P.B. Phadke, Carrying on Business in the Name and Style of T. Vikram Electricals as the Sole Proprietor Vs. Dnyaneshwar Pilaji Erankar - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - it is submitted by the learned counsel that the management had written various letters to the concerned workman asking him to resume duty but he had failed to resume the duty. i have heard the learned counsel for the petitioner and have gone through the order passed by the presiding officer, first labour court, pune as well as the petition. since the management thereafter accepted the order of reinstatement by asking the concerned workman to resume his duty, this court would not like to interfere with the said finding of fact recorded by the labour court regarding the order of reinstatement passed in favour of the workman. 8. considering the aforesaid piece of evidence, the labour court has committed an apparent error in holding that the management has failed to lead evidence that the respondent was in gainful employment. he himself has admitted that he was driving rickshaw occasionally coupled with the fact that since the management in 1990 and 1991 had written him letters to resume duty, yet he failed to do so. the aforesaid factual aspect itself shows that the respondent was not in need of employment or in any case he was well placed monetarily otherwise naturally he would have responded to the request of the management to join duty. the labour court has failed to consider this aspect before passing the order of back wages in a casual manner. considering the said material on record, this is not a fit case in which back wages should have been granted to the respondent as in the years 1990 and 1991 the management had asked the respondent to resume duty but he failed to do the same.p.b. majmudar, j.1. by filing this petition, the petitioner has challenged the award passed by the presiding officer, first labour court, pune dated 24th october, 1996 in reference (ida) no. 54 of 1989. by the aforesaid award, the labour court has allowed the reference of the respondentworkman and the petitioner was directed to reinstate the respondent on his original post with continuity of service and full back wages.2. initially for six months the respondent was appointed as a helper. thereafter his services were discontinued. the respondent workman raised an industrial dispute on the ground that the services of the respondent have been terminated illegally with effect from 3rd august, 1989 and that he should be reinstated in service with full back wages. the said dispute was referred to the presiding officer, first labour court, pune, and the same was numbered as reference (ida) no. 54 of 1989. it is the case of the respondent that he was appointed as a fabricator wireman since 11th january, 1986 and that his services were orally terminated by the management on 1st january, 1988. the reference was resisted by the petitioner who was the first party before the labour court by filing written statement. according to the petitioner, the respondent was employed in his capacity as a helper and that on his own accord he abandoned the employment with effect from 3rd august, 1988. even though letters were sent by the management asking the respondent to join the duty, he did not respond to it. before the labour court it was the case of the present petitioner that the respondent had no intention to resume duty with the petitioner and, therefore, the reference was required to be dismissed.3. the labour court framed various issues at exh. 22. the labour court after considering the evidence on record came to the conclusion that the management has illegally terminated the services of the respondent and that he is entitled to full back wages for the intervening period. it is the aforesaid order which is impugned in this petition at the instance of the petitionermanagement.4. mr. gosavi, learned counsel appearing for the petitioner, vehemently submitted that the respondent himself had left the services on his own accord and, therefore, the labour court has committed an error in passing the order of reinstatement with full back wages in his favour. it is submitted by the learned counsel that the management had written various letters to the concerned workman asking him to resume duty but he had failed to resume the duty. it is submitted that even during the pendency of this petition, various letters have been sent asking the respondent to join duty but he has not responded to the same. one such letter is annexed at exhibitj, at page 40 of the paper book.5. nobody is present on behalf of the respondentworkman. i have heard the learned counsel for the petitioner and have gone through the order passed by the presiding officer, first labour court, pune as well as the petition.6. it is required to be noted that the order of reinstatement passed by the first labour court dated 24th october, 1996 has not been stayed by this court while admitting the petition and the petition is admitted only in connection with the back wages. the learned counsel for the petitioner submitted that in view of this, the petitioner had shown his willingness to reinstate the respondent in compliance with the order of the labour court but the respondent has not bothered to join duty thereafter. in this connection, my attention is invited to the letter dated 6th march, 1997 written by the petitioner which is at page 40 of the paper book asking the respondent to resume duty. thus the petitioner has shown his willingness to comply with the order of reinstatement. as pointed out by the learned advocate, the only question which requires consideration is as to whether the labour court was justified in passing the order of back wages in favour of the respondent. after the order of the labour court, if the respondent has not joined the services, the management can act accordingly but that point is not required to be examined in this petition as this court is required to consider whether the labour court has committed an error in passing the impugned order.7. so far as the present order is concerned, the labour court has found that the letters were written by the management earlier on 7th december, 1990 and 7th january, 1991 after the labour court had decided the reference ex parte against the management. the labour court while considering the material on record found that it cannot be said that the workman had voluntarily abandoned the services. the labour court accordingly found that the concerned workman had not abandoned the services on his own. since the management thereafter accepted the order of reinstatement by asking the concerned workman to resume his duty, this court would not like to interfere with the said finding of fact recorded by the labour court regarding the order of reinstatement passed in favour of the workman. as stated earlier, if the respondent has not joined the duties on his own, it is for the management to act on that basis in accordance with law against him. however, the point which requires consideration is as to whether the concerned workman was entitled to full back wages as awarded by the labour court. in this connection, it is required to be noted that the concerned workman has admitted in his evidence that he was plying a rickshaw occasionally and earns some amount. the learned counsel for the petitioner submitted that even the concerned workman was working as a contractor and earning sufficiently. the labour court also considered the factual aspect to the effect that the workman was holding a driving licence of a auto rickshaw and was also plying rickshaw. in spite of that, the labour court has come to the conclusion that the employer has not led evidence to the effect that the respondent was in gainful employment. once it has come in evidence that the workman was plying the rickshaw, it was not for the management to lead further evidence as the details regarding income from such avocation was available with the workman. it is also required to be noted that in spite of the fact that the management wrote various letters even in the years 1990 and 1991 which has also taken into consideration by the labour court at paragraph 7 of the order, the respondent had not tried to resume his duty. even after the award of the labour court, letters have been written by the management. a copy of one such letters is annexed at page 40 of the paper book by which the respondent was asked to resume duty. in spite of the efforts made by the management, the respondent has never tried to resume his duty.8. considering the aforesaid piece of evidence, the labour court has committed an apparent error in holding that the management has failed to lead evidence that the respondent was in gainful employment. as pointed out earlier, it is not in dispute that the respondent was holding a valid rickshaw driving licence. he himself has admitted that he was driving rickshaw occasionally coupled with the fact that since the management in 1990 and 1991 had written him letters to resume duty, yet he failed to do so. attempt of the management continued even in the year 1997 by asking the respondent to resume duty. an employee who is in dire need of employment would immediately report for duty. the aforesaid factual aspect itself shows that the respondent was not in need of employment or in any case he was well placed monetarily otherwise naturally he would have responded to the request of the management to join duty. it is not therefore possible to believe that for all these years, the respondent was not having adequate financial resources to sustain himself. the labour court has failed to consider this aspect before passing the order of back wages in a casual manner. considering the said material on record, this is not a fit case in which back wages should have been granted to the respondent as in the years 1990 and 1991 the management had asked the respondent to resume duty but he failed to do the same. considering the aforesaid aspect though the order of reinstatement is confirmed, the order granting back wages is set aside.9. the writ petition is allowed to the aforesaid extent by setting aside of the order of payment of back wages only. rule is accordingly partly made absolute with no order as to costs.