-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1016 OF 1997 M/s. Prasad Process Pvt. Ltd., a Company ) incorporated under the Indian Companies Act,1956 ) having its registered office at 98, Atlanta, ) Nariman Point, Mumbai-400 021 )..Petitioner versus 1. Pratap Ramchandra Kankonkar ) Sai Smruti Chawl No.1, Room No. 20, Kajupada, ) Hanuman Tekadi, Borivli (East), Mumbai-400 066 ) 2. Shri V.E. Potdar, Presiding Officer, ) Labour Court, Arun Chambers, Tardeo, ) Mumbai-400 034 )..Respondents Mr. K.S. Bapat for the petitioner. Mr. N.M. Ganguli for respondent No.1. CORAM: P.B. MAJMUDAR, J. DATE: JULY 07, 2008. ORAL JUDGMENT This petition is directed against the award passed by the Presiding Officer, Fifth Labour Court at Mumbai, in Reference (IDA) No. 326 of 1993. By the impugned order, the Labour Court has allowed the reference of the workman and passed an order of reinstatement in favour of the respondent workman with full back wages and continuity of service with -2- effect from 19th January, 1992. It is the aforesaid order which is impugned at the instance of the petitioner-employer. 2. The respondent-workman was appointed as a driver by the petitioner on a consolidated wage of Rs. 1,700/- per month. According to the first respondent, he was paid the wages on vouchers and that the past record of the workman was unblemished and clean. He had also relied upon a certificate issued by the Company dated 5th July, 1990 pointing out that his services were satisfactory. As per the said certificate, the services of the first respondent were unsatisfactory and the certificate further states that the first respondent wants to give up the employment on his own accord and that the Company wished him all the best. According to the first respondent, certain lines in the said certificate is mischievous because he had never given up his appointment and even subsequently, according to him, he was continued in service. It is also the case of the first respondent that by way of oral termination, his services were terminated with effect from 18th October, 1992, as according to him the Branch Manager wanted him to hand over the key of the vehicle to one lady employee of the Company and that the first respondent had refused to do the same as according to him he was not supposed to go at the place of the said employee at odd hours. It is the case of the first respondent that on the aforesaid ground the Branch Manager terminated his services and thereafter he was not allowed to attend the office -3- next day. The first respondent accordingly raised an industrial dispute challenging the oral termination. The matter was referred for adjudication to the Fifth Labour Court at Mumbai and the said reference was numbered as Reference (IDA) No. 326 of 1993. 3. The petitioner resisted the said reference on the ground that the first respondent had left the services on his own in the year 1990 and that he was not in employment at the relevant time and, therefore, there is no question of terminating his services by way of oral termination on 18th October, 1992. According to the management, the say of the employee was not correct and that on his own volition he had left the employment in the year 1990. The learned Presiding Officer of the Labour Court has framed various issues at Exhibit O-8. After considering the oral and documentary evidence on record, the Presiding Officer came to the conclusion that the first respondent has proved that his services were orally terminated by oral order and that the said termination would be in violation of Section 25-F (a) and (b) of the Industrial Disputes Act. The Labour Court found that the first respondent was entitled to get reinstatement in service with full back wages for the intervening period. 4. Mr. Bapat, learned counsel appearing for the petitioner has vehemently argued that the finding of the Labour Court is contrary to the -4- evidence on record and that there is nothing to show that the workman was continued in service upto the year 1992 as, according to him, he had already left the services on his own in the year 1990 for which certificate was given. He further submitted that since at the time of admission, the order of reinstatement is not stayed by this Court, the first respondent was already taken back in service. However, according to him, this is not a case in which any amount towards back wages should have been awarded to the concerned workman as according to him the order of the Labour Court is not sustainable on merits. 5. Mr. Ganguli, learned counsel appearing for the first respondent, on the other hand submitted that this Court, while exercising powers under Articles 226 and 227 of the Constitution cannot reappreciate the evidence on record. He further submitted that since the first respondent was not gainfully employed during the intervening period, the Labour Court was justified in awarding full back wages for the intervening period. 6. I have heard the learned counsel appearing for the parties and have gone through the record. So far as the question as to whether the Labour Court has committed any error in passing the order of reinstatement is concerned, it is required to be noted that the first respondent has specifically stated in his evidence that because of the circumstances -5- narrated by him in his evidence that his services were orally terminated by the Branch Manager in the year 1992. It is his specific case that he had never relinquished the employment at any point of time and that certificate given by the Branch Manager in the year 1990 is not correct in the sense that certain words were added subsequently. The Labour Court has considered the aspect about not producing the necessary evidence by the employer to throw light to the factual aspect as to who were the employees in the year 1992-1992. The learned Judge of the Labour Court has also considered the certificate dated 30th June, 1990 which starts with the opening words “This is to certify that Mr. Pratap R. Kankonkar has been in our services”. Considering the facts and circumstances of the case and the evidence led by the employer, the Labour Court found that the first respondent was subjected to oral termination order in the year 1992 and that he had never left his employment earlier. Accordingly, the Labour Court found that the termination order dated 19th October,1992 is illegal and contrary to the provisions of the Industrial Disputes Act. On the aforesaid reasoning and findings, the order of reinstatement was passed by the Labour Court. 7. In my view, such a finding cannot be disturbed by this Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Once on appreciation of evidence a finding is given, such finding -6- cannot be disturbed by this Court in its extraordinary jurisdiction. Even otherwise, as rightly pointed out by the learned counsel for the petitioner, the first respondent is already taken back in service in compliance with the order of the Labour Court as this Court at the time of admission has not stayed the order of the Labour Court. Taking an overall view of the matter and considering the reasoning of the Labour Court, in my view, the order of reinstatement is not required to be interfered with by this Court as it cannot be said that the Labour Court has committed any error of law or of jurisdiction in passing the impugned order. I, therefore, reject the submission of the learned counsel for the petitioner that the Labour Court has committed an error in passing the order of reinstatement. 8. So far as the order relating to back wages is concerned, it is true that payment of back wages cannot be said to be as a matter of course now in view of the recent Supreme Court judgments on this aspect. The question of payment of back wages depends upon various aspects i.e. nature of employment of a workman as well as the long span of time between the order of termination and the order of reinstatement. The learned counsel for the first respondent submitted that in his evidence he has stated that he was not gainfully employed during the said period. However, considering the nature of his work i.e. driver it is not possible to believe that for such a long time the first respondent would have remained unemployed. -7- In my view, this is not a case in which in the absence of satisfactory evidence about non-employment of the first respondent during the intervening period full back wages should have been awarded. It will be just and proper to modify the order of the Labour Court regarding payment of back wages to 40 per cent instead of full back wages. Accordingly, the order of reinstatement is upheld. Order of payment of back wages is modified to the extent that instead of 100 per cent back wages, the concerned workman shall be entitled to 40 per cent back wages for the intervening period. If the amount is deposited in this Court, the first respondent shall be entitled to withdraw the same upto the extent of 40 per cent. It is needless to say that after the reinstatement of the first respondent as per the award of the Labour Court, he shall be entitled to all other benefits as per law and rest of the order of the Labour Court is confirmed. It is clarified that subsequently if the services of the respondent is terminated on any other ground, this order will have no bearing with the same as this order is confined only in connection with the order passed by the Labour Court in the present case. 9. Rule is partly made absolute to the aforesaid extent with no order as to costs. P.B. MAJMUDAR, J.