Partly allowed

Khadi and Village Industrie Commission v. Ms. S.B. Mohite and Ors.

Bombay HC14 Jul 2006WP/2321/2003

Case brief

AI extract

What is this about?

The High Court held that the Tribunal erred in awarding 50% back wages as the employee failed to prove she was not gainfully employed post-termination. Consequently, the order for backwages was quashed, while the reinstatement order was maintained.

What did the court decide?

The order directing the petitioner to pay 50% back wages was quashed. The rest of the award was maintained. Rule made partly absolute.

Khadi and Village Industrie Commission Vs Ms… — Pension and Retirement Benefits | Bombay HC (2006)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION NO.2321 OF 2003

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 Khadi & Village Industries Commission)
 3, Irla Road, Vile Parle (W), )
 Mumbai - 400 056. ).. Petitioner

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 Versus

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 1. Sarayu Bhimrao Mohite, )
 3/37, Anaji Master Chawl, )
 K.G.Marg, Prabhadevi, )
 Mumbai - 400 025. )

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 2. Central Government Industrial )
 Tribunal No.2, 2nd Floor, )
 Shram Raksha Bhawan, )
 Shivsrushti Road, )
 Opp. Priyadarshini, Sion, )
 Mumbai - 400 022. ).. Respondents

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--

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 Shri Vijay Kantharia and S.D.Bhosale for the
 Petitioner.

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 Shri Jayprakash Sawant for the respondent.
 --

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CORAM: ABHAY S. OKA, J

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DATED: 14TH JULY, 2006.

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ORAL JUDGMENT:

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 1. The submissions of learned counsel appearing
 for the parties were heard on the last date.

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 2. By this petition under Article 226 of the

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 Constitution of India, the petitioner-Khadi & Village
 Industries Commission has challenged the impugned
 judgment and award passed by the learned Presiding
 Officer of the Central Government Industrial Tribunal
 No.2, Mumbai, in a reference made in exercise of
 powers conferred by clause (d) of Sub-section (1) of
 Sub-section (2A) of Section 10 of the Industrial
 Disputes Act, 1947 ( hereinafter referred to as "the
 said Act of 1947").

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 3. With a view to appreciate the submissions made
 by learned counsel appearing for the parties, it will
 be necessary to refer to the facts of the case in
 brief. The first respondent by letter dated 6th July,
 1993 was called for typing test by the petitioner as
 her name was recommended by the Employment Exchange.
 The first respondent was called for typing test on
 24th July, 1993 and after having passed in the said
 typing test, she was interviewed on 26th December,
 1993 and on 7th January, 1994. She was selected and
 placed on the waiting list of selected candidates
 belonging to the general category for the post of
 Lower Division Clerk at Sr.No.35. According to the
 case of the first respondent, she was appointed as a
 Lower Division Clerk. She worked as such from 27th
 March, 1997 to 24th May, 1997. According to her, she

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 was again appointed from 1st July, 1997 to 31st
 December, 1997 for a period of six months and that she
 continuously worked for 184 days without any break
 during the said period on a consolidated salary of
 Rs.2,500/- per month. It was contended that the first
 respondent worked for 243 days as continuous worker
 and without giving one month’s notice or without
 paying one month’s wages and retrenchment
 compensation, her services were illegally terminated
 with effect from 1st January, 1998. On the basis of
 the notice of demand submitted by the first
 respondent, following reference was made to the
 Central Government Industrial Tribunal, Mumbai.

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 "Whether the action of the management of Khadi
 & Village Industries Commission Mumbai by
 terminating the services of Ms. Sharyu
 Bhimrao Mohite w.e.f.1/1/98 is justified ? If
 not, to what relief the workman Ms.Sarayu
 B.Mohite is entitled ?

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 4. The petitioner contested the claim of the
 first respondent. The first contention was that the
 petitioner was not an "industry" within the meaning of
 Section 2(j) of the said Act of 1947 and therefore the
 Tribunal had no jurisdiction. It is contended that

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 though the respondent was on select list at Sr.No.35,
 the list lapsed after a period of two years i.e. with
 effect from 6th January, 1996. It is contended that
 the first respondent was appointed on contract basis
 and the first respondent has not actually worked for
 243 days and in fact she has worked for 232 days. It
 was submitted that the provisions of Sections 25B and
 25F will have no application.

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 5. By the impugned judgment and award, the
 learned Presiding Officer of the Tribunal held that
 the management of the petitioner was an industry. It
 was also held that the first respondent has proved
 that she worked for 243 days in a year. Therefore,
 the order of reinstatement with 50% backwages was
 passed by the learned Presiding Officer.

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 6. Shri Kantharia, learned counsel appearing for
 the petitioner pointed out that the petitioner has
 raised a contention that the petitioner is not an
 industry within the meaning of Section 2(j) of the Act
 of 1947. He however fairly stated that considering
 the legal position, it will be difficult to
 substantiate the said contention. He submitted that
 it is true that the name of the first respondent was
 included in the select list. However, he pointed out

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 that the select list has lapsed after a period of two
 years. He submitted that the case of the first
 respondent was not covered by Section 2(oo) of the
 said Act of 1947 in view of the clause (bb) thereof.
 He submitted that the finding of the Tribunal that the
 first respondent worked for 243 days was recorded by
 completely ignoring the provisions of section
 2(oo)(bb) of the said Act of 1947. Without prejudice
 to his contention that the case will fall in clause
 (bb) of Section 2(oo) of the said Act of 1947, he
 submitted that the Sundays and holidays could not have
 been included while computing the days for which the
 first respondent actually worked. He placed reliance
 on the decision of the learned Single Judge of
 Rajasthan High Court in the case of Bajrang Lal v.
Assistant Engineer, P.W.D., Sub-Division Sikar and

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Ors., reported in 1993 IICLR 205. He also placed
 reliance on the decision of the Apex Court in the case
 of Uptron India Ltd. v. Shammi Bhan & Anr., reported
 in (1998) 6 SCC 538. He submitted that even according
 to the case of the first respondent, she was employed
 for a fixed term of contract for a period of six
 months and therefore, the case of the first respondent
 was not covered by Section 2(oo) of the said Act of
 1947. He also placed reliance on the decision of the

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 Apex Court in the case of Harmohinder Singh Vs.

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Kharga Canteen, Ambala Cantt., reported in 2001 II CLR
 927 in that behalf. He, therefore, submitted that the
 impugned judgment and award was required to be quashed
 and set aside. Shri Kantharia also submitted that the
 order passed by the Tribunal for payment of 50%
 backwages was illegal as the burden was on the first
 respondent to prove that she was not gainfully
 employed after her alleged termination.

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 7. Shri Sawant, learned counsel appearing for the
 first respondent submitted that the impugned judgment
 and award is legal and proper. He submitted that the
 finding recorded by the Tribunal is that the first
 respondent was thrown out of the employment though the
 work existed and other hands were engaged in her place
 to do her work. He submitted that while computing the
 total number of days for which the first respondent
 worked, the 12 weekly off i.e. Sundays and holidays
 will have to be computed. He placed reliance on the
 various decisions in support of his contention. He
 placed reliance on the decision of the Apex Court in
 the case of The Workmen of American Express
International Banking Corporation v. The Management
of American Express International Banking Corporation,

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 reported in 1985 II CLR 269 and submitted that the
 view taken by the Tribunal that the first respondent

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 worked for more than 240 days is the correct view. He
 placed reliance on another decision reported in 1956

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 (74) FLR 2321 ( Goodyear India Ltd. v. Vijaykumar )

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 and submitted that it cannot be said that the
 termination of the service of the Respondent was as a
 result of expiry of a contractual term in the order of
 appointment. He submitted that though all the
 findings are in favour of the first respondent, the
 Tribunal has not specifically recorded in the
 operative part of the order that the first respondent
 is entitled to continuity in the service. He
 submitted that if the order of reinstatement is
 confirmed and continuity in the service is granted,
 the first respondent may not insist for execution of
 the direction to pay 50% backwages. He submitted that
 otherwise there is no reason to disturb the award made
 with regard to the payment of backwages.

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 8. I have considered the submissions. It will be
 necessary to refer to the findings recorded by the
 learned Presiding Officer of the Tribunal in the
 impugned judgment and award. It must be stated that
 it is not at all reflected from the impugned judgment
 and award that the submission which is made in this
 Court regarding non-applicability of Section 2(oo) of
 the said Act of 1947 in view of clause (bb) thereof

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 was specifically made before the Tribunal. The first
 submission which is made was that the Tribunal had no
 jurisdiction as the petitioner cannot be termed as an
 "industry". The second contention was that the
 respondent has not worked continuously for a period of
 240 days.

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 9. In paragraph 12 of the judgment and award, the
 learned Presiding Officer has observed that the
 evidence on record shows that the work which was being
 done by the first respondent was of a permanent nature
 and she was already included on the waiting list of
 the selected candidates. The learned Presiding
 Officer of the Tribunal has disbelieved the case made
 out by the petitioner on the basis of the evidence on
 record which indicates that the first respondent was
 engaged in the work of permanent nature. The learned
 Presiding Officer also referred to the fact that the
 entry of the Respondent was not from back door. He
 recorded a finding that out of the select list, 28
 persons were appointed, but due to ban on appointment
 other persons were not engaged. The learned Member of
 the Tribunal did not accept the case of the Petitioner
 that though the Respondent was already on select list
 her appointment was purely on contractual basis. Shri
 P.M.Kantharia, Asstt.Director of the Petitioner stated

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 in his evidence that there were vacancies of Lower
 Division Clerks and the ban on employment was imposed
 on 5th August 1999. It is very difficult to find
 fault with the finding of the Tribunal.

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 10. One Shri Dhamija, Assistant Director of the
 petitioner admitted during the course of his cross
 examination that the respondent was not given wages of
 weekly off and she was also not paid wages of the
 holidays during daily wages period. Considering this
 admission of the witness examined by the petitioner,
 the Tribunal held that the workman was not paid wages
 of 12 holidays. It is also observed that this factual
 position is not disputed by the petitioner. That is
 how the learned Presiding Officer of the Tribunal came
 to the conclusion that the respondent completed 244
 days. It is not possible to interfere with the said
 finding of fact. Therefore, the order of
 reinstatement was passed without complying with
 Section 25F of the said Act of 1947.

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 11. So far as the backwages are concerned, the
 only reason given by the Presiding Officer is in
 paragraph 13. My attention was invited to the
 evidence of the respondent. In the
 examination-in-chief of the first respondent which is

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 recorded on 1st August, 2001, she has not stated that
 after 1st January, 1998 she was not gainfully employed
 or that she had no source of income. Thus, no
 evidence has been led by the first respondent that she
 had no source of livelihood after her services were
 terminated. This important aspect has not been
 considered by the Presiding Officer. In fact, in view
 of the nature of the evidence led by the respondent
 this was a case where backwages should have been
 denied to the first respondent.

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 12. The grievance made by learned counsel
 appearing for the respondent is that the award may be
 modified directing that the first respondent shall be
 reinstated in service with continuity in the service.
 The relief of continuity in service has not been
 granted by the impugned judgment and award. The first
 respondent has not chosen to file any writ petition
 for challenging that part of the award. Hence, such a
 prayer cannot be acceded to.

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 13. Hence, the petition must succeed in part and I
 pass the following order.

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 (i) The Petition partly succeeds. The
 part of the impugned award directing

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 the petitioner to pay 50% of the
 backwages to the respondent is quashed

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 and set aside.

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 (ii) Rest of the award is maintained.

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 (iii) Rule is made partly absolute with no

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 order as to costs.

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Judge.

Khadi and Village Industrie Commission v. Ms. S.B. Mohite and Ors.

Case brief

What is this about?

What did the court decide?

Khadi and Village Industrie Commission v. Ms. S.B. Mohite and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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