G. M. LODHA, J. - (1.) HEARD learned counsel for the petitioner. This writ application is directed against the award of the labour court in the matter of the termination of services of one Mohan Lal carpenter by the petitioner.
(2.) MOHAN Lal's case was that he was working as a Carpenter in the employment of the petitioner since 1st of June, 1973. As he was taking part in the union activities, he was removed from service on 4-12-74. This was done without giving any charge-sheet and making any inquiry. It was mentioned in para No. 6 of the application that he was not given retrenchment compensation also and it was against the terms of the settlement between the Union and the Management. Grievance of victimisation was also made because he was taking part in the activities of the Union. The Management contested the status of Mohan Lal as workman. In the reply it was pleaded that Mohan Lal was a carpenter working with them on contract. Management's case was that since Mohan Lal was not a workman, it was not necessary to follow the procedure of removal nor it was necessary to pay compensation of retrenchment. The allegation of victimisation was denied. Before the Labour Court, Mohan Lal produced his affidavit and was cross-examined at length and the Management was satisfied by production of one Babulal from the Accounts department. On a perusal of the evidence produced by the parties in the form of affidavit and the cross-examination conducted by the opposite party, the Labour Court was of the opinion that Mohanlal was a workman. It was further held that he was removed from service unlawfully and that even retrenchment compensation was not paid to him as required by section 25f of the industrial Disputes Act. Accordingly the Labour Court ordered that the workman Mohanlal would be reinstated and he must be paid at the rate of Rs. 14/- per day from the date of his removal. Mr. Jain appearing for the petitioner has submitted that the burden of proving that Mohanlal was employee of the firm, was on Mohanlal which he has failed to discharge. Mr. Jain argued that the question whether a particular workman is a workman or not, is jurisdictional fact and that being so, the matter can be reconsidered in writ jurisdiction, it was pointed out that Mohan Lal has admitted in his cross-examination that he has worked with one more concern and he has also admitted that he was not issued job card.
(3.) IT is not necessary for me to examine the question whether in writ jurisdiction, the question whether a particular person was workman or not, can be re-examined by re-appreciation of evidence. Assuming it to be permissible, I have considered the affidavits of both the parties produced before the Labour Court and the cross-examination conducted on them. Mohanlal in his evidence has stated that he was getting Rs. 14/- per day and that he used to work under the instructions of Trilokchand who is Proprietor of Om Metals and Shyam Cottage Industries and both these Industries are located in the one and same compound. He also stated that every month he used to sign the receipt and take his wages. He has clearly said that he used to work in the fectory from 8 am. to 5 p. m. and sometime he used to work overtime also for which he was paid separately. He was also having a gate pass though job card was not given to him. Against it the Management was satisfied by production of Babulal and that, too, without documents. Babulal has clearly mentioned that he has got no knowledge either of the attendance register or pay rolls. The statement of Babulal is hopelessly, vague and sweeping in nature inasmuch as he has shown utter ignorance of all vital points which concern the inquiry and which could have been relevant for the purpose of adjudication whether Mohanlal was workman or not. Babulal has said that he is not aware whether there was agreement for giving contract to Mohanlal. He has also stated that he is not aware of the rates of contract. He was not aware how many persons were working since 1971. He was not in a position to say for howmany days Mohanlal worked because he was not dealing with the service conditions of the workmen. According to him Supervisor and Foreman deal with the workmen. In view of this statement of Babulal, the Labour Court was of the opinion that Mohanlal's statement can be safely believed and acting upon that, a finding has been given that Mohanlal was a workman. Not only that, there is no error of jurisdiction nor there is any error apparent on the face of record, I am of the view that on the basis of the evidence which was produced before the Labour Court, the finding of the Labour Court that Mohanlal was a workman, is just and proper. Even before this Court no other documents have been produced by the petitioner in order to come to a different finding. The second objection raised by Mr. Jain was that the petitioner was not allowed proper opportunity to lead evidence and his application for permitting to lead evidence was not considered and not decided. Mr. Jain read before me the application Which was given before the Labour Court and a per-usal of that application shows that no reason what-so-ever has been given much less good or sufficient reasons for non production of the evidence when the peti-tioner was called upon before the lower court to produce statement in reply and the documents and evidence in the form of affidavit, if any. That being so, the consideration of this application could have resulted in rejection of the same only. Yet another argument made by Mr. Jain is that the Labour Court has not taken note of the fact that Mohan Lal has failed to show that after his removal, he tried for soms job and could not get it. Mohanlal did claim the amount for the period when he was out of employment and no controversy was raised by the petitioner on this part of the relief The Labour Court having come to the conclusion that Rs. 14/- were being paid per day, awarded the game i,n the absence of anything to show that Mohanlal worked at any other place. I am of the opinion that in the facts and circumstances of the case, it was for the Management to plead expressly and specifically that Mohanlal worked somewhere and, therefore, even if reinstatement is ordered, the wages for the intervening period should not be allowed. Mr. Jain produced before this Court a photo stat copy of a letter from M/s J. K. Synthetics to show that Mohanlal was employee It is not possible to take this into evidence at this stage under Article 226 of the Constitution of India and set aside the judgment of the Labour Court on that basis. No reason what-so-ever has been given why it was not produced before the Labour Court and that being so, this document podu-ced here in the form of Annexure 8 cannot be taken into evidence and cannot improve the case of the Management now. ;