... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1530 OF 2003 WRIT PETITION NO.1530 OF 2003 WRIT PETITION NO.1530 OF 2003 M/s Influence New Delhi ...Petitioner Vs. Suresh Gandhi Mumbai 400 014 ...Respondent Shri P.K. Rele, Sr.Counsel with Shri R.P. Rele and Shri Piyush Shah for the Petitioner. Shir N.M. Ganguli for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : JUNE 23, 2006. DATE : JUNE 23, 2006. DATE : JUNE 23, 2006. JUDGMENT: JUDGMENT: JUDGMENT: 1. On last Friday i.e. 16th June, 2006 I have heard the submissions of the learned Counsel appearing for the parties. With a view to appreciate the submissions made by the learned Counsel appearing for the parties it will be necessary to refer to the relevant facts of the case. By this Petition under Article 226 of the Constitution of India, the Petitioner has challenged the judgment and award dated 30th June, 2002 passed by the learned Presiding Officer of the 4th Labour Court, Mumbai in a reference under the Industrial Disputes Act, 1947. By the impugned judgment and award, the reference was allowed and the Petitioner was directed to reinstate the ... 2 ... Respondent with effect from 30th August, 1994. A direction was given to pay full back wages to the Respondent. 2. The Respondent issued notice of demand dated 11th October, 1994 to the Proprietor of the present Petitioner and to M/s.Wings Wear Pvt. Ltd. It is set out in the demand that he was working as an accountant and was paid Rs.3759/-per month as wages. It is stated that his services have been terminated without any notice or without assigning any reason. It is alleged that termination has been effected without holding any inquiry. On 24th October, 1994 the Respondent submitted a statement of justification. In the said statement, he stated that he was employed by M/s. Wings Wear Pvt. Ltd. and the management changed the name of the Company and now the Company is being called as "Influence" which is operating in the same premises. He stated that after the change of name, a fresh letter of appointment has not been issued. The Deputy Commissioner of Labour, Mumbai by order of reference dated 10th May, 1995 referred the dispute between the Respondent and the Petitioner and M/s. Wings Wear Pvt. Ltd. to the 4th Labour Court, Mumbai. The schedule in the said order reads thus: ... 3 ... S C H E D U L E "Shri Suresh Chhotelal Gandhi should be reinstated with full back wages and continuity of service with effect from 30-8-1994." 3. The Respondent submitted a statement of claim before the Labour Court in which he stated that he was working with M/s.Wings Wear Pvt. Ltd. as an accountant since October 1980 and his last drawn salary was Rs.2051/- per month. He stated that he continued to work with M/s. Wings Wear Pvt. Ltd. up to 31st March, 1994 and thereafter his employment was transferred to M/s. Influence i.e. the Petitioner herein with effect from 01st April, 1994. He stated that initially he was not paid salary for the month of April-May 1994 and on 22nd May, 1994 the Petitioner offered salary for the month of April-May 1994 and fifteen days salary for June 1994. He stated that he was surprised as he was given an enhancement of Rs.1700/- per month in the salary. He stated that he was told that as a consequence of transfer to new company, the increment has been granted as per the policy of the management. He stated that he continued to work with M/s. Influence till 30th August, 1994 on ... 4 ... which day he was told that his services were no longer required. Before the Labour Court the contest was only by the Petitioner. There was no contest by M/s Wings Wear Pvt. Ltd. The case of the Petitioner appears to be that the Petitioner has nothing to do with M/s. Wings Wear Pvt. Ltd. It is stated that the Petitioner never had any office in Mumbai. A specific case is made out by the Petitioners that the Respondent was assigned a job work by the Petitioner of clearing certain goods from docks and for that work he was paid sum of Rs.7518/-. It is submitted that there was no contract of employment between the Petitioner and the Respondent. By the impugned judgment and order, the reference was answered in favour of the Respondent as stated above. 4. Shri Rele, learned Senior Counsel appearing for the Petitioner submitted that the findings of the learned Judge of the Labour Court are perverse as the same are contrary to the pleadings and the evidence on record. He submitted that as findings are perverse, this court while deciding Petition under Article 226 of the Constitution of India will have to examine findings on the basis of the evidence on record. He submitted that initially the Respondent came out with a case that he was an employee of M/s. Wings Wear ... 5 ... Pvt. Ltd. and the name of his employer has been changed to M/s. Influence. He stated that in the statement of claim before the Labour Court the Respondent completely changed his case and contended that there was an oral order of transfer of employment made by his original employer M/s. Wings Wear Pvt. Ltd. to the Petitioner. He submitted that as such inconsistent case was made out, the Labour Court could not have accepted the case of the Respondent. He submitted that even assuming that the Respondent has established his case, without considering the facts and circumstances of the case, full back wages have been ordered to be paid which is contrary to the view taken by the Apex Court in its recent decisions. He submitted that order of back wages does not automatically follow as a matter of course after order of termination was found to be illegal. 5. He further submitted that the case of the Respondent regarding order of transfer could not have been accepted by the Labour Court as the order of transfer could not have been passed without consent of the Respondent. He has placed reliance on certain decisions a reference to which is made in the later part of this judgment. ... 6 ... 6. Shri N.M. Ganguli, learned counsel appearing for the Respondent submitted that no interference is called for in a Petition under Article 226 of the Constitution of India with the findings of fact recorded by the Labour Court. He submitted that the findings of fact recorded by the Labour Court are based on appreciation of oral and documentary evidence on record. 7. I have considered the submissions. Shri Rele, the learned senior Counsel appearing for the Petitioner has taken me through the evidence on record and he submitted that in a Petition under Article 226 of the Constitution of India the said evidence is required to be perused with a view to find out whether the judgment of the Labour Court is perverse. Therefore, I am referring to the evidence led by the parties. 8. The Respondent has examined one Shri Gowardhandas Veerji Doshi. He stated that he was working as a manager with M/s. Wings Wear Pvt. Ltd. for about twenty-five years. He stated that the office of the said Company was situated at Mittal Towers, Nariman Point, Mumbai and office of the present Petitioner is also situated in the same ... 7 ... premises. He stated that the two companies viz. M/s Wings Wear Pvt. Ltd. and the Petitioner were family concerns as its directors and partners were the same. He stated that the Respondent was working with M/s. Wings Wear Pvt. Ltd. for about fifteen years and as per instructions received by him from Delhi Office, the Respondent has been transferred from M/s. Wings Wear Pvt. Ltd. to M/s. Influence Company. He stated that the Respondent worked with the Petitioner for about five to six months and on oral instructions received from the Delhi office, the services of the Respondent have been terminated. He stated that he was getting salary also from the Petitioner as he was working for both the Petitioner and M/s.Wings Wear Pvt. Ltd. company. Surprisingly, only two questions are put to the said witness in cross examination by the Advocate appearing for the Petitioner. The first question is in the form of suggestion that witness was not working with the said company which is obviously denied by the witness and the second question appears to be whether the witness has received the witness summons which is answered in the affirmative. The Respondent examined one Chandrakishor Balmukunda Karanjiwala who was working with M/s. Wings Wear Pvt. Ltd. He also supported the Respondent. He stated that alongwith him 5 to 6 workers were transferred by ... 8 ... the Company from 01st April, 1994 to M/s. Influence. He stated that the Respondent was working with M/s.Wings Wear Pvt. Ltd. till March 1994 and was transferred to the Petitioner. So far as this witness is concerned, again there is hardly any cross-examination. 9. In paragraph No.3 of his affidavit of evidence, the Respondent has stated thus: ". I say that initially I was not knowing the transfer of my services but when I did not get my salary for the month of April in the first week of May as per usual practice I enquired with the manager, who told me that my services are transferred to employer No.1 with continuity of service and because of some adjustment in the accounts it will take some time to make the payment. I say that ultimately I got my salary for the month of April and May on 22.6.94 by 2 separate crossed cheques and while making the payment employer was pleased to increase my salary from Rs.1700/- to 3,759/- when I enquired about such increase my salary I was told since I have put in more than 14 years of service I ... 9 ... deserve such an increase and the same has been done as per the management policy. I say that I was paid my salary for the month of April and May 1994 by employer No.1." He states further in paragraph No.5 as under: "5. I say that to my great surprise on 30.8.1994 I was told by the manager that my services are no more required. When I demanded for my legal dues I was promised that I would be paid same at a later date. I say that thereafter I raised an industrial dispute by serving regular demand on both companies. I say that in the present reference I had raised my dispute against both companies because of abundant precaution. I say that since there was no settlement the dispute was referred to this Hon’ble court for adjudication." 10. A specific case was made out by the Petitioner in the written statement that the Petitioner had given certain job work to the Respondent and for that purpose the sum of Rs.7518/- was paid by the Petitioner to the Respondent in two instalments and ... 10 ... the amount paid cannot be treated as salary. Surprisingly, the said case is not put to the Respondent in his cross-examination. The Petitioner examined one Vijay Narayan Sharma who claims to be the Manager of the Petitioner. He stated that he was not aware whether the Respondent was working in M/s. Wings Wear Pvt. Ltd. till 31st March, 1994. He was shown a document at serial No.2 in the list Exhibit U-7 which is the alleged salary sheet maintained by the Petitioner. He stated that the said document was not the salary sheet of the Petitioner. About the document at serial No.3 he stated that the Respondent was paid amount because he was entrusted with a job in the dockyard at Mumbai. 10. On the plain reading of the evidence which is recorded, the following facts emerge: (i) There is no serious challenge to the evidence of Gowardhandas Doshi who stated that he was working with M/s. Wings Wear Pvt. Ltd for twenty-five years and the said company and the present Petitioner were having an establishment in the same premises at Mittal Towers, Nariman Point, Mumbai. ... 11 ... (ii) There is no challenge to his testimony that the Respondent was working with M/s. Wings Wear Pvt. Ltd. till 31st March, 1984 and from April 1984 his employment was transferred to the Petitioner. (iii) There is no challenge to his version that on instructions of Delhi Office he orally terminated the employment of the Respondent. (iv) There is evidence on record to show that some amount was paid by the Petitioner in two instalments to the Respondent. The explanation of the Petitioner to the said payment was that it was on account of the job entrusted to the Respondent. However, no documentary evidence has been produced by the Respondent to substantiate the said contention that the Respondent was given job work. (v) The Petitioner has not produced a true ... 12 ... copy of its salary sheet from its record. (vi) There is no challenge to the statement made by Gowardhandas Doshi that Petitioner and M/s. Wings Wear Pvt. Ltd. were both having establishment in Mumbai. As this fact was proved, it was for the Petitioner to lead evidence and show that establishment and office of the Petitioner in Mumbai was closed on a particular date. That evidence, however, is completely lacking and no such case has been made out by the Petitioner. 11. The learned Labour Court in paragraph 12 of the judgment has extensively considered the evidence of witness Shri Doshi. The learned Judge has also considered the evidence of Shri Vijay Sharma examined by the Petitioner. After considering the said evidence the case made out by the Petitioner has been rejected. I have examined the evidence in this Petition under Article 226 of the Constitution of India only to test the submissions made by Shri Rele regarding perversity of the findings. It is ... 13 ... impossible to record a finding that the findings recorded by the Labour Court are perverse. In fact, the findings recorded are consistent with the evidence on record. 12. The submission of Shri Rele was that there cannot be any transfer as there is nothing on record to show that the Respondent consented to transfer. The fact of transfer has been proved by examining witness Shri Doshi. In the present case the Respondent himself has come out with a case that he was transferred which is supported by the evidence. The Respondent has not made any grievance regarding his transfer. Therefore, it is impossible to say that transfer was without his consent. Therefore, decision relied upon by Shri Rele in the case of Jawaharlal Nehru University Vs. K.S. Jawatkar & Ors reported in 1989(2) CLR 150 will have no application to the facts of the case. 13. That takes me to the second submission made by Shri Rele regarding back wages. He submitted that law on the point has undergone a change and to substantiate his submission he has placed reliance on a decision of Supreme Court in the case of U.P. State Brassware Corporation Ltd. & Anr. Vs. Udai Narain ... 14 ... Pandey reported in 2006 I CLR Page 39. The Apex Court has taken view that if order of termination is held to be illegal, the order for payment of back wages will not be a natural consequence. He has also placed reliance on another decision of the Apex Court in the case of State of Madhya Pradesh & Ors. Vs. Arjunlal Rajak reported in (2006) 2 Supreme Court Cases 711 which also takes the same view. He submitted that without considering the facts and circumstances of the case, the learned Judge has straightaway passed the order of reinstatement and back wages. He submitted that consideration of peculiar facts of the case was necessary for passing order of payment of back wages. 14. There is a categorical statement made on oath by the Respondent that from the date of termination he was not employed elsewhere and he had no means of livelihood. There is no cross-examiantion on this aspect by the Petitioner. The discussion made by the learned judge in paragraph 15 of the impugned judgment shows that the learned Judge was conscious of legal position that grant of back wages is not automatic. The learned Judge has considered the stand taken by the Petitioner which could not be substantiated on evidence. The learned Judge also noted that there was clear assertion in the affidavit of evidence that all ... 15 ... along the Respondent remained unemployed and there is absolutely no challenge to this statement in the cross-examination of the Respondent. The witness examined by the Respondent who was working with both M/s. Wings Wear Pvt. Ltd. and the present Petitioner has categorically stated that both the companies were having office at Mittal Towers at Nariman Point, Mumbai. There is no evidence that the said establishment was closed from a particular date. In my view no fault can be found with the order for payment of back wages passed by the Labour Court. 15. There is no merit in the Petition and the same is accordingly dismissed with no orders as to costs. 16. Shri Rele appearing for the Petitioner prays that the operation of the judgment may be stayed. The request is opposed by Shri Ganguli appearing for the Respondent. He pointed out that though interim stay was granted by this court protection under section 17(b) of the Industrial Disputes Act was granted to the Respondent. 17. Considering the facts and circumstances of the case, the interim arrangement which was prevailing during the pendency of the Petition will continue to ... 16 ... operate for a period of 10 weeks from today. JUDGE JUDGE JUDGE