MR. SHANKAR SADASHIV CHAVANversusMR. KENNETH PAUL AND ANR

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                      AGK
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ATUL                                   CIVIL APPELLATE JURISDICTION
GANESH
KULKARNI
Digitally signed by                    WRIT PETITION NO.13512 OF 2022
ATUL GANESH
KULKARNI
Date: 2026.01.27
10:45:40 +0530        Shankar Sadashiv Chavan                         … Petitioner
                                V/s.
                      Kenneth Paul & Another                          … Respondents

                      Mr. Vishwabhushan Kamble for the petitioner.
                      Mrs. Ashwini Purav for respondent No.1.


                                                  CORAM      : AMIT BORKAR, J.

                                                  DATED      : JANUARY 23, 2026
                      P.C.:

                      1.      The petitioner challenges the order dated 14 January 2019
                      passed by the Central Government Industrial Tribunal No.2,
                      Mumbai in Application (Reference) No.2/1 of 2012. By the said
                      order, the Tribunal rejected his application.

                      2.      The relevant facts are as follows. In December 2012, the
                      petitioner filed an application under Section 2A(2) of the
                      Industrial Disputes Act, 1947. He sought reinstatement with full
                      back wages and continuity of service from 1 May 2011. He also
                      claimed difference of salary under the Labour Agreement between
                      the Union and the Bombay Custom House Agents Association.

                      3.      The petitioner states that he worked with respondent No.1 as
                      a custom clerk for 23 years. His salary for April 2011 was Rs.
                      7,469. He states that the respondent wanted to terminate his
                      services. On 20 April 2011, the respondent asked him to start work



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at Sahar Airport Cargo. He was not given an I.A. pass for the
airport. Without the pass, entry was not allowed. He was asked to
work as peon in place of another peon. He refused. According to
the petitioner, the respondent orally terminated his services from 1
May 2011.

4.    Respondent No.1 filed a written statement. It states that the
petitioner was never terminated. It states that the petitioner
remained absent from duty from 1 May 2011. The respondent
states that it asked the petitioner to resume duty through company
letters, advocate’s letters, and communications before the
Conciliation Officer. The petitioner did not resume duty. The
respondent states that there was no termination and no case for
reinstatement with back wages. It also states that the petitioner is
not a signatory to the settlement and is not a member of the Union
which signed the settlement. The respondent therefore claims that
he is not entitled to any relief.

5.    The Tribunal dismissed the petitioner’s claim. It recorded
that the petitioner remained absent without permission and did
not report for duty despite letters issued by respondent No.1. The
Tribunal held that the petitioner insisted on posting at JNPT and
increase of salary. The Tribunal also recorded that before the
Labour Commissioner, the petitioner demanded increase of salary
and posting at JNPT. The petitioner has therefore filed the present
writ petition.

6.    Learned Advocate for the petitioner submitted that the
petitioner was a permanent employee. He submitted that the




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respondent terminated his services without holding any inquiry. He
submitted that the petitioner was asked to join duties at the
airport, but without an airport entry pass he could not work. He
therefore submitted that the impugned order deserves to be
quashed.

7.    Learned Advocate for the respondent submitted that the
respondent asked the petitioner to resume duty by letters dated 20
July 2011 and notice dated 22 August 2011. Despite these
communications, the petitioner did not report for duty. She
referred to the failure report of the Assistant Labour Officer acting
as Conciliation Officer. She submitted that the employer informed
the Conciliation Officer that it had not terminated the petitioner
and that it was willing to provide work at any customs station in
Mumbai on the same wages. She submitted that the petitioner
refused this offer and stated that he would approach the Tribunal.
She submitted that this is not a case of termination. According to
her, the petitioner chose not to join duty despite several letters.
She submitted that respondent No.1 is not a member of the
Bombay Custom House Agents Association and that the petitioner
was not working with respondent No.1 under the settlement. She
therefore submitted that the petitioner cannot claim benefit under
that scheme and prayed for dismissal of the writ petition.

8.    Having examined the rival contentions, I find no material to
support the allegation of termination. The petitioner claims oral
termination. No contemporaneous complaint or document has
been placed on record by the petitioner to show that he protested
against alleged oral termination at the relevant time. In industrial



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jurisprudence, oral termination is a serious allegation. When an
employee claims that he was orally terminated, the surrounding
facts and conduct must support that allegation. In the present case,
the material shows that the employer continued to ask the
petitioner to resume duty. The letters and notices sent by the
employer have not been disputed. Even during conciliation, the
employer reiterated its willingness to take the petitioner back on
the same terms. The petitioner did not deny that he demanded
posting at JNPT and increase of salary. This conduct is consistent
with refusal to work on existing terms, not with termination by the
employer.

9.    The argument about absence of an airport pass also does not
assist the petitioner. Even if there was difficulty about airport entry,
the petitioner had a clear option to resume work at another
customs station as offered by the employer. He did not do so.
Instead, he insisted on his own conditions. The Tribunal has
correctly observed that the petitioner wanted posting at JNPT and
revision of salary. A workman cannot refuse to report and then
claim termination merely because the work assignment or location
did not suit him.

10.   The contention regarding lack of domestic inquiry also fails.
That issue arises only when the employer takes action of dismissal
or removal based on misconduct. In the present case, the
respondent did not take any punitive action. They did not dismiss
him. They did not remove him. They simply asked him to resume
duties. When there is no termination, the question of an inquiry
does not arise.



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11.      As far as the settlement is concerned, the petitioner has not
produced material to show that he was covered by that settlement.
The respondent has taken a clear stand that it is not a member of
the association which executed that settlement. The petitioner has
not rebutted this position. A claim based on a settlement cannot be
granted unless the settlement binds the employer. Therefore, the
claim of difference in salary under the settlement is unsustainable.

12.      On these facts, the Tribunal’s conclusion that there was no
termination and that the petitioner remained absent without
justification is supported by the record. This Court, while
exercising writ jurisdiction, does not re-appreciate evidence unless
there is perversity or jurisdictional error. No such error has been
pointed out. The impugned order reflects proper appreciation of
facts and correct application of law. There is no violation of natural
justice. There is no procedural irregularity. The view taken by the
Tribunal is a possible view based on evidence.

13.      In these circumstances, the petition lacks merit and deserves
to be dismissed. The writ petition is dismissed. No order as to
costs.


                                              (AMIT BORKAR, J.)




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