STANDARD MOTOR UNION Vs. SHAKUNTALA P SHENE

JUDGEMENT

(1.) THE petitioner company has questioned the legality and propriety of the Award dated August 29, 1988 passed by the Second Labour Court, Thane reinstating the workman with continuity of service and full back wages from August 27, 1978. Besides the challenges by the petitioner company in its Writ Petition to the award of reinstatement with full back wages and continuity of service, the Company has filed an affidavit dated October 7, 1999 to update the facts and developments which appear to have transpired during the pendency of the present writ petition. In short what the affidavit says is that the company has finally closed its factory at Thane on account of acute financial difficulties as set out in the affidavit and that it was not possible for the company to reinstate the workman in service. It is prayed in the affidavit that these subsequent events also be considered while deciding the present petition.

(2.) THE 1st respondent (hereinafter referred to as "the workman") was employed by the petitioner from February 1, 1977 as an unskilled workman. As an unskilled workman she was not supposed to operate any machine. She however, tried to operate the machine and met with an accident on August 17, 1977 resulting in loss of three right hand fingers. She was admitted in Thane Civil Hospital till September 14, 1977 and thereafter she never reported for work. It is the case of the company that on and from September 19, 1977 the company was closed and all the workmen employed at that time were discontinued after payment of their legal dues. On November 6, 1977 the present workman also reported at the gate of the factory and collected her dues. The company restarted its activities on and from January 1, 1978 and such notice was put up on the notice board of the company and the news was circulated among the workmen that those who were interested in joining would be allowed to join. In response to the Petitioner's message which was circulated amongst its ex-workmen almost all of them had come back and joined except the present workman who did not report till January 31, 1978 when the company had engaged another workman in her place. It is the case of the company that the workman never reported for the work, though however, it received by post on August 27, 1978 three medical certificates including a fitness certificate dated August 28, 1978 and a copy of an application filed by several workmen under Section 33-C (2) of the Industrial Disputes Act, 1947 claiming certain dues from the petitioner company. Though in fact the present workman was not concerned in the said application. It appears that on December 7, 1978 the workman reported for work at the factory and by its letter dated December 8, 1978 the company informed her that she had already lost her lien on employment, and therefore, she could not be allowed to join her duties at such a late stage. Thereafter it appears that the workman has replied to the said letter that she was removed from employment from October 17, 1978 illegally. Thereafter it appears that she approached the Government Labour Officer on January 8, 1979 and on intervention by him an amount of Rs. 750/-was paid to her on February 11, 1979 in full and final settlement of her claim. In spite of receipt of the said amount the workman did not keep quiet and sent a demand letter on March 17, 1979 calling upon the petitioner company to reinstate her with full back wages and continuity of service. Consequently all other stages as prescribed in the law were followed and the industrial dispute came to be referred to by the Government to the Second Labour Court, Thane for adjudication.

(3.) BEFORE the Labour Court it was the case of the workman that she was illegally removed from employment and that no enquiry was held before her removal or termination and that there was no compliance with the provisions of Section 25-F of the Industrial Disputes Act, 1947. It was admitted by the company that no enquiry was held against the workman as she remained absent from duty for a long period and thereafter she came and collected her dues of Rs. 750/- from the factory gate and thereafter again Rs. 750/- on account of intervention by the Government Labour Officer. The company, therefore, was under the impression that the workman having settled her dispute on receipt of total sum of Rs. 1500/- there was no occasion to hold any enquiry against her. The petitioner company however adduced oral evidence before the Labour Court to justify its action. It was further proved by the company that meanwhile the workman had another dispute with her former other employer Franco (India) Ltd. And by an award dated November 29, 1978 got reinstatement in that company and finally she settled the said dispute on monetary basis on March 14,1989. It was therefore submitted by the learned Counsel Ms. Meena Doshi for the petitioner company that the workman was in the habit of raising such disputes and earning out of them. She argued that the workman was claiming reinstatement from two employers which was not possible. It was further urged that there was no violation of Section 25-F of the Industrial Disputes Act, 1947 and that the petitioner company has fully justified its action by adducing oral evidence before the Labour Court. She pointed out that the workman was employed for hardly six months and thereafter she remained absent from duty may be initially for the reason of accident but even thereafter she never cared to come back to the factory. No application for leave was sent though a bunch of medical certificates was sent by post. Ms. Doshi further argued that if the workman could go for treatment to the Civil Hospital Thane and K. E. M. Hospital at Parel as an out patient she could have very well reported to the company with a request to grant her leave etc. Ms. Doshi, therefore, submitted that the workman was not contesting her claim for bona fide industrial dispute but she was only trying to make money out of industrial adjudication. Ms. Doshi submitted that the petitioner company had waited for the workman till January 31, 1978 when another workman was employed in her place. She finally added that there was no question of granting reinstatement as now the company is finally closed.