:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2014 OF 1996 Shri Suhas Anant Kulkarni ..Petitioner Vs. The Chairman Spices & Oil Seeds Exchange and ors. ..Respondents WITH WRIT PETITION NO. 490 OF 1997 The Spices & Oil Seeds Exchange Ltd. ..Petitioner Vs. Shri S.A. Kularni and ors. ..Respondents Mr. Santosh Shetty for petitioner in Writ Petition No. 490 of 1997 and for respondent no.1 in W.P. No.2014 of 1996. Mr. Y.M. Pendse i/by Mr. A.J. Chougule for respondent no.1 in Writ Petition No.490/97 and for petitioner in W.P. No.2014/96. Mr. D.A. Dube i/by Mr. H.D. Rathod for respondent no.2 in W.P.No.2014/96. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date : March 18, 2008. : March 18, 2008. : March 18, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Both these petitions arise from the judgment and order dated 9/6/1992 passed by the Labour Court at :2: Sangli and modified by the Industrial Court. The Labour Court had allowed the complaint and directed to pay full backwages since the date of termination i.e. 19/2/1985 till the complainant renewed his sanad as an Advocate on 28/3/1986 and half wages till the date of the order i.e. 9/6/1992, whereas the Industrial Court granted reinstatement with continuity of service. Both the Company and the employee are aggrieved by the order passed by the Industrial Court on 15/2/1996, thereby partly allowing Revision Application (ULP) No. 57/92 and dismissing the Revision Application (ULP) No. 72/92. 2. The first petition has been filed by the employee, whereas the second petition has been filed by the Company. While admitting the Company’s petition, this court had directed the Company as per its order dated 19/8/1997 to deposit an amount of Rs.67,091/- and the said amount came to be invested in fixed deposit. With the interest accrued thereon, the said amount now comes to about Rs.1,25,000/-. As of now, the employee is a practicing Advocate and as per the employer, despite the letters issued to him he did not come and report for duty. By an additional :3: affidavit, the Company has pointed out that from the year 1998 onwards it has become virtually a defunct establishment. 3. The Company had released an advertisement for the post of Secretary on 20/1/1984 and in response thereto, the employee submitted his application, while he was already a practicing Advocate. He was selected and came to be appointed as per the order dated 30/4/1984 to the post of Secretary and on probation for one year. Apprehending some adverse resolution to be passed in the meeting of the Board of Directors of the petitioner requisitioned for 29/12/1984, the employee had approached the Labour Court and obtained a stay. The employer approached the Industrial Court and finally this court. It was allowed to go ahead with the meeting, in which it was resolved to dispensed with the services of the employee and accordingly the order of termination of service was issued on 19/2/1985. The Complaint came to be amended thereafter and in the meanwhile the employee renewed his sanad and started practicing in the Labour Court at Sangli, from 28/3/1986. :4: 4. Before the Labour Court the employer challenged the maintainability of the complaint on the ground that the complainant did not fall within the ambit of the term "employee" as defined under Section 3(5) of the M.R.T.U. & P.U.L.P. Act, 1971 (the Act for short). The employee stepped in the witness box to prove that his complaint was maintainable and the employer was guilty of unfair labour practice, whereas the employer did not examine any witness. There is no dispute that the complainant was appointed as "Secretary" on a monthly salary of Rs.900/-. His cross-examination on behalf of the company does go to show that he was holding a supervisory post, but his monthly salary was less than Rs.1600/-. The Labour Court as well as the Industrial Court, therefore, rightly held that the complaint was maintainable. 5. Both the courts below noted that he had renewed his sanad and was practicing before the Labour Court at Sangli from 2/3/1986, whereas the dismissal order was dated 19/2/1985. The intervening period was about 13 months. Noting that he was already a member of the Bar, the Labour Court, though found fault with the order of termination, did not grant him :5: reinstatement and directed full wages from the date of termination till the date of renewal of the sanad. But the Labour Court did not stop here alone and it proceeded to direct 50% of the backwages till the date of the order i.e. 9/6/1992. The Industrial Court surprisingly, being fully aware that the complainant had already resumed his practice as a lawyer, directed reinstatement and confirmed the order of the Labour Court regarding backwages. The justification given by the Industrial Court is far from being satisfactory. Even if the termination order was found to be illegal, the complainant would have got the benefits of full backwages only till 28/3/1986 and there was no reason for the Labour Court to direct 50% backwages till 9/6/1992 despite the fact that he was self employed as an Advocate. The total salary for the period of unemployment would be about Rs.13,000/-. I have no doubt that the approach of both the courts below in granting payment for the period from 28/3/1986 was grossly erroneous. 6. However, the petitioner-company came forward with a proposal for settlement, a copy of which has been placed on record. As per the Company the total :6: amount deposited with interest accrued now comes to about Rs.1,25,000/- and the complainant could be allowed to withdraw 50% of the said amount, whereas the remaining 50% amount be refunded to it. 7. Though in my view the complainant would not be entitled for anything beyond the salary for the period from 19/2/1985 to 28/3/1986 which amount as per Mr.Shetty, comes to Rs.13,258/-, the petitioner company’s proposal for settlement need not be discarded. I am satisfied that the proposal made by the company is more than fair and, therefore, the order of reinstatement deserves to be quashed and set aside. 8. In the premises, these petitions succeed. The impugned orders passed by the Industrial Court and the Labour Court are hereby quashed and set aside. From the deposited amount and with the interest accrued thereon till 31st March 2008, 50 per cent of the said amount shall be paid by the company to the complainant by a demand draft before 10th April 2008 and the deposited amount with interest accrued be refunded to the petitioner - company. The Registry to refund the :7: amount to the company in the first week of April 2008. 9. Rule is made absolute in terms of the above order but without any order as to costs. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)