Indiana Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officer, 5Th Labour Court And Others

B.N Srikrishna, J.:— This writ petition under Article 226 of the Constitution of India challenges an Award of the 5th Labour Court, Bombay, dated 31st August, 1994 made in Reference (IDA) No. 507. of 1986 under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’).

2. The petitioner is a Company which manufactures engineering goods in its factory at Bombay. The Second Respondent was employed as a mechanical Draughtsman on probation by a letter of appointment dated 28th May, 1984. Clause 2 of the said letter stipulates that the Second Respondent would be on probation for a period of six months from the date of appointment i.e 28th May, 1984. By Clause 3 it was stated that the services of the Second Respondent would be confirmed, if his performance and attendance was found satisfactory and by clause 4 the Petitioner reserved their right to terminate his services, at any time, without notice, if it was not satisfactory. On 27th November, 1984 the probationary service of the Second Respondent was extended for a period of three months from 28th November, 1984. On 19th January, 1985 the Second Respondent was given a memo that, despite several oral warnings, he had been neglecting his duties and making several mistakes in the Drawings made by him.

3. The Second Respondent was cautioned that repetition of such conduct on his part would entail dismissal from service. By his letter dated 19th January, 1985 the Second Respondent apologized for the mistake committed by him and requested that he may be given one more chance to work. On 21st January, 1985 the Petitioner further purported to extend the probationary service of the Second Respondent by a period of six months with effect from 28th February, 1985, on the recommendation of the Departmental Head. On 29th May, 1985 the Petitioner informed the Second Respondent that his probationary service stood terminated from 1st June, 1985.

4. The second respondent raised an industrial dispute for his reinstatement in service which was processed under the Act and resulted in Reference, (IDA) No. 507 of 1986 to the Labour Court, Bombay. Before the Labour Court the Second Respondent gave evidence on oath and also relied on the documentary and oral evidence. After assessing the evidence on record, the Labour Court held that the contract of employment between the parties was overridden by the terms of the Model Standing Order 4C as a result of which the Second Respondent stood confirmed after the lapse of 90 days of probationary service. The Labour Court took the view that when the Model Standing Order provides a maximum period of probation of 90 days, it was not open to the Employer to extend probationary period beyond the maximum period as it would result in automatic confirmation of the employee. The Labour Court also took the view that the termination of employee after completion of probationary period of 90 days, violated the principles of natural justice and, therefore, the termination of service of the Second Respondent was illegal and contrary to law. It also held that the termination of service of the Second Respondent amounted to retrenchment in contravention of Section 25-F of the Act. On the question of back-wages, however, the Labour Court on the basis of evidence before it was satisfied that the Second Respondent workman had been gainfully employed after his removal from service and has continued to be gainfully employed. The Labour Court, therefore, granted 50 per cent back-wages in addition to the continuity of service with effect from 1st June, 1985. Hence, this writ petition.

5. The only contention of Mr. Cama, learned counsel for the petitioner, is that the direction for payment of 50 per cent back-wages is erroneous and contrary to the evidence on record. Mr. Cama highlighted the fact that, in the oral evidence before the Labour Court, the Second Respondent without batting an eyelid, had stated that from the date of termination of service till the date of recording evidence (i.e 16.1.1992) he had been unemployed and that he had also denied the suggestion that he was gainfully employed till the date on which his evidence was recorded. It is clear from the evidence that the Petitioner Company had engaged the services of a private Detective Agency to find out whether the Second Respondent was gainfully employed anywhere. The private Detective Agency submitted a report that the Second Respondent was employed in Artson Engineering Company at Chembur from 29.6.1985 till 27.1.1989 The Petitioner Company thereafter examined two Officers of Artson Engineering Company who affirmed the fact that the Second Respondent was initially working on a job work basis and, thereafter, was employed in Artson Engineering. They also produced the application for employment dated 7th November, 1987 addressed to the Artson Engineering Limited in the handwriting of the Second Respondent together with a form showing the bio-data of the said workman and the particulars of his employment prior to the date of application. Curiously, in the said particulars, the Second Respondent stated that he had worked as Mechanical Draughtsman in Engineering Companies such as Vainuna Engineering Private Limited from 11th May, 1984 to November 1985 on a salary of Rs. 1100/-, Nirvan Engineering Private Limited from 15th November, 1985 to 10th August 1987 on a salary of Rs. 1600/- and Shakti Engineering Private Limited from 10th August, 1987 on a salary of Rs. 1650/- The evidence of the two Officers of the Artson Engineering Limited also showed that the employee was still in its service. The Labour Court has correctly found that the Second Respondent has been gainfully employed and continued to be gainfully employed even on the date of the Award. Interestingly, though at the time of granting rule and interim stay, this Court had directed that the interim stay of the impugned order would be subject to the Petitioner complying with Section 17-B of the Act, which meant that the Second Respondent had to file affidavit in this Court disclosing whether he was unemployed or employed, the Second Respondent has not chosen to file such an affidavit. All these circumstances, taken together, bolster the finding of the Labour Court that the Second Respondent continued to be gainfully employed with the last named employer. It is not in dispute that the last drawn salary of the Second Respondent while in the employment of the Petitioner was Rs. 1100/- per month. From the bio-data supplied by the Second Respondent, on his own admission, he was drawing emoluments of Rs. 1650/- per month, which was more than what he would have got if he had been continued in service of the Petitioner. Though the Labour Court's finding that the Second Respondent was gainfully employed is correct, there appears to be no good reason for granting of 50 per cent back-wages.

6. I am not impressed by the contention of Mrs. Mhatre, learned counsel for the Second Respondent, that the Labour Court had not carried out an exercise of determining the amounts which the Second Respondent would have been entitled to on point to point comparison. I am unable to accept that, because responsibility of proving gainful employment has been cast on the Employer, the workman has no duty or responsibility to explain anything in this behalf before the Tribunal adjudicating the industrial dispute. In any event, the Petitioner Employer successfully discharged the said burden. The onus thereafter shifted to the workman and he was obliged to disclose full particulars of his gainful employment to the Labour Court adjudicating the industrial dispute. Instead of being honest and straightforward with the Labour Court, by disclosing full particulars of his gainful employment, the Second Respondent chose to be mendacious and denied on oath the fact of his employment. This certainly is most reprehensible and should disentitle him for relief. Lam of the considered view that the dismissed workman also owes a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely within his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance. This is one such case, in my view.

7. After considering the totality of the circumstances, I am satisfied that there was no warrant or justification for awarding back-wages to the Second Respondent. The direction with regard to the back-wages needs to be interfered with and set aside.

8. In the result, the writ petition is partly allowed. The direction in the impugned award dated 31st August, 1994 for payment of 50 per cent back-wages to the Second Respondent workman is hereby quashed and set aside.

9. Rule is partly made absolute, accordingly with no order as to costs.

10. Petition Partly Allowed.