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2022 DIGILAW 384 (BOM)

Adinath Sahakari Sakhar v. Shriram Kisan Waghmare

2022-02-09

RAVINDRA V.GHUGE

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JUDGMENT : P.C:- 1. In all these petitions, the petitioner Management has put forth identical prayer clause 10a which reads as under :- “a. This Hon’ble Court may kindly be pleased to issue Writ of Certiorari and/or any other writ and/or order and thereby be pleaded to quash and set aside the Judgment and Order dated 10/09/18 passed by the Learned Industrial Court, Solapur and also Order dated 26/04/18 passed by the Learned Labour Court, Solapur and thereby may dismiss the Complaint filed by the Respondent in its entirety”. 2. I have considered the strenuous submissions of the learned Advocate representing the Management and the learned Advocate representing all the respondents who are original complainants before the Labour Court. With their assistance, I have gone through the material available in the petition paper book. 3. The common allegation against these 14 workers was that they had resorted to a strike with effect from 14/6/2009 without issuing a notice of strike, as required under the MRTU AND PULP Act, 1971 and the rules/regulations framed thereunder. Per contra, the workers had contended that they have not resorted to a strike and they were not pressing any demands against the Management. 4. The Management served charge-sheets on all these workers and after conducting domestic enquiries under the Standing Orders framed under the BIR Act, issued dismissal orders to all of them. The Labour Court framed the first two issues which are mandatorily required to be decided in cases wherein the domestic enquiry has been conducted. Upon considering the Record and Proceedings of the domestic enquiries, it concluded by it’s Part-1 order dated 18/11/2013 that the enquiries were conducted in accordance with the Standing Orders. However, upon perusing the findings of the Enquiry Officer, it concluded that the findings were perverse. As such, the enquiry stood vitiated and the Labour Court granted the Management the liberty to conduct de novo enquiry by leading evidence to prove the charges. Vide the impugned judgment dated 26/4/2018, the Labour Court concluded that the Management has failed to prove the charges against the workers. 5 Simultaneously, the Management had approached the Industrial Court, Solapur in Complaint (ULP) No. 18 of 2009 invoking items 1, 5 and 6 of Schedule III of the 1971 Act, which read as under :- “1. To advice or actively support or instigate any strike deemed to be illegal under this Act. 5. 5 Simultaneously, the Management had approached the Industrial Court, Solapur in Complaint (ULP) No. 18 of 2009 invoking items 1, 5 and 6 of Schedule III of the 1971 Act, which read as under :- “1. To advice or actively support or instigate any strike deemed to be illegal under this Act. 5. To stage, encourage or instigate such forms of coercive actions as wilful “go-slow” squatting on the work premises after working hours “gherao of any of the members of the managerial or other staff” 6. To stage demonstrations at the residences of the employers of the managerial staff members”. 6. The Industrial Court, after a complete trial, concluded that the Management has failed to prove that these workers had indulged in an illegal strike and/or had instigated and coerced non-striking workers from performing their duties. The complaint was dismissed by judgment dated 30/10/2014. This development had occurred four years prior to the Labour Court deciding the complaints filed by the workers. Naturally, this weighed in favour of the workers as an important piece of evidence on account of two legal factors. Firstly, that the judgment of the Industrial Court dealing with the same issue would stand on a higher pedestal than the findings of the Enquiry Officer. Secondly, the findings of the Enquiry Officer were already held to be perverse by the Labour Court. Consequentially, the Management led the same evidence before the Labour Court which it had led before the Industrial Court. 7. I, therefore, do not find that the Labour Court committed any error in independently concluding on the basis of the evidence before it that the Management could not prove the two allegations against these workers. So also, the verdict of the Industrial Court dismissing the complaint of the petitioner Management vide which it had sought a declaration under items 1, 5 and 6 of Schedule III, was a subject matter of challenge in Writ Petition No.6860 of 2016 filed by the Management and, by order dated 10/7/2017, this Court dismissed the petition concluding that the findings of the Industrial Court holding that these workers had not resorted to a strike, was sustainable. It is informed that the SLP bearing No.13867 of 2018 was dismissed in default by the Hon’ble Supreme Court on 11/7/2019. It is informed that the SLP bearing No.13867 of 2018 was dismissed in default by the Hon’ble Supreme Court on 11/7/2019. In the above backdrop, I do not find that the conclusions of the Industrial Court in sustaining the judgments of the Labour Court could be interfered with. 8. Notwithstanding the above, the learned Advocate for the Management has strenuously raised an issue as regards the back wages granted by the Labour Court to the extent of 10% in some cases, 20% in some cases, 30% in some other cases and 50% in some of the cases. The original complainants have not preferred Writ Petitions challenging the quantum of the back wages granted to them. 9. Payment of back wages is a peculiar aspect in matters of strike. The position of the alleged striking workers cannot be placed at par with a terminated or dismissed worker, when the latter has to plead and prove that he was not in gainful employment. When, in a peculiar case, as the ones in hands, when it is concluded by the Industrial Court in an independent proceedings which has attained finality and by the Labour Court in dealing with the domestic enquiries, that the charge of striking work or instigating non striking workers to strike work, has failed, the legal presumption would be that the workers had offered themselves for work because they were not on a strike. There is no question of such workers, facing an allegation of strike and denying having participated in a strike, in the absence of any termination of dismissal, from being obliged to plead that they were not gainfully employed. However, if on an allegation of strike as like in these cases, the workers are dismissed from service and the Labour Court grants them reinstatement in service with continuity and some percentage of back wages, the issue of whether such workers were gainfully employed or not, would crop up. 10. The workers have not sought enhancement in back wages by approaching the Industrial Court or this Court. The Labour Court has granted meager percentage of back wages for the period of their unemployment. I do not find that the submissions of the Management could be well placed. Theses workers were consistently canvassing before the Enquiry Officer, before the Labour Court and before the Industrial Court, that they were not on a strike. 11. The Labour Court has granted meager percentage of back wages for the period of their unemployment. I do not find that the submissions of the Management could be well placed. Theses workers were consistently canvassing before the Enquiry Officer, before the Labour Court and before the Industrial Court, that they were not on a strike. 11. In this backdrop, after these workers were dismissed, they approached the Labour Court and to the extent of the back wages, the Labour Court concluded that some of them were working as ‘farm labourers’ and earning meager allowances so as to feed the family. The Labour Court applied the principle of ‘no work - no pay’ for the period of their unemployment post dismissal, which may not be a sound conclusion. However, as these workers have not initiated proceedings praying for 100% back wages, the issue as to whether they could have been entitled for full back wages or little lesser back wages, is left open. Nevertheless, as the Labour Court has granted back wages to many complainants in between 10% to 30% and a few complainants to the extent of 50%, I do not find that the challenge on this aspect by the Management, could be sustained. 12. However, before parting with these cases, I need to deal with one factor so as to ensure that Industrial Courts do not commit the same mistake which was committed by the learned Member, Industrial Court, Solapur in it’s judgment dated 10/9/2018, though this mistake would not affect the judgment of the Labour Court. The Industrial Court held in paragraph no.10 as under :- “The only issue before me is, “Whether under section 44 of the MRTU and PULP Act, 1971, I have to interfere and set aside the judgments of the Ld. Labour Court in this Revision Application”:- My answer is in the negative”. 13. It is well settled that the revisional jurisdiction of the Industrial Court u/s.44 of the 1971 State Act is akin to the Revisional Jurisdiction of this Court under Article 227 of the Constitution of India. Revisional powers are vested in the Industrial Court u/s.44. In each and every case, the Industrial Court need not go into the R & P of the Labour Court, threadbare. Revisional powers are vested in the Industrial Court u/s.44. In each and every case, the Industrial Court need not go into the R & P of the Labour Court, threadbare. However, it will have to consider the evidence recorded and the documents available to find out whether the impugned judgment of the Labour Court is perverse and erroneous. For this, though an issue need not be framed in revisional matters, as like the framing of points for determination under the Appellate Powers of an Appeal Court, if the Industrial Court frames an issue, the same has to be as ‘whether the impugned judgment of the Labour Court can be said to be perverse and erroneous.” 14. It is also well settled that it is not an anathema to go through the oral and documentary evidence recorded before the Labour Court, in revisional jurisdiction of the Industrial Court. It cannot be said that the R & P of the Labour Court is not to be touched or opened by the Revisional Court. While considering the grounds raised in the revision petition, the Industrial Court will have to go through the evidence recorded so as to come to a conclusion as to whether the grounds for challenge are sustainable and if so, whether the findings/conclusions of the Labour Court can be termed as being perverse or erroneous.(Refer to (i)Vikas Textiles Vs. Sarva Shramik 1990(1) CLR 257 , (ii) Hotel Oberoi Towers Vs Gopal Naidu, 2002(94) FLT 779, (iii)Cricket Club of India & Ors Vs. D.R. Shyam & Anr, 2007 III CLR 50 and (iv) Subhash Ramchandra Dumbre Vs. Maharashtra State Co- operative Agricultural and Rural Development, 2009 III CLR 868). 15. In view of the above, these petitions being devoid of merit, stand dismissed.