P.V.Kakade, J. - (1.) By this writ petition; the petitioner Company has challenged the order of the Industrial Court, Mumbai, dated 29.8.1997 by which respondent No.1's complaint was partly allowed and it was directed that the petitioner should encash the privilege leave as per the custom, usage and practise applied in the Company and also grant the benefit under section 79 of the Factories Act.
(2.) Heard the learned counsel for both sides. A small issue for consideration in this writ petition is, whether the concerned workman is entitled to encash the privilege leave either as per the custom, usage and practise in the Company or under the provisions of section 79 of the Factories Act. The respondent No. 1 union had filed the complaint under section 28(1) read with Items 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971 before the Industrial Court, Mumbai, as Complaint (ULP) No. 571 of 1995. The respondent No.l complainant submitted that it was dealing with the grievances of its member workmen since July, 1987. The complainant union wrote a letter dated 15.3.1995 in which the lacunas were pointed out by the complainant union in terms of depriving the workman in question of his dues. The company had denied all the claims of the concerned workman in their letter dated 29.3.1995 and refused to make any such payment. According to the complainant union, such act of the respondent company amounted to unfair labour practise under Items 9 and 10 of Schedule IV of the Act as well as breach of section 79 of the Factories Act and, therefore, it was claimed that the concerned workman was entitled to the benefit of encashment of sick leave, casual leave, privilege leave, paid holidays and its accumulation, as per the past practise in this regard. The learned Member of the Industrial Court duly heard the complaint and partly allowed it holding that the respondent company, in respect of the said workman, was entitled to encash the privilege leave as referred to earlier. Hence this writ petition.
(3.) The learned counsel for the petitioner company submitted that the ambit of section 79 of the Factories Act was limited only to the extent to determine the issues regarding leave with wages of concerned workman and did not provide for any encashment. It was further submitted that there is neither any custom nor any usage nor practise applied in the company regarding encashment of privilege leave and, therefore, the concerned workman is not entitled to the same. On the other hand, the learned counsel for the respondent vehemently urged that the evidence on record of the lower court was sufficient to show that there was custom, usage and practise applied in the company to make payments of privilege leave. In support of this submission, he referred to the instance that as many as 12 workmen from the said company were allowed to encash the privilege leave. This submission was countered on behalf of the company stating that there were only 2 such instances which were in individual instances and, therefore, there is no custom as alleged to allow to encash the privilege leave.;