BHARGAV KERU TAMONDKAR Vs. JAM MANUFACTURING MILLS UC

JUDGEMENT

(1.) THIS petition under Article 226/227 of the Constitution of India has been filed with a prayer for issuance of writ of certiorari or any other appropriate writ, order or direction for quashing and setting aside the impugned judgement and order dated 29th July, 1986 passed by the Industrial Court, Bombay.

(2.) THE petitioner states that initially he was employed with the respondent No. 2, the Jam Manufacturing Co. Ltd. , Bombay. The management of the respondent No. 2 has been taken over by the National Textile Corporation Ltd. (South Maharashtra), the respondent No. 3. The respondent No. 1 Jam Manufacturing Mills (UC) Bombay is said to have been under the control and management of the respondent No. 3 with effect from 18th October, 1983. The Presiding Officer of the Labour Court is impleaded as a respondent No. 4, whereas the member of the Industrial Court, Maharashtra, at Bombay, constituted under the B. I. R. Act, 1946, is impleaded as a respondent No. 5.

(3.) IT is stated that the petitioner was in employment of the second respondent from 1974 in the Weaving General Department. He was working as a carpenter. He has been continuously working from 1974. Thus, he claims that he is deemed to be a permanent employee. However, he was illegally labelled as badli employee. Since, the petitioner was not working against the place of any permanent operative, it was misnomer to call him as a badli employee. Thus, he described himself as a permanent employee of the second respondent. The petitioner claims that on 27th June, 1981 he sustained employment injury while on the duty. He was, therefore, sanctioned medical leave from 28th June, 1981. An accident report was duly filled and sent by the petitioner. The leave was sanctioned under the E. S. I. Scheme. He was under the treatment of the panel doctor under the E. S. I. Act. After recovery from the injury, he reported for duty on 9th July, 1981 in the second shift. He presented himself before the Labour Officer one Shri. Tawde on 9th July, 1981 along with a medical fitness certificate. Tawde told the petitioner that he would not be allowed to resume his duties and his services stood terminated. The petitioner, therefore, requested Tawde for the order in writing, which was not given. Tawde also refused to see the medical certificate or to hear anything from the petitioner. Thus, the petitioner left the place, but again reported for work on 10th July, 1981. Again Tawde did not allow him to join the duty. The request for joining the duty was repeated by the petitioner on which Tawde told him that he would be given a fresh badli card. Since the petitioner was not at any fault, there was no question of issuing a fresh badli card. To accept a fresh badli card would mean that the petitioner will become the Junior most badli employee. This would mean that he would lose the benefit of service from 1974 until 1981. The petitioner, however, continued to report for work till 14th July, 1981, but he was not allowed to join the duty. Admittedly, no charge-sheet was given to the petitioner before 9th July, 1981. The petitioner sent a letter dated 20th July, 1981 stating therein that he had proceeded on sanctioned medical leave as he sustained employment injury on 27th June, 1981. He reported for duty on 9th July, 1981. He met Tawde, who told him that his services have been terminated. He requested Tawde to give an order in writing. On 10th July, 1981, Tawde informed the petitioner that he can join as a fresh badli worker. He refused to join as a fresh badli worker as he was not at fault. He reiterates that he was on sick leave on account of the injury suffered by him, for which a medical certificate has been issued by a panel doctor of the E. S. I. Therefore, it is stated that the action of Tawde is illegal, improper, unjust and mala fide. He states that he is entitled to continue as a permanent employee and entitled to get full back wages. He, therefore, demands to be reinstated with full back wages and continuity of service with effect from 1981 failing which he shall be constrained to proceed further in the matter. This letter was received by the second respondent on 21st July, 1981. The second respondent sent a printed post-card dated 21st July, 1981 to the petitioner, which was actually posted on 22nd July, 1981. In this it was alleged that the petitioner was absent since 9th July, 1981 without any intimation to the company and without taking leave. This letter further states that the Manager of the Mill will hold an enquiry in his office on 5th August, 1981 at 2. 30 p. m. He was directed to remain present before the Enquiry Officer and submit his explanation. The petitioner was also informed that if he fails to remain present for the enquiry, the same will be proceeded with in his absence and that the decision taken will be binding upon. After receipt of the post-card, the petitioner addressed another letter dated 3rd August, 1981 to the Manager of the second respondent narrating the whole story. The petitioner further requested the Manager to allow him to be defended by a union representative. It was also requested that enquiry should be conducted in Marathi. The petitioner also requested for the names of the witnesses to be examined on behalf of the company. At the end of the letter, it is again stated that the petitioner has not committed any fault whatsoever. Demand for reinstatement is again made. It is further stated "you are likely to guess also that there is somebodys revengeful attitude and ill-will in treating me in such manner. " This letter was carried by the petitioner by way of his written explanation given to the Manager on 5th August, 1981. The petitioner handed over the aforesaid letter to the Enquiry Officer and requested the Manager, who had been appointed as Enquiry Officer to give acknowledgement on the said letter. The Enquiry Officer refused to acknowledge the receipt of the letter. Thereafter the Manager simply told the petitioner to give an apology. The petitioner, however, stated that since he has not committed any misconduct, there was no question of giving any apology. The Manager was insisting on apology, otherwise the petitioner will not be kept in service. Thereafter the petitioner was told to leave the premises. The petitioner further submits that in his presence no evidence of any nature was recorded and he was only asked to give apology and thereafter he was directed to leave. Since the letter dated 3rd August, 1981 was not accepted, the petitioner sent the same by Regd. A. D. also. Thereafter the petitioner again sent a letter dated 19th August, 1981 requesting the second respondent to reinstate. There was no reply to this letter. Thereafter the petitioner filed an application before the Labour Court praying for reinstatement with full back wages and continuity of service under section 79 read with section 78 and 42 (4) of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the Act ). In the application the facts narrated above have been reiterated. The written statement to this application was filed by the respondent company. In this written statement, it was stated that the application was not maintainable. The petitioners name was discontinued from Badli Register with effect from 6th August, 1981. The petitioner had not approached the respondent as required under section 42 (4) of the Act, before filing the application which was a condition precedent. It is admitted that the petitioner was employed in the company as a badli since 9th June, 1975. It was denied that the petitioner was a permanent employee. It is also denied that the petitioner had a good record of service. It is further stated that the petitioner had applied for leave from 28th June, 1981 till 7th July, 1981, which was sanctioned. The injury sustained by the petitioner on 27th June, 1981 is admitted. The accident report having been filed is also admitted. It is further stated that the petitioner was supposed to resume duty on 8th July, 1981. However, he reported for work on 9th July, 1981 along with the medical certificate, issued to him by E. S. I. panel doctor. Thereafter it is stated that "the Opponent further submits that after submitting the fitness certificate instead of reporting for work he went away. " The other allegations made by the petitioner are denied. It is stated that the petitioner was not told that he will not be allowed to resume on duty or that his services have been terminated. It is reiterated that "the applicant presented himself on 9-7-81 with a fitness medical certificate but he went away without resuming duties. " Thereafter it is the claim of the respondent that the applicant did not turn up to join duty. The allegations made against Tawde are all stated to be baseless and false. It is also denied that the Labour Officer told the petitioner that he would be given a fresh badli card. It is stated that the allegations have been made only in order to cover up his absence from 9th July, 1981. His services were not terminated on that date. Therefore, the question of issuing a charge-sheet before 9th July, 1981 did not arise. Receipt of the letter dated 20th July, 1981 is admitted. This letter is stated to be premature as on that day the applicant was still in service. Therefore, he was informed by letter dated 21st July, 1981 that he is absent from 9th July, 1981 without any prior intimation or without any leave and as such an enquiry into his absence will be hold on 5th August, 1981 in the office of the Mill Manager. Inspite of above notice, the petitioner remained absent on 5th August, 1981. The receipt of the written explanation dated 3rd August, 1981 is also denied. In view of the fact that the petitioner did not attend the enquiry, his name was removed from the Register of badli workers with effect from 6th August, 1981. This fact was conveyed to the petitioner by the Companys letter dated 15th September, 1981. The receipt of the letter dated 19th August, 1981 is admitted. It is, however, stated that what is stated in the said letter is absolutely false. In view of his absence, the enquiry was held ex-parte. As a result of the enquiry, the applicant was removed from the Badli Register. It is further case of the respondent that the petitioner had been engaged as a badli and therefore, cannot claim right of employment. A badli is employed only when work is available for him whenever any permanent workmen or probationer is away from duty due to leave or absence. Thus, the prayer for reinstatement with full back wages and continuity of service is baseless. Thus, it was stated that even if the applicant succeeded he will not be entitled for back wages and continuity of service. It is further the case of the respondents that the petitioner was absent for duty from 9th July, 1981. Therefore, the Standing Order 11 is applicable to the case, which states that an operative who remains absent beyond the period of leave originally granted or subsequently extended shall lose his lien of his employment unless he returns within 8 days of the expiry and give satisfactory explanation to the authority of his inability to return before the expiry of leave. The Standing Order also mentions that in case the operative loses his lien, he is entitled to be kept on badli list. It is, however, also open to the company to take action for misconduct of absence as provided under the Standing Order 22 instead of taking recourse to Standing Order 11.