WP/9531/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9531 OF 2010 Mulchand Kachra Shah ... Petitioner V/s. Manoj Kumar Bharat Shah & Anr. ... Respondents Mr. Indrajeet R. Kulkarni for the Petitioner. Mr. M.A. Shaikh for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATE : 17 TH JANUARY, 2011. P.C. : 1. This Writ Petition has been filed to challenge the Award of the Labour Court, Thane in Reference (IDA) No.369 of 2007. The Award has been passed on 23rd July, 2010 granting reinstatement with continuity of service and 75% of back- wages to the respondent No.1 w.e.f. 25th August, 2003. 2. It is submitted on behalf of the petitioner that the respondent No.1- workman has raised inconsistent pleas in his justification statement filed before the Conciliation Officer and in his statement of claim. Reliance is placed on the judgment of the Supreme Court in the case of Steel Authority of India Ltd. & Anr. vs. State of West Bengal & Ors., reported in 2008 III CLR 457, in which the WP/9531/2010 2 Supreme Court has reiterated its view in its earlier judgment in the case of Steel Authority of India Ltd. Vs. Union of India & Ors., reported in 2006 III CLR 659 SC. According to the learned Advocate appearing for the petitioner, the respondent No.1-workman has taken mutually destructive pleas. He points out that in his justification statement the workman has contended that he was in employment from 1997 continuously till his services were terminated in 2003, whereas in the statement of claim he has stated that his services were terminated in 1999. The learned Advocate for the petitioner points out that the respondent No.1-workman has also pleaded in the statement of claim that he was reinstated in view of the oral agreement entered into between the office bearer of the Trade Union representing him and the employer, due to which he continued in service even after 1999. The learned Advocate then submitted that the Reference is bad as the respondent No.1-workman himself has contended that he had filed a complaint before the Labour Court for reinstatement in service which was withdrawn later. It is further submitted that the respondent No.1-workman could not have completed 240 days in service in these circumstances. The next submission of the learned Advocate is that the respondent No.1-workman was working as “a temporary badli workman” and, therefore, was employed only when the permanent workman was not available to work on the warping machine. WP/9531/2010 3 3. The Labour Court has found that the case of the respondent No.1-workman had been proved and it has, therefore, granted him relief. 4. It must be noted that an application was made by the respondent No.1- workman for production of certain documents which was allowed by an order dated 16th May, 2008. The Court had directed the petitioner to produce the necessary documents including the attendance register and salary register from 27th March, 1997 to 25th August, 2003. The petitioner has not produced these documents on the ground that he felt that these documents were useless after the dismissal of Complaint (ULP) No.400 of 1999 filed by the respondent No.1. This complaint was dismissed on 27th November, 2002 despite which the petitioner did not bother to produce the necessary documents. There was no material placed on record as to why the attendance register and salary register for the subsequent period were not produced though the petitioner was directed to do so by the Court. The Court has observed that the petitioner was duty bound to maintain such registers and ought to have produced those registers in Court once directed by the Court. Accordingly, the Court has drawn adverse inference against the petitioner. 5. In my opinion, there is no inconsistency in the pleadings. The justification statement does maintain that the respondent No.1-workman was employed from 27th March, 1997 to 25th August, 2003. The statement of claim discloses the WP/9531/2010 4 petitioner’s conduct in dismissing the respondent No.1-workman from service without any reason in 1999, after which he was reinstated pursuant to an oral agreement between the parties. In my opinion, there is no inconsistency, as claimed by the learned Counsel for the petitioner. 6. The contention that the petitioner had employed the respondent No.1 only for a limited period and, therefore, was called as a “temporary badli workman” is also unacceptable. The petitioner is running a Power Loom Industry. Therefore, the workman could either have been a “temporary workman“ or a ”badli workman”. It appears from the written statement which is filed on record that although the petitioner has chosen to describe the respondent No.1-workman as a “temporary badli workman”, he has further pleaded that the respondent No.1 was employed when the permanent workman went to his native place on 13th July, 1999. However, at the same time, the petitioner has conceded that the respondent No.1 worked from 15th June, 1999 to 31st July, 1999. This, in fact, is an inconsistent plea. Furthermore, in the written statement, the employer has suggested that the warping machine was being used on a contract basis. Therefore, it is difficult to understand how the petitioner had at the same time pleaded that it was being operated by a permanent employee. 7. In my view, the Labour Court has not committed any error by granting the relief to the respondent No.1-workman. The respondent No.1 was able to WP/9531/2010 5 establish that his services were illegally terminated by the petitioner and that after being illegally terminated, he was not gainfully employed. Whatever he earned was only on the basis of a casual work which was just sufficient for his survival. The Labour Court, in fact, has therefore reduced the back-wages payable to the workman to 75%. 8. In my opinion, there is no need to interfere with the Award dated 23rd July, 2010 passed by the Labour Court, Thane in Reference (IDA) No.369 of 2007. 9. The Writ Petition is rejected.