Tulsiani Chambers Premises ... vs Shrikant V. Gawas
2001 Latest Caselaw 271 Bom

JUDGMENT

R.J. Kochar, J.

1. The petitioner is a co-operative society formed by the owners of the commercial premises in the building of the society. There is no dispute that the society itself is not carrying on any trade business or industry. There is also no dispute that the society is rendering service to its members who have their office in the building . The society employee about 22 persons in different categories. The society had employed the respondent as supervisor cum electrician or electrician-cum-supervisor from the year 1982 when the society was registered. By an order dated 7th May, 1998, the petitioner society informed the respondent employee that the post of supervisor was abolished with immediate effect and, therefore, he was rendered surplus. He was further informed that in the meeting of the managing committee held on 6th May, 1987 the service of the respondent was terminated with immediate effect. In this letter, the respondent was offered one month's wages in lieu of notice and his earned salary for 8 days. This order of termination did not carry an offer of retrenchment compensation as provided under section 25F of the Industrial Disputes Act. In view of some dispute raised by the respondent while accepting this letter, he was issued another letter dated 8th May 1987 clarifying the position that even the post of electrician was abolished with immediate effect and he was further offered an amount of Rs. 250/- in addition to 8 days wages. It appears that the respondent refused to accept the said letters and this was placed on record by the society in its letter dated 11th May, 1987. By his letter dated 1st June, 1987, the respondent caused a reply through his union, inter alia, alleging that by terminating him from employment, the petitioners had engaged in unfair labour practice within the meaning of Item 1(b) and (f) of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The said letter contained a demand for reinstatement with full backwages and continuity of service. This letter was replied by the petitioners by their letter dated 23rd June 1987 denying the allegations of unfair labour practice and explaining position that the respondent was found surplus as his post was abolished and, therefore, the order of termination was not illegal or invalid or mala fide or a unfair labour practice . The petitioners expressed their inability to reinstate the respondent.

2. The respondent, thereupon, filed a complaint of unfair labour practice invoking Item 1(b) and 1(f) of Schedule IV of the MRTU & PULP Act. It was specifically alleged that his termination was in colourable exercise of the powers and that no retrenchment compensation was offered and therefore, it was with undue haste. The petitioners filed their written statement denying the allegations of unfair labour practice levelled by the respondent. The petitioners explained that since the society was not an industry as contemplated under the Industrial Dispute Act, 1947, there was no question of complying with the provisions of section 25 of the said Act. It was also averred that the respondent was in employment from 1982 i.e. from the registration of the society and never before. The society has specifically pleaded that neither the M.R.T.U. Act nor the I.D. Act applied to the society, and therefore, they have not committed any act of unfair labour practice. The Labour Court recorded oral evidence of both the parties and by its judgment and order dated 29th October, 1997 dismissed the complaint of the respondent employee. The respondent filed a revision application before the Industrial Court under section 44 of the M.R.T.U. Act, challenging the aforesaid order of the Labour Court. The Industrial Court examined the entire case de novo. framing its own issues as it was the original trial Court and partly allowed the revision by quashing and setting aside the order of the Labour Court and by holding that the petitioners had engaged in unfair labour practice as complained by the respondent employee. The Industrial Court directed reinstatement of the respondent with 25% back wages and continuity of service with effect from 7th May, 1987. The petitioners are aggrieved by this order and they are, therefore, before this Court under Article 226 of the Constitution of India.

3. The complaint is completely vague and the written statement is also equally vague. The respondent examined himself before the Labour Court and has tried to improve his case to bring it under Item 1(b) of Schedule IV of the Act by whispering that he was terminated from employment because he was forming the union. In the cross-examination he admits that after receipt of the letter of termination he had gone to the union. There is no other evidence to substantiate the allegations of unfair labour practice of either victimisation or lack of good faith and colourable exercise of the rights of the employer. The petitioners examined their manager who disposed that the post of supervisor was abolished and none was appointed as supervisor or electrician in the society. He has also deposed that the respondent was working with two Doctors in the very same society after his termination from employment. There is no challenge to the case of the petitioners that the post of supervisor was abolished and that nobody else was appointed in the place of the respondent. There is also no challenge to the averment that the respondent was working with two Doctors viz., Dr. Patel and Dr. Amin and many other places. The manager has also deposed that there were no residential premises in the society and that all the premises were commercial establishments. The manager has also candidly admitted that whenever work of electrician is required they call for electrician from outside and get the work done.

4. The pleadings and the evidence of both the sides are not satisfactory. Though the petitioners have raised a point of law that the petitioner's co-operative society is not an industry, there is no evidence at all to substantiate the said contention. In these circumstances, I have not considered this point of petitioner society being an industry or not. However, in another W.P. No. 2443 of 2000, Kiran Industrial Premises Co-op. Society Ltd. v. Janata Kamgar Union, while dealing with the issue whether such society is a commercial establishment or not, I have taken a view that a society comprising of members owning their commercial "galas" is not a commercial establishment unless the society itself is carrying on the business, trade or any commercial activities. In that case the society was merely collecting maintenance from the members and was paying the statutory dues to the Municipal authorities and wages to the servants employed as watchman, liftmen, clerks and pumpmen.

5. On the merits of the case, no doubt, while terminating the employment of the respondent, the petitioner had not offered an amount of retrenchment compensation under section 25F of the I.D. Act. Shri Ganguli has, therefore, submitted that the order of termination in these circumstances, is ex facie illegal and reinstatement with full backwages should follow. At the first blush the argument of the learned Advocate for the respondent is attractive. However, there are undisputed facts which deter me from accepting the said contention of the learned Advocate. The post of electrician cum supervisor has been abolished and there is no dispute about this fact. The society management was under an impression that they were not governed by the Industrial Disputes Act or M.R.T.U. & P.U.L.P. Act. It appears that they carried this impression bona fide. In this background, it appears that the amount of retrenchment compensation as required under section 25F of the I.D. Act was not offered to the respondent along with letter of termination. In my opinion, since there is no dispute about the abolition of the post of supervisor cum electrician, it would not be in the interest of justice to foist the respondent on the society by granting reinstatement and full backwages as a consequence. According to me, there were no mala fides or malice or lack of good faith in passing the order of termination of the respondent. The managing committee of the society acted to pass a resolution to abolish the post of supervisor cum electrician as it was not required. Having passed such a resolution it appears that the respondent is simply relieved from the employment by offering him one month's wages in lieu of employment . In fact, the management should have taken proper legal advice before implementing its resolution to terminate the respondent from employment. Besides, the respondent has been doing work at several places and has been earning income which is reflected from pass book produced by him on record. His average income from the pass book is worked out to be Rs. 2000/- per month. The job of an electrician is equal to any essential service and it is possible that he has not remained unemployed at all. I do not blame him if he has sought employment as every one has to earn his livelihood. In these circumstances, it will not be proper and in the interest of justice to order reinstatement of the respondent employee as has been done by the Industrial Court. The Industrial Court has exceeded its supervisory jurisdiction under section 44 of the Act. The Industrial Court has re-appreciated the evidence in the background of the issues framed by it afresh while considering the revision. The order of the Labour Court could not and should not have been interfered with in the manner in which the Industrial Court has done. I, therefore, quash and set aside the order of the Industrial Court granting reinstatement with 25% backwages to the respondent.

6. In these circumstances, I modify the order of the Industrial Court by granting retrenchment compensation from 1982 to Feb. 2001 on the basis of the last drawn wages of the respondent employee. I also direct the petitioners to pay equal amount by way of gratuity along with retrenchment compensation to the respondent. The petitioner shall pay this amount to the respondent employee within 4 weeks from today. The writ petition is allowed, rule is made absolute with no orders as to costs.