1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.950 OF 2008 AND WRIT PETITION NO.1514 OF 2008 M/s. Maharashtra State Co-operative Marketing Federation Ltd. ...Petitioner Vs. Sarjerao Janardan Hande & Anr. ...Respondents Mr. H.H. Madan for Petitioner in WP.950 of 2008 and for Respondent in WP./1514 of 2008 Mr. A.B. Desai for respondent in WP.950 of 2008 and for Petitioner in WP.1514 of 2008 CORAM: SMT.ROSHAN DALVI, J. DATED: 30TH JUNE, 2008 P.C. 1. Rule. Returnable forthwith. The Respondents in both the above Petitions waive service. 2. These are cross Petitions filed by the employees as well as the employer with regard to the payment of over-time to the employees. The two employees are drivers in the employment of the Petitioner in Writ Petition No.950 of 2001 (the Company). The order of the 7th Labour Court, Mumbai 2 dated 15th October, 2007 is impugned in both these Petitions. 3. It is the case of the Company that there have been certain settlement contracts entered into, based upon which certain circulars were issued by the Company inter alia for payment of the over-time to the employees which govern the employees. The Company has paid over-time to the workers as per the agreement between the parties with regard thereto as also with regard to various other aspects of employment. 4. It is the claim of the employees that they are entitled to be paid over-time as per Section 63 of the Bombay Shops and Establishments Act, 1948 instead. 5. It is common ground that under the settlement contracts of services relied upon by the Company the payment of over- time is at 1-1/2 times the ordinary rates of the wages of the employees. Under Section 63 the payment of the over-time is at twice the rate of the wages. 6. The payment under the Act is, therefore, more favourable to the workers. The agreements with regard to the payment of the over-time to that extent is less favourable 3 to the workers. Under Section 69 of the aforesaid Act no rights and privileges of the employees which they are entitled to, under the Act shall be effected by any contract entered into by the employees which are less favourable to them. Section 63 of the Act must prevail over such service contracts. 7. The rate at which the employees would be paid the over- time would be determined upon the statutory rate of twice the ordinary rate of wages. The order of the learned 7th Labour Court to that extent cannot be faulted or interfered with. 8. It is the claim of the employees is that the employees have applied under Section 33-C(2) of the Industrial Disputes Act, 1947 for recovery of monies due from the employers to them. Under that Section they claim the over- time as the amount capable of being computed in terms of money which is to be decided by the Labour Court. 9. The employees relied upon and produced before the Labour Court certain xerox copies of over-time forms showing the amount of over-time payable to them, which they claim was not paid by the employer. These were the 4 only documents relied upon by them. These over-time forms are for only a part of the period for which the claim is made. 10. It is common ground that the employees made a claim between 1st January, 2001 to 31st May, 2004. The over-time forms relied upon by them were not for the entire period. It is contended on behalf of the Advocate for the employees that the employees do not have such forms. It is only because incidentally they had kept xerox copies of these forms, that they relied upon them and produced them before the Labour Court. He contended that the log books with regard to the over-time hours of the drivers is kept in the car for making day to day entries and thereafter submitted to the Company. It remains with the Company. He further submitted that the over-time register is maintained by the Company upon verifying the over-time forms and the Log Book. 11. The evidence of the employee in the affidavit of examination-in-chief is that they are required to maintain the Log Book showing the entire working and the kilometers run by the vehicle and fill up the over-time form which is required to be maintained on day to day basis. It further shows that the company maintains the over-time register 5 and the Company fills up in the register from the over-time forms. This aspect has not been refuted in the cross examination of the employee. 12. The cross examination of the witness on behalf of the Company shows that the Log Book with the Company are not produced by the Company. The over-time register is with the concerned department. That is the Housekeeping Department. Every employee is supplied with wage-slip. The total over-time wages paid are shown in the wage-slip. The workers have to fill up the over-time forms and submit them to the administration. The over-time is payable on the basis of the forms submitted to the employers. All the forms filled in by the workers are with the Administration. Upon being shown the xerox copies of the over-time forms, the witness admitted that they were exactly in the same format as the original over-time forms required to be submitted by the employees to the Company. Some of the forms were signed by the Officer of the Company incharge of Administration. Those documents were admitted as correct by the witness. The xerox copies of certain other over-time forms were not signed by the officer of the Company in administration. Hence, they were not admitted by the witness. He could not depose whether such forms could have been submitted or 6 could not have been submitted to the Administration. Since the witness had not shown the wages of these employees as well as the hours of over-time put in by them, he could not state whether the over-time amount claimed by the applicants was correct. 13. It is seen that the documents relating to the extent of over-time put in by the employees are with the Company. To determine the exact amount of over-time payable, the documents contained the over-time register, the Log book and the original over-time forms would be material to be seen. The employees have neither produced all of those over-time forms nor called upon the Company to produce them. They have not given notice to the Company to produce the documents which were in their possession and power to produce. 14. The learned Judge has correctly accepted the copies of the forms signed by the Officer of the Company as correct. This would constitute secondary evidence. The determination of the over-time on those basis is correct and cannot be interfered with. 15. Relating to the other part of the period of which over- 7 time is claimed by the employees, but without any documentary evidence, the learned Judge has disallowed their claim as not having been proved. It is true that the employee must prove the claim that he makes. That proof is based upon documentary evidence. The documentary evidence may be produced either from the employees' own possession and custody or from the possession and custody of the other party, being the Company, upon giving notice to produce those documents. The claim of the claimant cannot be disallowed only on the ground that he has not produced the documents. No claimant can produce the document which is in the possession, custody or power of the other party. He, however, has the right under the Civil Procedure Code to call upon that party to produce their documents. That right has not been exercised. That right has not been granted by the Labour Court, because application in that behalf was not made. Consequently what is the exact amount, if any, that the employees would be entitled to by way of his over-time during that period cannot be determined and has not been determined. 16. The Court is concerned with the truth of the facts of the parties. The genuine lapse of one party to take recourse to a position in law cannot enure for the benefit of the other 8 party. 17. The Advocate on behalf of the employee has argued that the claim was made for a period of about 41 months. The over-time forms relied upon and produced by the employees are hardly for about 20 months and from 6 months in respect of the two employees. 18. The Advocate on behalf of the employee has drawn my attention to the case of Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif , A.I.R 1968, Supreme Court, 1413 . In which it is held that the party in possession of the best evidence, which would throw light upon the issues in controversy withholding important documents requires the Court to draw adverse inference against him. It is observed in the judgment that such a party cannot rely on the abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. The party in possession of a document, which is a relevant document, must produce the document to be considered by the Court. In that case whether or not the property in suit formed a public trust or was of a particular Survey number was in issue as the property of the Trust came up for consideration. The Manager of the Trust, who claimed to be a hereditary 9 Trustee, had documents with regard to the said property. He did not produce those documents. He also did not produce the account of the Dargah income to substantiate his contention that that was with regard to a particular survey number in which the property was claimed to be situated. It was held that, it was his duty to produce those accounts and not rely upon the fact that it was for the Trustee to show that the Trust was the owner of the said survey number. In that case though he relied upon the documents alleging a certain state of facts, he did not produce the documents which were held liable to be produced. 19. The Advocate on behalf of the Company drew my attention to the judgment in the case of Arvind anand Gaikwad Vs. Uni Abex Alloy Products Ltd. & Ors. 1998(1) CLR, 26 in which the Division Bench of this Court in a Labour dispute held that when the workers relied upon a document in the custody of the employer, but did not call upon the company to produce the document nor cross examined the witness of the company to produce the documents required, his oral word could not be accepted as a gospel truth. It was observed that nothing prohibited the employees from demanding production of the record before the Labour Court and hence, the finding recorded by the 10 Labour Court could not be disturbed. That was the case in which the employee made a statement simplicitor that the Company had engaged more than 300 workers during the preceding 12 months when the claim for retrenchment came to be made. Naturally only the documents which the Company could have in its possession, custody and power would reflect the number of workers actually engaged by the Company. The workers without recourse of those documents, could not make a statement that there were 300 employees and call upon the Court to determine that fact. The worker relied upon only his oral evidence, which evidence came to be rejected. 20. In this case the two employees have relied upon a few of the copies of the over-time forms with them. Few of them were signed by the Officer of the Company; few were not. Those alone were considered. The ones that were signed were accepted and the ones that were not, were rejected. There has been cross examination of the Officer of the Company on behalf of the employees relating to the other documents which are admitted to be in the possession and power of the Company to produce. There has however, been a lapse on the part of their Advocate to give notice to produce those documents of which a reference was made in the cross 11 examination of the Officer of the Company. Interest of justice demands that the original documents be produced and be seen to determine the precise amount of the over- time payable to the two employees at twice the rate of their ordinary wages under Section 63 of the Bombay Shops and Establishments Act, 1948. 21. The Advocate on behalf of the employees states that in every single month during the course of employment of these employees as drivers some over-time would be claimed except when the employees are on leave. The extent of the over-time claimed can, therefore, be seen from the aforesaid records of the Company. It is only if the documents kept with the Company are seen that the precise over-time can be computed by the Labour Court as per Section 33-C(2) of the Act. Hence, following order:- ORDER WRIT PETITION NO.950 OF 2008 1. The challenge to the grant of double the wages by the Labour Court by the Company in Writ Petition No.950 of 2008 cannot be sustained. 2. The Petition No.950 of 2008 is dismissed and the Rule is discharged. 12 WRIT PETITION NO.1514 OF 2008 3. The order of the learned 7th Labour Court, Mumbai granting the over-time only for specified months (which is based upon the signed copies of the over-time forms only) cannot be accepted as a final determination of claim of the employees. Further determination of claim with regard to the other periods is also required to be made upon considering the documents in the possession, power and custody of the Company. Hence, the claim is remanded to the 7th Labour Court for determination of the over-time payable to the two Petitioners as the employees of the Company at double the rate of the wages based upon the Log books, over- time register and over-time forms in the possession and power of the Company. 4. The Advocate for the employees shall give a notice to produce the specific documents required by the employees from the possession of the Company to prove their case with regard to the extent of the over-time payable to them within 4 weeks of obtaining the certified copy of this order. 13 5. Upon such notice being served on the Company, the Company shall produce the documents mentioned in the notice within 4 weeks thereafter. 6. The learned 7th Labour Court shall consider further documents and pass any further order for determination of the claim of the employees as required in accordance with law. 7. The learned 7th Labour Court shall allow both the parties to lead any further oral evidence, if required. (SMT. ROSHAN DALVI, J.)