Case: Changunabai Chanoo Palkar Vs. Khatau Makanji Mills Limited and Others

The appellant (original writ petitioner) came to be employed in the Winding Department of the respondent company sometime in 1944 according to her and in March 1947 according to the respondent company. The Maharashtra Girani Kamgar Union called upon all employees in the textile industry in Greater Bombay to resort to strike from 18th January, 1982. In view of the said call, the appellant along with other employees absented from duty. The strike was declared illegal by an order of the Labour Court dated 11th February, 1982. According to the appellant, after the Chief Minister made an appeal to the employees to resume duty and the tense situation eased, the employees started reporting for duty and a majority of them were permitted to resume duty. She too reported for duty at the Mill Gate but was not allowed to resume. Her grievance was that she was singled out in that regard and by such discriminatory attitude compulsory unemployment was thrust upon her. She was neverand no Departmental Enquiry was held against her. She was not given compensation under sectionof the Industrial Disputes Act, 1947. Under such circumstances, she addressed a letter dated 30th October, 1984 to the respondent company seeking permission to join duty but the request was not entertained, she then sent a approach letter dated 10th November, 1984 but there was no response. She thereupon filed an application under sections 78 and 79 of the Bombay Industrial Relations Act, 1946, claiming reinstatement in service with continuity and full back wages.2. The case of the respondent company in the course of the adjudication proceeding was that the strike had been declared illegal and that by a notice published in a local newspaper on 28th February, 1982 the employees were apprised of the same and were called upon to resume duty. Again, on 6th April, 1982, by another notice published in a local newspaper, the employees were called upon to end the strike and to resume duty and informed that if they failed to do so, appropriate action would be initiated against them. The appellant, however, failed to report for duty which amounted to misconduct. In view of the prevailing circumstances in which a large number of employees had participated in the general strike, it was not possible to give ato the appellant or to hold an enquiry in respect of the misconduct. By an order dated 22nd December, 1982 she was, therefore, dismissed. The order of dismissal was sent to her at the recorded address but the envelope was returned, which gave rise to a presumption of due service. Under the aforementioned circumstances, according to the respondent company, the approach notice dated 10th November, 1984 was beyond the prescribed time limit and the application, therefore, was not maintainable.3. During the course of the adjudication proceedings, the parties led evidence. The respondent company placed on record, inter alia, the envelope bearing the recorded address and returned by the Post Office. The appellant, however, denied that any such envelope was tendered to her at any stage. The Labour Court drew a presumption under section 114 of the Evidence Act and held that there was deemed service of the dismissal order upon the appellant and that since the approach letter was not served within three months thereof, the application under sections 78 and 79 was not maintainable. On merits, however, the Labour Court gave a finding in favour of the appellant. If found that the misconduct of the appellant was mere passive participation in an illegal strike for a fairly long period. For mere passive participation in an illegal strike, the extreme punishment of dismissal was not warranted and it was not proper and legal. Besides, the appellant was discriminated against because all the workers, who had participated in an illegal strike, had not been dismissed. Some of those workers were allowed to resume duty. For all these reasons, it was held that the punishment of dismissal was not legal and proper. In view of the finding on the maintainability of the application, however, the appellant was denied any relief and her claim was dismissed.4. The matter was carried in Appeal to the Industrial Court under section 84 of the Bombay Industrial Relations Act, 1946. The Industrial Court found that one of the envelopes produced by the respondent company did not bear any endorsement as to the reasons for its being rejected or returned and the other carried an endorsement as to the reasons for its being rejected or returned and the other carried an endorsement that the addressee could not be traced at the address given. Under such circumstances, mere production of the envelope was not itself sufficient to draw a presumption of due service under section 114 of the Evidence Act, especially when the receipt was denied by the appellant. Disagreeing with the Labour Court, therefore, the Industrial Court held that the dismissal order was never served on the appellant and that the application filed by her under sections 78 and 79 could not be held to be barred by limitation. The Industrial Court thereafter proceeded to consider the dispute on merits and observed as follows:"...The appellant lady, therefore, gets benefits of the expression by the Labour Court that the dismissal order otherwise for a mere passive participation would have no justification. The decision of our High Court in Jaslok Hospital case 1983 II L.L.N.P. 620) and that of Supreme Court in Gujarat Steel Tubes case 1980 I L.L.J. p. 137) fully support the said expression of the Labour Court.It is, however, found that during the time the application was pending before the Labour Court, the appellant lady crossed 60 years of age and was due for retirement under the Model Standing Orders. Her year of birth recorded happens to be 1925 and this is stated to be correct by the appellant lady herself in the very first answer to a question put inHence even if dismissal order is set aside the reinstatement ordered could be for the period uptoonly. The price for participation in an illegal strike and an approach made to the employer after two years had, however, to be paid in terms of total deprival of back wages".In view of the aforesaid finding, the appeal was partly allowed, the order passed by the Labour Court dismissing the application was set aside and the appellant was held entitled to reinstatement in service for a period upto 31st December, 1985. It was further directed that she was entitled to retrial benefits but not to the back wages.

Reasoning:
13. Turning now to the facts of the present case, nowas served nor an enquiry was held before the appellant was dismissed. Even the dismissal order was not served upon her. The action taken accordingly was illegal rendering the dismissal order non est. The respondent company, however, couldas in this case it attempted to dojustify the action and make out delinquency before the Labour Court, which had full jurisdiction to adjudge de novo both the guilt and the penalty. In the course of the said proceedings, what has been held proved against the appellant is nothing more than passive participation by not reporting for duty during an illegal strike. There is no finding that the illegal strike was unjustified. It is true that participation in an illegal strike is misconduct as per the Standing Orders. Howers, the case of the appellant is that she wanted to resume duty when the situation normalised and that she actually reported at the Mill Gate to join duty but was not allowed to resume. This is specifically pleaded and deposed and is supported by documentary evidence on record. The degree of culpability as disclosed by these facts, therefore, had necessarily to be kept in view while imposing the penalty. Besides, it has been found that all the workers who had participated in the illegal strike were not dismissed or terminated. Some of them were taken back and allowed to join duty. There was, therefore, unreasonable discrimination in the matter of dealing with employees who absented during the strike. Having regard to all these circumstances, the Labour Court as well as the Industrial Court concurrently found and, in our opinion, rightly, that the proved misconduct did not warrant or justify the extreme penalty. The Industrial Court, therefore, ordered reinstatement of the appellant in service upto the date of her superannuation and declared her entitled to retrial benefits but not back wages. The learned Single Judge affirmed the decision in toto holding that the direction regarding withholding of back wages did not suffer from any infirmity and that the decision, if fact, appeared to be "compassionate one" from the point of view of the appellant who had participated in the illegal strike.The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab initio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconductpassive participation in the illegal strikecame to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since predating of the award would have no legal sanction. For good and valid reasons, however, back wages or a part thereof could still be denied in the exercise of judicial discretion depending upon the combination of facts and circumstances. The appellant is a female employee who served the respondent company from 1944 to 1982, that is, almost for four decades. Her record of service is otherwise unblemished since nothing adverses has been brought on record. She absented from duty during the illegal strike as it was a mass movement directed not only against her own employer but against the entire textile industry. The strike commenced on 18th January, 1982 and it was declared illegal on 11th February, 1982. There was no individual approach to the workmen, including the appellant, nor any persuasive effort on the part of the respondent company to induce them to resume duty. Of course, the respondent company published notice twice in a newspaper calling upon the workmen to report for duty and also advising that failure to resume might result in appropriate action being taken against them. The notices were published on 28th February, 1982 and 6th April, 1982. This was a mixture of a call to resume duty and of ultimatum and threat. The appellant nevertheless reported for duty but was not taken back. This treatment was meted out to her discriminatorily since she was denied entry in the Mill premises whereas many others were permitted to resume duty and even new hands were employed. She addressed two letters to the respondent company in OctoberNovember 1984 seeking reinstatement by they evoked no response. The result was that she had to go through a protracted litigation in the Labour and Industrial Courts claiming reinstatement with full back wages from 30th October, 1984an awesome factor in itselfand to undergo suffering in the process. She apparently sustained herself in the ultimate hope of getting a just relief in the said forum. By the time the litigation ended and she vindicated her right, she had already reached the age of superannuation and the success was rendered illusory in a sense because actual reinstatement could not be gained. The claim for back wages was, therefore, the only relief to which she looked forward and that too for the limited period from 30th October, 1984 to 31st December, 1985, that is, for an interregnum of 14 months only. The trauma of facing enforced unemployment and prolonged litigation is itself a sort of punishment and also a form of censure. Under such circumstances, to deny back wages due to her in a sum which cannot be regarded as substantial for the employer, would be to visit her with a further penalty which is not justified. Reinstatement on setting aside of a termination which was void ab initio was not compassionate gesture; it was a legitimate right. The claim for back wages had a legal foundation; denial thereof must be based on rational and realistic grounds formulated on a consideration of the entire set of circumstances. The denial thereof on the facts and in the circumstances of the present case is not only unwarranted but would also amount to putting a premium on the litigating activity of the employer.16. For the foregoing reasons, in our opinion, the discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the learned Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st December 1985.