Point of Law: Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc., should be taken into consideration

JUDGMENT :

1. Being aggrieved with the award dated 23.04.2009 passed by the Labour Court, Bhuj in Reference Case (L.C.B.) No.43/2000, the workman as well as the employer have preferred the respective petitions.

2. As both the petitions are arising out of the same award, they are being disposed of by this common judgment.

3. For the sake of brevity and convenience, the parties shall be referred to as the “workman” and “employer”.

4. The workman has preferred Special Civil Application No.540 of 2010 inter alia contending that he was serving with the employer on the post of supervisor (Mukadam) and he has rendered service for more than five years. That no appointment letter was issued and after a long span of service, without any inquiry, he was terminated with effect from 30.06.1999. It is contended by the workman that he has preferred the reference before the Labour Court wherein he was granted prayer for reinstatement in service treated his service as continuous with 25% back wages. It is also contended by the workman that when he was reinstated in continuous service, the Labour Court ought to have awarded 100% back wages. It is contended by the workman that the Labour Court has factually and legally erred in not granting 100% back wages. He has prayed to quash and set aside the award and grant him 100% back wages.

5. The employer has filed Special Civil Application No.10377 of 2009 against the award inter alia contending that the Labour Court has committed serious error of law and facts in granting reinstatement in service. It is contended by the employer that the workman has admitted that he was working on daily rated basis and in that view of the matter, when work was not available with the employer, automatically he is discharged from the work. It is also contended by the employer that when there is no work, it cannot be treated the industrial dispute. It is also contended by the employer that it is an contractual obligation, the Industrial Disputes Act is not applicable to the case of the workman. It is contended by the employer that various issues has been raised in the written statement filed before the Labour Court, but the Labour Court has not considered in its proper perspective. It is further contended by the employer that the evidence on record has not been properly appreciated by the Labour Court. It is also contended that without any evidence, regarding four years of continuous service of the workman, the Labour Court has granted award in favour of the workman. It is also contended by the employer that the workman has not worked in regular post and he was only daily rated labourer. While relying upon the decision in the case of Himanshu Vidhyarthi, AIR 1997 SC 3657, it is submitted that the law of retrenchment cannot be made applicable to the daily rated labourer. It is contended by the employer that the workman has not resumed his duty. According to the employer, the impugned award is not based on any material on record and the finding of fact is erroneous and the impugned award is not sustainable in the eyes of law.

6. Heard Mr.C. M. Gandhi, learned advocate for the workman and Mr.Mukesh Rathod, learned advocate for the employer at length through video conferencing.

7. Learned advocates for respective parties have narrated the same facts which are narrated hereinabove in their respective petitions.

8. Mr.Chinmay Gandhi, learned advocate for the petitioner has submitted that there are various decisions of the Apex Court to the effect that when the order of reinstatement is passed, then, in that case, the workman is entitled to get 100% back wages, whereas, in the present case, the Labour Court, without any basis, has not granted 100% back wages to the workman and granted only 25% back wages which is erroneous in nature and deserves to be modified. He has supported reasoning given by the Labour Court regarding reinstatement of the workman, but has putforth the claim of the workman for 100% back wages.

8.1 Mr.Chinmay Gandh