1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2594 of 2009 Sudhakar B. Shetty ..Petitioner Versus M/s Janatahindu Vishranti Griha .. Respondent Mr. G. R. Baviskar for the petitioner Ms. Rita K. Joshi for the Respondent CORAM : S. J. KATHAWALLA, J. DATE : 19th April, 2010. P.C.: 1. By the present Writ Petition, the Petitioner has impugned the Award dated 24th December, 2008 passed by the 11th Labour Court, Mumbai dismissing the Reference preferred by the workmen on the ground that the petitioner is not entitled to the relief of reinstatement, continuity of service, back wages etc. . 2. According to the Petitioner, he was in the employment of the Respondent Hotel/Restaurant as a Waiter. On 18.8.2003, the Petitioner wanted to resume duty but the Respondent orally terminated the services of the Petitioner saying that his services were not required any more. Since the petitioner was a member of the Mumbai Labour Union, the 2 Petitioner approached the union. The Union sent a request letter dated 16.9.2003 to the respondent and requested the Respondent to reinstate the Petitioner with continuity of service and back wages w.e.f. 18.8.2003. Thereafter, intervention of the Deputy Labour Commissioner was sought in the conciliation proceedings. On account of failure to settle the dispute, failure report was submitted to the authority and the dispute was referred for adjudication to the 11th Labour Court, Mumbai vide Reference (IDA) No. 520 of 2004, which was rejected by the Labour Court by its order dated 24th December, 2008, as set out herein above. 3. The Respondent herein contended before the Labour Court that the Petitioner is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. This contention of the Respondent is rejected by the Labour Court and the respondent has not preferred any Appeal impugning the said finding of the Labour Court. 4. As set out herein above, the Union, in its letter dated 16th September, 2003 addressed to the Respondent, recorded that the services of the petitioner have been terminated w.e.f. 18.8.2003 without assigning any valid reason or prior notice. 5. The Respondent in its written statement had pointed out that the petitioner has not approached the Labour Court with clean hands and 3 has suppressed relevant facts as well as documents, for which he is not entitled to any reliefs. The Respondent has pointed out that the Petitioner had left the services of the Respondent on his own accord in June, 2003.Thereafter he also collected all his dues in full and final settlement and has also issued a receipt acknowledging the same. The Respondent has also produced the receipt dated 3.7.2003 signed by the petitioner in token of having received the amount from the Respondent towards his legal dues, in presence of his co-employee Mr. Umesh Shetty who has witnessed the said receipt. It is further submitted by the Respondent that after collecting his dues, as and by way of an after thought, with a view to make wrongful gain, the petitioner initially sent a letter through the union dated 16th September, 2003 and thereafter sent his demand notice dated 20th November, 2003, illegally demanding his reinstatement in service with full back wages and continuity of service. 6. The proprietor of the Respondent has categorically stated in his evidence that the Petitioner left his employment in June, 2003 and thereafter collected his legal dues on 3.7.2003 and executed a receipt which was produced by the Respondent. The said receipt is witnessed by the co-employee of the Petitioner Mr. Umesh Shetty. Mr. Umesh Shetty has also deposed that the petitioner accepted his legal dues in his presence and executed a receipt which is witnessed by him (Umesh Shetty). 4 7. The learned Presiding Officer of the Labour Court has recorded that he has compared the signature of the petitioner on the revenue stamp on the receipt alongwith his signature filed in the Reference and based on Section 73 of the Indian Evidence Act, has come to the conclusion that the signature is that of the Petitioner. The Labour Court has also discussed the evidence of the Petitioner, the Respondent and Mr. Umesh Shetty as regards the petitioner having collected his legal dues and issuing receipt of the same to the Respondent and has come to the conclusion that the petitioner left the services on his own accord and has received the legal dues. The petitioner after leaving the employment of the Respondent and after collecting his legal dues, has raised a dispute which is nothing but an after thought. 8. In my view, the learned Presiding Officer has, after appreciating the evidence, correctly concluded that the petitioner has left the employment of the Respondent on his own and has thereafter come up with a false case of wrongful termination as an after thought. The Petitioner throughout represented to the Union as well as to the Labour Court that his services were terminated on 18th August, 2003. As against this, it was always the case of the Respondent that the petitioner left the employment on his own accord in June, 2003. In the cross examination of the petitioner, the dishonesty of the petitioner stood exposed when he admitted that "It is true that after 30.6.2003 I have not worked with the 5 first party ". The fact that the petitioner had not worked with the Respondent from 30th June, 2003 was throughout suppressed until the petitioner admitted the truth in his cross examination. The case advanced by the Respondent that the petitioner left the employment of the Respondent since June, 2003 on his own accord and after collecting his dues on 3rd July, 2003 and issuing receipt with regard thereto has come up with a dishonest case of wrongful termination against the Respondent in September, 2003 is therefore established . The petitioner did not even attempt to explain why he had not worked with the Respondent since June, 2003. Interestingly the learned Advocate appearing for the petitioner initially argued before this Court that the petitioner in the present Petition as well as the petitioner in Writ Petition No. 2595/2009 were made to sign the receipts by the proprietor of the Respondent under pressure, but later tried to wriggle out of his submissions by saying that the same was a mere slip of tongue. 9. The learned Advocate for the Petitioner has tried to contend that the receipt purportedly issued by the Petitioner was not submitted alongwith the written statement and there was delay in producing the receipt before the Court. Apart from the fact that the Respondent in his written statement has mentioned the fact that the petitioner has issued the said receipt, the Advocate for the petitioner has cross examined the proprietor of the Respondent on the said receipt but could not make any 6 dent in the evidence of the Respondent. Though Mr. Umesh Shetty has also inter alia stated in his evidence that the Petitioner has issued the said receipt in his presence and that Mr. Umesh Shetty has also signed the receipt as a witness, Mr. Umesh Shetty is not at all cross examined on the issue pertaining to the said receipt, on behalf of the petitioner. 10. Under the circumstances, this Court is of the view that the Labour Court is correct in its finding that the petitioner has left the employment on his own accord in June, 2003 and has come up with a false case of wrongful termination in September, 2003 and that the petitioner is therefore not entitled to an order of reinstatement or back wages. This finding of the Labour Court needs no interference under article 226 of the Constitution of India. 11. The Writ petition is accordingly dismissed. ( S. J. KATHAWALLA, J.)