The court has the discretion to mold relief under Section 30(1) based on the circumstances, including the closure of the company, and may award compensation in lieu of full reinstatement with back-wages.

JUDGMENT :

N.J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and with the consent of the parties, heard finally.

2. By this Petition under Article 226 of the Constitution of India, the Petitioner takes exception to a judgment and order dated 11th September 2019 passed by learned Member, Industrial Court at Mumbai in Complaint (ULP) No. 421 of 2015 whereby while making a declaration that the Respondent-employer indulged in unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (“The Act, 1971”), the learned Member directed payment of back-wages from the date of illegal termination till the alleged closure of the Company on 6th December 2012 and closure compensation, when the Petitioner had alleged unfair labour practice in not implementing the award dated 27th March 2015 passed in Reference (IDA) No. 443 of 2010.

3. Construction & Engineering Equipments, the Respondent No. 1, was engaged in the business of manufacturing of concrete machines. Gamzen Plast Private Limited, the Respondent No. 2 is a sister concern of Respondent No. 1. Both the concerns are owned and managed by Respondent No. 3. Petitioner was employed as a Turner with Respondent No. 1 since the year 2003. On 7th November 2008, the Petitioner was restrained from resuming his duty. Respondent thus abruptly terminated the services of the Petitioner verbally.

4. Upon an industrial dispute being raised by the Petitioner, the Deputy Commissioner of Labour made a Reference under Section 10(1) and 12(5) of the Industrial Disputes Act, 1947 (“I.D. Act 1947”) to the Labour Court, Mumbai being Reference (IDA) No. 443 of 2010. Petitioner and Respondent- employer led evidence in the said reference. After appraisal of the evidence and material on record, the learned Judge, Labour Court was persuaded to return a finding that the Petitioner had proved that his services were illegally terminated by the employer. Labour Court thus partly allowed the Reference declaring that the Petitioner was entitled to be reinstated in service with 50% back-wages and continuity of service.

5. As the said award was not implemented by the employer, the Petitioner lodged a complaint being Complaint (ULP) No. 421 of 2015 before the Industrial Court alleging that the employer indulged in unfair labour practice in not implementing the aforesaid award though it had attained finality. Petitioner claimed to have addressed letters to the Respondents to ensure compliance of the award and also personally approached the Respondents to allow him to resume duty on 28th July 2015. However, the Petitioner was not allowed to enter into the Company premises. Thus, the Petitioner was constrained to lodge complaint under Section 28 of the Act, 1971 for unfair labour practice under Item 9 of Schedule IV of the Act, 1971.

6. The Respondents resisted the complaint by filing written statement. It was denied that the Respondents indulged in any unfair labour practice. A categorical stand was taken by the Respondents that the Respondent No. 1-Company had closed down its operations at Mumbai in April 2010 itself. Consequent to the closure of the manufacturing activity, all the workmen of the Respondent No. 1 had parted with by accepting compensation. The order of reinstatement, in the backdrop of the closure of Respondent No. 1, could not be implemented. Therefore, the complaint was liable to be dismissed as there was no unfair labour practice, contended the Respondents.

7. The learned Member Industrial Court recorded the evidence of the Petitioner-Complainant. No evidence in rebuttal was led by the Respondents. After evaluation of the evidence and material on record, the learned Member was persuaded to allow the complaint declaring that the Respondents indulged in unfair labour practice under Item 9 of Schedule IV of the Act, 1971, commanded Respondents to cease and desist therefrom and directed the Respondents to pay 50% back-wag