:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2680 OF 2005 WRIT PETITION NO. 2680 OF 2005 WRIT PETITION NO. 2680 OF 2005 M/s. Gujarat Rope Factory ] a Partnership firm, carrying on ] business at 57, Bhajipala Lane, ] Mumbai 400 003 ]..Petitioner versus Shamrao Pandurang Mogare ] M. S. Wadi, Brahman Dev ] Rahiwasi Sangh, Ghatla Village, ] Mumbai 400 071 ]..Respondent Mr. S. C. Naidu i/b. M/s. C. R. Naidu & Co. for the Petitioner. Mr. Rajesh Gehani for the Respondent. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 11TH AUGUST, 2008. DATE : 11TH AUGUST, 2008. DATE : 11TH AUGUST, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . Heard. 2. The petitioner an employer has challenged the judgment and order dated 24.11.2004 passed by the VIIth Labour Court, Mumbai, by which the Labour Court has held that the petitioner has engaged in unfair labour practices under Item 1(1), (b), (d) of Schedule IV of MRTU & PULP Act, 1971 and directed the petitioner to reinstate the respondent with continuity of service and full back wages. :2: 3. In short, the Labour Court has held that the petitioner wrongly treated the respondent as retired from 22.9.1998 on the ground that he has attained the age of superannuation even though the respondent had not attained that age. The respondent was working as a salesman with the petitioner from 2.5.1964. His last drawn wages were Rs.4,000/- per month. The petitioner is a partnership firm engaged in the business of ropes, newar, tapes twins and all kinds of threads at 57, Bhajipala Lane, Mumbai 400 003. According to the respondent on 22.9.1998 the petitioner called the employees and stated that he intends to close the shop from 1.10.1998 and therefore they do not require their services. Admittedly, from the next day the respondent was not allowed to work. The respondent therefore filed a complaint under Schedule IV, Item 1 of MRTU & PULP Act, which reads as under:- "1. To discharge or dismiss employees - "1. To discharge or dismiss employees - "1. To discharge or dismiss employees - (a) by way of victimisation; (a) by way of victimisation; (a) by way of victimisation; (b) not in good faith, but in the colourable (b) not in good faith, but in the colourable (b) not in good faith, but in the colourable exercise of the employer’s rights; exercise of the employer’s rights; exercise of the employer’s rights; (c) by falsely implicating an employee in a (c) by falsely implicating an employee in a (c) by falsely implicating an employee in a criminal case on false evidence or on criminal case on false evidence or on criminal case on false evidence or on concocted evidence; concocted evidence; concocted evidence; (d) for patently false reasons; (d) for patently false reasons; (d) for patently false reasons; :3: (e) on untrue or trumped up allegations of (e) on untrue or trumped up allegations of (e) on untrue or trumped up allegations of absence without leave; absence without leave; absence without leave; (f) in utter disregard of the principles of (f) in utter disregard of the principles of (f) in utter disregard of the principles of natural justice in the conduct of domestic natural justice in the conduct of domestic natural justice in the conduct of domestic enquiry or with undue haste; enquiry or with undue haste; enquiry or with undue haste; (g) for misconduct of a minor or technical (g) for misconduct of a minor or technical (g) for misconduct of a minor or technical character, without having any regard to the character, without having any regard to the character, without having any regard to the nature of the particular misconduct or the nature of the particular misconduct or the nature of the particular misconduct or the past record of service of the employee, so as past record of service of the employee, so as past record of service of the employee, so as to amount to a shockingly disproportionate to amount to a shockingly disproportionate to amount to a shockingly disproportionate punishment. punishment. punishment." After recording evidence and hearing parties, the Labour Court held that the retirement age was between 58-60 and that on 22.9.1998 the respondent could not have been treated as retired because he was born on 1.6.1949 and therefore on that date he was 49 years of age. He therefore set aside the so-called superannuation and directed reinstatement with full back wages. Parties agree that the date of retirement is 60 years. 4. According to the petitioner, the respondent has been reinstated on 1.12.2004 and worked till August, 2007. Learned counsel for the respondent does not dispute this position. 5. Mr. Naidu, the learned counsel for the petitioner submitted that the Labour Court has committed a serious error of jurisdiction in holding :4: that the petitioner has committed an unfair labour practice under Item 1(b) and 1(d) of Schedule IV of the MRTU & PULP Act, 1971, on the basis of a Birth Certificate from a School produced by the respondent in court on 20.3.2004. According to the learned counsel it can be said to have been taken in not good faith or for patently false reasons if the relevant evidence or date of birth was not before the employer. There is substance in the contention on behalf of the petitioner. Indeed, the employer can be said to have acted not in good faith or for patently false reason under Schedule IV Item 1 of the MRTU & PULP Act in retiring an employee only if he was conscious of a different date of birth, than the one he believed to be correct. Obviously, if the employee has not brought to the employer’s notice the date of birth which according to him is correct and which entitles him to continue in service, he cannot establish bad faith on the part of the employer. However, this position in law does not help the employer in the present case. 6. In this case the employer has not produced any evidence to show that there was in their possession any date of birth on the basis of which they could truthfully form the opinion that the :5: respondent had attained the age of superannuation on 22.9.1998. The decisions seems to be completely arbitrary. Therefore, the order of the Labour Court that the employer did not act in good faith but in colourable exercise of the employer’s right and for patently false reason and must be upheld. 7. Mr. Naidu, learned counsel for the petitioner submitted that the employer was in possession of the Register under the Bombay Shops and Establishment Act wherein the respondent’s age was recorded. However, such a Register has not been produced and the employer has not been able to demonstrate this fact. In the circumstances, the finding of the Labour Court in paragraph 19 that the petitioner had not produced any document showing that the respondent has attained the age of retirement on 22.9.1998 is liable to be upheld. 8. In the circumstances, the respondent is entitled for reinstatement. On the question of back wages. Mr. Naidu, relied on the decision of the Supreme Court in the case of Allahabad Jal Sansthan Allahabad Jal Sansthan Allahabad Jal Sansthan vs. Daya Shankar Rai & vs. Daya Shankar Rai & vs. Daya Shankar Rai & Anr. [ 2005 II CLR 453 ] Anr. [ 2005 II CLR 453 ] Anr. [ 2005 II CLR 453 ] where Their Lordships have observed in paragraph 17 as follows: :6: " We have referred to certain decision of " We have referred to certain decision of " We have referred to certain decision of this Court to highlight that earlier in the this Court to highlight that earlier in the this Court to highlight that earlier in the event of an order of dismissal being set event of an order of dismissal being set event of an order of dismissal being set aside, reinstatement with full back wages was aside, reinstatement with full back wages was aside, reinstatement with full back wages was the usual result. But now with the passage the usual result. But now with the passage the usual result. But now with the passage of time, it has come to be realized that of time, it has come to be realized that of time, it has come to be realized that industry is being compelled to pay the industry is being compelled to pay the industry is being compelled to pay the workman for a period during which he workman for a period during which he workman for a period during which he apparently contributed little or nothing at apparently contributed little or nothing at apparently contributed little or nothing at all for a period that was spent all for a period that was spent all for a period that was spent unproductively, while the workman is being unproductively, while the workman is being unproductively, while the workman is being compelled to go back to a situation which compelled to go back to a situation which compelled to go back to a situation which prevailed many years ago when he was prevailed many years ago when he was prevailed many years ago when he was dismissed. It is necessary for us to develop dismissed. It is necessary for us to develop dismissed. It is necessary for us to develop a pragmatic approach to problems dogging a pragmatic approach to problems dogging a pragmatic approach to problems dogging industrial relations. However, no just industrial relations. However, no just industrial relations. However, no just solution can be offered but the golden mean solution can be offered but the golden mean solution can be offered but the golden mean may be arrived at." may be arrived at." may be arrived at." Their Lordships have also referred to earlier decision of the Supreme Court in Indian Railway Indian Railway Indian Railway Construction Co. Ltd. vs. Ajay Kumar [2003 I Construction Co. Ltd. vs. Ajay Kumar [2003 I Construction Co. Ltd. vs. Ajay Kumar [2003 I CLR 817] CLR 817] CLR 817] with the observations as follows: ".....In the very nature of things there ".....In the very nature of things there ".....In the very nature of things there cannot be a strait-jacket formula for cannot be a strait-jacket formula for cannot be a strait-jacket formula for awarding relief of back wages. All relevant awarding relief of back wages. All relevant awarding relief of back wages. All relevant considerations will enter the verdict. More considerations will enter the verdict. More considerations will enter the verdict. More or less, it would be a motion addressed to or less, it would be a motion addressed to or less, it would be a motion addressed to the discretion of the Tribunal. Full back the discretion of the Tribunal. Full back the discretion of the Tribunal. Full back wages would be the normal rule and the party wages would be the normal rule and the party wages would be the normal rule and the party objecting to it must establish the objecting to it must establish the objecting to it must establish the circumstances necessitating departure. At circumstances necessitating departure. At circumstances necessitating departure. At that stage the Tribunal will exercise its that stage the Tribunal will exercise its that stage the Tribunal will exercise its discretion keeping in view all the relevant discretion keeping in view all the relevant discretion keeping in view all the relevant circumstances. But the discretion must be circumstances. But the discretion must be circumstances. But the discretion must be exercised in a judicial and judicious manner. exercised in a judicial and judicious manner. exercised in a judicial and judicious manner. The reason for exercising discretion must be The reason for exercising discretion must be The reason for exercising discretion must be cogent and convincing and must appear on the cogent and convincing and must appear on the cogent and convincing and must appear on the face of the record......" face of the record......" face of the record......" :7: Having regard to the aforesaid observations, it would be proper to assess the question of back wages in the present case as follows:- . The respondent has not pleaded that he was not gainfully employed after his termination. However, in the course of his evidence, he has stated that he has a wife, two sons and a daughter, the expenses for maintaining them being about Rs.2,000/- per month. He also stated that it is not true that after leaving job he was employed and was still doing the work. Though there is no pleading to the effect that the respondent was not employed there is some evidence on record. On the other hand the petitioner did not have a full opportunity to rebut the respondent’s case in the absence of any pleading. 9. In the circumstances of the case, it would be appropriate in the interest of justice to direct the petitioner to pay 50% back wages to the respondent for the period from 22.9.1998 till the date of his reinstatement i.e. 1.12.2004. In the result, the writ petition is dismissed with the order as above. :8: (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)