At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE RAVINDRA V. GHUGE
For the Petitioners: Archita M. Sudame, M.M. Sudame, Advocates. For the Respondent: N.N. Thengre, Advocate.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The petitioner is aggrieved by the judgment of the Industrial Court dated 15.06.2016, by which Revision (ULP) No.6/2015, filed by the respondent original complainant has been partly allowed and the following order has been passed:-
1] The Revision is partly allowed.
2] The impugned judgment dated 25.2.2014 in Complaint (ULP) No.132/1998 is set aside to the extent of direction to the respondents to pay retrenchment compensation and one month’s notice pay in lieu of retrenchment.
3] The respondent nos.1 and 2 are directed to pay back wages to the complainant from the date of oral termination i.e. 1.10.1998 till his reinstatement in service in the year 2000.
4] The respondent nos.1 and 2 are further directed to pay Rs.3000/- towards cost of litigation to the complainant.
5] The respondents are directed to pay the amount of back wages and cost of litigation within one month from the judgment and in case of failure of the respondent to comply the same, the complainant shall be entitled to interest on the aforesaid amount @ 9% p.a. from the date of oral termination dated 1.10.1998 till realization thereof.
3. The learned counsel for the petitioner points out that the Labour Court had earlier delivered a judgment dated 25.02.2014 vide which, Complaint (ULP) No.132/1998 filed by the respondent was partly allowed and the following order was passed:-
1] The Complaint is partly allowed.
2] It is hereby declared that respondent nos.1 and 2 had engaged in unfair labour practices as mentioned Item 1(a) and (b) of Schedule IV to the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, and, they are directed to desist themselves from adopting such practices in future.
3] The Complainant is not entitled to the reliefs of reinstatement and continuity of service with back wages.
4] The Complainant is entitled to receive the amount of one month wages as retrenchment compensation in lieu of notice as well as average pay/wages for 15 days for each completed year of service from respondent nos. 1 and 2.
5] The complaint is dismissed against respondent nos. 3 and 4.
6] The parties shall bear their own costs.
4] I have considered the strenuous submissions of the learned counsel for the petitioner as well as the respondent.
5] The petitioner relies upon the judgment delivered by this Court in the matter of M/s. Satish Motors Ltd. v. Shri Syed Ashrafali Syed Maqsadali reported in 2016(6) ALL MR 501.
6] The learned Advocate for the respondent original complainant relies upon the following judgments:-
[i] Navbharat, Hindi Daily, Nagpur v. Navbharat Shramik Sangha 1984 Mh.L.J. 483.
[ii] Harjinder Singh v. Punjab State Warehousing Corporation AIR 2010 SC 1116.
[iii] Bhavnagar Municipal Corporation etc. v. Jadeja Govubha Chhanubha & Anr. AIR 2015 SC 609.
[iv] M.S.E.B. Workers Federation, Pune v. Maharashtra State Electricity Board & Ors. 1995 II CLR 588.
[v] Management, Hindustan Machine Tools Ltd. V. Ghanshyam Sharma AIR 2018 SC 5280.
[vi] Narendra Kumar Tiwari & Ors. Etc. v. The State of Jharkhand & Ors. Etc. Civil Appeal Nos.7423-7429 of 2018.
[vii] ONGC Ltd. v. Petroleum Coal Labour Union & Ors. AIR 2015 SC 2210.
7. It is undisputed that the respondent is said to have been orally terminated on 01.10.1998 and he was reinstated by the petitioner management during the pendency of Complaint (ULP) No.132/1998, on 12.08.2000. Thereafter, he has continued in employment and it is stated by the complainant that he was again disengaged in 2005, which disengagement has not been challenged by him before any Court or authority.
8. The judgment delivered by the Labour Court on 25.02.2014 reveals that the complainant had claimed to be working as a Chowkidar in the regular employment of the petitioners in their Zari Nursery. He claims to have been working continuously and in the uninterrupted service of the petitioner from 17.11.1995 till 30.09.1998. He claims to be orally terminated on 01.10.1998. The Labour Court concluded that as he was working on daily wages for a period of about three years, he could not be granted reinstatement in service. In lieu thereof, the Labour Court granted him retrenchment compensation and one month’s notice pay under Section 25-F of the Industrial Disputes Act, 1947.
9. The complainant approached the Industrial Court under Section 44 by preferring a revision. The Revisional Court recorded that the complainant was orally terminated on 01.10.1998 and he was reinstated in service on 12.08.2000 during the pendency of the complaint before the Labour Court. He was subsequently disengaged in 2005 and that would be a separate cause of action. The Industrial Court took note that the complainant was out of employment from 01.10.1998 till his reinstatement and he would be entitled for back-wages for the said period of unemployment. Interest at the rate of 9% was also granted and Rs.3000/- were directed to be paid as cost.
10. The petitioner has placed before this Court a Purshis dated 05.12.1998 signed by the Divisional Manager of the petitioner and the Regional Forest Officer, which was marked as Exh.12 in the proceedings before the Labour Court. By the said Purshis, the petitioner management took a specific stand that the complainant was never terminated by the petitioners, he was a daily wager and used to report for duty as a Chowkidar and as there was no termination, the complainant could resume duty from 07.12.1998.
11. The contents of the Purshis dated 05.12.1998 are as under:-
The services of the complainant were never terminated by the respondents. The complainant was in the services of the respondents as a daily wage labour. Even today, the respondents/non applicants are ready to allow the complainant/applicant to join the duties with the respondents as a daily wage labour. It is a fact that, there is no difference of daily wage in Chowkidar and labour. Hence, there being no termination, the complainant may join in the services with the respondents with effect from 7.12.98 as daily wage earner if he chooses. Hence, this purshis.
12. The learned Advocate for the petitioner management submits that the complainant reported for duty pursuant to the Purshis on 12.08.2000. The learned Advocate for the complainant was called upon to state as to why he did not report for duty on 07.12.1998 in pursuance to the Purshis dated 05.12.1998. He submitted that the complainant had joined duty on 07.12.1998 and has worked till 2005. The learned Advocate for the management was surprised by the said statement as her records indicate that the complainant had joined on 12.08.2000. I, therefore, asked the learned Advocate for the complainant by repeating the question three times as to whether he joined duty on 07.12.1998 or on 12.08.2000. He repeated his answer and said that he is three times sure that the complainant joined duties on 07.12.1998. The learned Advocate for the petitioner submits in fairness that there appears to be some confusion and her records indicate that he did not join on 07.12.1998.
13. This Court in M/s. Satish Motors Ltd. (supra), had referred to the judgments delivered by the Allahabad High Court in Ram Singh v. J.K. Jute Mills and another reported in 2002(95) FLR 1058 in which the Allahabad High Court had relied upon the judgment delivered by the Hon’ble Apex Court in S.K. Yadav v. J.M.A. Industries and others reported in 1993 (67) FLR 111 (SC). It was held that once an employer takes a specific stand on oath before the Court that there has been no termination of an employee and the said employee is not treated to be a terminated employee, there would be no cause of action to be entertained and the employee can report for duty in the light of such a stand. If the employer does not permit the complainant to report for duty despite taking a stand before the Labour Court that he was not terminated, it would sustain the cause of action of oral termination.
14. In the instant case, the petitioner tendered a purshis duly signed by two authorities with the stamp of the petitioner establishment and the signature of the Advocate, declaring that the complainant was not terminated and being a daily wager, he is at liberty to
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join duty from 07.12.1998. The above aspects were completely lost sight of by the Industrial Court, which has not even cared to consider the said Purshis. 15. In view of the above, this petition is partly allowed. The direction of the Industrial Court in clause 3 reproduced above to the extent of payment of back-wages to the complainant from 01.10.1998 till 12.08.2000, stands quashed and set aside and as such clause 4 and 5 of the impugned order stand set aside. 16. A subsequent event has occurred during the pendency of this petition. The management had deposited the entire back-wages of Rs.26,832/- pursuant to the order dated 16.03.2018. Since the said amount has been withdrawn by the complainant under the orders of this Court dated 10.07.2019 passed in Civil Application (CAW) No.2485/2018, the petitioner management shall not seek recovery of this amount from the respondent. 17. Rule is made absolute in the above terms.