1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 82 OF 2005 IN WRIT PETITION NO.4999 OF 1998 Shri Rau Appa Thombre ...Appellant V/s. B.G.Shirke Construction Tech. P.vt. Ltd., & Anr. ...Respondents ---- Mr. K.S.Bapat for the appellant. Mr.S.K.Tulsania Sr.Advocate i/by M/s. Sanjay & Co. for the respondents. ---- Coram : D.K.Deshmukh & R.S.Mohite,JJ Date : 25th June, 2009. P.C. 1. By this appeal, the appellant challenges the order dated 8.1.2001 passed by the learned single Judge of this Court declining to entertain Writ petition filed by the petitioner. The relevant facts are that a reference is made under Industrial Disputes Act which was registered as Reference (IDA) No.200 of 1994. The question referred was reads as under :- Shri Rau Appa Thombre, whose services have been terminated w.e.f. 23.5.93 should be reinstated on his original post with continuity of service and full back wages for the intervening idle period." 2 2. The Industrial Court held that termination of the services of the appellant were not valid. Those issues were answered in favour of the appellant. The Industrial Court however, held that the appellant was not entitled to the relief of reinstatement in service and also of back wages but he was entitled to compensation in the amount of Rs.50,000/-. That order was challenged before the learned single Judge of this Court by filing Writ petition. Learned single Judge observed that taking overall view this was not a matter where this Court should interfere in its extra ordinary jurisdiction. It is apparent from the record that the Labour Court declined to grant reinstatement and back wages to the appellant because of the admitted position that immediately after termination of the services of the appellant on 23.5.1993 the petitioner was again appointed and it was the case of the petitioner that after he rendered services for about 15 months, he was forced to give resignation on 16.8.1994. It is an admitted position that there is no dispute filed by the petitioner in any Court of law challenging the alleged forced termination of his services from 16.8.1994. The Industrial Court has therefore, declined to make order for reinstatement and back wages. Learned Counsel for the appellant relying on the judgment of the Supreme Court in the case of Pottery Mazdoor Panchayat Vs. Perfect Pottery Co. reported in 1979 LAB. I.C. 827, submits that as the issue of forced resignation of 1994 was not framed before the Labour Court and as the term of reference did not include any reference to the alleged forced resignation, the Labour Court in view of the judgment of the Supreme Court referred to above, could not have considered that aspect of the matter and travelled beyond the scope. In our opinion, submission is not well founded. It was part of the reference made to the Labour Court whether petitioner was entitled to reinstatement in service with full back wages or not ? The 3 Industrial Court while considering the question of reinstatement, found that the same employer has re-appointed the petitioner in the year 1993 itself and therefore, at the most on holding that the termination of the service of the petitioner in 1993 was not valid, the Labour Court could have granted back wages for the period from 23.5.1993 till the date of reappointment. There was no question of granting any reinstatement because the petitioner was actually appointed in the same post. Had the petitioner continued in service, there was no question of granting reinstatement and back wages beyond the period from the date of his termination till the date of his reappointment. So far as his service after the date of his reappointment is concerned, that service came to be terminated because the appellant tendered his resignation or accepting the case of the appellant at best, that he was forced to give resignation, it will amount to termination of his service. If it amounts to termination of his service, it was for the appellant to challenge the termination before appropriate Court of law. Failure to challenge the termination in any Court of law, amounts to acceptance of the termination of service by the appellant. In our opinion, therefore, the appellant would not be entitled to any wages for the period subsequent to 16.8.1994. Awarding of any wages to the appellant for the period subsequent to 16.8.1994 would amount to recording a finding that the termination of service from 16.8.1994 was not valid, and that finding could not have been recorded because the validity of that termination was not challenged by the appellant in any Court. Therefore, taking over all view of the matter, it cannot be said that the award of the Labour Court has resulted in any failure of justice. In such a situation, therefore, in our opinion, the learned single Judge on finding that in the facts and circumstances of the case, failure of justice has not occasioned rightly 4 declined to entertain the petition. We see no error of law. Appeal fails and dismissed with no order as to costs. (D.K.DESHMUKH,J) ( R.S.MOHITE, J. )