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National Engineering Employees' Union Vs. Kulkarni (R.N.) and Anr. (11.03.1968 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appeal No. 1732 of 1965
Judge
Reported in(1968)IILLJ82Bom
AppellantNational Engineering Employees' Union
RespondentKulkarni (R.N.) and Anr.
Excerpt:
- .....the matter to the labour court. it appears that during the course of evidence, the learned labour judge made an order on 6 april, 1965, directing the company and the union to submit their arguments on a preliminary point raised by the learned judge. this point was raised by the learned labour judge because of some correspondence which was produced before him which appeared to him to suggest that the worker had exercised his option given to him by the order, ex. c, the question to be argued being whether under the circumstances the order can be regarded as a discharge simpliciter. this point was argued and the learned judge held that the order in fact amounted to an order of demotion, and not an order of discharge through it was obvious from the correspondence that in fact the.....
Judgment:

Per Patel, J.

1. One Sample was in the employment of respondent 2 company which is a private limited company. On 28 February, 1961, the management made an order in the first instance terminating his services on and from that date as the charge-hand, but having regard to his prior career, gave him an option of serving as a mechanic in the garage department at the same salary that he was getting on that date. The option had to be exercised by Sample by 9 March, 1961. The union took this matter up and raised a dispute and eventually on 24 April, 1962, the State Government referred the matter to the labour court. It appears that during the course of evidence, the learned labour judge made an order on 6 April, 1965, directing the company and the union to submit their arguments on a preliminary point raised by the learned judge. This point was raised by the learned labour judge because of some correspondence which was produced before him which appeared to him to suggest that the worker had exercised his option given to him by the order, Ex. C, the question to be argued being whether under the circumstances the order can be regarded as a discharge simpliciter. This point was argued and the learned judge held that the order in fact amounted to an order of demotion, and not an order of discharge through it was obvious from the correspondence that in fact the worker did not resume his duties in the department where he was offered employment and was not in service then. Apparently, though it is called an order, this second order is really a finding and he directed that further inquiry should continue on the question whether the order Ex. C was made mala fide.

2. It is contended, by Sri Bhatkal that the order obviously is not an order of demotion as found by the learned judge and his finding is erroneous. On behalf of the respondent, Sri Vimadalal raised two technical points :

(1) that there was inordinate delay in coming to this Court, and

(2) that the petition was premature.

3. It is difficult to reconcile both these grounds. Now, it is true that the finding was made by the learned judge on 7 June, 1965 and the petition is filed on 1 October, 1965, and four months have gone by before the petition is filed in this Court. Undoubtedly, there is delay in coming to the Court on the finding made by the learned judge. On the other hand, after making that finding no further action was taken in the matter. In any event, now the matter is before the Court and as we are of the view that the order is not justified, we do not see why we should not set aside that order.

4. Sri Vimadalal then half-heartedly tried to support the order of the learned judge. The order at Ex. C in the first instance reads as an order of termination of service with effect from 28 February, 1965. No doubt it contains an option that if the workman so desired, he could be reappointed as a mechanic in the garage department, provided the option was exercised on or before 9 March, 1961. If the option in fact had been exercised by the workman and had become effective, it would have been possible to argue that from practical points of view, it amounted to an order of demotion. It is, however, clear on the record that the workman did not report for accepting that appointment on or before 9 March. He sent a certificate of a medical practitioner that he was ailing and would be unfit to perform his duties until 16 March. On 16 March he went to the factory to resume his duties, and the contention of the union was that he was not allowed to work by Sri Ghaswala and he asked him to go out. At one time the union itself thought that the order was one of demotion. It may be so, but still the actual effect of the order is that his services have been ended either because he did not avail of the option or because he went after the appointed date and time and was not allowed to avail of the option. It is impossible, therefore, to contend that in spite of the fact that the option did not fructify, the order still was one of demotion. We, therefore, set aside the order made by the learned labour judge and direct that the matter will be heard on merits by the learned judge and he will make appropriate orders in accordance with his finding on merits. The petitioner to get his costs from respondent 2.

5. Though labour courts are constituted for early disposal of labour disputes, it is rather a surprise that a matter referred to labour court in 1962 should have taken so many years. It is unfortunate that the learned judge's interlocutory finding should have added further to the delay. In view of this inordinate delay, we direct the learned judge to hear the matter day to day and dispose of the case as early as it is possible to do. Sri Vimadalal has brought it to our notice that delay is in great measure due to the application for adjournments on behalf of the legal advisor. Assuming this is a fact, we hardly see any reason for adjourning the matter in this manner. After all it is in the interests of employee and employer to see that such disputes are ended as early as possible. We can imagine the loss caused to either party by delay. Representation by a legal practitioner or otherwise and the right of hearing does not mean a right of being heard at leisure and according to convenience of parties. The Courts must see that these matters are heard and disposed of early in the general interest of the public.


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