National Textile Corporation ... vs Madhukar Gopal Bhogvekar And Ors.
2002 Latest Caselaw 160 Bom

JUDGMENT

Nishita Mhatre, J.

1. The petitioner has challenged the orders of the Labour Court and the Industrial Court granting reinstatement and full back wages from 18th January, 1982 to the first respondent workman.

2. The first respondent workman was one of those workman who could not remain present on duty because of the strike declared in the mills on 18th January, 1982. On 29th March, 1986, his services were terminated on account of his alleged active participation in the illegal strike. The petitioner also informed the workman that his services were terminated as despite several advertisement in various newspapers calling upon the mill employees to join duty, he had failed to response. On receipt of the letter of termination of service, the first respondent workman approached the petitioner by his letter dated 7th May, 1986 and requested them to withdraw the order of termination. As this was not acceded to by the petitioner, the workman filed an application under sections 78 and 79 of the Bombay Industrial Relations Act, 1946 on 15th May, 1986 praying for reinstatement with continuity of service and full back wages. This was resisted by the petitioner on the ground that the workman had indulged and actively participated in the strike and that he had failed to report for duty on or before the cut-off date i.e. 31st May, 1983. Evidence of the first respondent workman was recorded. However, the petitioner did not lead any oral evidence. The Labour Court had believed the evidence of the first respondent workman and has granted reinstatement to him with continuity of service and full back wages from 18th January, 1982. Being aggrieved by this, the petitioner filed an appeal under section 84 of the Bombay Industrial Relations Act, 1946 before the Industrial Court. This appeal was dismissed and the order of the Labour Court was confirmed.

3. It appears that, after the order of the Labour Court, the petitioner has reinstated the first respondent workman. Therefore, the question that remains now is regarding back wages only.

4. Mr. More, learned Advocate for the petitioner, vehemently argued that the Labour Court has erred in granting back wages to the workman from 18th January, 1982 when the dispute arose only on 29th March, 1986 when the services of the first respondent workman were terminated. He further submits with equal vehemence that the petitioner had called upon the workman to report for duty through the publications of various appeals in the newspapers. But the respondent had chosen to pay no need to these appeals and continued on strike. He submits that this factor should be taken into account while considering whether the workman is entitled to any wages.

5. Mr. More's objection to the order of the Labour Court granting back wages from 18th January, 1982 is justified. The Labour Court ought to have kept in mind the fact that the petitioner had terminated the service of the workman only on 29th March, 1986. Therefore, back wages can be awarded only from this date. There may be some substance in the case of the first respondent that the petitioner did not pay wages to the him from 18th January, 1982 when the strike was declared. However, what would not lead to the conclusion that the first respondent workman is entitled to wages for the period from 18th January, 1982 to 29th March, 1986 in the present application. The application is confined to reinstatement with effect from 29th March, 1986 and, therefore, the question of granting back wages for an earlier period in this application does not arise.

6. However, Mr. More's contention that the respondent workman had not chosen to remain present despite fervent appeals by the mill, cannot be countenanced as although the first respondent remained absent during this period, the petitioner chosen to take action against the workman only on 29th March, 1986. The termination of service has been held to be illegal by the Labour Court as well as the Industrial Court based on the evidence on record. I see no reason to differ from their view.

7. The first respondent workman is still working with the petitioner in pursuance of the order of the Labour Court. While granting Rule, this Court had granted stay of back wages on the condition that petitioner would pay simple interest at the rate of 15% on the amount of back wages in case the petitioner's fail.

8. In this view of the matter, the orders of the Labour Court and the Industrial Court are modified. Back wages will be payable to the first respondent workman from 29th March, 1986 together with simple interest at the rate of 15% per annum. The petitioner to pay the back wages within six weeks from today.

9. Rule accordingly made partly absolute with no order as to costs.

10. Certified copy expedited.