Bombay High Court
M/S. Ocean Creations vs Manohar Gangaram Kamble on 29 November, 2013
Author: M. S. Sonak
Bench: M. S. Sonak
skc WP-1032-2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1032 OF 2007
M/s. Ocean Creations ]
403, Ashish Industrial Estate, ]
Gokhale Road (S), Dadar, ]
Mumbai 400 025 ] ..Petitioner
versus
1.Manohar Gangaram Kamble ]
C/o. A.B.G.K. Union, R. No. 91,
ig ]
Mukadam Chawl, Near Satyam Sai ]
Laundry, Santacruz (E), Mumbai ]
2.The Presiding Officer, ]
th
4 Labour Court, Bandra, Mumbai ] ..Respondents
Mr. K. S. Bapat with Mr. Jayesh Desai i/b. Desai & Desai Associates
for Petitioner.
Mr. J. N. Shiradhonkar i/b. Mr. Manoj M. Kondekar for Respondent
No. 1.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment: 22.11.2013
Date of Pronouncing the Judgment: 29.11.2013
JUDGMENT :-
1] Rule was issued in this petition on 06.08.2007 with directions to deposit 50% of the back wages with effect from 01.11.1998. This direction is reported to have been complied with.
1/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007
2] The challenge in this petition is directed against the judgment
and award dated 05.10.2006 passed by the 4th Labour Court, Mumbai (hereafter referred to as 'impugned award') directing the Petitioner (employer) to reinstate the Respondent No. 1 (workman) with continuity of service along with payment of 75% of the back wages.
3] It is the case of the Petitioner that the Respondent No. 1 abandoned services with effect from 01.03.1999. On the other hand it is the case of the Respondent No. 1 that his services were terminated by the Petitioner with effect from 01.11.1998 without issuance of any show cause notice, conduct of any enquiry and in breach of the provisions contained in Section 25-F of the Industrial Disputes Act, 1947 ('said Act'). The controversy in this petition therefore almost entirely raises an issue of fact as to whether the services of the Respondent No. 1 were terminated by the Petitioner with effect from 01.11.1998 or whether the Respondent No. 1 abandoned his service with effect from 01.03.1999.
4] Mr. Kiran Bapat, the learned counsel appearing for the Petitioner, in his well balanced submissions would urge that the 2/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 finding that the Petitioner has terminated the services of the Respondent No. 1 is perverse. The relevant material on record which establishes that the Respondent No. 1 was very much in service upto 01.03.1999 and thereafter stopped reporting for duties has been unjustifiably ignored. Mr. Bapat pointed out letters / notices requiring the Petitioner to report for duties and submitted that since the Respondent No. 1 failed to report for duties, the Petitioner was well within its rights to treat the Respondent No. 1 as having abandoned services. Mr. Bapat also pointed out that in the course of conciliation proceedings, the Petitioner once again offered the Respondent No. 1 to resume duties. The same was the position at the stage of decision in Notice of Motion No. 368 of 2011 in the present Petition which is evident from the order dated 22.11.2011.
However the Respondent No. 1 avoided resumption of duties and instead has indulged into making false and reckless allegations that he was prevented from resuming duties. In these circumstances, Mr. Bapat submitted that the impugned award deserves to be interfered with and set aside.
5] Mr. J. N. Shiradhonkar appearing for the Respondent No.1 countered the submissions of Mr. Bapat by submitting that the impugned award came to be passed upon appreciation of oral as 3/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 well as documentary evidence. In the circumstances, the pure findings of fact recorded therein cannot be styled as perverse or interfered with by this court in exercise of its writ jurisdiction. Mr. Shiradhonkar submitted that the material on record clearly establishes that most of the letters referred to by Mr. Bapat were not even served upon the Respondent No. 1. Mr. Shiradhonkar points out that the signatures in the salary register for the months between December 1998 to March 1999 were not of the Respondent No. 1.
Mr. Shiradhonkar then submitted that there is no provision in the service conditions applicable to the Respondent No. 1 which permits the Petitioner to treat an employee as having voluntary retired or abandoned services, in case of unauthorised absence beyond a particular period. Therefore, even where there is allegation of unauthorised absence, it was incumbent upon the Petitioner to have issued a charge sheet and held a domestic enquiry prior to terminating the services of Respondent No. 1. This having not been done, the impugned award which directs reinstatement with 75% back wages is legal and proper and requires no interference.
6] With the assistance of the learned counsel of both the parties, I have perused the material on record and the impugned award. As 4/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 pointed out earlier, the moot issue which arises for determination is an issue of fact.
7] It is settled position in law that a finding of fact is open to attack as erroneous in law only if it is not supported by 'any evidence' or if it is unreasonable and perverse. But where there is evidence to consider, the finding of fact recorded by a Tribunal is normally immune from interference even where the writ court might, if it was the court of first instance, have come to a different conclusion.1 In regard to findings of fact recorded by a Tribunal a writ of certiorari can be issued only if it is shown that in recording the finding the Tribunal has erroneously refused to admit material evidence or has erroneously relied upon inadmissible evidence which has influenced the impugned finding. Similarly if a finding of fact is based on 'no evidence' or is contrary to 'weight of evidence' or is patently unreasonable and perverse, that would be regarded as an error of law capable of being corrected by a writ of certiorari 2.
When findings of fact are in issue the writ court can only examine 'reasonableness' of the findings. If the finding is found to be recorded reasonably based upon some evidence, in the sense that relevant material has been taken into account and no irrelevant 1 AIR 1965 SC 1666 2 AIR 1964 SC 477 5/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 material has influenced the decision, then judicial review is exhausted even though the finding may not necessarily be what the writ court would have come to, if trying the case as a Tribunal or as a court of the first instance.3 Therefore in evaluating the rival contentions, I am required to be conscious of the limited scope of interference as against a finding of fact.
8] The legal position is also settled that 'abandonment or relinquishment of service' is always a question of intention and normally such intention cannot be attributed to an employee without adequate evidence in that behalf. This is a question of fact which is to be determined in the light of surrounding circumstances of each case.4 It is well settled that even in case of abandonment of service, unless the service conditions make special provisions to the contrary, employer has to give notice to the workman calling upon him to resume duties and where he fails to resume duties, to hold an enquiry before terminating services on such ground.5 9] In somewhat similar circumstances a Division Bench of this court comprising P. B. Sawant, J. (as he then was) and V. V. Vaze, 3 (1990) 3 SCC 223, (2012) 5 SCC 443 4 (1979) 1 SCC 590 5 1987 (55) FLR 689, 1991 (63) FLR 679, 1998 (79) FLR 874 6/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 J. in the case of Gaurishanker Vishwakarma vs. Eagle Spring Industries Pvt. Ltd. & Anr.6 observed thus :
"........ It is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. It was for the employer to prove that the workman had abandoned the service. ............It is therefore difficult to believe that the workman who had worked continuously for six to seven years, would abandon his service for no rhyme or reason. It has also to be remembered that it was the workman who had approached the Government Labour Officer with a specific grievance that he was not allowed to join his duty. It was also his grievance that although he had approached the company for work from time to time, and the company's partner Anand had kept on promising him that he would be taken in service, he was not given work and hence he was forced to approach the Government Labour Officer. In the circumstances, it is difficult to believe that he would refuse the offer of work when it was given to him before the Labour Officer......"
10] Again a learned Single Judge of this court R. M. Lodha, J.
(as he then was) in the case of Mahamadsha Ganishah Patel & Anr.
6 1987 (55) FLR 689
7/13
::: Downloaded on - 23/12/2013 20:30:58 :::
skc WP-1032-2007
vs. Mastanbaug Consumers' Co-op. Wholesale & Retail Stores Ltd.
& Anr.7 observed thus :
"....The legal position is almost settled that even in the case of abandonment of service, the employer has to give notice to the employee calling upon him to resume his duty. If the employee does not turn up despite such notice, the employer should hold inquiry on that ground and then pass appropriate order of termination. At the time when employment is scarce, ordinarily abandonment of service by employee cannot be presumed. Moreover, abandonment of service is always a matter of intention and such intention in the absence of supportable evidence cannot be attributed to the employee. It goes without saying that whether the employee has abandoned the service or not is always a question of fact which has to be adjudicated on the basis of evidence and attending circumstances. In the present case employer has miserably failed to discharge the burden by leading evidence that employee abandoned service. The Labour Court has considered this aspect, and, in my view rightly reached the conclusion that the employer has failed to establish any abandonment of service and it was a clear case of termination. The termination being illegal, the Labour Court did not commit any error in holding the act of employer as unfair labour practice under Item - 1, Schedule IV of the MRTU & PULP Act....."
7 1997 (3) ALL MR 719, 1998 (79) FLR 874 8/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 11] The Petitioner has relied upon letters dated 05.03.1999, 10.03.1999 and 13.03.1999 calling upon the Respondent No. 1 to report for duties failing which it shall be presumed that he is not interested in service. However as noted by the Labour Court, there is no evidence that these letters were served upon or received by the Respondent No. 1. The weight of evidence in fact suggest that they were not. The Petitioner then relies upon entries in salary register for the period between November 1998 and February 1999 to urge that the Respondent No. 1 in fact attended duties during the said period. Here again, the Respondent No. 1 has admitted his signatures on the register upto October 1998 but denied the signatures for the months beyond. There is no evidence produced by and on behalf of the Petitioner that payment of salary between November 1998 and February 1999 was made to the Respondent No. 1. The Respondent No. 1 has placed on record letters dated 11.03.1999, 19.03.1999 and 03.05.1999, the receipt of which the Petitioner has admitted, which stated that he reported for duties but was prevented from joining the same. The Respondent No. 1 in his deposition has also maintained that his services were terminated and all his attempts of resumption of duties spurned. The Labour Court has also adverted to the evidence of what transpired during and after conciliation proceedings before the Labour Commissioner.
9/13 ::: Downloaded on - 23/12/2013 20:30:58 :::skc WP-1032-2007 That may not strictly speaking be relevant except to indicate that even at that stage the Respondent No. 1 attempted to resume duties but was not allowed. In this regard the Respondent No. 1 has placed on record complaints made by him to various authorities complaining that he was prevented from joining duties.
12] Even if I were to agree with the submissions of Mr. Bapat that evidence on the part of the Respondent No. 1 is not quite satisfactory, then the same criticism squarely applies to the evidence led on behalf of the Petitioner as well. In such a situation, I have to fall back upon the law enunciated in the rulings of Gaurishanker (supra) and Mahamadsha (supra), which in no uncertain terms lays down that the burden of proving 'abandonment of service' is upon the employer and where an employer fails to discharge such burden, an award may be made in favour of the workman.
13] As observed earlier, this is not a case where any specific provision has been made in the service conditions permitting the employer - Petitioner to treat absence beyond a specified period as presumptive of abandonment of service. In absence of such a provision, the Petitioner was duty bound to serve a proper notice 10/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 upon the Respondent No. 1 to resume duties. If despite receipt of said notice, the Respondent No. 1 failed to turn up, then as laid down in the rulings of Gaurishanker (supra) and Mahamadsha (supra), the Petitioner ought to have held a domestic enquiry by charging the Respondent No. 1 with unauthorised absence or any similar misconduct. This admittedly has not been done by the Petitioner. In such circumstances no useful purpose will be served by accepting the submissions of Mr. Bapat, on the aspect of appreciation of evidence. That apart, as observed earlier the scope of interference with findings of fact as may be recorded by the Labour Court is quite limited. This writ court is certainly not exercising any appellate jurisdiction. Therefore the circumstance that two views may be possible, is not a ground to justify interference, unless the view taken by the court / tribunal of first instance is palpably perverse and unreasonable.
14] On perusal of the material on record and a findings recorded in the impugned award, in my opinion, it cannot be said that the findings recorded in the impugned award are based on 'no evidence' or that they are totally contrary to the weight of evidence on record or that they are perverse and unreasonable. Besides, even if I were to accept Mr. Bapat's contention that the Petitioner did 11/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 make efforts to require Respondent No. 1 to resume duties but the Respondent No. 1 failed to do so, that by itself would not be sufficient to hold in favour of the Petitioner. If despite Petitioner's alleged efforts, Respondent No. 1 failed to resume duties, then the Petitioner ought to have held an enquiry and based upon a findings then taken further action in the matter. This to me appears to be the import of the rulings in the case of Gaurishanker (supra) and Mahamadsha (supra).
15] The learned counsel for both the parties tried to make submissions upon the events that are alleged to have transpired in the course of conciliation proceedings as also the present proceedings. Once again it is the case of the Petitioner that Respondent No. 1 despite opportunities failed to report for duties. It is the case of the Respondent No. 1 that despite reporting for duties, he was prevented from discharging the same. I am afraid that all such issues cannot be looked into in the present petition.
The parties are always at liberty to adopt whatever proceedings they may deem fit and appropriate in this regard.
16] In the context of deposit of back wages in pursuance of directions issued by this court on 06.08.2007, the Respondent No. 12/13 ::: Downloaded on - 23/12/2013 20:30:58 ::: skc WP-1032-2007 1 contended that there is a short deposit arising primarily due to calculating the salary at the rate of approximately Rs.2,500/- per month instead of Rs.4,000/- per month. Mr. Bapat, relying upon salary registers however contended that the salary reflected therein is around Rs.2,500/- and therefore there is no short deposit. The Respondent No. 1 in his deposition (cross-examination) has admitted his signatures for the months April 1998 to October 1998 in categorical terms. In the circumstances, if the deposit is based upon the salary figures reflected in salary register for the said months, it cannot be said that there is any short deposit.
17] In the result I see no reason to interfere with the impugned award. The petition is therefore required to be dismissed and is so dismissed. Rule is discharged. There shall however be no order as to costs.
(M. S. SONAK, J.) Chandka 13/13 ::: Downloaded on - 23/12/2013 20:30:58 :::