JUDGMENT
H.H. Kantharia, J.
1. As these writ petitions under Article 227 of the Constitution arise from the same judgment and order passed by the learned Labour Judge presiding over the 6th Labour Court, Bombay on June 20, 1986 in Application (IDA) No. 1135 of 1983, under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the I.D. Act”), they are heard together and are being disposed of by this common judgment.
2. The petitioner, Vittal Venkatesh, in Writ Petition No.4728 of 1986, (hereinafter referred to as ” the workman”) was employed as a Stenographer with effect from October 23,1974 by the first respondent, Patheja Forging and Auto Parts Manufacturers Private Limited, (hereinafter referred to as “the Company”) of which the second respondent, Mansingh Patheja, is the Managing Director. The Company is the petitioner in Writ Petition No. 4730 of 1986 wherein the workman is the first respondent.
3. According to the workman, he was initially given salary of Rs. 600/- per month but was told that he would be given increment of Rs. 100/- on completing one year of service and thereafter yearly increments of Rs.25/- each for 12 years. He accordingly requested the company to release the increment of Rs. 100/- when he completed one year’s service. He was, however, told that he would be given the said increment after some time as the financial condition of the company at that time was not good. In the meanwhile, the workman asked for dearness allowances at certain rate which was not taken kindly by the Company and his services were abruptly terminated with effect from March,24, 1976. He, therefore, raised an industrial dispute for his reinstatement with continuity of services and full back wages which was referred to the 3rd Labour Court, Bombay being Reference (IDA) No. 1022 of 1976. The learned Labour Judge, on appreciation of the evidence adduced before him, by an Award dated May 12, 1982 partially accepted the reference and directed the Company to reinstate him with 90% back wages and continuity of service with effect from March 23, 1976.
4. It is the case of the workman that thereafter he approached the Company vide letters dated July 5, 1982, July 7, 1982 and September 3, 1982 and also personally visited the office of the Company on October 12, 1982 but was not allowed to resume duties. He, therefore, filed Complaint (ULP) No. 748 of 1982 in the Industrial Court, Bombay under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as “the MRTU & PULP Act”). The learned Member of the Industrial Court, by interim order dated December 20, 1982 directed the Company to deposit in the Court 90% of the back wages based on the last drawn wages by the workman for the period from March 23, 1976 to December 31, 1982 on or before January 7,1983. The Company was also directed to continue depositing 90% of the backwages every month. The unfair labour practice complaint was finally disposed of on March 7, 1983 holding that the Company had engaged in unfair labour practice covered by Item 9 of Schedule IV of the MRTU & PULP Act and accordingly the Company was directed to deposit in the Court 90% of the backwages from March 23, 1976 to March 7,1983, However, the Company failed to comply with the directions of the Industrial Court.
5. Therefore, the workman filed Criminal Complaint (ULP) No. 4 of 1983 in the Labour Court, Bombay . In the meanwhile, the Company filed Writ Petition No. 1235 of 1983 on the Appellant Side of this Court on April 4, 1983, challenging the Award Dated May 12, 1982 passed by the Labour Court in Reference (IDA) No. 1022 of 1976 and the interim order dated December 20, 1982 passed by the Industrial. Court on March 7, 1983. The said writ petition was rejected by this Court and as such the Company deposited in the Court 90% of the back-wages due and payable to the workman for the period from March 24, 1976 to March 7,1983 and cost of Rs. 350/- on August 10, 1983. The Company pleaded guilty to the charges levelled against them in Criminal Complaint (ULP) No. 4 of 1983 when the Company and its officers were fined Rs. 100/- each.
6. As the workman was not given salary at the rate of Rs. 700/- per month after completion of one year of service as also the annual increment of Rs. 25/- each and was not allowed to resume duties, he filed Application (IDA) No. 1135 of 1983 in the 6th Labour Court at Bombay, under Section 33-C(2) of the I.D. Act claiming Rs. 78,584.99 on account of difference in wages, leave wages and bonus but restricted his claim to Rs. 33,494.99 as the Company had already deposited an amount of Rs. 45,090/- on August 10, 1983 and the cost Rs. 350/- as ordered by the Industrial Court. Thereafter, the workman amended his application under Section 33-C(2) of the I.D. Act on May 6,1985 and asked for enhanced amount of Rs. 19,025/- on account of difference in wages, leave wages and bonus upto April 30, 1985. His total claim now was Rs.52,519.99 i.e. balance amount of Rs. 33,494.99 + Rs.19,025.00
7. The company resisted the said application and contended vide their written statement that the Labour Court had no jurisdiction to entertain and decide the workman’s application under Section 33-C(2) of the I.D. Act as the registered office and the factory of the Company were shifted and situate at Pune which was outside the territorial jurisdiction of the Labour Court in Bombay. The Company admitted that the workman was in their employment from October 23, 1974 as a Stenographer but denied that he was to be given increment of Rs. 100/- on completion of one year of service and thereafter at the rate of Rs. 25/- per annum. It was not disputed by the Company that an Award was passed in Reference (IDA) No. 1022 of 1976 by the Labour Court, Bombay directing the Company to reinstate the workman with 90% back wages and continuity of services. However, it was contended by the Company that its office was originally registered in Bombay and during the pendency of Reference (IDA) No. 1022 of 1976 the registered office of the Company was shifted to Pune and, therefore, they sent a letter dated January 25, 1983 to the workman calling upon him to report for duties at their new registered office at Pune and reminded him to do so by letters dated January 30, 1983 and September 24, 1983 but in vain. The workman thus refused to join duties at Pune and insisted that he should be allowed to join duties at Bombay and, therefore, he was not entitled to any wages and benefits flowing from the Award for the period; subsequent to the month of January 1983, further contended the Company. The claim of the workman for leave wages and bonus was also denied by the Company as, according to them, the workman had not actually worked for the period in question.
8. At the hearing, the workman examined himself and on behalf of the Company evidence of their Executive Krishnachandra Kalra and Managing Director Mansingh Patheja was adduced.
9. On appreciation of the evidence thus led before him, the learned Labour Judge by the, Judgment and order dated June 20, 1986 came to the conclusion that this Court had the necessary jurisdiction to entertain and decide the application filed by the workman under Section 33-C(2) of the I.D. Act and the same was maintainable in law. He further held that the workman was entitled to increment of Rs. 100/- on completion of one year of service and thereafter at the rate of Rs. 25/- per annum for 12 years and on that basis calculated the difference in wages payable to the workman from March 24,1976 to March 7, 1983 amounting to Rs. 58,979.90 from which he deducted the amount of Rs. 45,090/-which was admittedly deposited by the Company in the Labour Court and thus allowed Rs. 13,889.90 to which he added further amount of Rs. 519.35 on account of difference in earned wages from March 1, 1976 to March 23, 1976 and an amount of Rs. 400/- as difference in wages from November 1, 1975 to February 28, 1976. Thus, on account of difference in wages he granted Rs. 14,809.25 to the workman. The learned Labour Judge calculated the amount of bonus payable to the workman from the year 1976 to the year 1982 at Rs. 5600/-. He, however, refused the claim of leave wages holding that the workman could not have encashed the leave to his credit. The learned Labour Judge in this manner allowed the total claim of Rs. 20,409.25 of the workman and disposed of the application with a cost of Rs. 200/- by the judgment and order dated June 20, 1986.
10. As the learned Labour Judge restricted the claim of the workman for difference in wages only upto March 7, 1983 on the ground that he had rejected the offer of the company to join duties at Pune and also refused the claim of leave wages, the workman filed Writ Petition No. 4728 of 1986 and being aggrived by the impugned judgment and granting claim of the workman, as stated above, to the extent of Rs. 20,409.25, the Company filed Writ Petition No. 4730 of 1986.
11. Now, the decision of the Labour Court that it had the necessary jurisdiction to entertain and decide the workman’s application under Section 33-C(2) of the I.D. Act is not controverted.
12. Mr. Ramaswami, learned counsel appearing on behalf of the Company, seriously contends that there is no evidence on record to show that the workman was appointed on a condition that after completion of service of one year he would be granted increment of Rs. 100/-and thereafter at the rate of Rs. 25/- per year for 12 years. In this connection we may usefully refer to the evidence of the workman which reads as under:
“When I joined the Co. I had demanded starting salary of Rs. 700/- p.m. with annual increment of Rs. 25/-. But the management offered to pay me Rs. 600/- with annual increment of Rs. 25/- for the first 12 increments. It was agreed that after one year’s service my salary would be increased to Rs. 700/- and thereafter I would be given annual increments of Rs. 25/- each for the first 12 years. The above said terms and conditions of service were recorded by the management on my application dated October 1974. Shri Mansingh Patheja, Director & Chief Executive of the Respondent Co, recorded these terms and conditions. After one year’s service I requested Shri Mansingh Patheja for revision of my salary as per the above said terms . He said that I would be given that benefit after some time as at that time the Co. was in financial difficulty”.
It is important and pertinent to note that the Company’s Executive, Krishnachandra Kalra, did not speak a word in his evidence controverting the above said deposition of the workman. It is also equally important and pertinent to note that the Company’s Managing Director and Chairman, Mansingh Patheja, also did not speak a word in the examination in chief challenging the aforesaid evidence given by the workman. However, in the cross examination he stated that the workman was appointed on a consolidated salary of Rs. 600/- per month and he was not to be paid annual increments. Beyond that there is nothing in his evidence to show that the evidence of the workman is untrue. Be that as it may, the most important documentary evidence in this respect was the original application made by the workman for employment in October 1974 on which the terms and conditions of service were recorded as deposed by the workman. Nothing prevented the Company from producing the said original document in the Court for a conclusive proof that the case put up by the workman was not correct. Everything depended upon what was or was not recorded by the Managing Director and Chairman of the Company on the said application of the workman at the time of appointment. Therefore non-production of that original application by the Company was a very vital question to be considered by the learned Labour Judge and the learned Labour Judge was not wrong in drawing an adverse inference against the Company that had the Company produced the document in question it would have shown that the Company’s contention was not correct. Under the circumstances, there is no reason for not accepting evidence of the workman and the learned Labour Judge was quite right in doing so. Therefore, the conclusion is irresistible that the workman was entitled to increment of Rs. 100/- on completion of one year of service and thereafter at the rate of Rs. 25/-per year for 12 years and on that basis the back wages granted to him were correctly calculated by the learned Labour Judge. The learned Labour Judge was also right in holding that it was improbable to believe that the workman would agree to work without any scale and increments. I do not think that such findings arrived at by the learned Labour Judge were in any way perverse so as to be interfered with.
13. Mr. Ramaswami’s next argument is that the workman was not entitled to back wages upto April 30, 1985 because he had rejected the offer of the Company to join duties at Pune. The submission of the learned counsel is that it was impossible for the Company to reinstate the workman in Bombay as the Company was ready and willing to reinstate him at Pune which offer was rejected by the workman. Similar arguments were advanced on behalf of the Company in the Labour Court which found favour with the learned Labour judge who held that the workman had refused the offer of the Company to join duties at Pune, and therefore, he was entitled to back wages only upto January 31, 1083 as he was asked to report at Pune with effect from February 1, 1983 but as the Industrial Court had granted him back wages upto March 7, 1983 while deciding Complaint (ULP) No. 748 of 1982, he (the learned labour Judge) awarded to the workman back wages upto March 7, 1983. In my judgment, this finding by the learned Labour Judge is not consistent with the evidence available on record which shows that the establishment of the Company was still functioning at Bombay. The Company was changing its stand in this connection every now and then e.g. when Reference (IDA) No. 1022 of 1976 was pending before the Labour Court, the Company made an attempt to offer the workman reinstatement in Pune in 1981 saying that their Bombay office was not functioning for the last six months. The Labour Court rejected this contention of the Company and passed an Award granting reinstatement with 90% back wages to the workman after recording evidence whether the Company’s Bombay office was functioning. Thereafter, the Company took the stand that their Registered Office was shifted to Pune in July 1979. When it was pointed out that the workman was employed in Bombay at the Head Office, the Company changed its stand and came out with a story that the Registered Head Office was shifted to Pune. When it was again pointed out that the Bombay office was still functioning, the Company took a stand that only a Liaison Officer was working in Bombay. And before the Labour Court its case was that only a Telephone Operator and a peon were employed in the Liaison Office at Bombay. When such vacillating story did not help the Company, they changed the designation of the “Purchase Officer” as “Liaison Officer”. It is important to note that no document such as muster roll etc. was produced by the Company for the years 1974 to 1979-80. The record shows that only the Registered Office which had no separate staff was shifted to Pune and not the Registered Head Office or the entire Bombay office. It appears that when the Company filed Writ Petition No. 1235 of 1983 on the Appellant Side of this Court, they had contended that the Company had offered reinstatement to the workman in Pune as it was not possible to reinstate him in Bombay office which was only a liaison office, this Court rejected the writ petition of the Company on July 1, 1983 which would show that the Company’s offer to reinstate the workman at Pune was not acceptable to this Court. It is also important to note that the Award passed by the Labour Court did not speak in terms of reinstatement of the workman at Pune. As stated above, the workman was employed at Bombay, his services were terminated at Bombay and he was ordered to be reinstated with 90% back wages with retrospective effect from March 23, 1976 which would only mean that he was ordered to be reinstated in Bombay and nowhere else. It is also important to bear in mind that the company cannot be heard to say that it would implement the Award of the Labour Court passed in Bombay by reinstating the workman in Pune. The workman cannot be put to the inconvenience and hardship at arbitrary decision of the Company to shift its work place to Pune, assuming for the sake of argument that it was done so by the Company. If the Company had really shifted its work place to Pune, they could have found out some solution as to how to deal with the situation created by virtue of the Award passed by the Labour Court granting reinstatement to the workman. The workman cannot be forced to follow the employer wherever the employer goes without taking into consideration the other relevant and attendant circumstances. The refusal of the workman in not joining the duties at Pune was, therefore, justified. On the other hand, the insistence by the Company to force the workman to join duties at Pune was not only unreasonable but also arbitrary. It appears that this insistence on the part of the Company was only a ruse to defeat the Award passed by the Labour Court and deny the claim of the workman for reinstatement. Therefore, the learned Labour Judge was wrong in restricting the claim of the workman for back wages only upto March 7, 1983. In fact, the workman is entitled to back wages till his reinstatement.
14. Mr. Ramaswamt then urged that the workman was not entitled to bonus at the minimum rate of 8.33% from 1976 to 1982 as he had actually not worked during that period. In support of his contention Mr. Ramaswami relied upon Section 8 of the Payment of Bonus Act, 1965 which envisages that every employee shall be entitled to be paid by his employer in an accounting year, bonus, in accordance with the provisions of the said Act, provided he has worked in the establishment for not less than 30 working days in that year. Now, when the workman is ordered to be reinstated, it means that he has been restored and relegated to his original position when he was dismissed. In other words, he is deemed to be in continuous service as if his services were not terminated. In my opinion, when the dismissal of the workman is held to be not lawful and is directed to be reinstated with back wages and continuity of service, he is entitled to all his claims connected with his employment including bonus. The reason is that but for the unlawful termination of his services, he would have continued in service and would have been in a position to put in necessary attendance, done his work, and be eligible for all the benefits arising from the employment. The claim of the workman for bonus could thus not have been excluded. When an employer takes an illegal action, terminates the services of a workman unlawfully and allows him to suffer for years, the employer cannot take advantage of his own wrong and be allowed to deny any of the benefits arising from the workman’s employment including the claim for bonus. The workman in a case of unlawful termination of services was prevented by the employer to put in necessary attendance under the statute and perform his duties to earn the amount of bonus like any other workman in the employment. He cannot be denied his legitimate claim for bonus for no fault of his own. If by an Award no benefit has been expressly withheld, he would always be entitled to all the benefits as if his services had not been terminated. When the dismissal of the workman was set aside by a Court having competant jurisdiction, he will be entitled to get all the benefits, including bonus, for the period of his involuntary and forced unemployment from the date of this dismissal till the actual day of reinstatement. When he was prevented from working for the prescribed number of days, he cannot be disentitled from claiming bonus on the ground that he did not actually work in the establishment for the days required by the statute. If the workman on his own did not work it would be altogether a different point but when he is ready and willing to work but was unable to do so for the reasons beyond his control, he cannot be made to suffer. Thus, there is no substance in the argument of Mr. Ramaswami that in the present case the workman was not entitled to bonus for the period aforesaid as he had actually not worked during that period.
15. As regards the claim of the workman for leave wages, on the parity of the same reasoning, as above, he should be entitled to the leave wages also. The learned Labour judge was wrong in rejecting the claim of the workman on the ground that he had not shown any provision of law under which he could have earned his leave. When the workman was illegally prevented from working and earning leave which he would have taken and enjoyed or encashed, he cannot be denied the wages due to him on this account for not being able to earn leave and enjoy the same or encash it.
16. In this view of the matter, the learned Labour Judge should have granted the claim made by the workman in his application under Section 33-C(2) of the I.D. Act uptodate as amended on May 6, 1985. The workman was entitled to his claim of Rs.78,584.99 plus a further claim of Rs. 19,025.00 as per the amended application. He was thus entitled to Rs. 97,609.99 out of which the Company had already deposited a sum of Rs. 45,090.00 and Rs. 20,000 now which comes to Rs. 65,090/-which amount has to be deducted. Therefore, the claim of the workman for the remaining amount of Rs. 32,519.99 upto April 30,1985 is allowed. The Company is directed to pay the workman the said sum of Rs. 32,519.99 on or before December 15,1992 failing which it shall be liable to pay interest on the said sum of money at the rate of 18 per cent per annum from December 16, 1992.
17. In the result, Writ Petition No. 4728 of 1986 of the workman succeeds and the same is allowed. Rule is made absolute in terms aforesaid but with no order as to costs. The Company’s Writ Petition No.4730 of 1986 fails and the same is rejected. Rule is accordingly discharged with no order as to costs.