WP/3834/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3834 OF 1999 Force Motors Limited Akurdi, Pune ... Petitioner V/s. Shri K.S.R. Pillai ... Respondent Mr.S.K. Talsania i/b Sanjay Udeshi & Co. for Petitioner Ms.Gayatri Singh for Respondent CORAM: SMT.NISHITA MHATRE, J. JUDGMENT RESERVED ON : FEBRUARY 18, 2011 JUDGEMENT DELIVERED ON: MARCH 11, 2011 JUDGMENT: 1. The petition is directed against the award of the Labour Court passed on 21.4.1999 directing the petitioners to reinstate the respondent in service with continuity of service and pay him full backwages. 2. The brief facts giving rise to the present petition are as follows: The respondent was employed as a Turner with the petitioners and was working on the lathe machine. On 17.1.1983, the respondent was warned for having given less production as it was less than 50% of his average normal production. He was chargesheeted on 9.2.1985 because according to the petitioners, he did not improve his production levels. He was manufacturing components at a rate which was lower than other workers. An enquiry was instituted against the respondent as his WP/3834/1999 : 2 : explanation to the chargesheet was not accepted by the petitioners. The enquiry officer found him guilty of the charges levelled against him i.e. of giving less than the normal production. Thereafter, the petitioners dismissed the respondent by an order dated 24.7.1985. 3. Aggrieved by the decision of the petitioners to dismiss him, the respondent raised an industrial dispute for reinstatement with continuity of service and full backwages. This dispute was referred for adjudication before the Labour Court in Reference (IDA) No.72 of 1986. 4. The respondent contended in his statement of claim that he was not afforded a reasonable opportunity to defend himself at the enquiry and therefore the enquiry was a mere formality and a farce. He contended that his earlier production statements had not been produced in the enquiry nor was there any material on record to show that he had intentionally reduced the production. It was further pleaded that the enquiry officer had found him guilty on the basis of assumptions. He has further pleaded that the petitioner wanted him to achieve the production levels in accordance with the settlement signed by the petitioners with Bajaj Tempo Kamgar Sanghatana which was not recognised. According to him, he and other workmen who were members of the Engineering Labour Union affiliated to CITU had been unfairly targeted. The validity of the settlement signed in October 1984 by the petitioners with the aforesaid Sanghatana had been challenged in the Industrial Court and during the pendency of that proceeding, the petitioner had thought it fit to dismiss him from service. WP/3834/1999 : 3 : 5. The petitioners in their written statement contended that a fair and proper enquiry had been held by the enquiry officer. The petitioner did not attend the enquiry and therefore it was concluded ex-parte. Considering the gravity of the misconduct, the respondent had been dismissed. 6. By award part I dated 28.2.1994, the Labour Court held that the enquiry conducted against the petitioner was not fair, legal or proper. It further concluded that the findings recorded by the enquiry officer were perverse. The labour Court found that the petitioners had not afforded reasonable opportunity to the respondent to attend the enquiry. He had applied for adjournments on three occasions giving reasons for the same. He had also mentioned in a letter dated 3.7.1985 that he was not relieved by his Department in order to attend the enquiry and, therefore, the adjournment of the enquiry was necessary. Having noted of the circumstances in which the respondent was unable to attend the enquiry the Labour Court found that the enquiry was vitiated. This award has not been challenged in the present petition. 7. Thereafter the petitioners led evidence in the Labour Court to prove the charges levelled against the respondent. The first witness examined by the petitioners was the Deputy Manager of the company. He conceded that the entries in the production charts are not made daily. He also stated that the norms of production during the period from 1981 to 1985 did not change. He has also admitted that he had no idea as to how the standard time for production i.e. the norms of production were fixed. The other witness examined by the petitioners was from the industrial engineering department. He has stated that the standard time was decided by the Industrial engineering techniques. The third witness examined was a Junior Officer WP/3834/1999 : 4 : in the time keeping department. The respondent examined himself before the Labour Court to rebut the evidence of the petitioners. He has stated categorically that nobody from the engineering department had carried out any time study while fixing the norms of production. 8. Based on this evidence, the Labour Court by award part II allowed the reference and set aside the order of dismissal. The Labour court found that the misconduct alleged against the workmen had not been proved and therefore he was entitled to reinstatement with continuity of service and full backwages. Hence, the present petition. 9. It appears that before admitting the petition, by an order dated 27.8.1999, the respondent was directed to furnish an undertaking that he would give normal production or production which was similar to the production of any other employee similarly situated if he was reinstated. Accordingly, the respondent has been reinstated in service and only the order granting backwages was stayed. 10. Mr.Talsania, appearing for the petitioners, submitted that the chargesheet mentioned the levels of production achieved by the respondent between 29.12.1984 and 30.1.1985. The average production level achieved by the petitioner was less than 100 pieces within the time taken by other employees who produced 196 pieces. He submitted that although no settlement fixing the production norms was in operation, the standards set in the company and achieved by other workmen were not attained by the respondent. He submitted that after reinstatement the workman has been giving the production levels which are the same as the other workmen. WP/3834/1999 : 5 : According to him, therefore, the contention of the respondent that it was not possible to achieve the level of production set by the company was false. He further points out that a co-workman of the respondent had achieved a production level of 196. 11. Ms.Singh appearing for the respondent points out that no time study was carried out nor were any norms of production fixed in any settlement or award. She submits that the standard time limit was 154 while the target was 250 according to the Deputy Manager examined by the company. She further points out that the production charts were not produced on record and, therefore, the Labour Court has not committed any error by concluding that the dismissal of the respondent was improper. 12. I have perused a copy of the award and in my opinion there is no reason to interfere with the award. The Labour Court has taken a possible view while holding that the respondent is not guilty of any misconduct. There is no perversity in its findings as suggested by Mr.Talsania and therefore I see no reason to interfere with the award. 13. The Labour Court has found that the Deputy Manager has admitted in his cross-examination that a workman cannot work for 478 minutes in a shift of eight hours. This witness had no idea as to how production norms were fixed, that is, the standard time for one component. The witnesses examined by the company deposed that the respondent was giving less production than one Shri Pawale. This workman had achieved levels of production which were more than the target in eight hours as seen from the production chart produced before the Labour Court. WP/3834/1999 : 6 : However, the person who prepared the production chart was not examined before the Labour Court. The Labour Court also found that there was no material on record to indicate that the respondent was informed the standard time and the production levels required to be maintained. The Labour Court has observed that there was a dispute with respect to the norms of production between the workmen and the company in 1980. It was decided that the matter should be resolved by referring it to National Productivity Council. The Labour Court found that there was no material to indicate that these norms for production were fixed and that the standard time was 196 pieces for an 8 hour shift was difficult to believe. The Labour Court has found that the production levels of the respondent were compared only with Shri Pawale who it was suggested committed suicide after being directed to achieve these production levels. No other workman's production charts were produced on record by the petitioner. Therefore, the Labour Court found that no specific norms were agreed upon by the parties nor was their any intimation to the respondent to achieve a certain target. In these circumstances, the Labour Court found that the chargesheet had not been proved. 14. In my opinion, the reasoning of the Labour Court cannot be faulted. It has considered the evidence on record in great detail and concluded that the misconduct has not been proved. Therefore, the Labour Court was right in awarding reinstatement with continuity of service to the Respondent. 15. On the question of award of backwages, Mr.Talsania submits that there was no pleading in the statement of claim to the effect that the respondent workman was unemployed. WP/3834/1999 : 7 : 16. It is true that there are no pleadings contained in the statement of claim about the unemployment of the workman after he was dismissed from service. However, there is evidence on record to indicate that the workman was employed. In fact, he has been cross-examined on this point and he has stated that he had no evidence to show that he had tried to get alternate employment after his dismissal from service. In the case of Taranjit Singh I. Bagga vs. Maharashtra State Transport Corporation, 2008 III LLJ 273, the Division Bench of this Court at Nagpur has considered the judgment of the Supreme Court in various decisions including U.P. State Brassware Corporation Ltd. vs. Uday Narayan Pandey, (2006) 1 SCC 479 and has relied on the judgment in the case of J.K. Synthetics Limited vs. K.P. Agarwal, (2007) 2 SCC 433. The Division Bench has observed “we would not be in a position to conclude that the moment a person is sacked he could find alternate means to his wherewithal. In this situation it would be unjust to insist upon the requirement of pleading and proof of absence of gainful employment by an employee who is wrongly dismissed”. 17. In these circumstances, in my opinion, there is no reason to differ with the view taken by the Labour Court on the question of backwages. The witnesses of the petitioners have not stated anything about the employment of the respondent after his services were terminated by the petitioners. The respondent has discharged his burden by stating on oath that he was not employed and, therefore, it was necessary WP/3834/1999 : 8 : for the petitioners to rebut this evidence if they wanted to ensure that the backwages were not awarded to him. Having failed to do so, in my opinion, the submission of Mr.Talsania that the workman should be deprived of the backwages cannot be accepted. 18. Writ Petition is dismissed. Rule discharged. No costs.