SCA/29882/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29882 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= PATEL ROADWAYS LIMITED - Petitioner Versus RAVINDRA YASHWANTRAO PATIL - Respondent ========================================================= Appearance : MR MP SAIYED WITH MM TIRMIZI for Petitioner : 1, DS AFF.NOT FILED (N) for Respondent : 1, MR SUBRAMANIAM IYER for Respondent: 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 16/09/2008 ORAL JUDGMENT 1. Rule. Mr. Iyer, learned counsel waives service of Rule on behalf of respondent. By consent, SCA/29882/2007 2/7 JUDGMENT rule is fixed forthwith. 2. The petitioner, employer has challenged the Award dated 27.12.2006 passed by learned Presiding Officer, Labour Court, Vadodara in Reference No. 552 of 2000, whereby, the respondent workman is ordered to be reinstated with continuity of service and 60% back wages on the ground that termination of workman was absolutely illegal and without complying with mandatory provisions of I.D. Act, 1947. 3. The workman had raised industrial dispute as he was terminated on account of his gross negligence in not verifying the whereabouts and papers of truck and driver before loading the employer's goods into the truck at the time of its onward journey to the destination. The reference was numbered as 552 of 2000 and both the parties led their evidences. It is to be noted at this stage that there was an ex-parte award, which was set aside and the matter was restored and ultimately, the Court came to the conclusion that termination was illegal and without complying with the provisions of ID Act and therefore, ordered reinstatement with 60% back wages and continuity of service. As it is stated hereinabove, this Award dated 27.12.2006 is impugned in this petition under Article 227 of the Constitution of India. SCA/29882/2007 3/7 JUDGMENT 4. Shri Saiyed with Mr. Tirmizi, learned counsel for the petitioner has vehemently contended that Award deserves to be quashed and set aside as the learned Labour Court has not taken into consideration the fact that workman was required to be terminated on account of his gross negligence as he did not verify the relevant documents before loading the goods into the truck. It was a case where, even criminal complaint came to be lodged in form of First Information Report. Though, he candidly submitted that said FIR is not filed against present respondent workman but fact remains to be noted that goods worth Rs.20 lacs were lose and therefore, this workman cannot be said to be not responsible for such a lost to the employer. He further submitted that actually the employer has pleaded 'loss of confidence' in the workman and when there was a 'loss of confidence' specifically pleaded, it was bounden duty cast upon learned Labour Court not to reinstate the respondent workman. He alternatively submitted that the reasoning given by labour Court for awarding back wages are also not in consonance with law and therefore, the reasoning as well as award deserve to be quashed and set aside. He submitted that the labour Court has clearly stated that the workman had to discharge his duties towards his family members and for these many years, he had remained without earning that cannot be accepted. However, labour Court SCA/29882/2007 4/7 JUDGMENT has just to set an example, awarded 60% of back wages, which cannot be said to be absolutely in accordance with law with regard to granting of back wages and therefore, the award deserves to be quashed and set aside. 5. Shri Iyer, learned counsel appearing for the respondent workman submitted that the workman concerned was never responsible for verification of papers of the truck or truck driver, in which the goods were loaded. In a cursory glance at FIR also would go to show that it was the duty of the Manager to verify such documents and it in fact had been verified by the Manager and therefore, the entire defence put up by the employer before the Court did not have any basis whatsoever and when the termination was per-se illegal, unsustainable, the order of reinstatement with only 60% back wages cannot be said to be unjustified from any angle. However, he submitted that if the Court is inclined to pass appropriate order with regard to some reduction in the back wages, then, he say that same would be acceptable to the workman concerned. 6. This Court has heard learned counsel for the parties at length. SCA/29882/2007 5/7 JUDGMENT 7. This Court is unable to accept the submission of learned counsel for the petitioner with regard to loss of confidence and challenged to the reinstatement. It is absolutely clear from the findings of the labour Court that defence of 'loss of confidence' is raised only for avoiding the order of reinstatement. Had there been a really loss of confidence, then, it would have been reflected in the form of evidence on record. In absence of such evidence and when the counsel for petitioner stated before this Court that the respondent workman has not been alleged to have in any case been involved in fraudulent practice and the only allegation was that of gross negligence, the negligence cannot be said to be malafide intentional or defrauding, therefore, plea of 'loss of confidence' put up, appears to be absolutely unjustified and appears to be made only with a view to avoid order of reinstatement and same therefore deserves to be rejected outright. 8. The Labour Court's finding with regard to non- compliance with mandatory provisions of ID Act before terminating the services cannot be assailed as no evidence contrary there to is produced on the record. The Labour Court has proceeded absolutely on the evidence on record which unequivocally go to show that there was absolute non-compliance with provisions of ID Act. The termination order was per-se illegal SCA/29882/2007 6/7 JUDGMENT and required to be quashed and set aside as the termination was found to be illegal and resultant order of reinstatement ought to be passed in given facts and circumstances of the case. Therefore, this Court is of the view that order with regard to termination need not be interfered with under Article 227 of the Constitution of India. 9. So far as the submission with regard to awarding 60% of the back wages are concerned, this Court is of the view that reasoning given by the labour Court for awarding back wages are not quite in consonance with principle of awarding back wages, though Court has recorded that the workman has stated that he had not been gainfully employed during entire period, he was out of service and he is ready and willing to join the employer. However, that in itself would not be sufficient as the workman was required to adduce some evidence to show that during this period he earnestly attempted to obtain employment but his attempt failed. In absence of such findings, it would not be appropriate to award back wages. However, at the same time, it is to be noted that once the award was made ex- parte and it was set aside and Reference is restored at the behest of the employer. Keeping this in mind, this Court is of the view that award impugned deserves to be modified and instead of 60% back wages, in the interest of SCA/29882/2007 7/7 JUDGMENT justice, the award of 30% of back wages would meet the ends of justice. Accordingly, same is hereby modified. The petition is partly allowed. Rule is made absolute. 10.The counsel for the respondent has submitted that while issuing notice, this Court (Coram: H.K.Rathod, J.) on 18.12.2007 has directed the petitioner to deposit Rs.10,000/- in the Registry of this Court, which at least may be permitted to be withdrawn by the workman concerned. Shri M.P. Saiyed with Mr. Tirmizi did not object to such request. Hence, the registry is directed to release the money to workman concerned after due verification. (S.R.BRAHMBHATT, J.) pallav