Dismissed

M/S. Western India Garments Pvt. Ltd. v. Smt. Alka R. Raut and Another

Bombay HC4 Mar 2009WP/2773/2008

Case brief

AI extract

What is this about?

The High Court of Bombay disposed of five common writ petitions challenging an impugned order of the 3rd Labour Court. The Court refused to interfere with the Labour Court's findings on facts concerning illegal termination and reinstatement. The petitioners failed to prove closure of manufacturing activities due to deficient evidence and unexplained admissions regarding factory licenses. The writ

What did the court decide?

The writ petitions were dismissed. The stay on the impugned order was extended until 30.4.2009.

M/S. Western India Garments Pvt. Ltd. Vs Smt. Alka… — Writ and Judicial Review | Bombay HC (2009)

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 : 1 :

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

 WRIT PETITION NO.2768 OF 2008

¶4

 M/s.Western India Garments Pvt.Ltd. ....Petitioner
 V/s.
 Damodar B.Kadam & Anr. ....Respondents

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 WITH

¶6

 WRIT PETITION NO.2769 OF 2008

¶7

 M/s.Western India Garments Pvt.Ltd. ....Petitioner
 V/s.

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 Anant V. Khanvilkar & Anr. ....Respondents

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 WITH

¶10

 WRIT PETITION NO.2770 OF 2008

¶11

 M/s.Western India Garments Pvt.Ltd. ....Petitioner
 V/s.

¶12

 Bhagwat R. Prajapati & Anr. ....Respondents

¶13

 WITH

¶14

 WRIT PETITION NO.2771 OF 2008

¶15

 M/s.Western India Garments Pvt.Ltd. ....Petitioner
 V/s.

¶16

 Baban V. Sarat & another ....Respondents

¶17

 WITH

¶18

 WRIT PETITION NO.2772 OF 2008

¶19

 M/s.Western India Garments Pvt.Ltd. ....Petitioner
 V/s.

¶20

 Ramu K. Dangiet and another ....Respondents

¶21

 WITH

¶22

 WRIT PETITION NO.2773 OF 2008

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 M/s.Western India Garments Pvt.Ltd. ....Petitioner
 V/s.

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 Alka R. Raut & another ....Respondents

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 WITH

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 : 2 :

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 WRIT PETITION NO.2774 OF 2008

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 M/s.Western India Garments Pvt.Ltd. ....Petitioner
 V/s.

¶29

 Vasant B. Vasargaonkar & Anr. ....Respondents

¶30

 Mr.S.K. Talsania, Senior Counsel with Mr.Ajit S.
 Karawande for the Petitioners.

¶31

 Ms.Rita Joshi for the Respondents.

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 (In all matters)

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 Mr.J.S. Saluja, A.G.P. for the State in Writ
 Petition Nos.2768 of 2008 and 2769 of 2008.

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 Ms.Mugdha Jadhav, A.G.P. for the State in Writ
 Petition Nos.2771 of 2008 and 2772 of 2008.

¶35

 Ms.I. Calcuttawala, A.G.P. for the State in Writ
 Petition No.2770 of 2008.

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 Mr.Raju Mane, A.G.P. for the State in Writ Petition
 Nos.2773 of 2008 and 2774 of 2008.

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CORAM : S.J. VAZIFDAR, J.
DATED : 4TH MARCH, 2009.
P.C. :

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 1. It is agreed between the counsel that the

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 order in Writ Petition No.2768 of 2008 would govern
 the result in all the Writ Petitions. They are
 accordingly disposed of by this common order.

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 2. The impugned order, passed by the 3rd Labour
 Court in a Reference, directs the Petitioner to
 reinstate Respondent No.1 with full backwages and
 continuity of service. The issues before the Labour
 Court were whether the first Respondent proved that

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 the Petitioner had illegally terminated him from
 service with effect from 30.4.1999 ; whether the
 first Respondent proved that he had continuously
 worked for more than 240 days in a year just prior to
 the termination and whether the first Respondent is
 entitled to get the relief of reinstatement with full
 back wages and continuity of service with effect from
 2.8.1999. The issues have been answered in the
 affirmative in the first Respondent’s favour.

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 3. The Petitioner’s case is that on 24.8.1999,
 it had closed down its business. However, to avoid
 commercial litigation from the prospective buyers,it
 had no alternative but to start manufacturing
 activities on a temporary basis to complete the work
 in hand. It is further contended that on completion
 of such work, it completely closed down the
 manufacturing activities with effect from 10.7.2000.
 Thereafter and to date, it has not restarted the
 manufacturing activities. Further according to the
 Petitioner, Respondent No.1 had voluntarily left its
 services in August, 1999 realizing that the Petitioner
 did not have much work.

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 4. The Labour Court has found that the first
 Respondent had established that he worked for 240 days
 with the Petitioner. This finding is based on the

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 evidence including the oral evidence. The findings
 are purely on facts. I am not inclined to interfere
 with the same. Nor am I inclined to interfere with
 the finding that the termination was wrongful.
 Admittedly, there was no show cause notice or any
 other action taken to discontinue the Petitioner’s
 employment. In fact the question does not arise as
 the Petitioner’s case is that the first Respondent
 voluntarily left the employment. The impugned order
 records that the Petitioner did not lead any evidence
 to show that the first Respondent tendered his
 resignation after accepting the legal dues on
 3.8.1999. This again is a finding of fact based on an
 appreciation of the evidence and I am not inclined to
 interfere with the same.

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 5. Mr.Talsania however, submitted that in any
 event,there was no justification for ordering
 reinstatement as the manufacturing activities of the
 Petitioner had completely closed down atleast with
 effect from 10.7.2000. Thereafter there were only two
 employees. The finding in this regard is essentially
 again one of fact.

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 6. It is true that the issue of closure has been
 dealt with only very briefly in paragraph 32 of the
 impugned order which reads as under :-

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 "32. Though it is tried to submit by
 first party that the manufacturing
 activities of first party were finally
 closed with effect from 25.8.1999 but
 this closure is not established by
 leading sufficient evidence. Moreover
 the deposition of the witness of the
 first party does not inspire any
 confidence to place reliance on its
 considering the admissions given by him
 in the corss-examination. Thus the
 first party failed to show that the
 manufacturing activities are finally
 closed."

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 7. Ms.Joshi, submitted that no fault can be

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 found with the impugned order in this regard as no
 issue regarding closure had been raised and the
 Petitioner had not raised any grievance about the fact
 that no issue had been raised.

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 8. I will presume however in favour of the

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 Petitioner that no issue having been raised does not
 disentitle the Petitioner from raising the contention.
 Admittedly, the pleadings do contain averments
 regarding the closure. The oral evidence also deals
 with this aspect. The parties were therefore aware
 that the issue of closure had been raised and was to
 be dealt with.

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 9. While I see the force in Mr.Talsania’s

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 submission that this aspect has not been dealt with in
 detail, considering the facts of the present case I am

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 not inclined to interfere with the order.

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 10. The learned Member found the evidence of the
 Petitioners not to inspire any confidence. The
 conclusion is not absurd or perverse. In his
 cross-examination, the witness stated that he did not
 know whether the Petitioner used to export garments as
 per the quota allotted by A.E.P.C. He stated that he
 did not know the turn-over of the company inter-alia
 in the year 1999-2000. He further submitted that one
 Dinesh Vora was looking after the accounts section.
 The said Dinesh Vora was not examined. He would have
 been in a position to state whether or not there were
 any manufacturing activities after July, 2000. The
 accounts would have been relevant in this regard.
 They were not produced. The relevant witness was
 therefore not examined.

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 11. The Petitioner’s witness admitted in his
 cross-examination which was conducted in the year 2008
 that the factory licence and the B.M.C. licence
 obtained in the year 1976 had been renewed every year
 to date. In the absence of any evidence to the
 contrary, there would be a justifiable inference of
 the manufacturing activities having continued in view
 of the factory licence having been renewed to date.
 It was not the Petitioner’s case that the factory

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 licence had been renewed only as a matter of course or
 through inadvertence. There was no re-examination.

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 12. The Petitioner’s witness also admitted that
 there is a show-room inside the factory and the
 garments were displayed therein. He further stated
 that he did not know the reason for displaying the
 garments in the show-room. He stated that he did not
 know whether garments were displayed in the show-room
 to attract the customers. This was a relevant
 consideration. The witness stated that he does not
 even know how many orders he had received from the
 customers.

¶64

 . The witness not having offered an
 explanation, it was not open to the Petitioner to
 offer an explanation through his counsel across the
 bar. It was contended that the garments displayed
 were only in respect of the export business.

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 13. Further the Petitioner’s witness stated that

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 he was unaware of the business activities of the
 Petitioner.

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 14. What is surprising is that he stated that he
 is unaware of the contents of paragraph 4 of his own
 affidavit. Paragraph 4 of the affidavit contains

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 various statements regarding the workload from time to
 time, the financial difficulties faced due to the
 recession in textile industries and about the alleged
 closure. Thus he has failed to prove closure even in
 his examination in chief. Moreover the witness has
 thus not been able to answer any questions in
 cross-examination relevant to the closure.

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 15. I am in respectful agreement that this
 evidence cannot inspire any confidence.

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 16. There was no re-examination. The best
 evidence was obviously held back. The admissions
 especially regarding the factory licence have not been
 explained.

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 17. In the circumstances, all the above Writ
 Petitions are dismissed. The impugned order shall
 remain stayed upto 30.4.2009.

M/S. Western India Garments Pvt. Ltd. v. Smt. Alka R. Raut and Another

Case brief

What is this about?

What did the court decide?

M/S. Western India Garments Pvt. Ltd. v. Smt. Alka R. Raut and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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