1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 487 OF 2000 M/s.Shah & Shirgaonkar ... Petitioners v/s Madhukar Shripati Chopade & ors. ... Respondents Mr.Suresh S. Pakale for the petitioner. Mr.M.S.Topkar for the respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 15TH JUNE, 2010 ORAL JUDGMENT: 1. The petitioners have challenged the orders of the Labour Court as well as the Industrial Court by which they have been directed to reinstate respondent No.1 with continuity of service and to pay him back wages w.e.f. 21.7.1986 to the extent of 50%. 2. The petitioners were a partnership firm engaged in the business of execution of films. They were running two 2 theaters. The petitioners had employed respondent No.1 as a Machine Operator. Accepting the leave application submitted by respondent No.1 workmen, the petitioners granted him leave from 8.4.1986 to 12.4.1986. It appears that the respondent No.1 did not report on duty after the expiry of the leave accorded to him. According to the petitioners, respondent No.1 had voluntarily abandoned his services as he did not report for work despite a letter written by the petitioners on 19.5.1986. The respondent filed a complaint being Complaint (ULP) No.179 of 1986 before the Labour Court, alleging that he had been orally terminated from service and that while doing so the petitioners had indulged in unfair labour practices under Items 1(a), (b), (d), (f) and (g) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (in short, “the MRTU & PULP Act”). Respondent No.1 also contended in his complaint that, after expiry of his leave, which was sanctioned, he returned for duty in May 1986. However he was not permitted to work and was compelled to sit idle in the office for about three months. He was not permitted to sign the attendance register. According to respondent No.1 his services were orally terminated three months after he returned on duty. Respondent No.1 also contended that, while terminating his services, the 3 petitioners had not held any enquiry nor given him any notice nor paid him retrenchment compensation. 3. The petitioners in their written statement contended that the respondent No.1 had in fact abandoned his services and, therefore, the complaint ought to be dismissed. The petitioners admitted that the respondent No.1 was on leave from 14.4.1986 to 14.5.1986. They have further contended that he continued to be absent from 15.5.1986 without any sanctioned leave. The petitioners contended that they sent a letter dated 19.5.1986 to the complainant i.e. respondent No. 1 herein, calling upon him to report for work. They therefore pleaded that the respondent No.1 had abandoned his service. 4. Evidence of respondent No.1 and his witness i.e. a representative of the union of which respondent No.1 was a member, was recorded. The petitioners examined one of the partners of the firm. 5. On the basis of the evidence led before it, the Labour Court held that the letter dated 19.5.1986 allegedly sent by the petitioners to respondent No.1 was not proved. It further held that the other letters which were relied on by the petitioners were sent to respondent No.1 during the 4 pendency of the complaint and, therefore, would have no bearing on the facts and circumstances of his termination from service. While dealing with the letter dated 19.5.1986, the Labour Court observed that the letter was sent Under Certificate of Posting and that it did not bear the address of the complainant. The Labour Court, therefore, held that the letter was not proved as the certificate of posting was not placed on record, nor was any acknowledgment of respondent No.1 produced. The Labour Court has held that the letter did not appear to be genuine and was subsequently fabricated to create a record. After considering the evidence, the Labour Court accepted the version of respondent No.1 that he had returned for duty on 15.5.1986 and that he was refused work after which he was terminated from service orally in July, 1986. On this basis the Labour Court disbelieved the plea of the petitioners that respondent No.1 had voluntarily abandoned the duty. The Labour Court has also considered the muster roll which was produced on record which indicated that respondent No.1 was marked absent from 8.4.1985 although he was on sanctioned leave. In conclusion, the Labour Court held that the services of respondent No.1 were orally terminated on 31.7.1986 without assigning any justifiable reason. The Labour Court then observed that the mandatory provisions of Section 25-F 5 and 25-G of the Industrial Disputes Act had not been complied by the petitioners before terminating the services of respondent No.1. In these circumstances, it was held that the petitioners have engaged in unfair labour practices under Items 1(a)( b) and (f) of Schedule IV of the MRTU & PULP Act. As regards back wages, the Labour Court took into consideration the amount that respondent No.1 was earning annually from his agricultural income and directed payment of 50% of the back wages. 6. Being aggrieved by the decision of the Labour Court, both the petitioners and the respondent No.1 filed revision applications under the provisions of Section 44 of the M.R.T.U. & P.U.L.P. Act. The Industrial Court dismissed both the revision applications. 7. Mr.Pakale appearing for the petitioners contends that the orders of the Labour Court and the Industrial Court need to be interfered with as both the Courts have not followed or complied with the duties cast on them. According to the learned advocate, before concluding that the mandatory provisions of Sections 25-F and 25-G had been breached, it was necessary for the Labour Court to discuss as to how these provisions were violated. He further submits that the 6 provisions of Section 25-F and 25-G cannot be invoked when there is a dismissal order passed against a workman. According to him, respondent No.1 has taken inconsistent grounds namely of termination of service and of the breach of Sections 25-F and G. He relies on a judgment of the Supreme Court in the case of State of Punjab v/s Jagir Singh, reported in 2004 LawSuit (SC) 1130, to buttress these submissions. 8. Mr.Topkar appearing for respondent No.1 submits that the Labour Court in a well reasoned order has considered all the aspects of the matter and has concluded that the termination of respondent No.1 from service was illegal. He submits that it is now well settled that any termination from service which is not a dismissal or discharge or a termination on account of ill-health must be termed as retrenchment under Section 2(oo) of the Industrial Disputes Act. According to the learned advocate, any such termination from services must be preceded by a notice or wages in lieu of notice and the payment of retrenchment compensation. The learned advocate submits that the petitioners having failed to do so, had terminated the services of respondent No.1 with undue haste. Such a termination, according to him, would also amount to termination of service in colourable exercise of 7 employer’s rights. However, Mr.Topkar was unable to support the judgment of the Labour Court that the termination was by way of victimization. 9. The letter dated 19.5.1986 indicates that respondent No.1 was on leave from 14.4.1986 to 14.5.1986. This leave was sanctioned. The letter calls upon the respondent No.1 to report for duty on 15.5.1986 failing which the appropriate action would be taken against him. The evidence which has been accepted by both the Courts below is that respondent No.1 had returned for work on 15.5.1986 but was not assigned any duty as a machine operator and was instead made to sit in the office. He continued to do so for three months till his services were orally terminated on 31.7.1986. In these circumstances, the contention of the petitioners that, respondent No.1 had abandoned services, has rightly been rejected by both the Courts below. Further, the Labour Court has given cogent reasons for not accepting the letter dated 19.5.1986. 10. Mr.Pakale submits that the respondent workman has taken inconsistent pleas in his complaint. According to Mr.Pakale, if it is the case of the respondent that he was dismissed from service illegally, then he cannot contend that 8 he is being terminated from service with undue haste and in breach of the provisions of Section 25-F of the Industrial Disputes Act. The submission of the learned advocate for the petitioners that the pleas are inconsistent is unfounded. The respondent workman had filed a complaint under Item 1 of Schedule IV of the M.R.T.U. & P.U.L.P. Act contending that he was discharged from service without following the provisions of Section 25-F of the Industrial Disputes Act. Clause (f) of Item 1 contains two parts, firstly, that the discharge or dismissal was in utter disregard of the principles of natural justice in the conduct of a domestic enquiry. Obviously, therefore, it presupposes that a domestic enquiry was held and while conducting such a domestic enquiry, the employer had disregarded the principles of natural justice. However, the second part of clause (f) is with regard to a discharge or dismissal with undue haste. It is now well settled in view of various judgments of this Court including in the case of Executive Engineer, Electrical Divn., Nagpur v/s Prakash D. Kalasit, reported in 1985 Mh.L.J. 339, that a discharge of a workman from employment with undue haste would include his termination from service in breach of the provisions of Section 25-F of the Industrial Disputes Act. Para 15 of the aforesaid judgment reads as follows:- 9 “15. Now the words “with undue haste” which are followed by the words “in utter disregard of the principles of natural justice in the conduct of domestic enquiry” cannot be described as words of general nature so as to attract the rule of ejusdem generis. As a matter of fact, even the words preceding the words “with undue haste” are specific and not in general terms. No doubt the words “in utter disregard of the principles of natural justice in the conduct of domestic enquiry” are wide enough to cover several contingencies and will include even hasty conductance of the domestic enquiry. Legislature, therefore, never intended to repeat what was already covered by the first part of the clause. Unless a separate and distinct meaning is given to the words “with undue haste”, these words would be rendered superfluous. Hence keeping in tune with the rules of interpretation, the only possible conclusion would be that clause (f) should be given its natural meaning that it also covers the cases of dismissal and discharge which will include retrenchment effected with undue haste. “Undue haste” can be inferred if the retrenchment is resorted to by the employer without complying with the conditions precedent of giving one month’s notice or notice pay or without payment of retrenchment compensation. In the present case, the petitioners have admittedly retrenched the respondent without giving him one month’s notice or even offering him one month’s pay in lieu of notice and even without payment of retrenchment compensation on the basis of completed year of service which are conditions precedent to retrenchment. Such a hasty action on the part of the respondent is clearly covered by clause (f) of Item 1 of Schedule IV of the Maharashtra Act No.1 of 1972.” 11. Admittedly, the provisions of Section 25-F have been violated in the present case. Therefore, the question of there being any doubt that the services of the respondent workman were terminated by the employer by indulging in an unfair labour practice does not arise. Once the Labour Court had 10 held that there was a violation of the provisions of Section 25-F since no notice or wages in lieu of notice and retrenchment compensation had been tendered to the respondent workman prior to terminating the services, the corollary would be that he had been terminated from service with undue haste. Since the workman has been discharged with undue haste, the employer evidently has engaged in unfair labour practice. 11. The judgment in the case of State of Punjab (supra) cited by Mr.Pakale, is not applicable to the facts in the present case. The Labour Court in that case had held that the termination of service of the workman was contrary to the Punjab Civil Services (Punishment and Appeals) Rules, 1970. This was because he had been dismissed from service without holding an enquiry as mandated under the aforesaid Rules. The Labour Court disbelieved the plea of abandonment of service raised by the State. The Labour Court also held that the provisions of Section 25-F of the Industrial Disputes Act had been breached. In these circumstances, the Supreme Court observed that if the services of a workman are terminated by the respondent for misconduct, the question of payment of any retrenchment compensation or service of any statutory notice would not arise. The Supreme Court observed that provisions of 11 Section 25-F of the Industrial Disputes Act need not be complied when the services of the concerned workman are terminated on the ground of misconduct. 12. In the present case, the provisions of Item 1(f) of Schedule IV of the M.R.T.U. & P.U.L.P. Act are clear and unambiguous. The pleadings of the workman are not inconsistent as contended by Mr.Pakale as the provisions of the M.R.T.U. & P.U.L.P. Act allow a workman to contend that he was discharged or dismissed with undue haste. While exercising the employer’s power to terminate the respondent workman’s service, the employer i.e. the petitioners have acted in colourable exercise of their powers. Therefore, clause (b) of Item 1 of Schedule IV of the M.R.T.U. & P.U.L.P. Act would be attracted. 13. In these circumstances, the view of the Labour Court cannot be termed as either erroneous or perverse. The petition deserves to be dismissed. 14. Writ petition dismissed. Rule discharged. No order as to costs. ..... 12