1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No.755 of 2009 Bombay Intelligence Security (India) Ltd. and others ..Petitioners Vs. Chandrakant Govind Kotkar ..Respondent Ms.Navneet Chahal for petitioners. Mr.S.N.Deshpande for respondent. CORAM: S.J.KATHAWALLA J. 7th September, 2009 P.C. 1 This writ petition is filed by the petitioner impugning the order dated 26th March, 2008 passed by the Industrial Court in complaint (ULP) No.338 of 1997. 2 The respondent workman was working as a watchman with the petitioner for a period of 9 years after which, according to him, he was illegally terminated. In a reference before the 7th Labour Court, 2 Mumbai, an order was passed in favour of the workman i.e. allowing the reference and directing the petitioner to reinstate the workman with full back wages and continuity of service with effect from 23rd July, 1990. The said award was dated 23rd December, 1996 which was admittedly published on 12th February, 1997. To put it plainly the Award was completely in favour of the workman. 3 According to the petitioner, on 17th February 1997, a purported settlement was arrived between the petitioner and the respondent under sec. 2(p) read with sec. 18(1) of the Industrial Disputes Act, 1947 whereunder it was agreed that the petitioner shall pay an amount of Rs.25,000/- in full and final settlement of all the dues/claims of the workman including the claim for reinstatement or re- employment, monetary or otherwise. It was recorded that the workman is being paid Rs.15,000/- by cheque and Rs. 3 10,000/- in cash for which he shall pass a separate receipt. It was recorded that in view of the said payment, the award and order dated 23rd December, 1996 shall stand fully and finally complied with and non-est. 4 According to the petitioner despite the purported settlement, the workman by his letter dated 4th March, 1997 forwarded a copy of the Award to the petitioner and requested them to reinstate him pursuant to the said Award with full back wages and continuity of service with effect from 23rd July, 1990 as he was ready and willing to resume the duty with immediate effect. The respondent by their letter addressed to the workman replied to his letter dated 4th March, 1997 and inter alia recorded that on 17th February 1997 (i.e. after publication of the Award) the workman along with his representative Mr.Lobo approached the petitioner with a proposal to settle the matter on monetary terms and the 4 entire matter was settled in the presence of Mr.Lobo for a sum of Rs.25,000/- Therefore, the claim of the workman by his letter dated 4th March, 1997 would not survive. 5 The workman by his Advocate s letter dated 21st March, 1997 addressed to the petitioner recorded that the contents of their letter and documents attached thereto were false and baseless and the settlement was denied. It was recorded that the petitioner had paid the cheque for Rs. 15,000/- on 12th February, 1997 to the workman as part payment towards the implementation of the Award and informed that the balance would be paid within two weeks and he will be allowed to resume duty and assured to implement the Award. The said cheque was not encashed and was still lying with the workman. It was recorded that when the workman went to resume his duties on completion of two weeks the petitioners did 5 not allow him to resume his duties and also failed to pay the balance amount towards back wages and other benefits. The petitioners for the first time in reply to the letter of the workman dated 4th March, 1997 took a dishonest stand, of the matter having been settled for Rs.25,000/- The Advocate for the workman further recorded in the said letter that the workman had fought the legal battle from July 1990 and ultimately won the same after about 7 years so the question of settling the same after succeeding in the matter for such a petty amount does not arise at all. A cheque of Rs.15,000/- was given to the workman and not of Rs.25,000/- as alleged, that too on the aforesaid misrepresentation. It was recorded that the papers were dishonestly created by the petitioner with the help of and in connivance with the workman s representative Mr.Lobo and the workman s signature was obtained on 6 documents without explaining the contents thereof with a dishonest intention of cheating the workman. The petitioner was, therefore, called upon to implement the award within 7 days from the date of receipt of the said letter. 6 Since the petitioner failed to implement the said Award the workman filed a complaint being complaint (ULP) No.338 of 1997 before the Industrial Court alleging unfair labour practice on the part of the respondent under items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971. Initially the complaint of the workman was dismissed on the ground that in view of settlement dated 17th February,1997 between the petitioner and the workman, there was no question of issuing any direction to respondent no.1 to implement the said Award. The said decision was challenged by the workman before this Court in Writ Petition No.922 of 2005. An order 7 dated 3rd April, 2007 was passed by this Court setting aside the impugned order and remanding the matter to the Industrial Court with a direction to decide the same in accordance with law. Upon remand the parties did not lead any further evidence, but re- argued the matter after which the order dated 26th March, 2008 which is impugned herein was passed. 7 I have gone through the Award wherein the Industrial Court has discussed the evidence and interalia observed/held that Publication of the award in Reference (IDA) No.568 of 1992, the Respondents obtaining his signatures on certain documents and issuing him a cheque of Rs.15,000/- without explaining him as to for what purpose his signatures were obtained as well as narrating him that the cheque is as advance towards back wages and assurance of reinstating him within two weeks period are 8 the specific assertions in his examination in chief which are not at all confronted in his cross examination. As such, the facts as averred by the complainant have to be considered as proved. The Industrial Court has further observed that therefore, the evidence of respondent no.4 (Mr.Lobo representative of the workman) as witness of respondents 1 to 3 averring that the complainant himself has entered into settlement with the management of Respondent no.1 loses its significance and I find a vestige of truth in the case put forth by the complainant. 8 The Industrial Court has after setting out the defination of settlement under section 2(p) of the Industrial Disputes Act, 1947 come to a clear finding that the alleged settlement (Exh.U-12) cannot be considered as settlement and it has no significance at all and cannot be read as a 9 settlement. The Industrial Court has after giving cogent reasons also reached a finding that in view of the specific provision (section 17(2) of the Industrial Disputes Act, 1947) by the legislation, no settlement or agreement subsequent to the publication of the Award can make the award nonest and the binding effect of the Award remains in tact. The Industrial Court has, therefore, after observing that admittedly the award passed by 7th Labour Court Mumbai in Reference (IDA) No.568 of 1992 has not been challenged by the petitioner herein and has become final and it is also not disputed that the petitioner has not implemented the said award, held that it is crystal clear that the petitioner by not implementing the Award passed by the said Labour Court has committed unfair labour practice under item 9 of Scheduqle IV of the MRTU and PULP Act and are still continuing to engage in such unfair labour practice. Having 10 come to that conclusion the Industrial Court has passed the said order dated 26th March, 2008 which is impugned herein by the petitioner. 9 The main contention of the petitioner is that the Industrial Court has not appreciated the evidence of the representative of the workman led by the petitioner. In my view, this submission is incorrect since the Industrial Court has after appreciating the evidence not taken cognizance of the evidence of the said representative of the workman and has found the evidence of the workman being full proof. The Industrial Court has also recorded in paragraph 10 of the Award. ....Notably, the respondent nos. 1 to 3 have examined respondent no.4 as their witness who has signed the settlement as the representative of the complainant, against whom distrust is pleaded and deposed by the complainant. 11 The learned Advocate appearing for the petitioner has also argued that in the written statement of the petitioner filed before the Industrial Court dated 29th June, 1998, the petitioner had made a without prejudice offer calling upon the complainant to immediately report for his duty as the respondent was ready to induct him in his work force as a fresh security guard on the terms and conditions applicable to all other security guards of the petitioner. It is submitted that the workman failed to report though offered by the petitioner and, therefore, he is not entitled to back wages as and from 29th June, 1998. Admittedly as per the award the workman was to be reinstated by the petitioner with continuity of service with effect from 23rd July 1990. The petitioner cannot make an offer of giving employment to the workman as fresh security guard and thereafter plead before the Court 12 that he ought to have accepted that offer failing which he is not entitled to back wages. If the petitioner would have made an offer to the complainant to absorb him without prejudice to their rights and contentions as a security guard, pursuant to the Award dated 23rd December, 1996, it would have been a different matter. Again, in any event the petitioner, as can be seen from the Award impugned has not raised any such contention pertaining to any offer before the Industrial Court. In my view, having kept quiet on the said issue before the Industrial Court, the petitioner now cannot contend that the Industrial Court was incorrect in granting the back wages to the workman since the workman had failed to accept the offer of the petitioner as suggested in the written statement of the petitioner. 10 In view of the aforesaid, I am of the view that the order passed by the Industrial 13 Court in favour of the workman and against the petitioner cannot be faulted on any of the grounds alleged by the petitioner. The same is passed after appreciating the evidence on record and after giving cogent reasons in support of the said order. In view thereof, the impugned award dated 26th March, 2008 is not required to be interfered with under Article 226 of the Constitution. In view thereof the writ petition is dismissed. (S.J.KATHAWALLA J.)