As per case facts, the Petitioner, an unskilled delivery boy, was employed by ICC Worldwide Pvt. Ltd. since 1998. His services were allegedly terminated during the COVID-19 lockdown, despite government ...
WP-150-2026.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.150 OF 2026
Sanjay Shivram Chirmure
Aged 54 years, Indian Inhabitant,
Having Residential Address at:
Flat No.102, Shiv Bhoomi SRA,
Building No.7, Shankarwadi,
Jogeshwari (East), Mumbai – 400 060. … Petitioner
V/s.
1.ICC Worldwide Pvt. Ltd.
A Private Limited Company Incorporated
Under the Companies Act, 1956,
Having Registered Address at:
Lotus House, Andheri – Kurla Road
Sakinaka, Andheri (East),
Mumbai – 400072.
2.Gopal S. Revankar
Managing Director of M/s. ICC Worldwide
Pvt. Ltd.
Having Office Address at:
Lotus House, Andheri – Kurla Road
Sakinaka, Andheri (East),
Mumbai – 400072.
3.Chandrashekhar
General Manager of M/s. ICC Worldwide
Pvt. Ltd.
Having Office Address at:
Lotus House, Andheri – Kurla Road
Sakinaka, Andheri (East),
Mumbai – 400072.
4.Ashok Dawar
Accounts Manager of M/s. ICC Worldwide
Pvt. Ltd.
Having Office Address at:
1
SHABNOOR
AYUB
PATHAN
Digitally signed
by SHABNOOR
AYUB PATHAN
Date: 2026.05.07
11:51:02 +0530
WP-150-2026.doc
Lotus House, Andheri – Kurla Road
Sakinaka, Andheri (East),
Mumbai – 400072. … Respondents
Mr. Ameya Vaidya a/w Mr. Yaksha Mandot i/b Mr.
Navkar Jain, for the Petitioner.
Mr. G. R. Naik with Mr. Uresh U. Sawant, and Ms.
Rutika Naik i/b G. R. Naik & Co., for Respondents.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 30, 2026
PRONOUNCED ON:MAY 7, 2026
JUDGMENT:
1.By the present Petition, the Petitioner has invoked the
extraordinary writ jurisdiction of this Court under Article 226 of
the Constitution of India, seeking issuance of an appropriate writ
in the nature of Certiorari for quashing and setting aside the order
dated 17 March 2025 passed by the Learned Industrial Tribunal.
By the said order, the Tribunal has confirmed and upheld the order
dated 18 April 2024 rendered by the Learned Labour Court,
whereby the claim of the Petitioner for grant of back wages and
consequential service benefits for the period extending from March
2020 to December 2023 came to be rejected.
2.The facts giving rise to the present Petition, in brief, are that
the Petitioner, who was the original Complainant, had instituted a
Complaint before the Learned Labour Court under Section 28 read
with Item 1(a) and (b) of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
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Practices Act, 1971. The Petitioner had also preferred a Revision
Application under Section 44 of the said Act impugning the order
dated 18 April 2024, by which the Learned Labour Court partly
allowed the Complaint and directed reinstatement of the Petitioner
with continuity of service from 23 March 2020, however without
awarding back wages. For the sake of convenience and clarity, the
parties are hereinafter referred to in their original capacity before
the Labour Court.
3.It is the case of the Petitioner that he was in continuous
employment with Respondent No.1 Company from 01 February
1998, serving in the capacity of a Delivery Boy, and that he had
rendered long, uninterrupted and satisfactory service. His last
drawn wages were stated to be Rs.17,200/- per month inclusive of
allowances and other admissible benefits. Respondent Nos. 2 to 4,
namely the Managing Director, General Manager and Accounts
Manager, respectively, were stated to be in charge of and
responsible for the conduct of the business and day-to-day affairs
of Respondent No.1 Company. The Respondent Company is
engaged in the business of domestic as well as international
courier services, operating through multiple branches across the
country and employing more than 55 permanent employees.
4.The Petitioner contends that the Respondents failed to
extend statutory benefits as required under the applicable labour
legislations. It is further his case that upon raising grievances
concerning his service conditions and entitlement to such benefits,
he was subjected to threats of termination. During the nationwide
lockdown imposed on account of the COVID-19 pandemic with
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effect from 23 March 2020, the operations of the Respondent
Company came to a temporary halt. Notwithstanding specific
directives issued by the Ministry of Home Affairs and the
Government of Maharashtra mandating payment of full wages
during the lockdown period, the Respondents allegedly failed to
pay the Petitioner his due salary.
5.It is further the case of the Petitioner that upon gradual
relaxation of lockdown restrictions, the Respondent Company
resumed its operations in or about the first week of July 2020.
However, despite repeated requests and personal visits made by
the Petitioner to Respondent Nos. 3 and 4, he was deliberately not
permitted to resume his duties. According to the Petitioner, he
continued to pursue the matter and in or about January 2022,
when he once again approached the Respondents seeking
reinstatement, he was orally informed that his services were no
longer required. Such action, according to the Petitioner,
amounted to termination in violation of due process of law. The
Petitioner thereafter addressed a letter dated 17 February 2022
calling upon the Respondents to reinstate him with continuity of
service and full back wages; however, no reply was forthcoming
from the Respondents.
6.The Petitioner asserts that he had maintained an
unblemished record of service and had completed more than 240
days of continuous service in each calendar year. It is his case that
no charge-sheet was ever issued to him nor was any disciplinary
proceeding initiated. Since 23 March 2020, the Petitioner claims to
have remained unemployed and unable to secure alternative
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employment, inter alia on account of the failure of the
Respondents to issue a service certificate. The Petitioner further
states that being the sole earning member of his family, he has
suffered considerable financial hardship.
7.The Petitioner further contends that he has not been paid his
legitimate dues, including gratuity, encashment of earned leave,
bonus, notice pay and retrenchment compensation. According to
the Petitioner, the termination of his services is arbitrary, illegal
and constitutes victimisation, thereby amounting to an unfair
labour practice within the meaning of Item 1(a) and (b) of
Schedule IV of the MRTU & PULP Act.
8.It is also the contention of the Petitioner that in view of the
order dated 23 March 2020 passed by the Supreme Court
extending the period of limitation with effect from 15 March 2020
till 28 February 2022, the proceedings initiated by him were within
the prescribed period of limitation. Upon issuance of notice, the
Respondents appeared before the Learned Labour Court and filed
their Written Statement, contending inter alia that the Complaint
was false and vexatious and barred by limitation, having been filed
on 10 May 2022 beyond the prescribed period, and that no
application for condonation of delay had been filed.
9.The Respondents further raised a preliminary objection to
the maintainability of the Complaint on the ground that the nature
of their business pertains to international air courier services and,
therefore, the appropriate Government would be the Central
Government, thereby excluding the jurisdiction of the Labour
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Court under the MRTU & PULP Act.
10.It was further contended by the Respondents that due to the
suspension of international flight operations from 23 March 2020
till March 2022, the business activities of the Respondent Company
were severely affected and remained substantially closed during
the said period. Consequently, there was no requirement for
delivery personnel and no new employees were appointed in place
of the Petitioner.
11.The Respondents have further submitted that on account of
the pandemic, they lost major clients including FedEx, UPS and
DHL, which adversely impacted their financial position. Upon
receipt of the Petitioner’s letter dated 17 February 2022, meetings
were held on 1 March 2022 and 1 April 2022, wherein the
financial condition of the Company was explained to the
employees. While two other delivery employees accepted full and
final settlement, the Petitioner declined to accept such settlement.
12.The Respondents have also contended that the Petitioner did
not report for work from 23 March 2020 till 20 January 2022,
allegedly on account of awaiting vaccination, and therefore,
according to them, he is not entitled to claim reinstatement or
back wages. Being aggrieved by the impugned orders, particularly
to the extent of denial of back wages despite grant of
reinstatement with continuity of service, the Petitioner has
approached this Court by way of the present Petition.
13.The Learned Advocate appearing for the Petitioner submits
that both the Learned Labour Court as well as the Learned
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Industrial Court have denied the relief of back wages primarily on
the ground that the Petitioner had allegedly not made any effort to
secure alternative employment. It is urged that such a finding is
unsustainable in the facts of the present case. The Petitioner is
stated to be an unskilled workman who had been discharging
duties of delivery for the Respondents continuously for more than
22 years. Having regard to the nature of his work and his limited
skill set, it is submitted that the avenues for securing alternative
employment were inherently narrow and restricted.
14.It is further submitted that the cessation of the Petitioner’s
employment occurred during a period when the entire country was
passing through an unprecedented crisis on account of the COVID-
19 pandemic. During such period, not only the economic activities
were severely curtailed, but the very possibility of obtaining
alternative employment stood substantially diminished. In these
circumstances, it is contended that the Petitioner cannot be faulted
for not securing gainful employment during the relevant period.
15.The Petitioner further contends that for the purpose of
seeking alternative employment, it was necessary for him to obtain
a formal termination letter and a service certificate indicating his
tenure and nature of duties with the Respondents. According to
the Petitioner, repeated requests were made to the Respondents for
issuance of such documents; however, the Respondents failed and
neglected to provide the same. It is submitted that in absence of
these essential documents, the prospects of securing alternate
employment were seriously prejudiced. This material aspect,
according to the Petitioner, has not been duly considered by the
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Learned Industrial Court while passing the impugned judgment
dated 17 March 2025.
16.The Learned Industrial Court has also denied the relief of
back wages on the premise that the Petitioner had allegedly not
made any effort to resume employment with the Respondents. The
Petitioner disputes this finding and submits that the same is
contrary to the material available on record. It is his case that
during the pandemic period, he had made several oral requests to
the Respondents seeking reinstatement in service.
17.It is further submitted that the Petitioner addressed a written
communication dated 17 February 2022 to the Respondents,
calling upon them either to permit him to resume his duties or to
issue a formal order of termination. The said communication was
made at a stage when the lockdown restrictions were being
gradually relaxed. However, the Respondents did not respond to
the said communication. Thereafter, on 10 May 2022, the
Petitioner instituted a Complaint before the Learned Labour Court
alleging commission of unfair labour practices and seeking
reinstatement with continuity of service. The Petitioner had also
filed an Interim Application seeking a direction to the Respondents
to permit him to resume duties pending final adjudication of the
Complaint.
18.In view of the aforesaid circumstances, it is submitted that
the finding recorded by the Learned Industrial Court to the effect
that the Petitioner had made no effort to resume employment is
unsustainable. On the contrary, the conduct of the Petitioner, as
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reflected from the communication dated 17 February 2022 and the
initiation of legal proceedings on 10 May 2022, demonstrates his
continuous readiness and willingness to resume service with
Respondent No.1, where he had rendered long and uninterrupted
service of more than 22 years. It is, therefore, prayed that the
Petitioner be granted back wages along with all consequential
benefits in the interest of justice.
19.Per contra, the Learned Advocate appearing on behalf of the
Respondents submits that no charge-sheet was issued to the
Petitioner, nor was any departmental inquiry or show cause notice
initiated against him. It is further contended that there was, in
fact, no termination of the Petitioner’s service. Reliance is placed
on the attendance records, which according to the Respondents,
indicate that the Petitioner had continued to work even after 23
March 2020. It is, therefore, submitted that the alleged cause of
action premised on termination is misconceived, and consequently,
the claim for benefits arising out of termination does not arise in
law.
20.It is further submitted that it is not in serious dispute that
certain amounts towards full and final settlement were paid to
similarly situated co-workers of the Petitioner on 29 April 2022.
From the evidence on record, including the cross-examination of
witnesses namely Chandrasekharan Kunju Cherimal, Rajesh
Rahate, and Prabhakar Malekar, it is sought to be demonstrated
that the said employees had addressed communications to the
Company seeking allotment of work and payment of wages. The
record further indicates that after 23 March 2020, the Respondents
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neither issued any show cause notice to the Petitioner nor called
upon him to resume duties or to explain any alleged absence.
21.It is also submitted that other co-workers of the Petitioner
have settled their claims by accepting full and final settlement
amounts and have thereafter ceased to be in employment of the
Respondents. According to the Respondents, this conduct indicates
that the cessation of employment was mutually resolved in several
cases.
22.It is further submitted that the Petitioner was called upon to
report for duty on 08 January 2024, and reliance is placed on the
attendance registers for the period from 26 December 2023 to 15
January 2024, which according to the Respondents, demonstrate
that the Petitioner did report for duty on 08 January 2024 and
continued to perform duties thereafter. However, it is contended
that such isolated instance, viewed in the overall facts and
circumstances, cannot lead to a conclusion that there was no
termination of service.
23.It is further submitted that during the relevant period, a
nationwide lockdown had been imposed by the Central
Government with effect from 23 March 2020, and it is an admitted
position that the Petitioner did not work during the said period.
The Respondents have also placed on record documents relating to
the working pattern of the Petitioner, which according to them
indicate that the Petitioner remained absent during the COVID-19
period till 01 April 2023.
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24.It is contended that there is no documentary material on
record to establish that the Petitioner had made any bona fide
effort either to resume duties after the COVID-19 period or to
secure alternative employment. In absence of any work performed
or proof of efforts towards mitigation, the Petitioner, according to
the Respondents, is not entitled to claim back wages or any special
allowances. On these grounds, it is prayed that the present Petition
be dismissed.
25.I have given careful and anxious consideration to the rival
submissions advanced by both sides, and also perused the material
placed on record along with the legal position governing the issue
of back wages.
26.In so far as the question of grant of back wages is concerned,
the legal position is no longer res integra and stands
authoritatively settled by the decision of the Hon’ble Supreme
Court in
Maharashtra SRTC v. Mahadeo Krishna Naik, (2025) 4
SCC 321. The Court, after considering the earlier binding
precedents, has reiterated that though reinstatement with back
wages is a well-recognised consequence of illegal termination, the
grant of back wages is must be preceded by a limited factual
inquiry. The Supreme Court has referred to the principle beginning
from
Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80
wherein it was held that once termination is found to be illegal,
reinstatement with continuity ordinarily carries with it the
entitlement to full back wages, since the employer, by wrongful
act, has deprived the workman of employment and livelihood. The
Court emphasized that denial of back wages in such circumstances
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would amount to penalising the workman for no fault attributable
to him and would benefit the employer.
27.This principle was agian reinforced in Surendra Kumar
Verma v. Labour Commr.
, (1980) 4 SCC 443, where it was
observed that in matters arising out of welfare legislation, a
purposive approach is required to be adopted. The Court held that
once an order of termination is set aside, the natural consequence
would be reinstatement with back wages, subject, however, to
exceptional circumstances where grant of full back wages would
be inequitable or impracticable.
28.The principle was thereafter comprehensively examined in
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya,
(2013) 10 SCC 324 wherein the Supreme Court crystallised the
governing principles. It was held that reinstatement with
continuity of service and back wages constitutes the normal rule in
cases of wrongful termination. However, the adjudicating authority
retains discretion to mould the relief having regard to relevant
factors such as the nature of misconduct, length of service,
financial condition of the employer, and other attendant
circumstances. Importantly, the burden of proof was clarified. Once
the employee asserts that he was not gainfully employed, the onus
shifts upon the employer to plead and prove, by cogent evidence,
that the employee was gainfully employed and earning wages.
29.In the aforesaid decision of Mahadeo Krishna Naik, the
Supreme Court has considered the earlier judgments and held that
the grant of full or partial back wages lies within the discretion of
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the Court, to be exercised upon a consideration of whether the
employee was gainfully employed during relevant period. The
Court has clarified that such determination requires a limited fact-
finding exercise. If the employee pleads non-employment, it would
be unreasonable to expect proof of a negative fact, and in absence
of contrary material, such assertion deserves acceptance. If,
however, the employer seeks to avoid liability, the burden lies upon
the employer to establish gainful employment of the employee
during the relevant period.
30.The Court has further reiterated that where termination is
found to be illegal, the employer cannot be permitted to escape the
consequences. The principle underlying the grant of back wages is
that the employee was always ready and willing to work, but was
prevented from doing so by the unlawful act of the employer.
Therefore, unless exceptional circumstances are demonstrated,
denial of back wages would amount to rewarding the employer for
its wrongful conduct. At the same time, the Supreme Court has
recognised that the relief is not inflexible. In appropriate cases the
Court may award partial back wages or even grant lump sum
compensation in lieu of reinstatement and back wages, where such
course is found to be more just. Applying the aforesaid principles,
the Supreme Court in the said case, upon noticing that the
employee had undertaken only intermittent daily wage work and
there was no clear evidence of substantial gainful employment,
modified the award of full back wages and restricted the same to
75 percent.
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31.Turning to the facts, the Petitioner is an unskilled workman.
He has been working as a Delivery Boy with the Respondent
Company for more than 22 years. This length and nature of service
shows that the Petitioner had spent a substantial part of his life in
one establishment, performing duties which are routine in
character. A Delivery Boy is engaged in field duties. The experience
gained may not open doors in other sectors. Therefore, it would
not be realistic to expect that upon being out of service, the
Petitioner could have secured employment with similar wages.
This aspect assumes importance because the denial of back wages
by the courts below appears to proceed on an assumption that the
Petitioner ought to have demonstrated efforts to secure
employment. The Petitioner’s submission that his chances of
obtaining employment were limited has merit. To insist upon
proof of unemployment would be placing an unreasonable burden.
The surrounding facts and the nature of employment must be
taken into account. In that view, the reasoning adopted by the
courts below appears to be not aligned with settled principles.
32.Further, the period under consideration falls within the time
when the country was facing the COVID 19 pandemic. This
circumstance has a bearing on the issue. During this period,
economic activity was disrupted. Many establishments either shut
down or functioned at lower capacity. In such an situation, the
ability of an unskilled worker to secure alternative employment
was diminished.
33.The Petitioner has stated that he remained unemployed
during this time. The absence of documentary proof of such
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unemployment cannot be treated as fatal to his claim. Therefore,
when the factual position is seen along with the conditions during
the pandemic and the nature of the Petitioner’s work, the
conclusion drawn by the courts below in denying back wages on
the ground of absence of proof of unemployment does not appear
to be justified.
34.The Petitioner has asserted that he made attempts to
approach the Respondents for permitting him to resume his duties
and also for issuance of necessary documents such as service
certificate and termination letter. In ordinary course, a workman
who is compelled to seek employment is required to demonstrate
his previous service record. A certificate and a termination letter
serve as proof of employment and reason for discontinuance.
Without such documents, a workman is placed in a position of
difficulty, and his chances of securing employment are affected.
The record shows that the Petitioner addressed a communication
dated 17 February 2022. By that letter, he called upon the
Respondents either to permit him to resume duties or to issue a
order of termination. It shows that he was willing to work and was
not abandoning his employment. The Respondents chose not to
reply to this communication. Such silence indicates a lack of
response to a legitimate demand. Thereafter, within a reasonable
period, the Petitioner approached the Labour Court on 10 May
2022. This sequence of events shows that the Petitioner was
pursuing his employment. Therefore, the conclusion drawn by the
Industrial Court that the Petitioner made no effort to resume work
appears to be too general.
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35.The contention of the Respondents that there was no
termination, on the ground that no charge-sheet was issued and no
inquiry or show cause notice was conducted, also requires careful
scrutiny. In industrial law, the absence of disciplinary action does
not automatically lead to the inference that the employment
relationship continued without interruption. The Act examines the
nature of the situation. If a workman is not permitted to perform
duties, the absence of documentation cannot cure such defect.
The Petitioner has stated that he was orally informed that his
services were not required. Such oral communication cannot be
ignored if it is supported by surrounding circumstances.
36.On the other hand, the Respondents have not placed on
record material to show that the Petitioner was taken back into
service or that he had abandoned his duties. The attendance
records relied upon by the Respondents are limited and do not
establish an employment during the relevant period. Such
documents are insufficient to displace the case put forth by the
Petitioner. Therefore, the plea that there was no termination does
not advance the case of the Respondents.
37.The Respondents have also sought to rely upon the fact that
certain co-workers accepted full and final settlement and ceased
employment. This fact does not conclude the issue against the
Petitioner. Each employee stands on his own footing. The
acceptance of settlement by other workmen may indicate their
individual choice, but it cannot bind the Petitioner.
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38.Similarly, the Respondents have referred to financial
difficulties faced during the pandemic, including loss of clients and
reduction in business. This circumstance may explain the
constraints under which the Respondents were operating.
However, financial hardship, by itself, cannot justify an action
which is otherwise contrary to law. The inability of the employer to
carry on business does not authorise denial of wages. At the
highest, such factor may be relevant while moulding the extent of
relief.
39.It is correct that the Respondents have argued that the
Petitioner failed to prove that he remained unemployed and that
he did not take steps to mitigate his loss. Such contention is not
without legal basis. The employer, who seeks to avoid payment of
back wages, must produce some material to show that the
workman was gainfully employed elsewhere. A mere assertion
cannot be treated as proof. In the present case, no such evidence
has been brought on record by the Respondents.
40.The Petitioner has maintained that he had no employment.
This statement has not been rebutted. There is no material to show
that he was earning wages In absence of such evidence, it would
not be appropriate to deny back wages. The normal rule, therefore,
cannot be departed.
41.The fact that the Petitioner reported for duty on 08 January
2024 is also pressed into service by the Respondents. This
circumstance has limited relevance. At the most, it may indicate
that the employment relationship was not severed at all times. But
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the issue is whether the Petitioner was deprived of work and wages
for a period prior to that date. A single instance of reporting for
duty after a long interval does not erase the effect of prolonged
exclusion from work. The Court must examine the entire period.
On such examination, the record appears to support the case of the
Petitioner rather than that of the Respondents.
42.In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) The Petition succeeds in part;
(ii) The impugned order dated 17 March 2025 passed by
the Learned Industrial Tribunal, insofar as it affirms denial of
back wages, and the order dated 18 April 2024 passed by the
Learned Labour Court to that extent, are quashed and set
aside;
(iii) It is declared that the Petitioner shall be entitled to
back wages for the period from March 2020 till December
2023, along with all consequential service benefits arising
out of reinstatement with continuity of service;
(iv) The Respondents are directed to compute and pay the
amount of back wages and consequential benefits payable to
the Petitioner within a period of twelve weeks from the date
of this order;
(v) In the event of failure to pay the said amount within
the stipulated period, the same shall carry interest at the rate
of 6 percent per annum from the date it became due till
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realization;
(vi) Rule is made absolute in the aforesaid terms. No order
as to costs.
43.Pending interlocutory application(s), if any, stands disposed
of.
(AMIT BORKAR, J.)
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