2010(1) ALL MR 763
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

V.A. NAIK, J.

M/S. Manikchand G. Lulla Vs. The Presiding Officer, Labour Court, Amravati & Ors.

Writ Petition No.1780 of 2003

19th November, 2009

Petitioner Counsel: Shri. QUAZI,for Shri. Z. A. HAQ
Respondent Counsel: Shri. A. M. DESHPANDE

Industrial Disputes Act (1947), S.25-F - Termination of Service - Re-instatement - Claim of backwages - For Claiming entitlement to back wages, it is necessary to plead and prove that the employee was not gainfully employed elsewhere, after his services were terminated. (Para 8)

JUDGMENT

JUDGMENT :- By this petition, the petitioner impugns the award passed by the Labour Court, Amravati on 14.1.2003 answering the reference in the affirmative and holding that the respondent no.3 was entitled to reinstatement in service with 50% of back wages.

2. The respondent no.3 had filed a statement of claim before the Presiding Officer, Labour Court, Amravati. It was the case of the respondent no.3 that he was working with the petitioner as a Salesman since 1980 on monthly salary of Rs.1250/-. According to the respondent no.3, he was not paid the wages admissible to him. The respondent no.3 was on leave for a period of 45 days with due permission of the petitioner, and when he went to join his duties in the shop on 1.5.1996, the petitioner did not permit him to join the duties. The respondent no.3 claimed that, time and again he approached the petitioner with a request to resume the duty, but he was not allowed to join the duty. It was pleaded by the respondent no.3 that his juniors were retained in service while he was removed and therefore, he sought for his reinstatement with continuity of service and full back wages.

3. The petitioner filed written statement and denied the claim of the respondent no.3. It was denied that the respondent no.3 proceeded on leave for a period of 45 days. It was the case of the petitioner that the respondent no.3 had without any intimation left the services of the petitioner by remaining absent till 30.3.1996. It was the case of the petitioner that, it was not a case of termination of service, but was a case of relinquishment of service. The Labour Court on an appreciation of evidence on record held that the petitioner failed to prove that the respondent no.3 had abandoned his services and was therefore, liable to reinstate the respondent no.3 in service with continuity of service and 50% back wages. The order dated 14.1.2003 is impugned in the instant writ petition.

4. Shri. Quazi, the learned counsel for the petitioner submitted that the Labour Court was not justified in directing the reinstatement of the respondent no.3 with 50% of back wages. The learned counsel for the petitioner submitted that after the award was passed by the Labour Court, the petitioner asked the respondent no.3 to join the services, but the respondent no.3 has failed to join his duties. The learned counsel for the petitioner submitted that the Labour Court erred in holding that the respondent no.3 had not abandoned his services. It was then canvassed on behalf of the petitioner that the Labour Court was not justified in granting 50% back wages when the respondent no.3 had neither pleaded nor proved that he was not gainfully employed after his termination.

5. None appears on behalf of respondent no.3 though served.

6. Shri. A. M. Deshpande, the learned A.G.P. for respondent no.1 and 2 supported the order passed by the Labour Court on 14.1.2003 and submitted that the Labour Court has rightly considered the factual and legal aspect of the matter to direct reinstatement of the respondent no.3 in service. The learned A.G.P. sought for the dismissal of the writ petition.

7. I have considered the submissions made on behalf of the parties and have perused the impugned order along with the pleadings. On a perusal of the same, it is clear that the Labour Court did not commit any error in granting reinstatement to the respondent no.3 in service as the management had failed to prove that the respondent no.3 had abandoned his services and the respondent no.3 succeeded in proving that he was in the service of the petitioner since the year 1987. The Labour Court rightly held that had there been any abandonment of service by respondent no.3, there was no reason for the respondent no.3 to issue the notice to the petitioner asking the petitioner to permit him to resume the duties. Moreover, according to the Labour Court, it was necessary for the petitioner to issue a notice to the respondent no.3, calling upon him to resume his duties. In the instant case, the petitioner had never issued any notice to the respondent no.3 on his so called abandonment of service. In such a factual background the Labour Court committed no error in holding that the respondent no.3 was working as a Salesman with the petitioner at least from the year 1987 and he had not abandoned his services as claimed by the petitioner.

8. Though the Labour Court was justified in granting reinstatement to the respondent no.3, the Labour Court was not justified in granting 50% back wages. It is now well settled that for claiming entitlement to back wages, it is necessary to plead and prove that the employee was not gainfully employed elsewhere, after his services were terminated. I have perused the statement of claim. Such a pleading is not found in the statement of claim. Since the respondent no.3 had neither pleaded nor proved that he was not gainfully employed after his termination, there was no question of granting 50% back wages to the respondent no.3. The order granting 50% back wages is therefore, liable to be set aside.

9. In the result, the writ petition is partly allowed. The impugned order passed by the Labour Court on 14.1.2003 is hereby modified. The respondent no.3 would not be entitled to 50% of back wages. Rest of the order passed by the Labour Court on 14.1.2003 stands confirmed. No order as to costs.

Petition party allowed.