Case Note & Summary
The petitioner, Chandrakant D. Teravkar, was employed as a peon with the North Kanara GSB Co-op. Bank Ltd. (respondent no.1). He was charge-sheeted on 5.3.1994 for absenteeism and, after an enquiry under the standing orders, was dismissed from service on 31.12.1993. The petitioner made an application under Section 42(4) proviso read with Rule 53 of the Bombay Industrial Relations Act and Rules. Thereafter, he filed an application under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 on 18.10.1994. The Labour Court, by order dated 7.12.2001, allowed the application and ordered reinstatement with continuity of service and 50% backwages from 1.4.1994 till reinstatement. The respondent bank challenged this order before the Industrial Court in Appeal No. 2 of 2002. The Industrial Court allowed the appeal, set aside the Labour Court's order, and remanded the matter to the Labour Court to consider whether the employer's application under Section 42(4) proviso had been properly made. The petitioner then filed a writ petition under Article 227 of the Constitution challenging the Industrial Court's order dated 21.2.2003. The High Court held that the Labour Court had not considered the employer's application under Section 42(4) proviso, which was a statutory requirement. The Industrial Court was correct in remanding the matter for fresh consideration. The High Court dismissed the petition, upholding the Industrial Court's order.
Headnote
A) Industrial Law - Dismissal for Absenteeism - Section 42(4) proviso, Bombay Industrial Relations Act, 1946 - Employer's application for approval of dismissal - The employer had made an application under Section 42(4) proviso read with Rule 53 before dismissing the employee, which the Labour Court failed to consider while ordering reinstatement - Held that the Labour Court's order was unsustainable as it did not address the employer's compliance with the statutory requirement (Paras 2-3). B) Industrial Law - Reinstatement - Backwages - Section 78, Bombay Industrial Relations Act, 1946 - Labour Court granted 50% backwages from 1.4.1994 till reinstatement - The Industrial Court set aside the order and remanded the matter for fresh consideration - Held that the Industrial Court's order was proper as the Labour Court had not considered the employer's application under Section 42(4) proviso (Paras 2-3). C) Industrial Law - Burden of Proof - Victimization - Employee must prove victimization - The employee was dismissed for absenteeism after a proper enquiry - The Labour Court did not find any victimization but still ordered reinstatement - Held that without proof of victimization, the dismissal could not be interfered with (Para 3).
Issue of Consideration
Whether the Labour Court was justified in ordering reinstatement with 50% backwages without properly considering the employer's application under Section 42(4) proviso of the Bombay Industrial Relations Act, 1946, and whether the Industrial Court erred in setting aside that order.
Final Decision
The High Court dismissed the writ petition, upholding the Industrial Court's order dated 21.2.2003 which set aside the Labour Court's order and remanded the matter for fresh consideration.
Law Points
- Burden of proof on employee to show victimization
- Section 42(4) proviso Bombay Industrial Relations Act
- 1946
- Rule 53 Bombay Industrial Relations Rules
- Section 78 Bombay Industrial Relations Act
- Section 79 Bombay Industrial Relations Act
