Decided on April 14,1972

M.V.HIRWAY Respondents


K.K.Desai, J. - (1.) This is an appeal on behalf of the original petitioner from the judgment and order made by Kantawala, J., on March 18, 1971, dismissing the Miscellaneous Petition No. 904 of 1969 with costs.
(2.) Respondent No. 1 joined service of the appellant who carried on business as proprietor of Asian Photos at Nanabhai Lane, Bombay, sometime in 1958. He was discharged from service on October 3, 1967. His case was that his discharge from service was wrongful. He accordingly recorded the relevant facts in his correspondence addressed, inter alia, to the officer in charge of the shops and establishments office and Labour Commissioner's office. He claimed reinstatement with back wages. The conciliation proceedings failed and the conciliation officer made normal failure report. By reference dated April 30, 1968, the demand of respondent No. 1 for reinstatement with full back wages was referred to the Labour Court. The parties appeared personally before the Labour Court and by the award dated September 19, 1969, the Labour Court, upon appreciation of the evidence on record, held that respondent No. 1 had not abandoned and relinquished the service and the case made by the appellant to that effect was incorrect. The finding made was that respondent No. 1 was removed from service without assigning any reason and without holding any inquiry. The correspondence disclosed that the relation between respondent No. 1 and the appellant were not cordial. That was a result of a dispute raised by respondent No. 1 for payment of bonus and about leave that should be granted. The appellant was guilty of unfair labour practice. In connection with the demand for back wages, the finding was that respondent No. 1 had remained unemployed from the date of his discharge from service and that fact had not been rebutted by cross-examination or other evidence. He, therefore, granted full back wages with salary for the month of September, 1967.
(3.) In the Miscellaneous Petition No. 904 of 1969 the above award was challenged under Art. 226 of the Constitution. The contentions advanced by Mr. Shetye for the appellant before the learned single Judge were as follows : The Labour Court had acted in excess of jurisdiction in directing reinstatement of respondent No. 1 in service with full back wages. The submission was that in view of the strained relationship between the parties, the Labour Court should have in its discretion refused to grant reinstatement in service and in any event should not have directed payment of full back wages. This submission was developed by arguing that respondent No. 1 had not led evidence to show that he had made efforts to secure employment unsuccessfully during the period between the date of the award and the date of his discharge from service. These contentions were negatived and the findings made by the learned single Judge were as follows : Respondent No. 1 had been removed from service without any reasons whatsoever and this was a case of victimisation, for the demand made for bonus and the conduct of the appellant had been rightly described by the Labour Court as involving unfair labour practice. As regard the question of reinstatement the learned Judge read the observations of the Supreme Court in the case of Hindustan Steels Ltd. v. A. K. Roy, [1970 - I L.L.J. 228]; A.I.R. 1970 S.C. 1401. In applying the principles contained in the above authority, the learned Judge noticed that it had been observed by the Labour Court that the relationship between the parties has become strained. The learned Judge, however, found that the reinstatement of respondent No. 1 was correctly ordered. In that connection, the learned Judge held that in the written statement of defence the appellant had not pleaded that the continuance of respondent No. 1 in service was hazardous or prejudicial to the interest of the appellant and/or was injurious to his business. In fact, before the Conciliation Officer the appellant had expressed willingness to reinstate respondent No. 1 in service and the only dispute which had continued to subsist at that stage between the parties related to the payment of back wages. The learned Judge accordingly pointed out that the conduct of the appellant before the Conciliation Officer proved that in the opinion of the appellant himself there was no harm or harassment in continuing respondent No. 1 in service. The observation that the relations between the parties were strained was only in connection with the attitude of the appellant in respect of the claim made by respondent No. 1 for bonus and in connection with leave. This was entirely insufficient to reject the claim for reinstatement. As regards the question of back wages granted by the Labour Court, the learned Judge held that respondent No. 1 had "as stated by him continued to try for his employment and in spite of his efforts the petitioner refused to do so". The learned Judge, therefore, held that the Labour Court had justifiably granted back wages and rejected the petition.;

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