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A.A. Sayed, J.—This Petition has been filed by the Petitioner, a Government Company registered u/s 617 of the Companies Act, 1956, impugning the order of the Labour Court dated 23 December 2004 and the order" of the Industrial Court dated 1 July 2006 in Appeal. The Labour Court found that the enquiry held against the Respondent-employee (hereinafter referred to as the employee) was not fair and proper and was perverse and granted him full back wages from 18 January 1982 till superannuation with all monetary benefits. In Appeal, the Industrial Court modified the order of the Labour Court and granted full back wages from 4.4.1994 with all appended benefits till the date of his superannuation i.e. till 1999. The employee had joined the services of one of the units of the Petitioner viz. Apollo Textile Mills Ltd. on 22 November 1963 as a Piece Checker. In January 1992 the employee was working as Semi Clerk in the Folding Department of the Mill. There was a general strike in the Textile Industry in Mumbai from 18.1.1982. The strike was declared illegal u/s 97 of the Bombay Industrial Relations Act, 1946. According to the employee, in October 1984, the workers and the staff members of the Mill were able to go to the Mill. The case of the employee in his Application filed before the Labour Court under Sections 78 and 79 of the BIR Act filed under item 6 of Schedule III (wrongly typed as II) against M/s. Apollo Textile Mills was that he went to the Mill for work but the Folding Master of the Mill, Shri Kotian told him that all the workmen will be provided work in a phased manner and he would be intimated accordingly. The employee has averred in his Application that sometime in May 1983 Late Shri Vasant Dada Patil, the then Chief Minister of Maharashtra, had appealed to all textile workers to report for work. He accordingly reported for work and his name was registered in the list of the willing workers maintained by the Mill. On 4.4.1994, the employee sent a letter of approach to the Mill which was not replied to by the Mill. On the aforesaid facts, the employee in his Application prayed for a declaration that he was in the employment of the Mill and to direct the Mili to give physical employment and to pay wages from 18.1.1982.
The Application filed by the employee was resisted by the Mill by filing its Written Statement. In the Written Statement it was stated that the Application was in fact covered by section 78(1)A(a)(i) of the B.I.R. Act and not under item 6 of Schedule III (wrongly typed as II). It was contended that the employee was issued charge-sheet dated 1.12.1982 which was sent to him under Registered A.D. and Under Certificate of Posting and the enquiry was fixed on 15.12.1982. Since the employee did not remain present for the enquiry on 15.12.1982, the enquiry was adjourned to 1.1.1983. A notice was published in the daily Navakal dated 23.12.1982 intimating the employee of the next date of enquiry to be held on 1.1.1983. Since the employee did not remain present on that date, the enquiry proceeded ex-parte and after considering the findings of the Enquiry Officer, the employee was dismissed from service vide letter dated 20.1.1983. The approach letter of the employee was sent only on 4.4.1994 which was time barred u/s 42(4) of the B.I.R. Act read with Rule 53 of the B.I.R. Rules. It was averred in the Written Statement that the employee actively participated in the illegal strike and it was denied that he reported for work or his name was registered in the list of willing workers maintained by the Mill. All the employees who reported for work were made employees and were taken on record and the question of maintaining a list of willing workers did not arise. The employee waited for 12 years and the letter of approach was barred by limitation.
The issues framed by the Labour Court were as follows:
Whether the enquiry is fair and proper?
Does the applicant prove that he is entitled for the reliefs as prayed?
What order.
The employee adduced evidence by examining himself. On behalf of the Mill, the enquiry officer Shri Sohoni and two other witnesses were examined. After the evidence was led, the Labour Court heard the parties and passed the impugned order dated 23.12.2004, by which time the employee had already attained superannuation. The operative part of the impugned order reads as follows:
Enquiry held against applicant is not fair and proper are not legal and are perverse.
Applicant is entitled to receive full back wages from 18/1/1982 till his superannuation date with all the monetary benefits till the age of his superannuation.
Opponent Mill to pay costs of Rs. 1000/- to the Applicant.
The order of the Labour Court was carried in Appeal by the Mill before the Industrial Court. The Industrial Court partly allowed the Appeal of the Mill and modified the order of the Labour Court to the extent that the back wages were granted from 4.4.1994 (instead of 18-01-1982) with appended benefits till the date of superannuation i.e. till 1999, as indicated earlier. The aforesaid impugned orders of the Labour Court and the Industrial Court are subject matter of the present Petition, which has been filed by the National Textile Corporation (South Maharashtra) Limited, on behalf of the Mill which is one of its units.
I have heard the learned Counsel Ms. Meena Doshi on behalf of the Petitioner and Learned Counsel Mr. N.M. Ganguli on behalf of the employee.
Ms. Meena Doshi, learned Counsel on behalf of the Petitioner cited the following judgments:
Narang Latex and Dispersions Pvt. Ltd. Vs. S.V. Suvarna (Mrs.) and Another,
Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari,
Ramu Appa Desai Vs. Dawn Mills Co. Ltd. and Others,
The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others,
The Cooper Engineering Limited Vs. Shri P.P. Mundhe,
E. Merck (India) Limited Vs. V.N. Parulekar and Others,
Vithaldas Vallabhdas Vaishnav Vs. Kohinoor Mills Co.,
Ratnagiri District Central Co. Op. Bank Ltd. Vs. Dinkar K. Watve and Others,
Tata Textile Mills (U.C.) and Others Vs. Munnlal Nanhoo Yadav and Others,
Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another,
U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey,
U.P. State Road Transport Corporation Vs. Man Singh,
Muir Mills Unit of N.T.C. (U.P) Ltd. Vs. Swayam Prakash Srivastava and Another,
Mr. Ganguli, learned Counsel on behalf of the employee on the other hand placed reliance upon the following judgments:
Changunabai Chanoo Palkar Vs. Khatau Makanji Mills Ltd. and others,
Shambhu Nath Goyal Vs. Bank of Baroda and Others,
Neeta Kaplish Vs. Presiding Officer, Labour Court and Another,
Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana),
Novartis India Ltd. Vs. State of West Bengal and Others,
Karnataka State Road Transport Corpn. Vs. Smt. Lakshmidevamma and Another,
Zandu Pharmaceuticals Works Ltd. vs. Dayanand Sitaldin Mishra & Anr., 1992 I CLR 634;
Shankar Vasudeo Masurkar and Another Vs. Shree Sitaram Mills and Another,
Rajaram Dipoo Khatik Vs. Shriram Mills and Another,
Jayavant Yaswant Raut Vs. Simplex Mills Ltd. and Others,
Krishna Sahakari Sakhar Karkhana Ltd. Vs. Anil Bapurao Kanase and Another etc. etc.,
Maharashtra State Textile Corpn. Ltd. Vs. Vasudev Vinayak Joshi and another,
Sitaram Dhondoo Hadkar Vs. National Textile Corporation (SM) Ltd.,
Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another,
Crompton Greaves Ltd. Vs. Its Workmen,
Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others,
Mohd. Yunus Vs. Mohd. Mustaqim and Others,
The K.C.P. Employees'' Association, Madras Vs. The Management of K.C.P. Ltd., Madras and Others,
Fairness of enquiry
Both, the Labour Court and the Industrial Court have, after appreciating the evidence on record, concluded that the enquiry was not fair and proper. The Industrial Court has on the aspect of fairness of the enquiry held in para 6 as follows:
On perusal of the record and the evidence of the enquiry officer, I find vestige of truth in the submission on behalf of the applicant. The enquiry officer, in his cross examination (Exh. C-22) on behalf of the applicant did admit that the management did not send any letter to the applicant intimating that that the date of Enquiry was fixed on 1.1.1983. On inviting the attention of the enquiry officer to the enquiry proceeding at Exh. C-15, he admitted that the proceeding is not in original. Notably, Exh. C-15 is not admitted by the applicant and the opponent has not filed the original on record. Therefore, I am afraid to consider that the proceeding of enquiry Exh. C-15 is proved. It is pertinent to note that the enquiry officer has admitted that the findings are in cyclostyle, having blanks and he could not state who has filled in the blanks in his findings. He also admitted that on the date when the enquiry against the applicant was held, 9 other enquiries were conducted by him. It follows that 10 enquiries were conducted in haste and without intimating the enquiry officer has clearly admitted that the registered letters sent to the applicant were returned by the postal authority with remarks that the addressee was not available. The enquiry officer also unequivocally admitted that he was told by the management that the letters sent to the workmen were returned back. It follows that the enquiry officer did not verify if the charge sheet is duly served on the applicant. Thus, the enquiry against the applicant being without serving the charge sheet on him, is in utter disregard to the enquiry procedure and principles of natural justice, and the enquiry is nothing but a farce and mere paper creation. Surprising enough, the enquiry officer clearly admitted that there is no date on the findings recorded by him. Thus, it is doubtful, if any such enquiry was really conducted. If at all it was conducted, it being without notice of the charge sheet to the applicant the entire enquiry is vitiated as it is against the principles of natural justice. Consequently the order of dismissal has to be held as illegal. Moreover, the enquiry officer deposed that he has no idea if the dismissal order was served on the applicant. No other evidence is brought on record to show that the dismissal order was communicated to the applicant. Unless the order of dismissal is communicated to the employee, he continues to be in service and his status as workman is not disturbed. In the back ground of these facts and circumstances, the enquiry has to be held not fair and proper and consequent dismissal order is illegal. So, I record my finding on point No. 1 in the negative.
The Industrial Court has thus upheld the finding of the Labour Court that the enquiry was not fair and proper, after "re-appreciating" the evidence and on perusal of the record. I do not find any perversity in the finding of facts arrived at by both the Courts below. In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, a Bench of seven Hon''ble Judges of the Supreme Court considered the scope of jurisdiction to issue writ of Certiorari. Their Lordships held as follows:
.......the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) the Court issuing a writ of Certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous.
In Syed Yakoob Vs. K.S. Radhakrishnan and Others, a Constitution Bench of the Hon''ble Supreme Court held as follows:
....A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be in regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on the evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.
It is of significance that despite the manner in which the ex-parte inquiry proceeded, the Mill did not make any Application before the Labour Court to lead evidence to prove the charges of misconduct against the employee. In The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, the Supreme Court held that if no enquiry is held or if the enquiry held is defective then even u/s 11A, the employer can adduce evidence for the first time before the Industrial Tribunal. In Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, it was held by the Apex Court that there was no duty cast upon the Tribunal suo motu to call upon the employer to adduce evidence.
Considering the facts and circumstances of the case and the principles enunciated in the aforesaid rulings, in my view the concurrent findings of facts by the Courts below on the aspect of fairness of enquiry is not liable to be disturbed in these proceedings and I do not find any perversity or error apparent to interfere with those findings.
Limitation
It was contended by the learned Counsel on behalf of the Petitioner that both the Courts below have not considered the aspect of limitation in its proper perspective. It is pointed out that the order of dismissal is dated 20.1.1983, whereas the approach notice u/s 42(4) of the BIR Act is dated 4.4.1994 and the Application u/s 79 has been filed before the Labour Court on 18-7-1994. The learned Counsel for the Petitioner submitted that the issue of limitation is to be considered in three parts, viz:
(i) Time within which the approach notice has to be sent as prescribed in Section 42(4) of the B.I.R. Act read with proviso thereto;
(ii) The period of 15 days which is provided for the parties to arrive at an amicable settlement in respect of the change demanded by either of such party or such other time as is mutually extended between the parties; and
(iii) The limitation for the purpose of filing Application in Court as prescribed in Section 79 of the Act. These provisions are to be read along with Rule 53(1) and (2) read with Section 78 and 79.
It is submitted that since the services of the employee were terminated by issuing a dismissal order dated 20.1.1983 the limitation has to be reckoned from the date of the said termination order. It is contended that the employee was required to send the approach notice within three months from the said date, wait for 15 days and after the expiry of 15 days if there was no response from the employer, file an Application u/s 79 within three months.
The contention urged on behalf of the employee however is that the employee had not received the termination letter and the limitation as prescribed u/s 79(3)(b) would apply and not as prescribed u/s 79(3)(a), as is sought to be contended on behalf of the Petitioner.
In Rajaram Dipoo Khatik Vs. Shriram Mills and Another, a learned Single Judge of this Court held in para 5 as follows:
Learned advocate for the Petitioner in this case has placed reliance on the judgment of this Court in Writ Petition No. 368 of 1998 Parshuram Ganpat Bhoir v. National Textile Corporation (S.M.) Ltd. (Unit: Kohinoor Mills and Others), as well as the judgment of this Court in Jayavant Yaswant Raut Vs. Simplex Mills Ltd. and Others, In both these matters, the learned Judges have considered the issue of limitation and have held that where the workman is not informed of the date of termination of service, the question of limitation u/s 42(4) of the said Act read with Rule 53(1) and (2) of the Bombay Industrial Relations Rules, 1947 would not arise. In the Written Statement the Mill took up the contention that an inquiry had been held against the Petitioner and that his services had been terminated. The Mill also contended that this order of termination was communicated to the Petitioner. From the record before the Labour Court as well as the Industrial Court, it does not appear that the Mill has substantially proved that the Petitioner was made aware that his services were terminated and that he was dismissed from a particular date. Merely passing an order of dismissal/discharge and not communicating it to the employee would not suffice. Limitation of three months is to be reckoned from the date the employee is informed of the termination of service. In the present case, the Petitioner has not been informed that his services were terminated. In view of this, the question of the period of limitation of three months coming into operation does not arise.
The above decision drew support from the judgment of a Learned Single Judge of this Court in the case of Jayavant Yaswant Raut Vs. Simplex Mills Ltd. and Others, wherein it was held that the dispute fell within Section 78(1)(A)(a)(iii) and not u/s 78(1)(A)(a)(i) and was therefore not hit by limitation prescribed in Rule 53 (2) of the B.I.R. Rules, 1947. In the present case, the Application filed by the employee itself categorically states - "APPLICATION u/s 78 & 79 OF B.I.R. ACT SCHEDULE III Item 6" (wrongly typed as II). The employee has in his evidence denied receipt of any charge-sheet or dismissal order. The Petitioner had failed to prove that the chargesheet or termination order was served on the employee. Both the Courts below have arrived at a finding of fact that the enquiry was in violation of the principles of natural justice. In fact, the Application of the employee also proceeds simpliciter on the basis that the employee has been denied work. Pertinently the approach notice has not been replied to by the Petitioner. In the circumstances, I am inclined to hold that the Application of the employee would be within limitation. In Vithaldas Vallabhdas Vaishnav Vs. Kohinoor Mills Co., cited on behalf of the Petitioner, the dispute was u/s 78(1)(A)(a)(i) and not u/s 78(1)(A)(a)(iii) as in the present case. Moreover, in that case there was no dispute about the fact that the termination order was served upon the employee. The other judgments cited on behalf of the Petitioner on the point of limitation are also based on different facts and would therefore not apply in the present case.
Back-wages
In Novartis India Ltd. Vs. State of West Bengal and Others, it has been held by the Hon''ble Supreme Court as follows:
There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefore several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment; etc.
It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.
.......
Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf.
(emphasis supplied)
From the aforesaid observations it would be apparent that the initial burden would always be upon the employee to show that he was unemployed during the relevant period for which the relief of grant of back wages is sought, in that, there at least has to be a pleading to that effect. In the present case, there is no pleading or evidence in that regard. For about 12 long years, the approach notice was not served by the employee. However, after perusal of the various judgments cited on behalf of the parties and considering the peculiar facts and circumstances of the case, including the length of service of the employee of about two decades, the fact that the Mill was shut at the relevant time on account of the strike for which the employee cannot be blamed in absence of any material on record to indicate that the employee had actively participated in the strike, and the fact that the termination of the employee has been held to be illegal, in my view, interest of justice would be subserved if the employee is granted compensation of Rs. 1,00,000/-. It is accordingly ordered. The Petitioner shall pay the employee the aforesaid amount within four weeks from today. For the reasons mentioned above, the impugned order of the Industrial Court shall stand modified. Rule is made absolute in the aforesaid terms with no order as to costs.