S.A. Bobde, J.
1. By this petition, the petitioner-employer has challenged the award dated July 30, 2005 passed by the 1st Labour Court, Mumbai, in Reference (IDA) No. 288 of 2003 directing that the respondent No. 1 be reinstated with full back wages for 20 days in each month with effect from December 20, 2001 till the date of reinstatement and with continuity of service.
2. From December 20, 2001 the respondent No. 1 has not worked with the petitioner. According to the petitioner, the respondent No. 1 left on his own after some dispute about the number of pieces he should produce. According to the respondent No. 1, his services have been terminated without an inquiry and without notice and he has not been allowed to work from that date.
3. The respondent No. 1 invoked the provisions of the Industrial Disputes Act, 1947, hereinafter referred to as the 'Act'. Accordingly, conciliation was held and the Conciliation Officer has made a failure report dated November 25, 2002. Since the conciliation failed, the matter was referred to the Labour Court for adjudication. In the reference, the Labour Court framed the following issues:
--------------------------------------------------------------------------------Issues Findings--------------------------------------------------------------------------------1) Does second party prove that his service are illegally In affirmativeterminated by the first party/employer as contended?--------------------------------------------------------------------------------2) Does the first party/employer prove that the second In negativeparty/workman stopped reporting for duty at his ownas contended?--------------------------------------------------------------------------------3) Whether second party is entitled for reinstatement In affirmativeas claimed?--------------------------------------------------------------------------------4) Whether second party is entitled to get full back wages As per final order.and continuity of service with all consequential benefits w. e.f. December 20, 2001 as claimed?--------------------------------------------------------------------------------5) What Order? As per final order.--------------------------------------------------------------------------------
4. The petitioner produced a letter dated February 19, 2005 written in pursuance of an understanding reached between the parties before the 1st Labour Court in which it was agreed that the respondent No. 1 should report for duty unconditionally and also produced the production register. Oral evidence was also led. After considering the oral evidence, the learned Labour Court came to the conclusion that the petitioner has terminated the services of the respondent No. 1; the stand of the petitioner that it has not terminated the service and willing to allow the respondent No. 1 to work is not true and since the services have been terminated in violation of Section 25-F of the Act, without notice and without any inquiry, the respondent No. 1 is not liable for reinstatement.
5. Mr. Naik, the learned Counsel for the petitioner has assailed the order of the Labour Court principally on the ground that the Labour Court has not appreciated the voluminous evidence on record to show that the petitioner, not having terminated the services, has always been willing to allow the respondent No. 1 to resume duty. According to the learned Counsel, since there is no termination and the respondent No. 1 has not resumed duty, there was no question of granting the relief of reinstatement with back wages.
6. Upon examination of the record, it is clear that there is no termination. The petitioner, at the first instance, stated before the Conciliation Officer that the respondent No. 1 has not been terminated. He has refused to produce three pieces of cloth per day demanded of him and, therefore, has stopped coming for work. The petitioner further stated that if the respondent No. 1 does not wish to work, they are willing to give legal dues to him, but they maintained that they would not pay back wages since the respondent No. 1 has not been terminated. This stand of the petitioner has been recorded by the Conciliation Officer in the conciliation report which is on record. The Labour Court has, however, construed the conciliation report to show that the management was not interested and willing to continue the respondent No. 1 in service because the Conciliation Officer has observed in one place that the petitioner took the position that they have not terminated the services of the respondent No. 1 and at another place observed that due to continued absence of the management, the matter could not be discussed. This appears to be a gross misconstruction of the conciliation report. There is no doubt that the petitioner made its stand clear to the Conciliation Officer when it responded to the conciliation notice. Merely because thereafter, on certain dates the petitioner was absent, it cannot be construed that it was not interested in continuing the respondent No. 1 in service.
7. Apart from the conciliation report, there is voluminous evidence on record to show that the petitioner always maintained that it had not terminated the services of the respondent No. 1 and was willing to allow the respondent No. 1 to resume work. This stand is taken by the petitioner in the Written Statement filed on June 21, 2004 and in the letter dated July 4, 2005 which was written in the course of the proceedings after evidence was recorded. In the letter dated July 4, 2005, the petitioner informed the Court that though the respondent made a statement that he agreed to report for duty with effect from February 18, 2005, he has not done so till the date of the letter i.e. July 4, 2005. The petitioner reiterated its proposal to pay legal dues if he is not interested in employment. Even after the award, the petitioner wrote a letter dated January 20,2006 to the same effect while reserving its right to challenge the award as regards back wages. On February 7, 2006 the petitioner wrote another letter reiterating its earlier stand. Instead of showing his willingness, apparently, the respondent No. 1 approached the Union which wrote a letter on his behalf alleged that he has not been paid back wages nor has he been allowed to join. The petitioner replied to the letter of the Union on March 3, 2006 and again reiterated its earlier stand and called upon the respondent No. 1 to report for work immediately. After this, there is another letter dated March 13, 2006 written by the petitioner to the respondent No. 1. Even in the Writ Petition before this Court, the petitioner has made the following statements in paragraph 11:
The Petitioner Company once again reiterate and maintain (sic) that they are ready and willing to allow the respondent No. 1 to report for his duty even as on today and that the respondent No. 1 is at liberty to resume his duty on the terms and conditions of employment which were applicable to him at the time when he started not reporting for duty on his own.
8. In this view of the matter, I am of view that there is overwhelming evidence on record to show that, in fact, the petitioner did not terminate the services of the respondent No. 1, but all along, asked the respondent No. 1 to report for work. A statement to that effect was also made before this Court in the course of hearing. Apparently, having regard to the age of retirement, the respondent No. 1 has declined to report to work.
9. Mr. Gehani, the learned Counsel for the respondent No. 1, however, submitted that it is not believable that a workman who is capable of doing necessary work would remain absent. However, the facts of the present case do not support the contention. There is also no merit in the contention that adverse inference was required to be drawn against the petitioner since attendance register was not produced before the Labour Court. There is nothing on record to show that the respondent No. 1 applied for production of the attendance register.
10. Mr. Gehani relied on two decisions of this Court, one in Godrej and Boyce Manufacturing Company Private Limited v. Kherulla Has analti Pathan and Anr. 2000 III LLJ 204 and the other in Gangaram K. Medekar v. Zenith Safe Mfg. Co. and Ors. : (1998)IIILLJ556Bom . It must be observed that whether a workman voluntarily remained absent or was terminated is a question that can be answered only from the facts of each case, though the decisions cited on behalf of the respondent No. 1 held that the workman had not voluntarily abandoned service. It is clear that the decisions turn on the facts of those cases. In fact, the observations to that effect is made by the learned single Judge, S.H. Kapadia, J., as he then was, while deciding Gangaram K. Medekar v. Zenith Safe Mfg. Co. and Ors. (supra). The learned single Judge has observed as follows at p. 560 of LLJ:
4. ... It depends on facts of each case. It is a matter of inference being drawn on given set of facts. The employer unilaterally cannot say that the workman is not interested in employment. It is for this reason that a domestic enquiry is required to be held. Even before the Labour Court, the employer is required to prove clearly by evidence that' the workman had voluntarily abandoned his service. If the Labour Court finds that there is no evidence led by the employer and if the Labour Court finds that it is word against word, then the benefit goes to the workman and not the employer. The primary onus to lead evidence to prove voluntary abandonment of service is on the employer.
11. On the other hand, Mr. Naik, the learned Counsel for the petitioner, has relied on two decisions in favour of the employer wherein this Court found on facts that the workman was not entitled to an order of reinstatement with back wages since he had voluntarily remained absent from work. In Sonal Garments v. Trimbak Shankar Karve 2002 iV LLJ 1380, the learned single Judge (R.J. Kochar, J.) observed as follows:
4. However, as the offer of petitioner to reinstate the respondent was not accepted, he is not entitled to the relief of reinstatement and any back wages at all. His conduct lends support to the version of the employer that he had abandoned the employment and that he never came back to report for duty and that it was not a case of termination by the petitioner employer. Whenever the employer offers to reinstate the workman at any stage of the dispute or proceeding and if the workman does not accept the offer even without prejudice to his rights and contentions he will not be entitled to continue his claim for reinstatement in the proceedings and he will also be not entitled to claim any back wages from the date of such offer, conditional or unconditional. He must first accept the offer and get reinstated in employment and therefore continue to contest for the relief of back wages, if any. In the present case there was an unconditional offer of reinstatement made by the employer in the Written Statement itself but it was not accepted by the workman. Therefore, as stated by me hereinbefore, he is not entitled to get reinstatement with full back wages at all.
There are similar observations in the other decision relied upon by the petitioner in Competition Printing Press v. Shriut Jaiprakash Singh and Anr. : (2001)IILLJ1341Bom , which are not necessary to be reproduced here.
12. In the circumstances, I am of view that the award of the Labour Court suffers from an error of law apparent on the face of the record and is liable to be interfered with on this count.
13. The next question argued on behalf of the petitioner is the entitlement of the respondent to back wages. Mr.Naik for the petitioner relied on a recent decision of the Supreme Court in Kendriya Vidyalaya Sanghathan and Anr. v. S.C. Sharma : (2005)IILLJ153SC , wherein the Supreme Court observed as follows at p. 156 of LLJ:
16. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record material to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.
Mr. Naik submitted that in the present case, the respondent No. 1 has merely pleaded that he was not employed elsewhere, but there is no evidence on record to show the fact that he was gainfully employed. The contention seems to be correct. There is no evidence on record to the effect that the respondent No. 1 was not gainfully employed during this period. It is also unlikely that he was not employed, having regard to his profession as a Tailor. In any case, having regard to the finding that there is no termination and that the respondent No. 1 has voluntarily stayed away from employment, the respondent No. 1 is not entitled to back wages.
14. In this view of the matter, the rule is made absolute in terms of prayer Clause (a) which reads as follows:
(a) that this Honourable Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India and after examining the legality, propriety and validity of the Award dated July 30, 2005 passed by the learned 1st Labour Court at Mumbai in Reference (IDA) No. 288 of 2003 between NRK House v. P.V. Tommy, quash and set aside the same, being Exhibit 'I' hereto.
15. There shall be no order as to costs.