Case: Keshavlal Mulchand Mody Vs. National Textile Corporation

question of his not being allowed to work on the ground that the management had no funds to start the company. This issue has been raised at this stage in October 1994 when the petition was filed as far back as in October 1986 by the petitioner herein. We find it difficult to accept the contention of the Respondents that the petitioner did not attend for duty as the petitioner has been a permanent employee since January 1962 and has continued to work for the Kohinoor Mills Company Limited till 18th October 1983. It is difficult to accept the contention that the petitioner did not attend or did not demand employment with the Respondents, more particularly when the petitioner has been a devoted worker with the Kohinoor Mills Company Limited as he has not participated in the general strike and during the strike period from 18th January 1982 till 18th October 1983, the petitioner has continued to work for the Kohinoor Mills Company Limited. The fact that juniors have been employed by the 1st Respondent has not been denied. However, it is urged on behalf of the Respondents that the juniors have not been employed by the 1st Respondent but by an institution "the Sankalp Division", which is an institution of the 1st Respondent, and this Sankalp Division came into existence in 1984. Therefore, it does not behove the 1st Respondent to state that the 1st Respondent did not have any hand in the employment of these individuals. Curiously enough, though the petition was filed in 1986 and the same was served upon the Respondents, they filed their Vakalatnama in 1987. The Respondents did not care to file any affidavit-in-reply. The same has been filed at this stage, that is to say, at the time of the hearing of the writ petition, and it is dated 25th October 1994, wherein the Respondents have set out various contentions with regard to whether the petitioner reported for the work and whether the Department where the petitioner was working was restarted. The question also arises as to whether the deponent who has made this affidavit-in-reply, there is a statement to the effect that the deponent has made this affidavit-in-reply, on the basis of his information, personal knowledge and the record to which the deponent has access and which he had perused and on the basis of information which he believed to be true, he has filed this affidavit-in-reply.( 13 ) AT this stage, it is contended on behalf of the Respondents that the question as to whether the petitioner did return for work and the question whether the Department where he was working was already started after taking over the management with effect from October 1983 is a question of fact and is required to be gone into by leading oral evidence.( 14 ) NO doubt, the petitioner did have the remedy available to him of applying before the Labour Court. However, the petitioner chose to adopt the remedy by filing the writ petition under Article 226 of the Constitution of India. Merely because he had adopted this remedy, it does not mean that he is not entitled to any reliefs, more particularly since it is an admitted position that the petitioner has worked for the Kohinoor Mills Company Limited from 1962 till 1983 and has been a faithful employee of the Company inasmuch as even during the strike period the petitioner did not take part in the strike and continued to remain in the Mills which fact has not been denied by the Respondents. So far as the Respondents are concerned, no doubt, the Respondents have employed the services of other junior clerks because they attended and made applications before the Sankalp Division. So far as these appointments are concerned, they are also contrary to the contention of the Respondents, namely, whether the Department in which the petitioner was working was at all restarted after the take over of the management by the 1st Respondent with effect from 18th October 1983. This has not been the basis of the employment given to others by the Sankalp Division. Therefore, we are of the opinion that it is not open for the Respondents to contend that employment was given to those employees when the working of the Department restarted after the takeover of the management by the 1st Respondent on 18th October 1983. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to reinstatement for the period from 18th October 1983 to April 1987 and, being entitled to re-instatement, the petitioner is also entitled to full back wages. So far as this petitioner is concerned, we are also of the opinion that the 1st Respondent has at no point of time terminated the services of the petitioner, though the 1st Respondent took over the management of the Kohinoor Mills Company Limited under the Textile Undertakings (Taking over of Management) Ordinance, 1983, nor have the Respondents issued any show cause notice to the petitioner as to why action should not be taken in view of the fact that the petitioner has not cared to report for duty as contended by them. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to the relief of re-instatement, and for back wages. However, in view of the fact that the petitioner has reached the age of superannuation, the relief that he is entitled to is only the relied of back wages.( 15 ) SO far as the question of back wages is concerned, it was urged on behalf of the 1st Respondent that the 1st Respondent is also a sick unit that the question of payment of back wages to the petitioner, the same will have to be recovered from the Union of India. So far as the question of payment of wages is concerned, the same will have to be computed under section 33c (2) of the Industrial Disputes Act, 1947.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]( 12 ) HOWEVER, so far as these particulars are concerned, it is pertinent to note that the Respondents have furnished only the particulars of his employment, after the period of his retirement, that is to say,to May 1992 when according to the Respondents the petitioner would have retired with effect fromThough the petitioner was employed with M/s. Patel Ghanshyamdas and Company from May 1987, this does not lend support to the case of Respondents that the petitioner was employed during the period 1983 to 1987 when, according to the petitioner, he was jobless. So far as the case of the petitioner is concerned, one fact is clear and that is that the petitioner by his letter datedaddressed to the 1st Respondent, the petitioner approached the 1st Respondent seeking employment with the 1st Respondent. In the said letter, the petitioner has, in terms, recorded the fact that the management of the Mills was taken over frombut he was not allowed to work along with the other employees on the ground that the 1st Respondent did not have funds to restart the Mills and that the was informed that as and when the work of the Mill will be in proper shape and the same would function in amanner that they will recall the employees according to the seniority and the requirements. Curiously enough, in the said letter, the petitioner has also, in terms, set out that junior salesman have been employed, but he was not permitted to join his duties and that the action of the 1st Respondent was illegal. However, though his letter was received by the 1st Respondent, curiously enough, the 1st Respondent did not care to give any reply to the contents of the said letter or to deny the same, which is sought to be done by the Respondents at this stage by the affidavit datedfiled by one Madhukar Narayan Revdekar, Deputy Manager, Labour and Welfare Department, of the 1st Respondent. So far as this affidavit is concerned, in the said affidavit, the Respondents have admitted the receipt of the letter, but they have denied the contents of the said letter. In the said letter, there is also reference to the affect that the petitioner has addressed a letter datedwhich aspect has also not been clarified by the Respondents as the Respondents have, apart from admitting the receipt of the letter, chosen to categorically deny the contents of the said letter. At this stage, the Respondents have sought to remain content by raising arguments to the affect that the petitioner did not attend and, therefore, there is not question of his not being allowed to work on the ground that the management had no funds to start the company. This issue has been raised at this stage in October 1994 when the petition was filed as far back as in October 1986 by the petitioner herein. We find it difficult to accept the contention of the Respondents that the petitioner did not attend for duty as the petitioner has been a permanent employee since January 1962 and has continued to work for the Kohinoor Mills Company Limited till 18th October 1983. It is difficult to accept the contention that the petitioner did not attend or did not demand employment with the Respondents, more particularly when the petitioner has been a devoted worker with the Kohinoor Mills Company Limited as he has not participated in the general strike and during the strike period from 18th January 1982 till 18th October 1983, the petitioner has continued to work for the Kohinoor Mills Company Limited. The fact that juniors have been employed by the 1st Respondent has not been14 ) NO doubt, the petitioner did have the remedy available to him of applying before the Labour Court. However, the petitioner chose to adopt the remedy by filing the writ petition under Article 226 of the Constitution of India. Merely because he had adopted this remedy, it does not mean that he is not entitled to any reliefs, more particularly since it is an admitted position that the petitioner has worked for the Kohinoor Mills Company Limited from 1962 till 1983 and has been a faithful employee of the Company inasmuch as even during the strike period the petitioner did not take part in the strike and continued to remain in the Mills which fact has not been denied by the Respondents. So far as the Respondents are concerned, no doubt, the Respondents have employed the services of other junior clerks because they attended and made applications before the Sankalp Division. So far as these appointments are concerned, they are also contrary to the contention of the Respondents, namely, whether the Department in which the petitioner was working was at all restarted after the take over of the management by the 1st Respondent with effect from 18th October 1983. This has not been the basis of the employment given to others by the Sankalp Division. Therefore, we are of the opinion that it is not open for the Respondents to contend that employment was given to those employees when the working of the Department restarted after the takeover of the management by the 1st Respondent on 18th October 1983. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to reinstatement for the period from 18th October 1983 to April 1987 and, being entitled tothe petitioner is also entitled to full back wages. So far as this petitioner is concerned, we are also of the opinion that the 1st Respondent has at no point of time terminated the services of the petitioner, though the 1st Respondent took over the management of the Kohinoor Mills Company Limited under the Textile Undertakings (Taking over of Management) Ordinance, 1983, nor have the Respondents issued any show cause notice to the petitioner as to why action should not be taken in view of the fact that the petitioner has not cared to report for duty as contended by them. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to the relief ofand for back wages. However, in view of the fact that the petitioner has reached the age of superannuation, the relief that he is entitled to is only the relied of backfar as the question of payment of wages is concerned, the same will have to be computed under section 33c (2) of the Industrial Disputes Act, 1947.