Dismissed

M/S. Gujrat Rope Factory v. Shri Shamrao Panduran Mogare

Bombay HC11 Aug 2008WP/2680/2005

Case brief

AI extract

What is this about?

This court dismissed a writ petition by an employer challenging a labour court order reinstating a salesman wrongfully retired before superannuation age. Upholding the lower court's finding that the employer acted in bad faith due to lack of evidence on the employee's date of birth, the court directed reinstatement with 50% back wages.

What did the court decide?

The petitioner is directed to pay 50% back wages to the respondent for the period from 22.9.1998 till 1.12.2004; the writ petition is dismissed.

M/S. Gujrat Rope Factory Vs Shri Shamrao… — Pension and Retirement Benefits | Bombay HC (2008)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO. 2680 OF 2005

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 M/s. Gujarat Rope Factory ]
 a Partnership firm, carrying on ]
 business at 57, Bhajipala Lane, ]
 Mumbai 400 003 ]..Petitioner
 versus
 Shamrao Pandurang Mogare ]
 M. S. Wadi, Brahman Dev ]
 Rahiwasi Sangh, Ghatla Village, ]
 Mumbai 400 071 ]..Respondent

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 Mr. S. C. Naidu i/b. M/s. C. R. Naidu & Co.
 for the Petitioner.
 Mr. Rajesh Gehani for the Respondent.

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CORAM : S. A. BOBDE, J.
DATE : 11TH AUGUST, 2008.

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ORAL JUDGMENT :

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 . Heard.

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 2. The petitioner an employer has challenged the
 judgment and order dated 24.11.2004 passed by the
 VIIth Labour Court, Mumbai, by which the Labour Court
 has held that the petitioner has engaged in unfair
 labour practices under Item 1(1), (b), (d) of
 Schedule IV of MRTU & PULP Act, 1971 and directed the
 petitioner to reinstate the respondent with
 continuity of service and full back wages.

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 3. In short, the Labour Court has held that the
 petitioner wrongly treated the respondent as retired
 from 22.9.1998 on the ground that he has attained the
 age of superannuation even though the respondent had
 not attained that age. The respondent was working as
 a salesman with the petitioner from 2.5.1964. His
 last drawn wages were Rs.4,000/- per month. The
 petitioner is a partnership firm engaged in the
 business of ropes, newar, tapes twins and all kinds
 of threads at 57, Bhajipala Lane, Mumbai 400 003.
 According to the respondent on 22.9.1998 the
 petitioner called the employees and stated that he
 intends to close the shop from 1.10.1998 and
 therefore they do not require their services.
 Admittedly, from the next day the respondent was not
 allowed to work. The respondent therefore filed a
 complaint under Schedule IV, Item 1 of MRTU & PULP
 Act, which reads as under:-

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"1. To discharge or dismiss employees -

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(a) by way of victimisation;

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(b) not in good faith, but in the colourable exercise of the employer’s rights;

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(c) by falsely implicating an employee in a criminal case on false evidence or on concocted evidence;

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(d) for patently false reasons;

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(e) on untrue or trumped up allegations of absence without leave;

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(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;

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(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment. "

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 After recording evidence and hearing parties, the
 Labour Court held that the retirement age was between
 58-60 and that on 22.9.1998 the respondent could not
 have been treated as retired because he was born on
 1.6.1949 and therefore on that date he was 49 years
 of age. He therefore set aside the so-called
 superannuation and directed reinstatement with full
 back wages. Parties agree that the date of
 retirement is 60 years.

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 4. According to the petitioner, the respondent
 has been reinstated on 1.12.2004 and worked till
 August, 2007. Learned counsel for the respondent
 does not dispute this position.

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 5. Mr. Naidu, the learned counsel for the
 petitioner submitted that the Labour Court has
 committed a serious error of jurisdiction in holding

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 that the petitioner has committed an unfair labour
 practice under Item 1(b) and 1(d) of Schedule IV of
 the MRTU & PULP Act, 1971, on the basis of a Birth
 Certificate from a School produced by the respondent
 in court on 20.3.2004. According to the learned
 counsel it can be said to have been taken in not good
 faith or for patently false reasons if the relevant
 evidence or date of birth was not before the
 employer. There is substance in the contention on
 behalf of the petitioner. Indeed, the employer can
 be said to have acted not in good faith or for
 patently false reason under Schedule IV Item 1 of the
 MRTU & PULP Act in retiring an employee only if he
 was conscious of a different date of birth, than the
 one he believed to be correct. Obviously, if the
 employee has not brought to the employer’s notice the
 date of birth which according to him is correct and
 which entitles him to continue in service, he cannot
 establish bad faith on the part of the employer.
 However, this position in law does not help the
 employer in the present case.

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 6. In this case the employer has not produced
 any evidence to show that there was in their
 possession any date of birth on the basis of which
 they could truthfully form the opinion that the

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 respondent had attained the age of superannuation on
 22.9.1998. The decisions seems to be completely
 arbitrary. Therefore, the order of the Labour Court
 that the employer did not act in good faith but in
 colourable exercise of the employer’s right and for
 patently false reason and must be upheld.

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 7. Mr. Naidu, learned counsel for the
 petitioner submitted that the employer was in

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 possession of the Register under the Bombay Shops and
 Establishment Act wherein the respondent’s age was

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 recorded. However, such a Register has not been
 produced and the employer has not been able to
 demonstrate this fact. In the circumstances, the
 finding of the Labour Court in paragraph 19 that the
 petitioner had not produced any document showing that
 the respondent has attained the age of retirement on
 22.9.1998 is liable to be upheld.

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 8. In the circumstances, the respondent is

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 entitled for reinstatement. On the question of back

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 wages. Mr. Naidu, relied on the decision of the
 Supreme Court in the case of Allahabad Jal Sansthan

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vs. Daya Shankar Rai &Anr. [ 2005 II CLR 453 ]
 where Their Lordships have observed in paragraph 17
 as follows:

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" We have referred to certain decision of
this Court to highlight that earlier in the
event of an order of dismissal being set
aside, reinstatement with full back wages was
the usual result. But now with the passage
of time, it has come to be realized that
industry is being compelled to pay the
workman for a period during which he
apparently contributed little or nothing at
all for a period that was spent
unproductively, while the workman is being
compelled to go back to a situation which
prevailed many years ago when he was
dismissed. It is necessary for us to develop
a pragmatic approach to problems dogging
industrial relations. However, no just
solution can be offered but the golden mean
may be arrived at."

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 Their Lordships have also referred to earlier
 decision of the Supreme Court in Indian Railway
Construction Co. Ltd. vs. Ajay Kumar [2003 I

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CLR 817] with the observations as follows:

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".....In the very nature of things there
 cannot be a strait-jacket formula for
 awarding relief of back wages. All relevant
 considerations will enter the verdict. More
 or less, it would be a motion addressed to
 the discretion of the Tribunal. Full back
 wages would be the normal rule and the party
 objecting to it must establish the
 circumstances necessitating departure. At
 that stage the Tribunal will exercise its
 discretion keeping in view all the relevant
 circumstances. But the discretion must be
 exercised in a judicial and judicious manner.
 The reason for exercising discretion must be
 cogent and convincing and must appear on the
 face of the record......"

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 Having regard to the aforesaid observations, it would
 be proper to assess the question of back wages in the
 present case as follows:-

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 . The respondent has not pleaded that he was
 not gainfully employed after his termination.
 However, in the course of his evidence, he has stated
 that he has a wife, two sons and a daughter, the
 expenses for maintaining them being about Rs.2,000/-
 per month. He also stated that it is not true that
 after leaving job he was employed and was still doing
 the work. Though there is no pleading to the effect
 that the respondent was not employed there is some
 evidence on record. On the other hand the petitioner
 did not have a full opportunity to rebut the
 respondent’s case in the absence of any pleading.

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 9. In the circumstances of the case, it would be
 appropriate in the interest of justice to direct the
 petitioner to pay 50% back wages to the respondent
 for the period from 22.9.1998 till the date of his
 reinstatement i.e. 1.12.2004. In the result, the
 writ petition is dismissed with the order as above.

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(S. A. BOBDE, J.)

M/S. Gujrat Rope Factory v. Shri Shamrao Panduran Mogare

Case brief

What is this about?

What did the court decide?

M/S. Gujrat Rope Factory v. Shri Shamrao Panduran Mogare

Case brief

What is this about?

What did the court decide?

What the court decided

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