1 W.P.442.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.442 OF 1993 Dhamori Vividh Karyakari Seva Sahakari Society Ltd., at Dhamori,Tq.Kopargaon, District Ahmednagar. ... PETITIONER V E R S U S Shankarrao Sakharam Pawar At and post Bet Kopargaon, Ta. Kopargaon, Dist. Ahmednagar. ... RESPONDENT ... Mr. S.S.Kulkarni,Advocate holding for Mr. S.D.Kulkarni,Advocate for Petitioner ... CORAM : V.R.KINGAONKAR, J. DATE : 6TH MAY, 2010. ORAL JUDGMENT : 1. By this petition, the petitioner challenges the Award rendered by the learned Presiding Officer, 2nd Labour Court at Ahmednagar in the Reference (IDA No.9 of 1980). The Labour Court allowed the Reference and directed reinstatement of the respondent in service w.e.f. 15.8.1978 with continuity of service and back wages excluding the claim of wages from 01.10.1978 to 28.2.1982, Hence, the petitioner has preferred this petition. 2 W.P.442.93 2. There is no dispute about fact that the respondent was employed with petitioner. The petitioner is a specified Co-operative society and was running a cloth shop. The respondent was Salesman employed by the petitioner w.e.f. 25.11.1968. He worked with the petitioner, in the cloth shop uptill 14th August 1978. 3. The respondent sought Reference under section 10 (1) read with section 12(5) of the Industrial Disputes Act, 1947 alleging that he was illegally terminated by the petitioner on 14.08.1978. His case before the Labour Court was that though he had resigned from service by submitting resignation letter dated 03.05.1976, yet he was allowed to continue in the service without accepting resignation. He contended that by misusing the resignation letter, all of a sudden, he was shunted out from the service without holding any enquiry. He was not paid any compensation in lieu of the notice, nor any notice was served on him before the alleged termination. He was not paid retrenchment compensation. Consequently, he moved the Assistant Charity Commissioner of Labour. An attempt was made for reconciliation. The reconciliation process was fizzled out. Hence, the 3 W.P.442.93 Reference was made to the Labour Court. The Labour Court found that the termination was illegal and that the respondent was ousted from service when the petitioner found it convenient to do so. Consequently, the Reference was allowed. 4. Heard learned counsel for the petitioner. 5. None appeared for the respondent. 6. I have carefully gone through the relevant record and the reasons ascribed by the Labour Court. 7. The question involved in this petition is, “whether the respondent voluntarily resigned the service and as such there was no termination of his services in the eye of law”. It is important to note that the respondent submitted his resignation letter on 3rd May 1976. The copy of the resignation letter indicated that he has expressed his inability to continue with work as Salesman due to old age. There is no verification of the resignation letter. Nobody verified whether cause shown in the resignation letter was genuine and true and there is absolutely no evidence on record to show that the respondent was 4 W.P.442.93 physically incapable to continue the work assigned to him. It is of common knowledge that the work of salesman in cloth shop does not involve much physical activity, which would require him to toil for hours together. There is no iota of evidence on record to show that the respondent was in the state of senility. 8. The Labour Court noticed that for about couple of years, no action was taken, though there was resolution dated 14th September, 1976, whereby the petitioner decided to accept the resignation of the respondent. What appears from the record is that though such resolution was passed within reasonable time, after respondent had given his resignation letter, yet he was allowed to continue in the service for about couple of years, without acting upon the resolution dated 14th September, 1976. The cross examination of the witness examined by the petitioner, namely Shri Karbhari Wani revealed that such earlier resolution dated 14th September, 1976 was given go-bye. It appears from the record that in the month of August, 1978 there was a complaint made against the respondent that he was giving delivery of more cloth for less value and was collecting extra money from the customers, outside the 5 W.P.442.93 premises of the shop and thereby the petitioner was being put to losses. The petitioner, thereafter, decided to act on the earlier resolution and for such purpose adopted second resolution dated 10.08.1978. In other words, the second resolution was rendered only to skip regular procedure of enquiry and procedure required for legal termination of the respondent. Under these circumstances, the Labour Court rightly held that the termination is bad in law. The finding of fact is based on material which was placed on record. In my opinion, such finding does not call for any interference. 9. The respondent was gainfully employee after his termination. It has come on record that from 14.8.1978 till 1st October, 1978 he was employed. He was further gainfully employed for a period of 28.2.1982 till 1992 . He was working with co-operative society till 28th February, 1985. The respondent seems to have crossed the age of superannuation. Considering the intervening development and conduct of the respondent, he will not be entitled to claim reinstatement and it is difficult to express any practical out come of such order. 6 W.P.442.93 10. Taking over all view of the matter, in my opinion, the respondent would be entitled to claim only 25% of the back wages for the period excluding the period from 01.10.1978 to 28.2.1982. The final order rendered by the Labour Court will have to be suitably modified. The following order would meet the ends of justice. “The petition is dismissed with no order as to costs. The final order rendered by the Labour Court is modified: “instead of reinstatement of the respondent, he shall be paid 25% back wages from 15.8.1978 till 01.10.1978 and from 29.02.1982 till the date of his superannuation. The petition is accordingly disposed of”. Sd/- ( V.R.KINGAONKAR ) JUDGE MTK 7 W.P.442.93