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2021 Supreme(Online)(Bom) 10050
BOMBAY HIGH COURT
N.B. SURYAWANSHI, J
M/s. Pal Metals, Plot No. 1440, Vaishali Nagar, Binakilayout, Nagpur - 17 – Appellant
Versus
Shri. Krishna S/o Gulabrao Shende – Respondent
Writ Petition No. 424 of 2011
For the Appellants/Petitioners: Shri S.S. Dewani
For the Respondents: Shri S.R. Bhongade
Employer must prove abandonment of service, failing which unlawful termination leads to reinstatement and justified partial back wages.
Headnote:(A) Constitution of India - Article 227 - Industrial Disputes Act 1947 - Sections 25-F and 25-G - Petition challenging the order of the Industrial Court awarding 40% back wages after reinstatement - While employer claimed termination was non-existent, employee proved unlawful termination and absence of abandonment of service. (Paras 6, 12, 23)
(B) Employment Law - Illegality of Termination - Failure of employer to issue notice to employee before termination was in violation of statutory provisions, which necessitated reinstatement but limited back wages granted appropriately based on subsequent evidence of employment. (Paras 18, 23)
Facts of the case:
Employee filed complaint against oral termination alleged by employer. Labour Court found unfair practice and awarded reinstatement and full back wages, latter revised to 40% by Industrial Court.
Findings of Court:
The employer failed to prove abandonment of service, upholding the right to reinstatement but appropriately limiting the back wages.
Issues: Whether the termination was lawful and what back wages were justified based on subsequent employment of the employee.
Ratio Decidendi: The court states the burden lies with the employer to prove abandonment, and without notice or enquiry, the termination was deemed unlawful, justifying the limited back wages awarded.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. petition challenges previous court decisions regarding back wages. (Para 1 , 2) |
| 2. petition seeks relief under article 227. (Para 3) |
| 3. court affirmed the employee's claim of unjust termination and reinstatement. (Para 4 , 5 , 6 , 8) |
| 4. employer failed to prove abandonment of service. (Para 7) |
| 5. arguments presented about the employee's claim and employer's obligations. (Para 9 , 15) |
| 6. analyzes the lack of notice and abandonment of service claims. (Para 10 , 11 , 12) |
| 7. outcomes based on precedent and reasons for affirming partial back wages. (Para 18 , 19 , 21 , 22) |
JUDGMENT
1. This petition fled under Article 227 of the Constitution of India , seeks following relief :
a) Issue appropriate writ, order or direction and quash and set aside the judgment and order dated 24.08.2010, passed by the Learned Industrial Court, Maharashtra (Nagpur Bench), Nagpur in Revision (ULP) No. 74 of 2008, i.e. ANNEXURE – F, so far as back wages are concerned;
2. Rule was granted in this petition on 25/01/2011.
3. The litigating parties are, for the sake of convenience, referred to as ‘employer’ and ‘employee’.
4. The employee fled Complaint ULP No. 216/1999 under Sections 28 and 30 read with Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Laws Practices Act 1971 seeking a relief of setting aside oral termination dated 08/02/1999 being in violation of the provisions of Sections 25-F and 25-G of the Industrial Disputes Act and Rule 81 of the Rules framed therein with a further prayer for reinstatement and continuity of service along with the payment of back wages.
5. The employer resisted the claim of the employee by fling written statement, wherein it is admitted that the employee joined the services on 01/08/1995 as a helper and worked with the employer till 05/02/1999. A specifc stand is taken that after receiving the salary for the month of January 1999, the employee left the establishment premises of the employer without any intimation and since 08/02/1999, the employee has not joined the establishment. Further a specifc stand is taken that at no point of time has the employer terminated the services of employee. The employer specifcally contended that since 06/02/1999 the complainant remained absent though his services were never terminated by the employer. The complaint is fled only with a view to get salary without working and so as to avoid payment of Rs. 5200/- which the employee obtained by way of advance.
6. After recording the evidence, the Labour Court allowed the complaint by holding that the employee's services were orally terminated by the employer and the employer has engaged in unfair labour practice. The employee has completed 240 days continuous service before termination of his services. No retrenchment compensation was paid to the employee before his termination. The Labour Court specifcally came to the conclusion that the employee has not abandoned the services of the employer. The Labour Court, on the basis of assessment of evidence, further concluded that the termination of the employee was illegal and the employee was entitled for full back wages.
7. The employer challenged the judgment of the Labour Court in ULPA (Revision) No. 74/2008. The Industrial Court maintained the judgment of the Labour Court in respect of reinstatement with continuity of services. However instead of full back wages granted by the Labour Court, granted 40% of back wages to the employee. This direction is challenged in the present petition.
8. Heard the learned Advocate for the petitioner- employer and the learned Advocate for the respondent-
employee.
9. The learned Advocate for the employer submitted that, in view of admission of the employee in the cross- examination, it is clear that he was in gainful employment at Hotel Amir and he has worked at the laundry. This aspect was totally overlooked by Labour Court while awarding continuity of service and 100% back wages. He further submitted t
