Back
2022 Supreme(Bom) 253
IN THE HIGH COURT OF BOMBAY
Ravindra V. Ghuge, J.
MSL Group India & Anr. – Appellants
Versus
Eknath Narayan Shelar – Respondent
Writ Petition No.791 of 2022
Decided On : 10-02-2022
Advocate Appeared:
For the Appellant : Mr.Anand Pai i/b Udwadia & Co.
The central legal point established in the judgment is the protection of retrenched workers' rights to challenge retrenchment even after receiving compensation, and the burden of proof in establishing gainful employment.
Headnote:
Certiorari - Labour Dispute - Industrial Disputes Act, 1947, Section 2(s), Section 25B, Section 25F - The court discussed the legality of termination, retrenchment compensation, and the rights of retrenched workers. It highlighted the conditions precedent to retrenchment and the right of retrenched employees to challenge the retrenchment even after receiving compensation. The court also emphasized the protection of permanent employees against arbitrary termination and the burden of proof in establishing gainful employment.
Fact of the Case:
The respondent, a workman, was terminated from service by the petitioner-Management citing re-structuring and resizing of the organization. The Management contended that the termination was legal and that the respondent had accepted ex-gratia amounts, precluding him from challenging the termination.
Finding of the Court:
The court found that the termination was covered by unfair labour practice and that the retrenched workers had the right to claim reinstatement. It also held that the permanent employee's services were protected against arbitrary termination and that the burden of proof lay on the retrenched employee to establish lack of gainful employment.
Issues: The issues revolved around the legality of the termination, the rights of retrenched workers, and the burden of proof in establishing gainful employment.
Ratio Decidendi: The court emphasized the conditions precedent to retrenchment, the right of retrenched employees to challenge the retrenchment even after receiving compensation, and the protection of permanent employees against arbitrary termination.
Final Decision: The petition was dismissed as devoid of merits.
JUDGMENT :
P.C. :-
1. By this petition, the petitioner-Management has put forth prayer clause 22(a) and 22(b) as under :-
“a) That this Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the records and proceedings in Complaint (ULP) No.30 of 2016 and Revision Applications (ULP) Nos.81 of 2018 and 134 of 2017 respectively, and after examining the legality, validity and propriety of the impugned Orders i.e. (i) the Order dated 6th November 2017 passed by the 6th Labour Court, Mumbai in Complaint (ULP) No.30 OF 2016 and (ii) Common Order dated 6th November, 2019 passed in Revision Application (ULP) Nos.81 of 2018 and 134 of 2017 was passed by the Industrial Court, Mumbai being Exhibits-”B” and “C” hereto, this Hon’ble Court be pleased to quash and set aside the impugned Orders;
(b) That Pending the hearing and final disposal of this Petition, this Hon’ble Court be pleased to stay the operation, implementation and enforcement of the impugned orders i.e.
(i) the Order dated 6th November, 2017 passed by the 6th Labour Court, Mumbai in Complaint (ULP) No.30 of 2016 and
(ii) Common Order dated 6th November, 2019 passed in Revision Applications (ULP) Nos.81 of 2018 and 134 of 2017 passed by the Industrial Court, Mumbai and/or direct the Respondent not to take any coercive action in furtherance of the impugned Orders”.
2. I have considered the strenuous submission of the learned Advocate for the Management and with his assistance, I have gone through the grounds (A to Z) and (AA to HH).
3. The admitted factors in this case are as under :-
(a) The respondent was appointed by order of appointment dtd. 25/05/2004.
(b) By an order dated 13/12/2015, he has been terminated from service on the ground that the organization is undergoing a major re-structuring and resizing, based on the new business requirements.
(c) The Management has neither averred nor taken a stand that the respondent is not a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 (for short, “the ID Act”).
(d) All the 15 employees who were office assistants, have been removed from the service of the petitioner.
(e) The respondent was paid one month salary in lieu of notice period.
(f) A seniority list of the workers/office assistants was not displayed by the employer.
4. It is contended that the employer has a right to terminate an employee as per the appointment order. Mere termination does not render the order illegal. The termination order cannot amount to an unfair labour practice. After the Management has paid one month’s salary and five months’ wages as ex-gratia amount alongwith leave encashment, the termination cannot be interfered with. Having accepted the amounts, the employee is precluded from challenging his termination.
5. I have gone through the judgments of the Labour Court and the Industrial Court, dtd. 06/11/2017 and 06/11/2019, respectively. After the respondent approached the Labour Court by preferring complaint (ULP) No.30 of 2016, the Management entered a written statement dated August, 2016. There is not a whisper in the written statement that the complainant/worker is not a workman. It is admitted that all the 15 office assistants have been removed from employment. It is further admitted that the petitioner/Management has not permanently closed down it’s business.
6. It is a settled position of law that acceptance of retrenchment compensation, does not amount to any worker comprising his rights qua his retrenchment. Payment of retrenchment compensation to an employee, who has completed 240 days in 12 consecutive calendar months preceding the date of reference, is provided in Section 25F. The payment of such compensation is a legal obligation on the employer and receiving such compensation amount does not extinguish the right of the worker to question his retrenchment.
7. Section 25B and 25F of the ID Act read as under :-
25-B. Definition of cont
