IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2518 OF 2004 Narayan Sukhtankar, carrying on business in the name of M/s.Suman Art Prints, having address at 4, Prabhadevi Indl.Estate, Gr.floor, Veer Savarkar Marg, Prabhadevi, Mumbai - 400 025. ...Petitioner Versus 1.Narayan P.Bhosale, C/o.Janata Kamgar Union, Bldg.No.8, Unnat Nagar-4, M.G.Road, Goregaon (West), Mumbai -400 062. 2.State of Maharashtra, through the Secretary, Department of Labour Industry, Mantralaya, Mumbai. ...Respondents ...... Mr.Mihir Desai for Petitioner. None for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 15, 2008. FEBRUARY 15, 2008. FEBRUARY 15, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. This Writ Petition takes exception to the Judgment and Order (Award) passed by the Presiding : 2 : Officer, 12th Labour Court, Mumbai dated 23rd March 2004 in Reference (IDA) No.460 OF 1995. The Respondent No.1 raised industrial dispute which was referred under Section 10(1) and Section 12(5) of the Industrial Disputes Act, 1947 for adjudication. 2. According to the Respondent No.1, he was in the employment of the Petitioner firm M/s.Suman Art Prints since 1985 and by oral intimation, was dismissed from service with effect from 2nd June 1994. According to him, he was entitled for reinstatement in service with full back wages and continuity of service with effect from 2nd June 1994. 3. The principal stand taken on behalf of the Petitioner was that the Respondent No.1 was not employed by the Petitioner, for which reason, there was no question of illegal termination of the Respondent No.1 as alleged. 4. The Court below examined the issue as to whether the Respondent No.1 was employed by the Petitioner or was workman or employee of the : 3 : Petitioner. The lower Court proceeded to answer that issue in favour of the Respondent essentially relying on the oral evidence of the Respondent. No contemporaneous record to substantiate the claim of the Respondent was produced or proved in evidence by the Respondent. On the basis of such finding, the reference came to be answered in affirmative and it was declared that the service of the Respondent party/workman have been terminated orally, illegally and without following due process of law with effect from 2nd May 1994 and therefore, the Respondent was entitled for reinstatement with full back wages with continuity of service with effect from 2nd May 1994. This decision is subject matter of challenge in the present Writ Petition. 5. As aforesaid, inspite of service, none appears for the Respondents. With the assistance of the Counsel appearing for the Petitioner, after having gone through the relevant materials on record, I have no hesitation in taking the view that the finding reached by the Labour Court as noted in the impugned decision is manifestly wrong, if not perverse. The Labour Court has essentially : 4 : accepted the oral evidence of the Respondent as it is, which is unsubstantiated. Inasmuch as in support of the claim of the Respondent that he was employed by the Petitioner with effect from 26th December 1985 no contemporaneous record has been produced by the Respondent. Indeed, the Respondent placed reliance on Service Certificate purportedly issued on the letterhead of the Petitioner dated 19th April 1991. Admittedly, this document has not been exhibited as it has not been proved in evidence. The document which was relied by the Respondent was only a xerox copy and not the original thereof. Indeed, attempt was made by the Respondent to produce the original copy by issuing summons to Bank Officers for production of the original thereof which was made over to the Bank. The fact remains that the original letter has not come on record, for that reason, the said document has been marked as Article A and not exhibited. 6. The Court below has proceeded on the specious reasoning that in the Labour Jurisprudence, the procedural Law and standard of proof is not strictly applicable. What has been : 5 : overlooked by the Court below is that even the contents of the document produced by the Respondent during his evidence has not been reproduced or proved during the oral evidence. The Respondent has merely referred to issuance of Service Certificate. The xerox copy of the Service Certificate which is relied by the Respondent although issued on the letterhead of Suman Art Prints is signed by one R.V.Gaitonde. The Respondent in his evidence has not even remotely suggested that said person by name Gaitonde was in the employment of the Petitioner firm. The evidence of Petitioner’s witness who is the sole proprietor of the firm has plainly stated that he himself was looking after all the affairs of the firm and that there was no Manager to assist him. There is no suggestion put to the Petitioner’s witness that one Gaitonde was also in the employment of the Petitioner in some capacity. What is intriguing is that although the Respondent claims that he used to get his monthly salary on signing vouchers, has not produced or proved copy of a single voucher. Significantly, the Respondent claims to be in the employment since 1985 till 1994 : 6 : and every month was receiving wages upon signing vouchers. 7. Suffice it to observe that besides the oral evidence (bare words) of the Respondent, there is no material on record to substantiate the claim of the Respondent that he was in fact employed by the Petitioner as claimed by him or for that matter was in the employment of the Petitioner in any capacity from 2nd May 1994. The evidence of Respondent is short of establishing that factual position, in absence whereof, it will necessarily follow that the Respondent was not employed by the Petitioner, as its employee or workman. On the other hand, it is seen from the record that the Petitioner’s witness has produced the relevant material including the attendance register and wage muster which mentions the names of the persons employed by the Petitioner from time to time. The name of the Respondent does not figure in either of these documents. It is not the Respondent’s case nor suggested in the evidence that the Petitioner was not handing over voucher duly signed to the Respondent or had intentionally not mentioned the : 7 : name of the Respondent in any of the Registers for last nine years from 1985 though the names of other workers are stated in the said documents. 8. Taking overall view of the matter, in my opinion, the finding of fact reached by the Court below is purely on the basis of surmise and giving credence only to the oral evidence without insisting for any contemporaneous documentary record to substantiate the said claim. In my opinion, the Court below has committed manifest error in placing reliance on Article A which document was not proved in evidence nor the contents of the documents have been spoken about the Respondent in his evidence. 9. For the aforesaid reasons, the Judgment and Order under challenge cannot stand the test of judicial scrutiny, for which reason, the same deserves to be set-aside. 10. Accordingly, this Writ Petition succeeds. The impugned decision is set-aside and the Reference stands answered against the Respondent. : 8 : No order as to costs. A.M.KHANWILKAR, J.