KRISHNA PARSHURAM TALASHILKAR Vs. KRISHNARAO DODHUNADH KHARE

JUDGEMENT

(1.) BY this writ petition under Article 226 of the Constitution of India, the petitioner -workman challenges an order dated 11th March, 1985 (Exh.F to the petition) made by the Deputy Commissioner of Labour (Conciliation), Bombay District, Bombay, refusing to refer an industrial dispute with regard to the demand of the petitioner for his reinstatement with continuity of service and back wages.

(2.) THE impugned order reads as under. 'No. CL/IDE/AJD/2A/K -865(84)By.II A, Office of the Commissioner of Labour, Commerce Centre, Tardeo, Bombay -34. In exercise of the powers conferred on me by Government vide Government Notification, Industries, Energy and Labour Deptt. No. IDA 1379/3496(i) Lab -9, dated 20th April, 1979 issued in supersession of Government Notification, Industries, Energy and Labour Department No. IDA 1369/117365/Lab -2, dated 9th April, 1969, I have to state that I have considered the report dated 28 -11 -1984 submitted to me by the Conciliation Officer, under Sub -section (4) of Section 12 of the Industrial Disputes Act, 1947 (XIV of 1947), in respect of the above dispute and I am satisfied that there is no case for reference thereof under subsection (5) of Section 12 for the reasons that the workman has accepted all his legal dues including gratuity and retrenchment compensation without any protest and he has also since been gainfully employed in M/s. Raj Printers at Wadala, Bombay on the same wages which he was last drawing in the instant press at the instance of the Management of the instant Press and (2) that in the circumstances, it would not be expedient to grant the reference as it would be frivolous to do so.

(3.) I am not able to persuade myself to agree with the submissions made by Mr. Nerlekar and Mr. Gokhale for the simple reason that, in my opinion, the reasons given by the first respondent to refuse a reference are not only inadequate but also not ac not mean that his services were legally terminated and that he would not be entitled to 'reinstatement. Acceptance of legal dues and terminal benefits cannot be a bar for the workman to raise a demand for his reinstatement with continuity of service and back wages if he is able to prove that his services were illegally terminated. It is further true that the petitioner -workman, when the impugned order was passed by the first respondent, was gainfully employed with M/s. Raj Printers at Wadala but it has been now pointed out by Mr. Saiyed that that was only for a limited period of about 8 to 9 months. If ultimately the petitioner -workman succeeds in the reference and if he is granted the relief of reinstatement ordinarily he would be entitled also to full back wages and when that is done whatever money that the workman had earned during his forced unemployment with the second respondent could be legitimately deducted. Therefore, it would not be a proper solution to the problem that at the initial stage itself the claim of the petitioner -workman should be closed and no reference should be made in his demand for reinstatement with continuity of service and full back wages. It is in this way that the impugned order passed by the first respondent suffers from errors apparent on the face of the record.