SCA/3601/2002 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3601 of 2002 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 - Petitioner(s) Versus BAKULKUMAR M SHAH - Respondent(s) ============================================================== Appearance : GOVERNMENT PLEADER for Petitioner(s) : 1, MR KISHOR M PAUL for Respondent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 05/12/2005 ORAL JUDGMENT 1. This petition is directed against the award dated 27.08.01 passed by the Labour Court, Rajkot in reference (LCR) No.84/88 whereby the Labour Court had directed the petitioner to reinstate the respondent on his original SCA/3601/2002 2/6 JUDGMENT post with continuity of service and 25% backwages. 2. The brief facts of the case are that the respondent was working as Rojamdar in the petitioner Department for the last four years. On 22.11.1986, he was discharged from service without being served any notice or notice pay. Aggrieved by this, the respondent raised a dispute which was referred to the Labour Court, Rajkot for adjudication. The Labour Court, thereafter, passed the aforesaid award. 3. Learned Counsel for the petitioner contended that ignoring the true facts on record that the respondent was engaged as Rojamdar, the impugned award was passed. According to him the respondent left the job on his own accord. Moreover, in view of the fact that the petitioner is not an industry, the Labour Court has wrongly directed the petitioner to reinstate the workman on his original post. 4. This court while admitting the matter has stayed only backwages and had directed the petitioner to reinstate the respondent. Interim relief was not granted qua reinstatement. Subsequently, the respondent has already been reinstated. In that view of the matter, SCA/3601/2002 3/6 JUDGMENT the only question which was left open for consideration by this court is qua backwages. The Labour Court has considered the evidence on record in detail and has come to the conclusion that the respondent workman is required to be reinstated. I am in complete agreement with the reasonings adopted and the findings arrived at by the Labour Court regarding breach of Section 25F. Therefore, in my opinion, the order of reinstatement is not required to be interfered with. 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. As a result, I am of the opinion that the order of backwages is required to be quashed and set aside. 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 SCA/3601/2002 4/6 JUDGMENT 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: “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 SCA/3601/2002 5/6 JUDGMENT 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 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.” 6. 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 workman will be given benefit of continuity of service within six weeks pursuant to the SCA/3601/2002 6/6 JUDGMENT order of the Labour Court and this Court. In the case of backwages, the amount deposited by the petitioner with this court will be refunded to the petitioner by way of cheque drawn in favour of “Executive Engineer, Narmada Water Resources and Water Supply Department”. Rule is made absolute accordingly with no order as to costs. (K.S. JHAVERI, J.) Divya//