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2006 DIGILAW 1044 (BOM)

VFC INDUSTRIES PVT. LTD. v. BALU GANPAT SAKPAL

2006-07-11

D.G.KARNIK

body2006
ORAL JUDGMENT :- By this petition the petitioner challenges judgment and order dated 25th April, 2005 passed by the Industrial Court revision against the order dated 27th August, 2004 passed by the Labour Co Mumbai, allowing the complaint filed by the respondent under the Maharas Recognition of Trade Unions and Prevention of Unfair Labour Practices 1971 (for short "the Act") and directing the petitioner to reinstate the respondent in service with backwages from 1st September, 1998 to 22nd of April, 2002, continuity of service. 2. The petitioner-company has a factory at village Baska, Taluka H District Panchmahal and had its administrative and commercial office Mumbai. The respondent was employed as a peon in the petitioners office Mumbai. The petitioner decided to shift administrative and commercial of including accounts department from Mumbai to its factory at Baska, Dis Panchmahal and put up a notice to that effect on the notice board on 25th Au 1998. The notice stated that the office will be shifted with effect from September, 1998 and all employees should report for duty at the factory at Ba District Panchmahal, who Would be given 2nd class train fair accommodation or house rent allowance in lieu of accommodation. Some of employees joined the work at the transferred place, while others resigned employment and were paid their dues. 3. The respondent neither resigned the service nor joined the work at transferred place. According to the respondent he went for work as usual at Mumbai office on 1st September, 1998 where he was orally told by Managing Director Mr. Patel that his services were terminated. He approach the Union which wrote a letter to the petitioner on 12th September, 1998 which was not replied. The respondent then personally wrote a reminder on February, 1999 which also was not replied. The respondent therefore file complaint before the Labour Court on 17th February, 1999 alleging therein the petitioner had committed unfair labour practice by unlawfully terminating service. He claimed reinstatement with full back wages. 4. The petitioner contested the complaint. It denied that the services of respondent were terminated as alleged by him, and pleaded that the office Mumbai was closed and therefore the services of the respondent were transfer to the companys office at Baska, District Panchmahal. He claimed reinstatement with full back wages. 4. The petitioner contested the complaint. It denied that the services of respondent were terminated as alleged by him, and pleaded that the office Mumbai was closed and therefore the services of the respondent were transfer to the companys office at Baska, District Panchmahal. It further pleaded that respondent failed to report for duty at Baska on 1st September though a notice that effect was put up and he was informed about the transfer. The respond had voluntarily not been attending the duties and there was no termination service by the petitioner. 5. During the pendency of the complaint before the Labour Court petitioner wrote a letter to the respondent on 10th August, 2001 asking him report for duty at Baska, District Panchmahal. The letter further stated that case the respondent failed to comply action will be taken against him. So correspondence ensued between the parties thereafter with each party making allegations against the other . However , the fact remains that the respondent never joined the petitioners factory at Baska Distric Panchmahal. 6. After consideration of the evidence adduced before it is Labour Court came to the conclusion that petitioners factory at Baska, District Panchmahal. er consideration of the evidence adduced before it the Labour Court conclusion that the petitioner had orally terminated the services of practicent on 1st September, 1998 and this amounted to unfair labour this view of the matter the Labour Court ordered the reinstatement of dent with backwages with effect from the September, 1998. The revision application filed by the petitioner against the order of the Labour Court was dismissed by the Industrial Court by the impugned order. 7. Mr. Rele, learned counsel for the petitioner submitted that the finding by the Labour Court that the petitioner had orally terminated the f the respondent from 1st September, 1998 was palpably wrong and the petitioner was all along willing to employ the respondent. Since the Mumbai was closed and services of all employees including the t were transferred to the new office at Baska, District Panchmahal. The t ought to have reported for work at the new office with effect from 1st , 1998. He failed to do so. The petitioner had repeatedly called upon dent to join the new place of work. However, the respondent failed to report for work. The t ought to have reported for work at the new office with effect from 1st , 1998. He failed to do so. The petitioner had repeatedly called upon dent to join the new place of work. However, the respondent failed to report for work. The petitioner had never terminated the services of the of and therefore there was no question of passing an order of respondent with back wages. In the alternative he submitted that assuming that services of the respondent were terminated by letter dated 10th May, 2001 the r had made an unequivocal offer to the respondent of employment and m to join the work. The offer was repeated in several letters in the series respondent that ensued between the parties after May, 2001. In view of matter the respondent was not entitled to back wages. In support, the learned referred to and relied upon two decisions of this Court in Sonal vs. Trimbak Shankar Kare, reported in 2002(//1) CLR 488 and Suja s vs. Uday Singh B. Rawat, reported in 2003(4) MhLJ. 687 = 2004 LR 169 . 8. Per contra, learned counsel for the respondent submitted that there was not evidence to show that the petitioner had orally terminated the services respondent with effect from 1st September, 1998. The respondent had stated. Patel, the Director of the company had personally told him that his were terminated. Mr. Patel did not himself deny this statement. The Court has believed the respondents evidence and recorded a finding of the t the services of the respondent were unlawfully terminated orally by the r. This finding is perfectly legal finding and cannot be interfered with in of writ jurisdiction under Article 226 of the Constitution of India. 9. With the help of learned counsel for the parties I have gone through the complaint, which is in vernacular language, as also the written statement filed by petitioner. In the complaint the respondent has specifically alleged that he o work as usual at the Mumbai office on 1st September, 1998 when he was owed to join work and the muster roll was removed. He further pleaded. Patel orally told him that his services were terminated. 10. The respondent examined himself on oath before the Labour Court and ed on oath what he had stated in the complaint. He specifically stated that on 1st September, 1998 Mr. He further pleaded. Patel orally told him that his services were terminated. 10. The respondent examined himself on oath before the Labour Court and ed on oath what he had stated in the complaint. He specifically stated that on 1st September, 1998 Mr. Patel, the Managing Director of the com him that his services were terminated. The petitioner examined one Choksi but did not examine Mr. Patel. When a specific allegation was the complaint as well as on oath that Mr. Patel, the managing director, the respondent that his services were terminated the petitioner ought examined Mr. Patel to deny this statement. For withholding the evidence Patel adverse inference can be drawn against the petitioner. In any finding which is recorded by the Labour Court and confirmed in revision Industrial Court that the services of the respondent were orally terminated was so informed by Mr. Patel, the Managing Director, is a possible finding fact and cannot be said to be in any way perverse. This finding therefor be interfered with in exercise of writ jurisdiction. 11. In the case of Sonal Garments (supra), services of the war terminated orally by the employer on 23rd April, 1991. Neither retrenchment compensation nor wages in lieu of notice was offered to him at the termination. The workman challenged his termination by before the Court. The Labour Court granted reinstatement with full back was decision was challenged before this Court. This Court noted that pendency of the dispute an offer was made by the employer to reinstate workman. That offer was not accepted by the workman even without pr his rights and contentions. In view of that this Court held that the war not entitled to backwages at all. The award of the Labour Court was ace set aside. That decision was followed by this Court in the case of Suja (supra). Therein the Court held that where an employee does not accept for employment made by the employer even without prejudice to his. contentions he will not be entitled to continue the claim for reinstate would not be entitled to claim backwages from the date of the offer, or unconditional. 12. In the present case it has come on record that the petitioner offer of employment to the respondent on 10th May, 2001. The letter was by him on 29th May, 2001. He declined the offer and did not employment. 12. In the present case it has come on record that the petitioner offer of employment to the respondent on 10th May, 2001. The letter was by him on 29th May, 2001. He declined the offer and did not employment. In the circumstances the respondent would not be entitled reinstatement nor would he be entitled to claim backwages from the receipt of the letter which should be around 15th May, 2001. The Industrial therefore erred in confirming the order for reinstatement and further allowing backwages after 15th May, 2001. In the circumstances the order by the Courts below need to be set aside and modified. Accordingly petition is allowed. The impugned order is set aside and in its place the order is substituted. 13. It is declared that the petitioner-company indulged in unfair practice by orally terminating the services of the respondent on 1st Se 1998. However in view of the offer made by the petitioner-company respondent to employ him and declining of the said offer by the respond not entitled to an order of reinstatement nor entitled to any backwages date of offer. The petitioner is directed to pay to the respondent the entire from September, 1998 to 15th May, 2001 within a period of 4 wee amount, if any, already deposited by the petitioner in this Court in pursuance of the dated 4th July 2005 would taken into consideration while computing claim. The respondent is allowed to withdraw the amount deposited, with interest, if any, accrued thereon. Order accordingly.