Bombay High Court
Sinnar Bidi Udyog Limited vs Shri Keru Murlidhar Varhade And Ors. on 24 February, 1988
Equivalent citations: (1995)IIILLJ586BOM
JUDGMENT H.H. Kantharia, J.
1. The petitioner company manufactures beedies and employed about 65 workmen. Respondent Nos. 1 and 2 were employed by them as Bidi Rollers in the year 1973. Their wages were fixed at Rs. 5/- per thousand bidies. According to Respondent Nos. 1 and 2 (hereinafter referred to as "the workmen") they were the active members of a union called 'Sangamner, Akola, Sinnar Taluka Bidi Kamagar Samiti', and that the company started deducting 10 Ps. per week from the meagre wages of the employees of the company under the pretext that the management was collecting the said amount towards the labour welfare fund and Re. 1/- per week in the name of building fund as also Rs. 5/-per month towards smafi savings and another sum of Rs. 5/- per month towards the group insurance scheme. There were no receipts passed by the Company for the recovery of these amounts and on account of that there was discontent among the employees of the company and hence the present two workmen as leaders of the union agitated. It was contended by the workmen that the company came to know about the union activities of both of them and decided to break the union and started harassing the union members. With this intention, the Company declared a lock-out from 20th December, 1976. After the Deputy Commissioner of Labour, Bombay, intervened, the company lifted the lock-out on 16th May, 1977 but refused to pay back wages of the present two workmen and also did not take them back on work. They visited the company from 16th May, 1977 to 29th May, 1977 every day with a request to allow them to resume work but the Branch Manager of the company bluntly told them that the company did not wish to continue them in services any longer. The workmen, therefore, raised a demand and took up the matter with the Government Labour Officer. However, the company did not appear before the said Government Labour Office. The workmen then served the company with a demand on 3rd October, 1977 and took the matter in conciliation. It was the contention of the workmen that their services were terminated by way of victimisation because they were the trade union leaders. The conciliation proceedings failed and accordingly a failure report was submitted. Thereafter, the Deputy Commissioner of Labour (Administration) Bombay, referred the disputes of respondent Nos. 1 and 2 to the Labour Court at Nashik, presided over by the third respondent Labour Judge, for reinstatement of respondent Nos. 1 and 2 with continuity of service and back wages. The references were registered as reference (IDA) Nos. 22 of 1978 and 23 of 1978.
2. The case of the petitioner before the Labour Court was that the present workmen were in their employment from the year 1973 and that their wages were fixed at Rs. 5/- per thousand bidies. The company further admitted that respondent Nos. 1 and 2 were the active workers of the union called 'Sangamner, Akola, Sinnar Taluka Bidi Kamgar Samiti'. However, the company denied all the allegations made against them as stated above and contended that the concerned workmen had not reported for joining duty on 16th May, 1977 or at any time thereafter and that except these two workmen all had resumed duties and further that the present workmen were not interested in resuming because they were employed elsewhere. In other words, the contention of the company before the Labour Court was that respondent Nos.l and 2 had abandoned the services and as such they were not entitled to reinstatement and back wages and the question of continuing their services did not arise.
3. Before the Labour Court both the workmen examined themselves in their respective references. The company adduced the evidence of two witnesses viz. Hari Pachere and Hari Davare. By the consent of the parties the evidence recorded in both the references was considered together and a common award was passed by the third respondent-Labour Judge on 10th September, 1982. The award passed by him was to the effect that both the workmen were entitled to reinstatement with continuity of services and fifty per cent of the back wages effective from loth May, 1977 till their reinstatement.
4. Being aggrieved, the petitioner-company filed the present writ petition under Articles 226 and 227 of the Constitution.
5. The first contention raised by Mr. Ramaswami, learned counsel appearing on behalf of the petitioner-company, is that the references before the Labour Judge were not maintainable. The submission of the learned counsel is that under Section 31 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 the workmen could challenge an order of discharge or dismissal from service before an appellate authority and the appellate authority as per Rule 32 of the Maharashtra Beedi and Cigar Workers (Conditions of Employment) Rules, 1968 would be the Labour Judge having jurisdiction to hear the appeals in respect of the industrial premises in the areas for which he has the jurisdiction under Industrial Disputes Act, 1947. Therefore, Mr. Ramaswami contended that in this case, respondent Nos. 1 and 2 should have preferred appeals before the Labour Judge, Nashik, instead of resorting a direct action of a reference under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947. We afe not able to persuade ourselves to agree with the submission of Mr. Ramaswami for the simple reason that it is no doubt true that under the Rules 32, as stated above, respondent Nos. 1 and 2 were entitled to file appeals against the order of the employer of dismissal or discharge from the services but that does not mean that a reference under Section 10(1) read with Section 12(5) made by the appropriate Government to an appropriate authority under the Industrial Disputes Act would be bad in law. It was one of the remedies for the workmen to have preferred an appeal but just because they did not prefer an appeal and the Government of Maharashtra made references for adjudicating upon the demands of the workmen for their reinstatement with continuity of services and back wages would not be bad in law. After all if the appeal was to be filed by the present workmen, the same would have been heard and decided by the same Labour Judge and the procedure that he was expected to follow under Rule 33 of the Maharashtra Beedi and Cigar Workers (Conditions of Employment) Rules, 1968 would be the same which a presiding authority presiding over a Labour Court would have followed under the Industrial Disputes Act, 1947. Therefore, no prejudice has been caused to the petitioner-company in the same Labour Judge going into the merits of the matter of the demand of the workmen of their reinstatement with continuity of services and back wages. It is also important to note that the contention as raised by Mr. Ramaswami in this Court now was not raised before the Labour Judge and it would be total miscarriage of justice if after ten years it would be held against the weaker section of the society viz. the workmen that they had not approached a proper forum and, therefore, they were thereafter without any remedy. One could have understood if in the beginning itself the company were to challenge the action of the Government of making a reference under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947. The belated submission made on behalf of the company now has, therefore, got to be rejected. We accordingly find no substance in this contention of Mr. Ramaswami and reject the same.
6. Now, coming to the merits of the matter, it is to be seen that from the record produced before us it is crystal clear that respondent Nos. 1 and 2 were sought to be victimised by the petitioner-company on account of their trade-union activities. The record shows that for whatever reasons the company had declared a lock-out on 20th December, 1976 which was lifted on 16th May, 1911 with the intervention of the Deputy Commissioner of Labour, Bombay and at that time although all other workmen were taken back on work, the present respondent Nos. 1 and 2 were left out. The company's contention that respondent Nos. 1 and 2 were not interested in resuming duties with them appears to us to be frivolous inasmuch as the lock-out was lifted on 16th May, 1977 whereas the evidence adduced by the company itself, through their witness Mari Aba Pachere, shows that respondent Nos. 1 and 2 were temporarily working for some days in a particular year whenever they got work, with M/s. Cock Brand Sinnar Bidi Ltd. from 12th November, 1977 to 5th November, 1980 and perhaps for few days thereafter as per Exhibit-H. Therefore, it would not be correct to say that on 16th May, 1977 respondent Nos. 1 and 2 were gainfully employed elsewhere and, therefore, they were not interested in resuming the duty with the petitioner-company. The record further shows that soon after the other workmen were taken on duties and although respondent Nos. 1 and 2 visited the company from 16th May, 1977 to 29th May, 1977 and were not allowed to resume duties, they wrote a letter immediately to the company on 30th May, 1977 that they were very much interested in resuming the duties. This goes to show that in fact respondent Nos. 1 and 2 were ready and willing to resume duties but they were not permitted to do so. And had there been any truth in the contention of the petitioner-company that the respondent Nos. I and 2 were not interested in resuming duties, one would expect the company to write or give a notice to the workmen as to why they were not resuming duties and if they were not to resume duties by a stipulated time it would be taken for granted that they were not interested in the employment. No such action was taken by the petitioner-company. Regard being had to these facts and circumstances of the case, we are of the opinion that the findings by the learned Labour Judge that the services of respondent Nos. 1 and 2 were illegally terminated and that they were entitled to reinstatement is perfectly in order. The learned Labour Judge also took pains to record in his award that for some time respondent Nos. 1 and 2, as pointed out by us above, were gainfully employed elsewhere during the period or their forced unemployment with the petitioner-company and, therefore, they were entitled to not full back wages but only fifty per cent of the back wages. A careful perusal of the entire record and the impugned award made by the learned Labour Judge convince us that the impugned award does not suffer from any error whatsoever apparent on the face of the record. Such well reasoned and speaking award need not be interfered with by us while exercising the jurisdiction of this Court under Article 227 read with Article 226 of the Constitution.
7. In this view of the matter, we find the writ petition meritless and the same is dismissed. Rule is accordingly discharged with cost. It appears that at the time of admission of this writ petition the petitioner-company was ordered to deposit a sum of Rs. 10,000/- which was deposited in this Court. Respondent Nos. 1 and 2 shall be at liberty to withdraw the said amount and divide equally between both of them.
8. In pursuance of the impugned award passed by the Labour Judge, the petitioner-company is hereby directed to reinstate respondent Nos. I and 2 forthwith and at any rate by the end of March, 1988 and pay them the back wages as ordered by the Labour Court on 1st April, 1988 or soon thereafter along with the emoluments for the month of March, 1988, failing which the petitioner-company shall be liable to pay interest at the rate of 15 per cent per annum on the accumulation of the back wages in favour of respondent Nos. 1 and 2.