EXTRUSION PROCESSES LTD Vs. RAJENDRA A SAV

JUDGEMENT

(1.) THE petitions under Article 226 of the Constitution are before the Court, the first by the employer and the second by the workman. In a reference under section 10 of Industrial Disputes Act, 1947, the Labour Court awarded the relief of reinstatement with continuity of service and half the back wages from 11th April, 1997 to 16th August, 1999. This relief has been granted as a consequence to a declaration that the employer illegally terminated the services of the workman on and from 11th April, 1997. According to the employer, there was, as a matter of fact, never any termination of the services of the workman and that in the course of conciliation proceedings as well as before the Labour Court, the consistent stand was that the contract of employment continued to exist; the workman was absenting himself from duties unauthorisedly and that the workman may be directed to resume duties. Hence, the employer challenges the order of the Labour Court in so far as and only to the extent that it grants 50% of the back wages. On an interim direction passed by the Labour Court on 16th August, 1999, the workman reported for work and resumed duties and hence, consistent with its position that there was in fact, no termination, the employer has not challenged the direction for reinstatement. The workman challenges in the companion petition, the denial by the Labour Court of half the back wages.

(2.) THE workman in these proceedings was in the employment of the employer in the painting Department. An industrial dispute was raised by the workman claiming that on and from 11th April, 1997 when he sought to resume duties after a brief illness, he was not allowed to resume duties. According to the workman, he claimed reinstatement on 15th July, 1997 and thereupon addressed a letter dated 1st August, 1997 requesting the Deputy commissioner of Labour to intervene in the matter. The employer disputes receipt of the letter of 15th July, 1997. Before the Deputy Commissioner of labour, in the course of the conciliation proceedings, the employer addressed a communication dated 11th December, 1997 denying that there was any termination of the services of the workman. According to the employer, the workman was habituated to absence and had worked only for 221 days in 1995 and 180 days in 1996. During the year 1997, it was stated, the workman worked for only 5 days in the month of January, 8 days in the month of february and 14 days in the month of March and that after 29th March, 1997, he had not resumed duties and was continuously remaining absent. The employer specifically, however, stated that the workman though absent, continued to be in employment. The employer stated that the services of the workman had not been terminated and that while he continued to be in employment, it reserved its right to adopt disciplinary proceedings against him as and when he resumed duties. Thereafter, by a letter dated 31st December 1997, the employer reiterated that the services of the workman had not been terminated and stated that the name of the workman was borne on the muster rolls. A copy of the muster roll from April 1997 until date was produced in support of the plea that the workman had only been marked absent. Subsequently, by another communication dated 23rd January 1998, the employer placed a request on the record of the Deputy Commissioner of Labour to the effect that the workman may be directed to report on duty subject to the right of the management to take disciplinary action against him for habitual absentism. In fact, according to the employer, there was no industrial dispute and the workman may be called upon to join duty.

(3.) THE conciliation proceedings ended in a failure report whereupon a reference under section 10 was sought before and made by the appropriate government to the Labour Court. The contention of the workman was that his services had been terminated in violation of law and that he was entitled to reinstatement with full back wages. In its written statement, the employer stated that the services of the workman had not been terminated at any stage and that while the workman was absent from duty with effect from 29th march, 1997, he continued in service. The company relied upon an extract from its muster roll and from the wage sheet for period from April 1997 to may 1999 which included the mane of the workman, but showed that he had remained absent from service.