SCA/7778/2001 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7778 of 2001 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 ? ============================================================== STATE OF GUJARAT & 1 - Petitioner(s) Versus CHAVDAR NATUBHAI MARUBHA - Respondent(s) ============================================================== Appearance : GOVERNMENT PLEADER for Petitioner(s) : 1 - 2. RULE SERVED for Respondent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 28/11/2005 ORAL JUDGMENT 1. By way of this petition, the petitioner has challenged the award dated 01.05.2001 passed by the Labour Court, Junagadh in reference (LCJ) No.77/95 wherby SCA/7778/2001 2/6 JUDGMENT the Labour Court has directed the petitioner to reinstate the respondent with 60% backwages. 2. The brief facts of the case are that the respondent was working as a rojamdar since 13.07.1981. He was discharged from service on 13.04.94. He raised an industrial dispute for illegal termination which was referred to the Labour Court for adjudication whereby the Labour Court passed the aforesaid award. 3. Learned counsel for the petitioner has submitted that though a contention was raised before the Labour Court that the petitioner is not an industry the issue was not decided. However, the respondent was employed in a nursery but he voluntarily left the service by not reporting for duty. In that view of the matter, he contended that the Labour Court has committed an error in granting reinstatement and backwages. 4. After having heard the learned counsels for the parties and after having gone through the facts and circumstances of the case, I am of the view that in para ( c) and (d) of page 19 the Labour Court has given reasons for reinstatement as a daily wager. In my SCA/7778/2001 3/6 JUDGMENT opinion, the reasoning given by the Labour Court for restoring the respondent to the original post of daily wager is required to be confirmed. 5. 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 inspite of the fact that the respondent had voluntarily not reported for duty. As a result, I am of the opinion that the order of backwages is required to be quashed and set aside. 6. 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 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: SCA/7778/2001 4/6 JUDGMENT “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 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 SCA/7778/2001 5/6 JUDGMENT consideration before passing any order for award of back wages. 11. 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. 12.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.” 7. In the premises aforesaid, the award granting backwages is quashed and set aside. The award of reinstatement with continuity of service is confirmed. The order of the Labour Court is modified to the above extent. The respondent will be reinstated as a daily wager. He will be given benefit of continuity of service only from the date of reference and not from the date of alleged retrenchment as he himself has voluntarily not reported for duty. Rule is made absolute accordingly with no order as to costs. SCA/7778/2001 6/6 JUDGMENT (K.S. JHAVERI, J.) Divya//