Manek Brothers Through Suresh C. ... vs Shankar D. Vibhute And Anr.
2003 Latest Caselaw 659 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocate for the petitioners. None present for the respondent, though served.

2. The petitioners are challenging the Award dated 21-4-1998, passed by the Labour Court at Mumbai in Reference No. 372 of 1988 directing the petitioners to reinstate the workman with full back wages and continuity in service. The challenge is restricted to the issue of direction to pay the fullback wages.

3. It is the contention of the petitioners that inspite of clear evidence produced by the petitioners in relation to the fact that the workman was gainfully employed with the other establishments during the period of enquiry and proceedings before the Court and from the time of termination of his services, the Labour Court has refused to take note of such evidence in breach of the procedure and without any justifiable reason and, therefore, the impugned award, as far as it directs the payment of back wages, needs to be set aside.

4. Upon hearing the learned Advocate for the petitioners and on perusal of the records, it is seen that the facts, that the petitioners had produced certificates issued by the Labour Officers of the Phoenix Mills Limited, Kamala Mills Limited and Apollo Mills Limited and also that had examined those officers before the Labour Court, are not in dispute. The certificates as well as the testimonies of those officers apparently disclose that the workman was gainfully employed during the said period in those establishments. Apart from confirming the period during which the workman was employed in the respective establishments, the said fact has also been deposed in their oral testimonies by those Labour Officers who had issued the said certificates and have stated that the said certificates were issued on the basis on the records maintained with those establishments. Perusal of the testimonies of those Labour Officers also disclose that those records were available for perusal at the time of recording of their testimonies. There was neither any challenge to the said certificates or the testimonies of the Labour Officers and the fact that the workman was gainfully employed with those establishments during the relevant period was clearly established, yet the Labour Court, merely on the basis that those records have not been produced in their evidence before the Labour Court, has observed that their testimonies do not inspire confidence. Apparently, the said finding is totally perverse. The Labour Court has not bothered to analyse the testimonies and to appreciate the fact that the certificates issued by those Labour Officers were based on the records and the records were available for perusal in the course of recording of the testimonies. Besides that, there was no challenge to the said contents of the certificates disclosing gainful employment of the workman with those establishments. Being so, the learned Advocate for the petitioners is justified in contending that the finding arrived at by the Labour Court in relation to the testimonies of the Labour Officers does not inspire confidence, is apparently perverse and cannot be sustained.

5. It is well-settled that when the workman is ordered to be reinstated in the services, the normal rule is direction for full back wages. However, when the employer objects to the same, it is necessary for the Court or the Tribunal dealing with the matter to exercise its discretion judiciously, bearing in mind all the relevant circumstances placed before it. The law in that regard is well-settled by the decision of the Apex Court in the matter of M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and another, , and reiterated by the Apex Court as well as by this Court in various decisions and the last such decision being in the matter of Indian Railway Construction Co. Ltd. v. Ajay Kumar, .

6. Applying the law laid down on the point in issue and applying the same to the facts of the case in hand, it is apparent that the Labour Court has not exercised its discretion judiciously and has refused to place reliance in the testimonies of the Labour Officers purely on flimsy grounds. Being so, the said finding needs to be set aside. It is necessary for the Labour Court to analyse the evidence regarding the period during which the workman was gainfully employed in those establishments and deduct that period from the total period during which the back wages are required to be ordered to be paid. Considering the fact that for a considerable time the workman was gainfully employed in another establishment, it is also necessary to consider whether there should be direction for payment of full back wages or part thereof or whether there should at all be order for payment of back wages, even in relation to the period during which the workman was not gainfully employed. The Labour Court having not done any such exercise and having blindly directed the payment of full back wages for the entire period, the impugned award, as far as it gives such direction, needs to be set aside and the matter to be remanded to the Labour Court to decide the issue regarding the payment of back wages afresh, bearing in mind the law laid down by this Court and the Apex Court and the observations hereinabove. Considering the fact that the matter relates to the year 1988, the Labour Court, after hearing the parties, will have to dispose to the matter within a period of three months from the date of receipt of the writ of this Court.

7. The petition, therefore, partly succeeds. The impugned award to the extent it directs the payment of full back wages is hereby quashed and set aside. The Labour Court is directed to hear the parties afresh on the point of claim of back wages by the workman and to decide the same afresh, bearing in mind the observations hereinabove and the law laid down by this Court and the Apex Court on the point in issue and after considering the evidence which has already been led by the parties on the said issue. The matter shall be disposed of, after hearing the parties, within a period of three months from the date of receipt of the writ of this Court. The rule is made absolute accordingly with no order as to costs.