( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2449 OF 1991 Raja Bahadur Motilal Poona Mills Limited, MIDC, Ahmednagar. PETITIONER VERSUS 1. Madhukar Baburao Tant, H.No. 855, Bagadpatti, Ahmednagar. 2. Shri P.A. Umrikar, Presiding Officer, Labour Court, Ahmednagar RESPONDENTS ..... Mr. V.D. Hon, advocate for the petitioner. Mr. T.K. Prabhakaran, advocate for respondent No. 1. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 16th February, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner impugns award rendered by the Labour Court, Ahmednagar in proceedings of Reference (ICA) No. 25/1986. The respondent No. 1 was workman with the petitioner. There was strike declared by the workmen in the industrial unit of the petitioner w.e.f. 31-10-1984. The strike was called back on 11-01-1985. The petitioner allowed the workmen to ( 2 ) resume their duties after the strike was over. 2. The case of the respondent No. 1 before the Labour Court and the Deputy Commissioner of Labour was that the petitioner discriminated the workmen while joining the duties. The petitioner did not allow the group of 25 workmen who were active members of the Labour Union. The respondent No. 1 alleged that he was one of such members of the group. He alleged that the petitioner held him responsible for the strike and illegally removed him from service w.e.f. 11-01-1985. It was his case that though he approached the petitioner time and again so as to allow him to join the duty, he was not allowed to join the duty. He was removed from service without any kind of notice, payment of compensation or domestic enquiry. Consequently, he challenged the termination on the ground that it was illegal. The petitioner pleaded that there was no termination of the services of the respondent No. 1 but he had abandoned the service. It was contended by the petitioner that though the workmen were called upon to resume the duties and the strike was ( 3 ) called off, yet, the respondent No. 1 failed to join the duties within 48 hours. It was contended that a notice was published in a local newspaper and the workmen were called upon to attend the work because the strike was held as illegal as per order of the Labour Court. It was contended that by letter dated 14-01-1985 as well as letter dated 31-01-1985, the respondent No. 1 was informed to collect the legal dues if he was not to join the duties; however, the respondent No. 1 did not pay any heed to such notices. 3. The Labour Court framed issues below Exh-5. The parties adduced evidence in support of rival contentions. The Labour Court held that the respondent No. 1 was illegally terminated by the petitioner on 11-01-1985 and was, therefore, entitled to seek reinstatement alongwith the benefit of continuity of the service and 1/3rd backwages. 4. Heard counsel for the parties. 5. The petition is unfortunately pending for a ( 4 ) long-drawn period. In the meanwhile, the interim relief was granted by this Court in favour of the respondent No. 1 and, therefore, the respondent No. 1 was not reinstated as such. The condition imposed by this Court was to deposit the wages as required under section 17-B of the Industrial Disputes Act. The petitioner asserted that two letters were issued in order to call upon the respondent No. 1 to join the duty. The learned Judge of the Labour Court noticed that the letters (Ex-C1 and Ex- C9) were prepared afterthought in order to show that the respondent No. 1 was at fault. It is rightly observed by the learned Judge of the Labour Court that the petitioner could have issued notice by registered post A.D. There was no record about certificate of posting though the communication was allegedly sent under certificate of posting. The letters did not bear any outward number of the petitioner’s company. Nor the necessary evidence was adduced to show that the same were issued in the regular course of the business of the petitioner company. What appears from the record is that the respondent No. 1 was active member of the Labour Union. The fact finding of the Labour Court that ( 5 ) the termination was punitive in nature seems to be proper and founded on available material. Needless to say, the termination of the respondent No. 1 is proved to be illegal and is retrenchment within the meaning of section 2 (oo) of the Industrial Disputes Act. 6. It is well settled that in the exercise of supervisory jurisdiction under Article 227 of the Constitution, this Court would not re-appreciate the evidence likewise that of an appellate Court. There appears no patent error committed by the Labour Court while directing reinstatement of the respondent No. 1. In fact, due to long pendency of the petition, much force in the legal contentions is of no avail. There are intervening developments. It has come on record that the respondent No. 1 was temporarily employed as workman of M/s Kinetic Engineering Limited, Ahmednagar. He had also filed complaint (ULP) No. 329/1996 in the Industrial Court at Ahmednagar. The respondent No. 1 attained age of superannuation. Obviously, now the relief of reinstatement is unavailable to him. Under these circumstances, it will have to be said that the ( 6 ) respondent No. 1 will be entitled to recovery of 1/3rd of the backwages from the petitioner w.e.f. 07-10-1985 till the date of superannuation i.e. till he attained age of 60 years, excluding the amount which is already paid during course of the pendency of the writ petition and the amount gained by him due to gainful employment in the intervening period. The amount gained by him during the intervening period may be adjusted in the final payment if such amount is quantified after giving sufficient proof regarding such gainful amount of the respondent No.1 during the relevant period, in the course of execution of the award. The backwages to the extent of 1/3rd may be calculated up till the date of the award and thereafter, the amount payable to the respondent No. 1 will be as per the wages available to a permanent employee. The petition is accordingly disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/wp2449-91 ( 7 )