1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.281 of 2000 M/s. B. J. Caero, P. B. Dealer, Cuncolim,Goa. Since deceased through Legal heirs : (a) Mrs. Riva Caero, wife, (b) Mrs. Briyan Almeida,daughter (c) Mr. Dilip Almeida, son-in-law .. Petitioner. Versus 1. Dilip P. Dessai resident of House No.189/B, Sidhanagar, Gottom, Cuncolim, Goa 2. Shri Felix M. Fernandes, Cuncolim-Goa (deceased through L.R's) 2(a) Mrs. Alorina Fernandes,wife 2(b) Mr. Velington Fernandes,son 2(c) Mr. Maxy Fernandes, son 2(d) Mr. Resly Fernandes, son 3. Shri Rezinto Pedro Fernandes Cuncolim,Goa. 4. The Presiding Officer, Industrial Tribunal, Junta House, Panaji-Goa .. Respondents Mr. G. Sardessai with Mr. V. Palekar, Advocates for the petitioner. Mr. A. V. Nigalye, Advocate for respondent Nos. 1 to 3. Coram :- A. P. Lavande, J. Reserved on :- 7 th September,2010 Pronounced on:- 24 th September,2010 2 JUDGMENT : Heard Mr. G. Sardessai with Mr. Palekar, learned Counsel appearing for the petitioner and Mr. Nigalye, learned Counsel appearing for the respondent Nos. 1 to 3. 2. By this petition under Article 226 and 227of the Constitution of India, the petitioner challenges the award dated 2nd August, 1999 passed by Industrial Tribunal at Panaji in Reference No. IT/75/1994 holding that the action of the petitioner /employer terminating the services of the workmen Shri Dilip P. Dessai, Shri Felix M. Fernandes and Shri Rezinto Pedro Fernandes with effect from 8th February, 1993, 11th June,1992 and 8th February, 1993 respectively was illegal and unjustified. The Tribunal further directed their reinstatement with full back wages and other consequential benefits. The Tribunal held that termination of service of another workman Shri Shaikh Dastigir Kassim with effect from 8th February, 1993 was legal and justified. 3. Briefly, the facts leading to filing of the present writ petition are as under : In exercise of the power conferred under Section 3 10(1)(d) of the Industrial Disputes Act, 1947 ('The Act' for short), the Government of Goa by an order dated 21st December, 1993 referred the following dispute for adjudication to the Industrial Tribunal : “Whether the action of the management of M/s. B. J. Caeiro, P.B. Dealer, Cuncolim, in terminating the services of the following workmen is legal and justified ? (1) Shri Dilip P. Dessai, Clerk, with effect from 8.2.1993. (2) Shri Felix M. Fernandes, Salesman, with effect from 11.6.1992. (3) Shri Rezinto Pedro Fernandes, Helper, with effect from 8.2.1993. (4) Shri Shaikh Dastigir Kassim,Salesman, with effect from 8.2.1993. If not, to what relief the above workmen are entitled ?” 4. In Reference No.IT75/1994 registered pursuant to the reference, the three workmen- Shri Dilip Dessai, Felix Fernandes and Rezinto Pedro Fernandes filed their written statement and contended that their services were terminated by refusing employment to them from the dates mentioned in the order of reference. They also contended that their termination was in violation of The Goa, Daman and Diu Shops and Establishments Act, 1973 ('The Act of 1973' for 4 short) as well as Industrial Disputes Act, 1947. 5. The petitioner employer filed written statement and contended that Shri Felix Fernandes, Rezinto Fernandes and Shaikh Kassim had not made any demand for employment and no industrial dispute existed. The employer also denied that the services of workmen were terminated and stated that the workmen had abandoned their services. On the basis of the pleadings of the parties, the following issues were framed : 1. Whether Party I proves that Mr. Dilip Dessai was appointed as a clerk from 19.12.74 and his last drawn salary was Rs.620/- p.m.,; Mr. Felix Fernandes was appointed as a Salesman from 23.1.78 and his last drawn salary was Rs.550/- p.m.; Mr. Rezinto Pedro Fernandes was appointed as a helper from 1.2.89 and his last drawn salary was Rs.350/- p.m. and Mr. Shaikh Dashigir was appointed as a Salesman from 1.4.1989 and his last drawn salary was Rs.500/- per month ? 2. Whether Party I proves that the Party II did not comply with the provisions of Goa, Daman and Diu Shops and Establishments Act, 1973 and the rules made thereunder as also of Sec. 25F of the I.D. Act, 5 1947 and hence, the termination of services of the Party I/ Workman by the Party II is illegal ? 3. Whether Party I proves that the action of Party II in terminating the services of Party I/ Workman with effect from respective dates is illegal and unjustified ? 4. Whether Party II proves that it is not an 'Industry' as defined under Industrial Disputes Act, 1947 and hence the reference is null and void ? 5. Whether Party II proves that the reference in respect of the workmen Mr. Felix Fernandes, Mr. Rezinto Pedro Fernandes and Mr. Shaikh Kassim is not maintainable as there is no demand ? 6. Whether the Party II proves that the reference is null and void for non-application of mind as the Party II has not terminated the services of the workmen but they have voluntarily abandoned their services ? 7. Whether Party I is entitled to any relief ? 8. What Award ? 6. The Tribunal answered issue Nos. 1 and 2 in the affirmative and issue Nos. 4, 5 and 6 in the negative. Insofar as issue No.3 is concerned, the Tribunal answered the issue in the affirmative insofar as Shri Dilip Dessai, Felix Fernandes and Rezinto Fernandes are concerned. The 6 Tribunal held against Shri Shaikh Dastigir Kassim insofar as the said issue is concerned. 7. The Tribunal held that the activity carried on by the employer was an 'Industry' as defined under I. D. Act, 1947 and further that the employer had terminated the services of three workmen with effect from the respective dates and the same was illegal and unjustified. The Tribunal further held that the employer had not complied with the provisions of the Act of 1973 and also Section 25F of the Act, and consequently, the termination of services of the workmen was illegal. The Tribunal further held that Shri Dilip Dessai was appointed as a clerk from 19.12.1994 and his last drawn salary was Rs.620/- per month; Shri Felix Fernandes was appointed as Salesman from 23.1.1978 and his last drawn salary was Rs.550/- per month and Mr. Rezinto Pedro Fernandes was appointed as Helper from 1.2.1989 and his last drawn salary was Rs.350/- per month. 8. In reference, the three workmen Shri Dilip Dessai, Felix Fernandes and Rezinto Fernandes examined themselves and deposed in consonance with the case set up by them. On behalf of the employer, one Shri B. G. Caeiro was examined on commission since he was reported to be 7 sick. As stated above, the Reference Court on appreciation of the evidence held the termination to be illegal and directed reinstatement with full back wages and other consequential benefits. 9. Mr. Sardessai, learned Counsel appearing for the petitioner – employer, submitted that the activity, which was carried on by the petitioner, could not be termed as an 'Industry' and the finding recorded by the Tribunal to the contrary, is unsustainable in law and, therefore, the impugned award is liable to be set aside. He further submitted that the workmen had effective alternate remedy under Section 40 of the Act of 1973 and, therefore, the Tribunal ought not to have granted relief in favour of the workmen. Mr. Sardessai further submitted that the three workmen had abandoned the services of the petitioner and since no issue has been framed by the Tribunal insofar as the abandonment is concerned, the impugned award is vitiated. Mr. Sardessai further submitted that before seeking reference of the dispute, the workmen had not made any demand for reinstatement and, therefore, they are not entitled to any relief. Mr. Sardessai further submitted that the respondents are not entitled to entire back wages since they neither stated that they were ready to work nor they led 8 evidence to establish that they were unemployed after their services were illegally terminated. In support of his submissions, Mr. Sardessai placed reliance upon the following judgments: Kendriya Vidyalaya Sangathan and another Vs. S. C. Sharma; (2005)2SCC363; R.C. Tiwari Vs. M. P. State Cooperative Marketing Federation Ltd. and others; (1997)5 SCC 125. 10. Per contra, Mr. Nigalye, learned Counsel appearing for the respondent nos. 1 to 3 supported the impugned award and submitted that all the three workmen have stepped in the box and stated that they were unemployed after their services were terminated by the petitioner. He further submitted that even if the respondent Nos. 1 to 3 had an alternate remedy under the Act of 1973, the same would not preclude them from availing the remedy available under the Act since they were workmen and the activity carried on by the petitioner was an 'Industry'. Insofar as non-framing of issue regarding the payment is concerned, Mr. Nigalye submitted that upon appreciation of the evidence led by the parties, the Tribunal has clearly come to the conclusion that the petitioner had terminated services of the respondents and the respondents had not abandoned the services as claimed by the petitioner. Mr. Nigalye, 9 therefore, submitted that although a specific issue regarding the abandonment of the services has not been framed, the Tribunal has considered the same while dealing with the issue regarding the termination of the services of the respondents and, therefore, the award passed by the Industrial Tribunal cannot be faulted. 11. Insofar as the argument of Mr.Sardessai that no demand was made for reinstatement by the workmen before the reference was made by the workmen is concerned, Mr. Nigalye submitted that failure report submitted by the Conciliation Officer clearly discloses that the respondents / workmen had contended that their services were terminated by the employer. Mr. Nigalye submitted that there is no particular method prescribed for making demand for reinstatement. It was the case of the respondents/ workmen that their services were terminated illegally and, therefore, they are entitled to be reinstated and as such, the argument of Mr. Sardessai does not have any merit. Mr. Nigalye further submitted that the Tribunal after having come to the conclusion that the services of the respondents were illegally terminated by the petitioner, rightly awarded full back wages and other consequential benefits and, therefore, no fault can be found with the impugned award. In support of his 10 submissions, Mr. Nigalye relied upon the following judgments : (i) Shambhu Nath Goyal Vs. Bank of Baroda; AIR 1978 SC 1088. (ii) Sudhakar s/p. Vinayak Karegaonkar, Vs. Stateof Maharashtra & Ors ;2001 CLR 251. (iii) Agra District Co-operative Bank Ltd.Vs. Prescribed Authority, Labour Court, U.P. And others; AIR 2001 SC 2396. (iv) Anoop Sharma Vs. Executive Engineer, Public Health Divison No.1, Panipat ; 2010 II CLR 1. (v) Harjinder Singh Vs. Punjab State Warehousing Corporation; 2010 I CLR 884. 12. I have carefully considered the rival submissions and perused the record and the judgments relied upon by both sides. 13. Insofar as the argument of Mr. Sardessai that the activity carried on by the petitioner could not be termed as an 'Industry' is concerned, the Tribunal in paragraph 7 of the award has considered the issue and has held that the burden of proving that the activity carried on by the employer was not an 'Industry', was on the employer and he had not led any 11 evidence to prove that the activity carried on by the employer was not an 'Industry'. The Tribunal placing reliance upon the judgment of Bombay High Court in the case of R.M.Nerlekar Vs. Chief Commissioner Superintendent, Central Rail-way, Bombay reported in 1991 II CLR 789 held that the employer had not discharged the burden of proving ouster of jurisdiction of the Tribunal. In my opinion, the said finding can neither be stated to be illegal nor perverse warranting interference by this Court. Therefore, the argument of Mr. Sardessai that the petitioner is not an 'Industry' is hereby rejected. 14. Insofar the argument of Mr. Sardessai that since the workmen had alternate remedy available under the Act of 1973 against the termination of their services is concerned, Mr. Nigalye is justified in placing reliance upon the judgment of the Apex Court in the case of Agra District Cooperative Bank Ltd (supra) in which the Apex Court has held that when the question of employment arises, it cannot be that the doors of the Labour Court are shut to the workmen. The Apex Court further observed that it was possible that in certain cases Section 70 of the U. P. Cooperative Societies Act may be attracted. If parties availed of a remedy in one of the jurisdictions, that proceeding must be pursued to its 12 logical end and should not be given up in the middle and start another proceeding under another enactment. That would be a wholesome rule to be followed rather than to state that one or the other Tribunal has no jurisdiction. 15. In the present case, both the parties led the evidence on the basis of their pleadings. The Tribunal has come to the conclusion that the termination of the workmen was in violation of Section 25F of the Act. This being the position, in my opinion, the ratio laid down by the Apex Court is squarely applicable. The workmen cannot now be non- suited on the ground that they have got alternate remedy under the Act of 1973. Therefore, the argument of Mr. Sardessai on the ground of availability of an alternate remedy is rejected. 16. Mr. Sardessai has also argued that there was no specific demand made by the workmen for reinstatement before the order of reference was passed. In paragraph 6 of the judgment in the case of Shambhu Nath Goyal (supra), the Apex Court observed thus : “6. Thus the term 'industrial dispute' connotes a real and substantial difference having some 13 element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re- writing the section.” 17. The ratio laid down in the above case is squarely applicable in the present case. Moreover, before the Conciliation Officer, the workmen contended that they were illegally terminated and as such they were entitled to be reinstated and, therefore, the government was justified in making reference of the dispute for adjudication to the Industrial Tribunal. The industrial dispute did exist and, therefore, the argument made on behalf of the petitioner - employer that in the absence of any specific demand by the workmen the reference was bad, deserves to be rejected being without any merit. 18. The finding of the Industrial Tribunal that the services of the workmen were terminated on the dates 14 mentioned in the order of reference cannot be faulted. The Industrial Tribunal rightly rejected the defence set up by the petitioner that the three workmen had abandoned the services and consequently, the termination of their services was illegal by the employer being in breach of Section 25F of the Act. Merely because no specific issue regarding abandonment of services by the workmen was framed, would not be fatal in as much as the Tribunal has considered the aspect of abandonment of services while dealing with the issue of illegal termination of services of the workmen. 19. The next question which arises for consideration is whether the workmen are entitled to full back wages from the dates of termination and for the other consequential benefits. In M/s. Hindustant Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd and others; (1979) 2 SCC 80, the Apex Court held that once termination of workman was held to be illegal, he was entitled to full back wages till the date of his reinstatement. The law has undergone some change in the recent years and the Apex Court has held that in all cases of termination, the workman is not entitled to entire back wages as a matter of right. In the case of S. C. Sharma (supra) relied upon by Mr. Sardessai, the Apex Court held that the employee is not 15 entitled to full back wages once his termination is held to be illegal. He has to show that he was not gainfully employed and only, thereafter, the employer can bring on record materials to rebut the claim of employee. In the said case, the employee had not pleaded nor placed any material in that regard. However, in the said case, the Apex Court placed reliance upon another judgment of the Apex Court in P.G.I. of Medical Education Research Vs. Rajkumar; (2001) 2 SCC 54, in which the Apex Court observed that payment of back wages having a discretionary element involved in it has to be dealt with in the facts and circumstances of each case. No straight jacket formula could be involved though there is statutory sanction to direct payment of back wages in its entirety. In the case of Anoop Sharma (supra), the Apex Court set aside the order passed by the High Court setting aside the order passed by the Labour Court granting reinstatement with back wages after holding that the termination was in breach of Section 25F of the Act. In the case of Harjinder Singh (supra), the Apex Court set aside the order passed by the High Court setting aside the award passed by the Labour Court granting reinstatement and 50 % back wages. The Apex Court set aside the order passed by the High Court and maintained the award passed by the Labour Court on the ground that the termination of the 16 workman was illegal. 20. In M/s. Hindustan Tin Works Vs. Employees of M/s. Hindustan Tin Work Ltd. and others; 1979(2) SCC 80, the Apex Court held that when termination of a workman is held to be illegal, grant of full back wages would be the normal rule. However, in M. L. Binjolkar Vs. State of M. P.; (2005)6 SCC 224, the Apex Court after referring to several cases of the Apex Court held that the earlier view that whenever an order of termination or retirement is interfered with normal rule of granting full back wages was no more good law and the Court has to weigh the pros and cons of each case and take a pragmatic view. Thus, the present legal position emerging from the judgments of the Apex Court is that even if termination of a workman is held to be illegal being in breach of section 25F of the Act, it is not that the workman is automatically entitled to full back wages. The same depends upon number of factors. Considering the period for which the respondents were in service and further that the respondents/ workmen had not specifically pleaded that they had made any attempt to get alternate employment after the termination during pendency of the reference, and also considering the legal position regarding the grant of back wages once his termination is found to be illegal has 17 undergone some change during last decade or so, I am of the considered opinion that the interest of justice would be served by awarding 50 % back wages to the respondent nos.1 to 3 instead of 100 %. Therefore, the impugned award deserves to be modified only to the extent of awarding 100 % back wages. The respondent nos.1 to 3 are held entitled to 50 % of the back wages instead of 100 % as awarded by the Tribunal, and all other consequential benefits. Rest of the award is maintained. 21. For the reasons aforesaid, the writ petition is partly allowed and the impugned award is maintained except to the extent of grant of 100 % back wages to the workmen. The respondent nos. 1 to 3 are held entitled to 50 % of back wages and all the other consequential benefits. Having regard to the facts and circumstances of the case, there shall be no order as to costs. A. P. LAVANDE, J. SMA