JUDGMENT
Nishita Mhatre, J.
1. The petitioner has challenged the Award of the Labour Court whereby the Labour Court has awarded reinstatement with 60% back-wages to the respondent-workman with effect from 7-4-1987. The Labour Court has also directed that an amount of Rs. 350/- per month should be deducted from the back-wages payable to the workman as he had received this amount during the period he was not in service.
2. The petitioner is a registered Charitable organisation sponsored by German Leprosy Relief Association. It had engaged respondent No. 1 as a driver from 9-5-1984. It is the petitioner’s case that due to financial difficulties and fall in the quantum of work, it decided to retrench one of the drivers from amongst the three that it had employed. The respondent-workman being the junior-most driver, was retrenched w.e.f. 1-4-1987. The letter of termination shows that an amount of Rs. 4,320,40 was offered by way of legal dues on account of retrenchment.
3. Being aggrieved by the termination of service, the respondent-workman raised an industrial dispute, which was referred for adjudication before the Labour Court. In the statement of claim, the respondent-workman pleaded that the petitioner had wrongfully and illegally terminated his services. It is also pleaded that after terminating his services, three or four new drivers were recruited by the petitioner and that his services have been terminated due to his refusal to resign from the trade union of which he was a member. Further, it was contended that section 25-H of the Industrial Disputes Act had been violated.
4. In the written statement, the petitioner pleaded that the services of the respondent-workman were terminated by way of retrenchment and that he was paid retrenchment compensation after three years for the service put in by him together with one month’s notice salary and leave wages and other dues payable to him. The petitioner contended that the retrenchment was effected as a measure of economy and that it was a bona fide decision taken by it. The allegation that three or four new drivers were recruited has been refuted and it is stated that as and when there were exigencies of work, drivers were employed on a casual basis.
5. The evidence of the respondent-workman was recorded wherein he has stated that he continued to physically work in the establishment upto 7-4-1987 and that he was not paid or offered his legal dues. He has denied the suggestion put to him in the cross-examination that the petitioner had sent to him a letter dated 1-4-1987 by R.P.A.D. and that he had not claimed the same.
6. The petitioner examined its Director as well as a Special Assistant working with the project. The Director has deposed that the finances of the petitioner did not permit it to employ three drivers at a time and, therefore, the respondent-workman was retrenched. The witness also deposed that the amount of Rs. 4,320.40 was sent to the respondent-workman by insured post and that the envelope containing the amount was returned ‘unclaimed’. The witness also stated that the petitioner had been employing drivers on a casual basis. The second witness for the petitioner had deposed that he had inserted the amount of Rs. 4,320.40 in the insured envelope together with the letter of retrenchment issued to the respondent-workman and he had sent the envelope to the workman. On 16-5-1987, he had collected the envelope from the post office as the petitioner had received an intimation from the post office that the insured envelope was returned “unclaimed”. He has also stated that he had recorded the numbers of the currency notes which were inserted into the envelope and that he had checked the cash in the envelope that was returned and then made an entry in the cash book accordingly. In the cross-examination, he has stated that he did not post the letter to the respondent-workman. However, he has stated that he had not recorded the numbers of the currency notes while removing them from the envelope which was returned and that the accountant had made an entry in the cash book regarding the return of the amount. He, however, verified the correctness of the entry which was dated 30-5-1987.
7. The Labour Court, on the basis of the evidence led before it, has held that the retrenchment effected was illegal and improper and, therefore, held that the respondent-workman was entitled to reinstatement with 60% back-wages. The Labour Court took the view that the petitioner had failed to establish the fact that the compensation and other legal dues were tendered to the respondent-workman when the services were terminated.
8. The Award of the Labour Court has been assailed by the learned Counsel for the petitioner by contending that there were no pleadings in the statement of claim that retrenchment was not validly and legally effected because notice wages, retrenchment compensation and other legal dues were not tendered to the workman and secondly because the reasons for retrenchment cannot be questioned by the Labour Court while deciding whether retrenchment has been validly effected. The learned Counsel relies on the judgment of the Apex Court in the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. & another, and the judgment of Division Bench of this Court in the case of Narang Latex & Dispersions Pvt. Ltd. v. S.V. Suvarna & another, reported in 1994 (68) IFLR 1029 in support of his contention that since there is no pleading regarding tender of retrenchment compensation and notice wages as a condition precedent, the question of Labour Court basing its finding on the evidence led on this issue before it does not arise.
9. In the judgment cited by the learned Counsel, the Apex Court has held that the onus would be decided by the test as to who would fail if no evidence is led. The contention to substantiate the evidence is necessary in the pleading. If there is no plea raised, there is no question of substantiating such a non-existing contention by evidence and the Tribunal of the Labour Court cannot consider such evidence as the other side would have no notice of it. The Apex Court observed that this was so as the pleadings must be such as to give sufficient notice to the other parties. In the instant case, the respondent-workman had raised the dispute as there was an illegal termination of his services and in the statement of claim, he has pleaded that his services have been wrongfully and illegally terminated by the employer. The petitioner in its written statement has pleaded that the termination of services could not be said to be wrongful as there was a valid retrenchment. The petitioner has also pleaded that retrenchment compensation and notice wages having been tendered to the workman, the retrenchment effected is legal and valid. Therefore, the petitioner had full knowledge that the respondent-workman had challenged the order of termination and it was necessary for it to defend it. The judgment of the Division Bench of this Court in the case of Narang Latex (supra) also has no application to the facts and circumstances in the present case. The petitioner was obviously aware that the respondent-workman had challenged termination of service as it was illegal. In order to justify its action, the petitioner has pleaded that it has tendered the compensation as well as notice wages. Therefore, the submission of the learned Counsel cannot be sustained.
10. As regards the next submission of the learned Counsel that the retrenchment itself was valid and legal as petitioner had tendered the entire amount due and payable also cannot be accepted. Admittedly, the amount is not tendered alongwith the letter of termination which was issued to the workman while on duty. Instead the petitioner has tried to establish on evidence that amount was sent the workman by insured postage. This seems to be far fetched as there is nothing on record to show that the amount was actually sent. Some entries made in the cash book, a xerox copy of which was produced before the Court, did not prove that the amount was in fact sent to the workman. In fact the witnesses of the petitioner have deposed that the amount is received as ‘unclaimed’ from the post on 15-4-1987 and the entry was made in the cash book on 3-5-1987. It is not disclosed as to why the entry was made after 15 days and, therefore, no reliance can be placed on it.
11. The other submission by the learned Counsel for the petitioner is that reasons for effecting retrenchment must be considered in the light of the observations of the Apex Court in the case of Parry & Co. v. Judge, 2nd Industrial Tribunal, Calcutta & others, reported in 1970 Lab.I.C. 1071. In this case, the Apex Court has held that the reasons for retrenchment cannot be questioned if the termination is not actuated by any motive of victimisation or any unfair labour practice and if the employer has acted bona fidely. The employer has a right to effect retrenchment, but it cannot be capricious or without rhyme or reason or by arbitrary reasons.
12. In the present case, it has come on record that the reason which the petitioner has given for retrenchment was because it had decided to take measures of economy and, therefore, the drivers were rendered surplus to its requirement. However, the evidence shows that the petitioner still maintained three vehicles and employed casual drivers on some occasions. This shows that there was need for a driver and the reasons for effecting retrenchment does not seem to be genuine.
13. Considering all aspects of the matter, I am of the view that the Award of the Labour Court must be upheld.
14. In the circumstances of the case, Rule discharged.
No order as to costs.