ssp 1 LPA 57 OF 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.57 OF 2011 IN WRIT PETITION NO.2974 OF 1998 WITH CIVIL APPLICATION NO.74 OF 2011 IN LETTERS PATENT APPEAL NO.57 OF 2011 IN WRIT PETITION NO.2974 OF 1998 Taida Trading & Industris Ltd. .....Appellant versus Kamgar Congress & Anr. ..... Respondents Mr.S.K.Talsania, Senior Advocate with Mr.Navraj Jalota and Mr.Atman Mehta i/by Haresh Mehta and Co., for the appellant. Mr.J.P.Cama, Senior Advocate i/by Mr.K.P.Anilkumar, for respondent No.1. CORAM: P.B.MAJMUDAR & MRS.MRIDULA BHATKAR, JJ. DATE: 26 th JULY, 2011 P.C. 1. This appeal is directed against the order of the learned Single Judge dated 23-12-2010 passed in Writ Petition No.2974 of 1998. By the impugned order, the learned Single Judge dismissed the writ petition filed by the present appellant and confirmed the order passed by the Industrial Court. The dispute was in connection with the closure effected by the ssp 2 LPA 57 OF 2011 appellant company. The respondent-Union raised an industrial dispute on the ground that the said closure is illegal. The Industrial Court, Thane, held that the company has indulged into unfair labour practices under Item 9 of Schedule IV of the MRTU and PULP Act, 1971 by closing down the Undertaking with effect from 10th March, 1994 without taking permission from the appropriate government, as per the provisions of Section 25(O) (6) of the Industrial Dispute Act, 1947. 2. In the meanwhile, by way of subsequent proceedings, the company closed down the Undertaking from the subsequent date. Subsequent closure is not under challenge. The learned Single Judge while confirming the order of the Industrial Court, remanded the matter back to the Industrial Court only for the purpose of determining full back wages to be paid to the workmen for the relevant period i.e. till the closure was actually effected (second closure). 3. Learned counsel for the appellant vehemently submitted that the Industrial Court gave most of the findings in favour of the appellant by taking into consideration ESI record etc., for the relevant period. He submitted that the company had employed less than 100 employees as per the said record. However, the Industrial Court drew an adverse inference against the company on the ground that the company failed to produce necessary muster rolls for the relevant period. The ssp 3 LPA 57 OF 2011 Industrial Court found that the closure of the company is in violation of Section 25(O) of the Act. The learned Single Judge dismissed the Writ Petition and remanded the matter back for calculating the back wages for the intervening period. It is not in dispute that the appellant company has applied for closure and the so called second closure is not under challenge. The learned counsel for the appellant submitted that though in most of the paragraphs of the judgment, the Industrial Court has found that the company has produced the record showing that the company had engaged less than 100 employees for the relevant period, yet, ultimately the complaint was allowed. It is submitted that it is not the case of the Union that on average, the company had recruited more than 100 employees for the intervening period of one year, as the case of the Union is only that for the entire period, the company had employed more than 100 employees. Learned counsel for the appellant further submitted that on the basis of the findings of the Industrial Court, it is clear that the Industrial Court itself has found that as per the record produced by the Company for the relevant period the company had employed less than 100 employees. In that view of the matter, the order of the Industrial Court, which is confirmed by the learned Single Judge is required to be set aside. It is argued that the learned Single Judge has gravely erred in holding that the company had not produced evidence to substantiate its say that the ssp 4 LPA 57 OF 2011 company had engaged less than 100 employees during the relevant period. It is submitted that the second closure was applied by the company without prejudice to the rights and contentions to the effect that the first closure was in accordance with law. 4. On the other hand, learned counsel for the respondent- Union submitted that it is clear that the company has not produced muster roll for the relevant months, and in case it was produced, it would have falsified the stand of the company in this behalf. It is submitted that the say of the management that the relevant muster rolls were not produced, as the Union had committed theft of the same, is not at all believable and it is nothing but an after thought. In order to substantiate his argument, learned counsel for the respondent, relied upon the evidence led by the management itself regarding strength of the employees during the relevant period. 5. We have heard the learned counsel for the parties at great length and have gone through the orders passed by the Industrial Court as well as that of learned Single Judge and the evidence produced in the form of compilation given to the Court. It is not in dispute that the subsequently also, the company had applied fresh closure and the second closure has attained finality as the same is not under challenged. In order to find out whether earlier closure applied by the company is in violation ssp 5 LPA 57 OF 2011 of Section 25(O) of the Act, or not, the Court is required to consider as to whether the Industrial Court has committed any error in coming to the conclusion that the company has not produced muster rolls and therefore, adverse inference is required to be drawn in this behalf. It is required to be noted that the say of the appellant company is that the relevant muster rolls were subjected to theft by the Union employees and therefore, the same were not produced. It is no doubt true that for the relevant period, for which no muster roll have been produced, the company has produced documents like ESI Certificate and wage slips for the relevant period. In this connection, it would be useful to refer to the evidence of Mr.Moiz Fakruddin Pancha, which the appellant company had led during the pendency of the Reference before the Industrial Court. In para No.16 of his cross-examination, the said witness has stated that “We have filed 80 wage slips for the month of February 1994. In the list (Exh.C-17) we hve shown 106 employees in the month of March 1993. We have filed 120 wage slips for the month of March 1993. Same is the case about April, 1993. For the month of May and June, 1993, the strength is shown as 104 where we have filed 108 wage slips. In August 1993, against the strength of 103 shown, I have filed 108 wage slips. In Sept. 1993, strength is shown 102 whereas only 86 wage slips are filed. In October 1993, as against the strength shown 85, we have filed 82 wage slips. In November 1993, strength is shown as 82 employees whereas we have filed 80 wages slips. In January 1994, 80 is the strength and 70 wage slips are filed. 6. From the evidence led by the appellant company, it is ssp 6 LPA 57 OF 2011 crystal clear that for about six months, the strength of the employees was more than 100 and this fact cannot be disputed in view of clear cut admission by the officer of the appellant company in the cross- examination. In this connection, learned counsel for the appellant argued that even if strength of the workmen was more than 100 for six months, it cannot be said that average strength for entire one year is more than 100 workmen, for which he had relied upon the calculation given by the Industrial Court which is at page No.190. However, this part is required to be considered from another angle. In view of the evidence of the said witness, which we have reproduced above, it is abundantly clear that wage slips are not the conclusive proof, as the said witness categorically admitted that even if the strength is more, wage slips have been given less in number. The finding of fact recorded by the Industrial Court is based on consideration of the totality of the evidence on record and in our view, the Industrial Court has rightly drew an adverse inference against the company for not producing relevant muster rolls, as in case the same were produced, it might have gone against the company. 7. It may be true that subsequent closure might have been effected by the company without prejudice to the rights and contentions regarding the first closure. However, when the evidence of aforesaid witness clearly demonstrates that the wage slips issued may not be in ssp 7 LPA 57 OF 2011 connection with the total number of employees, as there is a variation in this behalf and when the Industrial Court as well as the learned Single Judge have not given any weightage to the say of the employer that the relevant muster roll was subjected to theft by the Union, in our view, the findings of facts recorded by the Industrial Court as well as the learned Single Judge, coupled with the fact that the evidence of the company itself suggest that wage slips are not a conclusive proof, as they do not match with the total number of employees employed by the appellant company. The finding of fact recorded by the Industrial Court, therefore, is not required to be interfered with by us in this appeal. As per the admission of the said witness itself, it is crystal clear that at least for six months, the strength had gone more than 100 employees. This Court is not expected to re-appreciate the entire evidence in the present proceedings. Since the closure has already been effected subsequently, the appellant company is required to give benefit regarding payment of back wages for the relevant period. The learned Single Judge remanded the matter back for calculating full back wages for the aforesaid intervening period. 8. Considering the fact that the appellant company had applied for second closure, the only question which remain is regarding the payment of back wages to the employees for the relevant period i.e. till the second closure was applied. Simply because the Industrial Court ssp 8 LPA 57 OF 2011 has observed in connection with the evidence produced by the appellant company, it cannot be said that the finding of the Industrial Court regarding drawing an adverse inference is contrary to the law in any manner. 8. At this stage, learned counsel for the appellant argued that it is not the case of the Union that the average strength of the employees during the year was more than 100. However, the Industrial Court after considering the evidence on record, gave finding to the effect that the strength of the employees was more than 100 during the relevant period and that finding is based on the appreciation of evidence on record and the finding of average strength is also proved. 9. A feeble attempt is made by the learned counsel for the appellant by placing a strong reliance on the decision of the Apex Court in the case of Shankar Chakravarti V/s. Britannia Biscuit Co. Ltd. and Anr.1 The said case was in connection with the approval of order of dismissal for misconduct under Section 33(2) (b) of the Industrial Dispute Act. While negativing the contention of the employer in that case, the Supreme Court has observed as follows : - 31. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact 1 AIR 1979 SC 1652 ssp 9 LPA 57 OF 2011 so as to invite a decision in its favour, it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fall if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no evidence raising a contention there is no question of substantiating such a non-existing contention by evidence. 10. It is not in dispute that the respondent-Union has already made a complaint that the company had appointed more than 100 employees for the relevant period and on the basis of pleadings, the evidence was led by both the sides and the Court can give its findings on the basis of the available evidence on record. In our view, considering the evidence on record especially the evidence led by the company, it is clear that the company had recruited more than 100 employees from time to time and by not producing muster rolls for the relevant period, it can be legitimately presumed that if the same were produced, it would have gone against the interest of the company. We therefore, do not find any justification in interfering with the order passed by the Industrial Court, which is confirmed by the learned Single Judge. The Letters Patent Appeal is therefore, dismissed. ssp 10 LPA 57 OF 2011 11. In view of the dismissal of the appeal, the civil application No.74 of 2011 does not survive and the same is accordingly disposed of. ( MRS.MRIDULA BHATKAR, J. ) ( P.B.MAJMUDAR, J. )