SCA/7405/2008 4/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7405 of 2008 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 [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] - Petitioner(s) Versus [ENTITY] - Respondent(s) Appearance : MR [ENTITY] for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1, CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 09/08/2010 ORAL JUDGMENT
Though served, none appears for the respondent.
1. By way of this petition, the petitioner has prayed to quash and set aside the impugned award dated 26.11.2007 passed by the Labour Court, Bhavnagar, in [CASE NUMBER], whereby the Labour Court has directed the petitioner to reinstate the respondent in service with 20% back wages.
2. The short facts of the case are that the respondent workman was working in Nursery Department as Watchman, since 1981 on daily wage basis. The services of the respondent came to be orally terminated w.e.f. 28.04.1989. Being aggrieved by the same, the respondent raised a dispute, which was ultimately referred to the Labour Court for adjudication being [CASE NUMBER]. Before the Labour Court, both the parties adduced evidence and after appreciating the material produced before it, the Labour Court partly allowed the reference with the aforesaid directions. Hence, this petition.
3. Heard learned counsel for the petitioner. The main contention raised by the petitioner is that the respondent workman himself stopped attending the work and his services were not terminated and therefore the judgment and award is illegal and unjust. On perusal of the record it transpires that the Labour Court has recorded the finding that the respondent workman has worked for more than eight years and his services were terminated without any notice nor retrenchment compensation. In view of these findings there is violation of provisions of [SECTION] of the [ACT]. The learned AGP appearing for the petitioner is not able to point out anything contrary from the record that the finding of the Labour Court in this regard is perverse. Therefore, I am of the view that the Labour Court has rightly passed the award of reinstatement.
4. So far as the question of back wages is concerned, the Labour Court has not given any cogent reasons for awarding back wages to the respondent workman. In view of the principle laid down by the Apex Court in the case of [PRECEDENT] 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 [PRECEDENT], 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.
5. It would also be relevant to refer to a decision of the Apex Court in the case of [PRECEDENT], 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.
6. 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. Rule is made absolute to the aforesaid extent with no order as to costs.
[K.S. JHAVERI, J.] /phalguni/