KALA SILK FACTORY Vs. PHANKOO BAKAS YADAV

JUDGEMENT

(1.) BY this writ petition under Article 227 of the Constitution of India, the petitioner has impugned the Order of the Industrial Court dated 30th December,, 1984 made in Appeal (IC) No. 94 of 1981 under the provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the Act" ).

(2.) THE petitioner is silk textile mill covered by the provisions of the Act. The first respondent joined the petitioners service on 21st February, 1972 as a printer. On 14th September, 1975, he applied for leave with wages of 22 days and additional 8 days without wages. He also applied for advance payment of wages in lieu of leave before he proceeded on leave. Though his application for leave was recommended by the General Superintendent of the Department, it was turned down by the authority competent to grant leave, who specifically informed the first respondent that he could not be granted leave, as too many employees were on leave at the relevant time. He was also informed that, unless some of the employees on leave came back to work, he would not be granted leave. Despite the categorical rejection of his leave application, the first respondent remained away from work with effect from 26th September, 1975. On 26th September, 1975, the first respondents union addressed a letter to the petitioner stating that, as the first, respondents ticket had already been booked, the first respondent had to go back to his native place, even though leave had not been granted. About a week later, a letter was addressed by the first respondent, in which he said that he had gone away to his native-place, as he was under the impression that the leave sought had been sanctioned. By a letter dated 3rd October, 1975, sent under Registered Acknowledgment Due Post, the petitioner informed the first respondent that he had absented himself from 26th September, 1975, giving notice that, if he did not resume work within 10 days his services would be terminated. This letter appears to have been received by the first respondent on or about 13th or 14th October, 1975. Despite the receipt of the said letter, the first respondent neither replied, nor resumed work. The petitioner claims that, on 1st November, 1975, it terminated the service of the first respondent by striking his name off the muster roll, since the first respondent had not bothered to reply the Notice dated 3rd October, 1975, nor had he resumed work, as directed therein. There is some controversy as to what transpired when the first respondent came back and attempted to resume work. That, however, need not detain us, as it is not in dispute that the first respondent was not allowed to resume work on the ground that his service had been terminated. The first respondent issued the letter of approach dated 13th December, 1975, as required by the proviso to section 42 (4) of the Act, and followed it up with an application to the Labour Court under section 78 of the Act. The first respondents application was simple, in that he only alleged that his service had been discontinued illegally and arbitrarily, and prayed for a direction for reinstatement with full back-wages. The petitioner contested the application, and after setting forth its version of the fact, took up the stand that, since the first respondent had not been granted leave and as he had continuously remained away from work with effect from 26th September, 1975, and further, as he had not cared to resume work despite receipt of the Notice dated 3rd October, 1975, his name had been removed from the muster roll with effect from 1st November, 1975. This, the petitioner contended, was not a case of termination of service of the applicant but was a case of voluntary abandonment of service by the appellant.

(3.) THE Labour Court, which tried the application, dismissed the application by holding that, since the applicant had remained absent despite refusal of his leave, he had committed a misconduct and his case was not a case of abandonment at all, as contended in the written statement of the petitioner employer, but it was a clear case of misconduct on the part of the applicant, for which he had been justifiably removed from service. On appeal by the aggrieved first respondent, the Industrial Court reappreciated the entire evidence on record, and came to the finding that the petitioner had terminated the service of the applicant and that the termination of service was improper and/or illegal. When it came to the question of affording relief, however, the Industrial Court declined to grant the relief of reinstatement, since, admittedly, the factory of the petitioner had been closed down some time in or about October, 1982. On the issue of back-wages, considering the conduct of the first respondent, which had led to his loss of service, the Industrial Court took the view that 50% of the back-wages for the period from 1st November, 1975 to the date of closure of the original respondents mill would meet the ends of justice, and directed the present petitioner to pay such amount. It is this order of the Industrial Court which is impugned by the present petition.