Keshavlal Mulchand Mody vs National Textile Corporation and others

Smt. K.K. Baam, J.—The petitioner was in the permanent employment of the Kohinoor Mills Company Limited as a Sales Assistant from 1-1-1962 in the Retail Marketing Department and thereafter he continued working till 18th October, 1983 when the Kohinoor Mills Company Limited, was declared as a Sick Textile Mill and the management of which was taken over by the National Textile Corporation Limited, that is to say, the 1st Respondent Company herein.

The petitioner has filed this petition seeking a writ and a direction to the Respondents to reinstate and/or to continue a employ the petitioner in their Mills known as Kohinoor Mills at Dadar with full back wages from 19-10-1983 till the date of his reinstatement and all other consequential benefits.

So far as the petitioner is concerned, it is the case of the petitioner that he was in the service of the said Mills till 18-10-1983 when the management was taken over by the 2nd Respondent under the Textile Undertaking (Taking over of Management) Ordinance, 1983 issued by the President of India. As per the Ordinance, the 1st Respondent is appointed as agent of the 2nd Respondent as the Custodian of the said Textile Mills for purposes of carrying out the management of the said Mills.

According to the petitioner, after the management of the Mills was taken over by the 1st Respondent, the 1st Respondent refused to employ the petitioner without any reason. Neither did the 1st Respondent terminates the services of the petitioner nor did the 1st Respondent issued any show cause notice to the petitioner calling upon him to show cause as to why action should not be taken against him for not attending his duties.

It is the case of the petitioner that though there was a general strike in the Cotton Textile Industry commencing from 18-1-1982, the petitioner did not take part in the said general strike, but the worked during the said strike period upto 18-10-1983.

According to the petitioner, though the Kohinoor Mills was taken over by the 1st Respondent on 18-10-1983, the petitioner was not allowed to work on the ground that the Respondents had no funds to restart the Mills and, therefore, the employees were not allowed to join their duties, but the employees were assured that as and when the working of the Mills will start and the same will be put in proper shape, the employees will be called according to their seniority. It is the case of the petitioner that he was regularly visiting the Mills and enquiring about the progress in the working of the Mills and the he was assured that he will be informed at a future date.

According to the petitioner, he wrote a letter dated 18-6-1984 to the 1st Respondent to allow him to join his duties as he was jobless for a considerably long period. However, he did not receive any reply from the 1st Respondent.

According to the petitioner, three sales shops started full-fledged working and the Mills worked regularly and the petitioner learnt that the 1st Respondent had appointed Shri P. P. Shah and Shri Damodar Khot, who were salesman junior to the petitioner, and outsiders were also appointed to work in the Retail Sales Department.

The petitioner by his letter dated 8-9-1986 recorded the aforesaid fact and requested that he may be allowed to resume his duties and demanded back wages, but as he did not receive any reply, he was required to file this writ petition and to seek the reliefs.

The Respondents have filed their affidavit-in-reply dated 24-10-1994, which was filed when the writ petition came up on board for hearing and final disposal. In the said affidavit-in-reply, it was urged on behalf of the Respondents that the petitioner should have availed of the alternative remedy of filing proceedings in the Labour Court for redressal of his grievance. It is also the case of the Respondents that the petition raises disputed questions of fact as to whether the petitioner had ever reported for work as is claimed in the present petition, whether the Department in which the petitioner was working was at all re-restarted by the 1st Respondent after the management was taken over with effect from 18-10-1983, whether the persons mentioned were, in fact, recruited by the Corporation and whether he is entitled to be reinstated by virtue of the fact that he has crossed the age of superannuation with effect from 30-6-1987 as he has completed 60 years of age. It is contended on behalf of the Respondents that these questions of fact cannot be determined or gone into in a petition filed by the petitioner under Article 226 of the Constitution of India as the same require that oral evidence be led for determining this issue.

It is also contended on behalf of the Respondents that so far as the petitioner is concerned, he was gainfully employed during the period that he is said to have been out of job. However, the Respondents have furnished details of his so called employment which reveal that the petitioner was working as a Sales Assistant with M/s. Patel Ghanshyamdas and Company for the period from May 1987 to July 1990 and thereafter from 1-8-1990 to May 1992 the petitioner was employed as a Junior Assistant Master in the Sales Department of Swadeshi Mills.

However, so far as these particulars are concerned, it is pertinent to note that the Respondents have furnished only the particulars of his employment, after the period of his retirement, that is to say, 30-9-1987 to May 1992 when according to the Respondents the petitioner would have retired with effect from 30-6-1987. Though the petitioner was employed with M/s. Patel Ghanshyamdas and Company from May 1987, this does not lend support to the case of Respondents that the petitioner was employed during the period 1983 to 1987 when, according to the petitioner, he was jobless. So far as the case of the petitioner is concerned, one fact is clear and that is that the petitioner by his letter dated 8-9-1986 addressed to the 1st Respondent, the petitioner approached the 1st Respondent seeking employment with the 1st Respondent. In the said letter, the petitioner has, in terms, recorded the fact that the management of the Mills was taken over from 18-10-1983, but he was not allowed to work along with the other employees on the ground that the 1st Respondent did not have funds to restart the Mills and that the was informed that as and when the work of the Mill will be in proper shape and the same would function in a full-fledged manner that they will recall the employees according to the seniority and the requirements. Curiously enough, in the said letter, the petitioner has also, in terms, set out that junior salesman have been employed, but he was not permitted to join his duties and that the action of the 1st Respondent was illegal. However, though his letter was received by the 1st Respondent, curiously enough, the 1st Respondent did not care to give any reply to the contents of the said letter or to deny the same, which is sought to be done by the Respondents at this stage by the affidavit dated 25-10-1994 filed by one Madhukar Narayan Revdekar, Deputy Manager, Labour and Welfare Department, of the 1st Respondent. So far as this affidavit is concerned, in the said affidavit, the Respondents have admitted the receipt of the letter, but they have denied the contents of the said letter. In the said letter, there is also reference to the affect that the petitioner has addressed a letter dated 18-6-1994 which aspect has also not been clarified by the Respondents as the Respondents have, apart from admitting the receipt of the letter, chosen to categorically deny the contents of the said letter. At this stage, the Respondents have sought to remain content by raising arguments to the affect that the petitioner did not attend and, therefore, there is not question of his not being allowed to work on the ground that the management had no funds to start the company. This issue has been raised at this stage in October 1994 when the petition was filed as far back as in October 1986 by the petitioner herein. We find it difficult to accept the contention of the Respondents that the petitioner did not attend for duty as the petitioner has been a permanent employee since January 1962 and has continued to work for the Kohinoor Mills Company Limited till 18th October 1983. It is difficult to accept the contention that the petitioner did not attend or did not demand employment with the Respondents, more particularly when the petitioner has been a devoted worker with the Kohinoor Mills Company Limited as he has not participated in the general strike and during the strike period from 18th January 1982 till 18th October 1983, the petitioner has continued to work for the Kohinoor Mills Company Limited. The fact that juniors have been employed by the 1st Respondent has not been denied. However, it is urged on behalf of the Respondents that the juniors have not been employed by the 1st Respondent but by an institution "the Sankalp Division", which is an institution of the 1st Respondent, and this Sankalp Division came into existence in 1984. Therefore, it does not behove the 1st Respondent to state that the 1st Respondent did not have any hand in the employment of these individuals. Curiously enough, though the petition was filed in 1986 and the same was served upon the Respondents, they filed their Vakalatnama in 1987. The Respondents did not care to file any affidavit-in-reply. The same has been filed at this stage, that is to say, at the time of the hearing of the writ petition, and it is dated 25th October 1994, wherein the Respondents have set out various contentions with regard to whether the petitioner reported for the work and whether the Department where the petitioner was working was restarted. The question also arises as to whether the deponent who has made this affidavit-in-reply, there is a statement to the effect that the deponent has made this affidavit-in-reply, on the basis of his information, personal knowledge and the record to which the deponent has access and which he had perused and on the basis of information which he believed to be true, he has filed this affidavit-in-reply.

At this stage, it is contended on behalf of the Respondents that the question as to whether the petitioner did return for work and the question whether the Department where he was working was already started after taking over the management with effect from October 1983 is a question of fact and is required to be gone into by leading oral evidence.

No doubt, the petitioner did have the remedy available to him of applying before the Labour Court. However, the petitioner chose to adopt the remedy by filing the writ petition under Article 226 of the Constitution of India. Merely because he had adopted this remedy, it does not mean that he is not entitled to any reliefs, more particularly since it is an admitted position that the petitioner has worked for the Kohinoor Mills Company Limited from 1962 till 1983 and has been a faithful employee of the Company inasmuch as even during the strike period the petitioner did not take part in the strike and continued to remain in the Mills which fact has not been denied by the Respondents. So far as the Respondents are concerned, no doubt, the Respondents have employed the services of other junior clerks because they attended and made applications before the Sankalp Division. So far as these appointments are concerned, they are also contrary to the contention of the Respondents, namely, whether the Department in which the petitioner was working was at all restarted after the take over of the management by the 1st Respondent with effect from 18th October 1983. This has not been the basis of the employment given to others by the Sankalp Division. Therefore, we are of the opinion that it is not open for the Respondents to contend that employment was given to those employees when the working of the Department restarted after the takeover of the management by the 1st Respondent on 18th October 1983. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to reinstatement for the period from 18th October 1983 to April 1987 and, being entitled to re-instatement, the petitioner is also entitled to full back wages. So far as this petitioner is concerned, we are also of the opinion that the 1st Respondent has at no point of time terminated the services of the petitioner, though the 1st Respondent took over the management of the Kohinoor Mills Company Limited under the Textile Undertakings (Taking over of Management) Ordinance, 1983, nor have the Respondents issued any show cause notice to the petitioner as to why action should not be taken in view of the fact that the petitioner has not cared to report for duty as contended by them. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to the relief of re-instatement, and for back wages. However, in view of the fact that the petitioner has reached the age of superannuation, the relief that he is entitled to is only the relied of back wages.

So far as the question of back wages is concerned, it was urged on behalf of the 1st Respondent that the 1st Respondent is also a sick unit that the question of payment of back wages to the petitioner, the same will have to be recovered from the Union of India. So far as the question of payment of wages is concerned, the same will have to be computed u/s 33C(2) of the Industrial Disputes Act, 1947.

In the result, the rule is made absolute. The petition is allowed to the extent that the petitioner is entitled to the back wages from 1983 till April 1987. The amount of wages is to be computed u/s 33C(2) of the Industrial Disputes Act. So far as the 1st Respondent is concerned, the contention urged on their behalf is that the 1st Respondent is a sick unit and does not have the financial resources to honour the commitment and, therefore, it is the Union of India which is bound and liable to pay the amount. The 1st Respondent can agitate this question at the time of the execution. Hence the rule is made partly absolute. The petition is allowed with costs. Certified copy expedited.