In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule, subject to considerations such as length of service, nature of misconduct, and financial condition of the employer.

ORDER :

1. The present Special Civil Application impugning the judgment and award dated 27.01.2011 passed by the learned Labour Court, Kutch at Bhuj in Reference (LCB) No.25 of 2007.

2. The factual matrix in the present case is that the respondent-workman was appointed as Clerk on 18.07.1985 by the petitioner Company. Thereafter, he came to be promoted as Manager on 08.08.1989. It is further the case that though he was granted designation of Manager and he was doing same nature of work on which he was appointed. It is further the case of the respondent-workman that because of his long 21 years of service with the petitioner, he was getting salary of Rs.5030/- (basic + other allowances). That, the respondent-workman came to be retrenched w.e.f. 14.02.2007. The respondent-workman raised industrial dispute before the Conciliation Officer and vide Office order No.24 of 2007, dated 02.08.2007 the dispute came to be referred to the learned Labour Court, Kutch at Bhuj which came to be numbered as Reference (LCB) No.25 of 2007. The terms of the Reference was whether the respondent-workman should be reinstated on his original post along with backwages.

3. Both the parties joined Reference proceeding. The respondent-workman filed his claim. The petitioner Company filed its reply opposing the claim of the respondent-workman. The evidence came to be led by both the parties in support of their contentions. By the impugned judgment and award, the learned Labour Court allowed the Reference. The action of the petitioner Company dismissing the respondent no.1 workman from the service was held to be illegal, improper and in violation of the provisions of Industrial Disputes Act, 1947 (for short “I.D.Act”). The petitioner was directed to reinstate the respondent no.1 with continuity in service and 50% back wages.

4. Learned counsel Mr. Mukesh Rathod appearing on behalf of the petitioner Company submits that the learned Labour Court has not properly appreciated the evidence on record. He submits that it is the case of the petitioner that the respondent-workman was never terminated or retrenched but the respondent-workman has voluntarily left his job so as to avoid the departmental inquiry against him. He submits that the respondent-workman has committed misconduct with the Superior Officer for which he was served with the Chargesheet and he was also intimated about the departmental inquiry to be initiated against him. He submits that the respondent never appeared in the departmental inquiry and straightway raised the industrial dispute. It is further submitted by learned counsel Mr.Rathod that the learned Labour Court has not considered the relevant issue between the parties with respect to misconduct of the respondent-workman. He submits that in this background, the petitioner company had clearly made out that the respondent-workman had abandoned his job and that it is not a case of retrenchment. He further submits that there is no dispute or issue framed with respect to Section 25(F)(G)(H) of the I.D.Act through out the entire award. He further submits that in the present case, it is not an issue whether the respondent-workman completed 240 days in a year but it was a question of abandonment of service voluntarily. He submits that since this was not a case of retrenchment, there was no question of notice, notice pay and retrenchment compensation. He further assails that the impugned judgment and award in respect of 50% back-wages awarded to the respondent-workman since the workman abandoned the service.

4.1 He further relies on the judgment pronounced in the case of North East Karnataka Road Transport Corporation vs. M. Nagangouda in Appeal (Civil) No.129 of 2007 dated 09.01.2007, wherein the Hon’ble Supreme Court has held that since the respondent-workman was earning some amount from agriculture activities, the learned Labour Court was not justified in awarding 100% back wages.

5. Per contra, learned counsel appearing for the respondent-workman subm