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2011 Supreme(Guj) 119
2011 (2) GCD 998 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Prabhakar Trimbak Vidwans
Versus
Stovec Industries Ltd.
Special Civil Application No. 6050 of 2002—Decided on 03/03/2011
Appearance :
Mr. Ashish H. Shah, for the Petitioner No. 1.
Rule Served, for the Respondent No. 1.
Nanavati Associates, for the Respondent No. 1.
Point in Issue :
Whether grant of lump-sum by Labour Court in lieu of back wages sustainable.
Headnote:Head Note :
Service and Employment — Termination — Order of — Set aside as violative of natural justice — Claim for back wages for the period till reaching age of superannuation — Labour Court grant of lump sum of Rs. 85,000/- in lieu of back wages — Propriety of — Finding as to — Labour Court setting aside termination as illegal granted Rs. 85,000/- in lieu of back wages for the interim period till petitioner reached the age of superannuation — It is because petitioner has not led sufficient evidence to support his statement that he remained unemployed totally for the interim period — His mere statement that he was not able to get employment elsewhere is not sufficient enough to entitle petitioner to claim and receive full wages for interim period — However, in view of concession give by Advocate for respondent to hence reasonable amount of compensation if Court considers necessary — Court having found award of Rs. 85,000/- very low further enhanced the amount of compensation by Rs. 75,000/- only.
Held :
In light of such findings given by labour Court in Para 17 of award after considering oral evidence of petitioner workman, according to Court opinion, mere statement made by workman on oath before labour Court that he was not able to get employment elsewhere during interim period is not sufficient and enough and would not entitle workman to claim and receive full back wages for interim period. Workman must produce sufficient documents before labour Court to justify that sincere and serious efforts were made by him for getting employment in other establishment because workman is a technically qualified employee equipped with Technical Degree and, therefore, labour Court has rightly examined these issues both way one is that there was no enough evidence produced by workman which would satisfy conscience of labour Court that workman remained unemployed totally for a period of five years from 1993 to 1998 because workman is qualified employee having technical knowledge and degree then such person cannot remain unemployed for such a period from 1993 to 1998. Based upon such presumption against workman, labour Court has made award in question. [Para 9]
In light of facts of this case and decisions of this Court and Apex Court as referred to above, I am considering concession which has been given by learned Advocate Mr. KD Gandhi on behalf of respondent company to reasonably enhance amount of compensation considering fact that amount of Rs. 85,000.00 if it is found by this Court that no adequate sufficient compensation given by labour Court. Court has considered submissions made by both learned advocates on this issue. Considering fact that workman is having technical knowledge and qualified as well as termination is found to be invalid because no departmental inquiry has been initiated against workman and it is violative of basic principles of natural justice, five years period being interim period and considering directions issued by labour Court granting Rs. 85000.00 being lumsum amount against all service benefits which includes retirement benefits, according to my opinion, this is not adequate and sufficient or reasonable compensation awarded by labour Court and, therefore, considering concession given by learned Advocate Mr. Gandhi on behalf of respondent company, and also considering all benefits for which workman is entitled because of setting aside of termination order, it would be just and proper in peculiar facts and circumstances of case if amount of compensation is further enhanced by Rs. 75000.00 over and above amount of Rs. 85000.00 awarded by labour Court, then total amount of compensation available to workman would come to Rs. 1,60,000.00. [Para 16]
Law Laid Down :
Direction to pay back wages in it’s entirety is no automatic consequent upon declaration of dismissal order bad in law.
H.K. Rathod, J.—Heard learned Advocate Mr. Ashish H. Shah for petitioner workman and learned Advocate Mr. KD Gandhi for Nanavati Associates for respondent Company.
2. In this petition, petitioner has challenged award passed by Labour Court, Ahmedabad in Reference (LCA) No. 171 of 1994 dated 4th January, 2002 wherein labour Court Ahmedabad has granted an amount of Rs. 85000.00 being lumsum amount against claim of back wages and other service benefits while setting aside order of termination. Labour Court has considered one fact that on 5th December, 1998, petitioner employee had reached age of superannuation and his service was terminated on 12th June, 1993.
3. Learned Advocate Mr. AH Shah appearing for petitioner has raised contention that petitioner was appointed as Mechanical Draftsman on probation for a period of six months on monthly pay of Rs. 740.00 in respondent Company with effect from 11th March, 1977 and thereafter, petitioner was made permanent by respondent Co. as Mechanical Draftsman in scale of Rs. 500-1020 with effect from 5th November, 1977. During period from 1977 to 1993, petitioner had worked in respondent Company as Draftsman and later on as Planning Assistant in Drawing and Designing Section of respondent Company. He submitted that service of petitioner was terminated by respondent Company without holding departmental inquiry, on 12.6.1993 on ground that respondent company has lost confidence in him. He submitted that thereafter, in 1994, petitioner raised an industrial dispute challenging order of termination which was referred for adjudication on 11th January, 1994 being registered as Reference No. 171 of 1994.
4. Learned Advocate Mr. Shah for petitioner also raised contention before this Court that though service was terminated on the ground of loss of confidence, which is considered to be stigma, however, no departmental inquiry was initiated against petitioner and, therefore, order of termination itself is violative of basic principles of natural justice and, therefore, back wages for interim period ought to have been awarded by labour Court. He submitted that before labour Court, gainful employment of petitioner has not been proved by management and though there was specific evidence led by petitioner before labour Court that he has remained totally unemployed during interim period from date of termination till date of his reaching age of superannuation, labour Court has not granted any back wages for interim period. He also submitted that lumsum amount which has been awarded by labour Court which includes retirement benefits and if it is to be considered, then, petitioner is entitled for more amount which comes to approximately Rs. 5,00,000.00 which has not been granted by labour Court and small or meager amount has been awarded by labour Court being lumsum compensation for which labour Court has not exercised discretionary powers properly and labour Court has ignored total interim period of more than five years during which petitioner had remained unemployed and thus, sufficient care and relevant factors have not been taken into account by labour Court while awarding lumsum amount in favour of petitioner and, therefore, interference of this Court is necessary while exercising jurisdiction under Article 227 of Constitution of India.
5. Learned Advocate Mr. Shah has referred to page 11, order of termination dated 12th June, 1993 where it is mentioned that petitioner has indulged in activities which are against interest of company, therefore, management has lost confidence in him and, therefore, petitioner is hereby discharged by paying him one month’s wages in lieu of notice and also advised petitioner to collect his legal dues from Accounts Department.
6. Learned Advocate Mr. KD Gandhi appearing for respondent company has submitted that labour Court has rightly exercised discretionary powers since workman has reached age of superannuation in the year 1998 and sufficient and reasonable care ha
