Deputy Executive Engineer vs Jivrajbhai Jasabhai and Others

K.S. Jhaveri, J.—This petition is directed against judgement and award dated 23rd June 1999 passed by the Labour Court, Junagadh in Reference (LCJ) No. 1067 of 1990 to 1070 of 1990 whereby the Labour Court ordered the petitioner to reinstate the workmen in service with 70% back wages.

The respondents were employed as daily wage labourers for the public works carried on under the supervision of the petitioner. The workmen were continued so long as there was work and they were served with notice on 29th September 1987 wherein it was stated that as there was not enough work with the Department they were to be relieved from 31st October 1987 and were relieved in accordance with the seniority of such daily wagers and were also instructed to collect retrenchment compensation, notice pay, etc. on 7th November 1987 from the office of the petitioner. According to the petitioner the respondent workmen did not accept the notice and refused to receive compensation. They thereafter raised a dispute which was referred to Labour Court and numbered as Reference (LCR) Nos. 605 to 608 of 1988. On formation of Labour Court at Junagadh the said cases were transferred to Junagadh Court where they were registered as Reference (LCJ) Nos. 1067 to 1070 of 1990. After adjudicating the matter the Labour Court allowed the References and ordered the petitioner to reinstate the workmen in service with 70% back wages. It is against said award that the present petition has been passed.

Learned Advocate for the petitioner submitted that the respondents were daily wagers and therefore they were not entitled invoke the provisions of Industrial Disputes Act and that disengagement of daily wagers cannot be termed as retrenchment and therefore there was no question of compliance of Section 25F of the Act.

According to him, even if the Act applies, there was substantial compliance of Section 25F as they were given notice and offered retrenchment compensation. He further submitted that even if it is termed as retrenchment, the respondent workmen failed to prove that they had completed 240 days prior to their termination. He lastly submitted that in any case the respondent workmen should not have been reinstated as there was prohibition imposed by State Government on employment of daily wagers. He lastly submitted that there was no justification for grant of back wages.

Learned Advocate for the respondents submitted that the Labour Court has considered all the aspects of the matter and the petitioner has not pointed out any reason to set aside the same.

As a result of hearing and perusal of the record certain aspects are not disputed. The respondent workmen were working under the petitioner. The petitioner has issued a notice to them and they were also offered retrenchment compensation. This action on the part of the petitioner itself shows that the respondent workmen had completed 240 days and there is no substance in the contention that they were daily wagers and they were not entitled to resort to the provisions of Industrial Disputes Act. There is a clear finding of the Labour Court that there is violation of provisions of Section 25-F of the Act. Learned Advocate for the petitioner is not able to controvert the findings of the Labour Court in this regard on any count. Once the finding is that there is violation of provisions of 25-F of the Act, it is not open to the petitioner to contend that there is prohibition by the State Government on employment of daily wagers, especially the petitioner is a Panchayat which is a government establishment.

However, there is substance in the contention that the Labour Court ought not to have granted back wages. There was no plea nor evidence or proof to show that from the alleged date of dismissal of their service till the date of the award the respondents were not in gainful employment. In any case in many cases the Apex Court held that when the workman actually did not work on the post, back wages should not normally be granted. I am therefore of the view that the Labour Court was not justified in granting back wages to the respondents.

In the premises aforesaid, the judgement and award impugned herein is quashed and set aside qua back wags. The rest of the award is confirmed. The respondents shall be given benefits from the date of reference i.e. 29th February 1988. The petitioner may also consider the case of respondents sympathetically as and when permanent vacancy arises. Rule is made absolute to the aforesaid extent with no order as to costs.