1. These two writ petitions, one by the employer and the other by the employee are directed against the common order passed by the Industrial Court, Bombay, on June 15, 1994, whereby the said Court maintained the order passed by the First Labour Court on February 10, 1994, to the extent the employer was directed to reinstate the workman employee with continuity of service from December 12, 1988, and modified the order as regards back-wages. The First Labour Court directed the employer to reinstate the employee with continuity of service and full back-wages except for six months while the revisional Court ordered 50 per cent back-wages. The employer in its writ petition is aggrieved by the order of reinstatement of the employee with continuity of service and payment of 50 per cent back-wages, while the employee is aggrieved by the denial of 50 per cent back-wages.
2. Mastanbaug Co-operative Wholesale and Retail Stores, Ltd. (for short, employer), is a consumer co-operative wholesale and retail stores and is registered as a shop under the Shops and Establishments Act. Sri Mohamadsha Ganisha Patel (for short, employee) was employed as mapadi by the employer on September 14, 1981. It appears that the employee applied for one month's leave on October 17, 1988, due to his mother's serious ailment at his native place. One month leave sought for by the employee was granted. However, the employee did not report on duty after expiry of one month. The case of the employee is that due to illness of other family members he could not join immediately on expiry of leave period and on December 12, 1988, he went to the employer and sought to join his duties but, the employer did not allow him to resume his work. The employee filed a belated complaint before the First Labour Court on September 14, 1989, under item (1), of Sch. IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, MRTU and PULP Act). The complaint was resisted by the employer and the defence set out in the written statement was that the employee on his own remained absent and abandoned the service and, therefore, there was no question of any termination of service by the employer. Accordingly, the employer submitted that it has not indulged in any unfair labour practice. The prayer made by the complainant for condonation of delay was also resisted by the employer. The First Labour Court after recording the evidence, condoned the delay in filing the complaint and held that the employee was able to prove that the employer has committed unfair labour practice and was entitled to reinstatement and continuity of service with full back-wages except for six months. The order passed by the First Labour Court, Bombay, on February 10, 1994, was challenged in revision by the employer before the Industrial Court, Bombay. The Industrial Court partly allowed the revision application, maintained the order passed by the Labour Court, so far as reinstatement of the employee from December 12, 1988, with continuity of service was concerned, but modified the order regarding payment of back-wages and ordered 50 per cent of back-wages.
3. In support of the writ petition filed by the employer, Sri Pathak, the learned counsel appearing for the employer, submitted that no termination order was passed by the employer and the employee on his own absented from duties and abandoned his service Referring to the evidence of the employee, the learned counsel submitted that he was never interested in the employment and had habit of remaining absent. He thus submitted that the order passed by the Labour Court directing reinstatement of the employee and his continuity of service from December 2, 1988, was bad in law.
4. There is no dispute that the employee joined his service as mapadi with the employer in the month of September 1981. There, is also no dispute that on October 12, 1988, the employee applied for leave and the employer granted leave for one month. It is common ground that the employer did not initiate any disciplinary proceedings against the employee for allegedly not joining his duties after expiry of leave. There is also no dispute that the employer did not give any notice to the employee workman calling upon him to resume his duties. The muster-roll placed on record clearly showed that with effect from October 12, 1988, leave was granted to the workman employee by the employer. In this view of the matter the burden lay on the employer to establish and prove that the employee had abandoned service but, unfortunately no reliable evidence has been led by the employer before the Labour Court establishing the abandonment of service by the workman employee. The legal position is almost settled that even in the case of abandonment of service, the employer has to give notice to the employee calling upon him to resume his duty. If the employee does not turn up despite such notice, the employer should hold inquiry on that ground and then pass appropriate order of termination. At the time when employment is scarce, ordinarily abandonment of service by employee cannot be presumed. Moreover, abandonment of service is always a matter of intention and such intention in the absence of supportable evidence cannot be attributed to the employee. It goes without saying that whether the employee has abandoned the service or not is always a question of fact which has to be adjudicated on the basis of evidence and attending circumstances. In the present case employer had miserably failed to discharge the burden by leading evidence that employee abandoned service. The Labour Court has considered this aspect, and, in my view rightly reached the conclusion that the employer has failed to establish any abandonment of service and it was a clear case of termination. The termination being illegal, the Labour Court did not commit any error in holding the act of employer as unfair labour practice under item (1), Sch. IV of the MRTU and PULP Act. The said finding recorded by the Labour Court has been upheld by the Industrial Court. I do not find any infirmity in the order passed by the Industrial Court in holding that there was no abandonment of service by the workman-employee and that his services were illegally terminated. In this view of the matter, there is no merit in the writ petition filed by the employer.
5. Coming now to the writ petition filed by the employee, it may be observed that the only grievance raised by him is refusal of 50 per cent of back-wages by the Industrial Court. The learned counsel appearing for the workman employee submitted that Labour Court rightly awarded full back-wages and there was no justification and valid reason for the revisional Court in interfering with the said order and directing 50 per cent back-wages. The learned counsel for the employee submitted that once termination of the workman employee was held illegal and bad in law, the reinstatement with full back-wages of the workman follows as a matter of course. According to him, there was no justifiable reason for departure from this normal rule. In support of his contentions, the learned counsel for the petitioner relied upon judgment of the Apex Court in Hindustan Tin Works (Private), Ltd. v. Employees of Hindustan Tin Works (Private), ltd., [1979 L.L.N 6], the Division Bench judgment of this Court in Changunabai Chanoo Palkar v. Khatau Makanji Mills, Ltd., [1992 (1) L.L.N 924] a Single Bench judgment of this Court in Pandurang Manasaheb Jagadale v. Chairman, [1992 II C.L.R 532] and Chandrapur District Central Co-operative Bank, Ltd., Chandrapur v. Industrial Court, Nagpur, [1995 II C.L.R 735].
6. The learned counsel appearing for the employer submitted that after taking into consideration the relevant facts and circumstances the Industrial Court was justified in denying 50 per cent back-wages to the employee he submitted that on January 19, 1994, during pendency of the proceedings before the First Labour Court an offer was made by the employer to the employee for resumption of his duties without prejudice to the rights and contentions in the complaint and workman was called upon to resume his duties. However, employee did not resume his duties. The learned counsel for the employer also submitted that even before the Industrial Court, the employer offered reinstatement to the workman without prejudice to the rights and contentions in the revision application but despite that offer the employee did not resume his duties. According to the learned counsel the employee was never interested in the employment and he was engaged in agricultural activity at his native place. He thus submitted that the 50 per cent back-wages awarded by the Industrial Court does not require any interference.
7. The learned counsel appearing for the employee in rejoinder placed certain letters for my perusal to show that his client was prepared to resume duties but no appropriate action was taken by the employer permitting the workman-employee to joins his duties.
8. In Hindustan Tin Works (Private), Ltd., [1979 (1) L.L.N 6] (vide supra), the Apex Court held thus, in Para, at page:
“… Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupifying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back-wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally 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. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workman's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances, reinstatement being the normal rule, it should be followed with full back-wages…”
Division Bench of this Court in Changundbai Chanoo Palkar case, [1992 (2) L.L.N 924] (vide supra), applied the same principles as laid down by the Apex Court and held thus, in Para 12, at page 930:
“… Taking a realistic view, however, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself through out the protracted litigation is itself an awesome factor and if, after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back-wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Any other view may amount to putting premium on the unwarranted litigating activity of the employer. In other words, the rule is simple that the discretion to deny reinstatement or to cut down the quantum of back-wages is ordinarily absent in such cases save for exceptional reasons…”
In Pandurang Jagdale case (vide supra), the Single Judge of this Court reiterated the normal rule of the industrial adjudication that when the dismissal order is set aside and reinstatement is granted to the employee, he is entitled to all his back-wages and continuity of service and all benefits although there may be departure from this rule only for valid reasons. I had occasion to consider the similar question in Chandrapur District Central Co-operative Bank, Ltd. (vide supra), and the same principle of normal rule was reiterated and I held thus:
“Ordinarily once the termination order is held bad in law, illegal, void, the consequences would be as if such order never came to existence and as a result of such consequence the employee would be entitled to all reliefs as if he was in service unless an exception can be made out.”
9. The legal position thus is well established and the normal rule of industrial adjudication appears to be well defined that once the termination order is held bad in law, illegal, void, the consequences would be as if such termination order never came into existence and as a result thereof the employee would be entitled to all the reliefs. Meaning thereby upon declaration of termination order illegal, the employee is entitled to reinstatement with full back-wages unless a case for departure is made out. The exception must be founded on valid reasons. One of which is that employee was gainfully employed during that period.
10. In the present case, the Labour Court held the termination of the workman employee illegal and bad in law and directed the employer to reinstate the workman from December 12, 1988, with continuity of service and full back-wages except for six months. Back-wages for six months was denied apparently for reason that complaint was filed belatedly by the employee. Full back-wages awarded by the Labour Court has been interfered with by the revisional Court by setting out the following reasons:
“16. POINT NO. 2.: From the record of the case, admittedly the complaint was on leave for about 2 months. He has not filed on record application, when he has joined the services of the respondent and refused to allow him to join services. It is seen from the application filed in the month of January, that he has reported on duty on December 12, 1989. Further from the record, it is seen that he was on leave therefore, when the complainant was on leave, how he can abandon the services, and it is also pertinent to note that, there is no termination order from the respondent. Neither it is pleaded by the complainant, that his services are terminated orally or by any order. He has pleaded that, he was not allowed to resume duty, therefore, it should be termed as termination. Under these circumstances, the complainant should have approached the Court at the earlier, but he has filed a complaint after the period of 9 months, including the period of three months of limitation this shows that, the complainant was negligent in filing the complaint. The Labour Court has taken lenient view in condoning delay, and allowing the miscellaneous application. If the learned Labour Court should have taken a strict view, and rejected the application, then whole complaint of the complainant would have been dismissed, and the complainant would be out of service. But in the light of the observations of the Supreme Court, delay was condoned. Though, there was no sufficient evidence, but the Labour Court has concluded the same taking broad view in favour of the said citation. But, it does not mean that, the respondents should be punished for it by sadling the penalty of back-wages upon the respondents. No doubt, the Labour Court has deducted six months' wages by the order, but in my opinion this will not meet the ends of justice the documents show that, the complainant was having agricultural land at his native place, and he used to go to his native place for his agricultural purposes. Therefore, during the period of unemployment, he should have earned wages, therefore, rejecting 50 per cent back-wages to the complainant, will decrease the burden of the respondents, specifically in the circumstances when the entire property of the petitioner was destroyed and looted in the recent riots in Bombay. This point should have been considered by the Labour Court, but it was not considered Therefore, in my opinion, the order of the Labour Court, granting full back-wages deserves to be interference with.”
11. The Industrial Court appears to have been influenced by the reasons, viz.:
(i) the workman-employee did not act diligently in filing the complaint and the complaint was filed after the period of nine months including the period of three months limitation;
(ii) the Labour Court took lenient view on condonation of delay and had the Labour Court taken strict view and rejected the application, the whole complaint would have been dismissed;
(iii) the workman was having agricultural land at his native place and used to go to his native place for his agricultural purposes and, therefore, during the period of unemployment he should have earned wages; and
(iv) that the entire property of the employer was destroyed and looted in the recent riots in Bombay.
12. The answerable question is whether the reasons assigned by the Industrial Court justify denial of 50 per cent of back-wages and make out a case for departure from normal rule. I may straightaway observe that most of the reasons assigned by the Industrial Court are extraneous and irrelevant and do not supply valid reasons for departure from normal rule. The fact that complaint was filed belatedly by six months could at best justify denial of back-wages for that period and not beyond that. The observations made by the Industrial Court that had the Labour Court not taken lenient view in condoning the delay and the delay was not condoned the complaint would have been dismissed and no relief could have been granted to the workman employee, with respect to Industrial Court, is pure conjectural statement loaded with if and buts and shows irrelevant factor having been taken into consideration by the Industrial Court while considering the question of back-wages. Once the Labour Court condoned the delay in making complaint and which has been upheld by the revisional Court the said circumstance could not have been used against the workman for denial of back-wages. The Labour Court had rightly denied workman six months' back-wages for the delay in filing compliant and I think that was fair and just, so far as that circumstance was concerned. The Industrial Court also acted on surmise and conjecture when it observed that employee has agricultural land and used to go to his native place for agricultural purposes and, therefore, should have earned wages. In the absence of any evidence whatsoever led by the employer that employee was gainfully employed after the period of termination, on surmises and conjectures 50 per cent of back-wages could not have been denied on the ground that employee should have earned something, from his agricultural operations. If during the enforced idleness, the employee kept himself busy on his agricultural land and cultivated the same, in my view such act on the part of the employee cannot be stretched to mean that employee was gainfully employed. Is employee not expected to surview and sustain his family during enforced idleness? The last reason assigned by the Industrial Court is that due to loot and riots in Bombay the entire property of the employer was destroyed. The only evidence which has come on record is that during the riots in Bombay, the property of the employer worth Rs. 1 lakh was destroyed this was indeed unfortunate incident, but was not the sufficient circumstance to deny the workman employee his due full back-wages. This difficulty of the employer could have been taken care of by the Industrial Court by granting more time to the employer to pay back-wages or even instalments could have been fixed. However, there is substance in the contention raise by the learned counsel for the employer that on January 19, 1994, while the complaint was pending before the Labour Court an offer was made by the employer to the employee to resume his duties and despite that offer the employee did not join his duties. It also appears from the material shown by the learned counsel for the parties that even after the order was passed by the First Labour Court and when the employer challenged the said order in revision, before Industrial Court by way of interim arrangement, the employer asked the employee to resume his duties. However, it appears that the employee did not resume his duties though he sent certain letters through his representative that he was desirous of joining the duties. Taking overall facts and circumstances into consideration, in my view, the Labour Court was justified in awarding full back-wages to the employee workman except for six months. However, from the date of the order passed by the Labour Court in view of the express offer made by the employer to the employee to resume his duties and the fact that the employee did not resume his duties, the employee is not entitled to any wages from the date of the order passed by the First Labour Court till the date he joins his duties with the employer. The learned counsel for employer very candidly submitted that the employee may join his duties now immediately and the employer shall permit the employee to join his duties. The learned counsel for the employee submits that his client shall joint his duties with the employer.
13. In the result, the order passed by the Industrial Court on June 15, 1994, is modified and both the writ petitions are disposed of by passing the following order:
(i) the employer Mustanbaug Co-operative Wholesale and Retail Stores, Ltd., shall reinstate the employee Sri Mohamadshah Ganishah Patel from December 12, 1988, with continuity of service on or before July 10, 1997;
(ii) the employer shall pay to the employee full back-wages from the date of the complaint up to February 9, 1994;
(iii) the workman employee shall not be entitled to any wages from the date of the order passed by the first Labour Court till his joining of the duties with the employer.
14. No costs Certified copy expedited.