- (1.) The challenge in both these petitions is to the judgment and award dated 12.9.2007 passed by the 6th Labour Court, Mumbai in Reference (IDA) No. 665 of 2000. the operative part of which reads as under: "(1) Reference is answered partly in affirmative. (2) The first party company is directed to pay an amount of Rs. 1,00,000 (Rupees One Lakh only) to the second party workman Rajeetram B. Upadhyay, as a compensation in lieu of reinstatement in the service. (3) The first party company is also directed to pay 50% wages to the workman as per his last drawn payment from 29.9.2000 till the date of this award. (4) The first party company is directed to deposit the above said entire amount in the court on or before 30.11.2007, without fail. (5) Parties to bear their own costs. (6) Copy of this award be sent to the government, accordingly." The Writ Petition No. 995 of 2008 has been preferred by the employer R.K. Film & Studios, as against the portion of award which declares that the termination of services of the workman were neither legal nor proper and directs payment of back-wages to the extent of 50 per cent and an amount of Rs. 1 lac by way of compensation in lieu of reinstatement The Writ Petition No. 177 of 2008 has been preferred by the workman, as against the portion of the award which denies him reinstatement with full back-wages and continuity of service.
(2.) The facts and circumstances in which the aforesaid challenges arise are that the workman was employed as a watchman with the employer since the year 1983, until termination of his services with effect from 29th September, 2000 on the alleged ground that he misbehaved with Mr. Rajiv Kapoor, the Director of the employer at the security outpost. Admittedly there was neither any letter of termination issued, nor was such termination preceded by any domestic inquiry. At one stage the employer took up the defence that they had not terminated the services of the workman but it is the workman who had abandoned the services without any reasonable cause. The workman raised an industrial dispute which was admitted in conciliation. In the conciliation proceedings, the employer reiterated that there was no termination and even offered to permit the workman to resume duties subject to the employers' right to conduct a domestic inquiry into the misconduct of the workman. Upon the workman reporting for duties, however, he was not permitted to join duties. On one occasion the workman even reported for duties along with the local policeman. However, with no success. Ultimately, the conciliation proceedings ended in a failure and a reference was made to the Labour Court, in which the aforesaid award dated 12th September, 2007 came to be made (hereafter referred to as "the impugned award").
(3.) Mr. Hegde, the learned counsel for the employer, in support of his petition, has made the following submissions:-- "(I) There is material on record which establishes that the workman abandoned his services w.e.f. 27th September, 2000. Inasmuch as such material has been overlooked, the impugned award is vitiated by perversity and unreasonableness; (II) In any case, there is material on record which suggests that the employer did make efforts to serve the charge-sheet upon the workman, which the workman refused to accept in such circumstances, it is submitted that the employer cannot be faulted for terminating the services of the workman, without conduct of any domestic inquiry; (III) In any event, consequent upon the employer leading evidence before the labour court, there is ample material on record which establishes that the workman had indeed committed a serious misconduct of dereliction of duties and hurling abuses at Mr. Rajiv Kapoor, the Director of the employer on 27th September, 2000 between 12 to 12.30 p.m. As such, the termination of services was both legal as well as justified; (IV) The Labour Court, in passing the impugned award has allied the test of proof beyond reasonable doubt, when in fact the correct test to be applied in the course of proceedings before the Labour Court is the test of preponderance of probability. Application of such incorrect test vitiates the impugned award; (V) There is clear perversity in the matter of appreciation of evidence by the Labour Court. Adverse inference has been unduly drawn against Shri Rajiv Kapoor for not setting out the precise nature of abuses hurled by the workman against him; (VI) The Labour Court has failed to appreciate the legal trend with regard to award of back-wages, which undergone a sea change. The burden now, is almost entirely upon the workman to establish that despite making efforts to secure gainful employment, he has not been successful in obtaining the same. By ignoring such legal position, the Labour Court has grossly erred in awarding back-wages to the extent of 50 per cent and compensation in lieu of reinstatement to the extent of Rs. 1 lac.";