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Judgment
H.H. Kantharia, J.—The petitioner, Dadu Nagu Upashe, was in the employment of the first respondent, Shri Varna Sanakari Sakhar
Karkhana Limited, Warnanagar, Talpanhala, Dist, Kolhapur (hereinafter referred to as ''the Karkhana'') as a seasonal permanent employee. The
record of the Karkhana revealed the date of birth of the petitioner as July 15, 1920. As per the Standing Orders governing the parties, the
superannuation age was fixed at 58 years, though a power was vested in the management of the Karkhana to continue the services of a particular
employee even after the prescribed period, if so found necessary. However, thereafter there were recommendations of the Sugar Wage Board
styled as ''Second Central Sugar Wage Board Sugar Industrial Gratuity Scheme'' and under the provisions of Clause 3 thereof, the superannuation
age was fixed at 60 years. Certain procedure was prescribed therein for fixing the exact age of the employee on the basis of declaration form
which was to be attested by the employee and it further stipulated that if an entry was made in response thereto, then, a further right is given to the
employee to re-agitate that aspect notwithstanding filling in of the declaration form, in which event the dispute was to be settled by bi-partite
negotiations.
The management of the Karkhana issued a letter to the petitioner on June 16, 1980 that since he was to attain the age of 60 years on July 14,
1980, his services obviously were to be discontinued on superannuation. The scheduled date of July 14, 1980 on which the petitioner was to be
retired, was mentioned in the said letter itself. It so happened that the petitioner, on or about April 20, 1980 tendered an application to the
Karkhana informing them that his correct date of birth was January 20, 1922 and not July 15, 1920. According to the petitioner, there was no
response from the Karkhana, nor was he given any hearing or opportunity of tendering any evidence in support of his claim, nor any move was
made on behalf of the Karkhana for initiating bi-partite negotiations for settlement of the dispute as to the correct date of birth of the petitioner as
per the Wage Board recommendations. On the contrary, he alleged that without considering his application as to the correct date of birth, the
Karkhana terminated his services.
Therefore, the petitioner filed unfair labour practice complaint being Complaint (ULP) No. 30 of 1980 in the Labour Court at Kolhapur alleging
unfair labour practice covered by Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (hereinafter referred to as ''the MRTU & PULP Act''). It was contended therein that his application was not considered and
he was not given any opportunity of being heard and if the correct date of his birth as sought to be canvassed by him was accepted, he would not
have been made to retire on July 14, 1980. The petitioner thus contended that in this process, the action of the Karkhana amounted to a discharge
and it was a colourable exercise of powers of an employer mala fides were also alleged and it was further contended that the order retiring him
from services was passed in undue haste. The petitioner, therefore, asked for a relief of reinstatement with full back wages.
The said complaint was resisted on behalf of the Karkhana. It was contended on their behalf that the unfair labour practice complaint was not
maintainable as the allegations contained therein against the Karkhana would not constitute unfair labour practice under any of the items of
Schedule IV of the MRTU & PULP Act. It was also contended on behalf of the Karkhana that the recommendations of the Wage Board could be
only in the shape of recommendations and would not have any statutory force and in any case, the said recommendations could not override the
statutory provisions as reflected in the Standing Orders. A grievance was also made that the Standing Orders could not be amended or modified
without following the prescribed procedure and since that was not done, the recommendations would have their own limitations.
The learned Labour Judge presiding over the Labour Court framed several issues. On appreciation of the evidence adduced before him, he
came to the conclusion that notwithstanding certain documents having been filed by the petitioner himself giving his date of birth as July 15, 1920,
when the recommendations of the said Wage Board were accepted in their entirety, it was obligatory for the management of the Karkhana on
receipt of the petitioner''s application to give an opportunity of being heard on merits to the petitioner and also to start bi-partite negotiations for
settlement of the dispute as to the correct date of birth of the petitioner. It was, therefore, held that since no such opportunity was given to the
petitioner, it amounted to violating the principles of natural justice and since the order retiring the petitioner passed on June 16, 1980, it was done
in undue haste. The Labour Court also held that the order of superannuation of the petitioner which in effect amounts to an order of discharge may
not be in good faith but in colourable exercise of the employer''s right. The learned Labour Judge further held that the evidence led by the petitioner
showed that his correct date of birth was January 20, 1922. He however, held that the impugned action of the Karkhana was not mala fide as
according to the learned Labour Judge, the management of the Karkhana was proceeding on a misconceived and erroneous interpretation of the
various provisions. In view of these findings, an order of reinstatement of the petitioner was passed though back wages were denied to him. The
said order was recorded on November 14, 1980.
The Karkhana preferred a revision application, being Revision Application No. 7 of 1980 in the Industrial Court at Bombay. The learned
President of the Industrial Court who heard the revision application held that since the recommendations of the Wage Board were accepted by the
Karkhana it should be presumed that they had accepted the same in their entirety and when admittedly, no bi-partite negotiations were held, it
would amount to breach thereof. It was predominantly on this basis that the Labour Court''s order was confirmed by the Industrial Court. The
revision application of the Karkhana accordingly came to be dismissed by the Industrial Court on January 17, 1981 which order was impugned by
the Karkhana by invoking the supervisory writ jurisdiction of this Court by filing Writ Petition No. 1665 of 1981 in this Court under Article 227 of
the Constitution.
The learned single Judge (Kotwal, J.) by his judgment and order dated August 3, 1981 held that in view of certain deficiencies in the judgments
of the Courts below and in particular for non-consideration of some material aspects of the matter, orders of the Courts below were set aside and
the matter was remanded back to the Industrial Court for reconsidering the matter on merits after giving a full opportunity to the parties of being
heard.
Accordingly, the revision application (ULP) No. 7 of 1980 came to be heard by the learned member of the Industrial Court at Pune who by her
judgment and order dated November 19, 1982 allowed the said revision application and set aside the order passed by the Labour Court,
Kolhapur.
Being aggrieved, the petitioner filed the present writ petition invoking supervisory writ jurisdiction of this Court under Article 227 of the
Constitution.
Mr. Kochar, learned counsel appearing on behalf of the petitioner, urged that the learned member of the Industrial Court, Pune committed
grave error in upsetting the finding of fact as to the correct date of birth of the petitioner while exercising the revisional jurisdiction vested in the
Industrial Court under the MRTU & PULP Act. Mr. Kochar further submitted that the learned Labour Judge correctly came to the conclusion as
to the correct date of birth relying upon the original birth and death register of village Aitwade Khurd for the year 1922 which was maintained in
the ordinary course of business by the office of the Tahsildar at Islampur and held that the correct date of birth of the petitioner as January 20,
1922 on the basis of which the management of the Karkhana could not have retired the petitioner on July 14, 1980 without giving a reasonable
opportunity of being heard to the petitioner and the action of the management of the Karkhana was taken in undue haste which amounted to unfair
labour practice covered by Item 1(f) of Schedule IV of the MRTU & PULP Act. In reply, Mr. Mandlik, learned counsel appearing on behalf of
the Karkhana, submitted that the petitioner had all throughout maintained that his date of birth was July 15, 1920 and even Army records where he
was previously working showed the same date of birth and he could not have raised a contention at the fag end of his career that his correct date
of birth was January 20, 1922. In the submission of Mr. Mandlik, therefore the Karkhana did not commit any act of unfair labour practice as the
petitioner was rightly retired on the date of his superannuation.
Assuming for the sake of argument that there is substance in the argument of Mr. Mandlik that the petitioner was rightly retired on the date of
his superannuation, it is difficult to agree with him that the Karkhana did not commit an act of unfair labour practice. Further assuming for the sake
of argument that there was merit in the contention raised on behalf of the Karkhana as to the correct date of birth of the petitioner, the Karkhana
could not have and should not have retired the petitioner without giving him a reasonable opportunity of being heard and in undue haste on the
ground that his date of birth was July 15, 1920. The very fact that the Karkhana sought to retire the petitioner on 14th July, 1980 shows that even
the Karkhana accepted that the retirement age of the petitioner was 60 years and 1 not 58 years. When that was so, the Karkhana should have, in
fairness, allowed the petitioner to adduce whatever evidence he had in his possession to prove that his correct date of birth was January 20, 1922
and not July 15, 1920. Without doing that, the Karkhana could not have retired the petitioner in undue haste holding that the correct date of birth
of the petitioner was July 15, 1920. The view taken by the learned Labour Judge, in these facts and circumstances, was correct and at any rate
even if another view was possible, it was improper on the part of the learned member of the Industrial Court, Pune to have upset ""the findings
recorded by the learned Labour Judge while exercising revisional jurisdiction vested in her under the provisions of the MRTU & PULP Act. The
impugned order passed by the learned member of the Industrial Court, Pune on November 19, 1982 is, therefore, pregnant with errors apparent
on the face of the record and the same has got to be corrected.
In this view of the matter, this writ petition succeeds and the same is allowed. The impugned order passed by the Industrial Court, Pune in
revision application (ULP) No. 7 of 1980 passed on November 19, 1982 is set aside and the one passed by the learned Labour Judge, Kolhapur
on November 14, 1980 in Complaint (ULP) No. 30 of 1980 is restored. Rule is accordingly made absolute with cost of Rs. 1,000/- by the first
respondent-Karkhana to the petitioner.
In view of the fact that the correct date of birth of the petitioner was January 20, 1922, he could not have been retired by the management of
the Karkhana effective from July 14, 1980. However, while granting the reinstatement to the petitioner, the Labour Court had denied him the
benefit of the back wages. Be that as it may, in consequence of the order passed by the learned Labour Judge on November 14, 1980, the
petitioner would be entitled to the back wages effective from November 15, 1980. The petitioner would, therefore, be entitled to back wages for a
total period of one year, two months and five days. The first respondent-Karkhana is hereby directed to work out the back wages due and
payable to the petitioner for a period of fourteen months and five days on the basis of his last wages drawn and pay up the arrears to the petitioner
on or before 31st July, 1991, failing which the first respondent-Karkhana will be liable to pay interest at the rate of 15 per cent per annum to the
petitioner on the said amount effective from August 1, 1991.