1 WP-5748-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 5748 OF 2009 Walter Varulkar Partner Kalpana Art Studio ..Petitioner Vs. Vasant Pandurang Jadhav ..Respondent .... Mr. V.P.Vaidya counsel for Petitioner .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : AUGUST 4th , 2009 P.C.: 1. Heard the learned counsel for the petitioner. The case of the respondent was that he was in the employment of the petitioner. He came to be terminated. In respect of termination, a reference i.e. Reference (IDA) No. 595 of 2002 was made before the Labour Court, Mumbai. The Labour Court by award dated 27th January, 2009 allowed the reference and directed that the respondent be reinstated with continuity of service with full back wages with effect from 2nd January, 2001 i.e. date of his termination. Being aggrieved thereby, this petition has been preferred. 2 WP-5748-09 2. The learned counsel for the petitioner submitted that the Labour Court has not properly considered the fact that there was no question of termination of the services of the respondent as in fact, the respondent had resigned from his job in the petitioner-company on 2nd January, 2001 and in fact the respondent had collected the terminal benefits payable to him on account of his termination. As far as this aspect is concerned, admittedly, the resignation letter of the respondent is not on record. However, the learned counsel for the petitioner submitted that respondent had given a oral resignation. Regarding oral resignation, it is seen that there is no pleading to that effect by the petitioner in its written statement. The learned counsel for the petitioner has placed reliance on vouchers to show that the terminal benefits were indeed paid to the respondent no.1. Except one receipt, other receipts did not specify on what account amounts have been paid to the respondent. Only one receipt which is for Rs.3365/- shows on what account it is paid. The said receipt is in respect of leave salary in the year 1999-2000 and 2000-01. This receipt does not show that the amount was paid on account of the terminal benefits payable to the respondent. As observed earlier, none of other documents show that the amounts were given to the respondent by way of terminal benefits. Thus, it is seen that the learned Judge of the Labour Court has correctly observed that the petitioner failed to prove the fact that 3 WP-5748-09 respondent has resigned from his job. 3. Respondent was in service since 1994 and he was terminated in 2001. Prior to the termination, no show cause notice was given to the respondent for any alleged act of misconduct nor was any inquiry conducted before termination of his service. So also, no notice pay or retrenchment compensation was paid or offered to the respondent. In such case, the termination without following due process of law has to be set aside. 4. The learned counsel for the petitioner states that the petitioner has two establishments i.e. Kalpana Art Studio and Kalpana Graphics. He submitted that the both the firms are closed and hence, no reinstatement in respect of firms which have been closed, can be ordered by the Court. As far as the closure of business is concerned, no documents have been brought on record to show that indeed the establishment is closed. Only the bare word of witness for the petitioner cannot be relied upon to hold that infact the establishment is closed. 5. The learned counsel for the petitioner has submitted that there is no material to show that there was any employer-employee relationship between the petitioner and respondent and hence, the Labour Court could not have granted reinstatement. As far as this aspect is concerned, from the evidence on record, it appears that the petitioner 4 WP-5748-09 has admitted that the respondent was an employee of the petitioner however, it is their case that the respondent had infact resigned and he was not terminated. In view of the categorical stand taken that the Respondent had resigned from their employment, it can be said that there is employer-employee relationship between the petitioner and respondent. 6. In view of these facts that there was no material to show that the respondent had infact resigned and looking to the fact that there was no show cause notice or inquiry before the termination, the directions issued to the petitioner to reinstate the respondent with continuity of service with 50% back wages, cannot be faulted. No case is made out for interference. Writ petition is dismissed. [ SMT.V.K.TAHILRAMANI,J.]