: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3683 OF 1999 Burhanuddin Sayyed Ali ... Petitioner V/s. Rank Controls & Instruments (Pvt.) Ltd. & anr. ... Respondents Mr.Avinash Jalisatgi for Petitioner Mr.J.M. D’silva for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. DATED: JUNE 9, 2010 ORAL JUDGMENT: 1. The petition has been filed against the award of the I Labour Court, Thane. That part of the award which does not grant full backwages to the workman has been challenged by him. 2. The petitioner workman was employed with the respondent company from 5.2.1984 as a Turner. On 14.3.1986, which was a weekly off, the petitioner was asked to attend duty. However, he did not report for work and informed the company that he was unable to attend the night shift due to his cousin’s wedding which was scheduled on that day. On 15.3.1986, when the petitioner reported for work, as usual, he was terminated from service without offering retrenchment compensation or notice wages. No chargesheet was issued to the workman prior to terminating his : 2 : services. The petitioner, therefore, submitted the demand for reinstatement with full backwages on 15.9.1986 after his efforts to settle the dispute before the Government Labour Officer had failed. Since the Conciliation also failed, a Reference was made on 17.6.1987 for adjudication of the dispute raised by the Petitioner. During the pendency of the Reference, on 15.4.1993, Respondent No.1 reinstated the Petitioner as the parties arrived at a settlement. However, he was thereafter dismissed from service on 16.8.1995. 3. Evidence was led by both the parties before the Labour Court. The Respondent Company produced three letters on record issued by M/s.Columbia Valve Industries Pvt. Ltd. A second letter was issued by Sohan Engineering Enterprises and the third by Sai Tools. All these letters according to Respondent No. 1, indicated that the petitioner workman was employed from 14.4.1986 to 4.12.1992 in the aforesaid three companies consecutively. In order to prove these documents Respondent No.1 examined two witnesses who at one stage were working in the aforesaid companies. They deposed that they were aware that the workman was employed in the said companies namely M/s.Columbia Valve Industries Pvt. Ltd., Sohan Engineering Enterprises and Sai Tools. 4. The Labour Court after considering the evidence on record, held that the services of the petitioner had been illegally terminated by respondent No.1. The Labour Court further held that the petitioner was entitled to reinstatement with continuity of service. As regards backwages, the Labour Court was impressed by the letters produced on record, purportedly issued by the aforesaid three concerns. M/s.Columbia Valve Industries Pvt. Ltd. issued a letter indicating that the petitioner : 3 : was employed with the company from 14.4.1986 to 25.2.1990. The letter issued by Sai Tools mentioned that the workman was employed from 1.4.1990 to 2.2.1992. The letter issued by M/s.Sohan Engineering Enterprises stated that the petitioner was employed by them from 4.6.1992 to 4.12.1992. In these circumstances, the Labour Court held that the workman was entitled to backwages only for 10 months and 17 days. 5. Mr.Jalisatgi, appearing for the petitioner, takes exception to the finding of the Labour court on the issue of backwages payable to the petitioner. He submits that the petitioner has admitted in his evidence that he was gainfully employed for 7 months in M/s.Sohan Engineering Enterprises. He has also admitted that he worked in M/s.Columbia Valve Industries Pvt. Ltd. for four months. He further denied the suggestion that he was employed with M/s.Sai Tools. The learned advocate points out that the evidence produced by the respondent company to prove the petitioner’s gainful employment during the period of his unemployment, does not in any manner prove that he was employed with those three concerns for the number of days suggested in the letters issued by the aforesaid concerns. The letters were produced on record by the Respondent company through the witnesses examined at exhibit C23, C24 and C25. He submits that the authors of the documents were not examined and therefore those letters could not be said to be proved. He further submits that the workman has truthfully disclosed that he had worked in two of the aforesaid concerns for the periods mentioned by him and not for the periods stated in the letters. According to the learned advocate, therefore, the denial of backwages for the rest of the period, is incorrect. : 4 : 6. Mr.D’silva, appearing for the respondent company, submits by placing reliance on the judgment in the case of Indiana Engineering Works (Bombay) Pvt. Ld. v/s. The Presiding Officer, 5th Labour Court & Ors. reported in 1995 (2) LCR 890, that the workman ought to have truthfully disclosed that he was working in the aforesaid three companies. According to him, since Columbia Valve Industries Pvt. Ltd. was closed when the evidence was recorded, Respondent No.1 could not examine anybody from that company. He submits that Respondent No.1 has, therefore, examined a person who was in employment as Production manager from June 1990 to November 1991. Similarly, he submits that Respondent No.1 has also examined another witness who was in the employment of Columbia Valve Industries Pvt. Ltd. A third witness who was the proprietor of M/s.Sai Tools has also been examined and according to the learned advocate, the evidence of this witness proves that the workman was employed with M/s.Sai Tools. 7. The letter purportedly issued by M/s.Columbia Valve Industries Pvt. Ltd. which has been placed on record by Respondent No.1 company has been signed by the “Proprietor”. There is no explanation as to how there could be a proprietor of a Private Limited Company. The author of this letter, which has been addressed to Respondent No.1 company informed them that the petitioner was working for four years from 14.4.1986 to 25.2.1990 with Columbia Valve Industries, was not examined. The only explanation which is submitted by Mr.D’silva today for not examining the person from that company or the author of the letter is that M/s.Columbia Valve Industries Pvt. Ltd. was closed down prior to the evidence being recorded and therefore it was impossible to examine either the author of the letter or any other person from the company. This submission in my opinion, is : 5 : unsustainable. Firstly, the letter issued by Columbia Valve Industries Pvt. Ltd. which admittedly is a Private Limited Company has been signed by a proprietor. Therefore, the genuineness of this letter is in doubt. Further, the author of this letter has not been examined and the explanation put forth today is does not appeal to me at all. Respondent No.1 could have sought a witness summons on the author of this letter or on the company to produce its records or to examine any person who would be able to prove not only the signature but also the contents of the letter. That has not been done by Respondent No.1. As regards the period of work with Sohan Engineering Enterprises, the workman himself has stated that he worked for 7 months. The period mentioned in the letter issued by Sohan Engineering Enterprises is from 3.6.1992 to 4.12.1992, less than the period of 7 months. The workman has categorically denied that he was employed with Sai Tools. Although the proprietor of Sai Tools was examined, no muster rolls or any other document or records from Sai Tools were placed on record before the Labour Court. The witness was crossexamined and he admitted that M/s.Sai Tools did maintain an attendance and wage register for their employees but conveniently stated that such a register was not maintained during the period from 1990 to 1992. 8. Considering the evidence on record in my opinion, the Labour Court has erred in concluding that the workman is entitled to backwages only for a period of 10 months and 17 days. The Labour Court has committed an error by ignoring the testimony of the petitioner workman which is believable. He has candidly stated that he has worked for 7 months in Sohan Engineering Enterprises and for 4 months with Columbia Valve Industries Pvt. Ltd. In these circumstances, the workman was employed for 11 months. Therefore, he would be entitled to backwages for the entire : 6 : period that he was not employed with Respondent No.1 company less the amount that he earned with Sohan Engineering Enterprises and Columbia Valve Industries Pvt. Ltd. i.e. for 7 months and 4 months respectively. 9. The judgment in the case of Indiana Engineering (supra) is not applicable to the facts in the present case. The Petitioner has disclosed the number of days that he found employment in the two concerns when his evidence was recorded. In Indiana Engineering (supra), the Company had successfully discharged its burden of establishing that the workman was employed gainfully. The workman was obliged to disclose particulars of his employment as the onus then shifted on him. The Respondent Company in the present case has failed to discharge its burden as the letters which were produced on record indicating his employment have not been proved. Despite this the petitioner has disclosed in his evidence the number of months he worked in the aforesaid concerns. Therefore, the Labour Court has erred in not granting backwages for a larger period. 10. Accordingly, the award of the Labour Court is set aside with respect to the grant of backwages for 10 months and 17 days. Instead the workman would be entitled to backwages from 15.3.1986 to 15.4.1993, less the amount that he earned during this period while working elsewhere i.e. for 11 months. 11. Rule made absolute accordingly. No costs. 12. Mr.D’silva seeks a stay of this order for six weeks. In my opinion, there is no need to grant any stay. Stay refused.