R.M.S. Khandeparkar, J.
1. Since common question of law and facts arise in both these petitions, they were heard together and are being disposed of by this common judgment.
2. Heard the learned Advocates for the parties. Perused the records. In both these petitions, the petitioners challenge the judgments and order passed by the Industrial Court declaring the petitioners to have adopted unfair labour practice towards the respondents/workmen and further directing the payment of wages to the respondents/workmen with effect from 1995-96 with continuance of contract of employment. In the Writ Petition No. 260 of 2001 the petitioners have been directed to pay wages to the respondent (No. 2) holding that the petitioners have committed unfair labour practice under Items 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter called as 'the said Act'. In the Writ Petition No. 261 of 2001 the petitioners have been held to have engaged in unfair labour practice under Item 9 of Schedule IV of the said Act and further directed to allow the respondent (No. 2) to resume his duties and to pay wages from 1.4.1996 onwards.
3. The impugned judgments and orders are sought to be challenged on three grounds : firstly, that considering the provisions of Section 20(2)(b) of the said Act, the petitioners could not have been allowed to be represented by an Advocate and it was the exclusive right of the recognised Union to represent the workmen and the same having not been followed, the proceedings and the orders passed therein are vitiated. Secondly, it is the contention of the petitioners that the impugned judgments and orders are contrary to the materials on record in as much as that there is total absence of the evidence to show that the respondents/employees were daily coming to resume the duty and that they were not allowed to resume their duties. Thirdly, it is sought to be contended that refusal to permit the employees to join the duties does not amount to any of the unfair labour practices enumerated under Schedule IV of the said Act, It is also sought to be contended that in the facts and circumstances of the case, the relief should have been moulded instead of granting reinstatement and back wages and in that connection attention is sought to be drawn to the decision of/he learned Single Judge, as he then was, of this Court in the matter of Sadanand D. Phansekar and Ors. v. National Textile Corpn. (South Mah.) Ltd. and Ors. 1997 (II) C.L.R. 801.
4. As regards the first ground of challenge, admittedly, the petitioners have not raised any objection for the respondents being represented by their Advocates during the proceedings before the: Industrial Court, nor there is any ground raised in that regard in the memo of the petitions by the petitioners. On that count alone, the challenge on this ground is liable to be rejected as it is too late for the petitioners to raise any such objection. At this stage, the respondents cannot get an opportunity of procuring assistance of the recognised Union to establish their case. The proceedings before the Industrial Court have already been concluded. Viewed from this angle also, there is no substance in the first ground of challenge.
5. As regards the second ground of challenge, the contention of the petitioners pertaining to the absence of evidence, the same is totally devoid of substance. In the matter of the Writ Petition No. 260 of 2001, in the course of trial before the Industrial Court, the representative of the petitioners himself had stated in his testimony that the respondent No. 2 was in employment of the petitioners and was working in the Folding Department. He has also stated that some of the workmen were allowed to resume their duties after the orders were passed in their favour. At the same time, he has also admitted that he could not say whether the management had taken any steps for termination of services of the respondent No. 2. In other words, the fact that the respondent No. 2 was in the employment of the Company, was not denied nor it was sought to be contended that his services were terminated. This fact coupled with the statement of the respondent that he used to attend the mill gate after 18.1.1982 for signing the register of attendance, yet no work was provided to him and that he had signed the attendance register till 18.10.1983 and further that after acquisition of the Mill by the N.T.C., the security officer stopped him from entering the Mill's premises and signing the register, and all these facts having not been denied, the same apparently reveal that the respondent No. 2 had been able to satisfactorily prove that, he had been attending to his duties but he was not allowed to join the same.
6. In the Writ Petition No. 261 of 2001, the representative of the petitioners sought to dispute the claim of the respondent No. 2 that he used to report to the duties regularly from 18.1.1982 but no work was provided and the employer had refused to give work to him, however, in the course of cross-examination, he has clearly admitted that even after 31.5.1983 some workers were reporting to the duty and they were allowed to resume their duties but the workers were required to report to the management and not to him and he did not know whether the respondent No. 2 had reported or not. In other words, while the statement of the respondent No. 2 on oath regarding attempt to join his duties remains unchallenged, simultaneously the petitioners have not been able to establish that the respondent No. 2 had not made any efforts in that regard. The materials on record therefore reveal that the respondent No. 2 did try to join his duties but the management refused to give any work to him. The second ground of challenge, therefore, is also without any substance.
7. As regards the third ground of challenge, the Item 9 of the Schedule IV of the said Act clearly enumerates the failure to implement award, settlement or agreement to be one of the unfair labour practices on the part of the employers. Non-implementation of the terms of employment and/or violation of the terms of contract of employment would certainly be covered by the said Item No. 9 in the Schedule IV of the said Act. The grievance of the respondent No. 2 related to denial of work in contravention of the terms of their employment, and therefore their case was apparently covered by the said Item.
8. As regards the decision in Sadanand Phansekar's case (supra), referring to the observation therein that the Industrial Court should consider the financial capacity of the Mills to pay the back wages or to offer reinstatement while passing the order in a complaint under the said Act, it is to be seen that the evidence produced by the petitioners before the Industrial Court nowhere discloses any such financial inability to comply with the directions which were issued by the Industrial Court under the impugned orders. Being so, the said observation in Sadanand Phansekar's case can be of no help to the petitioners in the facts and circumstances of the case in hand, and therefore there was no case for moulding the relief.
9. As no other ground is canvassed for challenging the impugned judgments and order, the petitions fail and are hereby dismissed. The rule in both the petitions is discharged with no order as to costs.