Bombay High Court
Indian Silk Manufacturing Co. (P) Ltd. vs Gamprasad R. Jaiswal And Others on 5 August, 1997
Equivalent citations: (1998)IILLJ116BOM
Author: S.N. Variava
Bench: J.A. Patil, S.N. Variava
JUDGMENT S.N. Variava, J.
1. Allowed to amend Memo of Appeal by taking additional ground (W) as set out in draft handed to Court and marked X. Amendment to be carried out within one week from today.
This is an Appeal filed against the Order dated June 23, 1997.
The facts briefly stated are :-
2. In Reference (IDA) No. 768 of 1995 the workmen had claimed that their services were wrongly terminated. The company took up the contention that they were all temporary workmen who had not worked for more than three to six months. The matters appeared on Board of the Tribunal on April 16, 1996. They were adjourned to May 25, 1996. Thereafter for one or other reasons they were adjourned on a number of occasions. Ultimately the matters reached hearing on September 12, 1996. The Appellants and their Advocates were absent. The evidence of one workman was recorded and matters were adjourned to September 13, 1996 for cross examination. On September 13, 1996 also the Appellants and their Advocates were absent. The evidence of other workmen were recorded and the matters were then kept on September 30, 1996 for Orders. On September 30, 1996 the Appellants and their Advocates remained absent. The matters were still adjourned to October 20, 1996. On October 20, 1996 again the Appellants and their Advocates remained absent. The learned Member, Labour Court, still adjourned the matters to November 1, 1996. On November 1, 1996 as the Appellants and their Advocates again remained absent, an Award came to be passed.
3. Before us the points, which have not been taken up in the Writ Petition and even in the Memo of Appeal, are urged. This is on the ground that points which are pure questions of law can be raised at any stage. In support of this submission reliance was placed on the authority of the Supreme Court in the case of Chitoori Subbanna v. Kudappa Subbanna & Ors. . The majority Judgment lays down that a pure question of law not dependent on the determination of any question of fact can be raised for the first time even at a later stage.
4. The questions which are claimed to be pure questions of law and which are sought to be raised are firstly that the Learned Judge has wrongly cast the burden of proof on the Appellants by framing Issue No (i) in the following manner :-
"(i) Does the Company prove that the concerned workmen were recruited as a temporary hand for 3 months and before completion of that period they have abandoned the services on and from May 17, 1994 ?"
5. It is urged that the claim was made by the workmen. It is urged that it was for the workmen to prove that they had been employed for a period of more than 240 days. It is urged that by casting the burden on the Appellants, the Learned Judge erred in law. It is urged that for as this reason itself the impugned Award should be set aside.
6. In support of the submission that the burden of proof should have been cast on the workmen, reliance was placed upon the judgment in the case of Narang Later & Dispersions P. Ltd. v. S. V. Suvarna (Mrs.) & Anr. (1995-I-LLJ-113) (Bom) wherein it is held that as a reference is made at the instance of the workmen who allege that the dismissal is wrongful, the burden of proving that the dismissal is wrongful is one on the workmen. It is held that there is nothing in the Industrial Disputes Act, which departs from the general rule that he who approaches the to Court for relief should prove his case.
7. There can be no dispute with the legal proposition. However that does not carry the case of the Appellants any further. Following Issue has been framed as Issue No. (ii) :-
"(ii) Does the concerned workmen prove that their services were orally terminated on May 17, 1994 without any reason and in violation of Section 25-F of the Act ?"
Thus it will be noticed that the burden of proving that the termination was without any reason and in violation of Section 25-F of the Act, has been cast on the workmen. This necessarily implies that the workmen have to prove that they were in employment for a minimum of 240 days. Otherwise there would be no violation of Section 25-F. Issue No. (i) is an additional issue. Issue No. (i) has been framed because in Written Statement the Appellants chose to make a claim that these workmen had worked temporarily for a period of three months. Merely because an additional issue on a fact claimed by the Appellants, is raised does not mean that the burden of proof has been wrongly shifted. The burden of proving that the workmen worked for the short period squarely fell on the Appellants herein. Of course this burden would only arise after workmen proved their claim including claim that they had been in employment for a minimum of 240 days. It would have been better if this was raised as Issue No. (ii) and Issue No. (i) was raised as Issue No. (ii). However the Order in which they are raised does not vitiate the Award. There is thus no substance in the submission that the burden of proof had been wrongly cast on the Appellant Company.
The next submission made is that the Learned Judge should have suo motu framed an Issue to determine what the income of the Respondent workmen was during the period taken by the proceedings. It was submitted that in the absence of such an Issue the Award is unsustainable and void.
8. In support of this plea reliance is placed upon a Division Bench Judgment of this Court in the case between Sadanand Patankar v. New Prabhat Silk Mills, (1974-II-LLJ-52) (Bom) wherein it is observed as follows at p.65 :-
"As things stand today, a majority of the employees are either unrepresented or inadequately represented in the adjudication proceedings. It is, therefore, unfair either to insist or to expect that the employee should raise the relevant point. It is the duty of the industrial adjudicator himself to frame the necessary point for determination in each and every case and allow parties to lead evidence with regard to it and to contest the same as in the case of the other points in the adjudication. A failure to do so will, according to us, be tantamount to failure to exercise jurisdiction and an order either granting or refusing backwages, in the absence of such determination, will be void, being an improper exercise of jurisdiction. In many cases, the direction with regard to the payment or non-payment of back wages is as important as, if not more than, the order of reinstatement itself, both from the point of view of the employer as well as the employee. The casual manner in which very often the said direction is given, at present, must be discouraged. We are, therefore, of the view that it is obligatory on the industrial adjudicator to frame and decide the point about the payment of back wages like any other point irrespective of whether the parties have raised the same or not.
9. Relying on these observations, it is submitted that in all cases it is absolutely necessary that a separate Issue be framed as to whether or not the workmen have been gainfully employed during this period.
10. It must be noted that the above mentioned observations were made in the context of the fact that in that case the Labour Court had not framed any Issue as to whether or not the employees were entitled to back wages. The Court deprecated the fact that employees were not given an opportunity to bring material on record to show that they were entitled to backwages. These observations do not mean that in all cases a separate Issue as to whether or not workmen have been gainfully employed must be raised. Such a question would be covered by an Issue as to whether or not workmen are entitled to back wages. Also we see nothing in the Judgment which lays down that an issue of back wages must be separate from an issue regarding reinstatement. All that this judgment lays down is that these are aspects which must be considered and necessary Issue raised. In this case an issue on the question of back wages has been raised. In this case the Learned Trial Judge has framed Issue No. (iii) wherein he has raised the question as to whether the workmen are entitled to reinstatement with full back wages and Continuity of service. As stated above the question whether workmen were entitled to back wages included the question whether workmen had been gainfully employed. These are questions which could have been elicited in cross examination had Appellants or their Advocates chosen to remain present. This Issue having been raised, considered and answered by the Learned Trial Judge there is no substance in this submission also.
11. It was lastly pleaded, rather earnestly that the Appellants should not be penalised for the inaction of their Advocates and/or absence of their Advocates. Reliance was placed upon the Judgment of the Supreme Court in the case of Rafiq and Another v. Munshilal and Another , wherein it has been held by the Supreme Court that a party should not be allowed to suffer for misdemeanour or inaction of his Counsel. It is submitted that the Supreme Court has held that once a party briefs Counsel, the party expects that the Counsel will attend Court. It is submitted that the Supreme Court has held that the party cannot thereafter be blamed or made to suffer for the lapse of Counsel.
12. Undoubtedly the party should not suffer for inaction on the part of their Advocates. However a party cannot be absolved for their own negligence and their own failure. In this case there was nothing which prevented the Officers of the Appellants from remaining present on any of the occasions mentioned above. There were at least five occasions on which, not just the Advocates, but the Appellants and their Officers also remained absent. The Learned Trial Judge in spite of such absence has given sufficient opportunity to the Appellants to appear. As nobody appeared ultimately the Award came to be passed. There is absolutely no explanation as to why the Officers of the Appellants could not remain present on any of those five occasions. We are unable to accept the submission that once the party has briefed an Advocate there was no obligation for the party to remain present. This was not an Appeal where a party's presence is not necessary. These matters were before a Trial Court where the presence of the party was absolutely necessary. Instruction would have to be given for cross examination of the workmen and their witnesses.
Documents would have to be produced. Instruction would have to be given on evidence proposed to be led by the Company. The presence of Officers of the Appellants was necessary yet none remained present on at least five occasions.
13. Under these circumstances, we see no reason to interfere with the impugned Order. The Appeal stands dismissed. There will be no Order as to costs.