Shri Manikrao S/O Krishnarao ... vs The Manager, Trimurti Moulds ...
2015 Latest Caselaw 435 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR




                                                                                       
                                                               
                               WRIT PETITION NO. 2004 OF 2009


                Shri Manikrao Krishnarao Marotkar,




                                                              
                aged about 45 years, Occ. Nil,
                R/o. 34, Giri Layout, Gosavi Wadi,
                Near Kohad School, Hingna, Tah. Hingna,
                District - Nagpur                                                PETITIONER




                                                
                              ig        ...VERSUS...

                The Manager, Trimourti Moulds Pvt.Ltd.,
                Plot No. 4, M.I.D.C., Area, Hingna Road,
                            
                Nagpur       ......                                               RESPONDENT

     -------------------------------------------------------------------------------------------
     Shri S.A.Kalbande, counsel for Petitioner.
      

     Shri H.V.Thakur, counsel for Respondent 
     -------------------------------------------------------------------------------------------
   



                              CORAM: R. K. DESHPANDE, J.

th DATE : 15 OCTOBER, 2015 .

ORAL JUDGMENT

1] The Labour Court has answered Reference IDA

No. 68 of 1999 in respect of termination of service of the

petitioner with effect from 14.01.199, in the negative. It has

been held that the petitioner has failed to join duties in spite

of the fact that the employer had sent various reminders

calling upon the petitioner-employee to join the duties. This

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award dated 29.03.2008 is the subject matter of challenge by

the employee in the present writ petition.

2] On 08.06.2009, this Court issued notice for final

disposal of the matter and the order passed is reproduced

below.

"Heard Shri Kalbande for the petitioner.

The learned counsel for the petitioner submitted that the impugned order is patently erroneous as learned Labour Court, Nagpur, clearly erred in failing to

consider the relevant documents produced by the petitioner on record at Exh. 16, 18 and 25 which clearly showed that the petitioner was desirous of joining his duties, but the respondent refused to permit him to do so.

Hence, issue notice of final disposal to the respondent making the same returnable on 6 th of

July, 2009".

3] Shri Kalbande, the learned counsel appearing for

the petitioner has invited my attention to the documents at

Exh.16 dated 14.01.1999, at Exh. 18 dated 15.01.1999 and

Exh. 25 dated 19.04.1999. He has also invited my attention

to several such documents showing that the petitioner has

always been ready and willing to join the duties, but it is the

respondent-employer who has not allowed the petitioner to

join the duties.

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              4]               After   going   through   the   decision   of   the




                                                          

Reference Court, it is apparent that the Labour Court has

taken into consideration the contention raised by the

petitioner that he was willing to perform his duties, but as and

when he approaching the employer, the employer refused to

permit him to work on the post of clerk which he was holding.

Though the documents at Exh. 16, 18 and 25 have not been

specifically referring the stand taken by the petitioner, have

been dealt with in detail. After going through the record, I

find that the employer has also issued several such

communications inviting the petitioner to join the duties.

However, the petitioner has failed to join the duties. There is

an oath against oath. The reference Court has taken a

possible view of the matter.

5] Shri Thakur, the learned counsel appearing for

the respondent-employer has invited my attention to the

stand taken by the employer in para 4 of its written statement

filed before the Labour Court. The relevant portion is

reproduced below;

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"4. ................. So far as the illegality of termination is concerned, it is the humbly submission of the

Party No. 1 that the name of the Party No. 2 is still borne on the muster roll of the Party No.1 and he is being marked as 'Absent'. It is further submitted

that the Party No. 2 can resume duties immediately along with the explanation for unauthorized absence. The services of the Party No. 2 were never terminated. In view of this submission, the present Reference is devoid of substance and,

therefore, be answered in negative and to dismiss accordingly".

6] Before the Labour Court, the employer filed

pursis dated 03.11.2006, the contents of which are

reproduced below.

"That Party No. 1 in its written statement Ex-8 has categorically stated that Party No.1 has not terminated the services of Party No. 2 and can

resume duty, further stated that Party No.2 is remaining unauthorisely absent.

On the last of hearing party No. 2 showed willingness for resuming duty, but failed to resume duty till today".

The Labour Court had passed an order that it tried its level

best to conciliate the matter, but the dispute raised by the

employee was in respect of backwages and unless it is

settled, the employee was not prepared to join the duties.

7] During the pendency of this petition, the

petitioner has joined his duties and is working on the post.

Shri Kalbande, the learned counsel appearing for the

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petitioner has relied upon the decision of this Court in the

case of Gangaram K. Medekar vrs. Zenith Safe Mfg.Co. &

Ors, reported in 1996 I CLR 172 for the proposition that in

case of abandonment of service, the burden of proof lies

upon the employer and there would be necessity to hold a

domestic enquiry. He has also relied upon the another

decision of the learned Single Judge of this Court in the case

of Mahamadsha Ganishah Patel and another vrs.

Mastanbaug Consumers" Co-op Wholesale & Retail Stores

Ltd & anr reported in 1998 I CLR 1205 for the same

proposition.

8] I have gone through both these decisions. In the

facts of the present case, the ratio of the said decisions is not

applicable for the reason that the Labour Court has recorded

the finding that the employer has always been ready and

willing to permit the petitioner to join the duties. In the

muster-roll produced before the Labour Court, he was shown

to be 'absent'. In fact, there was no termination of service by

the employer. In view of this, the question of employer

conducting any enquiry against the petitioner for

abandonment of service or absence without leave does not

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at all arise. If the employee is on duty and remains absent, it

is always open for the employer to conduct an enquiry

against him for such willful absent. At any rate, it was not a

case of illegal termination from service and hence, no

interference is called for in the judgment and order impugned.

The employee is not entitled to backwages on the principle of

"no work, no pay". The writ petition is dismissed. No costs.

JUDGE

Rvjalit