Bombay High Court
Mohan Krishna Hubale vs Presiding Officer, Labour Court on 29 August, 2024
2024:BHC-AS:34650
Neeta Sawant WP-4471-2001-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4471 OF 2001
Shri. Mohan Krishna Hubale } ....Petitioner
: Versus :
Presiding Officer, Labour Court,
District-Sangli } ....Respondent
__________
Mr. Aumkar Joshi, for the Petitioner.
Ms. Chaitali Deshmukh, for Respondent No.2.
__________
CORAM : SANDEEP V. MARNE, J.
Judgment Resd. On : 22 August 2024.
Judgment Pron. On : 29 August 2024.
JUDGMENT :
1) Petitioner has filed this petition challenging the
Award dated 5 August 2000 passed by the Presiding Officer,
Labour Court, Sangli in Reference (IDA) Nos. 3 of 1993 by
which the Reference has been answered partly in the
affirmative holding that Petitioner was wrongfully terminated
on 24 October 1986. The Labour Court has however held that
Petitioner is neither entitled to the relief of reinstatement nor
backwages. Petitioner is held entitled for retrenchment
compensation under Section 25-F of the Industrial Disputes Act
by presuming the date of joining as 21 June 1976 and date of
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Neeta Sawant WP-4471-2001-FC
termination as 24 October 1986 and monthly salary at
Rs.302.40/-. Respondent No.2 is directed to pay retrenchment
compensation alongwith interest at the rate of 15% p.a. from 24
October 1986 till the date of payment. Petitioner has filed the
present petition to the extent of denial of backwages as well as
non-grant of relief of reinstatement by the Labour Court.
2) The Petitioner was apparently engaged with
Respondent No.2 on daily wage basis and after considering the
evidence on record, the Labour Court has fixed '21 June 1976'
as the date of his initial engagement. It appears that services
of Petitioner were discontinued on 24 October 1986. The Labour
Court has treated the discontinuation of the services of the
Petitioner as retrenchment under the provisions of Section 2(oo)
of the Industrial Disputes Act, 1947 (ID Act) and has held that
Respondent No.2 ought to have followed the procedure under
Section 25-F of the I D Act. This is how the termination of the
Petitioner is held to be unlawful. However, the Labour Court
has refused to grant the relief of reinstatement to Petitioner
after noting the defence of Respondent No.2 that the project, on
which he was engaged, was complete and that there was no
work for his continuation. Though the Workman attempted to
dispute the said position, the Labour Court, after appreciating
the evidence on record, has arrived at a finding that no work
was available for continuation of Petitioner's services. This is
how the relief of reinstatement is denied to the Petitioner. So
far as the backwages are concerned, the Labour Court found
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that Petitioner was gainfully employed and therefore the relief
of backwages is also denied to him.
3) Mr. Joshi, the learned counsel appearing for the
Petitioner would submit that the Labour Court erred in denying
the relief of reinstatement and backwages to Petitioner. That
once the termination was found to be unlawful, the relief of
reinstatement and backwages automatically follows. He would
further submit that the Petitioner ought to have been granted
Converted Regular Temporary Establishment status (CRTE) as
per Kalelkar Award since he had completed more than 9 years
of service. That the issue of grant of benefit of Kalelkar Award
is altogether ignored by the Labour Court. He would therefore
submit that the impugned Award suffers from ex-facie error and
therefore the Petitioner is required to be treated as having
achieved CRTE status w.e.f. from the date of completion of five
years of service and is required to be paid all benefits of pay
and pension arising therefrom.
4) The petition is opposed by Ms. Deshmukh, the
learned counsel appearing for Respondent No.2 who would
submit that the Petitioner had no right either to be reinstated
in service or paid any backwages. He was engaged as and when
required for execution of work of project and did not have any
vested right of being continued in service even after completion
of the project. She would pray for dismissal of the petition.
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5) Having considered the submissions canvassed by the
learned counsel appearing for the parties, it is seen that though
the termination of Petitioner is found to be unlawful, the
Labour Court has denied the relief of reinstatement and
backwages and has instead awarded retrenchment
compensation to Petitioner by counting his service from 21 June
1976 to 24 October 1986, with salary at Rs.302.40/. It appears
that during conciliation proceedings, Petitioner was offered
retrenchment compensation of Rs. 1908/- by Respondent No.2
which he refused to accept.
6) After appreciating the evidence on record, the
Labour Court has arrived at the conclusion that the project on
which Petitioner was engaged was complete and no work was
available with the second Respondent for being offered to
Petitioner at the time of rendering Award dated 5 August 2000.
The Labour Court has noted the fact that Petitioner was unable
to produce any evidence to prove that work was available in the
project. In my view, therefore no vested right was created in
Petitioner's favour to claim employment even in absence of
availability of work. The Labour Court has therefore rightly
rejected the relief of reinstatement.
7) So far as the relief of backwages is concerned, the
Industrial Court has arrived at a finding that the Petitioner
was gainfully employed. After finding of gainful employment of
the Petitioner, a finding of fact is also recorded that no work
was available at the time of Petitioner's termination. Since
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there is no relief of reinstatement, there is no question of grant
of backwages. It is only when an employee is held entitled for
reinstatement that Court/Tribunal can consider the issue of
award of backwages. In the facts of the present case, when
Respondent has no right to be reinstated in service, even if his
discontinuation is found to be unlawful for technical reason of
nonfulfillment of requirements Section 25-F of the I.D. Act, he
cannot be awarded backwages. If Respondent No.2 was to follow
proper procedure before termination of services, Petitioner
would have been entitled, at the highest, to retrenchment
compensation. The relief of retrenchment compensation is
already awarded to the Petitioner by the Labour Court.
8) So far as the issue of non-grant of benefit of Kalelkar
Award now sought to be raised by Mr. Joshi is concerned,
perusal of the impugned Award of the Labour Court would
indicate that the said issue was not raised before the Labour
Court in any manner. Even the memo of the present petition
does not indicate that the issue of non-grant of CRTE status as
per Kalelkar Award is subject matter of controversy in the
present case. Therefore, Petitioner cannot be permitted to argue
something which was never raised before the Labour Court nor
even pleaded in the memo of the petition. For claiming benefit
of Kalelkar Award, it was necessary for the Petitioner to raise a
specific issue in that regard and lead evidence of rendering of
continuous service of five years. Since no issue was framed on
account of absence of pleadings, none of the parties made any
efforts for leading evidence about rendering of continuous
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service for a period of five years. Since termination was
challenged as unlawful, the limited remit of inquiry before the
Labour Court was about completion of 240 days' of service. As
against this, the requirement for grant of CRTE status is
completion of continuous service for 5 years. In absence of
pleadings and evidence to prove completion of 5 years of service,
issue of non-grant of CRTE status as per Kalelkar Award
cannot be sought to be directly raised before this Court by way
of a sidewind. I am therefore not inclined to entertain the oral
submissions sought to be canvassed by Mr. Joshi with regard to
non-grant of CRTE status in absence of the said issue being
raised before the Labour Court.
9) After considering the overall conspectus of the case,
I do not find any patent error in the Award passed by the
Labour Court. At this stage, Mr. Joshi would complain that
even the amount of retrenchment compensation as directed by
the Labour Court has not been paid to the Petitioner. If that is
the case, Respondent No.2 shall forthwith compute the amount
of retrenchment compensation by considering the services of the
Petitioner from 21 June 1976 to 24 October 1986 with monthly
salary of Rs.302.40/-. The amount of retrenchment
compensation so computed shall be paid alongwith 15% simple
interest w.e.f. 24 October 1986 as awarded by the Labour Court,
within a period of 8 weeks from today.
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10) Since no patent error is traced in the impugned
Award of the Labour Court, the Writ Petition is dismissed.
Rule is discharged.
[SANDEEP V. MARNE, J.]
NEETA
SHAILESH
SAWANT
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29 August 2024
