1. Heard learned advocate for the petitioner. None is present for the respondent workman.
2. The petitioner, first party employer in Reference (LCS) No.278 of 1993 from the Court of Labour, Surat, has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the award and order dated 05.12.2003, wherein the Labour Court while allowing the reference of the workman directed the petitioner employer to reinstate the workman with continuity of service and consequential benefits and awarded cost of Rs.1500/-. This award dated 05.12.2003 passed by the Labour Court in Reference (LCS) No.278 of 1993 is subject matter of challenge in this petition.
3. The facts in brief leading to filing this petition, as could be culled out from the memo of petition and accompanying documents, could be set out as under;
4. The petitioner is a Company duly registered under the Companies Act, 1956. It is engaged in the business of manufacturing elevators and it has a network spread in the entire country. The respondent, as per the say of the Company, was engaged as casual labour at Surat. The workman had never been appointed on permanent post for any specific work. As the workman was appointed as a casual labour as and when work is available he was given work. He was carrying out fieldwork as and when said fieldwork was required at different places. The respondent workman stopped from coming for work from January 1992. Again respondent workman approached for work in the month of June, 1993. He once again stopped coming for work. The workman raised dispute inter alia alleging that his services were terminated without following due procedure of law and provision of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act' for the sake of brevity). The conciliation failed and the matter was referred to the competent Court. The Labour Court registered it as Reference (LCS) No.278 of 1993. The Labour Court after recording findings qua its conclusion of workman completing 240 days and blatant disregard to the provision of the I.D. Act, ordered reinstatement with continuity of service and full back wages vide impugned award dated 05.12.2003, which is assailed by the petitioner employer, as it is stated hereinabove under Articles 226 and 227 of the Constitution of India.
5. Learned advocate appearing for the petitioner invited this Court's attention to the award and submitted that the Labour Court's award is based upon the surmises and conjuncture which were not assailed before the Labour Court but relied upon by assuming that there was completion of 240 days and on that basis held that there was non compliance of Section 25-F of the I.D. Act.
6. Learned advocate for the petitioner contended that the workman was engaged purely as a causal hand and, therefore, as and when the work was available he was given work. The workman's inability to prove his case on completion of 240 days ought to have been appreciated by the Labour Court and rejected the reference. Instead thereof, the Court has gone into the realm of surmises and conjuncture and recorded findings contrary to the provision of law and documents on the record for concluding that the workman had completed 240 days, which was not the case at all.
7. Learned advocate for the petitioner submitted that the document annexed to the petition at page nos.63 to 65 may not be taken into consideration by this Court, as the said document cannot be relied upon in this petition and as they did not form part of the record of the Court below.
8. Learned advocate for the petitioner relying upon the decision in case of Uttamsingh Jodhsingh Ahaluwalia Vs. Jagzitkaur Giansingh Ahaluwallia & Anr. reported in 2008 (1) GLR 643, contended that the documents on page ons.63 to 65 may not be considered, as it would amount to leading further evidence without permission of the Court.
9. Learned advocate for the petitioner thereafter contended that the order of reinstatement ought not to have been passed straightway, as the workman, even if, assuming to have proved his case, he was not entitled to be reinstated straightway. The reinstatement order may not be made so as to attach further benefits and reliefs which may be akin to regularizing the workman in service of the employer. In support of this submission, the reliance is placed upon the decision of the Apex Court in case of Manager, Reserve Bank Of India, Banglore Vs. S.Mani And Others reported in (2005) 5 Supreme Court Cases 100.
10. Learned advocate for the petitioner thereafter relied upon the decision of the Apex Court in case of Surendranagar District Panchayat And Another Vs. Jethabhai Pitamberbhai reported in (2005) 8 Supreme Court Cases 450, and contended that the burden of proving that the workman has completed 240 days is actually laid upon the workman and the evidences which are required to be produced in this behalf are the evidence in form of receipt of salary or wage-slip. In the instant case, the workman produced the evidence in form of wage-slip, which even if taken into consideration, would not indicate that workman worked for 240 days so as to invoke provision of Section 25-F of the I.D. Act.
11. Learned advocate for the petitioner relied upon the decision of the Apex Court in case of Abhinash Chandra Gautam (since deceased) through its Lrs., Vs. Union Territory of Tripura and another reported in 1983 LAB. I.C. 1738, and contended that the workman when admitted that he was receiving Rs. 2,000/- per month by carrying out farming activities, the same amount ought to have been deducted from the wages of the workman, as straightway workman could not have been granted full back wages, as ordered by this Court and, therefore, on this ground also the order impugned is suffering from patent illegality and the same deserve to be quashed and set aside, as it is contrary to provision of law.
12. This Court has heard learned advocate for the petitioner, as it is stated hereinabove, none is present for the respondent workman. The following indisputable aspects as are evident from the petition and accompanying documents deserve to be set out as under namely;
(i) The petition is though filed under Articles 226 and 227 of the Constitution of India and the prayer is also made seeking writ of mandamus and/or writ or certiorari or any other appropriate writ, the Tribunal and/or Labour Court has not been joined as a party nor is there any request or prayer for amending this petition and thus it can be said that the petition is filed though under both the Articles i.e. under Article 226 and under Article 227 of the Constitution of India, essentially it remains to be petition under Article 227 of only.
(ii) The non joinder of the Tribunal is mandatory as pronounced by this Court in decision rendered by the full bench in case of The Bhagyodaya Co-operative Bank Limitted Vs. Natvarlal K. Patel and Anr., reported in 2011 (3) GLH (FB) 89. Thus, for all purposes this petition is now required to be treated, as if the petition is only under Article 227 of the Constitution of India.
(iii) The petition does not contain any averments which would even remotely suggests that it could have been maintained under Article 226 of the Constitution of India, as the requisite averments and assertions are conspicuously absent in the memo of petition. Thus, from this angle also it can be said that petition is required to be viewed as one filed under Article 227 of the Constitution of India only.
(iv) The employer petitioner has taken out a ground that the services of the workman were not terminated, but he abandoned the same.
(v) The workman has established that he issued notice on the very next day calling upon the employer to take him on job as record indicate that his services were terminated with effect from 01.09.1993 and the second day i.e. on 02.09.1993, he served a notice to the employer which would belie the stand of the employer qua abandoning of service. Though, this may be viewed, as a matter of not much significance, as the Court has not taken that factor into consideration and this Court would not, therefore, dilate much upon this at this stage, as the petition is treated to have been filed only under Article 227 of the Constitution of India and the Apex Court decision in case of Manager, Reserve Bank Of India, Banglore Vs. S.Mani And Others (supra) relied upon by the advocate for the petitioner, the non establishing of plea put up as a defence would not absolve the other side to prove its case and that way non proving of abandoning of job naturally would not absolve the workman of its initial burden of proving his case on completion of 240 days.
(vi) The workman has in fact averred in the statement of claim and given deposition to the effect that he was engaged in service and was not given any identity card or any other letter of appointment etc.
(vii) The workman made application for production of document exhibit-22 calling upon the employer to produce the documents namely attendance register, wage register from 01.09.1990 to 01.09.1993, which in fact was granted by the Court at the relevant time. But the documents have not been produced by the employer. On account of non production of these documents, the Labour Court has drown adverse inference against the employer.
(viii) The workman produced the documents, which were exhibited on expression of no objection by the employer Company exhibits 47 to 60 and they happen to be salary slip. These salary slips have been shown to be pertaining to period December 1990 then January 1991 which contain details with regard to over time work, over time wages, regular wages, regular work etc. The
has, therefore, come to the conclusion that the workman proved that he was in continuous service till December 1991. The workman produced the wage slip from June 1993 to July 1993 and when the workman's prayer of production of document, which was granted by the Court, was not complied with. The Court came to conclusion that the adverse inference was required to be drown against the employer and in such circumstances the Court came to the conclusion that the workman is said to have established his case of completing 240 days and on that basis when there is a clear finding of breach of Section 25-F of the I.D. Act, the order of reinstatement is made with back wages, as the agricultural income or earning from the farming activities was not taken into consideration. Though, the Court has not articulately observed with regard to farming income not being considered as employment, but Court has observed that the workman has remained unemployed despite the fact that the workman has shown in its own admission earned income from the agricultural activities.
13. Against the aforesaid back drop, now let us examine the challenge to the award impugned in this petition which is treated to have been filed under Article 227 of the Constitution of India. Learned advocate for the petitioner is not justified in arguing that the document produced before the Court did not amount to establishing the case on the part of the workman. Learned advocate for the petitioner is correct in submitting that document produced at page nos.63 to 65 in this compilation by the workman, that is original salary slips, may not be looked into and they cannot be permitted to be relied upon by the workman for justifying and substantiating the Labour Court's order, as they would not forming part of the Labour Court's proceeding. But fact remains to be noted that the Labour Court's discussion qua production of document application exhibit-22 and the order made thereon of production of non compilation there with, cannot be over looked by this Court. The Apex Court has time and again held in decision right from in case of R.M.Yellatti Vs. Asst. Executive Engineer, reported in (2006) 1 SCC 106 that the workman once in a given circumstances call upon the employer to produce record, on account of his inability to produce records, on account of dearth or otherwise if the application is allowed and the non production of the document on the part of the employer would require to be viewed appropriately so as to enable the Court to draw adverse inference and in the instant case the wage-slips exhibited, though are taken into consideration. The documents produced before this Court at page nos.63 to 65 would show that the workman could have said to have established the completion of 240 days so as to call for compliance of Section 25-F of the I.D. Act.
14. When the Labour Court has concluded that the workman has successfully established completion of 240 days based upon the evidence available in the form of wage-slips, which also indicate even the Provident Fund deduction and E.S.I. deduction, would militate against the say of the employer that the workman was not in employment or rather regular employment. The Court, therefore, is of the view that this being, otherwise also, a petition under Article 227 of the Constitution of India being petition challenging the award, the Court may not delve further into appreciation and reappreciation of the evidence on record. The petitioner has failed in establishing the miscarriage of justice and/or the lack of jurisdiction in any manner so as to bring it within challenge to be maintained under Article 227 of the Constitution of India.
15. This brings the Court to consider the direction qua back wages. The fact remains to be noted that the Labour Court has not adverted to the factum of back-wages and not given its finding or recorded its view with regard to how and in what manner the admission of the workman qua earning of Rs.2,000/- from agricultural operation is to be dealt with. In fact, the workman has not indicated as to whether he worked at his own field or he was engaged by any other farmers so that he earned his wages in the form of Rs.2,000/-. The amount of wages, as shown to the workman in the Company, was Rs.1,000/- only, and the workman has indicated that he was earning Rs.2,000/- out of agricultural operation but without producing any evidence qua back-wages which is unsustainable in law. Hence, the order is required to be modified to that extent, as there is absolutely no finding and/or inadvertence to the factum of workman's own admission of his earning Rs.2,000/- per month. Therefore, the order is modified to that extent. The workman is now not said to be entitled to receive any back-wages whatsoever. However, this would not disentitle the workman from claiming his wages as per the date on which the award is capable of being implemented and it is not implemented on the stay granted by this Court.
16. Hence, with these observations, the petition is disposed of. Rule is made absolute to the aforesaid extent. The order of reinstatement is not disturbed. The award is modified qua granting of back wages only. Order accordingly.
Pankaj
(S.R.BRAHMBHATT, J.)