JUDGMENT :- Heard learned Advocates for the parties. Perused records. 2. By this Writ Petition, the petitioner-employer has impugned the Award passed by the Presiding Officer, Fifth Labour Court, Mumbai, dated 30th April, 2004 in Reference (IDA) No. 538 of 1998, allowing the Reference and declaring that the termination of services of the respondent No. 1 w.e.f. 10th April, 1994 is illegal and contrary to the provisions of law. By the said Award, the petitioner is directed to reinstate the respondent No. 1 with continuity of service and full backwages w.e.f. 10th April, 1996 within one month from the date of publication of the Award. 3. The facts in the matter are as follows: 4. The petitioner was a proprietary concern, running a Frankie stall in the name and style Ms Milestone. The said Frankie stall was run by late Mr. Lal Navani, who expired in the year 1998. It appears that Mrs. Janilal Navani, wife of Mr. Lal Navani was also assisting him in running the stall. In response to a query raised by this Court regarding the size of the stall, Mrs. Navani has informed this Court that the stall admeasured 160 sq. ft. According to the petitioner, respondent No. 1 was appointed in the year 1994 as a helper. Except for the respondent No. 1, there were no other employees working with Mr. Lal Navani. On 18th March, 1996, a fire broke out in the said stall and the respondent No. 1 suffered minor injuries. According to the petitioner, thereafter, the respondent No. 1 was afraid of resuming duty. Respondent No. 1 despite request made by Mrs. Navani did not resume duty. According to the petitioner, in December. 1996 a demand was raised for the first time by the respondent No. 1, wherein, he claimed that his services were terminated by the petitioner on 10th April, 1996. The respondent No. 1, thereafter approached the office of the Deputy Commissioner of Labour on 5th March, 1997 i.e. after almost one year from the alleged termination of his services. After receipt of notice, the petitioner appeared before the Conciliation Officer and pointed out that the services of the respondent No. 1 were never terminated. The respondent No. 1, thereafter approached the office of the Deputy Commissioner of Labour on 5th March, 1997 i.e. after almost one year from the alleged termination of his services. After receipt of notice, the petitioner appeared before the Conciliation Officer and pointed out that the services of the respondent No. 1 were never terminated. The Conciliation Officer, by his letter addressed to the Deputy Commissioner of Labour (Conciliation) has inter alia recorded that the management, vide its letter dated 29th July, 1997, have stated that they have not terminated the services of the workman and they were ready to reinstate him with continuity of service but without backwages. It is further categorically recorded by the Conciliation Officer that the respondent No. 1 refused to go to work unless he was paid back wages. The Conciliation Officer has reported failure of conciliation proceedings. 5. According to the petitioner, the petitioner had at the very outset made it clear that there was no termination of the services of respondent No. 1, and therefore there was no industrial dispute in existence. It is submitted that in view thereof there was no reason for the Government to make a reference of a demand which was not in existence. However, the Government made a reference in a mechanical manner. It is further submitted that even if it is assumed that an industrial dispute was in existence, it would require plurality of employees and since in this case there is only one employee in employment of the petitioner, there is no question of a dispute which could be referred for adjudication. 6. After the dispute was referred for adjudication, the respondent No. 1 filed his statement of claim in which it was pointed out that his services were terminated orally. He raised a plea that he was employed since 1st April, 1993. The petitioner filed its written statement and pointed out that the services of the respondent No. 1 were never terminated. It was pointed out that despite the offer given in the conciliation proceedings, the respondent No. 1 did not report on duty. It was also pointed out that since the respondent No. 1 got scared due to the fire incident, he did not join back on duty. It was pointed out that Shri Lal Navani expired on 4th November. It was pointed out that despite the offer given in the conciliation proceedings, the respondent No. 1 did not report on duty. It was also pointed out that since the respondent No. 1 got scared due to the fire incident, he did not join back on duty. It was pointed out that Shri Lal Navani expired on 4th November. 1998 and the shop in question was thereafter sold and therefore there was no question of reinstatement of respondent No.1. It was pointed out that when the services of the respondent No. 1 were not terminated, there was no industrial dispute in existence. 7. The respondent No. 1 examined himself in support of his case. He contended in his examination-in-chief that his services were illegally terminated by the petitioner. In his cross-examination, the respondent No. 1 stated that after 1996 he never approached the shop of the petitioner. He does not know that after the fire incident in the shop, whether the corporation directed the petitioner to close its shop. He does not know if after the incident the shop of the petitioner remained closed. However, he denied the suggestion that after the incident, he never approached the shop of the petitioner. He also denied that in conciliation proceedings there was an offer made to him by the Company to join his duty or that he insisted for backwages. 8. The petitioner examined Mrs. Navani. She pointed out that the shop was sold after the demise of her husband. She also pointed out that there was no business in existence. She deposed that the services of respondent No. 1 were never terminated. In her cross-examination she denied the suggestion that during the conciliation proceedings before the Conciliation Officer as per his direction the respondent No. 1 approached her to join his duty but that she did not allow him to do so. 9. Thereafter the Labour Court by its impugned A ward dated 30th April, 2004 decided the reference holding that the services of the respondent No. 1 were terminated illegally and directed that the petitioner should reinstate the respondent No. 1 with continuity of service and full backwages. 10. 9. Thereafter the Labour Court by its impugned A ward dated 30th April, 2004 decided the reference holding that the services of the respondent No. 1 were terminated illegally and directed that the petitioner should reinstate the respondent No. 1 with continuity of service and full backwages. 10. It is submitted on behalf of the petitioner that the learned Presiding Officer of the Fifth Labour Court failed to appreciate the afore-stated facts and the evidence recorded by the parties and has without taking cognizance of the admissions made by respondent No. 1 in his cross-examination, passed the impugned award in favour of respondent No. 1 and against the petitioner. It is submitted that the award passed by the Fifth Labour Court is erroneous, perverse and deserves to be set aside. 11. The learned Advocate appearing for the respondent No. 1 has submitted that there is no error in the award passed by the Fifth Labour Court, Mumbai and the Labour Court has correctly directed the petitioner to reinstate the respondent No. 1 with continuity of service and full backwages. It is submitted that the Award cannot be termed as perverse. It is submitted that the writ petition filed by the petitioner deserves to be dismissed. 12. I have gone through the contents of the Petition, evidence led by the parties and the impugned award. I have also gone through the decision of this Court, in Sonal Garments vs. Trimbak Karve, reported in 2002(6) BCR 529 and also the decision of this Court in Suja Agencies vs. Uday Singh B. Rawat and another, reported in 2003(4) Mh.L.J. 687 = 2003(4) Bom.C.R. 488 which follows the decision in Sonal Garments (supra). 13. Admittedly, the fire broke out in the said Frankie stall on 18th March, 1996 when the respondent No. 1 suffered minor injury and was treated at the Bhagwati Hospital, Borivali in the outdoor patient department (OPD) and was discharged in about two hours. The learned Presiding Officer, 5th Labour Court has, in paragraph No.8 of his impugned Award, recorded that -- "It appears from the record that injury sustained by the second party was not that much serious." According to the respondent No.1, when he approached the petitioner on 10th April, 1996 to resume duties, he was not allowed to do so by the petitioner. However, the respondent No. 1 has not even made an attempt to explain in any of his pleadings as to why he raised the demand notice only on 3rd December, 1996 and approached the office of the Deputy Commissioner of Labour only on 5th March, 1997 i.e. almost one year after his alleged termination. 14. The petitioner has, at the very first instance by its letter dated 29th July, 1997 given in writing to the Conciliation Officer that the services of the respondent No. 1 have never been terminated and they are willing to allow him to resume his duty with continuity of service but without backwages. This offer of the petitioner is recorded by the Conciliation Officer in his letter addressed to the Deputy Commissioner of Labour (Conciliation). In the said letter the Conciliation Officer has further clearly recorded that -- "the workman refused to go to work unless he was paid backwages." He has also recorded that "Since, both the parties were firm on their stands, the conciliation failed on 4th September, 1997." Though the said letter is undated, since it is mentioned in the letter that failure of conciliation was recorded on 4th September 1997, it is obvious that the said letter is written by the Conciliation Officer after 4th September, 1997. Despite the aforesaid stand taken by the parties which are recorded in writing by the Conciliation Officer, the respondent No. 1 who at no stage has contended that the petitioner has not written the letter dated 29th July, 1997 or that the contents of the letter of the Conciliation Officer are incorrect has, during his cross-examination, taken a totally incorrect stand by alleging that it is not true to say that in the conciliation proceeding there was an offer by the company for joining the duty and that he had not insisted for backwages. Being conscious of the fact that he has on his own not resumed duties as recorded by the Conciliation Officer in writing, he has also wrongly alleged that pursuant to the direction given by the Conciliation Officer he tried to resume his duties but was not allowed to do so by the petitioner. Apart from the fact that the said allegation is denied by Mrs. Navani when it was so suggested to her during her cross-examination, there is no mention of any such direction on record. Apart from the fact that the said allegation is denied by Mrs. Navani when it was so suggested to her during her cross-examination, there is no mention of any such direction on record. In fact the letter written by the Conciliation Officer is written by him after the conciliation proceedings failed on 4th September, 1997. As stated earlier, in the said letter, the Conciliation Officer has recorded the stand of the petitioner that the services of the respondent No. 1 have not been terminated and the respondent No. 1 can resume his duties with continuity of service. The said officer further records the refusal of respondent No. 1 to resume duties unless backwages are paid to him. There is also no complaint by the respondent No. 1 on record that pursuant to the directions of the Conciliation Officer he tried to resume his duties but he was not allowed to do so by the petitioner. This allegation on the part of the respondent No. 1 that he had approached the petitioner for resuming his duties more particularly in the year 1997 after the alleged directions of the Conciliation Officer is further belied by the admission of the respondent No. 1 in his cross-examination that -- "I never approached since after 1996 crossing the shop of first party.", meaning that he did not go to the shop of the petitioner after 1996. and "I do not know if after the fire incident in the shop Corporation directed the Co. to close their shop. I do not know since after that incident the hop of the first party remained closed." 15. The above facts establishes beyond any doubt that as submitted by the petitioner, the respondent No. 1 was not interested in resuming his duties after the fire incident and he was only interested in getting monetary benefits. Though the petitioner submitted before the Conciliation Officer that they have never terminated the services of the respondent No. 1 and that respondent No. 1 can at any time resume his duties with continuity in service, the respondent No. 1 refused to resume duty on the pretext that he shall resume his duty only if he is paid his backwages. Though the petitioner submitted before the Conciliation Officer that they have never terminated the services of the respondent No. 1 and that respondent No. 1 can at any time resume his duties with continuity in service, the respondent No. 1 refused to resume duty on the pretext that he shall resume his duty only if he is paid his backwages. This Court in its decision in the case of Sonal Garments (supra), has clearly held that -- "whenever the employer offers reinstatement to the workmen at any stage of dispute or proceedings and if workman does not accept the offer even without prejudice to his right and contentions, he will not be entitled to continue his claim for reinstatement in the proceedings and also is not entitled to claim any backwages from the date of such offer conditionally or unconditionally". In the instant case the Labour Court has failed to appreciate the aforesaid facts and the law applicable to the present case. The Labour Court has not only not appreciated that there is no evidence to show that the services of the respondent No. 1 have been orally terminated by the petitioner but has ignored the evidence on record (i.e. the letter of the Conciliation Officer) to the effect that the respondent No. 1 himself refused to resume duties unless he receives his backwages. The Labour Court has not appreciated the fact that though the contents of the letter of the Conciliation Officer were not denied by the respondent No. 1 he has in his cross-examination taken a totally incorrect stand by alleging that it is not true to say that in the conciliation proceedings there was an offer by the Company for joining the duty and that he has not insisted for backwages. The learned Judge has also not appreciated that the respondent No. 1 after initially admitting in his cross-examination that after 1996 he has not approached the shop of the petitioner and he has no knowledge whether the shop remained closed after the incident has later denied the suggestion that he had not approached the petitioner to resume his duties after about a month of the incident. The respondent No. 1 as discussed hereinabove only as an afterthought has tried to make out a false case that pursuant to the alleged directions of the Conciliation Officer he tried to resume duty but was not allowed by the petitioner. This further establishes the fact that the respondent No. 1 is not at all honest with the Court. In view of the above, the finding of the Labour Court that the services of the respondent No. 1 were illegally terminated by the petitioner is based on an incorrect ground that except the evidence of the petitioner nothing is brought on record to show that the respondent No. 1 had abandoned his services. 16. Under the circumstances, I am of the view that the learned Presiding Officer of the Labour Court has without appreciating the evidence and the law come to an erroneous and perverse finding that the petitioner has wrongly am illegally terminated the services of the respondent No. 1 with effect from 10th April, 1996. The Labour Court has therefore wrongly directed the petitioner to reinstate the respondent No. 1 with full backwages. The said Award passed by the Labour Court is therefore quashed and set aside. 17. Under the circumstances, the Rule issued is made absolute and the above Writ Petition is allowed in terms of the above order. However, the petitioner shall not withdraw the amount of Rs. 50.000/- deposited with the Prothonotary and Senior Master of this Court for a period of four weeks fro today. Petition allowed.