Surendra S/O Vinayakrao Deshmukh vs Radhakrishna Alias Raju S/O ...
2017 Latest Caselaw 661 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     : NAGPUR BENCH : NAGPUR.

                    WRIT  PETITION  NO.  5713  OF  2015

Surendra S/o Vinayakrao Deshmukh,
Aged about 53 years, Occ. - Proprietor, 
M/s Sippon Ceramic Works, A-26, 
MIDC, Amravati, Tq. And Distt. 
Amravati.                                                                     ... Petitioner

       // VERSUS //

Radhakrishna alias Raju S/o Ramchandra 
Nimbhorkar, Aged about 50 years,
Occ. - Business, R/o, Janki Nagar, 
Near Vilayatkar house, Shegaon Naka, 
Amravati, Tq. And Distt. Amravati.                                          ... Respondent
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Shri S. S. Dhengale, Advocate for the petitioner
Shri Sagar Katkar, Advocate appearing on behalf of Shri N. R. Saboo, 
Advocate for the respondent
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                                             CORAM :  PRASANNA B. VARALE, J.

                                              DATE    :  10-3-2017.

ORAL JUDGMENT

Heard Shri S. S. Dhengale, learned counsel for the

petitioner and Shri Sagar Katkar, learned counsel appearing on behalf

of Shri N. R. Saboo, learned counsel for the respondent.

2. Rule. Rule made returnable forthwith.

3. The petitioner challenges the judgment and order dated

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12-10-2010 passed by the learned Judge, Labour Court, Amravati as

well the judgment and order passed by the learned Member,

Industrial Court, Maharashtra (Amravati Bench), Amravati dated

5-9-2015.

4. It is the submission of Shri Dhengale, learned counsel for

the petitioner that both the orders are untenable and unsustainable as

the Courts failed to appreciate the material in its proper perspective.

The sum and substance of submissions of learned counsel for the

petitioner is learned Judge of Labour Court arrived at an erroneous

conclusion that the respondent had completed 240 days in a calendar

year and was continuously working with the petitioner.

5. Shri Sagar Katkar, learned counsel appearing on behalf of

Shri Saboo, learned counsel for the respondent supports the order

impugned in the petition. He submitted that both the Courts have

passed the orders in appreciation of the material.

6. With the assistance of both the learned counsel appearing

for the parties, I have gone through the material placed on record. It

was the case of the respondent/complainant before the learned Judge

of the Labour Court, Amravati that he was working as a Clerk with the

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petitioner-unit from 1-6-1989. His service record was clean and

unblemish. On 21-2-1995, services of the respondent were illegally

terminated orally and without assigning any reason. It was the

submission that as the complainant had completed 240 days in each

calendar year and before taking drastic step of termination of the

complainant/respondent, no notice was issued to the respondent nor

any compensation was paid to the respondent and, as such, it was act

of breach of the provision of the Industrial Dispute Act as well as the

act of petitioner-unit was falling under the unfair labour practice in

view of the fact that services of the respondent though were

terminated, the juniors to the respondent were retained in the service.

It was submitted by the petitioner by filing written statement that the

respondent had not completed 240 days in a calendar year. It was

also submitted that the respondent was in habit of remaining absent

for days together and an attempt was also made to submit before the

Court that the respondent by suppression of facts, sought certain

benefits under the Employees State Insurance Act from the

Government. It was also submitted that the petitioner-unit was a

Small Scale Industry and though initially ceramic products and also

ceramic arts products were being manufactured, subsequently, due to

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economic constraints, the unit/industry was not in working condition.

Learned Judge of the Labour Court on hearing rival contentions of the

parties framed the issues, namely :

(1) Whether the termination of the services of the complainant amounts to unfair labour practice on the part of the respondent ?

(2) Whether the complainant is entitled for reinstatement with continuity of service and full backwages ?

The issue no. 1 was answered in affirmative. Issue no. 2 was partly

allowed.

7. On perusal of the judgment and order passed by the

Labour Court, it reveals that the learned Judge of the Labour Court

dealt with the grounds raised by the petitioner opposing the case of

the complainant i.e. respondent before this Court. The learned Judge

of the Labour Court found that either an attempt was made to submit

that the respondent was in habit of absent on his duty and no

supporting material, such as, issuance of any notice to the respondent

was brought on record by the petitioner. The learned Judge of the

Labour Court found that on the contrary, the respondent placed on

record two letters issued by him raising his grievance of termination

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and a request for reinstatement. Learned Labour Court found that in

spite of respondent forwarding these communications, the petitioner

failed to reply to these communications. From the oral evidence, it

was brought to the notice of the learned Judge of the Labour Court

that the respondent was working as a Clerk-cum-Supervisor Trainee

for a considerable long period i.e. from 1989 to 1994 and an attempt

was made to submit that preceding to the alleged termination, the

respondent worked only for 233 days in a calendar year. On perusal

of the relevant material, namely, the muster roll, it was observed by

the learned Judge of the Labour Court that it reiterated from the

muster roll that the respondent was granted certain leave. The

learned Judge of the Labour Court also found that the days of leave

granted to the respondent as well as the weekly off were not added to

the actual working days and if this benefit is given to the respondent,

his working days in a calendar year were certainly 240 days and, as

such, the claim of the petitioner that the respondent only worked for

230 and some odd days was not acceptable. The learned Judge of the

Labour Court further found that there was an advertisement issued in

the local newspaper for filling up the post of Clerk by the petitioner.

Thus, learned Judge of the Labour Court found that there was work

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available with the petitioner and instead of such work available with

the petitioner and in spite of the fact that the respondent was working

as a Clerk with the petitioner-unit for a considerable long period, the

petitioner in colourable exercise of the power erroneously terminated

the services of the respondent. Considering all these aspects, learned

Judge of the Labour Court found that the petitioner had engaged in

unfair labour practice and the respondent was entitled for

reinstatement with continuity of service and backwages. Resultantly,

the complaint was allowed. The learned Judge of the Labour Court

also considering the aspect of the entitlement of the respondent for

the backwages found that he was entitled for 50% backwages.

8. Though the order of the Labour Court was challenged

before the learned Member, Industrial Court in the revision, the

learned Member of the Industrial Court found no error in the

judgment and order passed by the learned Judge of the Labour Court.

Apart from the reasons assigned by the learned Judge of the Labour

Court, the learned Member of the Industrial Court also considered the

judgments relied on by the respective parties. In my opinion, both the

Courts below committed no error in arriving at the respective

conclusions. The judgments and orders passed by both the Courts

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below need no interference or indulgence of this Court. The petition

thus being meritless, deserves to be dismissed and the same is,

accordingly, dismissed.

9. This Court by order dated November 17, 2015 directed

the petitioner to deposit in this Court amount of back-wages as

directed by the Labour Court within stipulated period of eight weeks

from the date of the order, subject to such deposit, the order

impugned in the petition was stayed. On 14-1-2016, the petitioner

has deposited an amount of Rs. 28,767/- in this Court. On 16-3-2016,

the petitioner with permission of this Court again deposited an

amount of Rs. 28,767/-. In view of the dismissal of the petition, the

respondent is permitted to withdraw the amount deposited by the

petitioner in this Court with the interest accrued on it, if any.

JUDGE

wasnik