Bombay High Court
Infosys Bpm Ltd vs Amol Rajaram Jadhav on 1 July, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:25706-DB
Neeta Sawant 8-WP-8694-2023.docx
1 July 2024.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8694 OF 2023
Infosys BPM Ltd. ....Petitioner
: Versus :
Amol Rajaram Jadhav ....Respondent
__________________________________________________
Mr. Zubin Behramkamdin, Senior Advocate a/w. Mr. Vatsala Pant, Mr.
Aman Mrwah i/by. Induslaw, for the Petitioner.
Mr. Rahul S. Patil, for the Respondent.
__________________________________________________
CORAM : SANDEEP V. MARNE, J.
Dated : 1 July 2024.
P.C. :
1) By this petition, Petitioner-employer has challenged the order
dated 6 December 2022 passed by the Labour Court, Pune on application at
Exhibit-C-39 by which direction was sought against the Respondent for
production of GST and Income Tax returns. Also challenged is the order
dated 9 May 2023 by which the application filed by the Petitioner-employer
for framing and decision of preliminary issue about maintainability of the
Reference has been rejected.
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2) Mr. Behramkamdin, the learned Senior Advocate appearing for
the Petitioner, after taking instructions, fairly submits that since the issue
relating to maintainability of the Reference has already been framed and
would be decided at the time of final decision of the Reference, the
Petitioner shall not press challenge to the order dated 9 May 2023.
3) Mr. Behramkamdin would however press challenge to the order
dated 6 December 2022 passed on Exhibit-C-39. He would submit that the
Respondent-employee stated, both in the Statement of Claim, as well as in is
Affidavit of evidence that he is not gainfully employed after cessation of his
services. In the cross-examination, however, Mr. Behramkamdin, an
admission is given about Respondent indulging in the business of servicing
and maintenance of computers and earning of monthly income of Rs.5,000-
Rs.6,000/-. He would submit that after the said admission given in the
cross-examination, the Petitioner made enquiries and came across allotment
of GST return in the name of the Respondent. Accordingly, the Petitioner
filed application at Exhibit-C-39 for production of GST returns and income-
tax returns by the Respondent after the year 2016-17 onwards. The
application is however rejected by order dated 6 December 2022. It appears
that after rejection of application at Exhibit-C-39 on 6 December 2022,
Petitioner has filed a separate application under the provisions of Order 18
Rule 17 and Section 151 of the Code of Civil Procedure (Code) for recall of
the Respondent as witness for conducting his further cross-examination with
reference to the information relating to the income generated through the
business of servicing and maintenance of computers as per admissions given
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in the cross-examination. It appears that the said application filed on 9 May
2023 is still pending consideration before the Labour Court.
4) Mr. Patil, the learned counsel appearing for the Respondent, on
the other hand, would submit that the burden of proving earning of income
by the Respondent rests solely on the shoulder of the Petitioner-employer
and therefore Respondent cannot be directed to produce GST and income
tax returns so as to as assist the Petitioner to discharge the said burden. He
would therefore submit that the Labour Court has rightly rejected the
application at Exhibit-C-39. Mr. Behramkamdin, has however relied upon
judgment of the Apex Court in Rajasthan State Road Transport
Corporation, Jaipur V/s. Phool Chand (Dead) through Legal
Representatives in which it has held in paras-11, 12, 13 and 15 as under :
12. It is necessary for the workman in such cases to plead and prove with the
aid of evidence that after his dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain himself or/and his family.
The employer is also entitled to prove it otherwise against the employee,
namely, that the employee was gainfully employed during the relevant period
and hence not entitled to claim any back wages. Initial burden is, however, on
the employee.
13. In some cases, the Court may decline to award the back wages in its
entirety whereas in some cases, it may award partial, depending upon the facts
of each case by exercising its judicial discretion in the light of the facts and
evidence. The questions, how the back wages are required to be decided, what
are the factors to be taken into consideration awarding back wages, on whom
the initial burden lies, etc. were elaborately discussed in several cases by this
Court wherein the law on these questions has been settled. Indeed, it is no
longer res integra. These cases are M.P. SEB v. Jarina Bee (2003) 6 SCC 141,
Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591, U.P. State Brassware
Corpn. Ltd. v. Uday Narain Pandey (2006) 1 SCC 479, J.K. Synthetics Ltd. v.
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K.P. Agrawal (2007) 2 SCC 433, Metropolitan Transport Corpn. v. V. Venkatesan
(2009) 9 SCC 601, Jagbir Singh v. Haryana State Agriculture Mktg. Board (2009)
15 SCC 327 and Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (2013) 10 SCC 324.
15) Coming now to the facts of the case at hand, we find that neither the
Labour Court and nor the High Court kept in consideration the aforesaid
principles of law. Similarly, no party to the proceedings either pleaded or
adduced any evidence to prove the material facts required for award of the back
wages enabling the Court to award the back wages.
5) In my view, since the application filed by the Petitioner under
Order 18 Rule 17 and Section 151 of the Code for recall of the witness for
cross-examination is pending, it is appropriate that the said application is
decided by the Labour Court. Mr. Behramkamdin would raise an
apprehension that the impugned order dated 6 December 2022 would come
in the way of the Petitioner while deciding the said application. It is
therefore clarified that the Labour Court shall proceed to decide the
application filed under Order 18 Rule 17 and Section 151 of the Code,
uninfluenced by any of the findings recorded in the order dated 6 December
2022.
6) The Writ Petition is accordingly disposed of with a direction
that the Labour Court shall proceed to decide the application under Order
18 Rule 17 and Section 151 of the Code without being influenced by the
findings recorded in the order dated 6 December 2022. All questions on
merits in the petition are left open.
Digitally
signed by
NEETA [SANDEEP V. MARNE, J.]
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2024.07.02 ____Page No.4 of 4___
11:07:12
+0530 1 July 2024
