SCA/11373/2001 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11373 of 2001 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 ? ============================================= = G S R T C - Petitioner Versus B.M.PARMAR - Respondent ============================================= = Appearance : MR DIPEN A DESAI for Petitioner MR PRAKASH K JANI for Respondent ============================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 15/10/2008 ORAL JUDGMENT The matter was called out before the recess, but none had appeared for the parties. After the recess, Shri Dipen Desai, learned Advocate for the petitioner is present. SCA/11373/2001 2/6 JUDGMENT 2. The petitioner-GSRTC, has assailed the award dated 17/05/2000, passed by the Presiding Officer, Labour Court, Palanpur in Reference (LCV) No.813 of 1996 whereunder the respondent – workman has been ordered to be reinstated with continuity of service and 50 % of back wages and cost of Rs.500/-. 3. The facts in brief deserves to be set out as under: 4. The workman, at the relevant time, while discharging his duties as driver with the petitioner-Corporation remained unauthorizedly absent from 08/05/1993 up to 29/06/1993. Hence, the departmental inquiry for the misconduct of unauthorized absent had been initiated wherein also the workman did not participate. As the workman himself has admitted before the learned Labour Court the ex parte inquiry proceedings culminated into imposition of penalty of dismissal from service. The said order of dismissal came to be confirmed by the First appellate and Second appellate authorities also, therefore the workman raised an industrial disputes which came to be referred for adjudication to the Labour Court, Palanpur where it came to be numbered as Reference (LCV) No.813 of 1996. The Labour Court after SCA/11373/2001 3/6 JUDGMENT recording the rival contentions of the parties and fact that the workman did not challenge the validity of inquiry proceedings, came to the conclusion that misconduct of unauthorized absent had been proved. However, only on account of exercising the discretion under Section 11 (A) f the Industrial Disputes Act, set aside the order of dismissal reinstating the workman with continuity of service with 50 % back wages. Hence, the said award is challenged by way of filing of this petition under Article 227 of the Constitution of India. 5. Shri Dipen Desai, learned Advocate for the petitioner-Corporation submitted that the workman has already been reinstated and therefore now the petition is naturally confined only the granting of 50% back wages. and the challenge with regard to the reinstatement is given up. 6. In view of this, the submissions were canvassed only for resisting the award so far as back wages part is concerned. Shri Desai, has submitted that the workman though terminated on 20/07/1990 appears to have raised dispute after the delay. The dispute is sent for adjudication only in the year 1996. A cursory and perfunctory recording of workman attempting to obtain employment and not getting the same could not be SCA/11373/2001 4/6 JUDGMENT basis for awarding 50 % of backwages in absence of any other evidence. Moreover, the workman who was holding a valid driving licence, could not have been presumed to have idle away his time without earning. Moreover, there is no discussion in this behalf in the impugned award and therefore on this count also the order of back wages deserves to be quashed and set aside. 7. This Court is of the view that the Labour Court has patently erred in not appreciating the real purport of Section 11 (A) of the I.D. Act. The reading of the award goes to show that the misconduct on the part of the workman is said to have been proved. However, the period of unauthorized absence being 50 days was considered to be negligible period for which punishment of dismissal would not be warranted. This Court may not interfere with that view of the Labour Court under Article 227 of the Constitution of India, but while setting aside the punishment of dismissal it ought to have been substituted by any other penalty which would have served the ends of justice. One may argue that denial of back wages upto 50 % in itself also amounts to penalty but the said submission would not be tenable in view of the fact that reference is of the year 1997 and the dismissal was 08/07/1994. SCA/11373/2001 5/6 JUDGMENT 8. Be that as it may, the granting of 50 % back wages also ought to have based upon the appropriate evidence with regard to workman not gainfully employed in the interregnum period. The statement of the workman in this behalf is relied upon for granting of 50 % of back wages, which is not in consonance with the principles laid down by the Apex court in various decisions with regard to granting of 50 % back wages. 9. In view of this and in view of the fact that as the challenge to the reinstatement part of the award is given up by the petitioner, this Court is of the view that petition deserves to be allowed and the award deserve to be modified only qua the award of back wages. The award with regard to the continuity of service and reinstatement is, therefore, not disturbed. However, the workman shall not be entitled for the back wages. 10. With the above modification, the petition stands allowed accordingly. Rule made absolute to the aforesaid extent only. There shall be no order as to costs. (S.R.BRAHMBHATT, J.) SCA/11373/2001 6/6 JUDGMENT sompura