Bombay High Court
Vinod Jugraj Mutha vs Satish Babulal Khandelwal on 23 December, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8280 OF 2016
Vinod S/o Jugraj Mutha,
Age-45 years, Occu-Business,
Proprietor of R.Mutha Rice House,
Old Mondha, Aurangabad -- PETITIONER
VERSUS
Satish S/o Babulal Khandelwal,
Age-48 years, Occu-Service,ig
R/o House No.110,
Babai Khorhale Niwas,
Shivshankar Colony,
Aurangabad -- RESPONDENT
Mr.D.S.Bharuka, Advocate for the petitioner.
Mr.R.K.Khandelwal, Advocate for the respondent.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 23/12/2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The issue raised in this petition is as to whether a direction to
reinstate the complainant in service at an interim stage is
sustainable or not.
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3. I have heard the learned Advocates for the respective sides.
4. The respondent/employee who claims to have joined the shop
in the year 2000, filed Complaint (ULP) No.75/2013 before the Labour
Court alleging oral termination from 26/07/2012. The petitioner/
Management submits that though the respondent was working from
2000 till 25/07/2012 and was drawing a salary of Rs.7,500/- per
month, he had taken an advance of Rs.30,000/- in 2010 and he did
not account for the entire amount till 25/07/2012. He himself left
employment voluntarily.
5. It appears from the record that the respondent had approached
the office of the Deputy Commissioner of Labour. The petitioner/
Management appeared in the said proceedings. Thereafter, the
respondent preferred a ULP complaint and expressed his desire to
resume duties keeping in view that the petitioner took a stand that
he was never terminated and he himself stopped reporting for duties.
6. The petitioner has taken a stand that fresh hands have been
engaged in place of the respondent and therefore the respondent
cannot be permitted to resume duties. It is in this backdrop that the
Labour Court has directed the respondent/workman to resume
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duties with the petitioner and hence this petition by the petitioner.
7. It is strenuously submitted by Mr.Bharuka that unless the
issue of oral termination is not proved before the Labour Court finally
in the complaint, he cannot be permitted to resume duties. So also,
a new employee has been engaged in his place.
8.
The Labour Court has found the defence taken by the
petitioner to be fallacious since the respondent has been trying to
resume duties even before the Deputy Commissioner, Labour in 2012
itself. As the petitioner was not inclined to permit him to resume
duties, he preferred his ULP complaint before the Labour Court on
11/02/2013 and prayed for a direction to be permitted to resume
duties.
9. I have also find that the petitioner has not stated the name of
the employee who has been engaged in place of the respondent who
had worked for 12 years and had attained the deemed status of a
permanent employee. In the matter of abandonment of service,
unless the charge of abandonment is not proved, there cannot be a
presumption of abandonment in the light of the view taken by the
Hon'ble Apex Court in the matter of Novartis India Ltd., Vs. State of
khs/DEC.2016/8280-d
West Bengal and others, (2009)3 SCC 124 = AIR
2008 SC (Suppl)
836]. Moreover, the respondent had approached the Labour
Commissioner within a few weeks of the purported oral termination.
Yet the petitioner has taken a stand that he cannot be allowed to
resume duties. Same stand is taken before the Labour Court. In
this petition, the stand taken is that unless the complaint is decided,
the respondent cannot be permitted to resume duties.
10. Prima facie, the stand taken by the Management is
unbelievable. Name of a purported new employee is suppressed from
the Court in as much as that would amount to violation of Section
25-G of the I.D.Act as a new person is said to be recruited in place of
the respondent who has worked for 12 years.
11. Nevertheless, there cannot be a direction of reinstatement in
service at an interim stage. In my view, ends of justice would be met
by directing the petitioner to pay 15 days wages to the respondent as
an interim arrangement during the pendency of the complaint and
till its decision so as to balance the equities and to avoid irreparable
harm, serious prejudice and manifest inconvenience to the
respondent. The said amount of 15 days wages, which would be
about Rs.4,000/- for each month shall be deposited before the
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Labour Court by the petitioner from February 2014 (date of the order
of the Labour Court) and shall be regularly paid to the respondent
henceforth by depositing the amount in the Labour Court on or
before the 10th day of each month till decision of the complaint.
12. In the event, the petitioner desires to permit the respondent to
resume duties in the light of the stand taken that he is not
terminated, it would be at liberty to do so, and in which case the
respondent would be entitled for the full wages @ 7,500/- p.m.
13. This petition is, therefore, partly allowed in terms of paragraph
11 and the impugned order of the Labour Court dated 18/02/2014
and the judgment of the Industrial Court dated 23/11/2015 shall
stand modified accordingly. Rule is made partly absolute in the
above terms.
( RAVINDRA V. GHUGE, J.)
khs/DEC.2016/8280-d
