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2025 DIGILAW 1601 (BOM)

Prashant Natekar v. Colfax (India) Pvt Ltd.

2025-12-16

M.S.SONAK

body2025
JUDGMENT : M. S. SONAK, J. 1. None for the Petitioner. Mr. Singbal appears for the Respondent. 2. Since this is an old matter, there is no point in adjourning it any further. 3. The Petitioner-workman challenges the Labour Court’s Award dated 16.05.2012 by which the Labour Court, after holding that the Petitioner’s termination was illegal and unjustified, denied the Petitioner reinstatement, but awarded him compensation of only Rs.2,00,000/-. 4. Mr. Singbal, learned Counsel for the Respondent-employer, submitted that the employer had also challenged this very Award by instituting Writ Petition No.719/2012. He submitted that this petition was dismissed by order dated 07.01.2013 after holding that the Award dated 16.05.2012 was legal and proper. He now submits that this order of 07.01.2013 in Writ Petition No.719/2012 will operate as res judicata, and based thereon, even this petition must be dismissed. 5. The employer’s Writ Petition No.719/2012 had challenged the Labour Court’s Award dated 16.05.2012 on the ground that the Labour Court’s finding that the workman’s termination was not legal and proper was vitiated by perversity and should be set aside. Without prejudice, the employer had contended that even the Award of Rs.2,00,000/- by way of compensation was excessive and the same should not have been awarded. 6. Learned Single Judge of this Court (Coram: F. M. Reis, J.) by order dated 11.01.2013, dismissed the employer’s petition. The relevant discussion is at paragraphs 4, 5 and 6, and the same is transcribed below for the convenience of reference: “4. I have carefully considered the submissions of the learned Counsel appearing for the Petitioner and I have also gone through the records as well as the impugned Judgment. It is well settled that in exercise of jurisdiction under Article 227 of the Constitution of India, this Court cannot re-appreciate the evidence to come to any contrary conclusion. On perusal of the impugned Judgment, the Tribunal on the basis of the material on record and appreciating the evidence adduced by the parties, has come to the conclusion that the fact that the disputed document has been forged and handed over to the Bank, has not been established. It is not in dispute that the particulars which have been disclosed in the said certificate are in accordance with the actual salary which the Respondent was drawing from the Petitioners. Apart from that, the Respondent was a sweeper working in the establishment of the Petitioners. It is not in dispute that the particulars which have been disclosed in the said certificate are in accordance with the actual salary which the Respondent was drawing from the Petitioners. Apart from that, the Respondent was a sweeper working in the establishment of the Petitioners. It is not the case of the Petitioners that the whole exercise on the part of the Respondent was to get some unlawful gain on the basis of such document. On the contrary, the records reveal that the Respondent had stood as a guarantor for the borrower and it is well know that in such circumstances, no monetary benefits can accrue to the Respondent. However, only because the borrower defaulted in the payment to the Bank, the amount was sought to be recovered from the Respondent and thereafter the amount was repaid by the Respondent. These facts which curl out from the records of the proceedings further suggests that the Respondent had not taken any personal gain on the basis of such certificate. The Tribunal has noted that the concerned official who was working with the Bank at the relevant time, has not been examined. Apart from that, the borrower also has not been examined. In such circumstances, the conclusion drawn by the Tribunal on the basis of the material on record, cannot be said to be perverse. 5. Considering that a view has been taken by the Tribunal which cannot be said to be contrary to the record, it does not entitle the Petitioner to seek for interference under Article 227 of the Constitution of India. The Tribunal on the basis of the material on record has considered the overall facts and circumstance of the case and directed the payment of the compensation in lieu of the reinstatement of the Respondent. The Apex Court has accepted this position in specific cases wherein the compensation has been awarded in lieu of reinstatement in cases where employer has lost confidence in an employee on account of some incident. In overall circumstances of the case and considering the material on record, I find that no case is made out for interference in the impugned Order under Article 227 of the Constitution of India. 6. Hence, Petition stands rejected.” 7. In overall circumstances of the case and considering the material on record, I find that no case is made out for interference in the impugned Order under Article 227 of the Constitution of India. 6. Hence, Petition stands rejected.” 7. Now, what is significant is that the employer’s Writ Petition No.719/2012 was disposed of by this Court on 11.01.2013, even without issue of any notice to the workman Shri Prashant Natekar, who is the Petitioner in the present petition. This is one strong reason why the order of 11.01.2013 cannot operate as res judicata qua the workman Shri Prashant Natekar. Secondly, the scope of the present petition differs from that of the employer’s petition. The employer had contended that the finding that the workman’s termination was unlawful or unjustified was perverse and should be set aside. In this petition, the workman proceeds on the basis that his termination was not legal and justified as held by the Labour Court’s Award dated 16.05.2012. Still, he argues that once this finding was reached, there was no justification for not granting reinstatement with full back wages to the workman. This is another reason why the order of 11.01.2013 would not operate as res judicata qua the present Petitioner-workman, Shri Prashant Natekar. 8. However, the order of 11.01.2013 in the employer’s Writ Petition No.719/2012 will now preclude the employer from contending that the termination of the workman Shri Prashant Natekar was legal and justified in this petition. That issue stands concluded because the employer’s challenge in Writ Petition No. 719/2012 was dismissed by this Court by order dated 11.01.2013. Similarly, the employer will be precluded from urging that any compensation amount less than Rs.2,00,000/- should have been awarded to the workman Shri Prashant Natekar. Even that issue has, at least to that extent, attained finality, qua the employer. 9. However, nothing in the order of 11.01.2013 will preclude the present Petitioner from contending that reinstatement with full back wages and all consequential benefits should have been granted by the Labour Court after having concluded that the workman’s termination was neither legal nor justified. 10. The Labour Court, in the impugned Award, has awarded only Rs. 2,00,000/- to Shri Natekar. The entire discussion of this issue is in paragraph 28 of the impugned Award, and the same is transcribed below for convenience of reference: “28. 10. The Labour Court, in the impugned Award, has awarded only Rs. 2,00,000/- to Shri Natekar. The entire discussion of this issue is in paragraph 28 of the impugned Award, and the same is transcribed below for convenience of reference: “28. In the case in hand, admittedly the allegations, leveled against the workman was submission of forged salary certificate while acting as a guarantor to the loan of Rs. 40,000/- to be obtained by the third party without permission of the management and there is/was no specific charge of theft of letterhead, misuse of its letterhead and forgery etc. against the workman. The Employer Company has failed to prove the said charges of misconduct leveled against the workman vide charge sheet dt. 14/06/2005. The evidence on record indicates that the Workman was in the employment of the Employer Company as a 'Sweeper' in Class IV category continuously for about 16 years without any interruption in service till the date of the termination of his service. The evidence on record indicates that besides the aforesaid alleged misconduct, the Employer has failed to produce on record any other misconduct on the part of the workman. The workman has failed to plead in his pleadings or even in his demand letter that he is gainfully unemployed since after the termination of his services. The workman however in his Affidavit-in-Evidence filed in the present proceedings deposed that he is unemployed. The evidence on record indicates that the Employer Company vide its letter dated 31/05/2011 (Exhibit-E/7-Colly) informed the inspector, the Inspectorate of Factories and Boilers, Altinho, Panaji Goa about the temporary suspension of activities in its factories and has returned the factory license. Thus, the reinstatement of the Workman in the employment of the Employer cannot be granted as there is no work available with the Employer Company Taking into consideration the nature and length of service of the workman in the Employer Company, age and qualification of the workman and nature of allegations leveled against the workman, in my considered view a lump sum compensation of Rs. 2,00,000/- (Rupees two lakh only) will meet the ends of justice.” 11. 2,00,000/- (Rupees two lakh only) will meet the ends of justice.” 11. Except for recording that there is no work available with the employer, and upon taking into consideration the nature and length of service of the workman and the nature of allegations levelled against the workman, a lump sum compensation of Rs.2,00,000/- will meet the ends of justice. 12. The fact that the employer’s activities were temporarily suspended might be a consideration in denying reinstatement. Similarly, though the allegations against the workman were never proved, one can understand why he was denied reinstatement because of the claims of forgery made against him. But then, in such a situation, the employer had to pay some compensation instead of reinstatement. Besides, the workman was terminated on 29.12.2005, and the Labour Court’s Award was made on 16.05.2012. For this period of delay of 7 years at least, there is no justification in the Award for denying the workman back wages. 13. Mr. Singbal, however, submitted that the burden is entirely upon the workman to establish that he was not gainfully employed after his termination. He relied on Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar , (2008) 9 SCC 486 to support this proposition. 14. The decision cited by Mr Singbal does not say precisely what Mr Singbal contends. He refers to paragraph 13 and states that, having regard to the provisions contained in Section 106 of the Evidence Act, the burden would be on the workman. However, it does acknowledge that the burden is a negative one. If the same is discharged by the workman, the onus of proof would shift on the employer to show that the employee concerned was in fact gainfully employed. 15. In any event, reference to the landmark decision of the Hon’ble Supreme Court in the case of Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors., (2013) 10 SCC 324 becomes necessary. In this case, after considering several precedents on the subject, the Hon’ble Supreme Court has held that, in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. In this case, after considering several precedents on the subject, the Hon’ble Supreme Court has held that, in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The aforesaid rule is subject to the rider that when it is the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the workman and similar other factors. 16. The decision further holds that ordinarily an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead by making a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was getting prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes the positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 17. In this case, the Labour Court has noted that, though the workman did not plead that he was not gainfully employed, he specifically deposed in his affidavit in evidence that he was unemployed. However, the employer did not choose to lead any evidence to disprove the workman’s statement made on oath before the Labour Court. Therefore, following the law laid down in Deepali Surwase (supra), Mr. Singbal’s contention will have to be rejected. 18. In this case, the evidence on record shows that the workman was continuously employed for 16 years before the termination of his services, which is held to be neither legal nor justified. Therefore, following the law laid down in Deepali Surwase (supra), Mr. Singbal’s contention will have to be rejected. 18. In this case, the evidence on record shows that the workman was continuously employed for 16 years before the termination of his services, which is held to be neither legal nor justified. There is evidence that he was drawing a salary of Rs.3,450/- per month at or around the time of his termination in 2005. The Labour Court’s Award is dated 16.05.2012. Therefore, for a period of seven years, i.e. between the date of termination and the date of the Labour Court’s Award, the employee would have drawn wages of approximately Rs.2.94 lakhs, even if increments and other progressions are entirely excluded. This figure can safely be taken as Rs.3,00,000/- towards back wages. 19. The next issue is whether in the peculiar facts of the present case, the workman can insist upon reinstatement. Though the workman was employed for almost 16 years continuously, there is evidence that the employer’s factory was temporarily closed. Though the allegation against the workman is held not proved, it still relates to the issue of loss of confidence. The Petitioner was employed as a sweeper, and it is not as if he would not get some employment, though not necessarily regular employment. Upon cumulative consideration of all these circumstances, a denial of reinstatement by the Labour Court need not be faulted or interfered with. However, the employer will have to pay some compensation in lieu of reinstatement. This is conservatively estimated at Rs.1,00,000/-, after considering all the circumstances referred to in paragraph 38.2 of Deepali Surwase (supra). 20. Accordingly, this petition is liable to be partially allowed. The compensation amount of Rs.2,00,000/- is liable to be and is hereby enhanced to Rs.4,00,000/-. The same shall carry interest @ 9% per annum to be determined from the date of the impugned Award, i.e. 16.05.2012, till the payment of this amount to the Petitioner-workman. 21. Mr. Singbal was unsure whether the amount of Rs.2,00,000/- as directed by the impugned Award has already been paid to the Petitioner-workman. If this amount has already been paid, the employer will be entitled to adjust it from the amount now awarded. In any event, the balance payment or the entire payment, as the case may be, will have to be made to the Petitioner-workman within two months from today. If this amount has already been paid, the employer will be entitled to adjust it from the amount now awarded. In any event, the balance payment or the entire payment, as the case may be, will have to be made to the Petitioner-workman within two months from today. The Respondent-employer is directed to deposit this amount in this Court within two months from today, after giving prior intimation to the Advocate for the Petitioner-workman. 22. The impugned Award is modified to the above extent only. The rule is made partially absolute. There shall be no order for costs. All concerned are to act on an authenticated copy of this order.