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2011 DIGILAW 376 (GUJ)

Oghad Masri Rabari v. State of Gujarat

2011-05-02

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT : V. M. SAHAI, J. 1. We have heard Ms. Mamta R Vyas, learned counsel appearing for the appellant. This Letters Patent Appeal has been filed by the appellant challenging the judgment dated 29.7.2010 passed by the learned Single Judge in Special Civil Application No.8250 of 2001 by which the learned Single Judge has partly allowed the writ petition and set aside the award passed by the Labour Court, Junagadh in Reference (LCJ) No.234/1995 dated 14.11.2000 so far as the back wages are concerned and reinstatement with continuity of service has been confirmed. 2. The facts in brief are that the appellant was appointed as Rojamdar Watchman by the respondent department on a particular project. He had worked for the period from 1985 to 1993 and thereafter, his services were terminated. The appellant raised industrial dispute and the Labour Court allowed the claim of the appellant and directed reinstatement with full back wages. Against the said award, the respondents filed writ petition before the learned Single Judge which was partly allowed and the award of the Labour Court was modified to the extent that grant of full back wages was quashed and rest of the award was confirmed. The appellant has filed this appeal on the ground that the appellant was entitled to back wages as evidence was led before the Labour Court that the appellant was not gainfully employed during the period. 3. We are at a loss to understand how the workman or his family could survive without any employment or income. However, the Apex Court in series of decisions has held that on reinstatement, back wages cannot be automatically granted and it is the discretion of the Court to grant back wages. The Apex Court in a decision in Chairman-cum-Managing Director, Coal India Ltd and Others v. Ananta Saha & Others 2011 (5) SCC 142 held in para 47 as under: "The issue of entitlement of back wages has been considered by this court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no strait-jacket formula can be evolved, nor a rule of universal application can be laid for such cases. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no strait-jacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of reinstatement...." 4. The learned Single Judge, in his judgment held in paragraphs 4 and 5 as under: "However, so far as the question of back wages is concerned, the Court below has not given any cogent reasons for awarding back wages to the workman. In view of the principle laid down by the Apex Court in the case of Ram Ashrey Singh v. Ram Bux Singh, (2003) II L.L.J. Pg.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, AIR 2005 SC 3966 : (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. 5. It would also be relevant to refer to a decision of the Apex Court in the case of A.P. State Road Transport & Ors., v. Abdul Kareem, (2005) 6 SCC 36 , wherein it has been held that a workman is not entitled to any consequential relief on reinstatement as a matter of course unless specifically directed by forum granting reinstatement. Looking to the facts of the case and the principle laid down by the Apex Court in the above decisions, I am of the opinion that the respondent-workman cannot be said to be entitled for any back wages. Hence, the impugned award grating back wages deserves to be quashed and set aside. in Ram Ashrey Singh v. Ram Bux Singh(Supra) in General Manager, Haryana Roadways v. Rudhan Singh (Supra) and in A.P. State Road Transport & Ors. Hence, the impugned award grating back wages deserves to be quashed and set aside. in Ram Ashrey Singh v. Ram Bux Singh(Supra) in General Manager, Haryana Roadways v. Rudhan Singh (Supra) and in A.P. State Road Transport & Ors. v. Abdul Kareem (Supra) wherein it has been held that a workman is not entitled to any consequential relief on reinstatement as a matter of course unless specifically directed by forum granting reinstatement. Looking to the facts of the case and the principle laid down by the Apex Court in the above decisions, I am of the opinion that the respondent-workman cannot be said to be entitled for any back wages. Hence, the impugned award granting back wages deserves to be quashed and set aside." In Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and Others ( 2010 6 SCC 773 , the Apex Court in para 9 to 11 held as under: "9. In the last few years it has been consistently held by this court that relief by way of reinstatement with back ages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate (see U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, Uttaranchal Forest Development Corporation v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuvan, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development authority v. Ramsahai, GDA v Ashok Kumar and Mahboob Depak v. Nagar Panchayat, Gajraula). 10. In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Mktg. Board, the aforesaid decisions were noticed and it was stated: (SCC pp.330 & 335, paras 7 & 14) "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. Board, the aforesaid decisions were noticed and it was stated: (SCC pp.330 & 335, paras 7 & 14) "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. 14. It would be, thus, seen that by a catena of decisions in recent time, this court has clearly laid down that an order of retrenchment passed in violation of section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this court and instead compensation has been awarded. This court has distinguished between a daily wager who does not hold a post and a permanent employee." 11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice. In our considered view, the compensation of Rs. 40,000 to each of the workmen (respondents 1 to 14) shall meet the ends of justice. We order accordingly. Such payment shall be made with 6 weeks from today, failing which the same shall carry interest at the rate of 9% per annum." 5. From the aforesaid decisions it is clear that the appellant was not entitled to back wages even though relief of reinstatement has been granted to him. We order accordingly. Such payment shall be made with 6 weeks from today, failing which the same shall carry interest at the rate of 9% per annum." 5. From the aforesaid decisions it is clear that the appellant was not entitled to back wages even though relief of reinstatement has been granted to him. At the most, the appellant could have claimed for compensation but such claim was not raised by the respondent/appellant before the learned Single Judge. Therefore, in appeal we cannot grant a relief which was not claimed before the learned Single Judge by the respondent to the writ petition. 6. For the aforesaid reasons, this appeal is devoid of merit and fails and is accordingly dismissed. Appeal Dismissed.