1 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. Date : 14.1.2010 HON'BLE MR. PRAKASH TATIA, J. Mr.Arun Bhansali, for the petitioner. Mr.SKM Vyas, for the respondent. - - - - - Heard learned counsel for the parties. As per the respondent workman, he was appointed on the post of Turner with effect from 4.8.1986. On 7.1.1987, the personnel manager of the petitioner employer got one paper typed in English signed from the respondent by projecting that the respondent is being confirmed in service as permanent employee. However, after one month, when the petitioner was not paid salary as confirmed employee, then on 10.2.1987, the respondent went to the petitioner upon which the personnel manager told the respondent that because of some objection of the union members, he is not being paid the salary of a permanent employee, however, the personnel manager of the petitioner assured that the petitioner has been made permanent. The respondent continued in service 2 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. obviously on the salary of non-confirmed employee. On 4.1.1989, the same personnel manager of the petitioner called the respondent in his office when he was going to his house after completion of his duties and he was given a letter written in English which was dated 4.1.1989 and the Personnel manager of the petitioner obtained signatures on the copy of the said letter. While offering this letter, again the respondent was told by the personnel manager that from today, you have been confirmed. Since the respondent was not knowing English, therefore, he left the place and when he reached to his house and got the letter read from a known person, then he came to know that his services have been terminated. The respondent, therefore, raised industrial dispute and requested the competent authority to refer the matter to the Labour Court. However, the respondent's said request was rejected by the authority vide letter dated 6.9.1990 on the ground that the petitioner's service came to an end with the expiry of the term of the contract and, therefore, the matter cannot be referred as there is no industrial dispute. According to the respondent, he then again approached the competent authority and satisfied the competent authority that he was wrongly removed from service from 5.1.1989, then the matter was referred to the 3 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. Labour Court vide order dated 25.6.1992. Reference was whether the management removed the respondent from service from 5.1.1989 illegally and if that is found to be illegal, then what relief the respondent is entitled to ? The respondent submitted his claim as well as affidavit and he was cross examined by the petitioner. The petitioner produced witness Mr.Himmat Singh Kaviya. The Labour Court after hearing both the parties held that in view of Ex.M/2, document produced by the petitioner before the Labour Court, the term of service was of two years which could have ended on 6.1.1989. However, “undisputedly” the employee's service was terminated from 5.1.1989. The Labour Court, therefore, held that the removal of employee from service was illegal and he be reinstated with continuity of service and 50% of back wages vide award dated 5.10.1996. Aggrieved against the award dated 5.10.1996, the petitioner has preferred this writ petition. According to learned counsel for the petitioner, the sign on the contract of employment is an admitted fact, as has been admitted by the respondent. The contention of the respondent employee is that he was already in service and his 4 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. signature was obtained by misleading the respondent to presume that it is a letter of continuity of service. From the claim of the respondent, it is clear that he was not paid the salary of a confirmed employee after the signing of letter which respondent say from that time he was entitled to salary of confirmed employee. Thereafter, according to him, he came to know about the fact that the letter dated 7.1.1987 was not a letter of confirmation. The copy of said letter remained with the respondent for a good long period. The respondent further admitted that he was given the letter dated 4.1.1989 again by saying that it is letter of confirmation of service of the petitioner and his signature was obtained on its copy and it was delivered when he was returning from his work place after completion of his duty on 5.1.1989 and Annex.3 is the respondent's medical certificate which the respondent himself submitted to the petitioner obtained from E.S.I. Hospital which is dated 6.1.1989 and admitted his status as employee on 6.1.1989. Therefore, the finding of the Tribunal that the petitioner was removed from service with effect from 5.1.1989 is a result of misreading of the documents as well as even the case of the respondent. Learned counsel for the petitioner drew my 5 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. attention to the relevant para of the affidavit of the respondent wherein he admitted that on 5.1.1989 he was on duty, worked till duty hours and after completion of work in the factory premises when he was going to his house, then the letter dated 4.1.1989 was given to him. Therefore, it was admitted case of the respondent himself that he was employee of the petitioner till the end of his working hours of his duty on 5.1.1989. Hence, in view of this admission also, the finding of the Labour Court that the petitioner's service was terminated from 5.1.1989 is illegal. Learned counsel for the respondent workman submitted that the respondent was given appointment on 4.8.1986 and not on 7.1.1987. He drew my attention to the finding of the Tribunal wherein the Tribunal observed that he was given appointment on 4.8.1986 and not on 7.1.1987 and this fact is admitted by the employer. However, so far as the respondent worked in the factory till 5.1.1989 is concerned, this fact, the learned counsel for the respondent could not dispute in view of the clear admission of the respondent in para no.7 of his affidavit. Learned counsel for the respondent also submitted that both the letters i.e. alleged appointment letter dated 7.1.1987 and the letter dated 4.1.1989 by which 6 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. the petitioner was informed that his service will come to an end, were in English and the respondent was not knowing English and, therefore, he could not understand that on what documents, he signed. When the salary was not given as assured by the manager of the petitioner after taking signatures on the letter dated 7.1.1987, he immediately protested and he came to know about the contents of the letter dated 4.1.1989, only when he reached to his house and got it read by his some known person who made it clear that the letter dated 4.1.1989 is not the letter of confirmation of service but was a letter of termination of service. Learned counsel for the respondent with the help of the above plea, submitted that the learned Labour Court has considered all the facts of the case and thereafter pass the award which may not be interfered by this Court while exercising writ jurisdiction. I considered the submissions of learned counsel for the parties and perused the facts of the case. It appears from the finding given by the Labour court that the Labour Court proceeded on assumption that it is not in dispute that the respondent's service was terminated on 5.1.1989 7 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. whereas it was neither the case of the respondent nor of the petitioner. The Labour Court observed that in view of the contract dated 7.1.1987 (Annex.1), the petitioner was entitled to work till 6.1.1989. Meaning thereby, his service in terms of contract could have come to an end on 6.1.1989. However, the Labour Court since proceeded on wrong assumption of fact, therefore, held that the termination of service of the respondent from 5.1.1989 instead of 6.1.1989 was illegal. To find out the truth in the plea taken by the respondent, it is necessary to see the two documents which were duly signed by the respondent are being disputed by the respondent with the help of plea that these documents were written in English, therefore, he could not understand the language of the documents. It would be appropriate to take the plea of the respondent to find out the truth of the letters. The letter dated 7.1.1987 was signed by the respondent on 7.1.1987 and according to him, it was signed because the manager of the petitioner asked him to sign this document as this document is confirmation of his service. The respondent may not have read the document and may not have got it read from any of his known person for good period but when he was 8 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. given salary of non-confirmed employee, then he came to know that he is not a confirmed employee or permanent employee as assured and given in writing by the petitioner, then at that time, he could have seen the document and could have objected the document but he did not object to it. This fact clearly demonstrates that the respondent's plea as raised cannot be believed merely on the basis of his statement so as to contradict a document. The petitioner's non- payment of salary of non-confirmed employee was sufficient ground to look into the letter dated 7.1.1987. By communication dated 4.1.1989, the petitioner was only informed that his term of contract will come to an end on 6.1.1989. This intimation was given to the petitioner on 5.1.1989 and the petitioner came to know about the contents of the document on 4.1.1989 and yet he did not object to it. He even accepted certain monetary benefits, in support of which the respondent tried to rely upon Annex.3 dated 5.1.1989 to show that he was paid all the benefits of service on 5.1.1989. However, Annex.R/3 is not signed by any person. It is an unsigned document. Be it as it may be, if it is so, then on 5.1.1989, the petitioner was not only informed in writing that his service will come to an end on 6.1.1989 but he was paid the required amount which was accepted by 9 S.B. Civil Writ Petition No.824/1997 Alcobex Metals Ltd. vs. Shesha Ram and another. the respondent. In view of the above reasons, the finding recorded by the learned Labour Court that the respondent was removed from service with effect from 5.1.1989 cannot be sustained in view of the fact that the petitioner was given appointment vide letter dated 7.1.1987 and it was a two years contract employment only. Therefore, no case was made out of wrongful retrenchment of the respondent. Consequently, the writ petition of the petitioner is allowed and the award dated 5.10.1996 is set aside. The amount which has already been paid to the respondent/poor employee under Section 17B of the Industrial Disputes Act, 1947 shall not be recoverable. (PRAKASH TATIA), J. S.Phophaliya