SCA/9351/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9351 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= HARIVADAN @ HARIBHAI NANDUBHAIPATEL - Petitioner(s) Versus MANAN ROADWAYS - Respondent(s) ========================================================= Appearance : MR KR KOSHTI for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 17/07/2008 ORAL JUDGMENT In this petition, the petitioner has challenged an award dated 14.3.2008 passed by the labour court, Surat in reference (LCS) No.76/95 whereby, the labour court has partly allowed the said reference by directing the respondent herein to reinstate the SCA/9351/2008 2/12 JUDGMENT present petitioner with continuity of service and to pay 50% of back wages. The facts coming out, about the dispute, from the impugned award and relevant for the purpose of present petition, are recapitulated below:- The petitioner herein approached the labour court by raising industrial dispute challenging his termination from service by the respondent herein. The petitioner's case before the labour court was that he was employed by the respondent w.e.f. 15.5.88 in its Ahmedabad branch - office as a clerk and subsequently, when a branch - office was started at Surat, he was transferred to the said Surat branch – office and that while he was working at Ahmedabad branch - office he was being paid Rs.2,000/- pm and after he was transferred to Surat, his salary was enhanced to Rs.2,500/-pm but when he started making demands for his rights including full salary in accordance with law, his service was orally terminated w.e.f. 31.12.93. SCA/9351/2008 3/12 JUDGMENT Mr. Koshti appears for the petitioner. He submitted that the petitioner has preferred present petition for challenging the award to the limited extent by which the 50% of the back wages is denied to the petitioner because the labour court has erred in denying the balance 50% of back wages to the petitioner. He further submitted that it is only on presumption and without any justification that the labour court has denied the benefit of balance 50% of back wages. He also submitted that the delay of 13 years in concluding the proceedings cannot be attributed to the petitioner alone, more particularly, when at two different stages, the reference was decided ex-parte and proceedings were restored at the request of the present respondent. The reference proceedings were decided ex-parte once by ex-parte award dated 22.12.2005 in respect of which the application under Rule-26(A) was preferred and numbered as Misc. Application No.43/2006. However, to support his contention that reference proceedings were decided twice, Mr. Koshti relied upon a copy of the order dated 28.11.2006 passed in SCA/9351/2008 4/12 JUDGMENT said Misc. Application No.43/2006 wherein, the labour court has made reference of another restoration application No.41/2003. On the basis of the said details, Mr. Kosti submitted that the delay in the proceedings may not be attributed to the petitioner and on that count it would not be justified to deny balance 50% of the back wages. On perusal of the impugned award it transpires that aggrieved by the action of the respondent the petitioner had raised an industrial dispute which culminated into the said reference. The orders of reference appears to have been made in 1995. The said reference was at one stage decided ex-parte on account of absence of the respondent herein. Thereafter, the respondent employer preferred Misc. Application being Misc. Application No.43/2006 under Rule-26(A) of the Rules framed under the Industrial Disputes Act, 1947 and prayed for restoration of the proceedings of the said reference. The labour court was pleased to pass an order dated 28.11.2006 and allowed the said Misc. Application and restored to file the proceedings of the reference. The said order SCA/9351/2008 5/12 JUDGMENT dated 28.11.2006 was challenged by the present petitioner by way of writ petition being special civil application No.21921/2007. In the said proceedings, appearance on behalf of the present respondent was entered and a statement on behalf of the present respondent was made before this court that without prejudice to the rights and contentions, the respondent was ready to reinstate the petitioner. This court (Coram: Hon'ble Mr. Justice S.R.Brahmbhatt) passed an order dated 28.9.2007 recording the said statement of the present respondent and directed the labour court to decide the reference (the proceedings of which were already restored by the labour court vide order dated 28.11.2006) preferably within a period of 4 months. With such observation, the said petition was disposed of by virtue of the order dated 28.9.2007. It appears that pursuant to the said order of this court in the proceedings commenced before the labour court and the respondent filed written statement wherein the respondent claimed the petitioner was working as a peon and not as a clerk SCA/9351/2008 6/12 JUDGMENT as claimed by the petitioner and that the transfer to Surat was effected at the request of the petitioner, however, in 1995 the said branch - office of the respondent could not be sustained and therefore, the same had to be closed and despite such fact – situation the respondent had shown readiness to reinstate the petitioner and the respondent was ready and willing to allow the petitioner to resume his duties. During the proceedings, depositions of petitioner and of a partner of the respondent were recorded. After evaluating the documentary and oral evidence obtaining on record, the labour court came to the conclusion that the service of the petitioner herein was terminated by the respondent and that the petitioner was entitled for relief of reinstatement. The labour court also took notice of the statement made on behalf of the respondent in the proceedings before this court. The labour court has also reproduced in the impugned award some of the portion of the deposition of the respondent's partner - witness from which it appears that the said witness admitted that the petitioner was working as a clerk and it was for the first time that during the SCA/9351/2008 7/12 JUDGMENT proceedings before this court that the respondent had shown readiness to reinstate the petitioner and that no notice or charge-sheet was served to the petitioner. While reproducing the deposition of respondent's witness, the labour court has also recorded that since 1994, the respondent establishment i.e. Manan Roadways is closed and is not functioning and that the Surat branch - office is also closed and not functioning. The labour court found it just and proper to direct the respondent to reinstate the present petitioner. So far as the challenge against the impugned award which deny 50% of back wages to the petitioner is concerned, at the outset, it is required to be noted that while the petitioner claimed that his service was orally terminated w.e.f. 31.12.1993, he appears to have initiated the proceedings for raising industrial dispute after lapse of some time inasmuch as the order of reference is made in March, 1995 i.e. after almost one year. SCA/9351/2008 8/12 JUDGMENT Further, in his deposition, the petitioner herein has admitted that he is residing in rented premises for which he pays rent of Rs.800/- pm. Since the petitioner has chosen not to produce copy of the depositions on record, it is only from the award that one has to gather the details of the oral evidence. From perusal of the award, it appears that the petitioner herein has admitted that he has two children; a daughter (of 15 years) and a son (of 19 years) and his son is studying in engineering faculty. The petitioner also admitted that he is a Commerce graduate. It appears from the award that while considering the issue regarding back wages, the labour court has taken into consideration the aforesaid details coming out from petitioner's evidence and has also taken into account that part of respondent's evidence, which is not disproved by the petitioner viz. the SCA/9351/2008 9/12 JUDGMENT establishments of the respondent in Ahmedabad as well as Surat have been closed down. The court has also considered that the proceedings have been continued for almost 13 years. Thus, the labour court appears to have considered the relevant aspects while deciding the issue of back wages. In submissions of Mr. Koshti, learned advocate for the petitioner, the delay in conclusion of the proceedings cannot be attributed to or held against the petitioner particularly because the reference proceedings were twice decided ex-parte. Even after considering the said aspect the fact remains that the order of reference was made after almost one year since the alleged date of termination and after the order dated 28.11.2006 restoring the proceedings almost 11 months were consumed in the proceedings preferred by petitioner challenging the order of lower court restoring the reference proceedings. From the reading of the award, it transpires and becomes clear that the labour court has examined the relevant aspects while deciding the issue regarding back wages and while denying the 50% back wages. The SCA/9351/2008 10/12 JUDGMENT factors which have been taken into account for not granting 50% back wages cannot be considered irrelevant or extraneous, much less perverse. The labour court appears to be mind full of the expenses which a family of four persons with two growing children pursuing their studies has to incur and also the fact that the petitioner pays Rs.800/- rent per month. In the circumstances, no error can be found in labour court's observation that the petitioner could not have carried-on all such obligations without being employed. Such reasoning of labour court cannot be brushed aside or ignored as baseless or mere ipse dixit. Thus, it is after taking into account relevant aspects that the court considered it appropriate to not grant 50% of back wages. The benefit of back wages should not be granted mechanically or automatically as a request to the benefit of reinstatement. By now it is settled legal position in light of the judgment of the Hon'ble Supreme Court in General Manager, Haryana Roadways V/s. Rudhan Singh reported in [2005(5) SCC 591] that while deciding the issue regarding back wages, several factors and aspects SCA/9351/2008 11/12 JUDGMENT have to be taken into account by the labour court. In the present case, since it is the workman who has approached this court by way of present petition demanding the balance 50% of back wages, this court does not consider it appropriate to examine the issue as to whether the labour court was right and justified in awarding 50% of back wages or not. However, on perusal and examination of the award and on examining the reasons recorded by the labour court in not granting the balance 50% of back wages, it cannot be said that the labour court has committed any error of law or jurisdiction while not granting the balance 50% of back wages and it also cannot be said that the award is perverse and / or unsustainable with regard to the denial of balance 50% of back wages. Hence, the impugned award does not warrant any interference and the case of the petitioner also does not warrant enhancement of benefit of back wages and this court also does not find any merit in the petition claiming modification of award so as to grant higher rate of back wages. Thus, the petition is not entertained and the same is SCA/9351/2008 12/12 JUDGMENT rejected. [K.M.Thaker, J.] kdc/tfxps1