Gujarat High Court
Kosan Industries (P) Ltd vs Nandkishore Shravan on 5 February, 2013
Author: K.S.Jhaveri
Bench: Ks Jhaveri
KOSAN INDUSTRIES (P) LTD.....Petitioner(s)V/SNANDKISHORE SHRAVAN AHIRRAO....Respondent(s) C/SCA/8536/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8536 of 2008 With CIVIL APPLICATION NO. 5308 of 2010 In SPECIAL CIVIL APPLICATION NO. 8536 of 2008 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 ? ================================================================ KOSAN INDUSTRIES (P) LTD.....Petitioner(s) Versus NANDKISHORE SHRAVAN AHIRRAO....Respondent(s) ================================================================ Appearance: MR AK CLERK, ADVOCATE for the Petitioner(s) No. 1 MR P C CHAUDHARI, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 05/02/2013 COMMON ORAL JUDGMENT
By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has inter alia prayed to quash and set aside the judgment and award dated 27th February, 2008, passed by the Labour Court, Surat, in Reference (LCS) No.103 of 1998, whereby the Tribunal has granted reinstatement with 25% back wages without continuity of service to the respondent-workman.
The facts in brief are that the respondent-watchman had raised an industrial dispute on the ground that the petitioner had terminated his services in complete breach of the provisions of the Industrial Disputes Act, 1947. The dispute was numbered as Reference (LCS) No.103 of 1998 and it was decided by way of the impugned judgment and award. Being aggrieved by the same, the present petition has been preferred.
It is pertinent to note that when this matter came up for admission hearing before this Court on 21st January, 2009, this Court passed the following order :
Heard learned Advocates for the parties.
Looking to the rival contentions with regard to infirmity in the order of the Labour court as well as infirmity in the punishment order, the matter deserves consideration. Hence, RULE returnable on 22/03/2009. Mr.Chaudhary, learned Advocate for respondent waives service of notice of Rule.
By way of interim-relief, the award impugned is stayed subject to compliance of Section 17 (B) of the ID Act. It is clarified that it would be open to the petitioner to offer reinstatement without creating any equity or rights and their submissions and contentions in this petition, as otherwise to curtail the idle wages. The reinstatement offer shall not create any right in a workman and it will be without prejudice to the rights and contentions of the petitioner.
Having considered the contentions raised by the learned counsel for the respective parties, averments made in the petition and the documentary evidence produced on record, it transpires that the respondent-workman has been reinstated in service in pursuance of the aforementioned interim order, which is even confirmed by the learned counsel for the petitioner. Further, looking to the facts and circumstances of the case as well as the interim order passed by this Court, I am of the opinion that the Labour Court has rightly passed the judgment and award reinstating the respondent without continuity of service. The Labour Court has rightly observed that the respondent-workman has been imposed too harsh punishment of dismissal for charge-3, whereby the incident had taken place on 17th June, 1992 and even the salary of the respondent was deducted accordingly. Further, looking to the evidence on record, the Labour Court has rightly observed that the reasons assigned for charge Nos.3 and 4 are perverse and thus, when once the amount was deducted from the salary of the respondent, he ought not to have been imposed punishment second time for the very charge. Hence, the Labour Court has rightly exercised powers under section 11-A of the Act.
Insofar as granting of back wages is concerned, in view of the principle laid down by the Apex Court in the case of Ram Ashrey Singh v. Ram Bux Singh, reported in (2003) II L.L.J. 176, a workman has no automatic entitlement to back wages since it is discretionary and has to be dealt with in accordance with the facts and circumstances of each case. Similar principle has been laid down by the Apex Court in the case of General Manager, Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, wherein it has been held that an order for payment of back wages should not be passed in a mechanical manner, but a host of factors are to be taken into consideration before passing any such order. Thus, relying upon the aforesaid decisions of the Apex Court, I am of the opinion that the respondent is not entitled to any back wages and therefore, the award of the Labour Court granting back wages is unjust and improper and the same is required to be quashed and set aside.
For the foregoing reasons, the present petition is partly allowed. The impugned judgment and award passed by the Labour Court qua granting of back wages to the respondent-workman is hereby quashed and set aside. The rest of the impugned judgment and award remains unaltered.
Since the respondent has already been reinstated in service in view of interim order passed by this Court, no direction qua reinstatement is issued. The monetary benefits, if any, arising from passing of this order shall be paid to the respondent within a period of seven months from today.
Rule is made absolute to the aforesaid extent insofar as petition is concerned. The award be drawn accordingly.
(K.S.JHAVERI, J.) ORDER IN CIVIL APPLICATION :
In view of aforesaid, Mr.P.C. Chaudhari, learned counsel for the respondent, states that he may be permitted to withdraw present application with liberty to move appropriate application before appropriate forum.
Permission as prayed for is granted. The present application stands disposed of as withdrawn with aforesaid liberty.
(K.S.JHAVERI, J.) Aakar Page 5 of 5