: 1 : IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION LETTERS LETTERS LETTERS PATENT APPEAL NO.144 OF 2007 PATENT APPEAL NO.144 OF 2007 PATENT APPEAL NO.144 OF 2007 IN IN IN WRIT WRIT WRIT PETITION NO.9167 OF 2005 PETITION NO.9167 OF 2005 PETITION NO.9167 OF 2005 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO.70 OF 2006 APPLICATION NO.70 OF 2006 APPLICATION NO.70 OF 2006 Hind Plastics ...Appellant V/s. Amir Shaikh ...Respondent Mr.K.S. Bapat, Advocate, h/f. Mr.Rahul Nerlekar for the Appellant. . Ms.K.M. Pawar, Advocate, for the Respondent. CORAM CORAM CORAM : J.N. PATEL & : J.N. PATEL & : J.N. PATEL & A.A. A.A. A.A. SAYED, JJ. SAYED, JJ. SAYED, JJ. DATE DATE DATE : 18TH JULY, 2007. : 18TH JULY, 2007. : 18TH JULY, 2007. P.C. P.C. P.C. : : : 1. Heard the learned Counsel for the parties. 2. This Letters Patent Appeal is filed impugning the judgment of the learned Single Judge upholding the decision of the Labour Court. 3. The issue raised in the Letters Patent Appeal is as to whether the respondent was a workman as defined under Section 2(s) of the I.D. Act. The Labour Court as well as the learned Single Judge after taking into consideration the evidence lead before it held that respondent was a workman and the service of : 2 : the respondent-workman was terminated illegally and ordered that he should be reinstated with back wages. This issue was reagitated before the learned Single Judge who has observed that except for a stray statement in his evidence, there is nothing on record to show that the respondent was employed as Supervisor. 4. We have gone through the evidence of the workman as well as the employer. We need not reiterate the principle that the evidence of the party has to be read as a whole and keeping this principle in mind, the Labour Court as well as the learned Single Judge has rightly come to the conclusion that the respondent has proved that he was a workman within the meaning of Section 2(s) of the I.D. Act. It is only in cross-examination that a suggestion was made to which he has answered "it is true that in the first party company I was working as Supervisor", whereas throughout in his evidence before the Court he has specifically stated that he was a workman. 5. Another plea taken by the appellant was that the respondent-workman had resigned from his job for which no evidence was brought on record. Insofar as the witness examined on behalf of the appellant is concerned, in his cross-examination, it has been clearly brought out that none of the characteristics which would go to show that the respondent was engaged : 3 : as a Supervisor has been placed on record, as he has specifically stated that he cannot tell whether the salary of the workman was Rs.2,500/- per month and the claim of the appellant that the respondent in his capacity as a Supervisor used to sanction the leave of the workers but no documents have been produced in this regard and stated that everything was done orally, nor any appointment letter of workman or Register / document, that he was appointed as a Supervisor has been placed on record. 6. The learned Counsel appearing for the appellant submitted that at-least this Court should consider that the respondent-employee is not entitled for full back wages as in his cross-examination he has admitted that he was doing some work to maintain his family and has placed reliance on two decisions i.e. one decision of Bank of Baroda v/s. Ghemarbhai Harjibhai Rabari [2005 (10) SCC 792] on the issue of burden of proof and submitted that as the workman has admitted that he was appointed as a Supervisor, he has failed to discharge the burden to prove that he was employed as workman. 7. We have already observed that the evidence is required to be read as a whole and in absence of any record with the respondent relating to his employment, the Court is only required to evaluate the evidence : 4 : which has been given on oath and in the facts of the present case when the employer himself has failed to produce any evidence on record regarding the nature of employment of the respondent and in what manner his services came to be terminated, in our view, the employee has discharged the burden by leading oral evidence. The onus heavily lies on the employer to negative the claim of the workman by producing some documentary evidence to the contrary. 8. On the issue of back wages, the learned Counsel has cited the case of U.P. State Brassware Corporation Ltd. & Anr. V/s. Udai Narain Pandey [2006 (1) CLR 39] and particularly our attention is drawn to the observations made in paragraphs 17 and 48. We have observed that though the respondent has accepted that he was engaged for some time in order to maintain his family, the employer has failed to further cross-examine him to bring on record what was the nature of his employment during that period and what were his earnings, and, therefore, it is very difficult for us to consider the case of the appellant for set of. 9. On the other hand, the learned Counsel for the respondent submits that since the time award came to be passed, not a single pie has been paid to the respondent-workman and if at all he has earned : 5 : something to maintain his family, that should not deny him full back wages. Therefore, in the facts and circumstances, we do not find that the Labour Court as well as the learned Single Judge of this Court have erred in fact or law so as to call for any interference, and we do not find any patent illegality on record to interfere with the impugned order. 10. The learned Counsel for the appellant submits that the Firm is closed down. This is merely a statement made across the bar on the basis of averments in the Petition and the Appeal which has been dealt with by this Court in observing that except for stating that the Firm is closed its business, no evidence is placed on record to show that it has declared closure and, therefore, this submission cannot be accepted on its face value. 11. Therefore, we do not find any error or illegality in the impugned order. The Letters Patent Appeal stands dismissed with costs. 12. In view of the dismissal of the Letters Patent Appeal, the Civil Application does not survive and stands disposed of accordingly. [A.A [A.A [A.A. SAYED, J.] SAYED, J.] SAYED, J.] [J.N. [J.N. [J.N. PATEL, J.] PATEL, J.] PATEL, J.]