1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 957 of 2007 (M.S.R.T.C. Vs. Sk. Nizam Sk. Mehmood) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. A.S. Mehadia, Adv. For the petitioner. Mr. C.V. Jagdale, Adv. For respondent. CORAM : Smt. Vasanti A. Naik, J. DATE : 1 st October, 2008 By this petition, the petitioner- M.S.R.T.C. impugns the Award passed by the Labour Court, Yavatmal, on 17/8/2006 in (Ref) IDA No. 13/2004 by which the reference was partly answered in favour of the respondent and the petitioner was directed to reinstate the respondent with continuity of service, within two months from the date of the Award. It was the case of the respondent before the Labour Court that the respondent was working as Cleaner with the petitioner- Corporation since the year 1982 and from 15/11/1986, he was appointed as an Attendant at the Yavatmal Bus Stand. It is the case of the respondent that he was terminated by an oral 2 order with effect from 31/8/2000. According to him, the provisions of Industrial Disputes Act were not complied, prior to his termination and hence, the respondent was entitled to be reinstated in service with continuity and back wages. The petitioner had filed the written statement and denied the claim of the respondent. It was stated by the petitioner that there was no relationship of employer and employee between the parties and the respondent was a daily wager and was working as and when his services were required. According to the petitioner-Corporation, no appointment order was ever issued to the respondent and there was no necessity to comply with the provisions of Section 25F of the Industrial Disputes Act. The Labour Court partly allowed the reference filed by the respondent and held that the respondent had succeeded in proving that he had worked for 240 days in one year before the date of his termination. The Labour Court further held that the petitioner had illegally terminated the services of the respondent on 31/8/2000. The Court also held that the respondent was working as an Attendant with 3 the petitioner-Corporation from 15/11/1986 till 31/8/2000. The Award passed by the Labour Court on 17/8/2006 is impugned in the instant petition. Shri Mehadia, the learned counsel for the petitioner, submitted that the Labour Court was not justified in holding that the respondent worked as an Attendant for the period of four years, when there was no cogent evidence to support the said findings. The counsel for the petitioner further submitted that it was not the case of the respondent that he had worked for a period of more than 240 days and hence compliance of the provisions of Section 25F of the Industrial Disputes Act, was necessary. In this background, according to the counsel for the petitioner, the Labour Court could not have framed the issue about the continuous working of the respondent for a period of 240 days in one year before the date of his termination. The counsel for the petitioner lastly submitted that the Court could not have drawn an adverse inference against the petitioner. The counsel for the petitioner relied on the decisions reported in (2006) 4 SCC 1, (2007) 1 SCC 408, (2006)7 SCC 161, 4 (2006) 5 SCC 493 and (2006) 5 SCC 764, to substantiate his submissions. Shri Jagdale, the learned counsel for the respondent, supported the Award passed by the Labour Court, Yavatmal, and submitted that the Labour Court had rightly held that the respondent had worked for 240 days in the previous year of his termination on the basis of several documents produced by the respondent. It is further submitted on behalf of the respondent that the Court was also justified in drawing an adverse inference against the petitioner as the petitioner had failed to produce the documents, in spite of the issuance of notice to produce the same. In the absence of any evidence on the part of the petitioner- Corporation, the Labour Court, according to the counsel for the respondent, rightly considered the evidence produced by the respondent, to hold that the services of the respondent were illegally terminated. He sought for the dismissal of the petition. The record and proceedings were called in this case. I have perused the record and proceedings as well as the Award dated 17/8/2006. The respondent had examined 5 himself and had also examined one Maheshsingh who was also working with the petitioner-Corporation. Nothing was brought out from the cross-examination of the respondent and his witness to shake their evidence in their examination-in-chief. The petitioner-Corporation had not examined any witness on their behalf. The petitioner- Corporation had also not filed any documents though a notice was issued to the Corporation to produce the relevant documents on record. The respondent had filed various certificates on record to show that he was working with the petitioner- Corporation since 21/9/1982 as a Casual Labourer and thereafter since the year 1986, as an Attendant for Drivers and Conductors Rest House. Three experience certificates were produced on record to show that the respondent had worked from 1986 to 1989 as an Attendant and an order issued by the Divisional Controller of the petitioner- Corporation at Yavatmal dated 8/12/1986, was also produced on record which showed that the respondent was appointed as an Attendant in the Drivers and Conductors Rest House. Another such order dated 7/8-11-1988 was 6 also placed by the respondent on record. The respondent further placed a document dated 2nd August, 1989 before the Labour Court to show that the Chief Labour Officer had communicated to the Divisional Controller of the petitioner-Corporation at Yavatmal that additional crew was required at the Rest Room and a proposal in that regard should be sent to the concerned authority. Several other documents were also placed on record to show that the respondent was working as the Attendant. In this background, there was nothing wrong in the findings recorded by the Labour Court in the Award dated 17/8/2006 that the respondent had worked for more than 240 days in one year prior to the date of his termination and since the petitioner- Corporation had not complied with the provisions of Section 25F of the Industrial Disputes Act, the termination was liable to be set aside. The Labour Court recorded a categorical finding that the respondent worked as a Cleaner from 1982 to 1986 and thereafter as an Attendant in the Rest Room from 1986 till 31/8/2000. The finding is based on the 7 evidence produced by the respondent on record and cannot be said to be unreasonable or perverse, in any case. Since the respondent had not worked with the petitioner during the pendency of the proceedings, the Labour Court rejected the claim of back wages and re- instated the respondent with continuity of service. The Labour Court was right in drawing an adverse inference against the petitioner- Corporation as the petitioner-Corporation had neither examined any witness from the Corporation, nor produced any documents, though a notice to produce the same was issued to the petitioner-Corporation. In the facts and circumstances of the case, the judgments relied on by the petitioner would not be applicable, to the case in hand. For the reasons aforesaid, the petition is dismissed with no order as to costs. JUDGE RMP