IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3524 OF 1994 WRIT PETITION NO. 3524 OF 1994 WRIT PETITION NO. 3524 OF 1994 M/s.Star Footwear Products Pvt.Ltd. ...Petitioner vs. M/s.National Kamgar Union & Ors. ...Respondents Mr.Madhav Jamdar for the Petitioner. Mr.Nitin S. Kulkarni for Respondent No.1 CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : APRIL 27, 2009 DATED : APRIL 27, 2009 DATED : APRIL 27, 2009 P.C. :- P.C. :- P.C. :- 1. The petitioner is challenging the order dated 21st April, 1989 passed by respondent no.2 - Presiding Officer, 2nd Labour Court, Pune and Award dated 19th February, 1994 passed by the Presiding Officer, 1st Labour Court, Pune, whereby the reference was allowed and the petitioner was directed to reinstate the respondent with full backwages. Brief facts are as under :- 2. The concerned workman Suresh Bapu Surve joined the services of the petitioner with effect from 23.1.1980 on probation for a period of two years. Thereafter, on 10th November, 1984, he was promoted to the post of Supervisor. According to the petitioner, the workman was transferred from one department to - 2 - another, however, the workman did not join the new department as per the transfer order and therefore, a charge-sheet was issued. The Enquiry Officer thereafter held an enquiry and submitted report in which he held that the charges levelled against the workman has been proved and after taking into consideration the past record, the petitioner decided to discharge him from the services of the company. According to the petitioner, the last drawn wages of the workman were Rs.880/-. Thereafter, the matter was referred for reference after the complaint was filed by the workman to the Labour Court. The Labour Court passed the Part I Award and held that the enquiry was not fair and proper. The Labour Court found that the charge-sheet was defective. The petitioner did not challenge Part I Award and was advised to complete the matter on merits after proving the misconduct on merits. During the pendency of the part II Award, an application was made by the respondent seeking a direction directing the petitioner herein to allow the workman to work on his original post forthwith. Accordingly, the Labour Court passed an order directing the petitioner to allow the workman to - 3 - resume his duties forthwith. Thereafter, Part II Award was passed dated 19th February, 1994 and the Labour Court directed the petitioner to reinstate the workman with full backwages. 3. The learned Counsel for the petitioner submitted that pursuant to the interim order which is passed by the Labour Court, the workman was reinstated in service, however, thereafter, a fresh inquiry was held on the workman and his services were terminated which is independently challenged by the workman. The question of backwages, therefore, was restricted to date of reinstatement from the fresh order of termination i.e. pertaining to September 1986 to 1989. Counsel for the petitioner submitted that the petitioner had filed a list of documents in the Labour Court in which they had annexed one letter issued by one company viz. Swastik Rubber Products Limited in which the personal Manager had informed the petitioner company that the workman was working with one of their subcontractors Mr.Kar since November 1986 and he has been receiving Rs.18.90 per day as wages. It was further submitted that the burden of - 4 - establishing that the workman was not gainfully employed was on the union and since that burden had not been discharged, the Labour Court had erred in granting full backwages to the workman. 4. The submission made by the learned Counsel for the petitioner cannot accepted. In the present case, the letter which is annexed at Exhibit F to the petition has not been brought on record by the petitioner and no independent exhibit has been given to this letter. This letter was tendered alongwith other documents in a list of documents which has been exhibited at Exhibit 56, however, this letter has not been brought on record by the Labour Court and as a result, no opportunity was given to the workman to cross-examine the witness in respect of this particular document. The Labour Court, therefore, has rightly not taken into consideration this document in the order itself though no reliance has been placed by the petitioner’s counsel on the said letter. Therefore, it is not now open for the petitioner to rely on the document which has been not brought on record. Mere production of documents alongwith other documents - 5 - by itself would not have the effect of taking the said document on record. The Labour Court has in the Part I Award held that the inquiry itself is not fair and legal. Therefore, the Labour Court in Part II Award had held that on scrutiny of documents and by virtue of the fact that the charges of various misconduct were clubbed together clearly established that the intention of the petitioner was to victimise the employee because he was the Vice-President of the Union. Further on the question of not obeying the transfer order, the Labour Court accepted the evidence of the employee who had stated that he had worked in the transfer department for sometime and thereafter, he was asked to work in the original Repairing Section. The Labour Court also has taken into consideration the question of backwages after considering the evidence on record and has held that the employee was entitled to get backwages. Under these circumstances, the submission made by the learned Counsel for the petitioner cannot be accepted. There is no reason to interfere with the judgment and order passed by the Labour Court in passing the Part I and Part II Award. - 6 - 5. Writ Petition, accordingly, is dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)