Bombay High Court
M/S. Forbes Gokak Ltd vs Mrs. Nafisa G. Sheikh And Anr on 21 December, 2017
Bench: Vasanti A. Naik
903.329.06 app
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 329 OF 2006
IN
WRIT PETITION NO. 2160 OF 2005
M/s. Forbes Gokak Ltd. .... Appellant
Forbes Building,
Charanjit Rai Marg
Fort, Mumbai - 400 001
Vs.
1. Mrs. Nafisa G. Sheikh
3/3, Walkeshwar Flat, Walkeshwar,
Mumbai - 400 006. Now residing
at 43, Rest Camp Road, Deolali
Camp Road, District Nashik, .... Respondents
Maharashtra - 422 401
2. Shri. M. M. Sayyed
Presiding Officer 10th Labour
Court, Mumbai
Lancy D'Souza a/w Ms. Deepika Agarwal a/w Mr. V. M. Parkar for the
appellant
Mr. Shrey Fatterpekar i/b Law Square for the respondent no. 1
CORAM : SMT. VASANTI A. NAIK,
SARANG V. KOTWAL, JJ.
DATE : DECEMBER 21, 2017.
JUDGMENT: (PER: SMT. VASANTI A. NAIK, J.)
By this appeal, the appellant has appealed against the order of the learned
Single Judge, dated 17/04/2006 dismissing the writ petition filed by the
appellant and upholding the order of the Labour Court directing the appellant to
reinstate the respondent in service with 50% back wages.
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903.329.06 app
It is not in dispute that in terms of the order of the Labour Court, the
respondent is reinstated in service and in view of the interim order passed in this
appeal, 50% of the back wages were deposited by the appellant in this Court and
the said amount is withdrawn by the respondent after furnishing security.
The respondent was employed with the appellant when her services were
terminated on 23/07/1990. A reference in respect of the order of termination was
made before the Labour Court and the 10th Labour Court, Mumbai had
answered the reference in favour of the respondent after holding that the
services of the respondent could not have been terminated. It was the case of the
appellant that in December 1988, the respondent had availed the maternity leave
that was granted to her till March 1989. The respondent had sought for the
extension of the maternity leave for 51 days but the said extension was not
granted. When the respondent was asked to present herself before the medical
board-doctors of the appellant company, it is the case of the appellant that the
doctors had opined that she could resume her duties. It is stated that the
respondent however, produced the medical certificate showing that she required
rest till her recovery. Certain communications were exchanged between the
appellant and the respondent and by the order dated 23/07/1990, the services of
the respondent were terminated without serving the charge-sheet on her and
without conducting any departmental enquiry. On an appreciation of the
material on record, the Labour Court held that the appellant was not justified in
terminating the services of the respondent without holding an enquiry.
Considering the circumstances of the case, the Labour Court directed the
appellant to pay 50% back wages to the respondent. The order of the Labour
Court was challenged by the appellant in the writ petition before the learned
Single Judge. The learned Single Judge had dismissed the writ petition by the
order dated 17/04/2006.
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903.329.06 app
It is stated on behalf of the appellant that the Labour Court and the
learned Single Judge had committed an error in holding that the services of the
respondent could not have been terminated without holding an enquiry. It is
submitted that the services of the respondent were not terminated in view of
'mis-conduct' but they were terminated in view of continued illness. It is
submitted that when the services of an employee are terminated on the ground
of ill health, it would not be necessary to conduct a full fledged enquiry before
terminating the services. It is submitted that the private doctor of the respondent
was not able to satisfy as to when the respondent would recover from illness and
would resume the duties and in that background, considering the medical record
of the respondent, her services were terminated without conducting an enquiry.
On hearing the learned counsel for the parties, we find that the Labour
Court and the learned Single Judge were justified in holding that the services of
the respondent could not have been dispensed with without holding an enquiry
against her. We find on hearing the learned counsel for the appellant that the
appellant is blowing hot and cold. It appears from the communications
exchanged between the appellant and the respondent that the appellant desired
that the respondent should resume the duty as according to the appellant and its
doctors, the respondent was fit for duty and ought to have resumed her duties.
Since an enquiry was not conducted against the respondent, the appellant tried
to make out a case that it was not necessary to conduct an enquiry against the
respondent before terminating her services as her services were terminated on
account of her ill health. The learned Single Judge has rightly held after
referring to the provisions of section 2 (oo) and section 25 (F) of the Industrial
Disputes Act that the termination of the services of the respondent, in the
circumstances of the case, was illegal as her services were terminated without
conducting an enquiry against her. The learned Single Judge held that the
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903.329.06 app
provisions of section 2 (oo) of the Industrial Disputes Act could not have been
relied upon by the appellant to support its inaction to conduct an enquiry against
the respondent. We find that the orders of the Labour Court and the learned
Single Judge are just and proper and are in consonance with the provisions of
the Act and the well settled position of law. In the circumstances of the case, the
Labour Court and the learned Single Judge were justified in holding that the
respondent would be entitled to 50% of the back wages. It appears that the
respondent is reinstated in service and the back wages are also received by her
as that were deposited by the appellant in this Court and were withdrawn by the
respondent.
In the result, we dismiss the appeal with no order as to costs. The office to
return the documents pertaining to the security furnished by the respondent to
her, at the earliest.
[SARANG V. KOTWAL, J.] [SMT. VASANTI A. NAIK, J.]
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