Bombay High Court
Raju Purushottam Warurkar vs Bokey Printers, Thr. Proprietor, ... on 14 August, 2017
Bench: S.C. Gupte
(Judgment) 1408 WP 6-2017 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO. 6/2017
Raju Purushottam Warurkar,
Aged about 53 years,
R/o. Ravi Nagar, Amravati,
Tq. & Distt. Amravati. PETITIONER
.....VERSUS.....
Bokey Printers,
Through its Proprietor,
Prakash Wamanrao Bokey,
R/o. Gandhi Nagar, Amravati,
Tq. & Distt. Amravati. RESPONDE NT
Shri S.M. Vaishnav, counsel for petitioner.
Shri P.A. Kadu, counsel for respondent.
CORAM: S.C. GUPTE, J.
DATE : AUGUST 14, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties. Rule.
Rule made returnable forthwith and taken up for
hearing by consent of counsel.
2] This writ petition challenges the revisional
order passed by the Industrial Court at Amravati, under
(Judgment) 1408 WP 6-2017 2/9
Section 44 of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act,
1971 (in short, "Act").
3] The petitioner herein (original complainant),
who was working as a printer with the respondent firm,
was terminated on 28/08/2002. The petitioner, who was
appointed in the year 1985 and whose services were
confirmed in the year 1987, had been working with the
respondent till his termination on 28/08/2002. Just
before his termination, on 05/08/2002, a notice was
served on the petitioner alleging various acts of the
misconduct on his part. After serving him with this
notice and before he could show cause thereon, a notice
of termination was issued to him on 28/08/2002. That
notice was purportedly a notice of retrenchment, which
is said to be in compliance with the provisions of Section
25-F of the Industrial Disputes Act, 1947. The petitioner
challenged the termination before the Labour Court in a
complaint of unfair labour practices filed before it under
Section 28 read with Item No.1(a), (c), (d), (e) and (g)
of Schedule IV of the Act, for reinstatement with
continuity of service and full back wages. The Labour
(Judgment) 1408 WP 6-2017 3/9
Court, vide its order dated 02/08/2010, partly allowed
the complaint declaring that the respondent herein did
engage in unfair labour practices under Item Nos.1(a),
(b), (d) and (f) of Schedule IV of the Act. The petitioner
was ordered to be reinstated in the original post with
continuity of service and 30% of back wages from the
date of his termination till his reinstatement. This order
was challenged in revision by the respondent herein
before the Industrial Court at Amravati. By its order
dated 04/08/2016, the Industrial Court quashed and set
aside the judgment and order of the Labour Court and
remanded the matter to the Labour Court for a fresh
decision of the complaint in accordance with law. This
order is challenged by the petitioner in the present writ
petition.
4] It cannot be gainsaid that the scope of the
revisional jurisdiction under Section 44 of the Act is
limited. It is really in the nature of a supervisory
jurisdiction. No doubt, in a case where the Labour Court
arrives at its conclusion by ignoring certain material
portion or aspect of evidence, it may be permissible for
the Industrial Court to appreciate that portion or aspect
(Judgment) 1408 WP 6-2017 4/9
of evidence in the light of overall evidence and such
appreciation would not fall within the prohibited area of
re-appreciation, re-assessment or re-appraisal of the
evidence before the Revisional Court. The judgment of
the learned Single Judge of our High Court in the case of
Sadanand Ramesh Samsi -Vs- Kirloskar Cummins Ltd.
and others, 2002(4) Mh.L.J. 804, cited by learned
counsel for the respondent, clearly makes this point. If
one has regard to the facts of the present case, however,
it is apparent that in the face of a show cause notice
issued to the petitioner alleging misconduct immediately
before the alleged retrenchment on 28/08/2002 and in
the face of the petitioner's plea that such termination
was in fact on account of alleged misconduct and that
the alleged order of retrenchment was merely a
colourable device, it was incumbent on the respondent
to make out a case for retrenchment. The case of
retrenchment urged by the respondent is said to be
based on a so-called reduction of work at the
respondent's printing press. It is submitted by the
respondent that the work of screen printing in the press
was reduced due to offset printing and general
(Judgment) 1408 WP 6-2017 5/9
competition and that there was no need for two screen
printers; and that, accordingly and the petitioner being
the junior-most workman working as a screen printer,
his services were terminated. The onus to show that, in
the premises, the retrenchment was in fact on account of
reduction of work at the printing press as alleged in the
purported retrenchment notice of 28/08/2002, was
squarely on the respondent. These are matters which can
be said to be within the special knowledge of the
respondent and it is practically impossible for the
employee to lead independent evidence to prove the
negative. If one has regard to the evidence led in this
behalf by the respondent, it is apparent that apart from
broad generalizations, there is nothing to indicate that
the work of screen printing was reduced over a period of
time or that there was no need for two screen printers
for the printing press. There are no particulars of
average screen printing jobs over a period of time or the
current jobs on hand as compared to the past. In the
absence of these particulars, it is not possible for the
Court to form an opinion on the alleged reduction work
at the printing press simply on the basis of general
(Judgment) 1408 WP 6-2017 6/9
statements made by the employer's witness.
5] In the backdrop of these facts, strangely
enough, the revisional court proceeds on the footing that
the complainant has in fact admitted in the cross-
examination that his services were brought to an end
because of reduction of work in the screen printing
section of the press. One fails to notice any such
admission in the evidence of the petitioner. Learned
counsel for the respondents contends that considering
the fact that there was practically no cross-examination
on the aspect of reduction of work at the printing press,
the court must read this failure on the part of the
complainant virtually as an admission and on that basis,
the uncontroverted evidence of the employer must be
acted upon. Learned counsel relies on the judgment of
Calcutta High Court in the case of A.E.G. Carapiet -Vs-
A.Y. Derderian, AIR 1961 Cal 359 and the judgment of
our Court in the case of Bhika Cullianji and Co.,
Bombay -Vs- Avon Electric Company, Bombay and
others, 1995(1) Bom.C.R. 377 in support.
6] There is no such general proposition laid
(Judgment) 1408 WP 6-2017 7/9
down in either of these judgments. When evidence is led
by both sides, it is for the court to see if a case of
retrenchment is actually made out. If, on the basis of the
evidence led by the employer, no case is made out, mere
want of cross-examination on the part of the employee,
will make no difference. In the case of A.E.G. Carapiet
-Vs- A.Y. Derderian, Calcutta High Court was concerned
with a case where the matter in question before the
court was the testamentary capacity of the deceased-
testator; though the testamentary capacity was disputed,
none of the witnesses brought before the court by the
proponder of the will including the Doctors and Nurses,
who were examined in this behalf, were questioned on
such testamentary capacity. Not a suggestion was put to
either the propounder or any of his witnesses when they
were in the box, about the testator being physically or
mentally unfit. Here was a case of complete failure to
put the case of want of testamentary capacity to the
witnesses who were brought to depose to such capacity.
These facts are clearly distinguishable from the facts of
our case where the employer's witness merely came up
with a simplistic platitude about the reduction of work in
(Judgment) 1408 WP 6-2017 8/9
the printing press. If one has regard to the cross-
examination, the basic case appears to have been put to
this witness of there being no such reduction and the
petitioner being very much in the position of doing the
work of other departments anyway.
7] This is not a case, where some important
evidence was missed out or not considered by the trial
court. If after considering the material before it, the trial
court came to a conclusion which is permissible and
supported by some evidence and which does not
disregard any relevant material or proceed on the basis
of any non-germane or irrelevant material, it was
impermissible for the revisional court to undertake the
exercise of reappraising the evidence. The court, in fact,
does not even do that exercise; indeed there is no
occasion to do so. The court, simply on the basis that the
so-called unchallenged version of the respondent was
not taken into consideration by the trial court, remanded
the matter to the trial court. That is clearly
impermissible.
8] For all these reasons, the revisional order of
(Judgment) 1408 WP 6-2017 9/9
the Industrial Court cannot be sustained. The Writ
Petition is, accordingly, allowed and the impugned order
of the Industrial Court dated 04/08/2016 is quashed and
set aside and the order of the Labour Court is restored.
JUDGE
Yenurkar
