Bombay High Court
Suja Agencies vs Uday Singh B. Rawat And Anr. on 12 June, 2003
Equivalent citations: 2003(4)BOMCR488, 2003(4)MHLJ687
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties.
Perused the records.
2. The short point which arises for consideration in the matter is whether the respondent No. 1-workman who was offered the opportunity to join the services unconditionally, having failed to join the services, can he still insist for backwages on award being passed in his favour for his reinstatement in the service.
3. Placing reliance in the decision of the learned single Judge of this Court in the matter of Sonal Garments v. Trimbak Shankar Karve, reported in 2002 (III) CLR 488, the learned Advocate for the petitioners submitted that the Labour Court has clearly held that from 3-34990 to 9-9-1992 the workman was employed with some other agency and for that period the workman would not be entitled for the backwages. However, while arriving at the said conclusion, the Labour Court has totally ignored the fact that the petitioners had offered to the workman an opportunity to join the services unconditionally and this was clearly stated in the written statement filed before the Labour Court on 23-3-1992 and yet the workman had not joined the services. This fact, coupled with the fact that the workman was employed with some other employer during the period 3-3- 1990 to 9-9-1992, and considering the claim of the workman that his services were illegally terminated with effect from 27-3-1990 without admitting the claim of the workman in that regard, the fact remains that the workman himself is responsible for not availing the opportunity given to him by the petitioners and, therefore, the Labour Court erred in ordering the payment of backwages for the period from 24-3-1992 onwards.
4. The issue as to whether the employee is entitled to claim backwages in spite of an unconditional offer by the employer to allow him to join the services and the workman having failed to avail such opportunity, is well-settled and the decision of the learned single Judge in the matter of Sonal Garments (supra) relied upon by the petitioners is clear on that point. The learned single Judge therein has clearly held that "Whenever the employer offers to reinstate the workman at any stage of the dispute or proceedings and if the workman does not accept the offer even without prejudice to his rights and contentions he will not be entitled to continue his claim for reinstatement in the proceedings and he will also be not entitled to claim any backwages from the date of such offer, conditional or unconditional." In the case in hand, the challenge to the impugned order being restricted to the grant of backwages, the adjudication in the petition is limited to the said issue. The materials on record apparently disclose that the petitioners in their written statement had clearly stated that the workman was at liberty to report to duty without prejudice to the company's right to take disciplinary action against him and the said statement was made as long back as on 23-3-1992 and yet the workman had not reported to duty nor any explanation in that regard was placed on record by the respondent. In the circumstances, considering the fact that the workman failed to avail the opportunity offered by the petitioners, the workman would not be entitled to saddle the employer with backwages for his own fault and own failure to report to the duties in spite of the unconditional offer being made by the employer. It is also a matter of record that from 3-3-1990 to 9-9-1992 the workman was gainfully employed with another employer. In the circumstances, therefore, the petitioners are justified in contending that there is no justification for grant of backwages from 24-3-1992 onwards. Considering the finding arrived at by the Labour Court regarding the termination of the services and the subsequent reinstatement of the workman and the workman having been gainfully employed from 3-3-1990 to 9-9-1992 and the case of the workman being that his services were terminated from 27-1-1990, the period for which the workman would be entitled to claim the backwages will be from 27-1-1-990 to 3-3-1990. The petition, therefore, succeeds in relation to the issue pertaining to the payment of backwages and the impugned award accordingly stands modified pertaining to the period during which the workman would be entitled to the claim of backwages i.e., to say that the workman would be entitled for backwages for the period from 27-1-1990 to 3-3-1990 only. The rule is made absolute accordingly with no order as to costs.
Certified copy expedited.