1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.734 OF 2003 Kalyan Ayukta, Maharashtra Kamgar Kalyan Mandal & Anr. ...Petitioners. Vs. Shri Tanaji Dnyanoba Kedari. ...Respondent. .... Mr. C.J. Sawant, Senior Advocate with Mr.V. C. Ghosalkar for the Petitioners. Mr. S. A. Sawant with Mr.Samir Sunananda for the Respondent. ..... CORAM :DR.D.Y.CHANDRACHUD, J. April 28, 2008. P.C.: The Respondent was employed on 13th April 1981 as a Mali-cum-Chowkidar on a permanent basis. The Petitioner before the Court is the Maharashtra Labour Welfare Board. A complaint of unfair labour practices was instituted by the Respondent under items 1(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, before the Labour Court at Pune, the 2 Respondent being aggrieved by the termination of his services. The complaint was allowed by the Labour Court which ordered the Petitioner to reinstate the Respondent with full back wages and continuity of service. The order of the Labour Court was upheld in revision on 16th October 2002. From the material on record of the Labour Court, it has emerged that the workman had applied for leave from 7th October 1992 to 6th November 1992. The workman remained absent without leave being sanctioned. By a letter dated 10th November 1992, the workman had once again applied for leave from 7th November 1992 to 2nd December 1992. On 23rd October 1992, 12th November 1992 and 18th November 1992, three letters were addressed to the workman by which his explanation was sought calling upon him to resume duties. A further letter was addressed to the workman on 5th February 1993, directing him to resume duties on or before 8th February 1993. On 19th March 1993, the workman was informed that if he failed to resume duty with effect from 31st March 1993, it would be presumed that he had left the services and necessary orders would be issued. 3 The name of the Respondent workman was removed from the muster and his services were terminated by a letter dated 11th June 1993 with retrospective effect from 7th October 1992. While terminating his services, the Respondent was not paid retrenchment compensation. The Labour Court found from the evidence on record that on 2nd, 4th and 5th January 1993, the workman had remained present on duty though his muster entry relating to presence was encircled with a pen. The case of the workman was that he had submitted an application for leave. The Labour Court was of the view that the termination was illegal because no chargesheet was issued, no enquiry held was held and no compensation was offered before effecting retrenchment. As a result, there was a finding that the Petitioner was engaged in an unfair labour practice. In revision, the finding of the Labour Court has been confirmed. The Industrial Court was of the view that the order passed by the Petitioner, terminating the services of the Respondent on the ground that he remained absent from 7th October 1992 to 11th June 1993 was illegal since admittedly, there was no domestic 4 enquiry and no chargesheet was issued. The Industrial Court held that the workman had filed an application for leave on 12th October 1992 for the period between 7th October 1992 and 6th November 1992. There was no evidence to suggest that this application was rejected or that the workman was informed of the rejection of his application. On 2nd January 1993, the workman joined service and submitted his joining report. The Industrial Court concurred with the finding of the Labour Court that for the month of January 1993, the workman had signed the muster roll on 2nd, 4th and 5th January 1993, upon which those entries were encircled. On 6th January 1993, the workman had filed an application for the period between the date of the letter and 6th February 1993. The Industrial Court noted that despite several letters addressed to the workman, calling upon him to resume duties, he had not resumed duties during the period and had remained absent. In the meantime, the workman had filed certain documents before the Competent Authority for transfer to Pimpri Chichwad Municipal Corporation which according to the Industrial Court did not reflect an intention to abandon service. 5 When the petition was admitted on 25th July 2003, this Court declined to stay the reinstatement of the workman. However, there was a stay of the order in so far as back wages were concerned subject to a deposit of 50% in Court within eight weeks. The workman was permitted to withdraw the amount deposited subject to submitting solvent security. The position as it now emerges is that the workman has been reinstated in pursuance of the interim order. At the hearing, Counsel appearing on behalf of the Petitioner has fairly stated that since the Respondent has been reinstated nearly five years ago, that part of the order is not challenged. The challenge is confined to the order for payment of back wages. In so far as the question of back wages is concerned, it is now a settled position in law that the burden lies on the workman to establish that he was not gainfully employed during the period that has elapsed between the order of termination and reinstatement. In Haryana Urban Development Authority Vs. Om Pal, (2007) 5 SCC 742, the Supreme Court held that despite the wide discretionary power that is conferred upon the Industrial Courts under Section 11A 6 of the Industrial Disputes Act, 1947, relief of reinstatement with back wages should not be granted automatically merely because it would be lawful to do so. The grant of relief, it has been held, would depend on the facts obtaining in each case. Similarly in Madhya Pradesh Administration Vs. Tribhuban, (2007) 9 SCC 748, the Supreme Court adverted to a change in the legal position as a result of recent decisions and emphasized that each case shall be required to be dealt with on its own facts. In the present case, there was absolutely no consideration by the Labour Court of the question as to whether the Respondent was entitled to back wages or on whether any evidence was adduced in that regard. In fact, the conduct of the Respondent would disentitle him to any order of back wages. The material before the Court shows that the Respondent had proceeded on leave and even if, as held by the Labour Court, he had submitted leave applications that was no justification for the Respondent not to report for duty without leave being sanctioned. The conduct of the employer in the present case is also significant because both the Courts have noted that by 7 successive letters of 23rd October 1992, 12th November 1992, 18th November 1992 and thereafter, on 11th March 1993, the workman was called upon to resume duties and was informed that consequences would follow, if he did not report for work. In such a case, the employer would have been justified in taking a strict view of the absence of the workman. However, it was stated before the Court that the challenge to the order of reinstatement was not being pressed in view of the circumstance that the workman has been reinstated in service pursuant to the interim order. There is no justification for the order for payment of back wages. The conduct of the workman cannot be regarded as free from blemish. Moreover, no material has been placed before the Court to indicate that the workman was not gainfully employed and there was no justification to that effect either in the judgment of the Industrial Court or the Labour Court. In these circumstances, the Writ Petition shall stand disposed of by setting aside the order for the payment of back wages. Within a period of two weeks from today, the Respondent will 8 be at liberty to submit a representation to the Petitioner for arriving at an agreed time schedule for effecting the recovery of back wages which have been withdrawn in pursuance of the interim order passed by this Court. A decision shall be taken thereon within a period of one month thereafter. In the event that such an agreement is arrived at between the parties, the Petitioners shall inform the Registrar (Judicial) accordingly, whereupon the Registrar (Judicial) shall take necessary steps to discharge the security which has been furnished by the Respondent in pursuance of the interim order after due certification by the Petitioner that full recoveries have been made. The Respondent shall, in the event that no agreement is arrived at on the time schedule for effecting recoveries, pay over to the Petitioners the amount of back wages withdrawn in pursuance of the interim order passed by this Court on 25th July 2003. If the Respondent fails to pay the amount withdrawn within the aforesaid period, the Registrar (Judicial) shall proceed to encash the security which has been furnished and pay over the proceeds thereof to the Petitioner. The Petition is allowed in these terms. No order as to costs. ....... 9