Bombay High Court
M/S. Ocean Creations vs Manohar Gangaram Kamble on 29 November, 2013
Bench: M.S. Sonak
skc WP-1032-2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1032 OF 2007
M/s. Ocean Creations ]
403, Ashish Industrial Estate, ]
Gokhale Road (S), Dadar, ]
Mumbai 400 025 ] ..Petitioner
versus
1.Manohar Gangaram Kamble ]
C/o. A.B.G.K. Union, R. No. 91,
ig ]
Mukadam Chawl, Near Satyam Sai ]
Laundry, Santacruz (E), Mumbai ]
2.The Presiding Officer, ]
th
4 Labour Court, Bandra, Mumbai ] ..Respondents
Mr. K. S. Bapat with Mr. Jayesh Desai i/b. Desai & Desai Associates
for Petitioner.
Mr. J. N. Shiradhonkar i/b. Mr. Manoj M. Kondekar for Respondent
No. 1.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment: 22.11.2013
Date of Pronouncing the Judgment: 29.11.2013
JUDGMENT :-
1] Rule was issued in this petition on 06.08.2007 with
directions to deposit 50% of the back wages with effect from
01.11.1998. This direction is reported to have been complied with.
skc WP-1032-2007
2] The challenge in this petition is directed against the judgment
and award dated 05.10.2006 passed by the 4th Labour Court,
Mumbai (hereafter referred to as 'impugned award') directing the
Petitioner (employer) to reinstate the Respondent No. 1 (workman)
with continuity of service along with payment of 75% of the back
wages.
3]
It is the case of the Petitioner that the Respondent No. 1
abandoned services with effect from 01.03.1999. On the other hand
it is the case of the Respondent No. 1 that his services were
terminated by the Petitioner with effect from 01.11.1998 without
issuance of any show cause notice, conduct of any enquiry and in
breach of the provisions contained in Section 25-F of the Industrial
Disputes Act, 1947 ('said Act'). The controversy in this petition
therefore almost entirely raises an issue of fact as to whether the
services of the Respondent No. 1 were terminated by the Petitioner
with effect from 01.11.1998 or whether the Respondent No. 1
abandoned his service with effect from 01.03.1999.
4] Mr. Kiran Bapat, the learned counsel appearing for the
Petitioner, in his well balanced submissions would urge that the
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finding that the Petitioner has terminated the services of the
Respondent No. 1 is perverse. The relevant material on record
which establishes that the Respondent No. 1 was very much in
service upto 01.03.1999 and thereafter stopped reporting for duties
has been unjustifiably ignored. Mr. Bapat pointed out letters /
notices requiring the Petitioner to report for duties and submitted
that since the Respondent No. 1 failed to report for duties, the
Petitioner was well within its rights to treat the Respondent No. 1 as
having abandoned services. Mr. Bapat also pointed out that in the
course of conciliation proceedings, the Petitioner once again offered
the Respondent No. 1 to resume duties. The same was the position
at the stage of decision in Notice of Motion No. 368 of 2011 in the
present Petition which is evident from the order dated 22.11.2011.
However the Respondent No. 1 avoided resumption of duties and
instead has indulged into making false and reckless allegations that
he was prevented from resuming duties. In these circumstances,
Mr. Bapat submitted that the impugned award deserves to be
interfered with and set aside.
5] Mr. J. N. Shiradhonkar appearing for the Respondent No.1
countered the submissions of Mr. Bapat by submitting that the
impugned award came to be passed upon appreciation of oral as
skc WP-1032-2007
well as documentary evidence. In the circumstances, the pure
findings of fact recorded therein cannot be styled as perverse or
interfered with by this court in exercise of its writ jurisdiction. Mr.
Shiradhonkar submitted that the material on record clearly
establishes that most of the letters referred to by Mr. Bapat were not
even served upon the Respondent No. 1. Mr. Shiradhonkar points
out that the signatures in the salary register for the months between
December 1998 to March 1999 were not of the Respondent No. 1.
Mr. Shiradhonkar then submitted that there is no provision in the
service conditions applicable to the Respondent No. 1 which
permits the Petitioner to treat an employee as having voluntary
retired or abandoned services, in case of unauthorised absence
beyond a particular period. Therefore, even where there is
allegation of unauthorised absence, it was incumbent upon the
Petitioner to have issued a charge sheet and held a domestic
enquiry prior to terminating the services of Respondent No. 1. This
having not been done, the impugned award which directs
reinstatement with 75% back wages is legal and proper and
requires no interference.
6] With the assistance of the learned counsel of both the parties,
I have perused the material on record and the impugned award. As
skc WP-1032-2007
pointed out earlier, the moot issue which arises for determination is
an issue of fact.
7] It is settled position in law that a finding of fact is open to
attack as erroneous in law only if it is not supported by 'any
evidence' or if it is unreasonable and perverse. But where there is
evidence to consider, the finding of fact recorded by a Tribunal is
normally immune from interference even where the writ court might,
if it was the court of first instance, have come to a different
conclusion.1 In regard to findings of fact recorded by a Tribunal a
writ of certiorari can be issued only if it is shown that in recording
the finding the Tribunal has erroneously refused to admit material
evidence or has erroneously relied upon inadmissible evidence
which has influenced the impugned finding. Similarly if a finding of
fact is based on 'no evidence' or is contrary to 'weight of evidence'
or is patently unreasonable and perverse, that would be regarded
as an error of law capable of being corrected by a writ of certiorari 2.
When findings of fact are in issue the writ court can only examine
'reasonableness' of the findings. If the finding is found to be
recorded reasonably based upon some evidence, in the sense that
relevant material has been taken into account and no irrelevant
1 AIR 1965 SC 1666
2 AIR 1964 SC 477
skc WP-1032-2007
material has influenced the decision, then judicial review is
exhausted even though the finding may not necessarily be what the
writ court would have come to, if trying the case as a Tribunal or as
a court of the first instance.3
Therefore in evaluating the rival contentions, I am required to be
conscious of the limited scope of interference as against a finding of
fact.
8]
The legal position is also settled that 'abandonment or
relinquishment of service' is always a question of intention and
normally such intention cannot be attributed to an employee without
adequate evidence in that behalf. This is a question of fact which is
to be determined in the light of surrounding circumstances of each
case.4 It is well settled that even in case of abandonment of
service, unless the service conditions make special provisions to
the contrary, employer has to give notice to the workman calling
upon him to resume duties and where he fails to resume duties, to
hold an enquiry before terminating services on such ground.5
9] In somewhat similar circumstances a Division Bench of this
court comprising P. B. Sawant, J. (as he then was) and V. V. Vaze,
3 (1990) 3 SCC 223, (2012) 5 SCC 443
4 (1979) 1 SCC 590
5 1987 (55) FLR 689, 1991 (63) FLR 679, 1998 (79) FLR 874
skc WP-1032-2007
J. in the case of Gaurishanker Vishwakarma vs. Eagle Spring
Industries Pvt. Ltd. & Anr.6 observed thus :
"........ It is now well settled that even in the case of the
abandonment of service, the employer has to give a
notice to the workman calling upon him to resume his
duty and also to hold an enquiry before terminating his
service on that ground. In the present case the employer
has done neither. It was for the employer to prove that
the workman had abandoned the service. ............It is
therefore difficult to believe that the workman who had
worked continuously for six to seven years, would
abandon his service for no rhyme or reason. It has also
to be remembered that it was the workman who had
approached the Government Labour Officer with a
specific grievance that he was not allowed to join his
duty. It was also his grievance that although he had
approached the company for work from time to time,
and the company's partner Anand had kept on
promising him that he would be taken in service, he was
not given work and hence he was forced to approach
the Government Labour Officer. In the circumstances, it
is difficult to believe that he would refuse the offer of
work when it was given to him before the Labour
Officer......"
10] Again a learned Single Judge of this court R. M. Lodha, J.
(as he then was) in the case of Mahamadsha Ganishah Patel & Anr.
6 1987 (55) FLR 689
skc WP-1032-2007
vs. Mastanbaug Consumers' Co-op. Wholesale & Retail Stores Ltd.
& Anr.7 observed thus :
"....The legal position is almost settled that even in the
case of abandonment of service, the employer has to
give notice to the employee calling upon him to resume
his duty. If the employee does not turn up despite such
notice, the employer should hold inquiry on that ground
and then pass appropriate order of termination. At the
time when employment is scarce, ordinarily
abandonment of service by employee cannot be
presumed. Moreover, abandonment of service is
always a matter of intention and such intention in the
absence of supportable evidence cannot be attributed to
the employee. It goes without saying that whether the
employee has abandoned the service or not is always a
question of fact which has to be adjudicated on the
basis of evidence and attending circumstances. In the
present case employer has miserably failed to discharge
the burden by leading evidence that employee
abandoned service. The Labour Court has considered
this aspect, and, in my view rightly reached the
conclusion that the employer has failed to establish any
abandonment of service and it was a clear case of
termination. The termination being illegal, the Labour
Court did not commit any error in holding the act of
employer as unfair labour practice under Item - 1,
Schedule IV of the MRTU & PULP Act....."
7 1997 (3) ALL MR 719, 1998 (79) FLR 874
skc WP-1032-2007
11] The Petitioner has relied upon letters dated 05.03.1999,
10.03.1999 and 13.03.1999 calling upon the Respondent No. 1 to
report for duties failing which it shall be presumed that he is not
interested in service. However as noted by the Labour Court, there
is no evidence that these letters were served upon or received by
the Respondent No. 1. The weight of evidence in fact suggest that
they were not. The Petitioner then relies upon entries in salary
register for the period between November 1998 and February 1999
to urge that the Respondent No. 1 in fact attended duties during the
said period. Here again, the Respondent No. 1 has admitted his
signatures on the register upto October 1998 but denied the
signatures for the months beyond. There is no evidence produced
by and on behalf of the Petitioner that payment of salary between
November 1998 and February 1999 was made to the Respondent
No. 1. The Respondent No. 1 has placed on record letters dated
11.03.1999, 19.03.1999 and 03.05.1999, the receipt of which the
Petitioner has admitted, which stated that he reported for duties but
was prevented from joining the same. The Respondent No. 1 in his
deposition has also maintained that his services were terminated
and all his attempts of resumption of duties spurned. The Labour
Court has also adverted to the evidence of what transpired during
and after conciliation proceedings before the Labour Commissioner.
skc WP-1032-2007
That may not strictly speaking be relevant except to indicate that
even at that stage the Respondent No. 1 attempted to resume
duties but was not allowed. In this regard the Respondent No. 1 has
placed on record complaints made by him to various authorities
complaining that he was prevented from joining duties.
12] Even if I were to agree with the submissions of Mr. Bapat that
evidence on the part of the Respondent No. 1 is not quite
satisfactory, then the same criticism squarely applies to the
evidence led on behalf of the Petitioner as well. In such a situation,
I have to fall back upon the law enunciated in the rulings of
Gaurishanker (supra) and Mahamadsha (supra), which in no
uncertain terms lays down that the burden of proving 'abandonment
of service' is upon the employer and where an employer fails to
discharge such burden, an award may be made in favour of the
workman.
13] As observed earlier, this is not a case where any specific
provision has been made in the service conditions permitting the
employer - Petitioner to treat absence beyond a specified period
as presumptive of abandonment of service. In absence of such a
provision, the Petitioner was duty bound to serve a proper notice
skc WP-1032-2007
upon the Respondent No. 1 to resume duties. If despite receipt of
said notice, the Respondent No. 1 failed to turn up, then as laid
down in the rulings of Gaurishanker (supra) and Mahamadsha
(supra), the Petitioner ought to have held a domestic enquiry by
charging the Respondent No. 1 with unauthorised absence or any
similar misconduct. This admittedly has not been done by the
Petitioner. In such circumstances no useful purpose will be served
by accepting the submissions of Mr. Bapat, on the aspect of
appreciation of evidence. That apart, as observed earlier the scope
of interference with findings of fact as may be recorded by the
Labour Court is quite limited. This writ court is certainly not
exercising any appellate jurisdiction. Therefore the circumstance
that two views may be possible, is not a ground to justify
interference, unless the view taken by the court / tribunal of first
instance is palpably perverse and unreasonable.
14] On perusal of the material on record and a findings recorded
in the impugned award, in my opinion, it cannot be said that the
findings recorded in the impugned award are based on 'no
evidence' or that they are totally contrary to the weight of evidence
on record or that they are perverse and unreasonable. Besides,
even if I were to accept Mr. Bapat's contention that the Petitioner did
skc WP-1032-2007
make efforts to require Respondent No. 1 to resume duties but the
Respondent No. 1 failed to do so, that by itself would not be
sufficient to hold in favour of the Petitioner. If despite Petitioner's
alleged efforts, Respondent No. 1 failed to resume duties, then the
Petitioner ought to have held an enquiry and based upon a findings
then taken further action in the matter. This to me appears to be the
import of the rulings in the case of Gaurishanker (supra) and
Mahamadsha (supra).
15] The learned counsel for both the parties tried to make
submissions upon the events that are alleged to have transpired in
the course of conciliation proceedings as also the present
proceedings. Once again it is the case of the Petitioner that
Respondent No. 1 despite opportunities failed to report for duties. It
is the case of the Respondent No. 1 that despite reporting for
duties, he was prevented from discharging the same. I am afraid
that all such issues cannot be looked into in the present petition.
The parties are always at liberty to adopt whatever proceedings
they may deem fit and appropriate in this regard.
16] In the context of deposit of back wages in pursuance of
directions issued by this court on 06.08.2007, the Respondent No.
skc WP-1032-2007
1 contended that there is a short deposit arising primarily due to
calculating the salary at the rate of approximately Rs.2,500/- per
month instead of Rs.4,000/- per month. Mr. Bapat, relying upon
salary registers however contended that the salary reflected therein
is around Rs.2,500/- and therefore there is no short deposit. The
Respondent No. 1 in his deposition (cross-examination) has
admitted his signatures for the months April 1998 to October 1998
in categorical terms. In the circumstances, if the deposit is based
upon the salary figures reflected in salary register for the said
months, it cannot be said that there is any short deposit.
17] In the result I see no reason to interfere with the impugned
award. The petition is therefore required to be dismissed and is so
dismissed. Rule is discharged. There shall however be no order as
to costs.
(M. S. SONAK, J.)
Chandka
