Ravindra Rajaram Bhairi vs Suraj Pressings Pvt Ltd Through ...
2021 Latest Caselaw 7314 Bom

                                                Writ Petition No.12587/2017 with
                                                     Writ Petition No.11884/2017
                                      :: 1 ::




           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     WRIT PETITION NO.12587 OF 2017



 Suraj Pressings Pvt. Ltd.                            ... PETITIONER

          VERSUS

 Ravindra Rajaram Bhairi                              ... RESPONDENT

                              .......
 Shri V.N. Upadhye, Advocate for petitioner
 Mrs. B.B. Gunjal, Advocate for respondent
                              .......

                                      WITH
                CIVIL APPLICATION NO.3286 OF 2020 IN
                     WRIT PETITION NO.12587 OF 2017



 Ravindra Rajaram Bhairi                              ... APPLICANT

          VERSUS

 Suraj Pressings Pvt. Ltd.                            ... RESPONDENT

                              .......
 Mrs. B.B. Gunjal, Advocate for applicant
 Shri V.N. Upadhye, Advocate for respondent
                              .......

                                      WITH

                 WRIT PETITION NO.11884 OF 2017 WITH
                  CIVIL APPLICATION NO.12277 OF 2017




::: Uploaded on - 07/05/2021                          ::: Downloaded on - 10/09/2021 15:12:52 :::
                                                   Writ Petition No.12587/2017 with
                                                       Writ Petition No.11884/2017
                                        :: 2 ::




 Ravindra Rajaram Bhairi                                ... PETITIONER

          VERSUS

 Suraj Pressings Pvt. Ltd.                              ... RESPONDENT

                              .......
 Mrs. B.B. Gunjal, Advocate for petitioner
 Shri V.N. Upadhye, Advocate for respondent
                              .......

                                    CORAM :       R. G. AVACHAT, J.

                  Date of reserving order : 8th February, 2021
                  Date of pronouncing order : 6th May, 2021


 ORDER:

Both these Writ Petitions are being decided by this

common order since the challenge therein is to one and the

same order passed by the Judge, Labour Court, Ahmednagar

on 28/11/2016 in Complaint (ULP) No.21/2013, and

confirmed by the Member, industrial Court, Ahmednagar, vide

his judgment and order dated 10/7/2017, passed in Revision

(ULP) No.34/2016 and Revision (ULP) No.3/2017.

For the sake of convenience, the parties and the

pleadings of Writ Petition No.12587/2017 are being referred

to.

2. The petitioner is an industrial undertaking. The

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 3 ::

respondent claims to be workman, employed by the petitioner

Company on 26/2/2012. The services of the respondent were

terminated by the petitioner Company w.e.f. 1/7/2013. The

respondent, therefore, filed Complaint (ULP) No.21/2013,

alleging the petitioner Company to have indulged in unfair

labour practice, described in Clause 1 of Schedule IV of the

Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971 (for short, MRTU & PULP

Act). The Labour Court allowed the complaint, directing the

petitioner Company to reinstate the respondent in service and

pay him 50% of back wages. Both, the petitioner and

respondent challenged the said order in Revisions before the

Member, Industrial Court. The petitioner Company preferred

the revision for setting aside the order passed by the Labour

Court while the respondent preferred the revision with a

prayer for grant of full back wages. Both the revision

applications have been rejected. The petitioner Company and

the respondent have, therefore, preferred these Writ Petitions.

3. Heard Mr. Upadhye, learned counsel for the

petitioner Company and Mrs. Gunjal, learned counsel for the

respondent employee. Perused the impugned orders and the

relevant evidence relied upon.

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 4 ::

4. Shri V.N. Upadhye, learned counsel for the

petitioner Company would submit that, the respondent was

appointed as a Design Engineer vide order dated 23/2/2012.

The appointment was on probation for a period of two years.

The post held by the respondent was managerial and

supervisory. The respondent was not a workman within the

definition of Section 2(S) of the Industrial Disputes Act, 1947

(I.D. Act for short). He worked only for 16 months. His

services came to be terminated for unsatisfactory

performance. The respondent has been paid all the monetary

dues then due. The petitioner Company had disputed the

respondent's status as a workman. The Labour Court,

therefore, did not have jurisdiction to entertain and decide the

complaint. No issue regarding the respondent's status as a

workman was framed by the Labour Court. The respondent

held the post of a Design Engineer. He is well qualified. The

nature of duties performed by him were managerial and

supervisory as well. The Labour Court did not give due

weightage to the evidence produced by the petitioner

Company in proof of the managerial duties performed by the

respondent. On the question of back wages, the learned

counsel would submit that the petitioner Company had offered

the respondent reinstatement in terms of the interim order

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 5 ::

passed by the Court. The respondent did not resume duty.

He has been gainfully employed. The documentary evidence

in that regard was produced before the revisional Court. The

Learned Member, Industrial Court, however, has neither

considered the said evidence nor made any whisper in that

regard in the impugned order. There are averments in the

petition regarding gainful employment of the respondent.

Documentary evidence has also been produced along with the

Writ Petition. The respondent, in his affidavit, has not

traversed the same. According to learned counsel, the order

granting back wages therefore needs to be set aside.

5. The learned counsel for the petitioner Company

would further submit that, the recent trend of judicial

pronouncements does indicate that, granting of compensation

instead of reinstatement with or without back wages is an

adequate relief. The learned counsel has relied on a few

authorities in this regard. He would further submit that, this

Court, vide order dated 8/8/2018, has observed that, "... as

sufficient bad blood has been shed between the parties,

learned Advocate for the management makes an offer that he

is willing to pay the quantified compensation of about 6

months wages in order to part ways with the complainant."

The Court also observed that, no issue has been framed as to

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 6 ::

whether the respondent was a workman in terms of Section

2(S) of the I.D. Act. The learned counsel for the petitioner

Company ultimately urged for allowing the petition.

6. Mrs. Gunjal, learned counsel appearing for the

respondent would, on the other hand, submit that, the Labour

Court, on appreciating the evidence in the case, held the

respondent to be a workman. The revisional Court has

affirmed the said finding. This Court, in exercise of

jurisdiction under Article 227 of the Constitution of India,

cannot reopen the said issue and again decide on the basis of

factual matrix of the case. The learned counsel would submit

that, in case of illegal termination of services, the normal rule

is grant of reinstatement with full back wages. She has relied

on the judgment of the Apex Court in the case of Hindustan

Tin Works (Private) Ltd. Vs. Employees of Hindustan Tin

Works (Private) Ltd. [ 1979 L.L.N. 6 (Supreme Court) ]. The

learned counsel would further submit that, the respondent

was not allowed to resume his duties. He, therefore, filed five

criminal complaints against the petitioner Company. The

respondent is unemployed. He is the sole bread winner in the

family. The learned counsel, therefore, urged for grant of full

back wages.

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 7 ::

7. Admittedly, the respondent was appointed as a

Design Engineer w.e.f. 26/2/2012. The appointment order

does not spell out the respondent to have been appointed as a

probationary nor does it contain nature of duties to be

performed by him. True, the respondent, before joining the

service with the petitioner Company, had served with three

different industrial establishments. He is not a degree holder

in the stream of Engineering. He did I.T.I. in Draftsman -

Mechanic. On appreciating the oral evidence in the case, both

the Courts below have observed the respondent to have been

appointed as a workman. In exercise of writ jurisdiction and

more particularly in view of the evidence referred to

hereinabove, I do not proposal to reappreciate the evidence.

True, the Labour Court did not frame the issue as to whether

the respondent was a workman within the meaning of Section

2(S) of the I.D.A Act. Although such an issue has not been

framed, on appreciating the evidence in that regard, it held

the respondent to be a workman. The issue No.1 framed by

the Labour Court was :-

"Whether the present complaint is maintainable in the eye of law against the respondent ?"

8. The findings recorded on this issue with the

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 8 ::

reasons given cover the question as to whether the

respondent was a workman.

In case of S. Kalyankrishnan Vs. Blue Star Ltd.

(Letters Patent Appeal No.1549/2011), it has been observed

by Gujarat High Court :

"The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. . . .

The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

9. It is reiterated that the Labour Court, on

appreciating the evidence in the case, has found the

respondent to have been a workman within the meaning of

Section 2(S) of the I.D. Act. The revisional Court has affirmed

the said finding. After having gone through the findings of

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 9 ::

fact recorded by the Labour Court, I do not find that a

different view was possible therefrom.

10. The services of the respondent have been orally

terminated. He had admittedly worked for about 16 months.

He completed 240 days of continuous service during first year

of service. The order of appointment is silent to state him to

have been employed as a probationer. Before terminating his

services, he had neither been given three months' notice nor

salary in lieu thereof. Both the courts below have found the

petitioner Company to have been governed by the model

standing orders. In view of both the Courts below, in case of

a workman, probationary period completes on completion of

three months of uninterrupted service. Admittedly, the

respondent had not been given any memo or communication

informing him that his performance was satisfactory. As such,

the termination of services of the respondent has rightly been

held to be illegal.

11. The learned counsel for the petitioner Company

relied on a judgment of the Apex Court in case of Jagbir Singh

Vs. Haryana State Agriculture Marketing Board & anr. [ 2009

AIR (SCW) 4824 ] to submit that, in case of termination of a

daily wager in violation of provisions of Section 25(F) of the

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 10 ::

I.D. Act, compensation in lieu of reinstatement shall meet the

ends of justice. The judgment of the Apex Court in case of

Assistant Engineer, Rajasthan Dev. Corp. & anr. Vs. Gitam

Singh [ (2013) 2 SCC 136 ] has also been relied in this

regard. Besides, the judgment rendered by learned Single

Judge of this Court in Writ Petition No.4216/1997, Writ

Petition No.2636/2019 and Writ Petition No.4215/1997 etc.

are also relied upon.

12. The facts of the judgment of the Apex Court relied

on indicate that those were cases of a daily wagers. The facts

of the case in hand are quite different. The respondent was

not a daily wager. He was appointed as a Design Engineer at

a fixed pay of Rs.14,000/- per month. His salary was to be

revised after three months of his appointment. The salary is,

however not been revised. Be that as it may, it has been

observed by the Apex Court in the case of Hindustan Tin

Works (supra) :-

"Ordinarily workman whose service has been illegal terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness, that is the normal rule."

13. In the present case, by an interim order, the order

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 11 ::

of termination was stayed. The petitioner Company was

directed to allow the respondent to resume duties. The

petitioner Company has been unsuccessful in revision

challenging the interim order. It, however, appears that, the

respondent has given a lame excuse to resume the duty. The

petitioner Company had issued him a letter, asking to join the

service as a probationer. According to the respondent, since

he was not a probationer, the letter issued by the petitioner

Company was not in compliance with the interim order. It is

also his case that, in spite of his efforts to resume the duty,

the petitioner Company did not allow him to join. It is a

question of fact. Same cannot be gone into in this Writ

Petition. The Industrial Court has rightly observed that the

respondent could have joined or resumed duty under protest.

The petitioner Company has produced on record some

documents to indicate the respondent to have been gainfully

employed with the GAL IMPEX Company. Some documents

have also been produced on record to indicate that a certain

sum of money has been deposited in the Bank Account of the

respondent each month. The same is said to be towards his

salary. These documents were produced before the Industrial

Court. It appears that, the Member, Industrial Court, did not

look into these documents. The petitioner Company has

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 12 ::

produced these documents along with the Writ Petition. An

affidavit in support thereof has also been filed. These facts

have not been duly traversed by the respondent. It has,

therefore, to be inferred that the respondent appears to have

been gainfully employed. The fact that he did not join the

duty under protest speaks in volume. In my view, therefore,

ends of justice would be met if the petitioner Company is

directed to pay the respondent one fourth of his salary of

Rs.14,000/- without there being any hike therein until he is

reinstated in service. On his reinstatement, his salary may be

notionally fixed, granting him all the benefits of revision in the

pay and perks and the same be actually paid to him from his

resumption/ reinstatement of duty.

14. For the reasons given hereinabove, the Writ

Petitions stand disposed of in terms of the following order.

ORDER

(i) Writ Petition No.12587/2017 is partly allowed.

The order passed by the Labour Court, dated 28/11/2016,

and affirmed by the Industrial Court as regards granting of

50% back wages is hereby set aside with a direction that the

petitioner Company is directed to pay the respondent one

fourth of his salary of Rs.14,000/- without there being any

Writ Petition No.12587/2017 with Writ Petition No.11884/2017 :: 13 ::

hike therein until he is reinstated in service. On his

reinstatement, his salary may be notionally fixed, granting

him all the benefits of revision in the pay and perks and the

same be actually paid to him from his resumption/

reinstatement of duty.

(ii) Writ Petition No.11884/2017 is dismissed.

(iii) In view of disposal of the Writ Petitions, Civil

Applications are disposed of.

( R. G. AVACHAT ) JUDGE

fmp/-