bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 3700 OF 1997 PETITION NO. 3700 OF 1997 PETITION NO. 3700 OF 1997 Pandurang Vishnu Sandage & ors. ... Petitioners v/s The State of Maharashtra & ors. ... Respondents Mr.Avinath H. Fatangare i/by Mr.Kiran S. Bapat for the petitioners. None for the respondents. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 29TH JULY, 2008 29TH JULY, 2008 29TH JULY, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petition challenges the order dated 30.12.1996 which denies the petitioners’ 75% of the back wages while granting reinstatement with continuity of service. 2. The petitioners were in the employment of the Irrigation Department of the 1st respondent. By an order dated 30.6.1985, the respondents 1 and 2 (hereinafter referred to as the respondents) terminated the services of the employees by a circular dated 12.9.1984. Aggrieved by this decision, the Union namely - Sarva Shramik Sangh, representing the workmen, preferred a writ petition bearing No.2699 of 1992 2 against the order of termination before this Court. The writ petition was rejected and, therefore, the Union preferred a Special Leave Petition in the Supreme Court. By an order dated 11.11.1996, the Supreme Court held that the petitioners and other workmen were not Government servants and, therefore, they could raise an industrial dispute. Accordingly, an industrial dispute was raised on behalf of the petitioners and referred for adjudication before the Labour Court, Sangli. On 30.12.1996, the Labour Court has passed the impugned award granting reinstatement with continuity of service and 25% of back wages payable to the workmen from 30.8.1985. 3. The main contention raised on behalf of the petitioner is that the Labour Court has incorrectly withheld the payment of 75% of the back wages to the workmen and also that the only reason given by the Labour Court for denying full back wages is the delay in approaching the Labour Court. The learned advocate for the petitioners submits that, after the termination of services of the workmen in 1985 till a reference was obtained for adjudication of the dispute before the Labour Court in 1992, the Union was prosecuting the grievance of the workmen in this Court as well as before the Supreme Court. It was only after the Supreme Court 3 held that the workmen should raise an industrial dispute that a reference was sought. He also submits that the employer has not led any evidence to support its case that a part of the back wages should not be paid to the workmen. He submits that, once the Court concludes that the termination was illegal, back wages must follow as a normal rule. He, therefore, urges that all the workmen should be paid full back wages. 4. On scanning the award of the Labour Court, I find that the Labour Court has not considered the fact that petitioners’ grievance was being prosecuted by their Union on their behalf in the High Court as well as in the Supreme Court and after 1986 the Supreme Court has held that an industrial dispute ought to be raised and that reference was obtained in 1992. These factors have not been taken into account by the Labour Court while denying full back wages to the workmen. In fact, the Labour Court, after observing that 3 out of the 10 employees had deposed in the matter regarding their non-employment after having been terminated from service in 1985, has not considered the fact that the respondent employer has not bothered to rebut this evidence. The Labour Court has denied 75% back wages to all the workmen irrespective of whether they had deposed before the Court regarding their unemployment. 4 5. In my view, therefore, it would be appropriate to remand the matter to the Labour Court for a fresh hearing regarding the back wages only. 6. The award of the Labour Court in respect of the reinstatement which has been granted with continuity of service, has not been challenged by the employer and, therefore, is confirmed. 7. Reference (IDA) Nos.37 to 45 of 1991 and 1 of 1992 are remanded to the Presiding Officer, Labour Court, Sangli, for being decided afresh only on the question of back wages payable to the workmen after their dismissal. 8. Both, the workmen and the employer can lead additional evidence, oral and/or documentary, if they so desire. The Labour Court will consider the pleadings of the parties, evidence already on record and any additional evidence led while deciding the issue of payment of back wages. 9. The Labour Court shall dispose of the references within three months from today. 10. Rule made absolute. Writ petition allowed.