1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PEITION NO.6555 OF 2008 M/s.Airfreight Limited. ...Petitioner. Versus Chandrakant B. Netkar & Ors. ...Respondents. ....... Mr. Kiran S. Bapat with Mr. Jayesh Desai i/b. M/s. Desai & Desai Associates for the Petitioner. None for the Respondents. ...... CORAM : DR. D.Y. CHANDRACHUD, J. September 30, 2008. P.C.: The Labour Court has, on a detailed review of the evidence, accepted the contention of the workman that as a matter of fact, he had not resigned from service and that the purported letter of resignation dated 24th February 2000, put forth by the employer was not a genuine document. Various circumstances were relied upon by the Labour Court, which are borne out by the evidence on record and would support the ultimate conclusion. Firstly, on 22nd February 2000, the workman had addressed a letter to the management stating that 2 thereafter, for the next three months, he would not be absent even on a single occasion, failing which, he would voluntarily leave the service. There was no reason, logically speaking, for the workman to address a letter of resignation two days thereafter, on 26th February 2000. Secondly, the workman, as the admitted documents show, was habituated to signing in Marathi and English. In Marathi, the Petitioner signed as 'Chandrakant Balu Netkar' while in English he signed as 'Chandrakant'. The admitted documents were on record. The letter of resignation, Exhibit X1 which contains an alleged signature of the workman referred to the name of the father as 'Babu' whereas the name of the workman's father was 'Balu'. The Labour Court was absolutely correct in holding that it is inconceivable that the workman would have put down a signature containing the incorrect name of his father. This is fortified by the circumstance of the signature on admitted documents which contained the correct name of the father. Thirdly, the management relied upon the report of a hand writing expert. The hand writing expert admittedly did not possess any special qualification. Significantly, the hand writing expert had opined that he had not observed any difference between 3 the admitted letter dated 22nd February 2000 and the disputed letter of resignation dated 24th February 2000. Subsequently, he admitted that the signatures on the two documents were not identical. The hand writing expert also admitted that in the documents at Exh.C-18 and X1 there are visible variations in the handwriting in so far as the month and year were concerned. 2. On the basis of the aforesaid evidence, the Labour Court was justified in coming to the conclusion that the purported letter of resignation was not a genuine document. The finding of fact arrived at by the Labour Court is based on the evidence on the record. 3. Counsel appearing on behalf of the Petitioner submitted that the Labour Court ought to have given an opportunity to the Petitioner to establish the charge of absenteeism by leading evidence against the workman before the Court. There is no merit in the submission. An employer is entitled to seek an opportunity to lead evidence to sustain a charge of misconduct where there is a defect in the disciplinary enquiry or where no enquiry has been held. That 4 however, postulates that the termination must be on the ground of misconduct. In the present case, it was not the case of the employer that the services of the employee were being terminated on the ground of misconduct. The case was that the workman had resigned from service. That being the position, there was no question of permission being granted to lead evidence before the Labour Court in support of a charge of absenteeism. In the event that the employer seeks to establish the charge of misconduct on the ground of absenteeism, it is always open to him to hold a disciplinary enquiry, in accordance with law. 4. Finally, it was submitted that the Labour Court ought not to have awarded back wages. The Labour Court has awarded back wages of 50%. The Court observed that the services of the workman were terminated illegally and that he was deliberately terminated from employment; a case had been made out for back wages. However, considering the length of the period which had elapsed between the termination and the order, a direction was issued for the payment of 50% back wages. It may be noted that the workman, during the 5 course of the Examination-in-Chief stated that he was unemployed from the date of the termination and that he had attempted to obtain employment in Navi Mumbai, Panvel and Mumbai, but he has been unable to do so. The workman had discharged the burden of establishing that he was unemployed and was unable to obtain employment despite efforts. The workman has been unlawfully kept out of employment on the basis of a letter of resignation which was not genuine. The award of reinstatement with 50% back wages does not suffer from any error. There is no merit in the petition which shall accordingly stand dismissed. ......