bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5071 OF 2008 PETITION NO. 5071 OF 2008 PETITION NO. 5071 OF 2008 M/s.HBO Machines Mfg. Corpn. ... Petitioner v/s Shri Ashok Humbare & ors. ... Respondents Mr.J.P.Cama i/by M/s.Sanjay Udeshi & Co. for the petitioner. Mr.S.N.Deshpande for respondent Nos.1 and 2. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 2ND SEPTEMBER, 2008 2ND SEPTEMBER, 2008 2ND SEPTEMBER, 2008 P.C. P.C. P.C.: 1. The petition challenges the order of the Labour Court in Complaint (ULP) No.721 of 2001 and the Industrial Court in Revision Application (ULP) No.06 of 2007 respectively. The Labour Court has held that the workmen were entitled to 75% of the back wages w.e.f. 1.12.2001 till the date of the order. They were also entitled to continuity of service and consequential benefits for the same period. The petitioners were directed pay wages at the rate of 120 days per annum from the date of the order till the workmen attained their date of superannuation. The Labour Court has also given liberty to the petitioner to reinstate the workmen 2 instead of paying any compensation as aforesaid. The Industrial Court has dismissed the revision application filed by the petitioner and allowed the application filed by the workmen. The Industrial Court has directed reinstatement with full back wages and continuity of service and related benefits. 2. The main contention of the learned counsel for the petitioner is that there is no evidence on record to justify the payment of back wages to the workmen. The submission is that neither of the workmen has led any evidence to show that they were unemployed during the period after their services were terminated and till the date of the order. Counsel submits, therefore, that the order impugned has to be set aside. 3. A perusal of the order of the Labour Court indicates that the workmen had stepped into witness box and had stated that they were not gainfully employed. They have also stated that even after the letter of termination was issued to them, they visited the factory premises, however, no employment was provided to them. The Labour Court, in my view, has rightly held that the only evidence which the workmen can lead to show that they were not gainfully employed, is by stating so on oath. Once they have stepped into the witness box and stated 3 that they are unemployed, it is for the employer to lead evidence in rebuttal and prove that the workmen were gainfully employed. This is well settled by the Supreme Court in the case of J.K.Synthetics v/s K.P.Agrawal & J.K.Synthetics v/s K.P.Agrawal & J.K.Synthetics v/s K.P.Agrawal & anr., anr., anr., reported in (2007) 2 SCC 433. reported in (2007) 2 SCC 433. reported in (2007) 2 SCC 433. 4. The other submission of the learned counsel for the petitioner is that, on merits, the department in which the workmen were employed as storekeepers has been closed down. In fact, according to the learned counsel for the petitioner, no manufacturing activities of the petitioner are conducted in Gala No.103 where the workmen were employed. The petitioner’s witness has stated that they were employed only in Gala No.103 and once those premises are closed down, the question of giving them work does not arise, submits the learned counsel. Reliance is placed by Mr.Cama on the case of Isha Isha Isha Steel Treatment v/s Association of Engineering Steel Treatment v/s Association of Engineering Steel Treatment v/s Association of Engineering Workers, Workers, Workers, Bombay & anr., reported in A.I.R. 1987 SC Bombay & anr., reported in A.I.R. 1987 SC Bombay & anr., reported in A.I.R. 1987 SC 1478, 1478, 1478, is misplaced. According to him, there was no functional integrality between the Stores Department and the manufacturing activities and, therefore, the petitioner cannot be directed to reinstate the workmen in the unit where manufacturing activities have been closed. 4 5. The order of termination issued to the workmen indicates that they have been described by the petitioners as Stores Assistants although they were working as Helpers. The Labour Court has considered this evidence on record and has held that the workmen were employed as Helpers and not Stores Assistants. As regards closure of Gala No.103, the Labour Court has considered the evidence on record in respect of Gala Nos.154, 155 and 156 and has concluded that there is no evidence to indicate that there was closure of the manufacturing activities of the petitioner. In fact, in para 57, the Labour Court has observed that manufacturing licence has been renewed by the petitioner for the period from 2003 to 2007 and that the licence fee has also been paid on 16.10.2002. On the issue of the date of the alleged closure, the Labour Court has observed that the Company has not produced any documentary evidence to demonstrate that they have closed down the manufacturing activities of water pumps. Since the Labour Court has, in the earlier part of the order, concluded that the workmen were employed as helpers with the petitioner and their work was not restricted to the Stores Department, the Labour Court has rightly concluded that the termination of services of the workmen was illegal. 5 6. Admittedly, no retrenchment compensation has been paid to the workmen. Apart from this, the Labour Court has, on the basis of the evidence on record, found that the persons who were junior to the workmen in service, have been retained by the petitioner. Both the workmen have completed several years in service. According to the workmen, one of them is working since 1983 and the other since 1974. The Labour Court has considered the evidence on record and found that the workmen had been employed for this period of time. In my view, therefore, the order of the Labour Court holding that although the manufacturing activities were continuing, the workmen were only entitled to back wages, cannot be accepted. The workmen would be entitled to reinstatement with continuity of service as well. 7. The Industrial Court in revision has, in my opinion, set right the order of the Labour Court by modifying and directing the petitioner to reinstate the workmen with full back wages, continuity of service and related benefits. 8. In my opinion, there is no need to disturb the concurrent findings of fact of the Courts below. 9. Writ petition rejected.