Full Judgment
R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the partiesPerused the records.
2. The petitioners are challenging the judgment, and order passed by theIndustrial Court on 8-4-1999 allowing the complaint filed by the respondentmaking grievance of unfair labour practices under Item 9 of Schedule-IV of theMaharashtra Recognition of Trade Unions and Prevention of Unfair LabourPractices Act, 1971, hereinafter called as 'the said Act' on the part of thepetitioners and further claiming of back wages to the tune of Rs. 69,597/-. Thechallenge is three-fold. Firstly, that without going into the issue as to theobligation of the workman to report to the duties pursuant to the Award forreinstatement and without any material on record disclosing attempt on the partof the workman to join the duties, the Industrial Court has arrived at theconclusion that there was refusal on the part of the petitioners to allow theworkman to join to her duties on or after 1-6-1990; secondly, that the workmanhaving joined the duties from 26-9-1990, there was compliance of the Award forreinstatement in service and once the Award was complied with, the complaint inrelation to Item No. 9 of Schedule-IV of the said Act did not survive any furtherand, therefore, the Industrial Court could not have directed the payment of wages beyond the said date as well as could not have gone into the issue as to whetherthere was adoption of any unfair-labor practice by the petitioners subsequent tothe said date as the scope of the complaint was restricted to the issue of non-compliance of the Award dated 11-10-1988; and thirdly, that the direction to paythe sum of Rs. 69,597/- has been issued without considering the fact that such aclaim has been disputed by the petitioners and without considering thecalculations submitted by the petitioners in relation to the amount payable to theworkman. Reliance is sought to be placed in the decisions in the matter ofBombay Steel Rolling Mills Ltd., and Ors. v. Khemchand Rajkumar Steel Millsand Pahorpur Yards Labour Union, Calcutta, reported in (1964) II LLJ 120, andPeer Mohamed & Co., Madras v. Mohamed Hussain and Anr., reported in : (1968)IILLJ98Mad in support of the first ground of challenge and in the decisionsin the matters of Management, Nilpur Tea Estate v. State of Assam and Ors.,reported in 7996 (72) FLR 79 and State of Maharashtra v. Ajit ManeklalChoksey, reported in : (1979)ILLJ423Bom in support of the second ground ofchallenge. On the other hand, the impugned order is sought to be justified byreferring to the letter dated 23-6-1990 by the Union requesting the petitioners toallow the workman to join to her duties and the due acknowledgment of thereceipt thereof by the petitioners, yet the refusal on the part of the petitioners toallow the workman to join to her duties and secondly that the complaint not onlyrelates to the non-compliance of the Award but also non-payment of the backwages and therefore nothing prevented the Industrial Court from awarding thewages for the period for which it has not been paid to the workman and viewedfrom this angle, according to the learned Advocate for the respondent, no faultcan be found with the direction given by the Industrial Court to pay the wages inrelation to the period even beyond 26-9-1990.
3. The learned Advocate appearing for the petitioners has fairly concededthat the petitioners do not dispute the entitlement of the workman for the backwages for the period from 19-2-1986 to 31-5-1990 as even though the Awardwas delivered on 11-10-1988, since it was an ex parte Award, attempt was madeby the petitioners to get the said Award set aside but without any success and theorder refusing to set aside the Award was passed on 31-5-1990 and that thereforethe petitioners do not deny the claim for back wages of the workman for theperiod from 19-2-1988 till 31-5-1990.
4. As regards the first ground of challenge, it is not necessary for this Courtto go into the issue sought to be raised on the point as to whether after the orderof termination from services is set aside by the Tribunal or the Court, is it theduty of the employer to invite the employee to join the services or whether it isthe duty of the employee concerned to demand implementation of the Award forreinstatement as, in my considered opinion, in the facts and circumstances of thecase in hand, such an issue does not arise for consideration. The analysis of thematerials on record by the Industrial Court as well as from the perusal of therecords placed before this Court, it is apparent that the period for which the issueof adoption of unfair labour practices on account of the alleged non-enforcementof the Award dated 11-10-1988 to be considered is the period from 1-6-1990 till25-6-1990. Apart from a mere claim of the respondent that the workman tried tojoin the duties but she was prevented from doing so by the petitioners, there is also a letter dated 23-6-1990 by the Union, addressed to the petitioners. It is alsoa matter of record that the petitioners have acknowledged the receipt of the saidletter. The contention of the petitioners, however, is that mere letter by the Unionasking to enforce the Award is not sufficient and it must be established that theworkman had in fact tried to join to her duties, yet there was obstruction by theemployer and therefore she could not join to her duties. In that connection,attention is sought to be drawn to the decision in the matter of Bombay SteelRolling Mills Ltd., and Ors. v. Khemchand Rajkumar Steel Mills andPahorpur Yards Labour Union, Calcutta (supra) wherein it was observed that'But if after such acquittal the workmen preferred to remain away and did notask for work, it is neither fair nor reasonable to ask the management to complywith the demand for reinstatement made months and months after suchacquittal.' No doubt, in the case in hand, the Award for reinstatement was dated11-10-1988. The first letter by the Union appears to have been sent on 7-2-1989and thereafter on 23-6-1990. At the same time, it is a matter of record that till31-5-1990 the petitioners had been pursuing with the matter before the IndustrialCourt for getting the said Award set aside on the ground that the same waspassed, ex parte. The said attempts on the part of the petitioners were provedfutile pursuant to the order dated 31-5-1990 and thereafter the Union had sent aletter on 23-6-1990 asking the petitioners to reinstate the workman in terms ofthe Award. At the same time, it is also pertinent to note that the Industrial Courthas no where arrived at any finding to the effect that during the period from 1-6-1990 till 23-6-1990 or even thereafter till 26-9-1990 that there was any attempton a particular day by the workman to join to her duties and that she wasobstructed from joining to her duties by the petitioners. Even after drawingattention of the Advocate for the respondent to the absence of such a clearfinding in the impugned Award, the learned Advocate for the respondent was notable to point out any piece of material on record which can disclose actualattempt by the workman on a particular day and yet the petitioners had obstructedthe workman from joining to her duties. Apparently, there is no material onrecord to disclose that the workman had actually attempted to join to her dutiesfrom 1-6-1990 till 26-9-1990. The finding by the Industrial Court on the point ofattempt of the workman to join to her duties reads thus:--
'Witness Smt. Suman Waghmare who was working in the Company told that Smt. Ajgoankar reported for duty one to two days in September. However, her deposition cannot be trusted in this connection because Smt. Ajgoankar might have reported for duty for several times and she must have been returned and whisked away from outside the Company.'
The learned Presiding Officer of the Industrial Court, however, has not taken any care to refer to any incident from the materials on record which can help the Industrial Court to draw any such inference which the Industrial Court has drawn regarding the attempt on the part of the workman and refusal on the part of the petitioners to allow the workman to join to her duties. It is not the mere inference without any basis which can justify to arrive at the conclusion regarding adoption of unfair labour practices by the employer vis-a-vis the employee. In order to arrive at any such finding, it is necessary for the Court to refer to the materials on record which can justify such a conclusion. In the absence of any material on record to justify the conclusion which is sought to be drawn by the IndustrialCourt regarding the attempts on the part of the workman to join to her duties andobstruction on the part of the petitioners, the said finding cannot be sustained. Asalready observed above, there is nothing on record to disclose any attempt on thepart of the workman to join to her duties from 1-6-1990 till 26-9-1990. Mereletter of the Union directing the management to enforce the Award by itselfcannot lead to the conclusion that in fact there were attempts by the workman tojoin to her duties. It is also pertinent to note that the letter undisputedly directsthe employer to enforce the Award and allow the workman to join to her duties.It does not make any grievance about refusal on the part of the management toallow the workman to join to her duties on a particular day. Being so, a mererequest by the Union to the management to enforce the Award and allow theworkman to join to her duties cannot lead to the conclusion that the workman hadactually attempted to join to her duties and that she was obstructed from doing soby the management. Being so, the materials on record no were disclose that theworkman had attempted to join to her duties during the said period andtherefore there cannot be any justification to arrive at the conclusion that thepetitioners had adopted unfair labour practices vis-a-vis the workman for theperiod from 1-5-1990 till 26-9-1990.
5. The above conclusion is also inevitable from the fact that even thereporting to the duty by the workman on 26-9-1990 is not on account of anyvoluntary act on the part of the workman but it is pursuant to the order dated25-9-1990, passed by the Industrial Court appointing Commissioner to supervisethe proceedings regarding the joining of the workman to her duties.Undisputedly, there was no obstruction to the workman when she had gone tojoin her duties on 26-9-1990. In the circumstances, therefore, the finding of theIndustrial Court regarding adoption of unfair labour practices by the petitionersas well as that there is cause for complaint under Item 9 of Schedule-IV of thesaid Act in relation to the relevant period cannot be sustained and are to be setaside.
6. Considering the view that I am taking in the matter, it is not necessary torefer to the decision of the Madras High Court in the matter of Peer Mohamed &Co.;, Madras v. Mohamed Hussain and Anr. (supra).
7. As regards the second ground of challenge, it is a matter of record thatpursuant to the order dated 25-9-1990, Commissioner was appointed to supervisethe proceedings regarding the joining of the workman to her duties andaccordingly the workman joined to her duties on 26-9-1990. Undisputedly, theAward dated 11-10-1988 was to the effect that the workman was required to bereinstated in service with effect from 19-2-1986 with full back wages. At thesame time, the complaint of the petitioners was only in relation to non-compliance of the said Award. The grievance made in the complaint and therelief prayed therein was to the effect that the petitioners have not complied withthe said Award and have not paid the back wages, as ordered to be paid under thesaid Award. In the back ground of these facts, it will be necessary to refer to thedecisions relied upon before arriving at any conclusion regarding the contentionscanvassed on behalf of the parties.
8. The Apex Court in the matter of Management, Nilpur Tea Estate v. State of Assam and others (supra), while dealing with the matter under Section 33-C(2) of the Industrial Disputes Act, 1947, in a case where the services of theemployee were terminated after enforcement of the Award for reinstatement, itwas observed that:--
'As no step had been taken by the respondent to question the legality orotherwise of the order of termination dated 19-4-1988, the said ordercould not have been ignored by the Labour Court or the High Court, forpurposes of calculating the amount which remained due and is payable tothe respondent. To put it in other words, the Labour Court or the HighCourt could not have directed payment to the respondent for period after19-4-1988 when the services of the respondent were terminated afresh.The counsel for the respondent could not take a stand that respondent hadchallenged the aforesaid order dated 19-4-1988 terminating his servicesafter being reinstated. Unless the said order of termination is held to beinvalid, it cannot be ignored in a proceeding under Section 33-C(2) of theAct.'.
9. The learned single Judge of this Court in the matter of State ofMaharashtra v. Ajit Maneklal Choksey (supra), while dealing with the matterarising out of the order of the Magistrate dismissing the criminal complaintagainst the employer for non-implementation of the Award on the ground that itwas barred by limitation, had observed thus:--
'An award directing the employer to reinstate a workman who had beenearlier dismissed, as any other award, becomes enforceable under theprovisions of Section 17A on the expiry of 30 days from the date of itspublication under Section 17. The act of reinstatement is to be made at onetime and it is not a liability imposed upon the employer which is to becarried on his shoulder from day-to-day. If, for example, a workmanwho is directed to be reinstated on a particular day and is reinstated onthat day and thereafter the workman is again discharged or dismissed,there is no breach of the direction of the reinstatement, because thatdirection has been complied with. The subsequent discharge or dismissalmay give rise to a fresh industrial dispute. In other words, the act ofreinstatement has to be performed only once and not to be repeated fromday-to-day.'
10. Considering the facts of the case in hand, and applying the law laiddown, as quoted above, it is apparent that on 26-9-1990, in the presence of theCommissioner, the workman was reinstated in the services in terms of thedirection under the Award dated 11-10-1988. Admittedly, thereupon theworkman had filed an application for leave along with medical certificate. Herown witness has stated that she had worked for one or two days in the month ofSeptember. It is, therefore, apparent that in terms of the direction under theAward dated 11-10-1988 for reinstatement of the workman, the same wasenforced on 26-9-1990. Being so, as far as the relief of reinstatement under theAward is concerned, nothing more was left to be done by the petitioners vis-a-visthe workman in whose favour the Award was passed. Whatever acts thepetitioners might have done, or committed, even assuming that the contention in that regard of the respondent is correct for the sake of argument, then also itcannot be said that cause for proceeding of the complaint of non-compliance ofthe Award for reinstatement dated 11-10-1988 would still subsist beyond 26-9-1990. In the words of Justice Jahagirdar in Ajit Maneklal Choksey's case 'The actof reinstatement is to be made at one time and it is not a liability imposed uponthe employer which is to be carried on his shoulder from day-to-day. 'The act ofreinstatement in terms of an Award has to be, therefore, performed only once andonce it is performed by the employer, the question of repeating such act in termsof the Award which has already been enforced, cannot arise. Once it is anadmitted position that on 26-9-1990 the workman had been reinstated in terms ofthe Award dated 11-10-1988, the grievance of the respondent, as far as non-compliance of the said Award in relation to the reinstatement is concerned, didnot subsist thereafter.
11. The other direction under the Award dated 11-10-1988 was pertainingto the payment of back wages. It is not in relation to the future wages. It wassought to be contended that nothing prevents the Court to give such direction forpayment of wages which may accrue subsequently. It is not necessary for thisCourt to go into the said issue as the fact remains that under the Award dated11-10-1988, what was awarded was only the back wages. The liability of theemployer was therefore to pay the back wages with effect from 19-2-1986 till thedate of reinstatement. Once this position in law being clear, and the Award beingclear in relation to the back wages, the question of directing the petitioners to paythe future wages cannot arise in a complaint under Section 28 of the said Act,wherein the grievance of the complainant pertains to the fact of non-complianceof the Award passed by the Tribunal, and the Award pertains only to the issues ofreinstatement and payment of back wages.
12. In relation to the back wages, it was sought to be contended on behalfof the petitioners that no back wages could have been awarded beyond 31-5-1990as the complaint did not refer to the said period. The claim of the workman forback wages and the liability of the employer for the payment of back wagescannot depend upon the relief claimed in the complaint filed under Section 28 ofthe said Act but it would depend upon the relief granted under the Award.Undisputedly, the Award directs payment of back wages till the date ofreinstatement from 19-2-1986. Being so, the liability of the employer to pay theback wages till the date of reinstatement cannot be disputed. Besides, thecomplaint was necessarily regarding the period prior to the filing of thecomplaint. Undoubtedly, the complaint refers to the period upto 31-5-1990. Thecomplaint was filed on 9-7-1990. Under the Award it being the liability of theemployer to pay the back wages till the date of reinstatement, in fact it was notnecessary for the complainant to specify the date of 31-5-1990 in the complaintas being the date on which the amount is due and payable to the workman.However, mere mention thereof or a relief disclosing the said date, that wouldnot debar the Industrial Court from passing appropriate order in the matter ofpayment of back wages and the provisions of Section 30 of the said Act are veryclear in that respect.
13. As regards the third ground of challenge, the analysis of the materialson record and the findings arrived at by the Industrial Court in respect of the amount due and payable to the workman, apparently it discloses that theIndustrial Court has proceeded on the basis that the petitioners are not disputingthe statement of calculation submitted by the respondent. However, the materialson record brought to the notice of this Court by the learned Advocate for thepetitioners and not controverted by the respondent's Advocate, disclose that thepetitioners on their part had also submitted calculations and they differ fromthose submitted by the respondent. Being so, it was necessary for the IndustrialCourt to analyse both the statements of calculations and considering the numberof days for which the wages were payable, it was necessary to ascertain the exactamount due and payable to the workman. The Industrial Court having not donethis exercise, and merely on the assumption that the petitioners have not contendedthat the calculations submitted by the respondent are not correct, has directed thepetitioners to pay the sum of Rs. 69,597/- to the workman. It also appears from therecords that the petitioners had deposited a sum of Rs. 45,472.79 ps. with theIndustrial Court. However, credit has been given only to a sum of Rs. 40,000/-,which was withdrawn by the respondent. It is also necessary for the IndustrialCourt to take into account the said amount while calculating the amount which ispayable by the petitioners to the workman. In this regard, it is to be noted that theAward was passed on 11-10-1988. Undoubtedly, there was an attempt to get thesame set aside and the order in that regard was passed on 31-5-1990, rejecting theprayer for setting aside of the Award. However, the fact remains that duringthe proceedings sought to be initiated by the petitioners to get the Award setaside, the execution of the said Award was not stayed. Since the liability ofthe petitioners to execute the Award was subsisting during the period evenprior to 31-5-1990, in that regard certainly it was necessary for the IndustrialCourt to apply its mind and to arrive at the finding as to whether the sameamounts to unfair labour practice on the part of the petitioners vis-a-vis theworkman and thereupon to calculate the exact amount due from thepetitioners to the workman. Having failed to do so, and having arrived at theamount of Rs. 69,597/- as being due, without undertaking the above exercise, thefinding regarding the said amount to be due and payable to the workman needs tobe set aside and the matter needs to be remanded to the Industrial Court to dealwith the said aspect of the matter.
14. In the result, therefore, the petition partly succeeds. The impugnedorder is quashed and set aside. However, the matter is remanded to the IndustrialCourt to deal with the contention of the respondent regarding the non-complianceof the Award resulting in unfair labour practice being adopted by the petitionersfor the period prior to 31-5-1990 and also to arrive at the correct amount due andpayable to the workman, in accordance with law and bearing in mind theobservations hereinabove. The rule is made absolute accordingly with no order asto costs.