=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.786 NO.786 NO.786 OF 2004 OF 2004 OF 2004 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2595 OF 2001 NO.2595 OF 2001 NO.2595 OF 2001 N.T.C. (S.M.) Ltd. ...Appellants v/s Maulana Suleman Shaikh Pathan ...Respondent Ms Meena Doshi for Appellants. Mr P.M. Patel for Respondent. CORAM CORAM CORAM : : : D.K. DESHMUKH AND A.A. SAYED JJ. D.K. DESHMUKH AND A.A. SAYED JJ. D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 31ST MARCH 2009 31ST MARCH 2009 31ST MARCH 2009 =2= P.C. :- 1. By this appeal, the appellants challenge the order dated 4th August 2004 passed in writ petition No.2595 of 2001. That writ petition was filed by the present respondent challenging the order dated 20th July 2001 passed by the Industrial Court, Mumbai in appeal No.24 of 2001. That appeal was also filed by the respondent challenging the order dated 13th March 2001 passed by the Labour Court in application (BIR) No.39 of 1992. That application was also filed by the present respondent under sections 78 and 79 read with sections 48 and 107 of the Bombay Industrial Relations Act 1946. It was the case of the respondent that he was in the services of the predecessor-in-title of the appellants and that his services were illegally terminated on 4th October 1991. He submitted that he had proceeded on leave due to his sickness from 11th January 1991 to 3rd October 1991. On 4th October 1991 he reported for work but he was not permitted to join. It was also his case that he submitted a fitness certificate for joining the services. Before the Labour Court, the respondent examined himself as witness and one witness was examined on behalf of the respondent in the application. The Labour Court, after considering material on record, came to the conclusion that no fault can be found with the =3= termination of the services of the applicant, therefore the application was rejected. The respondent feeling aggrieved by that order, filed appeal before the Industrial Court which was appeal No.24 of 2001. By order dated 20th July 2001 that appeal was also dismissed. Against these concurrent orders, writ petition No.2595 of 2001 was filed by the respondent. That petition was decided by order dated 4th August 2004. The learned Single Judge held that after having issued show-cause notice for holding departmental enquiry against the respondent, the appellants could not have issued a letter asking him to join within 48 hours otherwise his services shall be treated as abandoned by him. The learned Single Judge therefore holding termination to be illegal directed the appellants to pay full amount of back wages for the period from 1st September 1991 to 27th March 2004. The appellants are in appeal against this order. 2. The learned counsel appearing for appellants submits that even if it is assumed for the sake of argument that the services of the respondent were terminated by a simpliciter order of termination without giving him any notice for misconduct, according to her, in view of the law laid down by the Supreme Court in its judgment in the case of The Workmen of M/s Firestone Tyre and Rubber Co. of India P.Ltd. v/s The Management =4= and others, reported in AIR 1973 SC 1227, the employer will have to be given an opportunity to prove the misconduct. The misconduct alleged against the respondent was that he remained absent from duty without submitting any application for leave and without getting leave sanctioned right from 11th January 1991 till he allegedly reported for work on 3rd October 1991. The learned counsel submits that it is an admitted position that the respondent was not on duty from 11th January 1991 till 3rd October 1991. It is also an admitted position that he did not submit any written application for proceeding on leave and did not get his leave sanctioned. He claimed that he could not attend duty because he was sick but there is no evidence on record to substantiate that case. He claimed that he had reported on duty on 3rd October 1991 with fitness certificate from doctor, but perusal of the evidence of appellants’ witness shows that not even suggestion was given to the witness in that regard. The learned counsel submits that after having found by the learned Single Judge that the services of the respondent were terminated for misconduct, the learned Single Judge should have perused the evidence on record to see whether the misconduct alleged against the respondent is established or not. The learned counsel submits that the learned Single Judge was entertaining a petition under Article 226 of the Constitution of India and =5= therefore, unless the record demonstrates that the order has resulted in injustice, interference at the hands of the learned Single Judge in its extraordinary jurisdiction was not called for. The learned counsel appearing for respondent, on the other hand, submits that the learned Single Judge was justified in interfering with the order passed by the two Courts below. According to him, the notice issued to the respondent No.2 was not served. Only because of his failure to report for duty within 48 hours of the notice, his services have been terminated. The learned counsel further supported the order passed by the learned Single Judge wherein the learned Single Judge has held that in view of the issuance of the charge-sheet on the allegation that the respondent has remained absent without getting his leave sanctioned, the services could not have been terminated by treating that the respondent has abandoned his services. 3. Now perusal of the record in the light of these rival submissions shows that what the learned Single Judge was considering was a petition filed under Article 226 of the Constitution of India. It is settled law that the High Court does not interfere with orders challenged before it even if it finds that the order is illegal, if the Court comes to the conclusion that justice has ben done between the parties by the order. =6= In our opinion therefore, the learned Single Judge should have held an enquiry to find out whether there is material available on record to establish the misconduct for which the services of the respondent have been terminated. Perusal of the record shows that the misconduct alleged against the respondent was unauthorised absence from duty, without getting his leave sanctioned, without even submitting leave application for months together. The case of the respondent was that he had to proceed on leave because of his illness. However, it is common ground that there is no evidence on record which will show that the respondent was ill during that period and was not in a position to attend duties. The respondent has produced zerox copy of the medical certificate. In his examination-in-chief, he stated that he is going to examine the doctor, but no doctor was examined, original medical certificate was never produced and no other evidence like prescription for medicines, investigation reports etc. was produced to establish that the respondent was really sick during that period. The position of record is that admittedly the respondent was absent from duty. Admittedly, he did not submit any application for leave, there was no sanction to the leave and there is no evidence on record to prove that he was ill as claimed by him. In our opinion therefore, on the record that was available before the Court, the =7= misconduct alleged against the respondent was clearly proved. In the face of such record, in our opinion, the learned Single Judge was not justified in disturbing concurrent findings recorded by the two Courts below. In our opinion, there is one more aspect that is relevant for setting aside the order passed by the learned Single Judge. The learned Single Judge has declined to grant reinstatement in service because the establishment was closed but directed to pay back wages from 1st September 1991 to 27th March 2004. The learned Single Judge has not said a word on the question whether the respondent was gainfully employed elsewhere during this period or not. Making an order of payment of full back wages without holding any enquiry, without referring to material available on record in that regard, in our opinion, was not at all justified. We tried to find out whether the respondent has placed any material on record to show that he was not gainfully employed during this period. Perusal of the examination-in-chief of the respondent shows that he does not even claim that he was not gainfully employed during the aforesaid period. Perusal of the cross-examination however shows that he has stated that he was not employed during the period and that he did not get the work, however, he has not led any evidence, either oral or documentary, to show what attempts were made by him to secure employment. Further, in the =8= examination-in-chief, no statement is made in that regard and there is no evidence on record either oral or documentary, to show what attempts were made by him to secure employment. Therefore, in our opinion, the learned Single Judge was not at all justified in making an order for payment of full back wages. Really speaking, in our opinion, as the misconduct of the respondent is clearly established on record, it was not a fit case where the learned Single Judge should have interfered with the concurrent findings recorded by the Courts below. In the result, appeal succeeds and is allowed, the order passed by the learned Single Judge is set aside, the amount, which lies in deposit in this Court because of the interim order passed by this Court, shall be refunded with accruals to the appellants. The amount which has been permitted to be withdrawn by the respondent by way of interim orders shall be brought back by the respondent within four weeks from today. Appeal is disposed off with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)