[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION L.P.A. NO.49 OF 2009 IN W.P.NO.2048 OF 1997 New Excelsior Theatre Pvt. Ltd. ..Appellant (Ori.Respondent No.1) Vs. Shri.Deepak Ganpat Tari & Anr. ..Respondents WITH L.P.A.NO.413 OF 2008 IN W.P.NO.2048 OF 1997 Mr.Deepak Ganpat Tari ..Appellant Vs. M/s.New Excelsior Theatre Pvt.Ltd. ..Respondent .... R.S.Pai i/b Sanjay Udeshi & Co. for Appellant in LPA No.49 of 2009 and Respondent No.1 in LPA No.413 of 2008 A.D.Sheety for Appellant in LPA No.413 of 2008 and Respondent No.1 in LPA No.49 of 2009 .... CORAM: J.N.PATEL AND CORAM: J.N.PATEL AND CORAM: J.N.PATEL AND SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. DATE : MARCH 6, 2009 DATE : MARCH 6, 2009 DATE : MARCH 6, 2009 P.C. P.C. P.C. 1. Heard the learned counsel for the parties. [-2-] 2. The workman-Deepak Tari was employed with the Respondent-Company. He came to be terminated, hence, he raised an industrial dispute on 25.7.1982. Ultimately, a Reference came to be made. Meanwhile, an application came to be preferred by the Appellant for payment of wages by way of interim relief. Evidence came to be led. Ultimately, an Award came to be passed on 25.10.1996 granting Rs.40,000/- to the Appellant in lieu of his reinstatement. 3. The grievance of the workman is that though the lower Court held that his termination was illegal, however, he was not granted reinstatement and he was only granted compensation of Rs.40,000/-, hence, he preferred Writ Petition No.2048 of 1997. The learned Single Judge, by order dated 30.9.2008, allowed the said writ petition and held that the workman is entitled to reinstatement with continuity of service with consequential benefits, however, as regards backwages, the learned Single Judge remanded the matter back to the Labour Court and directed that the Labour Court will permit the parties to lead evidence on the issue of backwages and will dispose of the Reference within a period [-3-] of three months from the date of order. 4. Being aggrieved by the very same order, the Company has preferred L.P.A.No.49 of 2009 against the direction of reinstatement of the workman. The workman preferred L.P.A.No.413 of 2008 being aggrieved by the order of the learned Single Judge in respect of direction for remanding back the matter to the Labour Court for computation of the backwages. As parties in both the Letters Patent Appeals are the same and both the Appeals deal with the same set of facts, they are both being disposed of by this common order. 5. The learned counsel for the Company contended that the workman ought not to have been reinstated as he had clearly abandoned his service and he has rightly been terminated. He has pointed out that strike was declared by the Union. The said strike was declared illegal by the Labour Court on 19.5.1981. The Company called upon the workmen to report for work. The workmen were informed that if they did not report for work within 48 hours from 27.5.1981, the Company would treat them as having abandoned service. An advertisement was issued in [-4-] the Times of India to this effect. On 15.6.1981, the Company treated the workman as having abandoned his services and he came to be terminated. The case of the workman is that the Company had effected a lock out and had not permitted the workman to resume work. 6. Hence, he raised an industrial dispute. The Labour Court held that the workman had not abandoned his service and his services had been illegally terminated as no domestic inquiry was held preceding the termination of service. However, the Labour Court did not grant reinstatement but only granted the workman Rs.40,000/- in lieu of reinstatement as the Labour Court held that the termination was justified on the ground of misconduct. As far as this aspect is concerned, the learned Single Judge has rightly held that if it was the case of the Management that it was termination of service on account of misconduct, then the Management has not proved the misconduct before the Court. Hence, the Labour Court could not have on its own decided that the termination was justified on account of misconduct. [-5-] 7. It has been rightly held by the learned Single Judge that once the Labour Court decides that the termination of service is illegal and the respondent employer has not sought any permission to prove the misconduct, the Labour Court cannot decide sue motu whether there is a misconduct committed by the workman, especially when no issue is framed. The workman cannot be taken by surprise as the thrust of the evidence led by him would be to prove that he had not abandoned his service. The workman was not informed that he was required to defend the charge of misconduct as there is no pleading to that effect in the written statement. Besides, no charge sheet had been issued to the workman for him to be conscious of the charge levelled against him. The opportunity of the employer to adduce evidence before the Tribunal/Labour Court to prove the misconduct of a workman must be availed by the employer at the time when the written statement is filed. In the present case, admittedly no permission was sought by the employer to lead evidence to prove the misconduct. This is because it was always the employer’s case that the workman had abandoned his service and therefore, the question of seeking [-6-] permission to lead evidence to prove the misconduct did not arise. The witness for the Respondent Company has also admitted that no enquiry was held against the workman nor was any retrenchment compensation or notice pay paid to the workman. In such case, the Labour Court could not have relied on such evidence without there being anything on record to indicate that the workman was made aware of the charge against him and that the employer was leading evidence to prove the misconduct against him. 8. In the case of Maharashtra State Seeds Corporation Vs. Vilas (2005) 12 SCC 422, the Supreme court has held that once an employer takes a specific plea that the workman had been dismissed after a domestic enquiry, it cannot raise an alternate plea that it was a termination simplicitor. Similarly, in the present case, the employer could not raise two diametrically opposite pleas: that the workman had voluntarily abandoned his service and in the alternative, that he had been dismissed from service for misconduct i.e. he struck work. Hence, as far as reinstatement is concerned, we find no error or illegality in the [-7-] order passed by the learned Single Judge. 9. Now we shall deal with the issue of backwages. As far as backwages are concerned, reliance was placed by the Company on a report of a detective agency. The Labour Court has not accepted the report of the detective agency, however, surprisingly, the Labour Court has held that the workman was gainfully employed. The workman has denied that he owns a workshop and he is doing any work therein as stated by the Respondent-company. In such case, the direction of the learned Single Judge that the Labour Court will permit the parties to lead evidence on this issue, cannot be faulted. We see no error or illegality in the order of the learned Single Judge. Both the Letters Patent Appeals are dismissed. [J.N.PATEL, J.] [J.N.PATEL, J.] [J.N.PATEL, J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]