MANECK GOPAL DIVEKAR Vs. PHOENIX MILLS LIMITED

JUDGEMENT

(1.) Quite an interesting and important question of law that is canvassed in this Writ Petition under Article 226 of the Constitution of India is the interpretation of the term 'reinstatement' in labour jurisprudence.

(2.) The petitioner joined the services of the first respondent in the year 1945. He was confirmed as a jobber in the drawing department in the year 1956. The mills had to be closed down on and from 21st September, 1977 on account of a fire therein. However, the drawing department was restarted on and from 13th October, 1977. Before the working was restarted, there was a settlement between the management of the first respondent and the Rashtriya Mills Mazdoor Sangh, a representative union. Under the said settlement, it was inter alia agreed to retrench three jobbers out of nine who were in the employment prior to the date of the fire. It was further agreed that as and when the working of the sections would restart, the persons employed in those sections would be re-employed. It was alleged by the petitioner that his seniority was ignored and he was not re-employed in preference to four other jobbers. He, therefore, filed an unfair labour practice complaint, being Complaint (ULP) No. 96 of 1976, in the Industrial Court, Bombay, praying inter alia for a declaration that the first respondent committed an unfair labour practice and a direction be issued to re-employ him. The said complaint was withdrawn on 27th November, 1978 because there was a strike in the mills and the first respondent agreed to provide work to the petitioner after the strike was withdrawn. However, even after the strike was withdrawn he was not allowed to resume work and, therefore, he filed another complaint of unfair labour practice being Complaint (ULP) No. 187 of 1979. That complaint was allowed by the learned Member of the Industrial Court by his order dated 27th June, 1980. The operative part of his order is as under:-

(3.) According to the petitioner, in spite of the above order of the Industrial Court, he was not reinstated till 11th September, 1980 and was also not paid wages and other is consequential benefits for the intervening period from 13th October, 1977 to 10th September, 1980. He, therefore, filed Application (IDA) No. 1454 of 1980, under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "an Act"), in the 8th Labour Court Bombay, presided over by the second respondents, claiming full back wages and other consequential benefits for the period from 13th October, 1977 to 10th September, 1980 on the basis of the order passed by the Industrial Court in Complaint (ULP) No. 187 of 1979. The second respondent, on hearing the parties, held that the petitioner was already paid full back wages for the period from 11th July, 1980 till 10th September, 1980 and therefore, he was entitled to full back wages for a limited period of 14 days from 27th June, 1980 to 10th July, 1980 because it was during that period that he was not reinstated by the first respondent in pursuance of the order of the Industrial Court. He thus granted full back wages to the petitioner for 14 days amounting to Rs. 436.80 ps. and rounded it up at Rs. 450/-. He held that the petitioner was not entitled to full back wages from 13th October, 1977 till the date of the order of the Industrial Court on 27th June, 1980 because there was no direction by the Industrial Court to pay him full back wages for that period. The second respondent further held that there was thus no existing right in favour of the petitioner flowing from the order of the Industrial Court which entitled him to claim full back wages in a proceeding under Section 33C(2) of the Act which is in the nature of execution proceeding. He accordingly passed an order dated 28th March, 1983 which has been impugned by the petitioner in this petition to the extent of denying to him full back wages from 13th October, 1977 to 27th June, 1980.