Twinkle Apparels and Another vs Jitendra Kumar Patel

A.A. Sayed, J.—The petition impugns an Award dated 1st July, 2005 passed by the Presiding Officer, 1st Labour Court, Mumbai. The operative part of the impugned Award reads as under:

The reference is allowed.

The 1st party company is entitled to pay full back wages to the 2nd party from 7.4.2001 till 31.3.2004.

The 2nd party is entitled to get continuity of services w.e.f. 7.4.2001 till the date of closure i.e., 31.3.2001 and is also entitled to get legal dues and closure compensation.

It was the case of the respondent-workman in his complaint before the Labour Court that he was working as collar maker with the Petitioner No. 1-firm of which Petitioner No. 2 is the proprietor. The Petitioner-firm is a "Garment Industry", a scheduled industry under the provisions of Minimum Wages Act, 1948. According to the workman he was employed with the Petitioners from 27.1.1998 and his last drawn salary was Rs. 4,000/- p.m. when he was orally terminated on 7.4.2001 without following due process of law. The workman also claimed that the Petitioners had violated the Section 25-F of the Industrial Disputes Act, 1956 by orally terminating his service. He has further stated in the Complaint that they were four establishments belonging to the same family members and the workmen were transferred from one unit to another as per the family member''s choice without notice.

It was the case of the Petitioners, on the other hand that the workman was never employed with them and there was no employer-employee relationship and the complaint of the workman was not maintainable. According to the petitioners, the petitioner-firm itself started in May, 2000 and therefore there was of employment of the workman with the petitioner-firm from 27.1.1998.

The workman, in view of his alleged termination, had raised an industrial dispute. The conciliation proceedings failed and the matter was referred to the Labour Court. The terms of the Reference were as follows:

Shri Jitendra Kumar Patel should be reinstated with full back wages and continuity of service with effect from 7th April, 2001.

The workman stepped into the witness box and has examined himself. His alleged co-employee one Tarik Shaikh has also given evidence in support of the workman. On behalf of the petitioners, the proprietor Mr. Deepak P. Jain, the petitioner No. 2 has adduced evidence.

After hearing the parties the Labour Court passed an Award allowing the reference and granting full back wages in the terms stated in para 1 hereinabove.

Issue No. 1 as framed by the Labour Court reads as follow:

Whether the 2nd party proves that he was the workman of the 1st party ?

Thus, the burden was cast upon the workman to prove that he was employed with the petitioners. In the Statement of Claim, it was alleged by the workman that the petitioners have not maintained statutory records mala fidely to avoid the statutory rights of workman. The workmen has admitted in his evidence that he had no document available with him. He has stated that the petitioner No. 2 has also other companies viz. Twinkle Garments, Sandhini Creations and Minak Apparels. The workman has deposed that he was initially working with Sandhini Creations from 27.1.1998 and he worked till April, 2001. He has stated that he does not know in which company he worked for which period. He stated that the vouchers in the names of different companies were prepared at different time and that he was getting salary on vouchers. He admitted that his name was not appearing in the muster roll of the petitioner firm.

The 2nd witness on behalf of the workman, Tarik Shaikh, has deposed that the workman was working with the petitioners as a tailor. The said witness has stated that he himself was working with the petitioner for 3 to 4 years as a cutting master. He has deposed that his service was also terminated and that his case was pending in the Labour Court. He has stated that the petitioner-firm started functioning in the month of May, 2000. He has further stated that the name of the petitioner-firm was changed from time to time. He has deposed that his services were terminated six months after the termination of the present workman.

Insofar as the evidence given by petitioner No. 2 is concerned, he has produced the Wage Register for the month of May, 2002 to March, 2003 which shows the name of all the workmen employed by him. He has stated that the name of the present workman is not reflected in the Wage Register and the workman was not their employee. He stated that the petitioner firm was closed since 31.3.2004. He stated that he is not concerned with the other firms which belong to his brothers. He further deposed that there were 15 to 16 workers employed in the petitioner-firm and their names were appearing in the Register. He has stated that the said Register was inspected by the Government Labour Officer. He denied the suggestion that the Wage Register was sham and bogus. He has also produced the E.S.I. record of the petitioner-firm. He has denied that the workman was ever worked with them.

I have heard the learned Counsel for the parties and perused the material on record.

At the outset it is seen that though burden was cast upon the workman, no documentary proof has been produced by him to show that he was infact employed with the petitioner-firm. There is no letter of appointment or termination. The workman, in his evidence, has admitted that his name was not reflected in the Muster Roll and in the Wage Register. It is not disputed that the Wage Register is inspected by the Government Labour Officer. It is an admitted position that Tariq Shaikh who is alleged to be the co-employee and who has given evidence in support of the workman himself had a dispute with the petitioners, which dispute was pending before the Labour Court. The evidence of Tariq Shaikh therefore cannot be treated as reliable and cogent evidence as he himself had a grudge against the petitioners. Though the workman has stated that the salary was paid by marking the register and sometimes paid by vouchers, the petitioners have not been called upon to produce the record of vouchers. It is an admitted position that his name does not appear in the Wage Register or the Muster roll. Except for the bare words of the workman and that of said Tariq Shaikh nothing has come on record to show that the workman was employed with the petitioner-firm.

In my opinion, the workman failed to discharge the burden cast upon him. The Labour Court therefore committed manifest error in coming to the conclusion that the workman was employed with the petitioner- firm in absence of any documentary evidence in this regard and merely on the oral evidence had by the workman and Tariq Shaikh. Though in the evidence it has been recorded that the muster roll was produced by the petitioner firm and it was admitted by the workman that his name is not reflected in the muster roll, curiously, in the impugned order it is recorded that in absence of muster roll, the Wage Register cannot be said to be sufficient to accept the version of the Petitioner-firm. In the circumstances, the said finding of the Labour Court is perverse. On the aforesaid grounds alone, the petition deserves to be allowed.

Apart from the above, it is significant to note that there is no pleading or evidence by the workman that he was not gainfully employed. It is an admitted position that the petitioner-firm was closed on 31.3.2004 and therefore there is no question of reinstatement. It is settled position in law that when the workman claims back wages, he is required to plead the same and state in his evidence that he was not gainfully employed during the relevant period. In the present case, as noted above, there is no such pleading or evidence in this regard.

The Labour Court however, has granted the workman full back wages from 7.4.2001 to 31.3.2004 as directed in the operative part of the impugned order as a matter of course and without any discussion on the aspect of back wages in the body of the impugned order. In my view, therefore, the Labour Court had clearly erred in granting full back wages to the workman from 7.4.2001 to 31.3.2004. Pertinently, though no closure compensation is claimed by the workman in the Complaint, the Labour Court has, without recording any reasons, granted him closure compensation.

For the aforestated reasons, the impugned order passed by the Labour Court cannot be sustained and the petition deserves to be allowed. Rule is made absolute in terms of clause (a), with no order as to costs. The petitioners shall be entitled to withdraw the amount deposited by them in this Court along with the accrued interest.