IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2251 OF 1997 WRIT PETITION NO. 2251 OF 1997 WRIT PETITION NO. 2251 OF 1997 Minanath Narsinha Ranade ...Petitioner vs. Suresh Narayan Jadhav ...Respondent Mr.Rahul Nerlekar i/b. M/s.Warerkar & Warerkar for the Petitioner. Mr.Prasad S. Dani for the Respondent. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : APRIL 27, 2009 DATED : APRIL 27, 2009 DATED : APRIL 27, 2009 P.C. :- P.C. :- P.C. :- 1. The petitioner in this petition is challenging three orders viz. impugned order dated 20th April, 1995 in complaint (ULP) No.218/88 granting reinstatement with full backwages to the respondent from May 31, 1987, secondly, the order passed by the Labour Court under the provisions of Section 33-C(2) and order passed by the Labour Court dismissing the review application filed by the petitioner herein. Brief facts are as under :- 2. The petitioner was running a lodge at Pune and the respondent who was working as a Room boy with the petitioner. The services of the respondent were terminated on 31st May, 1987 on account of his gross - 2 - misbehaviour and insubordination. The respondent filed complaint being complaint (ULP) No.355/1987 before the Labour Court, Pune, alleging unfair labour practice with Item 1(f) of Schedule IV of MRTU and PULP Act. In the said complaint, an interim order was passed by the Labour Court directing the petitioner to withdraw the alleged unfair labour practice by reinstating the respondent. Accordingly, he was reinstated on 22nd March, 1988. 3. During the pendency of the complaint, however, on 19th December, 1988, the respondent’s complaint was dismissed for want of prosecution. His application for restoration was also dismissed on 21st September, 1990. In view of the order of dismissal of the complaint filed by the respondent, interim orders stood vacated and therefore, the petitioner informed the respondent about the same and terminated his services since the interim order was not in operation. 4. The respondent, however, instead of challenging the said order of dismissal of the restoration - 3 - application filed before the Labour Court, filed an application for amendment of the pending complaint before the Industrial Court being Complaint (ULP) No.218/88 alleging unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act. The said application for amendment was allowed by the Industrial Court on 6th November, 1992 and thereafter, the Industrial Court vide its order dated 20th April, 1995 allowed the complaint and directed the petitioner to reinstate the respondent. Thereafter, the respondent preferred an application under Section 33-C(2) before the Labour Court vide Application IDA No.724/95. The Labour Court allowed the application vide order dated 23rd July, 1996. The petitioner preferred review application before the Labour Court vide Review Application No.32/96 in Application IDA No.724/95 before the Labour Court, however, the said review application also was dismissed. 5. Shri Rahul Nerlekar, learned Counsel appearing on behalf of the petitioner submitted that the complaint filed by the respondent-workman was dismissed by the - 4 - Labour Court and his application for restoration also had been dismissed and therefore, the order of termination had become final and therefore, the petitioner was justified in terminating his services after the interim order pursuant to which he was reinstated was vacated as a result of dismissal of the Complaint (ULP) No.355/87. It was submitted that therefore, the Industrial Court could not have passed an order directing the reinstatement of the respondent with full backwages. Secondly, it was submitted that under the MRTU and PULP Act, the scope of the Labour Court and the Industrial Court in dealing with the applications under Sections 5 and 7 is well defined and that the Industrial court did not have the jurisdiction to consider the application for setting aside the order of termination. In support of the said submission, he relied on the judgment of the learned Single Judge of this Court in the case of Abhudaya Co-op.Bank Lt. vs. Abhudaya Co-op.Bank Lt. vs. Abhudaya Co-op.Bank Lt. vs. S. L. Mehendale & Ors, reported in 2003 I CLR 1025 S. L. Mehendale & Ors, reported in 2003 I CLR 1025 S. L. Mehendale & Ors, reported in 2003 I CLR 1025 wherein this Court had taken into consideration various judgments of this Court and the Apex Court which clearly lay down the scope and power of the Labour Court and - 5 - Industrial Court. Further he submitted that so far as the question of backwages are concerned, the Industrial Court had erred in granting backwages. He invited my attention to the judgment of the Apex Court in the case of U.P. State Brassware Corpn.Ltd. and Another vs. U.P. State Brassware Corpn.Ltd. and Another vs. U.P. State Brassware Corpn.Ltd. and Another vs. Uday Narain Pandey, reported in (2006) 1 SCC 479. Uday Narain Pandey, reported in (2006) 1 SCC 479. Uday Narain Pandey, reported in (2006) 1 SCC 479. 6. Shri Dani, learned Counsel appearing on behalf of the respondent, on the other hand, submitted that there was gross delay in filing the petition and therefore, on that ground alone, the petition was liable to be dismissed. He submitted that the Industrial Court had passed the impugned order on 20th April, 1995 and thereafter, the Industrial Court had passed an order under Section 33-C(2) on 23rd July, 1996 and the petition, however, was filed in 1997. There is almost two years delay in filing the petition. He submitted that the petitioner was aware about the order passed by the labour Court atleast in 1996 when the Labour Court passed an order under Section 33-C(2). Secondly, he submitted that the second order of termination was illegal since in the said order of termination, it was - 6 - mentioned that the said order was to take effect retrospectively which was clearly illegal. He submitted that the Labour Court had taken into consideration the question of backwages and after giving a reasoned order had held that the respondent was entitled to get backwages. 7. In my view, the submission made by the learned Counsel for the petitioner will have to be accepted in view of the judgment of the learned Single Judge of this Court in the case of Abhudaya Co-op. Bank Ltd. (supra) Abhudaya Co-op. Bank Ltd. (supra) Abhudaya Co-op. Bank Ltd. (supra) It is obvious that the Industrial Court could not have entertained the challenge to the order of termination since it had no jurisdiction to entertain such challenge. The learned Single Judge in para 10 of the judgment has observed as under :- "10. From the above law laid down it is very clear that there is an unanimity of the judicial opinion that the Industrial matters enumerated in Item I of Schedule IV of the Act is the exclusive area left by the Legislature specifically for the Labour Court. The Industrial Court cannot usurp or encroach upon the jurisdiction of the Labour Court by deciding the complaints in respect of discharge, - 7 - dismissal or termination of the employees. In the present case the substantive question was that of order of termination and challenge was on the basis of the violation of principle of natural justice in conduct of enquiry. All these questions squarely fall within the jurisdiction of Item 1 of Schedule IV of the Act. It was therefore not proper and right for the Industrial Court to have proceeded with the complaint to decide the question of termination being an unfair labour practice under Item I of Schedule IV of the Act. The Industrial Court has acted clearly without jurisdiction, and therefore, both the Orders of the Industrial Court are hereby quashed and set aside being withou jurisdiction. The petition succeeds. Rule is made absolute in terms of prayer clause (a). No orders as to cost. Petition allowed." The ratio of the said judgment clearly applies to the facts of the present case. Apart from that, order of termination had become final on the dismissal of the complaint by the Labour Court and on restoration application filed by the respondent also being dismissed. The impugned order, therefore, passed by the Industrial Court in respect of setting aside the order of termination is, therefore, is clearly illegal and will have to be set aside. 8. Similarly, the ratio of the judgment in the case of U.P. State Brassware Corpn.Ltd. (supra) U.P. State Brassware Corpn.Ltd. (supra) U.P. State Brassware Corpn.Ltd. (supra) also will - 8 - apply squarely to the facts of the present case. No plea has been raised by the workman that he was not gainfully employed during the period for which backwages was claimed. The onus, therefore, to plead and to prove the said fact was on the workman. The said burden not having been proved, the Industrial court was not justified in awarding backwages. Under the circumstances, the impugned order is quashed and set aside. 9. Writ Petition is allowed in terms of prayer clause (c). (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)