1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.80 OF 2008 IN WRIT PETITION NO.2643 OF 2006 The Mumbai Diamond Merchant's Association, 22/23 & 547, Pancharatna, Ground Floor, Opera House, Mumbai – 400 004. ..... Appellant V/s. 1. Vijay Devshankar Dave Indian Inhabitant of Mumbai, Residing at Ratan Apartment, Gr. Floor, Flat No.8, S.V.Road, Borivali (W), Mumbai – 400 092. 2. Mr.M.M.Sayyed, Presiding Officer, 10th Labour Court, Mumbai, having his Office at, New Administrative Building, Bandra (E), Mumbai. .... Respondents Mr.V.P.Vaidya, Advocate, for the Appellant. Mr.Kiran Bapat a/w Jayesh R. Desai i/b Desai & Desai Associates, for the Respondent No.1. CORAM : SRI R.M.S.KHANDEPARKAR & 2 SRI P.B.MAJMUDAR, JJ. DATED : JUNE 26, 2008. ORAL JUDGMENT ( PER SRI R.M.S.KHANDEPARKAR, J. ) 1. Heard. 2. Admit. By consent, heard forthwith. The learned Advocate for the respondent waives service. 3. The respondent No.1 joined the services of the appellant in 1981. While performing the secretarial duties in course of his employment with the appellant, on 2nd April, 2001, the respondent No.1 wrote a letter to the appellant whereby he requested the appellant-management not to allot him the accounts work. On submitting such letter, the services of the respondent No.1 came to be terminated by the letter dated 10-04-2001. 4. Undisputedly, neither any show cause notice was issued, nor any inquiry was conducted pursuant to the terminating of his services, besides the employees junior to him were retained in service and therefore, the respondent No.1 raised industrial dispute and claimed the relief in the nature of reinstatement and full back wages. 5. Before the Labour Court, the respondent No.1 examined himself and a witness by name Shri Prakash Shah, whose testimony in examination-in-chief was in the form of an affidavit. By the award dated 17-03-2006, the Labour Court rejected the reference on the ground that the 3 respondent No.1's misconduct was duly established. The respondent No.1 challenged the award before the learned Single Judge, who upon hearing the parties allowed the same by the impugned order dated 27-06-2007. Hence, this appeal. 6. The appellant challenges the order dated 27-06-2007 passed by the learned Single Judge in Writ Petition No.2643 of 2006 on three grounds. Firstly, that the learned Single Judge erred in placing undue reliance on an isolated statement of the deponent of the appellant that he did not know English and had not read the affidavit. Merely on such statement, his entire testimony could not have been discarded. The oral evidence of the said witness before the Labur Court ought to have been considered in the matter. The learned Single Judge having ignored the same, has failed to exercise his jurisdiction. Secondly, it is the contention on behalf of the appellant that there was no material placed on record to justify the grant of full back wages, and thirdly that the learned Single Judge as well as Labour Court ought to have considered that the employee who had expressed hesitation to perform the duties of accountant was not entitled to be retained in service. 7. A perusal of the impugned order clearly discloses that the Labour Court had totally ignored the fact that the testimony of the witness on behalf of the appellant was essentially in the form of an affidavit. However, 4 when the deponent entered the witness box to confirm the contents of affidavit, he had clearly admitted that he did not know English language and he had not read the affidavit. Undisputedly, the affidavit was in English language. Once the deponent had stated that he had not read the affidavit and that he was not aware of the language in which the affidavit was drafted and recorded, no value could have been attached to such an affidavit. The Labour Court had totally ignored this aspect while granting relief in favour of the appellant. The learned Single Judge, therefore, rightly set aside the findings arrived at by the Labour Court on the basis of the alleged testimony of the deponent and on proper analysis of the materials placed on record, held that there was no evidence whatsoever in support of the alleged misconduct on the part of the respondent. No fault can be found with the impugned order discarding the testimony in the form of affidavit which was admittedly not to the knowledge of the deponent. The testimony before the Labour Court nowhere supports the case of the appellant. 8. As regards the second ground of challenge, admittedly the respondent had asserted in the course of his testimony that he was not gainfully employed during the period from termination of his service till the date of his deposition before the Labour Court. Mere denial thereof would not lead to conclusion that the respondent was infact gainfully employed 5 during the said period. There ought to have been some evidence produced on record by the appellant in that regard. The solemn statement by the respondent before the Court asserting that he was not employed during the said period, cannot be just ignored to deny the wages to the respondent. In this view of the matter, we do not find any case for interference in the finding in that regard arrived at by the learned Single Judge. 9. As regards the third ground of challenge, attention was sought to be drawn to a letter dated 02-04-2001 written by the respondent to the appellant, which reads thus : - “To, The Mumbai Diamond Merchant Association, Mumbai – 400 004. Respected Honourable Secretary, With respect, I do not have interest in account work. So please do not give me the said work”. 10. A plain reading of the said letter discloses that the employee had brought to the notice of the management that he was not interested in the account work and therefore, he had requested to allot him some other work. With the specific query about the letter of appointment, the learned Advocate for the appellant was unable to place on record a copy of appointment letter issued to the respondent. However, the affidavit which 6 was filed by the respondent before the Labour Court specifically disclosed the nature of duties that the respondent was performing. Para 2 of the said affidavit read thus : - “I say that I was performing the following duties in the first party Association :- (a) Writing minutes in the minute books on the basis of rough draft given by the Secretary. (b) Issuing identity cards to the members; (c) issuing receipts for the amounts received by him towards the issuance of identity cards; (d) Displaying notices on the notice boards; (e) putting notices in his own hand-writing on the notice board; (f) dispatching correspondence by post to the parties. (g) Looking after the maintenance of the trading hall i.e. Looking after fittings of lighting, plumbing, air-conditioners, etc. whenever the problems used to rise the second party workman was receiving complaints, and accordingly he used to call electricians, plumbers, air-conditioning etc. and was seeing that the complaint is attended properly. (h) Receiving membership from members and issuing receipts to them. 7 (i) Entering the details of membership in the member's registrar occasionally. (j) Greeting the banners, etc. prepared and displaying the same at the time of exhibitions in Diamond Commercial zone. (k) To make translation of the yearly audited reports from English to Gujarati language and (l) Such other clerical work, which are required to be done”. 11. Apparently, the nature of the work which was carried out by the respondent was of clerical type. It is not the case of the appellant that there was no scope for clerical work being allotted to the respondent. In the absence of letter of appointment being produced by the appellant disclosing the nature of work for which the respondent was employed, mere claim of the appellant that he was employed for the purpose of accounts works, and that too in the face of what is stated in the affidavit and quoted above cannot be accepted. In an office of an establishment like that of the appellant, it cannot be said that apart from account work, there would be no other work. In the circumstances, merely because the respondent had written a letter requesting the appellant to give him any work other than account work, that itself would not amount to refusal to attend or perform his duties. We do not find any misconduct on the part of 8 the respondent for having written such request letter. Mere request by the employee to the employer that he may not be allotted a particular work, that itself cannot amount to misconduct, unless such request is directly contrary to the duties attached to his office. In the matter at hand, at least no material has been produced before the Court in that regard. It is also not the case of the appellant that inspite of request made by the respondent having rejected, the respondent refused to do any work other than that of a clerk. In the circumstances, therefore, we do not find any case for interference in the impugned order. The appeal therefore fails and is hereby dismissed. No order as to costs. ( P.B.MAJMUDAR, J.) ( R.M.S.KHANDEPARKAR, J.)