“The Bombay High Court affirmed the Labour Court’s ruling, upholding the reinstatement of an absent employee with back wages and compensation.”
Case Title: Bhushan Industries v. Lohasingh Ramavadh Yadav
Case No.: WRIT PETITION NO. 1025 OF 2024
Date: March 20, 2024
Quorum: Justice Sandeep V. Marne
FACTS OF THE CASE:
With this petition, the employer-petitioner contests the contested award that the First Labour Court of Mumbai’s Presiding Officer issued on October 4, 2022. The petitioner company is a partnership that manufactures hairpins. At the position of Painter, Respondent began working for Petitioner in April 1999.
According to the respondent’s case, on April 8, 2013, he asked Mr. Nileshwar Bhushan, a partner in the petitioner firm, for a loan of Rs. 2,000 so that he could pay for Dr. the spouse turned down the loan request. that starting on April 9, 2013, the petitioner’s partner prevented him from joining the services and that he was not given his wage for the months of March and April. This is how his services were terminated on April 9, 2013, as stated by the respondent.
In the respondent’s case, on April 8, 2013, he requested a loan of Rs. 2,000 from Mr. Nileshwar Bhushan, a partner in the petitioner firm, in order to pay for Dr. that the petitioner’s partner stopped him from accessing the services on April 9, 2013, and that he didn’t receive his pay for the months of March and April. According to what the respondent said, this is how his services were ended on April 9, 2013.
On April 13, 2013, the Respondent wrote the Petitioner to ask for permission to return to work. But on April 13, 2013, the Petitioner’s partner replied to the Respondent, accusing the latter of failing to report for duty. After exchanging letters, the Respondent filed a Statement of Justification on 18 July and complained to the Deputy Labour Commissioner.
In the end, the matter came before the Labour Court due to a referral on the petitioner’s termination made by the relevant government. The Labour Court has responded to the reference in the affirmative, ordering the petitioner to bring the respondent back into work with continuity and full back pay as of April 9, 2013.
CONTENTIONS OF THE PETITIONER:
The Labour Court erred in ordering Respondent’s reinstatement without taking into account the fact that Respondent had no interest in cooperating with the Petitioner, according to the learned counsel representing the Petitioner.
The respondent was made multiple offers to join the tasks, but the respondent declined. that the petitioner had no reason to kill the respondent because he had stopped providing services. He often missed more than 90 days of work each year, so in any event, he was never able to accrue 240 days of service.
Furthermore, it was argued that since the Petitioner establishment has been closed since March 20, 2020, the issue of the Respondent’s reinstatement is resolved. that the argument of establishment closure was wrongly dismissed by the Labour Court. that the petitioner’s elderly partners are unable to manage the company.
Mr. Shukla would also want to add that the evidence in the record, which shows the Respondent acknowledged being an employee and performing painterly duties, runs counter to the order for back wages to be paid. that from September 2013 until December 2018, he unreasonably neglected to put himself forward for employment.
The petitioner would like to draw my attention to the Complaint (ULP) No. 10 of 2021, which is a challenge to the closure order filed by additional Petitioner-establishment employees. He would contend that the petitioner paid in a total of Rs. 5,91,000 towards the final settlement for the remaining employees, which included amounts paid for ex-gratia, notice pay, closure compensation, and bonuses.
That the complaint has been dropped, and all other employees have accepted the money that was given to them. hem. Thus, it is hardly in doubt that the respondent will not be reinstated or receive any financial compensation. He would offer his prayers for the petition to be dismissed.
CONTENTIONS OF THE RESPONDENT:
The learned counsel for the Respondent would argue against the Petition and in favour of the Labour Court’s Award. She would argue that there is a delay and laches in the petition. that the Petition was only submitted in order to enforce the Award following the issuance of the recovery certificate. If not, the Petitioner did not contest the Award for around a year. She would argue that the petition should be denied due to its delay.
Additionally, the counsel for respondent would like to state that Petitioner was denied permission to resume his duty despite Respondent’s numerous attempts to join him. She would go over the incidents that the Labour Court had documented in Paragraph 3 of the Order with me. In order to prove that the petitioner purposefully continued to correspond falsely with the respondent and did not genuinely allow him to resume his duties, she would also rely on the compilation of documents to indicate the varied correspondence that the parties exchanged.
Respondent’s attorney would argue that since the termination of the respondent was based on wrongdoing, an investigation was required. She would argue that, even in the absence of such circumstances, desertion of service is a factual matter that can only be established by investigation.
It was also argued that termination without holding an investigation was not permissible, even in the event that it turned out that the respondent had not served the full 240 days of service. She would argue that the Labour Court’s rulings are not perverse. that the respondent’s closure defence is untrue because there isn’t a closure notice in this particular situation. Without causing harm, she would argue that, even in the event that closure is determined, the Labour Court’s relief can still be enhanced by ordering the payment of back wages up until the day of closure in addition to closure compensation and a gratuity. She would offer prayers for the petition to be dismissed.
COURT’S ANALYSIS AND JUDGMENT:
The court determined that the Respondent’s refusal to report for duty is difficult to uphold. Actually, it seems from the petitioner’s varied correspondence with the respondent that the main intention behind them was to create the impression that the petitioner was prepared to extend an employment offer to the respondent.
As to the court’s ruling, the petitioner had no intention of joining the respondent’s tasks. The Labour Court concluded that the Respondent never declined to accept tasks when they were truly offered after taking into account all of the correspondence that is on file as well as the testimony provided by the parties. I see no justification for meddling with the aforementioned finding of facts that the Labour Court has documented.
The Respondent’s claim of job desertion has been accepted by the Petitioner. This Court has held over and again that the question of abandonment of service is one of fact, which requires investigation to be established.
The court decided that at the very least, the Respondent should have received a show-cause notice if the Petitioner was actually correct in believing that he had abandoned the service. Petitioner did not accuse Respondent until after he brought up the topic of termination.
The court held that since the parties were in communication with one another, the petitioner had the opportunity to undertake a domestic investigation by charging the respondent with evading their obligations. This is not a situation where Petitioner was unaware of Respondent’s whereabouts. Therefore, given the specific facts and circumstances of this case, it was possible to undertake a domestic inquiry. The court is of the opinion that, given the facts and circumstances of this case, the plea of abandoning of employment cannot be accepted.
The court observed that the matter at hand concerns the type of relief that can be awarded to the Respondent after it was determined that the termination of the Respondent, which took effect on April 9, 2013, was deemed invalid and that the establishment will close on March 20, 2020. It is hardly in doubt that Respondent will be reinstated because the establishment has closed.
The amount that the petitioner would be entitled to in terms of gratuity, one month’s notice pays, and retrenchment compensation has been recorded by Mr. Shukla, without affecting the petitioner’s rights. The retrenchment compensation for the period from April 1999 to the closing date of March 20, 2020, will be Rs. 1,03,950, according to that announcement.
The petitioner’s attorney has gone over some of the responses made by the respondent during his cross-examination, in which he acknowledged that he occasionally worked as a painter and that he travelled back to his home country for work.
The respondent’s attorney didn’t take long to clarify that working occasionally as a painter did not equate to gainful employment. Despite the fact that the petitioner was unable to demonstrate that Respondent was employed in a continuous, profitable manner, it seems that he did receive compensation for his painting abilities.
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Judgment reviewed by Riddhi S Bhora.
