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Chimanbhai Ashabhai Patel Vs. Manager, Federation of Co-op. Stores Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1985)1GLR130
AppellantChimanbhai Ashabhai Patel
RespondentManager, Federation of Co-op. Stores Ltd.
Cases ReferredIn Surendra Kumar Verma v. The Central Government Industrial Tribunal
Excerpt:
.....of the petitioner was illegal being contrary to the provisions of the industrial disputes act, 1947. it is not in dispute that the labour court has not found that the workman was gainfully engaged during the intervening period. but there may be exceptional circumstances which made it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. in such and other exceptional cases the court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages. that relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. the labour court was, therefore, clearly wrong and has committed an error apparent on the face of the record in not awarding full back..........employee for no fault of the employee and that order is found to be illegal and void, the normal rule is reinstatement with full back wages. in this connection the learned counsel for the petitioner has drawn our attention to the supreme court judgment in the case of gujarat steel tubes ltd. v. gujarat steel tubes mazdoor sabha and ors. : (1980)illj137sc the supreme court has observed as follows:if after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the backwages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. ordinarily, therefore, a workman whose service has been.....
Judgment:

N.H. Bhatt, J.

1. The petitioner was an employee of the respondent. His services were abruptly terminated on 1st April 1981 and therefore he had raised an industrial dispute and the same was referred to the Labour Court. The Labour Court by its award dt. 14th July 1983 directed reinstatement in service to his original post without back wages within one month from the date of publication of the award. He was actually reinstated on 28th June 1984. Thus he has remained without wages from 1st April 1981 till 28th June 1984 even after the award of reinstatement dt. 14th July 1983. The material observations are given in para 4 of the award of the Lobour Court, which read as follows;

Now, it is undisputed that the services of this workman were terminated by the management. No inquiry was held against him and he was not given opportunity to defend himself. This termination is contrary to the provisions of the I.D. Act, 1947, and so the workman is entitled to be reinstated in service. The workman has not made any efforts to secure another job during the intervening period, and, therefore, he cannot claim back wages for the intervening period because he could have done something for earning but instead of that he set right on his right against the stores which is a public body and so such tendency to remain idle and to claim back wages should not be encouraged. I am, therefore, of the opinion that even though services of the workman were terminated in an illegal manner and he is entitled to be reinstated in service he is not entitled to back wages, I, therefore, pass the following order.

It is clear that the Labour Court was fully satisfied that the termination of services of the petitioner was illegal being contrary to the provisions of the Industrial Disputes Act, 1947. It is not in dispute that the Labour Court has not found that the workman was gainfully engaged during the intervening period. There is no evidence led by the employer. In fact the employer has not participated in the proceedings and has not challenged the evidence of the workman. The reasoning of the Labour Court that the claimant cannot claim back wages for the intervening period because he could have done something for earning, is not a correct approach. When an employer terminates the services of an employee for no fault of the employee and that order is found to be illegal and void, the normal rule is reinstatement with full back wages. In this connection the learned Counsel for the petitioner has drawn our attention to the Supreme Court judgment in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. : (1980)ILLJ137SC the Supreme Court has observed as follows:

If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the backwages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer.

In the present case also we find that there is no defence and the impugned termination is without any basis, and the workman is not at fault in any manner and he is not shown to have been engaged gainfully during the intervening period. In such circumstances full back wages would be the normal rule and the employer does not establish any special case necessitating any departure from this normal rule. In Surendra Kumar Verma v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr. : (1981)ILLJ386SC observed as under:

Plain common sense dictates that the removal of an order terminating the services of workman must ordinarily lead to the reinstatement of the services of the workman. It is as if the order has never-been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which made it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages.

and further observed:

In such and other exceptional cases the court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown.

In the present case the employer has not pointed out any circumstances why the normal rule of full back wages should not be applied. The Labour Court was, therefore, clearly wrong and has committed an error apparent on the face of the record in not awarding full back wages.

2. The learned Counsel for the respondent has submitted that they could not appear before the Labour Court and the proceedings before the Labour Court were ex parte proceedings. However, from the record it appears that the respondent was duly served and had appeared through its Manager. The learned Counsel submits that that Manager did not take care of the proceedings and allowed the proceedings virtually ex parte. The learned counsel has also submitted that review application was also filed before the Labour Court.

3. But it is clear from the record that review application was also withdrawn by the employer. Thus, there is no substance in this contention and reasonable opportunity was given to the employer. The learned Counsel has also submitted that the Labour Court has exercised discretion in not awarding back wages, and, therefore. High Court should not interfere in the exercise of that discretion. However, as pointed out above, the discretion has been exercised on absolutely extraneous and irrelevant-considerations and, therefore, there is error apparent on the face of the record.

4. In the result the petition is allowed and the award of the Labour Court is modified and it is directed that the employer-respondent shall pay full back wages from the date of termination of services of the petitioner till the date of actual reinstatement of the petition.

5. The employer is directed to make the payment of back wages within three months from today. Rule is made absolute accordingly with costs.


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