E. Shanker vs The Presiding Officer, Labour Court and Another

S. Nagamuthu, J.—The petitioner was a workman under the second respondent management. He was working as a Shaving Operator. He was paid a sum of Rs. 140 as daily wages. On 11.12.1999, he fell ill and therefore he was admitted in the C.M.C. Hospital-at Vellore. He was discharged from the hospital an 18.12.1999. At the time of discharge, the Doctors advised him not to do any hard work. Then, as per the advice of the Doctors, he took bad rest. According to him, ha was on leave between 5.6.2000 to 2.3.2001. Thereafter, in the month of April, 2001 according to the petitioner, he returned for duty. But the management wanted him to perform the same work as he was doing prior to his ill-health. But the petitioned told the management that his Doctors had advised him not to do any hard work. Accordingly, he pleaded for light work. But he was not given any light work. Therefore, ha stopped attending duty. Thereafter, alleging that there was non-employment, the petitioner filed I.D. No. 222 of 2001 before the Labour Court, Vellore. In the said I.D., the petitioner claimed that he was terminated from service from the month of April, 2001 But it was contended by the management before the Labour Court that he was not terminated from service. According to the management, in the month of April, 2001, when the petitioner reported for duty, he was asked to do the same work which he was doing prior to his ill health. It was also stated that there was no alternative work available for him. It was contended by the management that the petitioner was not therefore entitled for reinstatement or for any other relief as it was prayed for before the Labour Court.

Before the Labour Court, on the side of the petitioner/workman he was examined as W.W. 1 and as many as nine documents were exhibited. On the side of the respondent/management one Mohammed Altaf was examined as M.W. 1. Having considered the above, the Labour Court passed an award on 30.1.2004, by which, the Labour Court found that the non-employment of the petitioner was nothing short of termination and therefore he was entitled for retrenchment compensation. However, the Labour Court did not order for payment of back-wages. Challenging the denial of back-wages by the Labour Court for the period from April, 2001, the petitioner has come up with this writ petition.

I have heard the learned counsel on either side and perused the records carefully.

The learned counsel for the second respondent would submit that there was no retrenchment of the petitioner as defined that there was retrenchment. But, the management did not choose to challenge the same. Subsequently, the petitioner filed a petition u/s 33C(2) of the Act for computing the arrears. The same was allowed and thus the Award has been implemented. The learned counsel would further submit that from April, 2001 it is stated that the management did not allow him to work. But, on the contrary, the petitioner did not attend work on his own citing medical grounds and thus the petitioner is not entitled for back-wages.

But the learned counsel appearing for the petitioner would submit that from the month of April, 2001 the petitioner is entitled for back-wages because from the evidence it is crystal clear that alternative employment was available with the second respondent management which the petitioner could do. But wantonly, the management did not permit him to do light work. Therefore, according to the learned, counsel, the petitioner ought to have been granted back-wages.

I have considered the above submissions. At the outset, I have to state that the order for back-wages is not automatic. In this case, the Labour Court took note of the fact that the petitioner did not do any work after April, 2001 because of his ill health. Even before April 2001 also, he did not do any work for a considerable time because of his ill-health. From April, 2001 onwards the petitioner was allowed to do the same work which he was doing previously by the management. What was denied by the management was not allowing him to do light work as requested by him as there was no such light work available with the management. Therefore for the non-employment from April, 2001, in my considered opinion, since the petitioner was not in a position to do any work, he cannot demand for back-wages. The Labour Court has considered all the relevant facts while denying the back-wages. The management cannot be penalised by directing them to pay back-wages for no fault on their part. In such view of the matter, I do not find any merit at all in this writ petition, the writ petition fails and the same is accordingly dismissed. No costs.