1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD //UNREPORTED/ WRIT PETITION NO.3614 OF 1994 Date of decision:6/8/2010 For approval and signature HON'BLE MR. JUSTICE R.K.DESHPANDE 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/3614-1994wp 2 /unreported/ IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3614 OF 1994 The Zilla Parishad, Ahmednagar, through its Chief Executive Officer. ...PETITIONER VERSUS Kondiba Baba Mehetre, Age major, r/o Adhalgaon, Tq.Shrigonda, Dist.Ahmednagar. ...RESPONDENT ... Mr. S.T.Shelke, Adv., for the petitioner. Mr. S.K.Shelke, Adv., for respondent. ... CORAM:R.K.DESHPANDE, J. DATE : AUGUST 6th, 2010 *** ORAL JUDGMENT: 1. This writ petition is preferred by an employer, challenging the judgment and order passed by the Industrial Court, Ahmednagar, in Revision (ULP) No.14/1993, on 23rd of June, 1994, confirming the order of reinstatement passed by the Labour Court on 19.12.1992, in Complaint (ULP) No.5/1990 and, in addition to it, granting 3 75 per cent of back-wages to the respondent (employee) in service. 2. The facts of the case are as under: The respondent (employee) filed Complaint (ULP) No.5/1990 in the Labour Court at Ahmednagar, invoking jurisdiction under Section 28 read with Items 1(a), (b), (d), (f) of Schedule IV of (Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ( In short, "the Act" ). It was alleged that he was employed on 1.5.1988 as daily wager and unskilled worker and sometimes, as watchman. His services were orally terminated by the petitioner (employer), who was joined as respondent, with effect from 1.11.1989. The complainant alleged that he had continuously worked for more than 240 days preceding the date of his retrenchment from service on 1.11.1989 and there was no compliance of Section 25F of the Industrial Disputes Act. Before terminating his services, he alleged that, neither notice was given to him nor compensation was paid, as contemplated by Section 25F and, hence, the employer had engaged himself in an unfair labour practice in terminating the services of the complainant. The relief of reinstatement with continuity in service and full back-wages was claimed. 4 3. The petitioner (employer) filed its written statement and opposed the claim of the complainant. The complainant examined himself whereas the petitioner (employer) examined Sectional Engineer Shri Madanlal Chandmal Dariwal. 4. The Labour Court, by its judgment and order dt.19th Dec.,1992, recorded a finding of fact that the complainant had continuously worked from 1.10.1988 to 1.11.1989 and he had completed more than 240 days service preceding the date of his termination. Thus, a further finding is recorded that no notice of retrenchment nor payment of compensation was made to the complainant and thus, the retrenchment was in violation of the mandatory provisions of Section 25F of the Industrial Disputes Act. In respect of the back-wages it was held that the complainant was working as daily wager and was earning Rs.15/- to Rs.16/- per day, which was more than Rs.10/- to Rs.12/- per day which he was getting in the employment of the petitioner (employer). However, such employment was for some days. It was held that the complainant was gainfully employed during the intervening period. On the basis of these findings, the Labour Court directed reinstatement with continuity in service of the complainant but without back-wages. 5 5. The aforesaid judgment and order was subject matter of challenge in Revision (ULP) No. 14/1993 preferred by the petitioner (employer) and Revision (ULP) No.22/1993, was preferred by the respondent (complainant). The petitioner (employer) challenged the order of reinstatement whereas, the employee challenged the order of refusal to grant back-wages. The Industrial Court delivered its judgment on 23rd June, 1994, confirming the findings recorded by the Labour Court in respect of violation of Section 25F of the Industrial Disputes Act and maintained the order of reinstatement and continuity in service. However, in respect of the back-wages, the Industrial Court accepted the contention of the complainant that merely because the complainant was engaged as a daily wager for some days and was getting Rs.15/- to Rs.16/- per day, that was not a gainful employment and hence, awarded 75 per cent of the back-wages by partly allowing Revision (ULP) No.22/1993 filed by the complainant. The Revision Application No. 14/1993, filed by the petitioner (employer) was, however, dismissed. 6. In view of above, the orders of the Labour Court and Industrial Court are under challenge in the instant writ petition. 6 7. Shri S.T.Shelke, learned Counsel appearing for the petitioner, has invited my attention to the finding recorded by the Industrial Court that, "the labourer is required to depend upon the earnings for his livelihood, which cannot be treated as a gainful employment". He submits that the evidence on record established that he was working as a daily wager and was earning Rs.15/- or Rs.16/- per day for some time, which was an amount more than the amount he was getting as a daily wager at the rate of Rs.10/- to Rs.12/-per day, while he was in the employment of the petitioner. Learned Counsel relies upon the decision of the Apex Court reported in 2008 AIR SCW 6532 ( Talwara Cooperative Credit Service Society Ltd. Vs. Sushil Kumar). It was a case where the Apex Court directed to pay compensation to the employee instead of reinstatement and full backwages on the ground that the employer's unit was a sick unit and was suffering losses. It has been held in this judgment that the grant of back-wages is also not automatic and the Court is required to strike a balance in a situation by taking into consideration the relevant factors i.e. the nature of service, the mode and manner of recruitment,etc. 8. Shri S.K.Shelke, learned Counsel appearing for respondent (employee), on the other 7 hand, has urged that the employee has led his oral evidence and fairly deposed that he was getting Rs.15/- to Rs.16/- per day for some period only and the same cannot be taken into consideration, treating it to be a gainful employment. He relied on the decision of the Apex Court reported in AIR 1979 SC 75 (M/s Hindustan Tin Works Pvt Ltd., Vs. The Employees of M/s Hindustan Tin Works Pvt.Ltd. and others) in support of his proposition that, ordinarily, a workman, whose service has been illegally terminated either by dismissal, discharge of retrenchment, will be entitled to full back- wages, except to the extent he was gainfully employed during the enforced idleness. He has relied upon the observations made by the Apex Court in paragraph No.9 of the said judgment, which are reproduced below: " It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally 8 the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore. a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the 9 service illegally and the termination is motivated as in this case, viz ., to resist the workman's demand for revision of wagesm the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it the were forced to litigation up to the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High 10 Court in Dhari Gram Panchayat v. Safai Kamdar Mandal, (1971) I Lab L.J. 508 and a Division Bench of Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court, Lucknow (1971) l LAB L.J. 327, have taken this view and we are of the opinion that the view taken therein is correct." Learned Counsel further relied upon the Division Bench judgment of this Court reported in 2008 (3) Mh.L.J.743 (Taranjitsingh Vs. M.S.R.T.C., Amravati) wherein it has been held that when an employee is wrongfully dismissed, it would be unjust to insist upon technical requirement of pleading and proof of absence of gainful employment. 9. Both the Courts below have recorded a concurrent finding of fact that the employee has completed more than 240 days continuous service preceding the date of his termination and on that there was non compliance of provisions of Section 25F of the Industrial Disputes Act, as the employee was neither given notice nor was paid retrenchment compensation. There is no perversity or illegality in recording such finding brought to my notice. Hence, such a finding of fact cannot, therefore, be disturbed in writ jurisdiction of this Court. 11 10. So far as the question of payment of back wages is concerned, the Labour Court has refused to grant back wages on the ground that the complainant was getting daily wages of Rs. 15/- to Rs.16/- which was more than the wages which he used to get at the rate of Rs.10/- to 12 per day in the employment of the petitioner. It was held that the complainant was in gainful employment. The Industrial Court reversed the finding of the Labour Court on the question of back-wages. It was held that if the employee was engaged in some work on daily wages for his bread and butter, it cannot be treated as gainful employment. The Industrial Court has also taken into consideration that there was gap of two years in between the date of filing complaint on 4.1.1990 and the date on which the complainant was examined i.e. 18.2.1992 and the minimum wages during the said period were also increased. The Revisional Court, on the basis of these findings awarded 75 per cent of the back-wages. Thus, the finding of fact is recorded by the Industrial Court which is based on valid consideration and there is no perversity in recording such finding. 11. Learned Counsel for the petitioner has relied upon the decision of the Apex Court in Talwara Cooperative Credit Service Society's case (cited supra) It was a case where the petitioner was a sick unit and was suffering from 12 losses and, instead of reinstatement and backwages, the compensation was awarded in lump- sum. The said judgment is, therefore, of no help to the petitioner. It is further contended, on the basis of the said judgment that, the onus to prove that the employee was not gainfully employed, lies on the employee. However, it has not been pointed out as to how the said burden has not been discharged in the present case by the employee. In view of this, no fault can be found with the order passed by the Industrial Court awarding 75 per cent back-wages to the respondent. 12. In the result, there is no substance in this petition and the same is, therefore, dismissed, with no order as to costs. Rule discharged. (R.K.DESHPANDE) JUDGE ... agp/3614-1994wp