Research › Search › Judgment

Bombay High Court · body

2017 DIGILAW 1626 (BOM)

Digambar v. State of Maharashtra

2017-08-09

S.C.GUPTE

body2017
JUDGMENT : 1. Heard learned counsel for the parties. 2. The present petition challenges an order passed by the Labour Court, Akola in an unfair labour practice complaint and the order passed by the Industrial Court, Akola in revision confirming that order. In view of the notice for final disposal issued earlier, Rule is issued and made returnable forthwith. 3. The petitioner was appointed on 2nd April, 1984 as labourer (mazoor)/male coolie with Public Works Department of the State of Maharashtra. His services were terminated along with 110 other employees, who were also similarly appointed as labourer (mazoor)/male coolie. By the date of this termination order, many of these appointees had completed more than 2 years of continuous service. In the petitioner’s case, he had completed more than 3 years of continuous service. The petitioner, in the premises, filed a complaint of unfair labour practices under Section 28 read with Item – I of Schedule – IV of the MRTU and PULP Act before the Labour Court at Akola being U. L. P. Complaint No.97/88. About 56 other employees, who were part of the group of 110 employees terminated on 30th April, 1987 and who were similarly placed as the petitioner herein, likewise filed a collective complaint through the Secretary of the Trade Union, being complaint ULP No.120/1987. While the petitioner’s complaint was pending before the Labour Court, on 30th September, 1992 the Labour Court allowed the collective complaint of 56 employees (ULP Complaint No.120/1987) and granted relief of reinstatement to the complainant employees. A revision preferred by the respondents herein challenging that order was rejected by the Industrial Court at Akola. Being aggrieved, the respondents filed a Writ Petition before this Court. During the pendency of that Writ Petition, the respondents settled the matter with the complainants whose cases formed part of the subject matter of the Writ Petition. By way of such settlement, complainant employees were reinstated in service but without the benefit of back wages. In fact, as a result of this settlement, nearly 24 employees, who were junior to the petitioner, came to be reinstated. This reinstatement was preceded by a Government Resolution of 8th May, 2007 allowing reinstatement of the employees without back wages. By way of such settlement, complainant employees were reinstated in service but without the benefit of back wages. In fact, as a result of this settlement, nearly 24 employees, who were junior to the petitioner, came to be reinstated. This reinstatement was preceded by a Government Resolution of 8th May, 2007 allowing reinstatement of the employees without back wages. It appears from the record of the case that the respondents were willing to consider the case of the petitioner for reinstatement on the same lines as 56 others referred to above. As in the case of those 56 employees, a suitable undertaking was called for from the petitioner that he was ready and willing to forgo back wages in case of his reinstatement. Despite this undertaking, it appears, nothing was done in the matter of the petitioner. All this while, the petitioner’s complaint was pending before the Labour Court at Akola. Finally, when the complaint was heard, the petitioner pointed out the intervening facts, some of which have been recounted above and prayed for reinstatement on the same lines as in the case of the others. The Labour Court, by its impugned order, rejected the petitioner’s complaint. The matter was carried in revision by the petitioner before the Industrial Court at Akola. By its impugned order dated 7th October, 2015, the Industrial Court dismissed the revision. Hence, the present petition. 4. There is no denying that the petitioner’s case is similar to that of 56 complainants, who had filed the collective complaint (Complaint ULP No.120/1987) in the matter of their termination by the same order as that of the petitioner. Their complaint was allowed by the Labour Court and the respondents’ revision there from was dismissed. The respondents finally accepted the verdict of reinstatement, though of course on an assurance by the complaining employees that they would forgo their claim of back wages granted by both the Labour Court and the Industrial Court. All employees were thereupon reinstated. The petitioner similarly applied for reinstatement against his giving up of the claim of back wages. The respondents even appear to have indicated their willingness to reinstate the petitioner on the same lines and to that end, even called for a similar undertaking from the petitioner as submitted by 56 employees who were reinstated. There is no apparent reason why the respondents should not have reinstated the petitioner on this basis. 5. The respondents even appear to have indicated their willingness to reinstate the petitioner on the same lines and to that end, even called for a similar undertaking from the petitioner as submitted by 56 employees who were reinstated. There is no apparent reason why the respondents should not have reinstated the petitioner on this basis. 5. The Labour Court appears to have dismissed the petitioner's complaint on the ground that the petitioner failed to prove violation of Sections 25-F, 25-G, 25-N and 25-H of the Industrial Disputes Act, particularly in the face of the fact that the respondents followed the provisions of Section 25-F of the Industrial Disputes Act. As in the case of the petitioner, even 56 employees, who were reinstated, had likewise accepted the compensation offered by the respondents under Section 25-F of the Industrial Disputes Act. Anyway, these 56 employees gave up their back wages against the acceptance of this compensation and the respondents very well acted on their offer of accepting reinstatement without back wages. Once again, in this behalf, the petitioner’s case is no different from the case of 56 employees, who were admittedly reinstated by the respondents. 6. In a similar case (Janrao Jagaannath Bhatkar ..vs.. The State of Maharashtra and Others, decided on 5th March, 2015), this Court accepted the case of a similarly placed the petitioner, who was a labourer/coolie appointed with the respondents and whose services were terminated by the same order, i.e. order dated 30st April, 1987, by which the petitioner along with 110 others, as noted above, was terminated. As in the case of the present petitioner, argument before this Court in that case was that there was no violation of Sections 25-F to 25-H of the Industrial Disputes Act. This Court negatived the contention of the respondents and allowed the case of the petitioner before it. The Court, in terms, held that there did not appear to be any reason to deny relief to the petitioner on the basis of the Government Resolution of 8th May, 2007 allowing reinstatement of 56 complainants without back wages, as indicated above. 7. The petitioner, in the premises, deserves relief in his complaint of unfair labour practice. Unlike in the case of 56 others and the petitioner in the case of Janrao Jagaannath Bhatkar, the petitioner herein, however, has already reached the age of superannuation in the meanwhile. 7. The petitioner, in the premises, deserves relief in his complaint of unfair labour practice. Unlike in the case of 56 others and the petitioner in the case of Janrao Jagaannath Bhatkar, the petitioner herein, however, has already reached the age of superannuation in the meanwhile. Learned counsel for the petitioner, in the premises, prays for wages between 2004, when 56 others were reinstated, and 2012, i.e. date of his superannuation. Even this relief cannot be fully accepted since it would go against the principle of no work no pay. All this while, the petitioner was not doing any work for the respondent and there is no inquiry into any case of an alternative employment, if any, taken up by the petitioner in the interregnum. Faced with this circumstance, this Court will have to apply the principles of equity, justice and good conscience, and work out, an adhoc compensation. To that end, on the last date, this Court had called for a working from the petitioner so as to indicate the loss suffered by him, as a result of the respondents' failure to extend the same benefits to him as 56 others. The petitioner has submitted an affidavit working out his damages on account of loss of salary and pension till date. The loss, according to this working, is to the tune of about Rs. 12,00,000/-. If one adds the amount of gratuity received by those amongst 56 reinstated employees, who have superannuated just as the petitioner, the amount of total loss is said to work out to about Rs. 17,00,000/-. 8. There is no exact scientific basis for working out the loss in a case like this. The Court has to simply apply a thumb rule, on the basis of various attending circumstances. These circumstances, in the presence case, include the fact that the petitioner is exactly similarly placed as 56 others, who were complainants in Complaint bearing ULP No.120/1987; these complainants were reinstated as of 2004 against their undertaking to forgo their back wages; the petitioner similarly approached the respondents and even filed an undertaking to forgo back wages as back as on 26th May, 2006; and this Court has found no reason why the respondents should not have accepted the case of the petitioner as the others. In other words, having been similarly placed as 56 others and having offered himself for employment upon reinstatement on the same condition as the others, the petitioner was denied an opportunity to work without any fault of his. The petitioner has evidently incurred a loss as a result, though exact estimation of that loss is not possible as indicated above. Considering these circumstances and the working given by the petitioner in his affidavit, which is noted above, and applying a thumb rule towards giving justice to the petitioner on the principle of justice, equity and good conscience, this Court is of the view that a sum of Rs. 5,00,000/- will be an adequate compensation to the petitioner in the peculiar facts and circumstances of the case. 9. Rule is accordingly made absolute by quashing and setting aside the impugned orders of the Labour Court and the Industrial Court and directing the respondents to pay compensation of Rs.5,00,000/- to the petitioner. Such compensation must be paid within a period of six weeks from today. 10. In the event, the respondents fail to pay the compensation ordered above, the respondents shall pay interest on this amount calculated at the rate of 9% per annum from the expiry of six weeks from today and till such payment or realization. 11. The petition is disposed of in the above terms.