IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10040 of 1995 cr For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 1 to 5 No -------------------------------------------------------------- C ARVINDKUMAR & SONS Versus UJIBEN PALJIBHAI -------------------------------------------------------------- Appearance: MR RV DESAI for Petitioner MR RC PATHAK FOR MR MH SHAIKH for Respondent-Caveator. -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA Date of decision: 26/03/96 ORAL JUDGMENT ; 1. Rule. Mr. Pathak waives service of Rule on behalf of the respondent-Caveator. On the request of the parties, the matter was taken up for final disposal. 2. This Special Civil Application is directed against the Award dated July, 1995 passed by the Labour Court, Ahmedabad in Reference (LCA) No.916 of 1984 whereby the relief of reinstatement with continuity of service and full backwages has been granted to the respondent. The respondent had entered the service of the petitioner on 1-3-77 as helper and the allegation of the respondent is that her services were terminated in January, 1984. The petitioner has contested the respondent's claim and joined issues on the point that the respondent had left the job of her own accord and petitioner did not terminate the services. However, the Labour Court has come to the conslusion that it was a case of termination of service in January, 1984 without following the requirements of S.25F of the Industrial Disputes Act and on that basis the relief of reinstatement with continuity of service and full backwages has been granted. So far as the grant of reinstatement and continuity of service is concerned, no exception can be taken to the Award inasmuch as the Labour Court has come to a finding that it was a case of unlawful termination and the respondent was, therefore, entitled to reinstatement with continuity of service. While considering the question with regard to the backwages, the Labour Court has considered that in this case the proceedings in the Reference were delayed on account of the petitioner's absence and the ex parte order had been passed on 7-9-90, which was later on recalled on 30-9-91 and, therefore, the respondent was entitled to full backwages. 3. The argument on behalf of the petitioner is that the respondent had initially initiated the proceedings under the Industrial Disputes Act and then under the Bombay Industrial Relations Act after a period of three and half years and, thereafter, when this Award was passed in July, 1995, the proceedings under the Bombay Industrial Relations Act were withdrawn. In this background Mr.Desai submits that the respondent could not resort to the dual proceedings simultaneously. This argument of Mr.Desai can not be entertained for the simple reason that the proceedings under the Industrial Disputes Act have been pursued. It is open for the workman to initiate proceedings either way and later on when the Award has been passed, the proceedings under the Bombay Industrial Relations Act have been withdrawn. Hence the Award in respect of reinstatement and continuity of service, as ordered by the Labour Court, does not warrant any interference and the finding of the labour Court that the termination of the services of the respondent on 30-1-84 was unlawful does not warrant any interference. 4. On the question of backwages, it goes without saying that the factum whether the respondent had remained gainfully employed or not was in the specific knowledge of the respondent and she has not pleaded or proved that she was not gainfully employed during the entire period. Even in the year 1992 when she was examined before the Labour Court, she has stated that at present she was unemployed. Since the factum that she throughout remained unemployed was not proved it could not be a case for grant of full backwages for the entire period. The Labour Court ought to have taken into consideration the conduct of both the sides and merely by noticing the delay in the proceedings at the instance of the petitioner, the relief of full backwages could not have been given and there should have been a proper adjudication on the question of backwages. However, Mr. Desai under instructions from his client has come out with a case that he is prepared to pay a sum of Rs.30,000/- against backwages. In view of the fact that the services were terminated in January, 1984 and no evidence has been led that the respondent remained without any employment through-out, at this stage after a period of more than one decade of the termination, I do not consider it appropriate to remand the matter back to the Labour Court to re-determine the question of backwages and find that the ends of justice would be served if the respondent is granted a sum of Rs.30,000/against the backwages as has been suggested on behalf of the petitioner. While deciding the question of backwages admittedly the respondent failed to state that she was throughout unemployed and has stated in 1992 that at present she was unemployed. Even if it is taken that she has been unemployed from 1992 onwards, the sum of Rs.30,000/-, which would cover the period beyond the date she was examined in 1992, appears to be reasonable. Besides this, the constroversy has been further raised about the date of birth of the respondent and Mr. Desai had submitted that she has already attained the age of 60 years inasmuch as the respondent had given out her age to be 56 years in the Application made under the provisions of Bombay Industrial Relations Act on 19-6-89 and accordingly she had attained the age of 60 years in the year 1993. It was also pointed out by Mr. Desai that on 30-3-92 before the Labour Court in her statement the respondent had given out her age to be 50 years. In such circumstances, the parties were directed to produce the Identity Card and the E.S.I.Card on 20-2-96 and accordingly the respondent produced her Identity Card and the E.S.I.Card alongwith the further affidavit-in-reply. In the Identity Card, the year of birth is mentioned as 1940 without any date of entry into the service whereas in the E.S.I.Card her date of birth is mentioned as 1937 and the date of entry into the service has been mentioned as 24-6-83. In such circumstances, with the consent of the parties, 1937, as mentioned in the E.S.I.Card,is taken to be the year of birth of the respondent and accordingly it is also made clear that the petitioner shall retain the respondent in service upto 31-12-96 as the respondent had already been reinstated in service during the pendency of the proceedings and further that the petitioner shall be under an obligation to pay the full wages to the respondent for the period on and from the date of the Award till the date she was reinstated and a sum of Rs.30,000/- against the backwages for the period prior to the date of the Award. 5. This Special Civil Application is, therefore, partly allowed as indicated above. The impugned Award shall stand modified accordingly. Rule is also made absolute in the terms as aforesaid. No order as to costs. -0-