled for any back wages, even though he is entitled for reinstatement. Accordingly, the order of reinstatement is confirmed without back wages.