Case: Tata Iron &amp; Steel Company Limited Bombay &amp; Another Vs. Adil K. Patel

This Letters Patent Appeal was admitted by the Division Bench of this Court on 22.6.1994 by the following order: "CORAM: H.H. KANTHARIAA.P. SHAH, JJ: Appellant Nos.1 and 2 given an undertaking to this Court to reinstate the 1st respondent in his original position effective from tomorrow, the 23rd June 1994 and pay him 50% of the backwages within one week from today. The appeal is admitted. Appellant No. 2 shall file the undertaking in this Court in the course of the day. The undertaking is accepted. Certified copy expedited. 22.6.1994."2.It appears that present respondent No.1 took out a praecipe on 20th August, 2001 Para 6 of which reads thus :"6. However, when the Appeal came up for final hearing before Their Lordships The Honble Mr. Justice Palshikar and The Honble Mr. Justice Vazifdar on 14th August, 2001 the Appellants sought to contend that the Appeal was admitted in respect of the entire issue of reinstatement and back wages, while the Respondents sought to contend that the Appeal was now confined to 50% back wages only. After hearing the parties for some time on this issue the same was adjourned for a period of two weeks to enable the Respondent to seek clarification from the Original Bench as to whether the appeal is admitted only for 50% back wages or for all the issues." 3.On the praecipe the Honble Chief Justice ordered this appeal to be posted before the Bench presided over by A.P. Shah and accordingly, the matter came up before the Bench of A.P. Shah and V.C. Daga, JJ. on 22.1 0.2001. The Division Bench of A.P. Shah and V.C. Daga, JJ. on 22.10.2001 passed the following order: "Heard the learned Counsel.It is clear from the order dated 22.6.1994 that the appeal was admitted only with respect to the claim for backwages and 50% backwages were directed to be paid at the time of ad mission and we are informed that the said amount has been paid to the respondent. The only dispute now remains is with regard to the balance of 50% backwages.Put up for final hearing before the regular Court.The parties and the authorities to act on the ordinary copy of this order duly authenticated by the personal secretary of this Court."4.The appeal has now come up for hearing before us.

Reasoning:
Having passed through the interviews, he was appointed as Accounts Assistant vide appointment order dated 5.7.1979 by the employer. The complainant submitted that under the appointment order he was not liable to be transferred to any company subsequently set up by Tatas. The complainant worked as Assistant Accountant in the Accounts Department from the year 1979 to 1982. In the year 1982, the complainant was transferred to P.F. Section of the company and then in the year 1984 he was transferred to the Share Department. It is complainants case that somewhere in the year 1985 he came to know from some reports that his services were likely to be transferred to other company viz., Tata Share Registry Private Limited alongwith other members of the staff working in the Central Share Department and on the basis of the said report he made a representation to the Director of Finance on 31st December, 1985 expressing his disinclination to join the newreading the complaint carefully and meaningfully, that is how pleadings should be construed and not formally, we find it difficult to appreciate the first contention of Mr. Naik that the complaint was not maintainable as complainant had set up specific case of his dismissal for misconduct on an illusory andground and was visited with shockingly disproportionate punishment and, therefore complainant cannot challenge his termination on the ground of retrenchment. Many of the grounds set up by the complainant overlap; some of which are obviously in alternative. We do not find any legal bar in the complainant challenging his termination by way of discharge which includes retrenchment and in the alternative also without specifically saying so on the ground of dismissal under various clauses of item 1 of Schedule IV of MRTU and PULP Act. There is no principle much less legal sound principle in ousting the complainant who had filed the complaint in relation to unfair labour practice under MRTUPULP Act on various grounds for his relief some of which may overlap and few of which may be different from each other. It isprinciple that pleadings must be read meaningfully and construed liberally and not in formal or technical manner to find faults. Merely because in the averments made in the complaint, the expression "alternatively" has not been used while setting up grounds of unfair labour practice, no inference can be drawn that if one ground has been set up by the complainant, other grounds stand excluded and cannot be taken into consideration. The principle which is sought to be canvassed by the learned counsel for thethat in the complaint where the complainant has set up case of dismissal on illusory andground: such complainant cannot be permitted to raise the plea of unlawful retrenchment, if accepted, would really be travesty of justice as that may amount to throwing out the meritorious case on technical ground by reading the pleadings in the complaint in formal ande law isthat no amount of evidence can be looked upon a plea which was never butthe question of retrenchment did not figure in the said record, it would be unfair to the Additional Labour Court that its award should be quashed on a ground which had not been raised before it. Secondly the learned counsel for the petitioners before us prays that the termination should not only be quashed but the petitioners should also be reinstated with entitlement to receive back wages from the date of the termination. They thus want to be paid their wages for more than four years though during that period they did not work for the employer. Their position in this respect is similar to those petitioners who approach this Court under Article 226 too late without justification forthe petitioner was notin the cadre of Accounts Assistant in the employercompany. If at all on closure of Central Share Department the complainant was rendered surplus, by applying the principle of "last come first go", thefrom amongst Accounts Assistant ought to have been retrenched. That was not done and complainant was retrenched. The retrenchment of the complainant who is notis sought to be justified by the learned counsel for employer on two grounds viz. (1) that the complainant was at the time of his retrenchment was working in the Central Share Department of the Company and the said Department having been closed, though all other employees agreed to accept the job in new company but the complainant refused to do so, and, therefore, services of the complainant being sole employee in that department were validly terminated; and (ii) upon closure of the Central Share Department where the complainant was working, he was rendered surplus and somebody had to be retrenched but as the complainant was working in the Central Share Department itself, it was thought fit to terminate the services of theis true that departure from the rule "last come, first go" under S.25G is permissible on valid and justifiable grounds but the grounds, however, suggested by the employercompany can hardly be held to be valid and justifiable ground for such departure. The permissible grounds for departure from "last come, first go" rule have to be something pertaining to junior employee being highly efficient and because of his efficiency does not deserve to be retrenched, though junior, or there was recorded history of the senior workman indicating his insufficiency, unreliability or habitual irregularity or some other ground akin toaccordingly, have no hesitation in holding that there was no valid and justifiable ground for thefor departure from "last come, first go" rule in the present case and the finding recorded by the learned Single Judge that employer committed unfair labour practice under Item 1(d) of Schedule IV of MRTUPULP Act cannot be said to suffer from any infirmity. 14.In so far as the last contention raised by learned counsel forthat there was valid agreement (settlement) entered into between the recognised union and theand the complainant being member of the recognised union was bound by the said settlement and having not accepted the said settlement and despite the complainant having been offered employment in the other company, the termination of complainants services cannot be faulted is concerned, we do not find any merit in this contention as well. Mr. Naik submitted that agreement dated 7th February, 1986 having been acted upon by the Union and theeven if it was not in proper proforma and the procedure as per rules was not followed, was still binding upon the complainant. According to Mr. Naik, the learned Single Judge was not justified in holding that the agreement was not as per the mandatory requirement of law and therefore, not binding.16.There is no dispute before us that theagreement is not in the form XVI nor is signed by both the parties nor its copies have been sent to the authorities mentioned in Rule 62 of Industrial Disputes (Bombay) Rules, 1957. Apparently the requirement contained in clause 2(p) of the Industrial Disputes Act and Rule 62 of aforesaid Rules have not been complied with.No doubt is left from the aforesaid communication that the 14 employees referred to in the agreement dated 7.2.1986 were other than the present complainant and therefore, even otherwise the complainant could not have been made bound by the agreement dated 7.2.1986 said to have been entered into between the recognised union and22. All in all, we find ourselves in the agreement with the view taken by learned Single Judge and we do not find it a fit case for interference in our Letters Patent Jurisdiction.Before we conclude, we observe that the only issue in the Letters Patent Appeal was with regard to the balance of 50% of backwages as the complainant was already reinstated and paid 50% of backwages for the reasons already indicated by us in the beginning of this judgment but as the learned counsel forsubmitted that for consideration of the issue whether complainant is entitled to the balance of 50% of backwages, we are required to examine the contentions raised, we dealt with the aforesaid contentions, though it was hardly necessary.