R.K.KITCHEN EQUIPMENTS Vs. MAJID YUSUF HURAPE

JUDGEMENT

(1.) Heard the Advocate for the petitioners. None present for the respondent though served. Perused the records. The petitioner challenges the judgment and order dated 5-10-1999 passed by the Labour Court in Reference (IDA) No. 700 of 1997. At the time of admission of the petition, the challenge was restricted to the demand pertaining to grant of back wages and, therefore, the matter is being heard only in relation to the grant of back wages. Admittedly the respondent has joined the service pursuant to the impugned award and continuous to be in service of the petitioner.

(2.) While assailing the impugned award in relation to the grant of back wages it was sought to be contended by the learned Advocate for the petitioner that the materials on record clearly disclose that the respondent was time and again asked to join the duties. However, without any genuine cause, the respondent refused to report to the duty till the award was passed and, therefore, there was no justification for grant of 50% of the back wages to the respondent as is ordered to be paid by the Labour Court. Drawing attention to the correspondence whereby the petitioner had time and again communicated to the respondent their willingness to allow the respondent to report on duty, it is argued that the respondent wilfully failed to take advantage of the said opportunity and without any justifiable cause remained absent and, therefore, there cannot be any justifiable ground for grant of back wages to the respondent. He has also drawn attention to the evidence on record which discloses that even the conciliation officer had directed the respondent to join the duty from 7-4-1997 in view of the letter dated 4-4-1997 by the petitioner to the conciliation officer and that the respondent had failed to comply with the said directions without any justification.

(3.) A perusal of the record discloses that the petitioner had time and again advised the respondent to report to the work with the warning that in case of failure on the part of the respondent to report to the duty, they will be compelled to take disciplinary action against him. The record further discloses that the respondent did not report to the work on the ground that the petitioners were not prepared to pay the back wages to the respondent and that the respondent was insisting for the payment of such back wages as a condition precedent for reporting to the work. As rightly submitted by the learned Advocate for the petitioner, materials on record further disclose that pursuant to the letter dated 4-4-1997 by the petitioner to the Conciliation Officer, the respondent was advised by the Conciliation Officer to report to work. However, the respondent failed to report to the work. In spite the same, the Labour Court by the impugned award directed payment of 50% of back wages stated to be in the interest of justice. Apparently, the Labour Court has not considered the fact of the failure on the part of the respondent to report to duty was without any justifiable cause. As rightly submitted by the learned Advocate for the petitioner, in the circumstances payment of back wages could not have been made a condition precedent by the respondent for reporting to the duties when the petitioner had allowed him to join to his duties. In case there were any arrears to be paid, certainly the respondent could have taken appropriate action in that regard through the Court of law but that did not have a justifiable ground to refuse to attend to the duty more particularly when the petitioners were prepared to allow him to join the duty. In that regard the learned Advocate for the petitioner is also justified in placing reliance on the decision of the learned Single Judge of this Court, as he was then, in the matter of Kala Silk Factory Vs. Phankoo Bakas Yadav and others, 1991 (2) CLR 888 = 1992 LLR 107 (Bom HC) and Voltas Ltd. Vs. K.D. Kochargaonkar and another, 1996 (72) FLR 810 . In Kala Silk Factory's case, it was clearly observed that-