Bombay High Court
Shri. Praveen Singh Kanyal vs State Of Maharashtra Through Gp And Ors on 30 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:4352-DB
kishor 1/10 11 wp 6638 of 19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6638 OF 2019
Shri. Praveen Singh Kanyal .... Petitioner
Versus
State of Maharashtra & Ors. .... Respondent
...
Mr. Dayadhar Teekaram Sharma, for Petitioner.
Mr. Shailesh S. Pathak a/w. T. R. Yadav & Mr. Jay Vora for Respondent
No.3.
Mr. R. S. Pawar, AGP for State.
...
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 16 JANUARY 2024.
PRONOUNCED ON : 30 JANUARY 2024.
JUDGMENT:
Rule. Rule is made returnable forthwith. With the consent of
learned counsel appearing parties, petition is taken up for final hearing
and disposal.
2. By this petition, Petitioner challenges the Award dated 03
September 2018 passed by the 1st Labour Court, Mumbai in Reference
(IDA-D) No.1 of 2015. By the impugned Award, Labour Court has
kishor 2/10 11 wp 6638 of 19.doc
answered the Reference relating to termination of services of Petitioner in
negative and has directed the Respondent-Employer to pay legal dues to
the Petitioner in accordance with provisions of the Industrial Disputes
Act, 1947 (ID Act).
3. Petitioner is ex-serviceman having retired from Indian Army
after rendering services of 15 years. He came to be appointed in M/s.
Edmacut (Bombay) Pvt. Ltd.-Respondent No.3 on 01 April 1998 on the
post of 'Accountant-Cum-Clerk'. It is Petitioner's case that he was not
paid increment due to him in the year 2012. He lodged complaint with
Respondent No. 3. It is Petitioner's case that Respondent No. 3 deputed
one Mr. Pradeep for threatening and pressurizing the Petitioner to resign
for having raised the issue of non-payment of increment. Respondent
No.3 began shifting its machinery from Andheri factory to another
location. Respondent No.3 thereafter terminated services of the
Petitioner by Order dated 24 November 2012. It is Petitioner's case that
no reasons were assigned nor any retrenchment compensation was paid to
Petitioner while illegally terminating his services on 24 November 2012.
He protested against the termination by submitting letter dated 08
August 2013. He approached Deputy Commissioner of Labour, Mumbai
by submitting representation dated 03 September 2013. The case was
taken for conciliation. After submission of failure report, the appropriate
government made a Reference to the Labour Court, Mumbai for
adjudication of dispute relating to Petitioner's termination. Petitioner
kishor 3/10 11 wp 6638 of 19.doc
filed his Statement of Claim. Respondent No.3 filed Written Statement
and offered to reinstate Respondent at its premises at Bhayandar.
Respondent No.3 also raised contention of gainful employment of
Petitioner. Petitioner filed Affidavit to deal with the contention of gainful
employment. About offer of reinstatement, Petitioner stated that such an
offer was never made in writing to the Petitioner. Respondent No.3 filed
application once again reiterating the offer for resumption of duties by
Petitioner at Bhayandar (E.) factory. Both the sides led evidence in
respect of their respective cases. The Labour Court delivered Award dated
03 September 2018 holding that services of the Petitioner were not
illegally terminated. The Reference was therefore answered in negative.
Respondent No.3 is however directed to pay to the Petitioner legal dues
offered at the time of shifting of machinery within 01 month of the
Award. Petitioner is aggrieved by the Award dated 03 September 2018
and has filed the present petition.
4. Mr. Sharma, the learned counsel appearing for Petitioner
would submit that the Labour Court has erred in answering Reference in
negative. That Petitioner has illegally been terminated from service on 24
November 2012 without assigning any reason and without paying legal
dues. That the entire theory of shifting of machinery and refusal on the
part of Petitioner to work at Bhayandar factory is totally baseless. That
Petitioner was never given any written intimation about closer of factory
at Andheri or to work at Bhayandar factory. That the services of
kishor 4/10 11 wp 6638 of 19.doc
Petitioner are unceremoniously terminated without any valid reason.
That Petitioner rendered services of 15 long years with the Respondent
No.3 and since termination is illegal, he is entitled to relief of
reinstatement with full backwages and other consequential benefits till
the age of superannuation. That the Labour Court has not considered the
case of Petitioner in proper perspective. He would pray for setting aside
Award of the Labour Court.
5. Per Contra Mr. Pathak, the learned counsel appearing for
Respondent No.3 would oppose the petition submitting that services of
the Petitioner have not been terminated by Respondent No.3. That
Petitioner voluntarily abandoned the services by not reporting at the
transferred place. That Petitioner's factory at Andheri was shifted to
Bhayandar for continuing the work with the sister concern. That
Petitioner was opposed to shifting company's activities and refused to
work at Bhayandar. He would submit that Respondent No.3 was always
ready and willing to offer employment to Petitioner at its Bhayandar
factory. That even after raising industrial dispute, Written Statement was
filed as early as on 27 June 2016 offering employment to Petitioner at
Bhayandar factory. Offer was reiterated by way of application dated 23
January 2017. That despite repeatedly offering job at Bhayandar factory,
Petitioner refused to report for duties. That it is settled law that if
reinstatement is offered by employer and if the employee refused to
report on duties, the relief of reinstatement or back wages cannot be
kishor 5/10 11 wp 6638 of 19.doc
granted. In support of his contentions, he would rely upon Judgment of
this Court in Sonal Garments1. Mr. Pathak would further submit that
Respondent No.3 repeatedly offered sum of Rs.1,05,000/- to Petitioner as
settlement amount, which he has failed to accept. That he has been in
gainfully employment by shifting to Uttarakhand. He would pray for
dismissal of the petition.
6. I have considered submissions canvased by the learned
counsel appearing for rival parties and have gone through the findings
recorded by the Labour Court while answering Reference in negative and
have also perused the records of the case. Though it is the case of
Respondent No.3 that services of Petitioner were not terminated and that
he refused to report for duties at Bhayandar factory of Respondent No.3,
the letter dated 24 November 2012 leaves no matter of doubt that
Petitioner's services were indeed terminated. There is no document on
record to indicate that services of Petitioner were transferred from
Andheri factory to Bhayandar factory or that he was directed to report at
Bhayandar factory at any point of time. In fact, there is no document on
record to indicate that any notice of change, as required under Section 9-
A of ID Act was ever issued to the Petitioner informing him to work at
Bhayandar factory. In the light of above position, it is difficult to believe
that services of the Petitioner were terminated on account of his refusal to
report at Bhayandar factory.
1 Sonal Garments Vs. Trimbak Shankar Karve 2003 (96) FLR 498
kishor 6/10 11 wp 6638 of 19.doc
7. Termination letter dated 24 November 2012 does not record
even a single reason as to why services of Petitioner were terminated.
Petitioner is admittedly not paid retrenchment compensation. He was not
issued the termination notice of 01 month nor was paid wages of 01
month in lieu of notice before effecting his termination. The termination
of services of the Petitioner is thus in violation of provisions of Section
25-F of the ID Act. The Labour Court has failed to appreciate this aspect
and has misdirected itself in assuming that the Petitioner was offered
employment at sister concern of Respondent No. 3 situated at Bhayandar
factory, where machinery was allegedly shifted. The Labour Court has
erred in treating offer of employment at sister concern at Bhayandar as an
admission on the part of Petitioner to refuse to work at transferred place.
I do not see any admission to that effect by the Petitioner. In fact there is
no document on record to indicate that Petitioner was directed to report
for duties at Bhayandar. Perusal of findings recorded by the Labour Court
indicates that the offer for employment at Bhayandar was with alleged
sister concern of Respondent No.3, which means at another
establishment. Labour Court ought to have appreciated that directions for
reporting for duties at a different establishment ought to have been given
by a written communication, which is absent in the present case.
8. The Labour Court, in my view, has erred in answering
Reference in negative. I therefore hold that the termination of services of
Petitioner is in violation of provisions of Section 25-F of the ID Act.
kishor 7/10 11 wp 6638 of 19.doc
9. Having held that the termination of Petitioner is bad in law,
the next issue is about reinstatement and backwages. In the written
statement filed on 27 June 2016, Respondent No.3 requested the Labour
Court to direct Petitioner to resume duty at Bhayandar factory and if he
was not willing do so, Respondent No.3 expressed willingness to pay
legal dues as per provisions of law but not the retrenchment
compensation. Respondent No.3 filed an Affidavit responding to the
written statement. However instead of responding to the offer of
reinstatement, he unnecessarily went into the past conduct of
Respondent No.3 in not offering him the alternate job. He stated in
paragraph No.7 of the Affidavit as under :
7. The Respondent has stated in his submission that he had
offered alternative job to the petitioner as he wanted to shift his
company to Bhayandar. The petitioner strongly deny it and states
that the respondent had never offered the alternative job. If the
respondent had offered the alternative job outside the Andheri
(East), Mumbai plant, he must had issued a written notice or
offered letter to the petitioner as per the prescribed rules laid
down in the Indistrial Dispute Act, 1947 and obtained the
signature of the petitioner on the offer letter or notice.
10. Thus, despite specific offer of reinstatement made in the
written statement, Petitioner failed to accept the same. The offer was
reiterated by Respondent No.3 by filing application dated 23 January
2017 where the name of the officer, with whom Petitioner was expected
to report at Bhayandar, was also indicated. Petitioner once again failed to
report for duties in pursuance of offer so made on 23 January 2017. It is
kishor 8/10 11 wp 6638 of 19.doc
therefore safe to assume that Petitioner was not interested in
reinstatement. In this connection reliance of Mr. Pathak on Judgment of
this Court in Sonal Garments (supra) appears to be apposite. This Court
held in paragraph No.3 of the Judgment as under :
3. However, as the offer of petitioner to reinstate the
respondent was not accepted, he is not entitled to the relief of
reinstatement and any back wages at all. His conduct lends
support to the version of the employer that he had abandoned the
employment and that he never came back to report for duty and
that it was not a case of termination by the petitioner employer.
Whenever the employer offers to reinstate the workman at any
stage of the dispute or proceeding and if the workman does not
accept the offer even without prejudice to his rights and
contentions he will not be entitled to continue his claim for
reinstatement in the proceedings and he will also be not entitled
to claim any backwages from the date of such offer, conditional or
unconditional. He must first accept the offer and get reinstated in
employment and therefore continue to contest for the relief of
back wages, if any. In the present case there was an unconditional
offer of reinstatement made by the employer in the written
statement itself but it was not accepted by the workman.
Therefore, as stated by me herein before, he is not entitled to get
reinstatement with full back wages at all.
11. In the light of Petitioner's failure to report for duties despite
offer of reinstatement, this Court would not be justified in directing
reinstatement of Respondent. It appears that Respondent has already
attained the age of superannuation. However, since the termination is
found to be illegal and the offer for reinstatement was made only on 27
June 2016, the issue remains as to whether Petitioner can be granted
kishor 9/10 11 wp 6638 of 19.doc
backwages for the period from 24 November 2012 to 27 June 2016. Here
again though the offer of reinstatement is repeatedly given on and after
27 June 2016, it appears that Petitioner was not interested in joining back
the services of Respondent No.3 at Bhayandar factory. Therefore, even if
the offer was to be made at an earlier point of time, it is doubtful whether
Petitioner would have availed the same.
12. Petitioner is not paid retrenchment compensation in respect
of services rendered by him from 01 April 1998 to 24 November 2012.
He would be entitled to some payment on account of illegal termination
of services till he was offered reinstatement after 4 years on 27 June 2016.
In my view, ends of justice would meet if Petitioner is granted lump-sum
compensation in lieu of backwages from 24 November 2012 to 27 June
2016. Mr. Sharma has submitted that Petitioner has not been paid
gratuity. Mr. Pathak would submit that the Payment of Gratuity Act is
not applicable in the present case as the total number of employees
employed by Respondent No.3 was only 09. Mr. Sharma, on the other
hand, contends that the total number of employees employed by
Respondent No.3 were 13. In my view, this Court need not go into the
issue of entitlement of Petitioner to receive gratuity under the provisions
of Payment of Gratuity Act. Instead, Petitioner would be free to file
appropriate proceeding before the Controlling Authority to claim
gratuity. If such proceedings are filed, Respondent No.3 would be at
liberty to raise all defences including the defence of employment of less
than 10 employees in its establishment. No opinion is expressed with
kishor 10/10 11 wp 6638 of 19.doc
regard to entitlement of Petitioner to receive gratuity from Respondent
No.3.
13. I accordingly proceed to pass following order :
i) Award dated 03 September 2019 passed by the Labour
Court, Mumbai in Reference (IDA-D) No.1 of 2015 is set
aside.
ii) Respondent No.3 is directed to pay to Petitioner lump-
sum compensation of Rs.4,00,000/- (Rs. Four Lakh Only)
towards full and final claim, except gratuity.
iii) Petitioner would be at liberty to file appropriate
proceedings before the Controlling Authority in respect of his
claim for gratuity.
iv) The compensation of Rs.4,00,000/- shall be paid by
Respondent No.3 to Petitioner within a period of 08 weeks
from today failing which interest at the rate of 8% per annum
would be payable on the amount on expiry of period of 08
weeks.
14. With the above directions, Writ Petition is partly allowed.
Rule is made partly absolute.
Digitally signed SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU
VISHNU Date:
KAMBLE
KAMBLE 2024.01.30
15:52:43 +0530
