LACHHIRAM CHUDIWALA Vs. BEGARAM SAINI

JUDGEMENT

(1.) THIS petition filed by the employer assails the final award passed by the First Labour Court, Mumbai in Reference (IDA) No.1159 of 1988 on 8 -12 -1995.

(2.) THE facts leading to this petition could be shortly described as under. The respondent -employee was employed as a driver by the petitioner from July 1986 on a monthly salary of Rs.800/ -and he was one of the 3 to 5 drivers. He was staying at the employer's house. Thus, in addition to his salary, he was also getting a facility of lodging and boarding. As per the employee he objected the employer on 29 -8 -1987 and requested him for regular duty hours, over time wages and duty card etc. mentioning the hours of work, weekly holidays and over time wages, if any. The employer purportedly got annoyed and he was not allowed to report for duty from that day onwards. He immediately approached the Bombay Gumasta Union which, in turn, put up his cause with the employer. He raised a demand for reinstatement on or about 25 -11 -1987 before the Conciliation Officer. On notice, the employer appeared before the Conciliation Officer and stated that the workman was not removed from service and on the contrary he himself had stopped reporting for duty. The employer offered for reinstatement immediately and it is claimed that the employee put condition of backwages for reporting for duty. The Conciliation Officer submitted his failure report and, therefore, the demand was referred for adjudication by an order dated 23 -12 -1988 under the Industrial Disputes Act, 1947. Before the Labour Court the employee filed his statement of claim and reiterated that he was illegally terminated from service and the said termination was without any show cause notice, nor was there any enquiry held against him, no retrenchment compensation was paid to him and, therefore, the termination of his service is illegal, inoperative and void in law. The employer filed its written statement and reiterated that there was no termination of service and on the other hand the employee himself remained absent. It was also contended that on receiving representation from the Bombay Gumasta Union the employer immediately replied and intimated the employee to report for duty immediately. Similarly, offer was also made by letter dated 23 -4 -1988 and also before the Conciliation Officer but the workman put the condition of backwages and did not report for duty. Both the parties had placed on record some documents, in support of his claim the employee stepped into the witness box and on behalf of the employer, the proprietor Tolaram Chudiwalla was examined. The Labour Court considered the rival contentions, the oral and documentary evidence and held that the employee was illegally terminated from service. However, before the final award was passed, the employer had submitted an application at Exh.C -9 on 13/3/1995 and prayed for directions to the employee to report for duty without prejudice to the rights of the respective parties. On 8/6/1995 the Labour Court directed other party to file say. Interim award came to be passed on 14/7/1995 directing the employee to report for work from 17/7/1995 and accordingly he reported to the duty. In the final award, the employer was directed to reinstate the workman with 75% of the backwages with continuity of service with effect from 29/8/1987.

(3.) HOWEVER , Mr. Purav, the learned counsel for the petitioner -employer, has confined his arguments only to the point of backwages and more so because the Part - I award had already reinstated the employee. It was contended by Mr. Purav that in view of the consistent offer to report for duty made by the employer, there was no case for granting any backwages and more so when the Labour Court itself has recorded a finding that the offer made by the employer for reinstatement was not accepted by the employee because he wanted the backwages also to be paid. Under the circumstances the only issue that falls for consideration is, whether the employee is entitled for 75% of the backwages.