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2015 DIGILAW 225 (GUJ)

Himatbhai Lavjibhai Rathod v. Amba Gram Panchayat

2015-02-24

JAYANT PATEL

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JUDGMENT : Matter is called out twice. Mr. Rathod is not present. Hence, dismissed for default. (JAYANT PATEL, J.) Jayant Patel, J. Oral - Before the order is signed, Mr. Mukesh Rathod, learned Counsel has prayed for restoration by stating that he is ready to proceed with the matter. Hence, restored. The matter is further heard. 2. The present petition is directed against the award dated 4.3.2000 passed by the Labour Court in the Reference Case No. 251 of 1998, so far as it relates to not awarding 75% back-wages and the challenge is also made in the present petition to the order passed by the Labour Court for deleting GEB as party of the Reference. 3. The short facts of the case appear to be that the petitioner - workman was engaged by the respondent No. 1 Gram Panchayat as Vijlighar employee to look after the electricity faults at the respective electricity connection of the Gram Panchayat. He was engaged in the year 1988 and he was continued up to 30.10.1992. The service of the petitioner came to be terminated on 30th October 1992 by the Gram Panchayat. The dispute was raised under the Industrial Disputes Act (hereinafter referred to as the 'Act'). The said dispute was referred to the Labour Court for adjudication. Ultimately, the Labour Court, at the conclusion of the Reference, passed the above referred judgment and the award for reinstatement with 25% back-wages. It is under these circumstances, the petitioner has approached this Court so far not awarding 75% back-wages to the petitioner. The petitioner has also challenged the order passed by the Labour Court, whereby respondent No. 2 Electricity Board was deleted as party in the award. 4. I have heard Mr. Rathod, learned Counsel for the petitioner and Ms.Maya Desai, learned Counsel for Mr. Pandya, learned Counsel for respondent Electricity Company. Respondent No. 1 Gram Panchayat is served, but none appears on its behalf. 5. Mr. Rathod, at the outset, submitted that the award has been accepted by the Gram Panchayat and the petitioner has been reinstated with respondent No. 1 Gram Panchayat and 25% back-wages are already paid and he submitted that the present petition is limited to not awarding of 75% back-wages. 6. 5. Mr. Rathod, at the outset, submitted that the award has been accepted by the Gram Panchayat and the petitioner has been reinstated with respondent No. 1 Gram Panchayat and 25% back-wages are already paid and he submitted that the present petition is limited to not awarding of 75% back-wages. 6. In view of the aforesaid declaration, I find that the aspect as to whether election company was rightly deleted or not would not be required to be examined since the Gram Panchayat has accepted the award and the petitioner is reinstated in service and 25% back-wages are also paid. 7. On the aspect of not awarding 75% back-wages by the Labour Court, it was submitted by Mr. Rathod that in the deposition of the workman, primary burden was discharged by showing that the workman was unemployed and no evidence was led on behalf of the respondent that the workman was gainfully employed and, therefore, the workman would be entitled to full back-wages. The Labour Court has not recorded reasons for reducing the back wages to 25% and, therefore, it can be said that an error apparent on the face of record and this Court may interfere by exercise of power under Article 227 of the Constitution of India. 8. Whereas, Ms. Desai, learned Counsel for the electricity company submitted that the award is passed against the Gram Panchayat and the electricity company has nothing to do with the service of the petitioner with the Gram Panchayat. 9. One aspect is clear from the record and the award of the Labour Court that the petitioner was not in the regular set up of the Gram Panchayat and he was engaged on temporary and ad hoc basis and his duty was to remove the faults of the electricity connection with the Gram Panchayat given by the electricity company. When the engagement of the petitioner was temporary and outside the regular set up of the Gram Panchayat even if the termination was found to be illegal, the Labour Court cannot be said to have committed error in awarding back-wages to the extent of 25% only, because when any employee is in a regular employment in the set up, even if the aspect of unemployment has come on record, the discretion vests to the Labour Court for awarding of back wages. Such discretion is to be judicially exercised. Such discretion is to be judicially exercised. Unless the discretion is exercised in a perverse manner, it would not call for any interference under Article 227 of the Constitution of India. It appears to me that when the factum of temporary employment outside the set up has come on record and if the discretion is exercised by the Labour Court for awarding of only 25% back-wages, such an exercise of discretion cannot be said to be perverse, which may call for interference by this Court under Article 227 of the Constitution of India. 10. In view of the above, no case is made out for interference. Petition fails. Hence, dismissed. Rule discharged. No order as to costs. Petition dismissed.