M/S. R. Nawroji and Co. Vs Francis E. Lobo and Anr.

1] The	Petitioner is	a partnership
registered	under the provisio	ns of the Indian
Partnership A	ct,1932 and inte	r-alia engages in
the business	of running a	printing press. On
3rd December	, 1989 the	First Respondent,
stating that	he was 55 years	of age, submitted
an application	for being	appointed as a
Machine Ope	rator. The date	of birth of the
First Respondent	is 21st March,	1935. On 12th
December,1989	the Petitioner	appointed the
First Respon	dent for a period	of six months.
The First	Respondent was	appointed subject to
the condition	that if during	the period of

¶12

employment his work was not found

¶13

satisfactory,		the management	re	served	its
right		to terminate the temp	orary	app	ointment.
On	7th	June, 1990 the services	of	the	First
Respondent		were extended, treating	him	to	be
on	prob	ation, until 31st July,1990.		On	26th
August,	19	90 the services of		the	First

¶14

[[2]]

¶15

Respondent		were termina	ted. The		First
Respondent		sought a	reference to	adju	dication
under	Section	10 (1)	of the	In	dustrial
Disputes	Act,	1947.	By the time	that	the
Labour	Court	delivered its	Award on	14th	July,
2003,	the	First Respo	ndent was well	over	68
years	of	age. The	Labour Court came	to	the
conclusion	th	at the	First Respon	dent	had
worked	for	a period of	more than 240	days	and
the	terminat	ion without	complying w	ith	the
provisions		of Section	25F was		illegal.

¶16

Reinstatement was ordered with full back wages.

¶17

2]	When	this pet	ition was admitte	d on 3rd
February,	2004,	the	execution	of the	Award	was
stayed,	su	bject	to the	Petitioner	dep	ositing
arrears	of	wage	s upto the	date on	which	the
First	Respon	dent	would com	plete the	age of	60
years.	An	am	ount of	Rs.92,000/-	has	been
deposited	as	and	by way	of back	wages for	the

¶18

period until the date on which the first

¶19

Respondent would attain the age of 60 years.

¶20

3] The finding of fact that the first Respondent had actually worked with the

¶21

[[3]]

¶22

employer	for	more	than	240	days is not
questioned	b	efore	this	Court.	The Labour
Court	follo	wed	the Judg	ment of	the Supreme
Court	in	Wor	kmen	of A	merican Express
International		Banking	Co	rporation	Vs. The
Management		of	America	n Express	International
Banking		Corporat ion	(1985	I LL.J.5	39.). The
expression	"	actually	worked	with	the employer"
under	Secti	on	25(B)(2)(b)	has been	held to
mean	the	period	during	which the	contract of
employment		has	continued	and the	workman has
been	paid	wages.	The	contract	of employment
had	continu	ed for	over	240 days	& the workman
was	paid	wages	for the	period.	Hence absent
compliance		with	Section	25F,	the retrenchment
was	unlaw	ful.	The	Original	order of
appointment		does	not	specify	that the
appointment		was	on	probation.	On the
contrary,	the	appo	intment	was	made on a
temporary		basis.	Su	bsequently,	an effort was
made	by	the	employer	to show	that the earlier
appointment		was	on	probation.	Such a
unilateral		alteration	in	the	basis of
appointment		could	not	be val	id. However,
having	reg	ard to	the vi	ew which	would emerge
in th	e	subsequ	ent part	of this	Judgment it

¶23

[[4]]

¶24

would not be necessary to elaborate upon this

¶25

aspect of the matter any further.

¶26

4]	On behalf of the petitioner, it has been
submitted	that the Labour	Court	was not
justified	in directing	reinstat	ement with
backwages	since by the date o	n	which reference
came	up the workman was well	over	68 years of
age.	On the other hand, on	beha	lf of the
workman	it has been submi	tted	that the
appropriate	order now would be	for	the Court
to	direct that the workman		should be
reinstated	with full back wages	and	that the
workman	would be entitled to	cont	inue during

¶27

his entire span of life subject to medical

¶28

fitness.

¶29

5]	The	Managing Par	tner of th	e employ	er
stepped	into	the	witness	box	and	dur	ing	the
course	of	his evid	ence	stated	that	the	age	of
superannu	ation	for e	mployees	of	the	firm		was
58	years.	There	was	no	cross-e	xaminat	ion	in
respect	of	this sta	tement.	T	he	Labour		Court
declined	to	accept	the	plea	that	the	age	of
superannu	ation	was 58	years	sinc	e	the	plea	was
not	raised	in th	e	written	st	atement	.	On

¶30

[[5]]

¶31

behalf of	the employer it has	been	su	bmitted
that there	was no occasion to	raise	this	plea
in the	written statement which	was	filed	on
13th March,	1992 since at that	point	of	time,
the workman	had not attained	the	age	of
superannuation.	Be that as it	may,	there	is
no dispute	about the position,	that	as	a
matter of	fact, neither did t	he con	tract	of
employment	specify a particu	lar	age	of
retirement no	r were any rules	pertai	ning	to
the establis	hment produced before	the		Labour
Court. In	view of the fact	that	only	six
employees are	engaged in the	Printing	Press	in
question, the	Model Standing	Orders		framed

¶32

under the Industrial Employment (Standing

¶33

Orders) Act, 1946 were not applicable.

¶34

6] It is well settled that even if, as a general principle,the setting aside of an order of termination would result in reinstatement with full backwages that is now not regarded as an invariable principle which will not brook any exception. This was laid down in the judgment of the Supreme Court in

¶35

Surendrakumar Verma Vs. Industrial Tribunal,

¶36

(1980) 4 SCC 443 in which the Supreme Court

¶37

[[6]]

¶38

held as follows:

¶39

"Plain common sense dictates
that the removal of an order
terminating the services of
workmen must ordinarily lead to
the reinstatement of the
services of the workmen. It is
as if the order has never been,
and so it must ordinarily lead
to back wages too. But there
may be exceptional circumstances
which make it impossible or
wholly inequitable vis-a-vis the
employer and workmen to direct
reinstatement with full back
wages. For instance, the
industry might have closed down
or might be in severe financial
doldrums; the workmen concerned
might have secured better or
other employment elsewhere and
so on. In such situations,
there is a vestige of discretion
left in the court to make
appropriate consequential
orders. The court may deny the
relief of reinstatement where
reinstatement is impossible
because the industry has closed
down. The court may deny the
relief of award of full back
wages where that would place an
impossible burden on the
employer. In such and other
exceptional cases the court may
mould the relief, but,
ordinarily the relief to be
awarded must be reinstatement
with full back wages. That
relief must be awarded where no
special impediment in the way of
awarding the relief is clearly
shown."
7] In the present case, the workman is on
the date of this order well over 74 years of

¶40

[[7]]

¶41

age. Hence, it would be wholly inapropriate
for the Court to direct reinstatement in the
facts of the present case, The learned Counsel
appearing on behalf of the workman contended
that the workman is entitled to continue in
employment for his entire life span, Counsel
relied on the Judgment of the Supreme Court in
the case of Delhi Cloth and General Mills
Ltd., Vs. Shambhu Nath Mukherjee, 1984
LAB.L.C. 1743. In that case, the Judgment of
the Supreme Court indicates that the workman
had expired during the pendency of the
proceeding. The employer sought to submit
that the monetary benefits admissible to the
workman should be computed on the footing that
he would have retired at the age of 60 years.
On the other hand, Counsel appearing for the
workman urged that since there was no valid
rule of retirement on superannuation
prescribing the age of 58 years, the employer
was bound to reinstate the workman in service
and he would have been entitled to serve till
the date of death. The Supreme Court
expressly kept the point that was urged by the
employer open. The finding of the Labour
Court was confined to the facts of that case

¶42

[[8]]

¶43

alone,	without	creating a precedent.	Since
the fac	ts of	that case showed that the w	orkman
had	expired,	the Supreme Court directed	that
monetary	benefits	be computed till the date	of
death	of the	workman. The Supreme	Court
directed	that	the employer pay m	onetary
benefits	in the	amount of Rs. 1,10,000/-	over
and	above R	s. 46,151.60 ps., which had	been
already	paid	to the workman. The Judgmen	t of
the	Division	Bench of this Court in the	case
of	Mst. D	ewli Bakaram and others Vs.	State
Industrial	Court	(1959) I.L.L.J. 475 that	has
been	relied	upon by the learned Counsel	for
the w	orkman,	again would not assist	in
assessing	the	facts of the present case.	In
that	case	the workmen of Empress Mills	were
retired	from	service on the ground that	they
had	completed	30 years of service,	in
pursuance	to	an agreement which was	entered
into	by the	employer with the Rashtriya	Mill
Mazdoor	Sangh	providing for such	a
consequenc	e.	The Division Bench of this	Court
held,	referring	to the definition of	the
expression	"retrenc	hment" in Section 2 (oo)	of
the	Industrial	Disputes Act, 1947 that	the
agreement	that	was entered into by the	Union

¶44

[[9]]

¶45

was no	t	at all an agreement	for the
retrenchment	of	workmen on reaching	the age of
superannuation,		because the agreem	ent did not
specify	an	age of superannuation.	On the
contrary,	the	agreement merely	provided for
retirement	of	a workman who had	worked for
more than	30	years. The Judgment	of a Learned
Single J	udge	of this Court	in Universal
Transport Co.	Mumbai	Vs. Siraj Kadarbhai
China and Anr.	(2005) I	II CLR 912 is clearly
distinguishable		on facts. In that	case, the

¶46

observations in para 7 of the Judgment were to the following effect:

¶47

	"No evidence w	hatsoever h	as been
brought	on record	by	the
Petitioners	to indica	te that	the
respondent	should	not	be
reinstated	in		service.
Furthermore	, when	the	judgment
of the	Trial Court	was	delivered
i.e.	16.5.1998,	the R	espondent
had	already reached	the age	of
60	years. The	Petitioner	then
ought	to have tak	en this	point
in	the revi	sion a	pplication,

¶48

[[10]]

¶49

which they have not. Having failed to do so, such an issue cannot be raised for the first

¶50

time at the stage of arguments.

¶51

Furthermore, even in the writ petition, this issue has not been raised and therefore, this Court ought not to permit the Petitioner to raise this issue regarding the age of retirement."

¶52

Therefore,	no	evidence	was	led b	y the employer
on	the m	aterial	question.	Mo	reover, even the
point	was	not	taken	in	the Revision
application.		No	material	was bro	ught on the
record	by	the	employer	to dem	onstrate as to
why	the	workman	sh	ould not	be reinstated.
Moreover,	even	thou	gh	on the	date of the
judgment	of	the	Trial	Court the	workman had
already	been	well	over	the age	of 60 years,
this	issue	was	not	raised in	the Revisional
Court,	but	was	raised,	for the	first time,
before	this	Court	in	the	arguments. In
contrast,	when	the	matter	came u	p before the

¶53

[[11]]

¶54

Trial	Court	in the	present	case, the	point
that	the	first respon	dent was	well over	58
years	of	age (that	according	to the	employer
being	the	age	of	superannuation)	was
specifically		raised.	The	Judgments	relied

¶55

upon by the workman do not advance his case

¶56

any further and are distinguishable.

¶57

8]	Having regard to the facts and
circumstan	ces of this case, I am of	the	view
that	the ends of justice would w	arrant	the
grant	of reasonable compensation in	lieu	of
reinstatem	ent.Prudence and law point	to	the
same	direction in this case. At	seventy	four
a	Machine Operator in a Printing	Press	cannot
be	put back in service. This case	falls	in
the	category of exceptions carved	out	in
Surendra	Kumar Verma (supra) by the		Supreme
Court	where the ordinary rule of	rein	statement
must	give way to compensation in	lieu	of
reinstatem	ent. The petitioner	has	in
pursuance	of the interim order		deposited
arrears	of back wages, for the pe	riod	between
the	date of termination and the date	on	which
the	workman would have attained the	age	of 60

¶58

years. The learned Counsel appearing on

¶59

[[12]]

¶60

behalf of the Petitioner has fairly stated

¶61

before the Court that the entire amount which has been deposited in this Court together with

¶62

accrued interest thereon may be paid over to the workman.

¶63

9] The amount deposited	in this C	ourt is
permitted to be wit	hdrawn	by	the	workman as
compensation in lieu	of	reinsta	tement	and back
wages. The first	Respond	ent	would	be entitled
to the accrued interest,	if	any,	on	the amount
that has been deposited	in	this	Court.	In the
aforesaid view of	the	matter,	the	directions
issued by the Labour	Cour	t in	its	Award of
14th July, 2003 are	set	aside	and	shall be
substituted by the	afore	said	directi	ons. The

¶64

Petition is allowed to the aforesaid extent.

¶65

There shall be no order as to costs.

¶66

[ DR.D.Y.CHANDRACHUD,J]

M/S. R. Nawroji and Co. v. Francis E. Lobo and Anr.

Case brief

What is this about?

What did the court decide?

M/S. R. Nawroji and Co. v. Francis E. Lobo and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S. Shah Nabar Asso. Vs Ganapati Krishnan

M/S. Hindustan Lever Ltd. and Anr. Vs M/S. Prabhat Builk Carriers Pvt. Ltd.

Universal Petro Chemicalsltd. Vs Prabu Das Virchand Lotia and Ors.

Daga Entp. Vs K.D.S.Films and Ors.

New India Exports Pvt. Ltd. Vs Shree Padma Wire Productspvt Ltd. and Ors.

M/S. Galaxy Enterprises Vs Mrs. Shrerroo Framroze Darukhanawala and 3 Ors.