1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1433 OF 2003 Sou. Sumitra Yasghwant Gaikwad. ...Petitioner. Vs. M/s. N.D. S. Computer P. Ltd. ...Respondent. .... Mr. S.R. Nargolkar for the Petitioner. None for the Respondent. ..... CORAM :DR.D.Y.CHANDRACHUD, J. April 22, 2008. P.C.: These proceedings arise out of an award of the Labour Court dated 23rd December 1998 in a reference under Section 10 of the Industrial Disputes Act, 1947. The case of the Petitioner is that the Respondent had engaged her as a sweeper during the period between 2nd October 1984 and 17th August 1989, on monthly wages of Rs.325/-. On 17th August 1989, it is alleged, the Petitioner's services were terminated and she was orally directed not to report for work. A reference was made to adjudication after the conciliation proceedings ended in failure. 2 2. According to the employer, the Petitioner was engaged as a casual labourer and was never engaged as a permanent employee. The case of the Respondent was that the Petitioner worked for one or two hours every day and after finishing her work, attended to duties in neighbouring factories. 3. The award of the Labour Court shows that the Petitioner had relied upon: (i) An application for employment dated 1st October 1984; (ii) A copy of the ESI identification certificate dated 1st April 1984, which was valid for three months; (iii) A letter dated 5th September 1989 issued by the Factory Inspector, Class-I recording that the Petitioner was orally terminated from service with effect from 17th August 1989; that the name of the Petitioner was not mentioned in the attendance register and that upon a criminal case being filed against the employer, a fine had been imposed. 4. The Petitioner stepped into the witness box in support of her case. During the course of the proceedings before the Labour 3 Court, the employer was called upon to produce the muster roll and vouchers on the basis of which, payments were effected and the Labour Court observed that an order was passed by the Court directing production of documents. The employer failed to produce the attendance register and vouchers and then took up the position that those documents were not in existence. Before the Labour Court evidence was adduced of the Administrative Officer of the Respondent employer. The witness submitted that payments were being made to the employees on vouchers and that ESI Cards were issued to the permanent employees. The Labour Court, in the course of examining the evidence of the witness observed that he had no knowledge as to whether the services of the Petitioner had been terminated by the employer orally. The witness was unaware as to whether any fine was imposed on the Respondent on the basis of the complaint filed by the workman. The Labour Court observed that the witness had no knowledge about the facts and circumstances relating to the employment of the workman or of her termination. 5. The Labour Court rejected the reference on the ground that 4 in the absence of any documentary evidence, the bare words of the Petitioner that she was employed as a full time employee could not be accepted. The Labour Court surmised that having regard to the dimensions of the Factory, it is unlikely that the Petitioner would have been employed for doing full time work. The Court observed that the Petitioner must have been doing only casual work and that the factory has since been closed down in 1996. 6. In assailing the correctness of the award of the Labour Court, Counsel appearing on behalf of the Petitioner submitted that the Petitioner stepped into the witness box and has discharged initial burden of establishing the relationship of employer and employee. The Petitioner has adduced documentary evidence inter alia consisting of her application for employment, ESI identification certificate and the communication of the Factory Inspector which mentioned the fact of termination of the services of the Petitioner and the imposition of the fine on the employer as a result of a criminal complaint. It was urged that the sole witness on behalf of the employer had no knowledge of the case and an adverse inference 5 has to be drawn since the employer in spite of a direction failed to produce the muster roll, vouchers and other relevant evidence. 7. The Advocate for the Respondent has remained absent at the hearing of these proceedings. 8. The judgment of the Labour Court would show that the Petitioner stepped into the witness box in support of her claim that she was duly employed as a full time sweeper by the Respondent between 2nd October 1984 and 17th August 1989. In the course of evidence, the Petitioner produced her application for employment, ESI identification certificate and the communication of the Factory Inspector, Class-I which dwelt on the complaint of the Petitioner that she was terminated orally with effect from 17th August 1989. It is also stated therein that a fine had been imposed upon the employer in a criminal case. There are two circumstances, which have a significant bearing on the present case, and they must be referred to. The first circumstance, which is significant is that the Petitioner had, during the course of the proceedings, called upon the employer to produce the 6 muster roll, vouchers and other documentary evidence. Despite the order of the Court, the documentary material was not produced on behalf of the employer and the suggestion which was made was that such documentary evidence including the muster roll were not in existence. The second circumstance is that the Administrative Officer, who deposed on behalf of the employer, had absolutely no knowledge, according to the Labour Court, of the facts relating to the employment and termination of the Petitioner herein. 9. It is in this background that the evidence on the record would have to be considered. On the one hand, the Petitioner who was personally conversant with the facts of the case, deposed in respect of those facts and produced such documentary evidence as was in her custody. On the other hand, the employer failed to produce documentary material despite the order of the Court and sought to adduce the evidence of a sole witness who had no knowledge of the facts of the case. In these circumstances, the Labour Court was in error in rejecting the preponderating weight of the evidence on record and in holding against the Petitioner. The 7 Petitioner has discharged the burden of discharging the relationship of employer and employee and of the factum of an illegal oral termination. 10. The question that now remains is about the relief that can be granted. The Labour Court has observed that the factory was closed since 1996. There is no question, therefore, of the grant of reinstatement. The ends of justice would be met if a direction is issued to the effect that the Petitioner would be entitled to retrenchment compensation and terminal dues from the date of the closure of the factory in 1996 computed on the basis that the Petitioner was in continuous service from 2nd October 1984 until the date of termination. The claim for back wages between the order of termination and the date of closure, shall, however, stand rejected since there is no cogent material available on record with regard to the nature of the gainful employment, if any, pursued by the Petitioner during the interregnum. 8 11. The Petition shall stand disposed of in the aforesaid terms. There shall be no order as to costs. .....