Dismissed

The Bombay Mothers and Children Welfare Society and Anr. v. Ashok Krishnarao Phutane

Bombay HC18 Mar 2013WP/2390/2012

Case brief

AI extract

What is this about?

In a writ petition challenging labour court order declaring unfair labour practices, the court found no fault in lower courts' findings on misconduct proportionality or jurisdiction. Dismissing the petition, the High Court upheld the award of full back wages to a terminated employee based on violation of Section 33(2) of the ID Act.

What did the court decide?

The petition was dismissed; the order held is not interfered with.

The Bombay Mothers and Children Welfare… — Labour and Industrial Disputes | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.2390 OF 2012

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The Bombay Mothers and Children Welfare Society and Anr. Versus Ashok Krishnarao Phutane

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....Petitioners.

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...Respondent.

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Mr. P.M.Palshikar, advocate for the Petitioners. Mr. Prakash S. Devdas, advocate for the respondent.

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CORAM : RANJIT MORE, J.

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DATED : March 18, 2013.

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P.C.:

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Heard learned counsel appearing for the respective parties.

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2 Petitioner/Employer, by filing this writ petition under Article 226

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of the Constitution of India, is challenging concurrent findings of both the lower Courts, declaring that the petitioners have engaged in unfair labour Practices under item 1(a), 1(b), 1(d), 1(f) and 1(g) of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. By the said order, the Labour Court directed the petitioners to cease and desist from the said unfair labour practices, forthwith. They were further directed to pay full back wages with

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continuity of the service to respondent/complainant from the date of termination till the date of his superannuation.

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3 Respondent (complainant) was terminated by the petitioners from 29.7.2000. Termination order was preceded by the charge-sheet dated 9.9.1999. The Labour Court held that the domestic enquiry was fair and proper however, the findings recorded by the enquiry officer are perverse. Petitioners thereafter tried to prove the misconduct of the respondent by leading evidence in the Labour Court. Labour Court held that the misconduct alleged against the respondent is a minor misconduct and, therefore, punishment of termination was unwarranted, which is shockingly disproportionate to the charge alleged against the respondent. Industrial Court, however, held that the alleged misconduct is not covered by any of the clauses of Model Standing Orders. I have perused the charge-sheet at page 20 and the findings. The aforesaid findings, of the lower Courts, can not be faulted with.

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4 Mr. Palshikar learned counsel for the petitioner argued that the alleged misconduct falls under Clause 22(m) of the Model Standing Orders. However, he fairly agreed that the charge-sheet does not refer to any of the clauses under which alleged misconduct falls. In the circumstances, I am not inclined to interfere with the findings recorded by

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both the lower Courts in this regard.

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5 Mr. Palshikar further argued that the complaint itself was not maintainable in the Labour Court for want of jurisdiction. He relied upon the provisions of Sections 33(2)(b) and 33-A of the Industrial Disputes Act, 1947 and submitted that at the relevant time, proceedings were pending before the Industrial Tribunal and, therefore, respondent ought to have filed complaint before the Industrial Tribunal. Mr. Palshikar learned counsel however, has fairly agreed that the respondent could have filed complaint for unfair labour practices before the Labour Court challenging his termination. If that be so, then remedies under the MRTP and PULP Act as well as under the Industrial Disputes Act, 1947 were available to the respondent/employee. Mr. Palshikar could not point out any bar to entertain complaint by the Labour Court. Submission, therefore, can not be accepted.

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6 Mr. Palshikar lastly argued that full wages could not have been allowed to the respondent. He invited my attention to the respondent's evidence and pointed out that the respondent did not make any attempt to get the employment during the said period of termination. Counsel for the respondent, on the contrary, supported the impugned judgment and

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order. Respondent was terminated from service with effect from 29^th August, 2000 . During the pendency of the proceedings, he reached the age of superannuation on 12^th June, 2009 and, therefore, there was no question of reinstatement . Employee in his deposition, has specifically stated that after termination, he did not perform any work or job. Admittedly, when services of the employee was terminated, he was more than 50 years of age. In these circumstances, it can not be expected that respondent will get any job. That apart, both the lower Courts while granting full back wages, relied upon the decision of the constitution bench in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Ors. 2002 1 CLR 789. The Supreme Court in this case held that when the termination of the service of the employee is in contravention of the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947, dismissal becomes ineffective from the date at which it was passed and the employee becomes entitled to wages from the date of dismissal to the date of disapproval of the application. No specific order of reinstatement would be necessary. As stated above, it is the contention of the petitioners itself that remedy under Section 33-A of the Industrial Disputes Act, 1947 is available to the respondent. Petitioners do not dispute pendency of the proceedings before the Industrial Tribunal at the relevant time. It is not the case of the petitioners that they have taken

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approval from the Industrial Tribunal or paid one month's wages to the respondent in terms of the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947. In the circumstances, I do not find fault with the order granting full back wages to the respondent.

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7 Taking totality of the facts and circumstances into consideration, I am not inclined to interfere with the impugned order under Article 226 of the Constitution of India.

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8 Petition is accordingly dismissed.

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(RANJIT MORE, J.)

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The Bombay Mothers and Children Welfare Society and Anr. v. Ashok Krishnarao Phutane

Case brief

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The Bombay Mothers and Children Welfare Society and Anr. v. Ashok Krishnarao Phutane

Case brief

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