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SCA/23307/2006 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 23307 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
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
STATE OF GUJARAT & 1 - Petitioner(s)
Versus
RAJESH
P. RUDAKIYA - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, LD.ASST.GOVERNMENT PLEADER
for
Petitioner(s) : 1 - 2.
RULE NOT RECD BACK for Respondent(s) :
1,
MR MUKESH H RATHOD for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/08/2010
ORAL
ORDER
By
way of present petition, the petitioner has inter alia prayed for
quashing and setting aside the judgment and award dated 06th
June 2008 passed by the Labour Court, Rajkot in Reference (LCR)
No.1461 of 1988, whereby the Labour Court rejected the Reference of
the petitioner.
It
is the case of the petitioner that the respondent was working as
Junior Clerk purely on temporary, ad-hoc and daily wage basis and
his appointment was for a fixed period. After expiry of such
period, the respondent was discontinued from service and thus, it
cannot be said to be retrenchment. It is submitted that the
provision of Section 2(OO)(bb) is not applicable in the present
case. It is submitted that the Division in which the respondent was
working is already closed. It is submitted that there was no
evidence before the Labour
Court that the respondent has completed 240 days of service.
The Labour Court
has also erred in granting 25% backwages. Thus, the judgment and
award passed by the Labour
Court is required to be quashed and set aside.
Mr.Mukesh
H. Rathod, learned advocate for the respondent, has submitted that
the judgment and award passed by the Labour Court is just and
proper and the same is passed after taking into consideration the
pros and cons of the matter as well as evidence produced on record.
Hence, the present petition is required to be dismissed.
Having
regard to the rival contentions raised by the learned advocates for
the respective parties, averments made in the petition as well as
the documentary evidence produced on record, it transpires that the
Labour Court has appreciated the evidence on record and after going
through the pros and cons of the matter, it has rightly granted
reinstatement with continuity of service as there was a breach of
provisions of Sections 25(F), 25(G) and 25(H) as well as Section 81
of the Industrial Disputes Act, 1947. The view taken by the Labour
Court qua reinstatement and continuity of service is absolutely just
and proper.
Insofar
as granting of backwages is concerned, it is required to be noted
that when the respondent-workman has not worked at all, there is no
question of granting him any backwages. Even the Apex Court in the
recent decision has laid down a ratio no work, no pay . Thus,
the Labour Court has erred in granting backwages to the respondent
looking to the facts and circumstances of the case.
In
view of aforesaid, I am of the opinion that the judgment and award
qua reinstatement and continuity of service is required to be
upheld. However, so far as the judgment and award qua backwages is
concerned, the same is required to be quashed and set aside.
For
the foregoing reasons, present petition is hereby partly allowed.
The impugned judgment and award dated 06th June 2006
passed by the Labour Court, Rajkot in Reference (LCR) No.1461 of
1988 is hereby quashed and set aside only qua 25% backwages. The
impugned judgment and award qua reinstatement and continuity of
service is hereby upheld. Rule is made absolute to the aforesaid
extent. No order as to costs.
The
petitioner is directed to reinstate the respondent-workman on or
before 01st
October 2010.
The ensuing monetary benefits will be released by the petitioner in
favour of the respondent within a period of SIX
MONTHS
from today. The respondent is entitled to get benefits from the date
of award till its actual realisation. The petition stands disposed
of accordingly.
(K.S.
Jhaveri, J)
Aakar
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