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Judgment
Z.A. Haq, J—Heard Shri K.S. Narwade, learned Advocate for the petitioner-employer, Shri K.L. Dharmadhikari, learned Assistant Government Pleader for the respondent No. 1 and Shri V.G. Wankhade, learned Advocate for the respondent No. 2-employee.
The petitioner-employer has filed this petition challenging the orders passed by the subordinate Courts upholding the claim of the respondent No. 2-employee that the termination order is illegal and he is entitled for reinstatement with continuity of service and back wages. The petition was dismissed for want of prosecution, however it is restored by the order dated 04-08-2015 and taken up for hearing.
The respondent No. 2-employee filed complaint before the Labour Court under Section 28 read with Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, contending that initially he was engaged on daily wages as Peon, on wages of Rs. 5/- per day and subsequently from 01-07-1986 the petitioner-employer started paying wages in the scale of Rs. 200 plus D.A., the total emoluments being Rs. 620/- per month. The employee contended that he was performing the duties of Watchman/Gateman. It is the case of the employee that the Director of the factory and his father had asked the employee to do household duties which he refused and being annoyed by it, the employer terminated the services of the employee on 31-05-1998. The employee contended that the termination notice was illegal being in violation of the provisions of Section 25-F and Section 25-G of the Industrial Disputes Act, 1947.
The employer opposed the claim of the employee. It is the case of the employer that because of non-availability of raw cotton there was reduction in availability of work and the employer was required to terminate the services of other employees also alongwith the respondent No. 2. The employer contended that the services of the employee were terminated after complying with the requirements of the provisions of Section 25-F and Section 25-G of the Industrial Disputes Act, 1947.
The Labour Court recorded that the employee proved that his services were terminated illegally, that the employer indulged in unfair labour practice, however, the complaint filed by the employee was dismissed on the ground that Mr. Khandeliya and Mr. Vinod Bhartiya, who were running the factory on lease, were not impleaded as party to the complaint.
The employee being aggrieved by the dismissal of the complaint by the Labour Court, had field revision which came to be allowed by the Industrial Court. The petitioner-employer being aggrieved in the matter, has filed this writ petition.
This Court while issuing notice, by the order dated 06-11-2003 had granted ad-interim stay to the effect, operation and execution of the impugned order. This Court, by the order dated 29-11-2005, directed the petitioner to deposit Rs. 75,000/- which amount was deposited by the petitioner and the respondent No. 2 is permitted to withdraw that amount on furnishing security to the satisfaction of this Court.
It is undisputed that the factory is closed since 2002. The Labour Court has recorded that the mandatory requirements of Section 25-F(b) of the Industrial Disputes Act are not complied by the petitioner while terminating the services of the respondent No. 2. The Labour Court has exhaustively dealt with the pleadings, the documents and the evidence on the record and has recorded its findings in para No. 15 of the order as follows :
"15. The learned advocate for the respondent has argued that no employer will pay the amount of gratuity alongwith termination notice. Mr. Shrimali, the learned advocate for the respondent has urged that due to mistake, it was wrongly written as gratuity in termination notice Exh.38 in place of retrenchment compensation. However, amount of gratuity and the amount of retrenchment compensation was same and hence it was deposited on 13-3-1999 in the Court. Salary of May 1998 was paid in advance and this shows bonafides. The respondent did not commit any wrong by paying the salary of May 1998 in advance. Mr. Shrimali, the learned advocate for the respondent has further submitted that the complainant did not examine Mr. Godbole who was the best available witness for him. The aforesaid ruling cited supra by the respondent in the case of Parry''s (Cal) Employees'' Union and Another Vs. Third Industrial Tribunal and Others, (2001) 89 FLR 192 : (2001) 2 LLJ 39 will not prevail in view of ruling in the case of Tata Consulting Engineers vs. Valsala K. Nair (Ms.) and Ors. reported in 1998(1) Bom.L.C. Page No. 83. The mistake of not paying the retrenchment compensation came to the notice of the respondent after ten months and fifteen days from the date of termination notice dt. 29-04-1998 and hence the said amount was deposited in the Court. According to the respondent, the word ''gratuity'' was wrongly mentioned in Exh.38. It was for the respondent to issue the corrigendum. However, the respondent has failed to do so for the reasons best known to it. On reading of termination notice Exh.38, it is crystal clear that there is violation of Section 25-F(b) of Industrial Disputes Act. The complainant has proved that his services were illegally terminated by the respondent on 29-04-1998. I, therefore, answer Issue No. 1 in affirmative."
The Industrial Court refused to examine the legality of the findings recorded by the Labour Court against the petitioner, as the revision was filed by the respondent No. 2. Be that as it may, the learned Advocate for the petitioner has not been able to show that the findings recorded by the Labour Court suffer from any patent illegality or perversity. The petitioner has not been able to point out that any material evidence has not been considered by the Labour Court. In these facts, the findings recorded by the subordinate Courts that the termination order is unsustainable, cannot be faulted with.
As the factory is undisputedly closed in 2002, there cannot be an order directing the petitioner to reinstate the respondent No. 2. Shri V.G. Wankhade, learned Advocate for the respondent No. 2 has submitted that the respondent No. 2 is entitled for the entire back wages. In support of the submission, the learned Advocate for the respondent No. 2 has relied on the following judgments :
(i) Judgment given by the Hon''ble Supreme Court in the case of Mackinon Mackenzie and Company Ltd. Vs. Mackinnon Employees UnionAIR 2015 SC 1373 : (2015) 145 FLR 184 : (2015) LabIC 1645 : (2015) 2 LLJ 151 : (2015) 2 LLN 279 : (2015) LLR 337 : (2015) 2 SCALE 707 : (2015) 4 SCC 544 : (2015) 3 SCJ 512 .
(ii) Judgment given by the Hon''ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 6 ABR 304 : (2013) 10 AD 89 : (2013) 139 FLR 541 : (2013) LabIC 4249 : (2013) 4 LLN 417 : (2013) 11 SCALE 268 : (2013) 10 SCC 324 : (2013) 4 SCT 716 .
However, the learned Advocate has not been able to point out from the record that the respondent No. 2 has discharged the preliminary burden by pleading that he was not gainfully employed during the period he was not in the employment of the petitioner after his services were terminated. In view of these facts, the submissions made on behalf of the respondent No. 2 relying on the judgments referred above are not of any assistance to him.
Shri K.S. Narwade, learned Advocate for the petitioner has pointed out that the respondent No. 2 has received an amount of Rs. 24,514/- towards retrenchment compensation. In addition, the respondent No. 2 has received the amount of Rs. 75,000/- which was deposited by the petitioner as per the order dated 29-11-2005. The respondent No. 2 has stated in his evidence that he was getting Rs. 620/- per month. Considering the amount of wages which was received by the respondent No. 2 at the time of termination of his services and the facts on the record, in my view, the interests of justice would be sub-served by directing the petitioner to pay additional amount of Rs. 75,000/- towards full and final settlement of the claim of the respondent No. 2. The petitioner shall pay the amount of Rs. 75,000/- to the respondent No. 2 by demand draft till 30-09-2015. If the petitioner fails to pay the amount to the respondent No. 2 till 30-09-2015, the respondent No. 2 will be entitled for interest on the amount of Rs. 75,000/- at the rate of 9% per annum, the interest being chargeable from 01-08-2003 i.e. the date of the order passed by the Industrial Court.
Hence, the following order :
The impugned order is modified in the above terms. The writ petition is partly allowed. In the circumstances, the parties to bear their own costs.