Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.2035 of 2005 Maharashtra Film, Stage & Cultural Development Corporation Ltd. ...Petitioner V/s. Shri Sudhir S.Gandhe ...Respondent Mr.R.S.Apte with Mr.N.R.Bubna, Advocate for the Petitioner Mr.N.M.Ganguli, Advocate for the Respondent CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 25th February , 2008 : 25th February , 2008 : 25th February , 2008 P.C. P.C. P.C. This petition impugns the Award passed by the Labour Court on 16-10-2004 in Reference(IDA) No.814/1991 and by the said Award the Petitioner Corporation has been directed to reinstate the Respondent workman with full backwages and continuity of service w.e.f. 1-1-1990. While granting Rule this Court had stayed the impugned Award as per the order dated 10-6-2005 and consequently when the Respondent workman filed Civil Application No. 793/2007 claiming the benefit under Section 17B of the I.D. Act, petition was taken up for final hearing. 2. There is no dispute between the parties that for the first time the Respondent came to be appointed on 26-9-1988 as an Accounts Assistant on a monthly salary 2 of Rs.1500/- and he was discontinued from 1-1-1990 without giving notice or notice pay. He, therefore, submitted a complaint to the Government Labour Officer alleging illegal termination of service and at one stage the proceedings before the Assistant Labour Commissioner were closed and subsequently reopened which finally resulted into making the reference for adjudication for the demand of reinstatement with full backwages and all consequential benefits. Alongwith the petition a tabular statement has been filed claiming an amount of Rs. 9,62,982/- by way of backwages for the last about 17 years. 3. The Petitioner Corporation had filed written-statement before the Labour Court and claimed that the workman was appointed purely for a fixed period on account of temporary increase in work related to "Apna Utsav Festival-1989" and as soon as the said additional work was over by the end of December 1989, his contract was not renewed from 1-1-1990 and, therefore, non-renewal of such contract would not amount to retrenchment within the meaning of Section 2(oo) of the I.D.Act. The Labour Court on the other hand has held that non-renewal of contract from 1-1-1990 is actually termination of service without notice and without pay and, therefore, it amounted to retrenchment within the meaning of Section 2(oo) of the Act. The 3 Labour Court rejected the contentions that it was not a retrenchment and, therefore, directed reinstatement with full backwages. Under these circumstances two questions are required to be considered in this petition namely; (i) whether disengagement of the Respondent on 1-1-1990 amounted to retrenchment as defined under the Act and even if the first issue is held in favour of the respondent workman; (ii) whether the Award passed by the Labour Court would be justifiable? 4. So far as the issue of retrenchment is concerned, the onus of proving that it was not retrenchment fell on the Petitioner Corporation. Admittedly, there was no appointment order issued during the 15 months tenure of the Respondent workman with the Corporation and thus there was no written contract either for a fixed period or stating that temporary employment will end by efflux of time or on completion of the festival. When the witness of the Corporation namely Shri V.J.Rathod who was working as the Manager (P.&A.) in his cross-examination admitted that the ’Apna Utsav Festival’ was only for a period of 7 days, it cannot be 4 accepted that the engagement of the Respondent was for a fixed tenure. The stand of the Corporation that the Respondent’s name was not entered in the muster-roll and that he was being paid on voucher is of no consequence when the issue of retrenchment and the consequent issue of compliance of Section 25F of the I.D.Act is considered. On the contrary it was admitted that the Respondent was employed for about 15 months and he had completed more than 240 days of service during the period of preceeding twelve months with reference to 1-1-1990. He also admitted that neither notice nor notice pay was paid to the Respondent on 31-12-1989 or on 1-1-1990. Under these circumstances the finding recorded by the Labour Court that the termination of the service of the Respondent amounted to retrenchment and there was no compliance of Section 25F of the I.D. Act is required to be up held. 5. The witness of the Corporation in his depositions before the Labour Court clearly stated that the additional work warranting engagement of additional people had come to an end as on 31-12-1989 and from 1-1-1990 there was no requirement of taking additional hands. In his cross-examination the Respondent workman stated before the Labour Court that he could not produce any documentary evidence to show that he had made efforts to locate a suitable job elsewhere and that he 5 had not given any details of such efforts made by him for employment. It is well settled that in every case of non-compliance of the mandatory requirements of Section 25F of the I.D. Act, reinstatement as a matter of course does not follow. Though Mr.Ganguly relied upon the Judgement in the case of State Bank of India State Bank of India State Bank of India V/s. V/s. V/s. N.S.Money (AIR 1976 SC 1100) N.S.Money (AIR 1976 SC 1100) N.S.Money (AIR 1976 SC 1100) and submitted that reinstatement is the necessary relief that must cover. In the instant case the Respondent Corporation which is a State undertaking has brought on record by leading evidence the non-availability of type of the work, the respondent was engaged in. The Respondent himself had admitted before the Labour Court in his oral depositions that his friend who was working with the Corporation and through him he met one Mr. Shukla who by his oral order asked him to report for duty and that is how he worked for 15 months. The Corporation is correct in its submissions that it was a only temporary job on which the Respondent was engaged. Mr.Apte, the learned counsel for the Petitioner has rightly placed reliance on the following two decisions of the Supreme Court, (i) Sain Steel Products v/s. Naipal Singh & others (2001 I LLJ 1345) (ii) Employers, Management of Central P&D Inst. Ltd. v/s. Union of India & anr.(2005 I LLJ 552). 6 In para-7 of its Judgement in the case of Employers, Management of Central P & D Institute Ltd.(supra), a three Judge Bench of the Supreme Court stated as under:- "But it is to be noticed that it is not always mandatory for the Courts to order reinstatement in cases where there has been violation of Section 25-F of the Act which can be substituted for good reasons by awarding compensation. In the normal course we would not have interfered with the order of reinstatement directed by the Industrial Court. In this case we think the concerned work-person is not interested in going back to her duty on terms and conditions as were applicable to her on the date of her discharge which according to the record was as a daily wager. From the material on record and the submission of the learned counsel for the appellant it is clear that the employee has not joined duty as directed by the Industrial Tribunal probably because she is otherwise settled in some other job." The same ratio has been followed by the Supreme Court in the case of D.G.M. Oil and Natural Gas Corporation Ltd. D.G.M. Oil and Natural Gas Corporation Ltd. D.G.M. Oil and Natural Gas Corporation Ltd. & anr. v/s.. Ilias Abdulrehman (2005 I LLJ 554). anr. v/s.. Ilias Abdulrehman (2005 I LLJ 554). anr. v/s.. Ilias Abdulrehman (2005 I LLJ 554). I 7 also find support on this count in the decision in the case of State of M.P. and others V/s. Arjunlal Rajak State of M.P. and others V/s. Arjunlal Rajak State of M.P. and others V/s. Arjunlal Rajak (2006(109)FLR (2006(109)FLR (2006(109)FLR 156). 156). 156). 6. In the instant case the record indicates that the Respondent had approached the GLO immediately and the proceedings were closed. He subsequently requested to reopen the proceedings and that is how a reference came to be made for adjudication of his demand. It has been almost 18 years from the date of his termination and it is not the case that during this intervening period or while the reference was pending, some new hands were engaged by the Respondent Corporation as Accounts Assistants. As noted earlier the Respondent admitted in his cross-examination that he had no documentary proof regarding the efforts he had put in to seek alternative employment. Under these circumstances the order for backwages is unsustainable and it will be appropriate that the Award passed by the Labour Court is substituted by awarding a reasonable amount of compensation, keeping in mind that the Respondent was getting a monthly salary of Rs. 1500/- and he worked for 15 months, as well as the law laid down in the case of Arjunlal Rajak (supra). 7. In the premises the petition is allowed partly and the impugned Award of the Labour Court directing reinstatement with full backwages is hereby modified and 8 substituted by directing the Corporation to pay lumpsum amount of Rs.50,000/- to the Respondent workman within a period of six weeks from today. The said amount shall be deposited with the Registry of this Court and on such deposit the Respondent will be allowed to withdraw the same forthwith. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]