JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the respective parties.
2. This writ petition has been preferred against an award dated 25.1.1997 passed by the Labour Court (1st), Ghaziabad in Adjudication Case No. 111/93 and subsequent recovery proceedings in pursuance of the award dated 25-4-1998.
3. Brief facts of the case are that the petitioner was manufacturer of shoes. Respondent No. 3 was appointed as a stretcher on 1-11-1989. The Production Supervisor reported to the management on 23-4-1990 that respondent No. 3 had assaulted and tried to murder the Supervisor. On the basis of the report dated 23-4-1990 the respondent-workman was suspended for ten days pending investigation. The Supervisor reported for duty after ten days of the suspension. However, respondent No. 3 did not report for duty and stopped coming to the factory. He initiated conciliation proceedings before the Regional Conciliation Officer which is numbered as 60/90. During the conciliation proceedings the employer pointed out and also wrote a letter dated 10-9-1990 to the Regional Conciliation Officer that as per his direction on 7-9-1990 the respondent-workman had himself stopped coming to the factory in spite of direction to join his duties as directed during the proceedings, but after working for a day he did not come for duty. The counsel for the petitioner submits that from the aforesaid conduct of the respondent-workman, it is evident that he was not willing to join the establishment. The case was referred to the Labour Court by the State Government for adjudication. The following reference was referred to the Labour Court (1st) Ghaziabad where it was registered as Adjudication Case No. 111/93 :-
^^D;k lsok;kstdksa }kjk vius Jfed Jh jktsUnz flag iq= Jh jkepUnj in & fLVpj dks fnukad 23-4-90 ls dk;Z ls i`Fkd @ oafpr fd;k tkuk mfpr @ rFkk oS/kkfud gS\ ;fn ugh rks lacaf/kr Jfed D;k ykHk @ vuqrks"k ¼fjyhQ½ iksus dk vf/kdkj gS vU; fdl fooj.k ds lkFk \**
4. After receipt of summons the parties filed their written statements before the Labour Court. In paragraphs 4, 5 and 6 of the written statements filed before the Labour Court the petitioner has stated that during the conciliation proceedings the workman had reported for duty in pursuance of the order of the Assistant Labour Commissioner and that his services had never been terminated by the petitioner and in spite of information in writing he did not report for duty and further that if the respondent-workman is still ready to join, the petitioner has no objection and prayed that in the aforesaid circumstances the dispute is wholly misconceived and the matter be consigned to record. Paragraphs 4, 5 and 6 of the written statement are as under :-
^^4- izkFkhZ }kjk dke ij vxys fnu u vkus ij geus 10-9-90 dh bldh lwpuk lgk;d Jek;qDr mRrj izns'k lh&118] lsDVj 18 ukS,Mk esa nh rFkk ,d fyf[kr i= }kjk izkFkhZ jktsUnz flag lqiq= Jh jkepUnj dks nh A 5- geus izkFkhZ dks bl laLFkku ls dHkh Hkh fu"dkflr ugh fd;k fu"dklu ls iwoZ geus izkFkhZ dks fyf[kr i= }kjk lwpuk Hkstdj fuf'pr vof/k nh ysfdu izkFkhZ }kjk vius dk;Z ij u ykSVus ij gh geus lsok;s lekIr dh A 6- izkFkhZ ;fn iqu% bl lalFkku ea dk;Z djus dk bPNqd gS rks ges dksbZ vkifRr ugh gS A izkFkZuk%& vr% vkils vuqjks/k gS fd mijksDr fookn fcYdqy Li"V gS fd ij fujk/kkj gS] blfy;s fookn dk U;k; fu.khZr dj lekIr fd;k tk; A g- viBuh;
¼g- vf/kÑr izfrfuf/k ½**
5. Curiously enough the respondent-workman did not give any reply to the aforesaid para 6 of the written statement of the petitioner.
6. In the meantime during the period the dispute was pending before the Labour Court, the petitioner-factory was closed down on 31-3-1994 after giving notice etc. to the workers on account of financial losses and almost all the workers accepted the closure. After the closure of the factory, the authorised representative of the petitioner informed the Labour Court on 21-11-1996 that he is not interested to continue as the authorised representative of the petitioner in the aforesaid case. The application filed by him was accepted by the Labour Court and following order was passed by it:-
^^Jfed mifLFkr 1 lsok;kstdks ds izfrfuf/k Jh fnukS dqekj us dgk fd og lsok;kstdksa dk izfrfuf/k ugh djuk pkgrs Jfed ds izfrfuf/k Jh flokl us dgk fd og mudk izfr- ugh djuk pkgrs A Jfed dk izkFkZuk i= Lohdkj fd;k x;k A fdlh i{k dks dksbZ lk{; ugh nsuk gS A rdZ ds fy;s 11-12-96 fu;r A [email protected]"V g- @& ih- v-
[email protected]@96
7. From a perusal of the aforesaid order it is evident that employer had no notice to engage another representative and that (2) none of the parties had given any evidence. In the absence of authorised representative of the employer how the Labour Court came to the conclusion that the employer does not want to give evidence. The Labour Court proceeded ex-parte thereafter and gave the impugned award dated 25-1-1997 holding that the services of respondent No. 3 to have been wrongly terminated and awarded the relief of his reinstatement with full wages and continuity in service on 30-4-1990.
8. The award has been assailed on the ground that it is illegal, unwarranted and without jurisdiction and the same has been passed without affording opportunity of hearing to the petitioner and against fair play and principles of natural justice.
9. In the counter-affidavit it has not been denied that the petitioner had moved an application before the Labour Court informing that his factory had been closed. On the contrary it is stated that the factum of closure of the factory had been taken by way of amendment application before the Labour Court which was allowed on 9-5-1995 and paragraph 6 of the written statement was deleted and the factum of closure of the factory was insetted. It is also stated that Sri Dinesh Kumar was initially the representative of the respondent-workman but later on started appearing for the petitioner-employer as is evident from paragraph 9(a) of the counter-affidavit. It is also stated that the respondent had given his statement before the Labour Court and was also cross-examined. The said statement dated 11-9-1995 has been annexed to the counter-affidavit as Annexure C.A. 2 (which does not bear any date of swearing or of filing the same before the Labour Court). Certified copy of the said statement of the respondent dated 11-9-1993 and 30-4-1996 has also been annexed as Annexure C.A.3 to the counter-affidavit. The fact that Dinesh Kumar who was appearing for the respondent-workman earlier and moved an application before the Labour Court that he will not represent the employer creates such doubt about the fairness of the proceedings. This doubt is further strengthened from the statement on affidavit filed before the Labour Court without date as Annexure C.A. 2 and the oral examination filed as Annexure C.A.3. If the workman had to be cross-examined on affidavit then his examination-in-chief on 11-9-1995 would not have been taken on 11-9-1993 and 30.4.1996. Even otherwise it is apparent from Annexure C.A.3 that the evidence was given on 13-7-1995. The highlight of the evidence of the workman is that he disowned his oral evidence given on 13-7-1995 and that evidence being given by him before the Labour Court is partly correct and partly incorrect. He also admitted that he was sent for duty by the Regional Conciliation Officer and was permitted to sit in the petitioner-factory for 2-3 days but he was not given attendance card and was not recommended to come in the production department. The relevant parts of his evidence are as under:
^^Je U;k;ky; izFke & xkft;kckn vfHk- la[;k&[email protected] fnukad% 11-09-95 Jh jktsUnz flag dks 'kiFk c;ku tkjh gqbZ fnukad 13-07-95 ds rkjrE; esa A fnukad 13-9-95 ds gq, c;kuksa dks eSa ugh ekurk gwa A tks ;s c;ku gS blesa dqN lgh gS vkSj dqN xyr gS A i<+k vkSj lgh ik;k A g- @ ih- v-
vfHkfu.kZ; fookn la[;kx [email protected] fnukad 30-4-96 fnukad 11-9-95 ds rkjrE; esa ftjg tkjh
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esjh lsok lekIrh 23-4-90 dks gqbZ Fkh A Lo;a dgk fd mlds ckn dHkh M;wVh ugh fy;k A lajk/ku vf/kdkj ds lkeus M~;wVh ij ysus ds fy, dgk ysfdu M~;wVh ij fy;k ugh A i=koyh ij tks fyf[kr dFku nkf[ky gS mls eSaus i<+k Fkk A vkSj eSaus i<+us ds ckn gh gLrk{kj fd;s Fks A esjs fyf[kr dFku ds rF; lR; gS A ^^i<+k lquk vkSj lgh ik;k**.
g- @ vLi"V g- @ ih- v-
30-4-96**
10. The Labour Court by the impugned award has held that since the evidence of the workman remained uncontroverted and as such it is to be believed and further that the employers have not proved before the Labour Court that the notice of closure was given in accordance with direction of the authorities. The notice of closure showing signatures of the workers for acceptance the closure cannot therefore be believed. The Labour Court further held that respondent No. 3 was appointed in 1987 and his services were terminated without paying retrenchment compensation and one month's salary in lieu of notice and as such his termination was illegal and the workman is entitled to reinstatement with full back wages and continuity in service.
11. The counsel for the petitioner-employer submitted that the reference before the Labour Court was not regarding the validity or bona-fide of the closure but was regarding the fact of incorrectness of the alleged order of termination of the workman. Therefore, the finding of the Labour Court that the petitioners have failed to prove that their factory had in fact been closed or not was not in issue. He also submits that the Labour Court wrongly placed reliance on the statement of the workman who had himself in his statement stated that he did not stand by his statement before the Labour Court and in these circumstances the Labour Court has committed illegality in relying upon the evidence given by the workman. It is also submitted that it is apparent from the order of the Labour Court dated 21.11.1996 that no party had given evidence. The alleged oral evidence given by the workman on affidavit and his cross-examination on 13-7-1995 and 11-9-01995 is of no avail when he disowns it and admits that his statement is partly true and partly false. The conduct of authorised representative of the petitioner who was earlier appearing for the workman and withdrew from the case without information to the employer the Labour Court could not have believed his oral evidence when he himself does not believe it to be true. The finding based on such evidence is perverse.
12. It is submitted that the Labour Court has committed an error in law apparent on the face of the record in granting the relief even for the period after closure of the factory, as the workman was not entitled to any relief. The employer did not terminate his services and offered him to join duty during the conciliation proceedings as well as before the Labour Court but the workman failed to do so.
13. The counsel for the respondent has fairly submitted that the Labour Court could not have granted the relief after the date of closure. It could not be explained by him that in the peculiar facts and circumstances of the case where the workman has stated that his evidence on affidavit was not to be believed and that his oral evidence is partly correct and partly incorrect on how the Labour Court can come to the conclusion as to which part of the evidence is correct and which part is incorrect. The whole conduct of the workman is doubtful and he is a thoroughly unreliable person.
14. Since the workman failed to prove that his services were terminated there is no question of compliance of the provisions of Section 6 of the U.P. Industrial Disputes Act, as they are not attracted to the instant case. It appears that the employer was deliberately kept in dark and award was manipulated. The counsel for the respondent-workman has endorsed the fact that the petitioner-factory has been closed and is not running. In the absence of any evidence that the petitioner had employed more than 300 workers the finding of the Labour Court that the petitioner had not proved that the closure was in accordance with law could not be decided, as it is a question of fact. Closure is undisputed and has to be taken as such.
15. The writ petition succeeds and is allowed. The impugned award of the Labour Court dated 25-1-1997 passed by respondent No. 1 and the consequent order dated 25-4-1998 passed by respondent No. 2 is quashed. No order as to costs.