1

wp 424-2011.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

WRIT PETITION NO. 424 OF 2011

M/s. Pal Metals,

Plot No. 1440, Vaishali Nagar,

Binakilayout, Nagpur - 17,

Through its Partner

Shri. Rakesh Gandhi,

Aged about : 56 years,

Occupation : Business

…. PETITIONER

// VERSUS //

Shri. Krishna S/o Gulabrao Shende,

R/o. C/o. Shri. Deorao Khatik,

Mahure, Tandapeth, New Basti,

Chandrabhaga Nagar, Nagpur.

….

RESPONDENT

--------------------------------------------------------------------------------------

Shri S.S. Dewani, Advocate for petitioner

Shri S.R. Bhongade, Advocate for respondent

--------------------------------------------------------------------------------------

CORAM : N.B. SURYAWANSHI, J.

DATE : 17/08/2021

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

2

wp 424-2011.odt

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.

3

wp 424-2011.odt

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

4

wp 424-2011.odt

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 challenge