1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.962 OF 2008 Manhar Mills Pvt.Ltd. .. Petitioner Versus Prakash Narayan Rajbhar & Anr. .. Respondents Mr.Cama, Senior Advocate with Mr.Yusuf Iqbal, Mrs.Annee Mehta, Mr.Nevile Majra and Sanchari Nandi i/b.Yusuf & Co. for petitioner Mr.N.M.Ganguli for respondent No.1 CORAM : S.C.DHARMADHIKARI, J. DATE : 8th July 2008 ORAL JUDGEMENT:- . Rule. Mr.Ganguli waives service for respondent No.1. Notice to other respondents 2 dispensed with. 2. The petitioner employer is aggrieved by the limited order of the Industrial Court allowing the appeal of respondent No.1 and modifying the order of the labour court to the extent that respondent No.1 is entitled to full backwages upon reinstatement in service. 3. Mr.Cama, learned Senior Counsel submits that the petitioner establishment is not challenging the order directing reinstatement of the workman in the employment of petitioner. It is aggrieved by that part of the order of the Industrial Court whereby the appeal of the first respondent has been allowed and full backwages have been awarded to him, in addition to reinstatement in service. 4. The Appeal (IC) 93 of 2004 was preferred by the first respondent, aggrieved and 3 dissatisfied with the order of the 8th Labour Court, Mumbai in Application B.I.R. No.65 of 1991. The appeal was preferred under section 84 of B.I.R. Act, 1946. For the purpose of the present petition, it is assumed that the workman could have appealed from that part of the order of the labour court where he has been denied the backwages. Therefore, this Court is proceeding on the basis that the appeal of the workman was maintainable. 5. Grievance of the workman was that he was working as Weaver since 1961 and his services have been terminated by a letter from 2nd March 1991. He preferred an application alleging that the termination is wrongful and that he is entitled to reinstatement with full backwages. 6. This claim was opposed by the petitioner and it sought rejection of the application. The issues have been framed and after parties were 4 allowed to lead evidence, the 8th labour court by the final order concluded that the workman has made out the case for reinstatement in service as his termination was wrongful and illegal but he cannot be awarded any backwages. The first respondent, therefore, approached the Member Industrial Court in Appeal which has been allowed by the impugned order. 7. The argument before the lower appellate court was that the petitioner had terminated the respondent wrongfully. That the termination being found to be illegal and wrongful, the normal rule of reinstatement with full backwages must follow. There are no exceptional circumstances placed on record to depart from this normal rule. That it is not open for the employer to urge that omission to frame an issue by labour court with regard to backwages would mean that either the labour court cannot award the claim for backwages or that the lower 5 appellate court in appeal must necessarily reverse that direction. Depending upon the facts and circumstances placed on record, the labour court’s omission to frame that issue is not fatal and the claims could have been awarded in toto. 8. The employer contended on the other hand that only issue that the labour court framed was whether the workman was entitled to the reliefs claimed. That does not mean that the claim for backwages is implicitly put in issue. Assuming that the termination is wrongful and illegal and that factum is proved, yet, the labour court must address itself as to whether the claim for backwages must follow or that a departure is necessitated. That would mean that the parties must get an opportunity to place their cases before the labour court and it must apply its mind as to whether any case for departure from the settled principle is made out or that the normal rule should apply. That would only be 6 possible if both sides are aware of the issue with regard to backwages. It was contended that the labour court had not awarded any backwages. Once the labour court order is assailed on this ground, then, in the peculiar facts of this case, remand was normal rule that could have been applied. That having not been applied, the impugned order is vitiated. 9. When this matter was placed before me for admission I had directed issuance of notice, after recording statement of Mr.Cama that a sum of Rs.2.50 lakhs will be deposited in this Court. Upon deposit, this petition was placed before me and by consent of parties, I have taken it up for hearing. 10. Having perused the order of the Industrial Court, more particularly paras 12 to 14 thereof, I am of the view that the Industrial Court while wholly reversing the order of the 7 labour court and awarding full backwages, should have granted opportunity to petitioner - employer to put forward its case before the labour court. For that event to take place either the Industrial Court should have itself granted this liberty or that the matter should have been remitted to the labour court. From a reading of these paras, it does not appear to me that the industrial court has gone through the entire material. It has accepted the case of the employer on the basis that his claim has not been disputed. The only reasoning is that whatever the employees stated before the labour court has not been rebutted. Mr.Cama has invited my attention to the order of the labour court and has contended that even in the labour court’s order no reference could be found to be material and more particularly that with regard to the claim for backwages. Instead the claim for backwages has been denied. 8 11. In such circumstances, in my view, remand would meet the ends of justice. More so, when the petitioner has shown its bonafide and deposited substantial amount. In such circumstances and when the labour court can be directed to decide the limited issue expeditiously, following order would meet the ends of justice. 12. Rule is made absolute in terms of prayer clause (a), inasmuch as Industrial Court’s order granting full backwages to the first respondent by allowing his appeal I.C.No.93 of 2004 is quashed and set aside. 13. The Amount which is deposited in this Court should be made over to the appropriate labour court to which the matter stands remitted. The matter will now stand remitted to the appropriate labour court only for determination of the issue as to whether first respondent has 9 made out a case for full backwages being granted to him in application B.I.R. 65 of 1991. The labour court should address itself to this aspect after framing the issue in that behalf and permitting both sides to place such materials on record as are permissible in law. It should render its decision expeditiously and in any event, within three months from the date of receipt of this order. The labour court should decide the issue uninfluenced by earlier order on the aspect of backwages so also without being influenced by the observations of the industrial court in the impugned order which has been quashed and set aside. All contentions of both sides are kept open. Rule is made absolute accordingly. No costs. (S.C.Dharmadhikari, J)