Point of Law: Decision of the Labour Court in granting 20% back wages is in consonance with the facts and circumstances of the case as well as it is legally sustainable. Therefore, the impugned award passed by the Labour Court is just and proper.

JUDGMENT :

A.P. THAKER, J.

1. Both these petitions have been arisen out of the same award dated 30.06.2009 passed by the learned Judge, Labour Court No. 1, Bhavnagar in Reference (L.C.B.) No. 84 of 2002 whereby the Labour Court has granted the relief of reinstatement with continuity of service and 20% back wages to the workman.

2. For the sake of brevity and convenience, the parties are referred to as “workman” and “employer.”

3. Being aggrieved and dissatisfied with the said award, the workman has filed Special Civil Application No. 3324 of 2010 for enhancement of the back wages from 20% to 100%, whereas, Special Civil Application No. 13057 of 2009 has been preferred by the Bhavnagar Municipal Corporation challenging the same impugned award of reinstatement with continuity of service and 20% back wages to the workman.

4. Since both the petitions are filed against the same award and Special Civil Application No. 13057 of 2009 has been ordered to be placed with Special Civil Application No. 3324 of 2010, the facts of Special Civil Application No. 3324 of 2010 are considered as a lead matter and both the petitions are being disposed of by this common judgment.

5. Brief facts of the present petitions are that the workman has joined the service of the employer and he was working for last four years and getting minimum monthly wages and vide order dated 01.09.2000, his service came to be terminated by the employer without notice being issued or without paying any retrenchment allowance or notice pay. It is contended that the workman has, thereafter, approached the Assistant Labour Commissioner through Union for conciliation, but, conciliation failed thereafter, the Assistant Labour Commissioner has referred the case to the Labour Court. According to the workman, he was working as Sipai. According to the workman, his service came to be terminated without following due procedure of law and after termination of his service, new employees were employed. According to him, the employer has committed breach of Section 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter be referred to as the “I.D. Act”). It is also contended that as he has demanded for attendance card, identity card, pay slip etc. his service came to be terminated.

5.1 The employer has resisted the demand of the workman by filing its written statement wherein it has contended that it has having set-up and as and when required, it called the workman for specific time job which was not on sanctioned post. It is also contended by the employer that it employed the workman for specific job, days and time and the workman has randomly worked for four years and his demand was not proper one and he cannot be made permanent.

6. The Labour Court has considered the oral as well as documentary evidence on record and ultimately passed, the impugned award.

7. Heard Mr. Rajesh Mankad, learned counsel for the petitioner and Mr. H.S. Munshaw, learned counsel for the respondent through video conferencing.

8. Mr. Rajesh Mankad, learned counsel for the petitioner has vehemently submitted that the observation made by the Labour Court regarding drawing the adverse inference against the employer for not providing the documentary evidence is just and proper. He has submitted that the award of the Labour Court in granting reinstatement with continuity of service is legal and valid. However, according to him, the grant of only 20% back wages is not proper one and the same is required to be enhanced. He has submitted that the Labour Court has erroneously passed such order of granting back wages of 20% only. He has submitted that the employer has sought for certain documents, which were not produced before the Labour Court. He has submitted that considering the facts of the present case, the Labour Court ought to have granted 100% back wages instead of 20% back wages. He has urged to allow Special Civil Application No. 3324 of 2010 and to dismiss Special Civil Application No. 13057 of 2009 filed by