[Cites 6, Cited by 0]
Bombay High Court
M/S. Komal Fashion vs Joginder R. Verma on 16 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:17752
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9909 OF 2019
Komal Fashion,
307, Bhusa Udyog Bhavan,
T.J. Road, Sewree (West),
Mumbai - 400 015 ... Petitioner
Vs.
Joginder R. Verma,
Roiom No.C-166, Motilal Nehru Nagar,
ATUL
GANESH Sion Koliwada, S.M. Road,
KULKARNI
Digitally signed
Antop Hill, Mumbai 400 037 ... Respondent
by ATUL GANESH
KULKARNI
Date: 2026.04.16
13:21:59 +0530
Mr. Vijay P. Vaidya with Mr. Mahendra Agvekar and Ms.
Shraddha Chavan for the petitioner.
Mr. Shailesh S. Pathak for the respondent.
CORAM : AMIT BORKAR, J.
RESERVED ON : APRIL 9, 2026.
PRONOUNCED ON : APRIL 16, 2026
JUDGMENT:
1. By the present Writ Petition filed under Articles 226 and 227
of the Constitution of India, the petitioner has challenged the
Judgment and Award dated 10 December 2018 passed by the
learned 3rd Labour Court, Mumbai in Reference (IDA) No. 254 of
2014.
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2. The facts giving rise to the present petition, as pleaded by
the petitioner, are that the respondent was employed with the
petitioner as a Pattern Maker and had rendered continuous service
from October 2007 till 23 March 2010. It is the case of the
respondent that his services came to be orally and illegally
terminated by the petitioner's proprietor, namely Mr. Amit Bajaj,
without following due process of law. According to the respondent,
his last drawn wages were Rs.17,200 per month. It is further his
contention that at the time of his appointment, no appointment
letter, leave card, pay-slips, or attendance card were issued to him
though the petitioner establishment allegedly employed more than
50 workmen. The respondent has further contended that despite
the establishment being covered under the provisions of ESIC and
Provident Fund enactments, the said statutory benefits were not
extended to him. It is also alleged that though his duty hours, as
well as those of other workmen, were from 9.30 a.m. to 6.30 p.m.,
he was regularly compelled to work till 9.00 p.m. without payment
of overtime wages in accordance with the provisions of the
Factories Act, 1948.
3. The respondent has further contended that during the entire
tenure of his service, he discharged his duties diligently, sincerely,
and obediently and never gave any occasion to the management to
issue any memo, warning, or show cause notice against him.
According to him, his service record remained unblemished
throughout his employment. It is his further case that on several
occasions he personally requested the proprietor of the petitioner
to issue attendance card, pay-slips, leave card, and wages in lieu of
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earned leave, however, except for false assurances, no action was
taken. On the contrary, according to the respondent, on account of
making such demands, his services were orally and illegally
terminated by Mr. Amit Bajaj with effect from 23 March 2010
without adherence to due process of law.
4. It is the further case of the respondent that at the time of
termination of his services, the petitioner failed to offer or pay his
lawful dues including notice pay, retrenchment compensation, and
earned wages for the services rendered by him. The respondent
accordingly issued a demand letter dated 17 May 2010 seeking
reinstatement with continuity of service and other consequential
reliefs. Since no response was received from the petitioner, the
respondent approached the Office of the Deputy Commissioner of
Labour (Administration) by filing a justification statement dated
25 May 2010 and sought intervention in the matter. It is stated
that thereafter the Conciliation Officer submitted a failure report
to the Deputy Commissioner of Labour declaring that conciliation
proceedings had failed, whereupon the dispute came to be referred
for adjudication before the Labour Court.
5. The respondent has further stated that from the date of his
oral termination he has remained unemployed despite making
sincere efforts to secure gainful employment with establishments
such as M/s. Alan Fashions at Lower Parel (West), M/s. Bombay
Rayon, and M/s. Syndicate Overseas at Andheri (East), but
without success. It is his case that he repeatedly approached the
petitioner and orally requested permission to resume duties so as
to earn livelihood for himself and his family, but the same proved
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futile. According to the respondent, he continues to remain
unemployed and is surviving with the assistance of relatives and
friends residing in Mumbai. It is therefore contended that the
action of the petitioner in terminating his services with effect from
23 March 2010 is illegal, mala fide, violative of principles of
natural justice, contrary to the provisions of the Industrial Disputes
Act, 1947, and amounts to victimisation. On these grounds, the
respondent prayed for reinstatement on his original post of Pattern
Maker with continuity of service, full back wages from 23 March
2010 till actual reinstatement, and all consequential benefits.
6. Upon service of notice, the petitioner appeared and filed its
written statement opposing the reference. The petitioner
contended that the reference itself is not maintainable as no
industrial dispute exists or is apprehended. It is specifically denied
that the respondent was illegally terminated from service on 23
March 2010. While admitting that the respondent was employed
sometime in November 2007 as a Pattern Maker, the petitioner
denied that Mr. Amit Bajaj is its proprietor and consequently
denied the allegation that the said person orally terminated the
respondent's services. The petitioner has further denied that the
establishment employed more than 50 employees or that it failed
to maintain proper service records of its employees. It has also
denied the allegation that leave wages were not paid to its
employees.
7. The petitioner has further contended that since the
respondent was not eligible for the benefits of Employees'
Provident Fund and ESIC, the same were not extended to him and
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no deductions in that regard were made from his salary. It is also
the petitioner's case that no employee was ever required to work
beyond eight hours and therefore the allegation regarding non
payment of overtime wages is false and baseless. It is further
admitted that no appointment letter was issued to the respondent.
However, according to the petitioner, since there was no
termination of the respondent's services by the management, the
question of payment of notice pay or retrenchment compensation
did not arise. On the contrary, the petitioner contends that the
respondent himself was unwilling to continue in service and
intended to leave employment voluntarily.
8. It is further the case of the petitioner that the respondent
had sought to ascertain the quantum of dues payable to him and
accordingly the petitioner calculated his legal dues at Rs.18,313
and prepared a cheque in his favour. However, the respondent was
allegedly dissatisfied with the said amount. The petitioner states
that the respondent was informed that the calculation was correct
and that bonus would be paid during Diwali along with other
employees, although according to the petitioner, the provisions of
the Payment of Bonus Act, 1965 were not applicable to its
establishment. It is further contended that despite assurance
regarding payment of bonus, the respondent refused to accept the
amount and at no point of time was he compelled to do so. The
petitioner therefore contends that since the respondent left service
voluntarily, he is not entitled to notice pay or retrenchment
compensation.
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9. The petitioner has further stated that thereafter it received a
letter dated 30 March 2010 from the Engineering and General
Employees Union alleging that the respondent, being its member,
had been wrongfully terminated with effect from 23 March 2010.
In response thereto, the petitioner addressed a letter dated 20
April 2010 to the said Union stating that the respondent's services
were never terminated and that he had himself chosen not to
resume duties. The Union was accordingly requested to advise the
respondent to immediately report back for duty. It is further
contended that there is scarcity of Pattern Makers in the garment
industry and therefore there exists every likelihood that the
respondent is gainfully employed elsewhere in better employment.
The petitioner has therefore denied that the respondent remained
unemployed or that he made efforts to secure employment
elsewhere. The petitioner has further reserved its right to initiate
disciplinary proceedings against the respondent for unauthorised
absence whenever he resumes duties.
10. The petitioner has lastly contended that notwithstanding the
aforesaid circumstances, it once again called upon the respondent
to resume duties if he was interested in doing so, though it was
made clear that he would not be entitled to wages for the period
during which he had not reported for work. On the aforesaid basis,
the petitioner contends that the respondent has not approached
the Court with clean hands and that his claim is wholly unjustified,
misconceived, untenable, and unsustainable in law.
11. Mr. Vaidya, learned counsel appearing for the petitioner,
submitted that the petitioner had never terminated the services of
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the respondent at any point of time. Inviting attention to the
communication dated 20 April 2010 addressed by the petitioner to
the concerned Union, he submitted that by the said
communication the respondent was specifically called upon to
resume duties forthwith. He further submitted that having regard
to the nature of the industrial reference, wherein reinstatement
with full back wages has been sought, the case of the respondent
as set out in the statement of claim is that he had worked from
October 2007 till 23 March 2010 and that his services were orally
terminated on the said date. Learned counsel submitted that in the
written statement filed before the Labour Court, the petitioner had
categorically and specifically denied the allegation of termination.
12. Inviting attention to paragraph 7 of the written statement,
learned counsel submitted that the conduct of the respondent
clearly indicates voluntary abandonment of service inasmuch as
the petitioner had prepared a cheque towards legal dues payable
to the respondent in the sum of Rs.18,313/-. However, the
respondent was dissatisfied with the said amount and, therefore,
refused to accept the same. Referring to the cross examination of
the respondent, learned counsel submitted that the respondent has
admitted therein that he had received the letter dated 20 April
2010 issued by the petitioner calling upon him to report for duty.
He further admitted that despite receipt of the said
communication, he neither lodged any complaint before the
Commissioner of Labour nor conveyed his willingness to resume
duties to the employer. Learned counsel also invited attention to
the affidavit of the petitioner's Accountant, wherein reference is
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made to CCTV footage showing that on 26 December 2016, when
the respondent visited the petitioner's premises, he entered the
office, remained seated for some time, and thereafter left the
premises after approximately 155 seconds. He submitted that the
respondent has cross examined the witness on the said aspect.
13. Inviting attention to the issues framed by the learned Labour
Court, learned counsel submitted that in view of the judgment of
this Court in Satish Motors Limited, Aurangabad through its
Director vs. Syed Ashrafali Syed Maqsadali, Aurangabad, reported
in 2017 (1) Mh.L.J. 194, the reference itself was not maintainable
in law. He submitted that merely because the petitioner did not
remain present during conciliation proceedings and did not
expressly indicate willingness therein, the Labour Court could not
have drawn an inference that the services of the respondent stood
terminated by the petitioner. He further submitted that the Labour
Court has failed to consider the evidence relating to CCTV footage
placed on record by the petitioner. Additionally, learned counsel
contended that the direction issued by the Labour Court granting
full back wages is wholly unjustified and disproportionate,
particularly having regard to the fact that the respondent had
worked only for a period of approximately three years.
14. Per contra, Mr. Pathak, learned counsel appearing for the
respondent, submitted that the failure of the petitioner to remain
present during conciliation proceedings itself demonstrates that
the petitioner never intended to permit the respondent to resume
employment. He further submitted that although the present writ
petition came to be instituted in the year 2019, the copy thereof
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was served upon the respondent only after the petitioner was
served with notice in proceedings initiated under Section 33C(2)
of the Industrial Disputes Act. Learned counsel invited attention to
the affidavit filed by the respondent, wherein the respondent has
specifically deposed on oath that ever since the date of his oral
termination he has remained unemployed and despite sincere
efforts made to secure employment at the establishments named in
the affidavit, he could not obtain any employment. It has further
been stated on oath that the respondent had approached the
petitioner and orally requested either to permit him to resume
duties or to issue a service certificate so as to enable him to secure
alternative employment elsewhere, however, the petitioner neither
reinstated him nor issued such service certificate. The respondent
has further stated that he has survived only on the charity and
assistance of his relatives and friends. Learned counsel submitted
that no material whatsoever has been placed on record by the
petitioner to demonstrate that its business establishment has been
closed down. Placing reliance upon the judgment of this Court in
M/s. Premsons Trading Private Limited vs. Hiraprasad Bindeshwar
Yadav, Writ Petition No.15103 of 2024 decided on 17 March 2026,
learned counsel submitted that in similar circumstances this Court
directed the employer to reinstate the employee with 60% back
wages. He therefore submitted that the present writ petition
deserves to be dismissed.
REASONS AND ANALYSIS:
15. I have given anxious consideration to the rival submissions
and have also gone through the pleadings, oral evidence and the
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documents placed on record. The petitioner contends that there
was no termination at all and that the respondent himself left
service. The respondent arues that his services were orally brought
to an end on 23 March 2010, that he was not paid lawful dues,
and that he has remained unemployed thereafter. The case
therefore depends on whether there was a real abandonment by
the workman or whether the employer, after keeping silence for a
long time, is now trying to give a different colour to an illegal
termination.
16. The first submission advanced on behalf of the petitioner is
that at no point of time the services of the respondent came to be
terminated by the management and that the entire case of oral
termination is false. In support of the said contention, learned
counsel for the petitioner has placed heavy reliance upon the
communication dated 20 April 2010 addressed by the petitioner to
the Union, whereby the respondent was allegedly called upon to
resume duties. It is further sought to be emphasized that even in
the written statement filed before the Labour Court, the petitioner
has taken a stand that no termination was effected and therefore
the foundation of the respondent's case is liable to fail. This
submission requires consideration for the reason that if in fact a
workman has abandoned employment, the law would not permit
such workman thereafter to convert such act into a grievance of
illegal termination merely for obtaining reinstatement and
monetary benefits. However it is equally well settled that mere
taking of denial in pleadings by the employer is by itself not
sufficient to conclude the controversy. A bald statement in written
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statement cannot displace the claim of a workman unless the same
is supported by circumstances and conduct consistent with such
defence. The Court is required to examine the dispute not merely
on the basis of pleadings but on the basis of totality of
circumstances. In industrial adjudication, the Court must ascertain
not only what stand is taken by parties before the adjudicating
authority, but also whether the conduct of parties before and after
the dispute supports such stand. Therefore, the defence of the
petitioner is required to be tested not merely from the contents of
the written statement or correspondence but from the surrounding
facts and circumstances.
17. The respondent has maintained a case that he was employed
as a Pattern Maker with the petitioner from October 2007 till 23
March 2010 and that on the said date his services were orally
brought to an end without any written order, charge sheet,
domestic enquiry, notice, or payment of statutory dues. He has
further pleaded that during his tenure, no appointment letter,
attendance card, pay-slips, leave card, or other service related
documents were issued to him by the petitioner. The respondent
has also alleged that despite the establishment having more than
50 employees and being governed by statutory labour enactments,
the petitioner was not maintaining statutory and service records.
These assertions assume significance in the present matter because
where an employer itself fails to maintain employment records or
withholds documents expected to be in its possession, such
employer cannot thereafter insist that the workman must establish
every detail only by documentary proof. In industrial
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jurisprudence, strict rules of evidence are not applied in the same
manner as in civil suits. Many times in matters involving workmen
engaged in smaller establishments, documentary evidence may not
always be available with the employee, since such documents
remain in custody of the employer. In such circumstances, the
Court is required to assess the matter on the basis of broad
probabilities, surrounding conduct, admissions, circumstances, and
available material on record. Therefore, the respondent's inability
to produce appointment orders cannot weaken his case when his
allegation is that such documents were never furnished to him at
all. The Court is thus required to appreciate the dispute in realistic
manner without insisting upon appointment orders from the
workman.
18. The petitioner has next sought to place reliance upon the
circumstance that a cheque of Rs.18,313 was prepared by the
petitioner towards alleged legal dues payable to the respondent
and that the respondent refused to accept the said amount.
According to the petitioner such conduct on the part of the
respondent demonstrates that the respondent himself was desirous
of leaving service and was dissatisfied with the amount offered,
thereby showing that the dispute was financial in nature. Mere
preparation of cheque by management does not by itself establish
that the workman abandoned employment. Preparation of such
cheque only indicates that the management calculated some dues
which according to it were payable. It does not necessarily follow
therefrom that the employee had severed the relationship of
employment. In fact in many cases employers after discontinuing
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services of employees prepare so called "full and final settlement"
amounts without any lawful termination and therefore such act is
not sufficient to prove abandonment. The important question
which falls for determination is whether the alleged settlement
was voluntary, lawful, and complete; whether the respondent was
invited to continue employment; and whether if he had remained
absent without cause, the petitioner took any disciplinary action in
accordance with law. Merely because some dues were calculated
and offered does not establish cessation of employment. If the
respondent felt that the amount offered was inadequate, refusal to
accept such amount cannot by itself mean that he intended to
abandon service. In the facts of the present case, no material is
shown to indicate that acceptance of the cheque was linked with
severance of employment. Therefore, the said circumstance is not
sufficient to accept the case of voluntary abandonment.
19. Much emphasis has been placed by the petitioner on the
admission made by the respondent in cross-examination that he
had received the petitioner's letter dated 20 April 2010 whereby he
was allegedly called upon to report for duties. Based upon this
admission, the petitioner has argued that despite receipt of such
communication, the respondent neither approached the
Commissioner of Labour immediately nor addressed any
communication expressing willingness to resume work, and
therefore his conduct indicates that he had no intention to
continue employment. Merely because a workman does not rush to
every authority or immediately issue reply upon receipt of one
communication cannot lead to an presumption of abandonment.
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Industrial disputes often arise in situations where workmen may
not be aware of legal procedures expected from them. Their
conduct is to be examined pragmatically. In the present matter,
what is material is that within reasonable time the respondent
issued a demand notice dated 17 May 2010 asserting illegal
termination and calling upon the petitioner to reinstate him.
Thereafter, he pursued conciliation proceedings before the labour
authorities and continued to maintain his grievance of illegal
termination. Such conduct is inconsistent with the theory that the
respondent had chosen to sever ties with employment. A person
who has abandoned service would ordinarily not issue demand
notices seeking reinstatement nor approach conciliation authorities
alleging illegal termination. These acts of the respondent
demonstrate that he was asserting his right to employment and
disputing the conduct of the petitioner. Therefore, mere non reply
to one letter dated 20 April 2010 cannot outweigh the
respondent's conduct showing assertion of his employment rights.
The Court must see the conduct as a whole and not isolate one
circumstance.
20. The petitioner has relied upon the affidavit of its Accountant
along with CCTV footage allegedly showing that on 26 December
2016 the respondent entered the petitioner's premises, sat there
for some time, and left the premises after 155 seconds. It is
contended that this circumstance establishes that the respondent
was never prevented from entering the establishment and that his
conduct demonstrates lack of seriousness on his part in joining
duties. This Court finds little evidentiary value in the said
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circumstance for deciding the principal controversy. At the highest,
the said material only indicates that on one particular day nearly
six years after the alleged termination, the respondent entered the
petitioner's premises and thereafter departed after remaining
present for a brief period. This isolated event does not establish
that in the year 2010 the respondent had abandoned service. Nor
does it establish that on such occasion he was allowed to resume
duties, assigned work, or reinstated in service. A person entering
the premises and leaving shortly may do so for numerous reasons,
and such act cannot by itself prove restoration of employment. An
event of the year 2016 is too remote to determine the disputed
question relating to cessation of employment in March 2010. Such
subsequent conduct cannot erase the controversy arising from the
alleged termination which had taken place several years prior
thereto and which had already become subject-matter of industrial
adjudication. The Labour Court rightly treated the said material as
a inconclusive circumstance. It was justified in not attaching
importance to such evidence while adjudicating the main dispute.
21. The petitioner has further raised an objection that the
reference made for adjudication was not maintainable and that the
Labour Court ought not to have entertained the dispute at all. In
support of the said submission, reliance has been placed upon the
decision of this Court in Satish Motors Limited, wherein it has
been observed that where a workman alleges oral termination, the
burden initially lies upon such workman to establish that his
services were in fact terminated by the employer. There can be no
dispute with the proposition of law that the person who asserts a
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fact must ordinarily prove the same and therefore where a
workman alleges that his services were orally terminated, material
must be placed before the adjudicating authority to support such
plea. However, while accepting the said legal proposition one
cannot lose sight of the settled position that in labour and
industrial adjudication the nature of proof is not always to be
tested by strict standards applicable to civil suits. Illegal
termination in labour matters is often not evidenced by written
orders because employers in many cases avoid issuing written
termination orders in order to escape statutory liabilities.
Therefore, if the argument of the petitioner is accepted, it would
mean that in every case of oral termination the workman would
fail merely because no written dismissal order exists, which would
defeat the very object of labour welfare legislation. The Court
while examining such disputes is entitled to consider surrounding
circumstances, contemporaneous correspondence, demand notices,
conciliation proceedings, conduct of the employer, and all
attendant circumstances which throw light upon the nature of
cessation of employment. In the present matter, the Labour Court
has not accepted the respondent's case merely because the
respondent stated so in his affidavit. The Labour Court has
examined the demand notice issued by the respondent, the
proceedings before the Conciliation Officer, the replies submitted
by the petitioner, the admissions elicited during cross-examination,
and the overall conduct of the parties. Thus, the finding of the
Labour Court is based upon appreciation of circumstances.
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22. Another circumstance operating against the petitioner is that
if indeed the respondent had abandoned service of his own accord,
the normal conduct of a employer would have been to issue notice
calling upon him to explain his absence, to call for his explanation,
and if necessary to take action in accordance with service
jurisprudence. It is difficult to accept that an employer would
remain silent if an employee, especially one working in a skilled
position such as Pattern Maker, suddenly stopped attending work.
In ordinary industrial practice, where an employee remains absent
unauthorizedly, the employer generally issues notices, records
absenteeism, initiates disciplinary proceedings, or at least
maintains some contemporaneous record showing that the
employee failed to report despite opportunities granted. In the
present case, no such procedure appears to have been followed by
the petitioner. No charge sheet, no show cause notice, no domestic
enquiry, and no formal record of abandonment has been brought
on record. The petitioner's case is that the respondent himself left
the job. However, if that were so then there was no reason for the
petitioner not to create a documentary material indicating such
abandonment. Silence on the part of employer weakens the plea of
abandonment. The law does not encourage employers to rely upon
oral assertions of abandonment without any action, particularly
when the issue concerns cessation of livelihood of a workman.
23. The respondent has stated on oath that after his oral
termination he remained unemployed and despite making efforts
to secure employment at the establishments specifically named by
him, he could not obtain any work. He has further deposed that he
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approached the petitioner and requested either that he be taken
back in service or at least issued a service certificate so that he
could seek employment elsewhere, but the petitioner declined
both. This evidence is important. Firstly, statements made on oath,
unless disproved, carry evidentiary value and cannot be lightly
brushed aside. Secondly, the conduct spoken to by the respondent
appears consistent with a person who considers himself removed
from service rather than with one who abondoned employment. A
workman who has abandoned his service would ordinarily not
continue to approach the employer seeking reinstatement nor
would such person ordinarily request the employer to issue service
certificate for obtaining alternative employment. Such conduct
probabilizes the respondent's case of termination and was
thereafter making efforts to regularize his employment situation.
The petitioner despite disputing the respondent's version has not
brought on record any material to show that the respondent was
gainfully employed elsewhere or that his statement of
unemployment was false, or that he never approached the
petitioner as alleged. In absence of such rebuttal, the respondent's
testimony cannot be discarded.
24. The learned Advocate appearing for the respondent has
rightly placed reliance upon the judgment of this Court in M/s.
Premsons Trading Private Limited. The said judgment reiterates
the settled principle that once there exists a industrial dispute and
conciliation proceedings have failed, the reference of dispute for
adjudication cannot be faulted merely because the employer has
denied the allegations. It further recognizes that disputed factual
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questions regarding abandonment or termination are matters
which are best examined by the Labour Court after appreciation of
evidence. The principles laid down therein squarely apply to the
facts of the present case. Here also the Labour Court has not acted
in mechanical manner nor has it granted relief without proper
appreciation. It has considered the rival pleadings, oral evidence,
documentary material and surrounding circumstances before
arriving at its conclusion. Therefore, unless the conclusion so
reached is shown to be perverse, this Court would not be justified
in substituting its view merely because the petitioner seeks re
appreciation of the evidence.
25. The petitioner has argued that the respondent may have
been gainfully employed elsewhere and therefore his claim of
unemployment cannot be accepted. However, this contention
appears to be founded more on assumption than on any evidence.
The petitioner has merely stated that Pattern Makers are scarce in
garment industry and therefore there is possibility that the
respondent may have secured better employment. Such submission
is speculative in nature. A mere presumption based upon demand
for skilled labour cannot displace testimony of the respondent
unless some material is produced showing employment. If the
petitioner intended to resist claim of back wages on the ground of
employment, burden was upon it to produce tangible evidence
showing that the respondent was employed elsewhere. No such
material has been brought on record. Mere assertion in pleadings
is not evidence. Similarly, the fact that the petitioner issued letters
calling upon the respondent to resume duty also does not by itself
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demolish the respondent's case, because such letters were issued
only after the industrial dispute had already arisen. A subsequent
invitation to join duties, particularly after initiation of industrial
dispute, cannot erase prior illegal action. Post dispute conduct of
employer may be relevant, but it cannot retrospectively validate an
otherwise unlawful termination.
26. The petitioner has argued that because the respondent
refused to accept the cheque prepared towards his dues, such
conduct must be treated as evidence of his unwillingness to
continue in employment. This argument is not legally sustainable.
Refusal by a workman to accept an amount offered by the
employer cannot automatically mean that he has chosen to
abandon service. A workman is fully entitled in law to dispute the
adequacy of the dues calculated by the employer. If according to
him the amount offered is not in accordance with law, refusal to
accept such amount shows disagreement regarding computation.
In the present case, the respondent's stand has been that he was
illegally terminated and that he is entitled not merely to certain
dues but also to reinstatement, continuity of service and back
wages. His dispute was not limited to quantum of settlement
amount. It was a dispute relating to legality of cessation of
employment. Hence, his refusal to accept the amount offered by
the petitioner cannot be construed as abandonment of service or
acquiescence in termination.
27. The jurisdiction under Articles 226 and 227 is supervisory. It
is not an appeal on facts. If the Labour Court has examined the
evidence and has taken a view which is possible on the record,
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interference is not called for. I do not find that the award suffers
from any patent illegality. The Labour Court has noticed the
absence of proper disciplinary action, the respondent's immediate
protest, the demand notice, the conciliation history, the admissions
on record, and the weak nature of the employer's defence. On this
basis, it held that the respondent had been kept out of service
unlawfully. That conclusion cannot be termed unreasonable.
28. For these reasons, the writ petition deserves to fail. The
Award passed by the Labour Court does not call for interference in
exercise of supervisory jurisdiction.
29. In view of the above discussion, the following order is
passed:
(i) The present Writ Petition stands dismissed.
(ii) The Judgment and Award dated 10 December 2018
passed by the learned 3rd Labour Court, Mumbai in
Reference (IDA) No. 254 of 2014 is hereby confirmed.
(iii) The petitioner shall comply with and implement the
directions contained in the impugned Award within a period
of twelve weeks from the date of this order, if not already
complied with.
(iv) In the event the monetary benefits payable under the
Award are not released within the aforesaid period, the same
shall carry interest at the rate of 9% per annum from the
date they became payable till realization.
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(v) There shall be no order as to costs.
(AMIT BORKAR, J.)
