Mohd.Yusuf Surya vs Roshani Ltd. And Others

Petitioner Mohd. Yusuf has filed the present writ petition challenging the part of the award dated 11/05/2006 passed by the Labour Court in

Reference ID no. 25/2000, thereby Presiding Officer has denied the benefit of backwages and other benefits to the petitioner.

2 The petitioner was continuously working as office boy ( workman) with the respondent no. 1 for six years. Senior Central Office situated at Delhi

had passed an order dated 22/05/1998, thereby directing termination of services of temporary employees. Although the petitioner was continuously

working for six years, respondent no. 1 Surya Roshani Limited, vide order dated 22/03/1999 terminated the services of the petitioner.

3 Learned counsel for the petitioner submits that the petitioner had continuously worked for a period of six years and no notice regarding closure of

the work was issued to the petitioner, nor any compensation was paid to the petitioner, therefore, services of the petitioner have been terminated

illeally and malafidely. Being aggrieved by that, the petitioner had submitted an application before the Labour Commissioner, Indore for conciliation on

01/06/1999. During conciliation proceedings before the Presiding Officer of respondent no. 1 had accepted to reinstate the petitioner and also admitted

that they will pay the entire salary and wages. Inspite of the said undertaking given by the Presiding Officer before the Labour Commissioner, they

have not complied with the said undertaking, therefore, the petitioner again filed an application before the Assistant Labour Commissioner, Indore, on

which, notices were issued to the respondent and after hearing both the parties, the Assistant Labour Commissioner found that there is dispute exists

between the parties and therefore, vide order dated 09/02/2000, he directed to make reference, in which the petitioner filed statement of claim and the

respondent filed their reply. Learned Labour Court admitted the claim and issued notice to respondent no. 1. After serving the notice, respondent no. 1

filed reply denying the allegations made by the petitioner in the petition. However, the Labour Court, after hearing both the parties, partly allowed the

claim of the petitioner by setting aside the termination order, however, the Labour Court denied the backwages and other consequential benefits.

Being aggrieved by the said award, the petitioner has filed the present writ petition before this Court.

4 Learned counsel for the petitioner further submits that the Court below has erred in not awarding backwages and other benefits to the petitioner. He

submits that the order of termination passed by respondent no. 1 found to be illegal by the Labour Court, then in such circumstances, he is entitled to

get the benefit of backwages. That, he further submits that no reasons were assigned for his termination and after going through the findings that the

petitioner has worked for 240 days continuously, then he is certainly entitled to get the benefit of backwages. The petitioner in his statement of claim

has specifically said that he was employed during this period, therefore, respondent no. 1 has also failed to produce any documents to show that the

petitioner was not in employment during this period. In such circumstances, he submits that the petition be allowed and the impugned award, by which,

he was denied backwages, be set aside.

5 The respondent/s has filed his reply and in the reply, contention made by the petitioner in para no. 1 and 2 of the petition was denied by the

respondent. The petitioner has denied that the Accountant of respondent no. 1 had informed the petitioner that his services have been terminated.

That, the respondent in their reply has further stated that no order of termination was given to the petitioner. In fact, services of the petitioner were not

terminated. In subsequent para, the respondent submits that vide proceedings dated 16/09/1999, the respondent in conciliation had shown his

willingness to allow the petitioner to work. Thus, on the one hand, the respondent stated that services of the petitioner were not terminated and on the

other hand, has stated that in the conciliation proceedings dated 16/09/1999, the respondent has shown his willingness to allow the petitioner to work.

The respondent has further stated that the petitioner has failed to show that he had worked continuously for more than 240 days in each year. He

submits that no document has been produced by the petitioner to show that the petitioner had worked / completed more than 240 days in each year

uninterruptedly. For the sake of reference, he has further relied upon the judgment passed in the case of Gokul Raghunath Vs. Indore MalwaÂ

United Mills ( Writ Petition no.1919/1998), in which, it has been held that if despite offer of the employer, the employee does not report

for duty, then he would not be entitled to back wages. On the basis of this, learned counsel for the respondent submits that learned Labour Court has

rightly justified in not granting backwages and reinstatement. So far as preposition of law that the petitioner cannot be denied backwages on the basis

of “No Work, No Payâ€, when he was willing, is concerned, would not applicable in the present case as in the present case, the petitioner was

offered employment by the employer before Conciliation Officer, however, the petitioner failed to comply with that order and therefore, the Court

below has rightly denied backwages to the petitioner.

6 In light of the aforesaid discussions, W.P. no. 4775/2006 filed by petitioner Mohd. Yusuf stands dismissed.

C c as per rules.