Back
2007 Supreme(Guj) 383
2007 (3) GCD 1932 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Gopal Nandkishor Sharma
Versus
Manager, Atul Products Ltd.
Special Civil Application No. 11593 of 2006
Decided on 29/06/2007
Point in Issue :
Whether Labour Court was justified in denying back wages to petitioner.
Headnote:Head Note :
Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 11-A — Award — Denial of back wages — While setting aside dismissal — Propriety of — Finding as to — Sustainability — In the case termination was by way of punishment for misconduct in a departmental inquiry — The Court had confirmed the finding regarding misconduct but considering the punishment of termination excess ordered reinstatement but in such circumstances neither back wages nor continuity of service nor consequential benefit follow as a necessary consequence of such reinstatement — In such case award of back wages for the period when employee has not worked may amount to rewarding the delinquent employee which should be avoided — In the circumstances Labour Court having taken relevant facts rightly levied the back wages for the interim period — Further even if the workman would have been absolutely exonerated from charges levelled against him then also in absence of any evidence that he had made efforts to secure any job or employment during the interim period he would not have been entitled for the same — It was necessary for the workman to depose on oath that he has remained unemployed inspite of his earnest assiduous efforts to secure job or employment which he has not done in the case — Therefore, on that ground also Labour Court in the case was justified in rejecting the claim of workman for back for the interim period — Consequently impugned award by Labour Court does not call for any interference.
Held :
The Labour Court has power to impose punishment while exercising powers under Section 11-A of the ID Act, 1947 and while exercising such powers, Labour Court can deny the back wages for interim period by way of punishment and that has been done by the Labour Court in the case before hand wherein no error has been committed by the Labour Court as per the opinion of this Court. Finding has been given by the Labour Court that the misconduct against the workman is proved but it is not so serious and it was the first misconduct of the workman and conduct of the workman is partly serious in nature and, therefore, it require some punishment by way of denial of total back wages for interim period. Labour Court has exercised discretion vested in it based on the discussion in Para 14 while nothing the conduct of the workman to remain unemployed and not to make any efforts for securing any job or work or employment during the interim period because elder son of the petitioner is working and receiving wages. Therefore, Labour Court has rightly denied back wages for the interim period and in doing so, no error has been committed by the Labour Court warranting interference of this Court in exercise of the powers under Article 227 of the Constitution of India. It is the discretionary jurisdiction of the Labour Court which has been exercised by the Labour Court by giving cogent and convincing reasons for not awarding back wages for intervening period. Therefore, as per my opinion, Labour Court was right in denying the back wages to the petitioner and, therefore, award does not require any interference of this Court. [Para 10]
Further, even if the workman would have been absolutely exonerated from the charges levelled against him, then also, that itself would not entitle the workman to claim the back wages for the interim period. Here, the petitioner has in terms stated that he has not made any efforts to secure any job or employment during the interim period. For claiming back wages for interim period, it is necessary for the workman to depose on oath that he has remained unemployed inspite of his earnest assiduous efforts to secure job or employment. If the workman makes such statement in his deposition, then, it becomes necessary for the employer to controvert it. Therefore, on that ground also Labour Court was justified in rejecting the claim of workman for back wages for interim period since he has not deposed before the Labour Court that he has remained unemployed during the intervening period. [Para 12]
Law Laid Down :
Labour Court is empowered to deny back wages by way of punishment under the Act.
Case Law Analysis :
Jindarsing Bahra & Anr. vs. Cargo Motors Ltd., 2007 (1) GLR 45 [Para 3];; Jasbir Singh vs. Punjab & Sind Bank & Ors., 2007 (1) SCC 566 [Para 3];; J.K. Synthetics Ltd. vs. K.P. Agarwal & Anr., 2007 (1) SCC L&S 651 [Para 3];; Veternary Officer & Anr. vs. Rajendrasinh R. Jhala., 1998-I GLR 110 [Para 3];; General Manager, Haryana Roadways vs. Rudhan Singh., 2005 (5) SCC 591 [Para 3].—Distinguished
Jitendra Singh Rathor vs. Shri Baidyanath Ayurved Bhavan Ltd., AIR 1984 SC 976 [Para 8];; J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr., 2007 (1) SCC L&S 651 [Para 13];; G.S.R.T.C. vs. Kadarbhai J. Suthar, 2007 (3) Scale 39 [Para 13].—Relied on
Appearance :
Mr. Y.V. Shah, for the Petitioner No. 1.
Nanavati Associates, for the Respondent No. 1.
Conclusion :
In the facts and circumstances of the case Labour Court was justified in rejecting the claim of workman for back wages.
Case Referred :
Noida Enterprises Association vs. Nodia & Ors., (WP. CC) No. 159/1997 with WP © 529/1998, dated 15.01.2007.
Decided in Favour of :
Respondent
Petition Dismissed
H.K. Rathod, J.—Heard learned Advocate Mr. Y.V. Shah for the petitioner and Mr. Joshi for Nanavati Associates for respondent.
2. Through this petition under Article 227 of the Constitution of India, the petitioner has challenged the award made by the Labour Court, Valsad in Reference No. 98 of 1995 dated 22.02.2006 qua denial of back wages for the intervening period.
3. Learned Advocate Mr. Y.V. Shah for the petitioner submitted that the relevant factors have not been taken into consideration by the Labour Court while denying back wages for the intervening period. He submits that the petitioner was permanent qualified employee working on the post of welder vendor for more than 26 years continuously and ex parte departmental inquiry was conducted against the petitioner and the Labour Court gave finding that it was a first misconduct and occupying quarter subsequently allotted by the company as the petitioner was wrongfully dismissed based on ex pare inquiry which was rightly quashed by the Labour Court and, therefore, being normal and natural consequence, petitioner is entitled for full back wages for intervening period. In support of his submissions, he placed reliance on the following decisions:—
(1) 2007 (1) GLR 45 Jindarsing Bahra & Anr. vs. Cargo Motors Ltd.
(2) 2007 (1) SCC 566 in case of Jasbir Singh vs. Punjab & Sind Bank & Ors.,
(3) 2007 (1) SCC L&S 651 in case of J.K. Synthetics Ltd. vs. K.P. Agarwal & Anr.,
(4) 1998-I GLR 110 Para 5 in case of Veternary Officer & Anr. vs. Rajendrasinh R. Jhala.
(5) 2005 (5) SCC 591 Para 8 in case of General Manager, Haryana Roadways vs. Rudhan Singh.
4. Relying upon the aforesaid decisions, he submits that before the Labour Court, gainful employment of the petitioner was not proved by the respondent and, therefore, petitioner is entitled for full or part of back wages for intervening period.
5. As against that, it is submitted by the learned Advocate Mr. Joshi appearing for Nanavati Associates for the respondent that in deposition of the petitioner, one fact was admitted by the petitioner that he has not made any efforts to find out work or employment during the interim period and, therefore, learned Advocate Mr. Joshi submits that in absence of the efforts for securing work or employment, presumption is that the workman is working somewhere else or engaged in some work and, therefore, gainful employment is proved.
6. I have considered the submissions made by the learned Advocates for the parties. I have also perused the award in question.
7. From perusal of the award made by the Labour Court, it appears that the order of dismissal has been set aside by the Labour Court not only on the ground that the charge levelled against the petitioner is not found to be proved but the order of punishment namely dismissal order has been set aside while considering the gravity of misconduct and as it was found that the punishment of dismissal is disproportionate, therefore, it has been modified in exercise of the powers under Section 11-A of the ID Act, 1947 by the Labour Court. In Para 13 of the award in question, finding given by the Labour Court is to the effect that the misconduct is not completely serious in nature but looking to the past record of the workman, this being the first misconduct committed by the petitioner, the Labour Court has considered length of service of the workmen and first misconduct committed by the workman and also came to the conclusion that behaviour of the workman is partly serious in nature and, therefore, petitioner has to suffer some punishment which will be considered to be reasonable and proper. Labour Court has considered in Para 14 of the award that vide purshis Exhibit-69 the workman had remained present before the Labour Court on 12.08.2005 for withdrawal of the matter and at that time, when inquired, it was stated that there has been settlement in the matter of Approval Application No. 11 of 1995 before the Industrial Tribunal, Surat and, therefore, based up
