- (1.)HEARD learned advocate Mr.H.S. Munshaw for the petitioner and learned advocate Mr.Subramaniam Iyer for the respondent-workman. The matter requires consideration. RULE. Learned advocate Mr.Iyer waives service of rule on behalf of the respondent.
(2.)AT the request of the learned advocate Mr.Munshaw for the petitioner the matter is taken up for final hearing, to which the learned advocate for the respondent-workman has no objection. The petitioner has challenged award passed by the learned Judge, Labour Court No.1, Bharuch in References (LCB) No.175 of 2005 dated 6th April 20111. Whereby the learned Judge was pleased to allow the reference and hold the retrenchment of the respondent-workman as illegal. The learned Judge was pleased to order reinstatement on original post within one month from the date of publication of the award. The learned Judge was also pleased to award 20% back wages and cost of Rs.500/-.
The learned advocate for the petitioner submitted that the learned Judge has committed error in allowing the reference and ordering reinstatement, that too with 20% back wages. The case of the petitioner is that the respondent workman was engaged as driver on a vehicle allotted to the Taluka Development Officer at the Office of the Taluka Panchayat, Tilakwada, District Narmada. The learned advocate for the petitioner submitted that as that vehicle has been declared 'condemned' and is put to auction, services of the respondent-workman were not required. Therefore, his services were discontinued.

The learned advocate for the petitioner submitted that the petitioner was asked to place on record as to what were the number of the vehicles available in the District Panchayat and what is the number of drivers available in the District Panchayat. The learned advocate for the petitioner placed on record communication dated 23rd August 2011 addressed by the Office of the District Panchayat to Taluka Development Officer, wherein it is stated that on 31st December 2004, in Narmada District Panchayat, total 35 vehicles were there. As against that only 14 regular drivers were employed. On 31st July 2011, the number of vehicles increased to 64 and the number of drivers decreased to 12. It was in place of T.K. Raj- who was working in Agriculture Branch of the District Panchayat, one Shri Barkela was placed as driver. The learned advocate for the petitioner is not able to put it on record the complete chain to show that the services of the respondent- workman are not terminated on account of non availability of the work. If a regular driver is posted vice the respondent-workman there arose a vacancy at the place from where the permanent driver was shifted. It another regular driver is shifted to that place of permanent driver, then a vacancy has taken place at that another place. Thus, the learned advocate for the petitioner is not able to satisfy this Court that the services of respondent- workman were required to be dispensed with on account of 'non availability of work'. The action of the petitioner-establishment remains unsatisfied in light of the fact that number of vehicles increased from 35 to 64 (in between 31.12.2004 to 31.07.2011). There is no reason why the petitioner should have challenged this award.

(3.)IN the result this petition fails.
The learned advocate for the petitioner then requested that the respondent-workman being driver there can be presumption in normal circumstance that he must not have remained without work. Therefore, taking into consideration the fact that the petitioner is a public body, the amount awarded by way of back wages be set aside. The submission is found acceptable. On the other hand the learned advocate for the respondent- workman submitted that what is awarded is only 20% back wages which cannot said to be in any way unreasonable. He submitted that the award should be maintained as it is.