1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 246 OF 2000 M/s. Sirsat Lodge, Ansabhat, Mapusa, Bardez, Goa, represented by its Partner, Shri Suhas Jayram Sirsat. .. Petitioner v e r s u s 1. Shri Mashnu Gawade, C/o. Advocate P. J. Kamat, Trionora Apartments, 3rd floor, Panaji, Goa. 2. The President, Industrial Tribunal of Goa, Junta House, Panaji, Goa. .. Respondents Mr. V. Menezes, Advocate for the petitioner. Mr. A. V. Nigalye, Advocate for respondent no.1. CORAM : A. P. LAVANDE, J. Reserved on : 14 th January, 2011. Pronounced on : 5 th May, 2011. JUDGMENT : Heard Mr. Menezes, learned Counsel for the petitioner and Mr. Nigalye, learned Counsel for respondent no.1. 2. By this Writ Petition, the petitioner takes 2 exception to the award dated 1st October, 1999 passed by respondent no.2 in Reference No.IT/27/1990 by which the Industrial Tribunal has held that the action of the petitioner ('the employer' for short) in refusing employment to respondent no.1 ('the workman' for short) with effect from 1st June 1989, was illegal and unjustified. The Tribunal has ordered reinstatement of respondent no.1 in service with 60 % back wages from the date of termination till the date of the award. The Tribunal has further held that the workman is entitled to full wages from the date of the award with other consequential benefits and continuity in service. 3. Briefly, the facts leading to filing of the writ petition are as under : It is the case of the workman that he was employed by the employer since 1967 and his last drawn wages were Rs.450/- per month. The employer owns a building known as 'Ramchandra Building' at Mapusa wherein its establishment/ lodge is situated. He was employed as a cleaner by the employer and was being sent for work at Ramchandra Building. He worked for the employer from 1967 honestly and diligently and on 1st June, 1989 when he reported for work, he was orally informed that his services 3 were no more required. He was neither given letter of termination nor one month's notice nor he was paid wages in lieu of notice. The workman raised the industrial dispute and upon failure of conciliation proceedings, the Government of Goa by order dated 3rd July, 1990 referred the following dispute for adjudication to respondent no.2. “(i) Whether the action of management of M/s. Sirsat Lodge, Mapusa and the owner of Ramchandra Building, Mapusa in refusing employment to Shri Mashnu Gawade with effect from 1.6.1989 is legal and justified ?” (ii) If not, to what relief the workman is entitled? 4. In Reference No.IT27/1990, upon the pleadings of the parties, the Industrial Tribunal framed the following issues : “(1) Does Party No.1 prove that he was employed as a cleaner by the Party No.II on payment of Rs.450/- ? (1A) Whether the joinder of two separate employers in the reference is fatal to the reference ? (2). Does Party No.1 prove that his services were legally terminated by Party No.II ? 4 (3) If yes, whether Party No.I is entitled to any relief ? (4) What award or order ? 5. Respondent no.2 held that the workman had proved that he was employed as cleaner by the employer on payment of Rs.450/- per month. The Reference Court also held that joinder of two separate employers in reference was not fatal to the reference. It was further held that the workman had proved that his services were illegally terminated. Consequently, the Tribunal passed an order answering the reference in favour of the workman and ordered reinstatement in service with 60 % back wages and other consequential benefits. 6. Mr. Menezes, learned Counsel appearing for the petitioner submitted that the findings given in the impugned award are perverse warranting interference by this Court. He further submitted that the workman had not led any evidence to prove that there was employer employee relationship between the parties and that the burden of proving the same was entirely on the workman. He further submitted that the workman himself was not very sure as to who was his employer i.e. whether M/s. Sirsat Lodge or the owner of Ramchandra Building. Learned Counsel further 5 submitted that the Tribunal did not appreciate the case set up by the employer in proper perspective and came to the conclusion that the workman had proved that he was employed by the employer from 1967 and that he was refused employment with effect from 1st June, 1989. According to Mr. Menezes, the workman had not discharged the burden of proving that he was in continuous service of employer from 1967 till the date of his alleged termination on 1st June, 1989 and, therefore, the Tribunal has erred in holding that the workman was in employment of employer from 1967 till his alleged termination with effect from 1st June, 1989. In the alternative learned Counsel submitted that in any case, the Tribunal has erred in granting 60 % back wages in the absence of any evidence that he was not gainfully employed from the date of his alleged termination till the date of award. According to Menezes, the burden of proving that the workman was not in gainful employment after his illegal termination from service, was on him and the same has not been discharged by him. Learned Counsel, therefore, submitted that the impugned award is liable to be quashed and set aside. In support of his submissions, Mr. Menezes relied upon the following judgments : (i) U. P. State Brassware Corpn. Ltd. and 6 another Vs. Uday Narain Pandey; (2006)1 SCC 429. (ii) Range Forest Officer Vs. S. T. Hadimani; (2002)3 SCC 25. 7. Per contra, Mr. Nigalye, learned Counsel appearing for respondent no.1/ workman submitted that the Tribunal, after correctly appreciating the pleadings and evidence led by the parties, has come to a right conclusion that the services of workman were illegally terminated with effect from 1st June, 1989. He further submitted that no interference is warranted in the impugned award since the same is neither perverse nor patently illegal. Mr. Nigalye submitted that the Tribunal upon considering all the pleadings of the rival parties has correctly come to the conclusion that the workman was employed by the employer and the reference was not illegal on the ground that the owner of Ramchandra Building was not made party to the reference. According to Mr. Nigalye, the workman sought relief only against his employer i.e. M/s. Sirsat Lodge, who had employed him in the year 1967 and as such, no fault can be found with the finding of the Tribunal that non-joinder of owner of Ramchandra Building was not fatal to the reference. In support of his submissions, Mr. Nigalye relied upon the following judgments : 7 (i) G. M. O. N. G. C. Shilchar V. O.N. G. C. Contractual Workers Union; 2008 LAB. I. C. 2665. (ii) The Delhi Cloth and General Mills Co. Ltd. Vs. The Workmen and others; AIR 1967 SC 469. 8. I have considered the rival submissions and perused the record and the judgments relied upon. 9. Perusal of the impugned award discloses that respondent no.2 has held that the workman had proved that he was employed as a cleaner by the employer and his last drawn wages were Rs.450/- per month. To arrive at this conclusion, the Tribunal has not only relied upon the evidence led on behalf of the workman but also the evidence of Shri Suhas Sirsat, the witness examined by the employer, who stated that the workman, who had worked with the employer till March, 1978 and from April, 1978, he left the services on his own. It was the case of this witness that the workman did not give letter of resignation to employer. The Tribunal held that once the employer admitted that the workman was in their employment, the burden was on the employer to prove that the workman left the services on his own accord from April, 1978. The Tribunal further held that the employer 8 could have led evidence of any of the workers working with him to prove this fact. In this factual background, the version of the workman that he continued to be in service till 31st May, 1989 and his services were illegally terminated with effect from 1st June, 1989 deserves to be accepted. I do not find any perversity in this finding. In so far the argument of Mr. Menezes that the workman has not led any evidence that he was in continuous employment during the period of employment and that the workman had not proved that he had worked for 240 days in a year is concerned, I do not find any merit in the said submission. Firstly, such a ground was not raised before the Tribunal and neither any evidence was led by the employer nor the workman was cross-examined on this aspect. Moreover, the workman in his evidence stated that he was in employment of the employer from 1967 till the date of his alleged termination. In view of this evidence, I find no merit in the submission of Mr. Menezes that the workman has not proved that he was in continuous service from the date of his employment till the date of his alleged termination. In so far as non-joinder of owner of Ramchandra Building in the reference before the Tribunal is concerned, the Tribunal has held that it is the case of the workman in the statement of claim that he was employed by M/s. Sirsat Lodge and he was sent to work at Ramchandra Building. The 9 Tribunal further held that merely because the words “The owner of Ramchandra Building” appear in the schedule of reference, it did not mean that two separate employers were joined in the reference and consequently, non-joinder of the owner of Ramchandra Building was fatal to the reference. The Tribunal also relied upon the fact that it was the contention of the workman that Ramchandra Building was owned by M/s. Sirsat Lodge as is evident from the statement of claim filed by the workman. The Tribunal further held that at no point of time, the employer had raised the objection in the written statement or during the pendency of the proceedings that the owner of Ramchandra Building was not joined as a party to the proceedings. The Tribunal held that there was no joinder of two separate employers in the reference and consequently, the question of non-joinder of the owner of Ramchandra Building, did not arise. I do not find any legal infirmity in the findings recorded by the Tribunal. 10. Mr. Nigalye is right in placing reliance upon the judgment of the Apex Court in the case of G.M.O.N.G.C. Shilchar (supra) in which the Apex Court has held that the Industrial Tribunal is entitled to look into the pleadings and evidence to find out the nature of the dispute between the 10 workman and the employer. 11. In the case of Delhi Cloth and General Mills Ltd. (Supra) relied upon by Mr. Nigalye, the Apex Court has held that in reference under Section 10 of the Industrial Dispute Act, the Tribunal is bound to look into the pleadings of the parties to know the nature of the dispute. Thus, the finding of the Industrial Tribunal that there was no question of joining the owner of Ramchandra Building in reference, cannot be said to either illegal or perverse. In my considered opinion, the Tribunal has correctly appreciated the evidence led on behalf of the workman as well as the employer and has correctly come to the conclusion that the services of the workman were illegally terminated with effect from 1st June, 1989 and at the time of termination, he was drawing Rs.450/- per month. 12. The next question which arises for consideration is whether the Tribunal was justified in reinstating the services of the workman with consequential benefits and granting 60 % back wages. In so far as grant of relief of reinstatement of the services of the workman with consequential benefit and continuity in service is concerned, I do not find any infirmity or illegality in the said order in as 11 much as once it was held that the employer had illegally terminated the services of the workman, he was entitled to be reinstated and continued in service with other consequential benefits in the absence of the employer bringing on record the circumstances which would justify refusal of the said reliefs to the workman. 13. In so far grant of 60 % back wages to the workman is concerned, it is the case of the employer that in the absence of any evidence by the workman that he was not gainfully employed from the date of his termination till the date of award, the Tribunal ought not to have granted 60 % back wages since the burden of proving the fact that the workman was not gainfully employed during the said period, was entirely on the workman. 14. In the case of U. P. State Brassware Corporation Ltd. (supra), the Apex Court has held that the burden is on the workman to prove that he was not gainfully employed during the period for which he claims back wages. In the said case, the Apex Court considering the facts and circumstances of the case set aside the orders passed by the Labour Court and High Court granting full back wages to the workman for the period from 1/4/1987 to 26/3/1993 and reduced it to Rs.25 12 %. The Apex Court in a catena of decisions has held that the onus to plead and prove that the workman was not gainfully employed during, the period for which he claims back wages is on him. The earlier view of the Apex Court was that once termination of the services of the workman is held to be illegal, the workman would be normally entitled to 100 % back wages. ( Vide M/s. Hindustan Tin Works Pvt. Ltd. Vs. The employees of M/s. Hindustan Tin Works Pvt. Ltd and Others; (1979)2 SCC 80. ) However, in recent years the Apex Court has taken a different view as has been taken in the case of U. P. State Brassware Corporation Ltd. (supra). 15. In the present case, the workman was employed as cleaner from 1967 to 1989. In his evidence except for his statement that “I am not presently employed” no other evidence has been led on behalf of the workman to establish that from the date of termination till the date of award, he was not gainfully employed. Considering the period for which the workman was in employment and also the period for which the workman was kept out of the employment and the last drawn wages earned by him, I am of the considered opinion that the interest of justice would be served by granting back wages to the extent of 40 %. 13 16. In view of the above discussion, the workman is held entitled to 40 % back wages instead of 60 % as awarded by the Tribunal. In so far as the other reliefs granted by the Tribunal are concerned, I do not find any ground to interfere with the same. 17. In the result, therefore, rule is made partly absolute in aforesaid terms. Considering the facts and circumstances of the case, the parties to bear their own costs. A. P. LAVANDE, J. SMA