IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NOs.15494/2019 & 16564/2019 (L-RES) BETWEEN IBM INDIA PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERD OFFICE AT NO.12, SUBRAMANYA ARCADE, BANNERGHATTA MAIN ROAD, BENGLAURU 560029.
REPRESENTED HEREIN BY ITS AUTHORISED SIGNATORY, MR. SANTOSH SREEDHARAN.
(BY SRI. THOMAS VELLAPALLY, ADVOCATE) AND SRI. SUDHIR J GRAMA AGED ABOUT 48 YEARS, S/O SRI. G.K. JAYARAM, R/AT NO.498, 5TH CROSS, RBI LAYOUT, J.P. NAGAR 7TH PHASE, BENGALURU 560078.
(BY SRI. V. S. NAIK, ADVOCATE) ... PETITIONER ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-L AND M ORDERS DATED 11.03.2019 PASSED BY THE HON'BLE SECOND ADDITIONAL LABOUR JUDGE, BENGALURU IN I.A.5 AND 6 RESPECTIVELY IN I.D.17/2018 AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner-Company is before this Court calling in question the two impugned orders dated 11.03.2019, at Annexure-L and M, whereby the Labour Court has rejected I.A.Nos.5 and 6, in I.D.No.17/2018.
2. Learned counsel for the petitioner submits that I.A.No.5 was filed by the petitioner-Management, seeking recasting of Issue No.1, whereby the burden of proving that the 1st party was a workmen was cast on the 2nd party- Management and I.A.No.6 was filed seeking to recall the direction given by the Labour Court directing the Management to lead evidence on Issue No.1.
3. Learned counsel placed reliance on the judgments of Mukesh K. Tripathi Vs. Senior Divisional Manager, LIC and others, reported in (2004) 8 SCC 387, Electronics Corporation of India Ltd. Vs. Electronics Corporation of India Service Engineers Union, reported in (2006) 7 SCC 330 and Standard Chartered Bank Vs. Vandana Joshi and another, a judgment of the Bombay High Court, reported in 2010(2) Mh. L.J., to contend that the law is well settled on this aspects that in order that a person can be designated as a workmen under Section 2(s) he/she must be employed to do work which falls within one of the stipulated categories viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. In other words, it is not enough that a person is not covered by either of the four exceptions to the definition. It is now also a well settled principle of law that the burden lies on the person who asserts the status of a workman under Section 2(s) to establish with reference to the dominant nature of his/her duties that the work which is performed falls within one of the stipulated categories in Section 2(s).
4. Sri. V.S.Naik, learned counsel appearing for the respondent-workman though admits that this may be the position of law, however, learned counsel points out to Issue No.2, framed by the Labour Court, which placed burden of proof on the 1st party on the issue, ‘whether the order of termination was unjust and illegal act’, which according to the learned counsel, is contrary to the position of law.
5. At this juncture, learned counsel for the petitioner submits that the respondent may make an application before the Labour Court in this regard and a time frame may be fixed that the Labour Court could decide on this aspect and the petitioner may either contest the said issue or may admit the position of law and the Labour Court may proceed further.
6. In that view of the matter, this writ petition is disposed of setting aside the two impugned orders dated 11.03.2019, passed on I.A.Nos. 5 and 6, in I.D.No.17/2018, while directing the Labour Court to reframe the Issue No.1, placing burden of proof on the respondent-workman.
The respondent-workman herein, as observed above, may make an application regarding the re-framing of issue No.2 and the Labour Court shall dispose of such an application as expeditiously as possible, at any rate within a period of fifteen days from the date of application.
It is ordered accordingly.
SD/- JUDGE DL