1. Heard Mr. Patel, learned advocate for the petitioner, and Mr. Bhatt, learned advocate for the respondent workman.

2. In present petition, the petitioner company has challenged the award dated 30.11.2005 passed by the learned Labour Court, Kalol in Reference (LCK) No. 401 of 1998 whereby the learned Labour Court directed the petitioner company to pay 75% backwages for the period from 8.4.1998 to 31.1.2002.

Feeling aggrieved by the said direction, the petitioner company has taken out present petition.

3. So far as the factual background is concerned, it has emerged from the award impugned in present petition that the respondent raised an industrial dispute against his alleged termination in service with present petitioner. The said industrial dispute was referred for adjudication to the learned Labour Court at Kalol. The reference came to be registered as Reference (LCK) No. 401 of 1998. In the proceedings before the learned Labour Court, the respondent herein filed his statement of claim with allegation that he was working with the petitioner company since last two years and he was paid salary at the rate of Rs. 37 per day and that his service came to be terminated w.e.f. 8.4.1998 without following prescribed procedure in law. The respondent herein alleged that at the time when his service was terminated, the petitioner did not pay retrenchment compensation or any other amount. He also claimed that his service was not terminated for any misconduct and any inquiry was not conducted against him. The respondent claimed that since his service is terminated in violation of provisions under the Act, the direction for reinstatement and backwages should follow.

4. The reference was opposed by the petitioner company by filing written statement. In the written statement, the petitioner company denied that it had terminated service of the claimant workman. The company claimed that the claimant was engaged purely on temporary basis w.e.f. 1.9.1995. The petitioner company also claimed that the claimant was very irregular in attendance and irresponsible in performing her duty. The company also claimed that the claimant was in habit of remaining absent without permission and that it was the claimant who, herself and voluntarily, stopped reporting for work w.e.f. 7.4.1998. The petitioner company also claimed that when she stopped reporting for duty, the company had addressed letters dated 12.4.1998, 20.4.1998 and 28.4.1998 to the claimant asking her to report for duty and the said letters were forwarded to the petitioner under U.P.C. The petitioner company claimed that it had not terminated the service of the claimant but she had voluntarily stopped reporting for work and that therefore, the reference should be rejected.

5. During the proceedings before the learned Labour Court, the evidence of present respondent was recorded. During her evidence, the respondent reiterated the details mentioned by her in her statement of claim and she claimed that her service was illegally terminated.

6. On the other hand, the petitioner company examined one Mr. Pankaj Jackson, Manager, as its witness. The witness of the petitioner company supported the reply/written statement filed by the company and the details mentioned therein. The company's witness mentioned in his evidence that the respondent was very irregular in her service. He also mentioned in his evidence that if the respondent was ready to report for duty, then, the petitioner company was ready to allow her to resume her duty. He also mentioned in his evidence that the petitioner company had not terminated her service.

7. The learned Labour Court considered the rival pleadings and the oral evidence available on record. The learned Labour Court also took into consideration the documents placed on record by the contesting parties and also took into consideration the fact that the petitioner had reinstated the respondent in service w.e.f. 31.1.2002.

8. Having taken into account the fact that the respondent was already reinstated w.e.f. 31.1.2002, the learned Labour Court concentrated on the respondent's request for backwages.

The learned Labour Court recorded that since the respondent is already reinstated, any direction with regard to reinstatement is not required to be passed. With reference to the claim for backwages, learned Labour Court observed that whether the respondent was gainfully employed during the period between 8.4.1998 to 31.1.2002, or not was not brought on record by the employer. The learned Labour Court proceeded on such premise and awarded 75% backwages.

9. During the hearing, Mr. Patel, learned advocate for the petitioner company, submitted that the witness of the petitioner company had mentioned that it was the respondent who had voluntarily stopped reporting for work and the petitioner was ready to allow the respondent to resume duty if she was ready to report for duty. He submitted that subsequently, the respondent resumed her duty w.e.f. 31.1.2002 and the petitioner reinstated her and that therefore the question with regard to the request for reinstatement does not survive and having regard to the said fact, the learned Labour Court has not issued any direction. He also submitted that the direction to pay 75% backwages is not justified in view of the fact that the respondent herself had admitted during her cross-examination that she was employed by and working with contractor in Paras Pharma. He submitted that though the respondent herself admitted that she was working in Paras Pharma with a contractor and the said evidence was available on record before the learned Labour Court, the learned Labour Court has committed material error in observing and recording that the employer did not place on record any evidence with regard to gainful employment of the respondent. He submitted that the observation by the learned Labour Court is contrary to specific evidence available on record.

10. Per contra, Mr. Bhatt, learned advocate for the respondent workman, submitted that from the evidence available on record, it was established that the service of the respondent was illegally terminated and that therefore the respondent would be entitled for backwages. He also submitted that since it is recorded by the learned Labour Court that the respondent was reinstated w.e.f. 31.1.2002, the respondent would be entitled for backwages for the period from the date of termination until the date when she was reinstated, more particularly when it was established by evidence before the learned Labour Court that her service was illegally terminated. On such premise, learned advocate for the respondent tried to justify and support the award directing the petitioner company to pay 75% backwages. He also submitted that the witness of the petitioner company had accepted that the company had not issued any notice to the respondent with regard to her alleged absence and that any letters as claimed by the petitioner company were also not served to the respondent. He also submitted that the witness of the petitioner company accepted that any letters were not addressed to the respondent and that therefore also the direction for backwages is justified.

11. I have considered the submissions by learned counsel for the contesting parties and material available on record of this petition.

12. So far as the respondent's employment with the petitioner company is concerned, the learned Labour Court has recorded findings of fact on that count and that therefore this Court would not re-appreciate the said evidence.

In light of the evidence available on record, the learned Labour Court has recorded that the respondent was employed with the petitioner and the petitioner failed to establish that the respondent had voluntarily stopped reporting for work or that she had voluntarily abandoned her service.

In view of such findings of fact, direction to reinstate the workman whose service was illegally terminated would follow as a corollary.

However, in present case, any question or occasion to pass order directing the petitioner company to reinstatement the respondent did not arise, inasmuch as during his deposition before the learned Labour Court, the witness of the company had declared that if the respondent desired to resume her duty, then, the petitioner would allow her to do so and thereafter, the respondent had reported for and resumed her duty and she was allowed to do so and she was reinstated w.e.f. 31.1.2002.

In this view of the matter, any occasion or any question for direction to reinstate the respondent did not arise and consequently, the learned Labour Court has not passed any direction qua reinstatement.

13. On the issue related to the claim for backwages is concerned, the learned advocate for the petitioner brought to the notice of this Court the deposition of the respondent workman recorded by the learned Labour Court at Exh. 10. A copy of the said deposition is placed on record of present petition at Annexure-E (Page-33 of the petition). In the last paragraph of the said oral evidence of the respondent, it is recorded that the respondent accepted during her cross-examination that she was engaged with a contractor in Paras Pharma.

Thus, by way of respondent's admission during cross-examination, the evidence about respondent's gainful employment for the period prior to 31.1.2002 was available on record before the learned Labour Court.

It is relevant to mention that the evidence of the respondent workman was recorded on 7.10.1999 and 26.7.2000. During her cross-examination (which appears to have been recorded on 26.7.2000), the respondent herself admitted that she was working with the contractor in Paras Pharma.

From the said material, it emerges that the evidence with regard to respondent's gainful employment was available on record before the learned Labour Court.

Despite this position, learned Labour Court has, in the award, observed that the petitioner employer did not place on record any material regarding respondent's gainful employment.

14. When the oral evidence of the respondent, more particularly her cross-examination, is taken into account, it emerges that the observation/findings recorded by the learned Labour Court with regard to respondent's gainful employment, are incorrect and they are contrary to the respondent's oral evidence.

Having regard to the fact that the respondent had admitted in her cross-examination that she was working with the contractor in Paras Pharma, the evidence with regard to respondent's gainful employment was available on record before the learned Labour Court and that therefore the direction to pay 75% backwages is not justified in view of this Court and deserves to be set aside.

15. At this stage, Mr. Bhatt, learned advocate for the respondent workman, submitted that there is error so far as the said evidence/cross-examination of the respondent is concerned.

In view of said statement by Mr. Bhatt, learned advocate for the respondent workman, the Court has asked for certified copy of the evidence.

The learned advocate for the petitioner has shown certified copy of the evidence of the respondent workman and even in the certified copy of the award, the same fact/evidence is recorded which is found in the typed copy of the respondent's evidence placed on record of present petition at page Nos. 33 to 35.

16. In that view of the matter, the submission that there is error in the evidence cannot be accepted.

Further, it is relevant to note on this count that the said oral evidence of the respondent was recorded in July-2000.

Thereafter, the learned Labour Court passed the award in November-2005, i.e. after almost 5 years.

If there was any error in recording the evidence of the respondent, as is now being claimed by learned advoca

te for the respondent, then, the respondent would have and could have immediately approached the learned Labour Court for appropriate correction in the award, more so when the proceedings were pending before the learned Labour Court. In light of the fact that any step with regard to the alleged error, which is being claimed for the first time during hearing of present petition, was never raised before the learned Labour Court, the said allegation and submission is not sustainable and cannot be entertained. Moreover, the fact that the respondent has not taken out any proceedings either before the learned Labour Court or any independent proceedings before this Court or by way of any affidavit in present petition raising plea of error in evidence and such plea is being raised for the first time in oral submissions during final hearing of present petition such submission cannot be accepted and is hereby rejected. 17. In view of the foregoing discussion and for the aforesaid reasons, the direction/order qua backwages directing the petitioner company to pay 75% backwages to the respondent is not sustainable and that therefore, the said direction is hereby set aside. The petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. Orders accordingly.