Garlick Engineering vs Kumar Khanolkar And Anr.
2004 Latest Caselaw 510 Bom

JUDGMENT

Nishita Mhatre, J.

1. This petition impugns the order of the Labour Court passed in Complaint (ULP) No. 17 of 1984 directing the petitioner to pay backwages from the date of termination of the services of the respondent- workman i.e., from 29-10-1983 to 31-12-1988 with increments and other benefits. The petition also challenges the order dated 23-2-1993 issuing show-cause notice to one Vijay G. Sawant, Personnel Officer of the petitioner for producing and using forged and false documents in the matter while leading evidence.

2. The short question which arises in this petition is whether the remuneration earned for a short while by an employee whose services have been terminated can be adjusted against the entire period of non-employment with the employer.

3. The petitioner employed respondent No. 1 in its service as a Senior Engineer. His services came to be terminated in 1983. Aggrieved by this order of termination of his services, the respondent-workman challenged the order by filing complaint (ULP) No. 17 of 1984. At that point of time, the petitioner was paying an amount of Rs. 1500/-per month as wages to the respondent No. 1. The petitioner objected to the maintainability of the complaint on the ground that the respondent was not a workman as defined under Section 2(s) of the Industrial Disputes Act. The Labour Court dismissed the complaint by concluding that the complainant i.e., respondent No. 1 was not a workman. That order was affirmed by the Revisional Court. Aggrieved by both these orders, the respondent- workman filed writ petition No. 1171 of 1990 which was allowed on 20-3-1991. The complaint was remanded for a fresh hearing on merits as this Court found that the respondent was a workman within the meaning of Section 2(s) of the Industrial Disputes Act. After remand, the petitioner filed an application on 23-3- 1992 before the Labour Court, stating that it had no objection to reinstate the respondent-workman in service. Accordingly, the respondent was reinstated. However, since he was not given any continuity of service, the respondent resigned from service.

4. In the meantime, the complaint proceeded regarding the payment of backwages for the period of unemployment that is from 29-10-1983 to 1-4-1992 when the respondent was reinstated in service.

5. On the basis of the evidence on record, the Labour Court came to the conclusion that the petitioner was able to establish that the respondent was gainfully employed from 1989 onwards and therefore, the respondent was not entitled to backwages from 1-1-1989. The Labour Court held that the respondent was entitled to full backwages from 29-10-1983 to 31-12-1988. According to the Labour Court, the two periods were distinct as the respondent was gainfully employed only from 1-1-1989 in a firm known as Khanolkar Consultants which was a family business. The Labour Court also found that the respondent was running his proprietary business in the name of Dattagiri Yantra Nirman from 1-1-1989 and, therefore, the respondent was not entitled to any wages for the period beyond 1-1-1989.

6. A preliminary objection has been raised by Mr. Pradhan, learned Advocate for respondent No. 1, regarding the maintainability of the Writ petition. According to the learned Advocate, the petitioner has not exhausted the efficacious, alternate remedy of filing a revision application before the Industrial Court against the order of the Labour Court. The learned Advocate submits that by approaching the High Court directly, the petitioner has greatly prejudiced the respondent workman who could have established in a Revision that the order of the Labour Court need not be interfered with. He submits that the respondent is deprived of one stage in the process of litigation which has caused great prejudice. The learned Advocate relies on the judgment in the case of Engineering Employees Union v. Devidayal Rolling and Refineries Pvt. Ltd., 1986 Mh.LJ. 331 where the learned single Judge of this Court (R. A. Jahagirdar, J.) considered the scope of Section 44 of the MRTU and PULP Act. The learned Judge observed that when the Act itself invests the Industrial Court with the power of superintendence over the orders passed by the Labour Court and that power of superintendence is as wide as the jurisdiction of this Court under Article 227 of the Constitution of India, a party cannot by-pass the remedy provided for under the Act by approaching this Court under Article 227 of the Constitution. In the case of Secretary, Minor Irrigation and Rural Engineering Services UP and Ors., on which reliance has been placed by the learned Advocate for the respondent, the Supreme Court held that when there is an alternate remedy provided under the Statute a writ petition cannot be maintained on the ground that the Tribunal lacks power to pass interim orders. These submissions of the learned Advocate for the respondent-workman could have been made when the petition was heard for admission. The respondent was heard at the stage of admission and, therefore, it could not be said that the respondent had no opportunity to make such submissions before the Court. In my view, after the petition has been admitted to relegate the petitioner to the remedy of filing the revision application at this stage would not be appropriate, nor would it be in the interest of justice.

7. Mr. Naik, learned Counsel for the petitioner takes serious objection to the finding of the Labour Court that full backwages for the period from 29-10- 1983 to 31-12-1988 should be paid to the respondent. The learned Advocate submits that there is no doubt that the respondent had earned more than what he was earning with the petitioner during his entire period of unemployment. The learned Advocate submits that although the respondent may not have been employed for the period of from 29-10-1983 to 31-12-1988, the Labour Court is expected to consider the entire period of unemployment as one period and then has to adjudge whether backwages should be paid for this entire period. According to the learned Advocate, it was not open for the Labour Court to bifurcate the span of unemployment and to consider the period beyond 1-1-1989 till reinstatement for ascertaining whether the respondent was gainfully employed. The learned Advocate relies on the judgment in the case of Lalit Gopal Berry v. M. V. Hirway, 1973 Mh.LJ. 322 = 1973 II LLJ 22 to submit that the Division Bench of this Court has found that when the Labour Court or the Tribunal considers the question of backwages whatever the workman earns during the period for which he was not effectively maintained in service must be accounted for by him and to that extent the liability of the employer must diminish.

8. The learned Advocate also submits that the respondent should be shown no indulgence as he has not approached the Labour Court with clean hands. The learned Advocate submits that despite the respondent not disclosing that he was gainfully employed in an establishment, the petitioner had on the basis of the reliable evidence established that the respondent was gainfully employed; not only as a Manager in Khanolkar Consultants which was a family concern but also by running his own proprietary concern known as Dattagiri Yantra Nirman. The learned Advocate relies on the judgment of this Court in the case of Indian Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officer, 5th Labour Court and Ors.. 1996 LLR 94.

9. Mr. Pradhan, learned advocate for the respondent, urges that no interference with the orders is called for by this Court while exercising its jurisdiction under Article 227 of the Constitution. He submits that the backwages ought not to have been reduced at all as the respondent has only helped in the family business. The learned Advocate for the respondent relies on the judgment in the case of Rajinder Kumar v. Delhi Administration, 1986 Lab.I.C. 374 to submit that merely because the respondent was employed in the family concern, it would not amount to gainful employment as understood in industrial jurisprudence. The learned advocate then urges that the amount earned by the respondent during a short period cannot be set off against the entire period of forced unemployment. It can be considered only for the period it was actually earned.

10. On a perusal of the order of the Labour Court, I find that the Labour Court has observed that the petitioner company has produced a forged letter in order to establish that the respondent was working elsewhere during the period of unemployment with the petitioner. The letter has been produced through one Vijay G. Sawant and therefore, the Labour Court has issued notice to the witness and directed him to show-cause why a criminal prosecution should not be lodged against him. After going through the evidence and on a consideration of the order passed, I do not think it was necessary for the Labour Court to pass such an order. Although the evidence on the basis of this letter may be doubtful as recorded by the Labour Court it would not ipso facto mean that the document has been fabricated. Therefore, the order dated 23-3-1993 issuing notice to the Vijay G. Sawant is quashed.

11. Backwages are normally awarded to a workman as a consequence of reinstatement in service. The amount earned by the workman from the time his services are terminated till reinstatement is to be considered while awarding backwages. It is well settled that a workman is not entitled to wages from 2 employers concurrently; unless what is earned during the period of forced unemployment is to be treated as solatium. It is obvious that the respondent- workman has not disclosed his employment and it was only during the cross- examination of the respondent that evidence was brought on record to indicate that he was employed in the family concern as a Manager and was drawing remuneration. In the cross-examination it has been established that the respondent was running his proprietary concern during the period of his unemployment. Obviously, therefore, the judgment in Indian Engineering Works Pvt. Ltd. (supra) where this Court has observed that a workman is obliged to disclose the full particulars of his gainful employment to the Labour Court adjudicating the industrial dispute would apply. However, in that case, the workman was employed in another concern immediately after the termination of his services. This Court had therefore, denied the backwages which were awarded by the Labour Court. In the present case, there is no doubt that the respondent had not earned for five years prior to 1-1-1989.

12. The petitioner has already deposited pursuant to the direction of this Court at the time of admission 50% of the backwages due and payable and the same has been invested. 1 am of the view that interests of justice will be met if this amount of 50% of backwages which has been invested is directed to be paid to the respondent-workman along with the accrued interest. The order of the Labour Court is, therefore, modified, to the extent that the petitioner is liable to pay 50% backwages from 29-10-1983 to 31-12-1988 with the usual increments and benefits. Since this amount has already been deposited in Court and invested, respondent No. 1 is at liberty to withdraw the same along with the accrued interest.

13. Accordingly, Rule made absolute partly with no order as to costs. Order accordingly.