WP/4086/2001 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4086 OF 2001 Vilas Purshottam Kelkar ..Petitioner V/s. IEC Air Tools Pvt. Ltd. & Anr. ..Respondents Mr. N.G. Helekar for the Petitioner. Mr. A.V. Anturkar for Respondent No.1. CORAM: SMT. NISHITA MHATRE, J. DATE : 6 TH SEPTEMBER, 2010. JUDGMENT : 1. The present Writ Petition has been filed against the order dated 19th December, 2000 passed by the Industrial Court, Pune, dismissing the Complaint (ULP) No.1095 of 1997 filed by the petitioner under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, (for short “the MRTU & PULP Act”). 2. The services of the petitioner were terminated by the respondent No.1 on 18th November, 1991. He raised an industrial dispute in respect of his reinstatement with WP/4086/2001 2 continuity of service and back-wages. The dispute was referred for adjudication to the Labour Court, Pune, being Reference (IDA) No.275 of 1992. By an Award dated 21st May, 1997, the Labour Court set aside the order of the dismissal passed against the petitioner. The respondent No.1 is directed to reinstate the petitioner with continuity of service but without back-wages. This Award was not implemented by the respondent No.1 on the ground that the Award had been challenged by it by filing a Writ Petition before this Court. Although the Writ Petition is admitted, being Writ Petition No.4820 of 1997, this Court refused to stay the Award. Despite this, the respondent No.1 failed to implement the Award. 3. The petitioner filed Complaint (ULP) No.1095 of 1997 before the Industrial Court, Pune, complaining of a failure to implement the Award in Reference (IDA) No.275 of 1992. The petitioner had also filed an application for interim relief. That application was allowed on 10th March, 1998. The Industrial Court directed the respondent No.1 to permit the petitioner to join duties immediately and directed further that the wages with WP/4086/2001 3 effect from 21st May, 1997, i.e. the date of the Award, should be paid till the date he joined duty. It appears that the petitioner was permitted to resume duties, but was not paid wages at par with other employees. The respondent No.1 did not implement the Award so far as it directed that he should be given continuity of service. The petitioner had filed an application for amendment of his complaint which was allowed by the Industrial Court. However, his application for a direction to the respondent No.1 to produce certain documents was rejected by the Industrial Court. 4. On 19th December, 2000, the Industrial Court dismissed the complaint and vacated the interim orders. The Industrial Court held that it was an admitted fact that there was no practice of granting yearly increments to the workmen of respondent No.1. According to the Industrial Court, the complainant, i.e. the petitioner herein, had also admitted that there was no system of paying yearly increments to the employees of respondent No.1. The Industrial Court then observed that the benefits of continuity of service can be given only at WP/4086/2001 4 the time of retirement and during the service tenure, a workman cannot claim continuity of service. The Industrial Court further held that since the complainant, i.e. the petitioner herein, had not stated which specific benefit he was entitled to, there was no unfair labour practice committed by the respondent No.1. 5. A bare perusal of the Award in the aforesaid Reference (IDA) No.275 of 1992 indicates that the petitioner is entitled to reinstatement with continuity of service. The Writ Petition filed by the respondent No.1, being Writ Petition No.4820 of 1997, challenging the grant of reinstatement with continuity of service to the petitioner, has been dismissed by me today. The Writ Petition filed by the petitioner, being Writ Petition No.3928 of 1998, has been allowed and the Reference (IDA) No.275 of 1992 has been remanded to the Labour Court, Pune, only to decide whether the petitioner is entitled to full back-wages from 18th November, 1991 till 21st May, 1997. The Award with respect to reinstatement with continuity of service has been confirmed. WP/4086/2001 5 6. When an Award is passed directing an employer to reinstate the workman with continuity of service, it means that the workman must be permitted to resume duties not as a fresh employee but as one who continued in service without a break. The dismissal order of 18th November, 1991 would be of no consequence and the petitioner would be entitled to all service benefits as if he continued in service even after 18th November, 1991. 7. The finding of the Industrial Court that continuity of service cannot be claimed during the service tenure but only at the time of retirement is completely erroneous. It is only because a person is in continuous service that he is entitled to several benefits including a wage rise, increments, bonus etc. etc. It is true that for the purposes of payment of retirement benefits, the entire service of the employee is to be considered. However, this does not mean that while paying wages or increments etc., the continuous service put in by the employee is not to be considered during the period he is in service. The Award of the Labour WP/4086/2001 6 Court directing that the petitioner should be reinstated with continuity of service indicates that there is no break in service at all and that the petitioner is entitled to all benefits arising out of his service with the respondent No.1 ever since he joined i.e. on 18th June, 1987. 8. The Industrial Court, unfortunately, in this matter has rejected the application filed by the petitioner for production of the muster-cum-wage registers for the period from 1988 to 1991 from which documents the petitioner wanted to demonstrate that increments were being paid regularly by the respondent No.1 to its employers. According to the petitioner, though his appointment letter did not mention that he was entitled to any increments, a practice had been followed by the respondent No.1 of paying increments which would have been reflected in the muster-cum-wage registers. It is for this reason that the application had been filed. The Industrial Court has lost sight of the fact that it had refused to grant the application filed by the petitioner regarding production of the muster-cum-wage registers WP/4086/2001 7 and observed that the petitioner had not proved his case. 9. In my opinion, the order of the Industrial Court is erroneous and perverse and, therefore, requires to be set aside. 10. Accordingly, the Writ Petition is allowed by passing the following order : “O R D E R” (i). The impugned order dated 19th December, 2000, passed by the Industrial Court, Pune in Complaint (ULP) No.1095 of 1997, is set aside. (ii). The Complaint (ULP) No.1095 of 1997 is remanded to the Industrial Court, Pune, for a fresh hearing. (iii). The respondent No.1 is directed to produce the muster-cum-wage registers for the period from 1998 to 1991 and WP/4086/2001 8 from 18th July, 1998 to 3rd April, 2000. (iv). The Industrial Court, Pune, to dispose of the Complaint (ULP) No. 1095 of 1997, after permitting the parties to lead such additional evidence, if so advised, within a period of six months from today. (v). The parties shall appear before the Industrial Court, Pune, on 27th September, 2010 at 11 A.M. for further directions in the matter. (vi). Parties to act on an authenticated copy of this order. 11. Rule made absolute accordingly. 12. No order as to costs.