Laxmi Textile vs Mahadev Kisan Savant

S.R. Brahmbhatt, J.—Heard learned advocate for the petitioner and respondent, who is present in person.

The petitioner-employer has approached this Court under Article 227 of the Constitution of India challenging the order passed by the Industrial Court, Ahmedabad on 24.3.2008 passed in Appeal (IC) No. 60 of 2007, whereby, the petitioner is directed to reinstate the workman respondent and original appellant with continuity of service and 50% of back wages from 19.8.1998 and awarded cost of Rs. 1000/-.

Facts in brief deserve to be set out as under.

The respondent workman had to move T-Application No. 398 of 1998 under Sections 78 and 79 of the Bombay Industrial Relation Act, interalia seeking declaration that the termination of his service dated 19.8.1998 was illegal, unjustified and therefore, sought reinstatement with full back wages. It was a case of the workman before the concerned Labour Court where T-Application was pending that, he was working with present petitioner since 1st September, 1980 as permanent employee. He discharged his duties till 1986. He was terminated in the year 1986. His termination in the year 1986 was challenged, wherein, he was ordered to be reinstated but without any back wages. That order was challenged by the workman before this Court but this Court confirmed the order of the Labour Court and therefore, the workman concerned went for resuming his duty on 7.8.1998. From 26.8.1998 till 18.9.1998, the workman had proceeded on leave and he came to resume his duty on 19.9.1998. He was not permitted to resume his duties and he was terminated orally without offering even opportunity of being heard. The approach letter was sent on 3.10.1998, which was vaguely replied by the respondent present petitioner. The concerned Court, after recording evidences and framing issues passed detailed award on 5.6.2007 ordering reinstatement without back wages and ordered payment of Rs. 1000/- by way of costs to respondent-workman.

Being aggrieved and dissatisfied with the denial of back wages, the respondent workman preferred Appeal (IC) No. 60 of 2007 in the Industrial Court at Ahmedabad, which came to be heard and disposed of finally by award and order dated 24.3.2008, wherein, the Court ordered that the appellant be paid 50% of back wages with continuity of service and ordered payment of Rs. 1000/- by way of costs. This order of the Tribunal dated 24.3.2008 is under challenge in this petition.

Learned advocate Shri Dave for the petitioner contended that the petition is essentially challenging the order of back wages only and right from day one, so to say, right from the day when the approach letter was replied, it is the stand taken by present petitioner that they are ready and willing to reinstate the workman, but the respondent workman adamantly denied to resume the duties. In reply to approach letter, which is produced at Page No. 73 to the memo of petition, which was taken note of by the Labour Court, wherein, it was categorically mentioned that the services of the respondent workman are not terminated and he can resume his duties. Thus, since the reply to approach letter dated 12.10.1998, it can well be said that there was all along stand taken by the employer that workman can resume his duties. In light of this when the decision is rendered by the Labour Court taking into consideration all the evidences produce before it, the Appellate Court in Appeal being Appeal (I.C.) No. 60 of 2007, has held that during the pendency of T-Application, the respondent workman had right to use his discretion and not to join the duty and that in itself could not have been major factor indicating that the employer was ready and willing to take the workman on job and passed the impugned order, which is illegal and perverse and therefore the same deserves to be quashed and set aside.

Shri Dave has invited this Court''s attention to the attitude and approach of workman that could be pointed out from the proceeding of T-Application being 510 of 1986, the order of reinstatement was granted on 18.6.1990, which he challenged by preferring Appeal (IC) No. 58 of 1990 and which came to be dismissed on 11.5.1990 and ultimately, writ petition being Special Civil Application No. 7664 of 1991 was filed, which came to be disposed of by this Court vide order dated 11.11.1992.

This Court while admitting the matter on 23.09.2008, posed query to the respondent workman as to whether he would like to resume his duty during the pendency of the petition, to which, the answer was "NO".

The respondent workman - Party-in-Person, has tendered the written submission today, which is ordered to be taken on record. Perusing the said written submission, it seems that the workman has mainly contended with regard to some criminal matters and has not shown any justification why he was terminated and why was he not attending his duties. The workman could not establish his case and therefore, the matter rested there.

This Court has perused the record and order passed by the Division Bench of this Court on earlier occasion. It is the consistent stand of the respondent workman that he will not join the duties without back wages, which has been denied way back in the year 1998 by the trial Court, that means, the Court at first instance. This Court is also of the opinion that the workman has not made out any case in the written submission so as to award any back wages. The order passed by the Appellate Court granting 50% of back wages to the respondent workman cannot be sustained in view of the fact that the Appellate Court has not appreciated the facts stated in the approach letter and reply thereto, in which, it is clearly stated by the employer that they were ready and willing to reinstate the respondent workman and the respondent could have resumed his duties from day one and therefore, the attitude and conduct of the respondent workman was required to be seen as he has not joined the duties and used his discretion not to join the duties. In fact, it was a question which had been asked and posed to justify the stand and to demonstrate the approach of the workman and this Court while admitting the matter has also posed question to workman that whether he was ready and willing to join the duty pending petition and at that time also, the respondent workman has answered "NO".

The principle for granting of back wages has by now crystallized and when in a cases, where the workman failed in establishing that his attempt of procuring employment during the idle period did not succeed, then also the workman is not to be granted back wages. In other words, for justifying the stand for getting back wages, the workman concerned has to establish that despite due diligence and sincere efforts, he could not procure his gainful employment and the same being not controverted by other side, the Court has discretion to grant back wages. In the instant case, the order of the Court at first instance where T-Application was decided being Award dated 5.6.2007, was absolutely just and proper as it was rather established by the employer that the workman had forced unemployed himself by not availing the opportunity of resuming duties when he was invited to resume duty in reply to the approach letter. The Appellate Court has therefore patently erred in ignoring this vital aspect. The fact remains to be noted that the order of Appellate Court being contrary to established provisions of law and granting of back wages, suffers from serious lacuna and is required to be rectified and quashed in this proceedings.

In view of the above facts and circumstances and conduct and attitude of the respondent workman, this Court is of the view that the Appellate Court has patently erred in awarding 50% of back wages and therefore, this petition is required to be allowed to that extent. The order of Labour Court dated 24.3.2008 passed in Appeal (I.C.) No. 60 of 2007 is hereby quashed and set aside and the order of the Labour Court dated 5.6.2007 passed in T-Application No. 398 of 1998 is restored. It would be open for the respondent workman to report for duty and in case the respondent workman reports for duty, the petitioner shall permit the respondent workman to work as per the original order of the Labour Court dated 5.6.2007 passed in T-Application No. 398 of 1998, which is restored herein. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.