Nashim S. Chand vs Director, Vocational Education ...
2004 Latest Caselaw 366 Bom

JUDGMENT

Nishita Mhatre, J.

1. Heard Ms. Seema Sarnaik, learned Advocate for the Petitioner. Nobody appears for the Respondents, though served.

2. The order of the Industrial Court passed in the revision application dismissing the complaint filed by the Petitioner has been challenged in this petition. The petitioner was employed as a Sweeper with the Industrial Training Institute of Respondent No. 1 since 1990. On 19.3.2000, the services were orally terminated. No wages in lieu of notice or retrenchment compensation were tendered at the time of termination of the services. Being aggrieved by this action of the Respondents, the Petitioner filed complaint (ULP) No. 101 of 2000 under Item 1 of Schedule IV of the MRTU & PULP Act. This complaint came to be decided on 25.4.2003 by the Labour Court. The Labour Court on the basis of the evidence led before it granted the Petitioner reinstatement with continuity of service. However, back wages payable to the Petitioner during the interregnum were denied.

3. The Respondents preferred a revision application under Section 44 of the MRTU & PULP Act before the Industrial Court. The Industrial Court reversed the finding of the Labour Court and came to the conclusion that the order of the Labour Court was not based on the oral and documentary evidence on record. The Industrial Court was impressed by the fact that the respondents had obtained a letter from the Principal of the Boys Town Public School, Nasik indicating that the Petitioner was employed in that school for the period from 1998 to 2000 and therefore, she could not have been in employment with the respondents for that period. The Industrial Court then relied on a document showing the number of days which the petitioner had worked. This document was tendered by the Respondents. However, there is no indication on the document as to how the respondents had arrived at the number of days that the Petitioner had worked. Based on this document, the Industrial Court came to the conclusion that the Petitioner had not completed 240 days in service in a calendar year and therefore, was not entitled to either notice or wages in lieu of notice or retrenchment compensation when her services were terminated.

4. On a perusal of the order of the Labour Court, I find that the Labour Court has drawn adverse inference against the Respondents for not producing the muster rolls, pay rolls for the entire period from 1990 to 2000. Despite orders of the Labour Court, the respondents refused to produce the muster rolls for the entire period. The respondents produced the original documents which were stated to be muster rolls for certain preceding years. However, the muster rolls for the period from 1997 to 2000 which were extremely relevant for deciding whether the Petitioner had in fact completed 240 days in service were not produced at all. The Labour Court has properly appreciated the fact that the relevant period for deciding whether the provisions of Section 25F are attracted would also be the preceding year and the muster rolls of that year were essential for deciding the complaint. The Labour Court has also considered the fact that the witness of the Respondents had no personal knowledge about the working of the Petitioner and therefore, the oral evidence on behalf of Respondent No. 1 could not be accepted and the muster rolls would have been most relevant for that period.

5. The Industrial Court has also not considered the fact that no plausible reason was advanced by the respondents for not filing the relevant muster rolls and the pay registers for the relevant years. The observation of the Industrial Court that the Respondent No. 1 would have produced the muster rolls had they been available is based on surmises and conjectures.

6. The Industrial Court instead has reappreciated the findings of fact arrived at by the Labour Court although under Section 44 of the MRTU & PULP Act the Industrial Court has a limited jurisdiction. The Industrial Court seems to have assumed that the Petitioner had not worked during the period from 1998 to 2000 and, therefore, the muster rolls of that period were not relevant at all. This is a completely wrong premise that the Industrial Court has proceeded upon. The muster rolls would have indicated whether or not the Petitioner had in fact worked during that period. Non-production of the muster rolls, has greatly prejudiced the Petitioner and, therefore, the Labour Court had rightly drawn adverse inference against the respondents.

7. In the case of the letter produced by the Respondents, the Industrial Court held that the Petitioner was employed with Boys Town Public School during the period from 1998 to 2000 and hence, the production of the muster rolls for that period was not relevant at all. This document has been considered by the Labour Court which has come to the conclusion that the respondents have not proved the same by examining the author of that document. However, the Industrial Court again on a wrong premise has accepted the document since according to him since it has been issued by the Principal, Boys Town Public School, it must have been rightly issued. Proof of a document is necessary eve in proceedings before the Labour Court or the Industrial Court. The Respondents having failed to prove that document cannot gain an advantage over the Petitioner merely because the document has been issued by the Principal, Boys Town Public School. Moreover, the Petitioner in her oral evidence stated that during that period for 1998 to 2000, it was her daughter, who was employed in the school and not herself.

8. The Industrial Court has accepted the statement showing the number of days worked by the Petitioner. However, this document has neither been proved nor has any witness stated that the information contained in the statement was culled out from the muster rolls or wage registers. The finding of the Industrial Court that the Petitioner had not completed 240 days in service and that therefore, the provisions of Section 25F were not attracted, must be set aside.

9. In the result, the order of the Industrial Court is set aside. The order of the Labour Court is confirmed. The Petitioner shall be reinstated in service immediately. The order of the Labour Court was to be effective from 26.5.2003. The Petitioner shall be paid wages from that date till the date reinstatement in service within four weeks from today.

10. Rule is accordingly made absolute with costs.

11. Parties to act on an ordinary copy of this order duly authenticated by the Court Sheristedar.