Ramesh vs Plantation Officer and Others

B.P. Dharmadhikari, J.

The matter is for final hearing on provisional Board already notified. The matter was called out earlier at 10.45 a.m. and was passed over. It is called out again at 11.15 a.m. Advocate Shri Agrawal for the petitioner as also learned A.G.P. state that they never thought the case would be heard today and therefore they are not in a position to assist the Court. Provisional Board is published for making work available to Hon''ble Judges when the regular benche cannot function.

Perused the judgment delivered by Industrial Court in Revision (ULP) No. 47 of 2011. By said judgment dated 09/11/2011, Member, Industrial Court has, while allowing revision filed by the present respondents, set aside the judgment and order dated 30/4/2011 passed by Labour Court, Yavatmal in Complaint (ULP) No. 47 of 1998.

The Labour Court after appreciation of evidence partly allowed the complaint filed by present petitioner challenging his termination from employment w.e.f. 01/4/1998. The employer was directed not to indulge in such unfair labour practices and reinstate the petitioner with continuity of service but without any back wages.

This Court, while issuing notice in the matter on 05/01/2012, has protected services of the petitioner. That interim order continues even today.

The revisional Court has noted that Labour Court did not find out particular unfair labour practice falling in sub-clauses of Item 1 of Schedule-IV of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, MRTU and PULP Act) in which the employer could be said to have indulged. It also found that in the complaint, it was nowhere pleaded that a particular clause of Item 1 of Schedule-IV was violated. The Industrial Court has noted that it was third round of litigation before it and when the matter was earlier remanded by it, it was expected that employee would amend the complaint to mention specific Clause of Item 1 of Schedule-IV. He did not take any such pains and in that backdrop Industrial Court found that the complaint itself was misconceived. A judgment of this Court reported at 2001 (II) CLR 64 - Association of Engineering Works v. Crompton Greaves Ltd. was relied upon and as employee did not amend his complaint, the revision came to be allowed.

Perusal of judgment of the Labour Court shows that Labour Court found the respondent-Forest Department to be an industry under Section 2 (j) of the Industrial Disputes Act, 1947. It also found that the services of the petitioner were illegally terminated on 01/4/1998. It recorded a finding that by so terminating the services, employer indulged in unfair labour practice. It, therefore, proceeded to grant him relief of reinstatement with continuity in service but without back wages.

The Labour Court found that complainant was in continues service from 09/7/1986 till his termination vide notice dated 07/3/1998 w.e.f. 01/4/1998. It also found that employer accepted his employment from 01/01/1997 to 31/3/1998. It found that retrenchment compensation was accordingly worked out for said period i.e. from 01/01/1997 to 31/3/1998. The complainant did not accepting that retrenchment compensation. It has then looked into the definition of retrenchment as given in Section 2(oo) of the Industrial Disputes Act, 1947 and noted that the complainant had filed on record notice to produce document dated 30/3/2002 for producing muster rolls from 09/7/1986 to 31/3/1998. The respondent-employer did not submit any say on the said application (Exh.28). On 08/02/2011 the Labour Court directed the employer to produce those documents and in spite of that direction, the documents were not produced. The Labour Court, in this backdrop, has referred to cross-examination of witness Shri Rajendra Tongo examined by the employer at Exh.44. He has produced cash book for period from November, 1995 to September, 1997 and on the strength of that documents, the Labour Court found that complainant was working from November, 1995 to September, 1997. This finding on the basis of documents produced by respondents itself contradicted the stand of respondents that the petitioner was working from 01/01/1997 till the date of his termination, i.e. till April, 1998. It has found that he was paid retrenchment compensation only for a period from 01/01/1997 till 31/3/1998 and not for a period from November, 1995 to 01/01/1997. It has therefore recorded a finding that this payment of compensation is not in accordance with the law, i.e. the provisions of Section 25-F(b) of the Industrial Disputes Act, 1947 and as there is no valid compliance with the said provisions, there is victimization, which constituted an unfair labour practice. It has also taken note of the fact that the complainant before it did not specifically aver particular type of unfair labour practice but had preferred to rely upon the documents produced by the employer to hold that there was unfair labour practice falling under Item 1 of Schedule-IV.

The complaint filed by the employee/workman mentions Section 28 read with Schedule-IV Item 1. He has further stated that though one month''s notice was given, period of employment mentioned therein was incorrect and he was not paid retrenchment compensation. He has pleaded that this was contrary to law and irregular. He has further stated that no seniority list was published. It is specifically submitted by him that he had put 240 days of continuous service, work was still available and junior persons continued in employment. He has given names of certain persons as juniors who were being continued.

Schedule-IV Item 1 covers unfair labour practices when employee is dismissed or discharged by way of victimization, not in good faith, but in colourable exercise of employer''s rights or by false implication in a criminal case or for patently false reasons or on untrue or trumped up allegation of absence without leave or in utter disregard of the principles of natural justice in the conduct of domestic enquiry or for misconduct of a minor or technical character.

The employee/complainant specifically pointed out the period of his service and also gave notice to his employer to produce documents on record. Cross-examination of witness Shri Rajendra Tongo shows that he produced on record pacca muster and accepted that he did not file kaccha muster. He also accepted that he did not file cash book from 09/7/1986.

This fact shows that stand of employer that complainant was working from 01/7/1997 was incorrect as the documents produced by the employer itself demonstrate that he was working from November, 1995. Shri Rajendra Tongo impliedly accepted that kaccha musters were maintained and cash books for the period from 09/7/1986 were available. Thus, there was absolutely no justification for not obeying the orders of the Labour Court dated 08/02/2011 passed below Exh.28.

The employer itself has come up with defence that retrenchment compensation was paid to the complainant. Thus, completion of 240 days of continuous service by the complainant cannot be disputed. The Labour Court has granted relief of reinstatement with continuity of service without back wages. The relief is granted because full retrenchment compensation was not paid to the complainant. The Labour Court has found he was victimized which is an unfair labour practice. The Industrial Court has not found any error with this finding.

In the above background, placement of complainant at particular number in seniority list is not very relevant. Similarly, the fact whether his juniors were being continued in service or not is not relevant. The Labour Court after noticing short payment of retrenchment compensation has granted him the relief. The Industrial Court in this backdrop has observed that it was necessary for the respondents to specifically point out sub-Clause of Item 1 of Schedule-IV under which unfair labour practice was being alleged. When facts necessary to show ingredients of an unfair labour practice are fulfilled, non-mention of a particular or specific legal provision cannot be fatal. Hence, denial of benefit of a welfare measure like Section 25-F to petitioner and short payment of retrenchment compensation or therefore fact that termination is with undue haste is made out. Employer also withheld vital documents and did not permit petitioner to prove his employment from 09/7/1986. There was adequate material to enable Courts to draw an adverse inference. Hence, relief given by Labour Court could not have been viewed as perverse or without jurisdiction. Hence, Industrial Court could not have interfered under Section 44 of the MRTU and PULP Act in revisional jurisdiction. The judgment of this Court (supra) considers the challenge to denial of interim order by Industrial Court and states that facts disclosed in complaint must fit in concerned item of Schedule-IV straightway and long down logic may not be required for it. Facts pleaded by petitioner here are very specific and only relevant legal provision needs to be applied to it.

In view of these findings, I find that the petition as filed needs to be allowed. Accordingly, judgment and order of the Industrial Court dated 09/11/2011 in Revision (ULP) No. 47 of 2011 are quashed and set aside. The judgment and order of the Labour Court, Yavatmal dated 30/4/2011 in Complaint (ULP) No. 47 of 1998 are restored.

Rule is made absolute accordingly. No costs.