Gold Mohur Mills Vs C.K. Thukrul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1946 OF 2003

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 Gold Mohur Mills

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...Petitioners

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Vs.

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Chandrakant Keshav Thukrul...Respondent

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Ms Meena Doshi for the Petitioner

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 Mr.P.M.Patel for the Respondent.

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CORAM: A.S.OKA, J.
DATED: JULY 20,2006.

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ORAL JUDGMENT:

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 1.On the last date I have heard the submissions of

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 the learned Counsel for the parties. By this Petition under
 Article 226 of Constitution of India, the Petitioner M/s.Gold
 Mohur Mills has taken exception to the Judgment and Order
 dated 30th September 1994 passed by the learned Member of the
 Labour Court at Mumbai. An application under sections 78 and
 79 of Bombay Industrial Relations Act, 1946 was made by the
 Respondent. By the impugned Judgment and Order dated 30th
 September, 1994 passed by the Labour Court, the Petitioner
 was directed to reinstate the Respondent with full backwages
 with effect from 18th October 1983. The said order of the
 Labour Court was confirmed in Appeal by the Industrial Court.
 In this Petition Rule was issued on 25th November 2003 which
 is confined to the question of backwages. This Court granted
 stay of the direction to pay backwages subject to deposit of
 amount in this Court. Affidavit of one Mr.M.W.Waghmare,
 Deputy Manager of the Petitioner records that the respondent

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has been reinstated in service with effect from 4th February
 1987.

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 2.Mrs Doshi, learned Counsel for the Petitioner
 submitted that the Labour Court has passed mechanical order
 directing the payment of full backwages by holding that as
 per the normal rule the relief of backwages has to follow the
 order of reinstatement. She submitted that before passing
 the order of payment of backwages, the learned Judge has not
 considered the peculiar facts of the case and has not
 examined the issue in the light of the law laid down by the
 Apex Court. She invited my attention to the Affidavit of
 evidence of the Respondent and pointed out that the
 respondent has not discharged the burden of establishing that
 he was not gainfully employed after the order of termination
 till the date of reinstatement. She placed reliance on the
 decision of this Court in Writ Petition No.1074 of 2003
 delivered on 26th April 2006. She submitted that in view of
 the law laid down by the Apex Court and this Court, order
 relating to grant of full backwages is required to be set
 aside.

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 3.Shri Patel, learned Counsel appearing for the
 Respondent pointed out that from the Affidavit of evidence of
 the Respondent it is clear that he was all along reporting
 for duty. He submitted that there is nothing on record to

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show that the Respondent had any source of livelihood from
 the date of strike till the date of his reinstatement. He
 submitted that there are concurrent findings recorded by both
 the courts holding that the Respondent is entitled to
 reinstatement with full backwages and no interference is
 called for in a Writ Petition under Article 226 of

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 Constitution of India.

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Briefly stated, the textile mills in Mumbai were
 closed from 18th January 1982 due to call for strike given by
 the Maharashtra General Kamgar Union. According to the case
 of the Respondent after the intervention by the Hon’ble Chief
 Minister, from October 18, 1983 some workers were taken back.
 But the Respondent was not taken back. Therefore the
 Respondent applied under section 78 and 79 of the said Act of
 1946. According to the case of the Petitioner, the
 respondent had not reported to the duty from 18th January,
 1982 and therefore, he ceased to be in employment since then.

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The learned Judge of the Labour Court in

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 paragraph 6 of his Judgment observed thus :

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"6.The employer-employee relationship between
the applicant and opponent continued as
opponent is action not allowing the
applicant to work is illegal and
void-ab-initio, hence the applicant is

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entitled to the relief of reinstatement in
the service. The said relief of
reinstatement shall be with full back wages
is the normal rule. There are no special
exceptional circumstances to detract from
the said normal rule. Hence, the applicant
is also entitled to full back wages. In
view of the settled position and in view of
the ratio laid down by Hon’ble Division
bench of Bombay High Court in case of
National Textile Corporation (S.M.) Ltd.
Vs. Shramik Janta Union reported in 1990 II
CLR page 558. It is the opponent who is
responsible to reinstate the applicant in
the service and pay him back wages from the
take over i.e. 18-10-1983. For all these
reasons I answered the issue No.3 and 4
accordingly, net result led me to pass
following order."

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 6.An Appeal was carried by the Petitioner to the
 Industrial Court. The Industrial Court while dismissing the
 Appeal held that the learned Judge of the Trial Court has
 rightly taken the view that when order of reinstatement is
 passed, order of payment of backwages is a normal rule. As
 observed earlier, the Labour Court has passed an order of

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reinstatement with effect from 18th October 1983.

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A reliance has been placed on the decision of the
 Apex Court in case of U.P.State Brassware Corporation Ltd.
 and Another vs. Uday Narain Pandey reported in 2006 I CLR
 39. In the said decision the Apex Court has referred to its
 earlier Judgments on the issue of granting of backwages. In
 paragraph No.63 of the said decision the Apex Court observed

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"63.It is not in dispute that the respondent
did not raise any plea in his written
statement that he was not gainfully employed
during the said period. It is now
well-settled by various decisions of this
Court that although earlier this Court
insisted that it was for the employer to
raise the aforementioned plea but having
regard to the provisions of Section 106 of
the Indian Evidence Act or the provisions
analogous thereto, such a plea should be
raised by the workman."

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 The Apex court held that the payment of full backwages cannot
 be a natural consequence of passing of an order of
 reinstatement. The Apex Court held that the workman is not

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entitled to get something only because it would be lawful to
 do so. The Apex court, therefore, held that it is not for
 the employer to raise plea that the workman was gainfully
 employed. Thus, the view taken by the Apex Court is that the
 backwages cannot be granted is a matter of course.

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The courts below have not given any reason for
 granting full backwages and the backwages have been awarded
 on the ground that it was a normal rule. The perusal of the
 Affidavit of evidence of the respondent shows that there is
 not even a statement that from the date of termination of
 employment, he was not gainfully employed and that he was not
 having any source of livelihood.

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The learned Counsel for the Petitioner submitted
 that the Respondent has not discharged the burden. The
 learned Counsel for the Respondent tried to submit that there
 is no cross examination of the Respondent on this aspect. In
 my view, this is not relevant as the Respondent had not come
 out with a case that after termination he was not employed or
 was not having any source of livelihood.

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 10.The learned Counsel for the Petitioner has relied
 upon the decision of the learned Single Judge of this Court
 in case of Finlay Mills Vs. Mrs.Supriya S. Ghugare. In the
 said case, after considering the ratio laid down in the case

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of U.P.State Brassware Corporation Ltd. (supra), the learned
 Single Judge has set aside an order for payment of full
 backwages and directed that the workman was entitled to 30%
 of the backwages from the date of filing the complaint.

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 11.In the present case there is a finding recorded
 by the learned Judge of the Labour Court as well as the
 Industrial Court that the Respondent is entitled to
 reinstatement. In the copy of the application made by the
 Respondent which is annexed to the Petition, the date on
 which approach notice was given is not mentioned. Date of
 approach notice is not on record. In my view, even if the
 back wages are to be granted, the same should be from the
 date of approach notice. The learned Member of the Labour
 Court has granted the back wages with effect from 18th
 October 1983 i.e. from the date on which the management of
 the undertaking was taken over by the Central Government.
 Considering the period of limitation for making the
 application, it is obvious that the approach notice must have
 been given in the period between June 1985 to 1st October
 1985. The Respondent cannot be granted backwages from 18th
 October, 1983. The backwages should have been awarded from
 01st October, 1985 i.e. the date of filing Application in
 absence of the record showing the date on which approach
 notice was given.

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12.The learned Counsel for the Petitioner invited my
 attention to the decision of the Single Judge in case of
 Finlay Mills in which direction was given to the employer to
 pay 30% of the full back wages to the workman. The learned
 single Judge has given reasons for awarding 30% of the back
 wages in paragraph 18 of his Judgment. The learned Single
 Judge noted that in the litigation there was an order of
 remand passed by the High Court and that was the reason for
 delay in decision. He observed that the employee was out of
 employment from 1980 and almost 24 years have been passed
 from the date of termination. The learned Single Judge
 granted backwages from 1st January 1996 as approach notice
 was sent on 22nd December 1995. In the present case, the
 case of the Respondent is that cotton mill reopened from
 March 1984 and from that date the Respondent attempted to
 resume his duties but he was not taken in the employment. In
 my view, considering the facts and circumstances of the case,
 40% of the backwages are required to be awarded with effect
 from 1st October 1985. the impugned Judgement and Award will
 have to be modified to the aforesaid extent.

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 13.Hence, Petition is dismissed by passing the
 following order :

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i)

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Clause No.(ii) of the operative part of the impugned
order passed by the learned Member of the Industrial
Court is is substituted by following :

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"a)The Appellant-Company is directed to pay to the
Respondent 40% of the backwages with effect from 1st
October 1985 to 04th February, 1997."

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 (ii)The amount of backwages has been deposited in this
Court. The Respondent will be entitled to withdraw back
wages as aforesaid and the balance amount shall be
refunded to the Petitioner.

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 (iii) The Petitioner and the Respondent will be entitled to

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interest, if any, accrued on the amount deposited in
this court in the proportion of 60% and 40%
respectively. Necessary calculation will be submitted
by the Petitioner within a period of eight weeks from
today. Liberty to apply.

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 (iv)Rule is made partly absolute in above terms. No order
as to costs.

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Judge.

Gold Mohur Mills v. C.K. Thukrul

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Gold Mohur Mills v. C.K. Thukrul

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