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SCA/8717/2010 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8717 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
THE
PORT OFFICER - Petitioner(s)
Versus
KALIDASBHAI
ZALA - Respondent(s)
=========================================
Appearance :
MS
SEJAL K MANDAVIA for Petitioner(s) : 1,
MR MUKESH H RATHOD for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 12/08/2010
ORAL
JUDGMENT
1.0 Rule.
Mr. Mukesh Rathod, learned counsel waives service of rule on behalf
of the respondent. With the consent of the parties, the matter is
taken up for hearing today.
2.0 By
way of this petition, the petitioner has prayed to quash and set
aside the impugned award dated 17.02.2010 passed by the learned
Presiding Officer, Labour Court, Kachchh at Bhuj in Reference
(L.C.B.) Case No. 118 of 2000 whereby the Labour Court has allowed
the Reference and directed the petitioner to reinstate the
respondent-workman on his original post from the date of his
retrenchment with continuity of service along with 25% back wages.
3.0 The
short facts of the case are that the respondent-workman was serving
as Labourer with the Gujarat Maritime Board, Mandvi since 1981.
He used to earn wage of Rs.2208/.- As and when there was work he was
called for work. Later on as there was no work, the petitioner
retrenched the respondent workman from service w.e.f. 18.01.2000.
Pursuant to the removal from service by the petitioner, the
respondent workman raised an industrial dispute, which was referred
to the Labour Court, for adjudication, being Reference (L.C.B.) Case
No. 118 of 2000. Before the Labour Court, both the parties adduced
the evidence and after appreciating the material produced before it,
the Labour Court allowed the Reference and passed the impugned award
as aforesaid. Hence, this petition.
4.0 Heard
the learned advocates for the respective parties and perused the
documents on record. It appears from the record that the petitioner
has retained the workers junior to the respondent-workman and removed
the respondent from the services. It is required to be noted that
the petitioner has not produced the entire service record of the
respondent, to show that the respondent had worked only for
particular days in a year. It is also recorded that while removing
the respondent workman from service, the petitioner had not given any
notice, notice pay or retrenchment compensation. There is also clear
finding that there is violation of provisions of Sections 25(F),
25(G) and 25 (H) of the Industrial Disputes Act. The learned
advocate for the petitioner is unable to point out anything contrary
to the said findings of the Labour Court. Therefore, I am of the
view that the Labour Court has rightly passed the award qua
reinstatement.
5.0 So
far as 25% back wages is concerned, the Labour Court has not given
any cogent reasons for awarding back wages to the respondent-workman.
The Apex Court in the case of Ram Ashrey Singh v. Ram Bux Singh
reported in (2003) II L.L.J. 176 held that a workman has no
automatic entitlement to back wages since it is discretionary and has
to be dealt with in accordance with the facts and circumstances of
each case. Similar principle has been laid down by the Apex Court in
the case of General Manager, Haryana Roadways v. Rudhan Singh
reported in J.T. 2005(6) SC 137 [2005(5) SCC 591], wherein it
has been held that an order for payment of back wages should not be
passed in a mechanical manner but a host of factors are to be taken
into consideration before passing any such order.
6.0 It
would also be relevant to refer to a decision of the Apex Court in
the case of A.P. State Road Tranport & Ors. v. Abdul Kareem
reported in (2005) 6 SCC 36, wherein it has been held that a
workman is not entitled to any consequential relief on reinstatement
as a matter of course unless specifically directed by forum granting
reinstatement. In above view of the matter, I am of the opinion that
the respondent cannot be said to be entitled for back wages.
7.0 In
the result, the petition is partly allowed. The impugned award qua
back wages is quashed and set aside. The award qua reinstatement is
confirmed. Since the reinstatement is granted on the basis of
violation of provisions of Sections 25(F), 25(G) and 25(H) of the
I.D. Act, the respondent workman will be given the benefit of
continuity of service and such other benefits, as per the Rules
prevailing in the petitioner Board. The petitioner is directed to
reinstate the respondent-workman on 01.09.2010 and will release the
consequential benefits within a period of one month thereafter. The
award of the Labour Court is modified accordingly. Rule is made
absolute to the aforesaid extent with no order as to costs. It is,
however, hoped that the petitioner will expedite the procedure for
reinstatement in order to avoid paying full salary to the petitioner,
which is required to be granted from 01.01.2010.
[K.S.
JHAVERI, J.]
niru*
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