Smt. Rajani Rajendra Rahate vs M/S. Amersay Industries & Exports
2017 Latest Caselaw 5183 Bom

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                                                   201.WP.730-13AND4033-02.doc


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

                       Writ Petition NO. 730 OF 2003

Smt. Rajani Rajendra Rahate                                  ...Petitioner
         Versus
M/s. Amersay Industries & Exports                            ...Respondent

                               ....
Mr.Rahul L. Nerlekar, Advocate for the Petitioner.
Mr. K.S. Bapat, Advocate for the Respondent.
                               ....

                                   WITH
                     Writ Petition NO. 4033 OF 2002

M/s.Amersay Industries & Exports                             ...Petitioner
        Versus
Smt.Rajani Rajendra Rahate                                   ...Respondent

                               ....
Mr. K.S. Bapat, Advocate for the Petitioner.
Mr.Rahul L. Nerlekar, Advocate for the Respondent.
                               ....

                               CORAM :   R. G. KETKAR, J.

                               DATE     :  28th JULY, 2017   
J U D G M E N T: 

1. Heard Mr.Rahul Nerlekar, learned counsel for the

petitioner in W.P. No.730/2003 & for the respondent in W.P.

No.4033/2002, Mr.K.S. Bapat, learned counsel for the

respondent in W.P. No.730/2003 & for the petitioner in W.P.

No.4033/2002, at length.

201.WP.730-13AND4033-02.doc

2. Both these Petitions take exception to the judgment

and order dated 16.3.2001 passed by the learned Presiding

Officer, 11th Labour Court, Mumbai in Reference (I.D.A.)

No.798/1996. By that order, the Labour Court allowed the

Reference and directed M/s. Amersay Industries & Exports,

hereinafter referred to as the 'first party', to reinstate Smt.

Rajani Rajendra Rahate, hereinafter referred to as the 'second

party' by granting her continuity of service and by paying 50%

of her back wages on and from 1.12.1994 or till she is

reinstated whichever is earlier.

3. Writ Petition No.730/2003 is instituted by the second

party as the Labour Court denied 50% back-wages to her. Writ

Petition No.4033/2002 is instituted by the first party

challenging the order of reinstatement as also payment of 50%

back-wages. The relevant and material facts, briefly stated, are

as under.

4. The second party was appointed as a Tailor w.e.f.

1.3.1987. From 2.12.1993 to 29.11.1994, she remained absent.

It is the case of the second party that her services were

terminated on 1.12.1994. The conciliation proceedings were

201.WP.730-13AND4033-02.doc

held in the year 1996. The first party did not participate in the

conciliation proceedings. Eventually the Deputy Commissioner

of Labour, in exercise of powers under Section 10(1) and

Section 12(5) of the Industrial Disputes Act, 1947 (for short,

'Act') referred the dispute for adjudication to the Labour Court

for the following demand:

"Smt. Rajani Rajendra Rahate should be reinstated with full back wages and continuity of service with effect from 1.12.1994."

5. The second party filed statement of claim on

26.3.1997. In paragraph-3, the second party contended that

she had put in eight years service with the first party and her

last drawn wages were Rs.1,700/- per month. She was orally

terminated without any notice on and from 1.12.1994. She was

not issued any show cause notice or memo. No enquiry was

conducted against her before terminating her services. She,

therefore, contended that the termination of her services are

against the provisions of Section 25-F of the Act. She is,

therefore, entitled to reinstatement in the service with full

back-wages and continuity of service w.e.f. 1.12.1994 till she is

allowed to resume her duties. In paragraph-5, it was

201.WP.730-13AND4033-02.doc

contended that from the date of termination of service, she is

unable to secure alternate/gainful employment inspite of her

efforts and, therefore, the first party may be directed to

reinstate her in service with full back-wages and continuity of

service from 1.12.1994.

6. The first party filed written statement resisting the

claim. In paragraph-2, the first party contended that the

second party remained absent from 2.12.1993 to 29.11.1994 on

the ground of sickness. She reported for duties on 30.11.1994

for one day only and thereafter on and from 1.12.1994 she

remained absent without prior permission and sanction of the

employer. The second party did not make any leave application

on 1.12.1994 till date nor she had given any sufficient or good

reason for remaining absent. In paragraph-3, the first party

contended that it had sent a letter dated 29.6.1995 to the

second party stating therein that she is remaining absent

without any proper leave and/or permission from the factory

since 1.12.1994. Said letter was received by the second party.

She did not give any reply nor she reported for duties. The first

party denied that it had terminated the services of the second

party as alleged and also denied applicability of Section 25-F of

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the Act.

7. The first party also contended that the second party

was gainfully employed. She was, therefore, not reporting for

duties. The first party denied that the second party was unable

to secure alternate / gainful employment.

8. On the basis of the pleadings of the parties,

necessary issues were framed.

9. On 19.8.2000, the second party adduced her evidence

and she was cross-examined on 25.8.2000. On 6.11.2000, the

first party filed purshis inter alia contending that since her

services were not terminated and second party of her own

volition was remaining absent, she may report for duties if she

is interested to work and the offer was made without prejudice

to the rights and contentions of the first party raised in the

written statement. It appears that on the same day the Court

passed order directing the second party to join duty.

10. On 18.12.2000 the representative of the first party

filed purshis to the effect that as per the order dated

6.11.2000, the second party reported for work on 13.11.2000

without prejudice to the rights and contentions taken in the

201.WP.730-13AND4033-02.doc

reference. It was further set out that the second party has

already led her evidence in the matter and the matter is fixed

for the evidence of the first party. It was further contended that

the issue now remains only as regards the back-wages.

11. The first party thereafter adduced evidence of Suresh

Maruti Sawant on 23.2.2001. By the impugned award, the

Labour Court answered the Reference in the affirmative by

ordering reinstatement of the second party workman along

with continuity of service by paying her 50% of back-wages on

and from 1.12.1994 or till she is reinstated whichever is earlier.

It is against this order, the first party and the second party

have instituted present Petitions.

12. W.P. No.4033/2002 instituted by the first party was

heard for admission on 2.8.2002 when Rule was issued and

Rule on interim relief was made returnable after six weeks.

Statement made on behalf of the first party that the first party

does not press for stay of the order of reinstatement was

recorded and ad-interim relief insofar as it directed payment of

50% back-wages was stayed. By order dated 15.7.2003, ad-

interim order granted on 2.8.2002 regarding back-wages was

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continued till disposal of the petition. W.P. No.730/2003 was

heard for admission on 22.4.2003 when Rule was issued and

the petition was directed to be heard along with W.P.

No.4033/2002.

13. Mr. Bapat submitted that basically the first party did

not terminate the second party. The Labour Court did not

record any finding as to whether in fact the first party

terminated the second party. He, therefore, submitted that the

issue of alleged termination of the second party may be kept

open. It is not possible to accept this submission for more than

one reason. In the first place, the first party came with the

case that on 29.6.1995 they had sent a letter calling upon the

second party to resume duties. Secondly, on 6.11.2000, the

first party filed purshis inter alia contending that since her

services were not terminated and the second party of her own

volition was remaining absent, she may report for duties, in

case she is interested to work. On the same day, the Court

passed order directing the second party to join the duty.

Thirdly, on 18.12.2000, the first party filed purshis setting out

therein that as the second party has reported for work on

13.11.2000, the issue now remains only as regards the back-

201.WP.730-13AND4033-02.doc

wages. In other words, question of reinstatement was not kept

open. In view thereof, the question of termination and

reinstatement of the second party cannot be kept open.

14. A perusal of the impugned order shows that evidence

and more particularly paragraphs-5 and 6 of cross-

examination of the second party was not at all considered by

the Labour Court. The Labour Court has only considered

paragraph-8 of the cross-examination of the second party.

This is evident from paragraph-23 of the impugned order. As

the Labour Court has not considered the evidence on the

question of back-wages, the impugned order deserves to be set

aside to the extent of back-wages only. Hence, the following

order:

(i) The finding recorded by the Labour Court on the

question of back-wages is set aside.The matter is

remitted to the Labour Court for deciding the question

of back-wages afresh on the basis of evidence already

on record.

(ii) By way of abundant caution, it is made clear that this

Court has not interfered with the order of

201.WP.730-13AND4033-02.doc

reinstatement.

(iii) Rule in W.P. Nos.730/2003 and 4033/2002 is partly

made absolute in aforesaid terms with no order as to

costs.

      (iv)      Order accordingly.

                                                    (R. G. KETKAR, J.)

Deshmane (PS)