Gujarat High Court
Dy.Executive Engineer vs Jashuben Sumabhai Chaudhary on 16 January, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/11318/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11318 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
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 ? No
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DY.EXECUTIVE ENGINEER....Petitioner(s)
Versus
JASHUBEN SUMABHAI CHAUDHARY....Respondent(s)
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Appearance:
MS SEJAL K MANDAVIA, ADVOCATE for the Petitioner(s) No. 1
MR KR KOSHTI, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 16/01/2015
ORAL JUDGMENT
It is against judgment and award dated 05.01.2006 of Labour Court, Surat passed in reference (LCS) No. 142 of 1993, that the present petition is filed. By said judgment and award, the Labour Court allowed the reference of the respondent-workman and directed her reinstatement on the original post with backwages. It Page 1 of 7 C/SCA/11318/2006 JUDGMENT further directed to pay Rs.2,000/- towards costs.
2. The respondent-workman, according to her case in the Statement of Claim, was employed with the first party employer since 01.01.1978. The work of road repairing and incidental work was being taken from her and she was paid daily wages at the rate of Rs.11.70ps per day. It was the case that her services were illegally terminated with effect from 21.03.1987. The grievance of the workman was also that the employer was not paying minimum wages and treating her arbitrarily. The workman prayed for reinstatement with backwages. The first party employer filed reply at Exh.27 and contested the reference.
3. It appears that the workman was reinstated by the petitioner after this Court issued notice in the petition on 04.12.2007. Following was recorded in the order, "2. Ms. Mandavia, learned counsel appearing for the petitioner submits that in order to avoid paying idle wages under Section 17-B of the I.D.Act, the petitioner has chosen to reinstate the respondent workman without prejudice to the rights and contentions about her being not an employee of the petitioner. She submits that however, the order of the Labour Court qua back wages may be stayed as the learned Labour Court has not assigned any reason whatsoever justifying payment of 100% back wages.
Page 2 of 7 C/SCA/11318/2006 JUDGMENT
3. Mr. Koshti, learned counsel appearing for
the respondent submitted that the order so far as reinstatement is concerned, the same is reasoned one, however, if the Court is inclined to stay the back wages, liberty be reserve to the workman to approach the court in case of any difficulty in future as she is continue in service as she has been reinstated by the Panchayat pending petition.
4. In view of that, Rule. The Award passed by the Labour Court dated 5.1.2006 passed in Reference (LCS) No. 142 of 1993 is hereby stayed in respect of back wages only. It is clarified that the workman, who has been reinstated, shall be continue during pendency of this petition.
4. Heard learned advocate Ms. Sejal K. Mandavia for the petitioner-employer and learned advocate Mr. K. R. Koshti for the respondent-workman.
4.1 Learned advocate for the petitioner submitted that the reference was sought for after gap of 7 years. It was submitted that the Labour Court did not record the finding about breach of Section 25F of the Industrial Disputes Act, 1947, yet passed the order of reinstatement. Learned advocate for the petitioner further submitted that though the workman was reinstated, it was without prejudice to the rights and contentions of the petitioner. She submitted that the part of the award which directed payment of backwages, Page 3 of 7 C/SCA/11318/2006 JUDGMENT was wholly uncalled for and unjustified and further that relief as awarding of backwages was not to be automatic.
4.2 On the other hand, learned advocate for the respondent submitted that the employer left the contest and leading of evidence in the midst, and his evidence ultimately came to be deleted. It was submitted that the evidence led by the workman was rightly believed by the Labour Court. Learned advocate supported the award of backwages by contending that the employer was required to establish by leading evidence that the workman was employed elsewhere.
5. From the facts on record and on consideration of the judgment and award of the Labour Court, it appears that as per the case of the workman, she was continued during the period from 1978 to 1987. She deposed herself at Exh.9 and supported the facts stated in the Statement of Claim. One Ranchhodbhai Chaudhary(Exh.38) was examined on behalf of the workman who fortified the case that the workman was engaged to work on the roadside and was doing work of road repairing etc. The said witness stated that other 10-15 workmen whose services were also terminated, were taken back in service. As against this, from the side of the employer, one Kantibhai Patel(Exh.42) was examined. It however appears that after proceeding to give evidence, he did not turn up to cross-examine the workman. The workman filed Exh.62 application upon which the evidence of the said witness was deleted.
Page 4 of 7C/SCA/11318/2006 JUDGMENT 5.1 In the above circumstances, it could not be
gainsaid that the Labour Court was not justified in accepting the evidence of the workman. The workman could prima facie established her case and the case so established could not be rebutted by the employer. It further appears that the first party employer produced documents(Exh.41 to Exh.47) which included the seniority list. It was submitted by learned advocate for the petitioner that the said seniority list did not contain the name of the workman. However, as rightly observed by the Labour Court, those documents by itself did not prove that the workman was not engaged and that she did not work. The seniority list would not contain the workman's name if she was not eligible for consideration for the purpose of seniority.
6. In the above circumstances and in light of above state of evidence, the order of reinstatement passed by the Labour Court could not be faulted. In any view, as stated above, the workman came to be reinstated in the year 2006. The Court would be disinclined to upset and disturb the reinstatement; it would be too harsh to drive the workman out of service after this much passage of time.
7. As far as the part of the award which granted backwages to the workman is concerned, learned advocate for the petitioner rightly contended that there was no basis for awarding backwages. The Page 5 of 7 C/SCA/11318/2006 JUDGMENT judgment and award of the Labour Court did not contain any reason for discussion, much less valid reason to award backwages. It is well settled that the relief of reinstatement would not automatically lead to grant of backwages. Award of backwages is entirely in the realm of discretion of the Labour Court/Tribunal. Merely because reinstatement is ordered, the workman could not claim that she ought to have been awarded backwages.
8. The Supreme Court reiterated the principle that the backwages is not a relief which would automatically and necessarily entail for the workman who is reinstated pursuant to the judgment and award of the Labour Court. In Ram Ashrey Singh and anr. vs. Ram Bux Singh and ors. [AIR 2003 SC 1579], the Supreme Court held that the grant of backwages cannot be automatic on reinstatement of workman. Similarly, in General Manager, Haryana Roadways vs. Rudhan Singh [(2005) SCC 591], it was stated by the Apex Court that there is no rule of thumb that in every case where Industrial Tribunal gives finding that termination of service was in violation of Section 25F of the Industrial Disputes Act, 1947, entire backwages should be awarded. Order of payment of backwages should not be passed in a mechanical manner but a host of factors have to be considered which would include method and nature of appointment, qualifications of workman, length of service and availability of alternative work.
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9. In the present case, there was no justification either on facts for grant of backwages, neither there was any discussion or iota of evidence on the basis of which the Labour Court's award on that score could be sustained. Therefore, the part of the impugned judgment and award which granted backwages to the workman was one clearly booking an error of law. The grant of backwages has to be set aside.
10. For the aforesaid reasons and discussion, the judgment and award of the Labour Court to the extent it awarded backwages is hereby set aside. The petition is allowed in part. Rule is made absolute to the said extent.
(N.V.ANJARIA, J.) chandrashekhar Page 7 of 7