-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2085 OF 1997 P.B. Phadke, carrying on business in the ) name and style of T. Vikram Electricals, ) as the sole Proprietor thereof having its office and ) workshop at Plot no. 1A/4A/6A, Kondhawa Khurd, ) Pune-411 040 )..Petitioner versus Dnyaneshwar Pilaji Erankar, residing at S. No. 130, ) Dandekar Bridge Lane, Op. Ramkrishna Aashram, ) Pune and also at 357 Shanivar Peth, ) Pune-411 040 )..Respondent CORAM: P.B. MAJMUDAR, J. DATE: JULY 14, 2008. ORAL JUDGMENT By filing this petition, the petitioner has challenged the award passed by the Presiding Officer, First Labour Court, Pune dated 24th October, 1996 in Reference (IDA) No. 54 of 1989. By the aforesaid award, the Labour Court has allowed the reference of the respondent-workman and the petitioner was directed to reinstate the respondent on his original post with continuity of service and full back wages. 2. Initially for six months the respondent was appointed as a -2- Helper. Thereafter his services were discontinued. The respondent workman raised an industrial dispute on the ground that the services of the respondent have been terminated illegally with effect from 3rd August, 1989 and that he should be reinstated in service with full back wages. The said dispute was referred to the Presiding Officer, First labour Court, Pune, and the same was numbered as Reference (IDA) No. 54 of 1989. It is the case of the respondent that he was appointed as a Fabricator Wireman since 11th January, 1986 and that his services were orally terminated by the management on 1st January, 1988. The reference was resisted by the petitioner who was the first party before the Labour Court by filing written statement. According to the petitioner, the respondent was employed in his capacity as a Helper and that on his own accord he abandoned the employment with effect from 3rd August, 1988. Even though letters were sent by the management asking the respondent to join the duty, he did not respond to it. Before the Labour Court it was the case of the present petitioner that the respondent had no intention to resume duty with the petitioner and, therefore, the reference was required to be dismissed. 3. The Labour Court framed various issues at Exh. 22 . The Labour Court after considering the evidence on record came to the conclusion that the management has illegally terminated the services of the respondent and that he is entitled to full back wages for the intervening period. It is the -3- aforesaid order which is impugned in this petition at the instance of the petitioner-management. 4. Mr. Gosavi, learned counsel appearing for the petitioner, vehemently submitted that the respondent himself had left the services on his own accord and, therefore, the Labour Court has committed an error in passing the order of reinstatement with full back wages in his favour. It is submitted by the learned counsel that the management had written various letters to the concerned workman asking him to resume duty but he had failed to resume the duty. It is submitted that even during the pendency of this petition, various letters have been sent asking the respondent to join duty but he has not responded to the same. One such letter is annexed at Exhibit-J, at page 40 of the paper book. 5. Nobody is present on behalf of the respondent-workman. I have heard the learned counsel for the petitioner and have gone through the order passed by the Presiding Officer, First Labour Court, Pune as well as the petition. 6. It is required to be noted that the order of reinstatement passed by the First Labour Court dated 24th October, 1996 has not been stayed by this Court while admitting the petition and the petition is admitted only in -4- connection with the back wages. The learned counsel for the petitioner submitted that in view of this, the petitioner had shown his willingness to reinstate the respondent in compliance with the order of the Labour Court but the respondent has not bothered to join duty thereafter. In this connection, my attention is invited to the letter dated 6th March, 1997 written by the petitioner which is at page 40 of the paper book asking the respondent to resume duty . Thus the petitioner has shown his willingness to comply with the order of reinstatement. As pointed out by the learned Advocate, the only question which requires consideration is as to whether the Labour Court was justified in passing the order of back wages in favour of the respondent. After the order of the Labour Court, if the respondent has not joined the services, the management can act accordingly but that point is not required to be examined in this petition as this Court is required to consider whether the Labour Court has committed an error in passing the impugned order. 7. So far as the present order is concerned, the Labour Court has found that the letters were written by the management earlier on 7th December, 1990 and 7th January, 1991 after the Labour Court had decided the reference ex parte against the management. The Labour Court while considering the material on record found that it cannot be said that the workman had voluntarily abandoned the services. The Labour Court accordingly found that the concerned workman had not abandoned the -5- services on his own. Since the management thereafter accepted the order of reinstatement by asking the concerned workman to resume his duty, this Court would not like to interfere with the said finding of fact recorded by the Labour Court regarding the order of reinstatement passed in favour of the workman. As stated earlier, if the respondent has not joined the duties on his own, it is for the management to act on that basis in accordance with law against him. However, the point which requires consideration is as to whether the concerned workman was entitled to full back wages as awarded by the Labour Court. In this connection, it is required to be noted that the concerned workman has admitted in his evidence that he was plying a rickshaw occasionally and earns some amount. The learned counsel for the petitioner submitted that even the concerned workman was working as a contractor and earning sufficiently. The Labour Court also considered the factual aspect to the effect that the workman was holding a driving licence of a auto rickshaw and was also plying rickshaw. In spite of that, the Labour Court has come to the conclusion that the employer has not led evidence to the effect that the respondent was in gainful employment. Once it has come in evidence that the workman was plying the rickshaw, it was not for the management to lead further evidence as the details regarding income from such avocation was available with the workman. It is also required to be noted that in spite of the fact that the management wrote various letters even in the years 1990 and 1991 which has also taken into consideration by the -6- Labour Court at paragraph 7 of the order, the respondent had not tried to resume his duty. Even after the award of the Labour Court, letters have been written by the management. A copy of one such letters is annexed at page 40 of the paper book by which the respondent was asked to resume duty. In spite of the efforts made by the management, the respondent has never tried to resume his duty. 8. Considering the aforesaid piece of evidence, the Labour Court has committed an apparent error in holding that the management has failed to lead evidence that the respondent was in gainful employment. As pointed out earlier, it is not in dispute that the respondent was holding a valid rickshaw driving licence. He himself has admitted that he was driving rickshaw occasionally coupled with the fact that since the management in 1990 and 1991 had written him letters to resume duty, yet he failed to do so. Attempt of the management continued even in the year 1997 by asking the respondent to resume duty. An employee who is in dire need of employment would immediately report for duty. The aforesaid factual aspect itself shows that the respondent was not in need of employment or in any case he was well placed monetarily otherwise naturally he would have responded to the request of the management to join duty. It is not therefore possible to believe that for all these years, the respondent was not having adequate financial resources to sustain himself. The Labour Court has failed to -7- consider this aspect before passing the order of back wages in a casual manner. Considering the said material on record, this is not a fit case in which back wages should have been granted to the respondent as in the years 1990 and 1991 the management had asked the respondent to resume duty but he failed to do the same. Considering the aforesaid aspect though the order of reinstatement is confirmed, the order granting back wages is set aside. 9. The writ petition is allowed to the aforesaid extent by setting aside of the order of payment of back wages only. Rule is accordingly partly made absolute with no order as to costs. P.B. MAJMUDAR, J.