SCA No. 7564 of 2002 · Gujarat High Court
Case at a glance
Provisions considered
Key paragraphs
- Para 55. However, from the award it appears that the Labour Court has granted backwages without giving any cogent and valid reasons. Backwages were granted merely on assumption without any concrete finding. Moreover, the law on the subject is well settled. In the case of Ram…
- Para 66. Even otherwise the respondent is foregoing backwages if she is granted reinstatement with continuity of service for the purpose of counting seniority to give benefit of Government Resolution. In that view of the matter, the award granting backwages is quashed and set aside. The…
- Para 1111. In the case in hand the respondent had worked for a very short period with appellant, which was less than one year. Even during this period there were breaks in service and he had been given short term appointments on daily wage basis in…
Judgment
CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 28/11/2005 ORAL JUDGMENT
By way of this petition, the petitioner has challenged the award dated 02.02.2002 passed by the Labour Court, Surendranagar in Reference (LCS) No.80 of SCA/7564/2002 JUDGMENT 2000 whereby the Labour Court passed an exparte award directing the petitioner to reinstate the respondent with 90% backwages.
The brief facts of the case are that the respondent was appointed on 05.08.1996 by the Collector in the Revenue Department through regular procedure as recovery clerk for the purpose of collecting the registration fees of stamp duty. The designation of the respondent was of a piece worker. The respondent was terminated from service on 30.06.1999 for which she raised an industrial dispute and it was referred to the Labour Court for adjudication whereby the Labour Court passed the aforesaid award.
Mr Pandya, learned advocate for the petitioner has contended that the respondent has not completed 240 days of service. He further contended that the respondent was employed as a Rojamdar on ad hoc basis and that makes it very clear that the appointment is for a very limited period but certainly not on continuous basis. Therefore, the award passed by the Labour Court deserves to be interfered. SCA/7564/2002 JUDGMENT
Heard the learned advocates for the parties. It is the contention of Mr. Pandya that the respondent workman has not completed 240 days in service. However, the finding of the Labour Court is that she has completed 240 days and the Labour Court has, therefore, granted reinstatement on the original post. Mr Pandya further contended that the respondent was appointed on ad hoc basis. This contention is mis-conceived in-as-much as she has worked through-out and thereafter she has been relieved without even following the procedure under Section 25(F),(G) and (H). Therefore, the contention raised by Mr Pandya is not accepted. The Labour Court has considered the evidence on record in detail and has come to the conclusion that the respondent workman is required to be reinstated. I am in complete agreement with the reasonings adopted and the findings arrived at by the Labour Court. Therefore, in my opinion, the order of reinstatement is not required to be interfered.
However, from the award it appears that the Labour Court has granted backwages without giving any cogent and valid reasons. Backwages were granted merely on assumption without any concrete finding. Moreover, the law on the subject is well settled. In the case of Ram Ashrey Singh Vs. Ram Bux Singh, reported in (2003) II LLJ SCA/7564/2002 JUDGMENT 176, it is held that the workman had no automatic entitlement to back wages since it is discretionary and has to be dealt with in accordance with facts and circumstances of each case. In the case of General Manager, Haryana Roadways Vs. Rudhan Singh, reported in JT 2005(6) SC 137 (=2005 (5) SCC 591), after referring to various decisions on the said subject, the Apex Court held that order for payment of back wages should not be passed in mechanical manner, but a host of factors are to be taken into consideration before passing any such order. Paragraphs 10, 11 and 12 read as under: “10.
In Smt. Saran Kumar Gaur and others V. State of Utter Pradesh and others, this Court observed that when work is not done remuneration is not to be paid and accordingly did not make any direction for award of past salary. In State of U.P. And Anr. V. Atal Behari Shastri and Anr, a termination order passed on 15.7.1970 terminating the services of a Licence Inspector was finally quashed by the High Court in a writ petition on 27.11.1991 and a direction was issued to pay the entire back salary from the date of termination till the date of his attaining superannuation. This Court, in absence of a clear finding that the employee was not gainfully employed during the relevant period, set aside the order of the High Court directing payment of entire back salary and substituted it by payment of a lump- sum amount of Rs.25,000/-. In Virender Kumar, General Manager, Northern Railways, New Delhi V. Avinash Chandra Chadha and others, there was a dispute regarding seniority and promotion to a higher post.
This Court did not make any direction for payment of higher salary for the past period on the principle “no work no 'ay” as the respondents had actually not worked on the higher post to which they were entitled to be promoted. In Surjit Ghosh V. Chairman and Managing Director, United Commercial SCA/7564/2002 JUDGMENT Bank and others, the appellant (Assistant Manager in the Bank) was dismissed from service on 28.5.1985, but his appeal was allowed by this Court on 6.2.1995 as his dismissal order was found to be suffering from an inherent defect. His claim for arrears of salary for the past period came to about Rs.20 lacs but this Court observed that a huge amount cannot be paid to anyone for doing no work and accordingly directed that a compensation amount of Rs.50000/- be paid to him in lieu of his claim for arrears of salary. In Anil Kumar Gupta V. State of Bihar, the appellants were employed as daily wage employees in Water and Land Management Institute of the Irrigation Department of Government of Bihar and they were working on the posts of steno-typist, typists, machine operators and peons, etc.
This Court allowed the appeal of the workmen and directed reinstatement but specifically held that they would not be entitled to any past salary. These authorities show that an order for payment of back wages should not be passed in a mechanical manner but host of factors are to be taken into consideration before passing any order for award of back wages.
In the case in hand the respondent had worked for a very short period with appellant, which was less than one year. Even during this period there were breaks in service and he had been given short term appointments on daily wage basis in different capacities. The respondent is not a technically trained person, but was working on a class IV post. According to the finding of the Industrial Tribunal- cum-Labour Court plenty of work of the same nature, which the respondent was doing, was available in the District of Rohtak. In such circumstances we are of the opinion that the respondent is not entitled to payment of any back wages.
The appeal is accordingly partly allowed and the award of the Industrial Tribunal-cum-Labour Court insofar as it directs reinstatement with continuity of service is upheld by the award regarding payment of 50% back wages is set aside.” SCA/7564/2002 JUDGMENT
Even otherwise the respondent is foregoing backwages if she is granted reinstatement with continuity of service for the purpose of counting seniority to give benefit of Government Resolution. In that view of the matter, the award granting backwages is quashed and set aside. The respondent will be reinstated to the original post and she will be given all the benefits of Government Resolution dated 17.10.1988. The award of reinstatement with continuity of service is confirmed. The order of the Labour Court is modified to the above extent. Rule is made absolute accordingly with no order as to costs. (K.S. JHAVERI, J.) Divya//
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India.
Which court decided this case, and when?
Gujarat High Court, on 28 Nov 2005. The bench was JHAVERI.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.