JINDARSING BAHRA Vs. CARGO MOTORS LTD

JUDGEMENT

(1.) Heard learned Advocate Mr. Premal S. Rachh for petitioners in these two petitions. Through these petitions, petitioners have challenged the common award passed by Labour Court, Jamnagar in Reference Nos. 591 and 592, 593 of 1992 dated 4th March, 2005 wherein the Labour Court has granted reinstatement without back wages for intervening period, Petitioners herein are workmen concerned in Reference (LCJ) Nos. 593 and 592 of 1992 respectively. They are challenging the aforesaid award insofar as it relates to refusal of back wages alone.

(2.) While making his submissions on behalf of the petitioners, learned Advocate Mr. Rachh has placed reliance upon the evidence of one workman vide Exh. 61 which is at page 59 Annexure-D, deposition given by one Ghanshyambhai Jivrajbhai Rathod. Learned Advocate Mr. Rachh submitted that the Labour Court has relied upon the evidence of one witness for workman at Exh. 61 for adjudicating the reference, but has not relied upon the evidence of same witness for workmen vide Exh. 61 for determining the question of back wages. He also submitted that in statement of claim, specific averments were made by the petitioners that they have remained unemployed and have not been gainfully employed during the intervening period. He also submitted that the respondent has not proved gainful employment of both the petitioners. He also submits that the Labour Court has erred in raising an inference that the petitioners are technical persons and more than sixty garages are available in Jamnagar, and therefore, naturally, they would not have remained unemployed or without work for such a period being a technical persons. According to him, labour Court has committed gross error in not granting full back wages for intervening period. Except these submissions, no submissions was made by Mr. Rachh for petitioner. No decision was cited by him before this Court for consideration of this Court.

(3.) I have considered the submissions made by the learned Advocate Mr. Rachh on behalf of the petitioners. I have also perused the impugned award. Relevant discussion made by the Labour Court on the question of back wages is at internal page 20 of the impugned award. Labour Court has considered the decision of the apex Court as well as this Court and observed that Pravin Valji and Jindarsingh were working as mechanic whereas the workman Hanif Abu was working as Helper. None of the workmen have stepped into the withess box for giving deposition on oath, but they have relied upon the deposition of the another workman Ghanshyambhai at Exh. 61 wherein he has deposed about his unemployment during the intervening period but no specific deposition was given by said witness Ghanshyamsinh at Exh. 61 about the unemployement of present petitioners during the intervening period. Thus, assertions about their unemployment during the intervening period made by petitioners in their respective statements of claim have not been proved by them by giving oral evidence to that effect before the Labour Court, Labour Court has considered that it has not come on record as to whether these two petitioners have remained unemployed during the intervening period or not. Whether these two petitioners had made any efforts to secure any job or employment during the intervening period or not and whether they were not gainfully employed during the intervening period, that aspect has not been proved by the workmen before the Labour Court. Therefore, in absence of such evidence from said petitioners about unemployment, the respondent is not able to get any opportunity to cross-examine the workmen on that aspect. Therefore, in absence of such evidence on the aspect of back wages, Labour Court cannot, at its own, suo motu, infer that the workmen must have remained unemployed during the intervening period. Therefore, in absence of such evidence from petitioners, Labour Court came to the conclusion that the petitioners are not entitled for any amount of back wages for intervening period. Burden to prove unemployment, is initially, upon the workman. Workman is required to discharge such burden by way of oral evidence before the Labour Court, and thereafter, such burden stands shifted upon the employer to controvert the oral evidence of the workman about his unemployment during the intervening period. Here, since that intitial burden was not discharged by the present petitioners, according to my opinion, Labour Court was right in rejecting the claim of the workmen for back wages for intervening period. This aspect has been considered by the Apex Court in Municipal Council, Sujanpur v. Surinder Kumar, reported in 2006 (5) Scale 505. The relevant discussion made in Paras 13, 15 and 16 which is reproduced as under :