Partly allowed

Maduri Chandulal Lakhani Proprieter of M/S. Jenny Colour Lab and Studio v. Prashant Shripad Satpute

Bombay HC13 Aug 2014WP/995/2007

Case brief

AI extract

What is this about?

The High Court modified a Labour Court award granting Rs. 1.5 lakhs compensation for non-reinstatement.finding the workman had secured alternate employment and unreasonably refused reinstatement. The Court ordered a modified compensation of Rs. 50,000 as an ex-gratia payment.

What did the court decide?

The impugned award is modified; the petitioner is directed to pay the respondent Rs. 50,000 by way of compensation. Rule made absolute.

Maduri Chandulal Lakhani Proprieter of M/S… — Pension and Retirement Benefits | Bombay HC (2014)

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JUD-WP-995-07

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

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WRIT PETITION NO. 995 OF 2007

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Smt. Madhuri Chandulal Lakhani ] Proprietor of M/s. Jenny Colour ] Lab & Studio, ] Shell Colony Road, ] Nr. Railway Station, Chembur, ] Mumbai 400 071 ] .. Petitioner

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versus

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Prashant Shripad Satpute ] Chawl No. 4/20, C-Group ] Near Chawl, Sidharth Colony, ] Chembur, Mumbai 400 071 ] .. Respondent

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Mr. A. S. Peerzada with Mr. Haresh Lakhani, Manager / Representative, for Petitioner. None for Respondent, though served.

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CORAM : M. S. SONAK, J.

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Date of Reserving the Judgment : 08 August 2014 Date of Pronouncing the Judgment : 13 August 2014

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JUDGMENT :-

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1] The petitioner – employer questions the award dated 2 September 2006 made by the Tenth Labour Court at Mumbai awarding compensation of Rs.1,50,000/- to the respondentworkman in lieu of reinstatement and back-wages.

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2] The respondent - Prashant was working as a photo printer with the employer. In the month of December 2000, Prashant met with an accident and had to be admitted in the hospital for treatment. It is Prashant's case that he informed the employer about the accident and his inability to report for work until he recovers from illness. The employer however contends that there was no intimation. On 14 June 2001, Prashant caused a demand for reinstatement with full back-wages and continuity of service with effect from 24 December 2000 to be served upon the employer. It is the case of the employer that they were surprised to receive the demand letter dated 14 June 2001, nevertheless, they immediately offered reinstatement to Prashant, he declined, as by then he had already secured alternate employment.

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3] In the conciliation proceedings which followed, the employer appeared on 20 July 2001 and once again offered to reinstate Prashant. However, Prashant refused to accept reinstatement, upon the spacious plea that back-wages for the period between 24 December 2000 to 20 July 2001 i.e. for a period of about seven months were not offered by the employer. The conciliation proceedings, ultimately ended in a failure and the appropriate Government made a Reference to the Labour Court under Section

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10 of the Industrial Disputes Act, 1947 (“said Act”), resulting in the impugned award.

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4] Heard Mr. A. S. Peerzada, learned counsel for the petitioner. Despite service neither did Prashant nor any Advocate on his behalf, put appearance.

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5] Mr. Peerzada submitted that there was overwhelming material on record which established that the employer at no stage terminated the services of Prashant, rather, the employer at every conceivable opportunity had offered to reinstate Prashant. Besides, there was no material on record to establish that Prashant had any reasonable cause to remain absent between December 2000 and July 2001. In any case, cause, if any, was never communicated to the employer. It was therefore clear that Prashant had already secured alternate gainful employment and the entire objective of raising dispute and pursuing the same was to extort some monies from the employer. For all these reasons, Mr. Peerzada submitted that the impugned award is liable to be interfered with.

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6] In Prashant's statement of claim and deposition, Prashant has

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stated that he was employed as a photo printer and his last drawn

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wages were Rs.4,000/- per month. On 24 December 2000, his services were orally terminated by the employer. By letter dated 25 June 2001, Prashant demanded reinstatement and even reported for work. However, he was not allowed to resume duties. Through the Union, Prashant addressed yet another letter dated 2 July 2001 complaining about the termination of his services without following the due process of law. Prashant deposed that after his termination, inspite of best efforts he could obtain no alternate employment.

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7] In his affidavit in lieu of examination in chief, Prashant stated that on 24 December 2000, he fell down from running train and sustained injuries to his legs and was required to be hospitalized for about 15 days. This fact was intimated to the employer by letter dated 31 December 2000 under certificate of posting as also telephonically. He stated that he reported for work in the first week of January 2001 but was not permitted to resume duties. He stated that he addressed demand notice dated 14 January 2001 and 25 June 2001 seeking reinstatement. Despite receipt of the same, the employer did not permit him to resume duties. In his crossexamination, he stated that he had been to Goa to secure alternate employment, but was not successful. He admitted that since two

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and half years he was working with Diamond Colour Lab and drawing salary of Rs.5,000/-.

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8] Mr. Harish Chandulal, who deposed on behalf of the employer stated that he came to know in February 2001 itself that Prashant had secured alternate employment with Diamond Colour Lab and was drawing salary of Rs.5,000/-. Mr. Harish admitted knowledge about the accident and stated that the employer has replied to all the letters sent by the Union. Mr. Harish, generally reiterated the employer's case as set out in the written statement to the effect that they had never terminated the services of Prashant. On the contrary, Prashant was time and again offered reinstatement, which he declined, because in the meantime Prashant had already secured alternate employment with Diamond Colour Lab at Kurla.

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9] The Labour Court, in passing the impugned award has emphasized upon the circumstances that the employer neither addressed any notice to Prashant to resume duties nor held any departmental enquiry in the matter of Prashant's unauthorized absence. Accordingly, Prashant's services were terminated without compliance with due process of law and Prashant therefore deserved to be paid an amount of Rs.1,50,000/- as compensation in

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lieu of reinstatement and back-wages.

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10] In my judgment, the approach of the Labour Court is not entirely right.

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11] In the first place, the Labour Court ought to have appreciated that there was variance between Prashant's statement of claim and his deposition. Nowhere in the statement of claim, is there any reference to the accident on 24 December 2000; hospitalization; telephone or written intimation; service of notices in January 2001 and the attempts between January and June 2001 to resume duties. It is settled position in law that no amount of evidence which is not backed by the pleadings can even be looked into much less, relied upon. True, Mr. Harish, who deposed on behalf of the employer has admitted knowledge about the accident and therefore the Labour Court cannot be faulted in accepting that Prashant was indeed involved in an accident on 24 December 2000. However, there was no legal material on record to conclude that Prashant's services were terminated on 24 December 2000 and that despite Prashant making attempts to report for duties in the months of January and February 2001, the employer did not permit him to resume duties. In fact, Mr. Harish has deposed that Prashant was

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employed with Diamond Colour Lab from February 2001 itself. Prashant has also deposed of having gone to Goa for about a week to secure alternate employment. All this material evidence has been totally overlooked by the Labour Court. Instead, the Labour Court has permitted itself to be influenced by depositions, which had no pleadings to back the same.

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12] Even if this Court were to assume that the employer was to blame in not addressing written communications to Prashant during the period 24 December 2000 and June 2001, record is clear that in the month of July 2001, in the course of conciliation proceedings, the employer offered to reinstate Prashant. Prashant however, declined to accept the offer of reinstatement on the spacious plea that back-wages for a period of six months or so were not offered to him. The Labour Court has held against the employer on this count. To my mind, such an approach is not correct. Once offer of reinstatement was made by the employer before the Labour Commissioner, there was no good or valid reason for Prashant to resume duties. The issue of back-wages could always have been sorted out later on. Nothing prevented Prashant from initiating appropriate proceedings for securing back-wages of hardly six to seven months, once the employment was secured by the offer of

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reinstatement made by the employer before the Labour Commissioner. There was no justification for Prashant to decline the offer of reinstatement upon the spacious plea that the same was not accompanied by back-wages for a period of about six to seven months. Normally, a worker, who is out of employment, would not, in such circumstances decline offer of reinstatement. From this, it does appear that Prashant had already secured alternate employment as deposed to by Mr. Harish, at the stage when the employer offered reinstatement to him.

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13] In the written statement filed by the employer, it is specifically stated that Prashant neither intimated about the accident nor did he cared to report for duties after recovery. In fact, the employer made enquiries and was informed that Prashant had left for Goa and thereafter that Prashant had already secured alternate employment. The employer also made reference to its response dated 25 June 2001 to the first demand notice dated 14 June 2001, in which again the employer offered reinstatement to Prashant. Such offer was renewed in the course of conciliation proceedings before the Labour Commissioner. In the written statement dated 10 December 2004, the employer denied having terminated Prashant's services and stated that even at that stage the employer is ready to reinstate

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Prashant, who may report to work immediately, if he so desires.

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14] Despite the aforesaid, Prashant refused to report for work. In his deposition, Prashant has admitted that he was working with Diamond Colour Lab and drawing salary of Rs.5,000/- per month. True, Prashant has stated that he was so working since last two and half years. However, upon consideration of totality of circumstances, it is clear that Prashant was offered reinstatement at the earliest instance by the employer but it is Prashant who has declined the said offer, presumably on account of his having secured alternate employment upon terms more favourable than what he had with the employer. All this relevant material has virtually been ignored by the Labour Court in passing the impugned award.

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15] In the case of NRK House, Mumbai vs. P. V. Tommy C/o. Akhil Bhartiya General Kamgar Union & Anr. [2008 III CLR 335] , the learned Single Judge of this Court ( S. A. Bobde, J. as he then was) upon coming to the conclusion that there was overwhelming evidence on record that the employer did not terminate the workman's services but all along asked the workman to report for duties, but the workman declined to report for duties, has held that the award of the Labour Court would suffer ' an error apparent on

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face of record ', if in such circumstances, it directs reinstatement and back-wages. This ruling, is quite apposite to the present case as well.

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16] However, taking into consideration the circumstance that there is no serious dispute between the parties that Prashant did suffer a railway accident on 24 December 2000 and was required to be hospitalized, it does appear that Prashant's absence was not unauthorized or in any case without any reasonable cause. In such circumstances, this Court called upon Mr. Peerzada to obtain instructions from the employer as to whether some payment ' ex gratia ' could be made to Prashant. In response, the employers have filed a Pursis in this Court stating that they would pay a sum of Rs.50,000/- to Prashant, without prejudice to their rights and contentions in this petition, should this Court make such a direction.

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17] In the aforesaid circumstances, although the employer has made out a case to warrant interference with the entire impugned award, in the light of the fact that Prashant had indeed met with a railway accident, which possibly made it difficult for him to report to duties for sometime, the impugned award is modified with the direction to pay Prashant compensation of Rs.50,000/- in lieu of his

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demands and claims against the employer. The Pursis lodged by the employer on 11 August 2014 is taken on record and marked as 'X' for the purposes of identification. The offer indicated therein is accepted.

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18] In the result, I make the following order:

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I. The impugned award is modified and the petitioner is directed to pay to the respondent an amount of Rs.50,000/- (Rupees Fifty Thousand) by way of compensation towards all his claims and demands.

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II. Rule is made absolute to the aforesaid extent.

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III. There shall be no order as to costs.

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Chandka

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Maduri Chandulal Lakhani Proprieter of M/S. Jenny Colour Lab and Studio v. Prashant Shripad Satpute

Case brief

What is this about?

What did the court decide?

Maduri Chandulal Lakhani Proprieter of M/S. Jenny Colour Lab and Studio v. Prashant Shripad Satpute

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

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