Executive Engineer, Panchayat (R and B) Division Dt. Panchayat Surendranagar vs Punabhai Govindbhai

G.T. Nanavati, J.—Rule. Miss Shah, learned Advocate, appears for the respondent-workman and waives service of rule. At the request of both the learned Advocates, this petition is taken up for final hearing today.

This petition is filed by the Executive Engineer, Panchayat (R&B) Division, Surendranagar, challenging the award passed by the Labour Court in Reference (CLS) No. 658 of 1989. The grievance of the petitioner is that the Labour Court has committed an error in not passing in proper order while ordering reinstatement and granting 50% back wages. It is an admitted position that the workman was daily wager. It is also an admitted position that in no year he had completed 240 days but the Labour Court has believed that after he was relieved from service, other persons were employed by the petitioner and, therefore, there was a breach of Section 25(H) and (C) of the Industrial Disputes Act. While passing the final order the Labour Court has ordered that the workman would be reinstated to his original post and that he should be paid 50% back wages. The workman being daily wager he was not holding any post, therefore, there can be no question of reinstating him in his original post. This Court has pointed out in Special Civil Application No. 1170 of 1990 and others decided on September 25, 1992 (Coram : S. B. Majmudar and A. N. Divecha, JJ.) reinstatement of daily wager would mean maintaining his position in the seniority list with continuity of service as per his ranking in the seniority list. It is further clarified in that judgment that after reinstatement such a workman will become entitled to the work as a daily wager. What continuity of service would mean in such cases was also explained by this Court in Special Civil Application No. 6224 of 1989 (Coram : S. B. Majmudar and J. U. Mehta, JJ.) decided on August 28, 1989. Therein is clarified that continuity of service would mean the same terms and conditions on which the daily wager was working prior to his retrenchment. It would have been better if the Labour Court has passed appropriate order in this behalf.

As regards payment of back wages, it may be stated that passing of vague orders such as payment of 50% back wages, create difficulties both for the workman and for the employers. A daily wager is not provided with work throughout the year. Therefore, while awarding back wages the court should try to find out for how many days the workman could have got the work and one of the methods that can be adopted is to find out average of last 3 years and direct payment of back wages on that basis. In this case the workman had worked for 99 days in 1983, 76 days in 1984 and 53 days in 1985. Thus on average he had worked for 76 days in a year. Therefore, back wages should have been directed to be paid to him on the basis that he had worked for 76 days in a year.

In the result, this petition is partly allowed. The award passed by the Labour Court is modified to the aforesaid extent. Rule is made absolute accordingly with no order as to cost.

The petitioner is directed to comply with the modified award within six weeks from today.