IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION Nos.48349-48350/2017 (L-TER) BETWEEN :
1. M/S. RAW JUTE TRADING INDUSTRIES LIMITED NO.18, BRUNTON ROAD, OFF M. G. ROAD, BENGALURU-560025.
2. M/S. EASTERN GENERAL INDUSTRIES NO.18, BRUNTON ROAD, OFF M. G. ROAD, BENGALURU-560025.
NOW REPRESENTED BY GENERAL POWER OF ATTORNEY HOLDER, SRI RAMESH KUMAR SHARMA, S/O. LATE SRI BHANWARLAL SHARMA, AGED 53 YEARS. ... PETITIONERS (BY SRI ABILASH RAJU V., ADV. FOR SRI S. R. KAMALACHARAN, ADV.) AND:
BISWAJIT SEN S/O. SRI NARESH CHANDRA SEN, AGED 45 YEARS, RESIDING AT KRISHNA REDDY LAYOUT, HORAMAVU MAIN ROAD, I MAIN, DODDABANASAWADI, BENGALURU-560043. ... RESPONDENT (BY SRI A. J. SRINIVASAN, ADV. FOR C/R) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 16.11.2016 [ANNEXURE-J] PASSED BY THE PRESIDING OFFICER, II ADDITIONAL LABOUR COURT, BANGALORE IN REFERENCE NO.50/2002 AND ORDER DATED 20.7.2017 [ANNEXURE-K] PASSED IN M.A.NO.1/2017 AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.11.2017, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners are aggrieved by the award dated 16.11.2016, passed by the II Additional Labour Court, Bengaluru, whereby the learned Labour Court has allowed the reference in favour of the respondent workman, Mr. Biswajit Sen, and has directed the petitioners to re-instate the respondent-workman, pay the full back wages, and to grant continuity of service with all consequential benefits. The petitioners are also aggrieved by the order passed by the learned Labour Court, whereby the learned Labour Court has rejected the petitioners' application under Section 11 of the Industrial Disputes Act, 1947 ("the Act", for short), read with Order 9, Rule 13 of CPC, and Rule 23 of the Industrial Disputes (Karnataka Rules), 1957. Through the application, the petitioners had sought the setting aside of the award dated 16.11.2016. However, the said application has been rejected by order dated 20.07.2017.
2. Briefly the facts of the case are that the respondent, Mr. Biswajit Sen, claims that on 22.09.1989, he joined the services of the petitioners as a Store Keeper. He was not only assigned the duty of collecting money due from the parties and remitting the same to the office, but was also given a residential quarter near the godown and was asked to keep an eye on the godown. Despite his diligent work and efficient discharge of his duties, on 07.08.1999, the Assistant Manager, one Mr. Ramesh Sharma, prevented the respondent from joining his duties. Since the respondent was arbitrarily dismissed from service, he raised an industrial dispute under Section 10 (4-A) of the Act. However, the same was subsequently withdrawn by him. Thereafter, an industrial dispute was raised which was referred by the Government under Section 10 (1) (c) (d) of the Act to the learned Labour Court.
The petitioners filed their written statement, and claimed that the reference is wholly misconceived. According to the petitioners, there is no employer-employee relationship between them and the respondent. According to the petitioners, the respondent was a domestic servant of one Mr. M. L. Patel, who at the relevant time was a Consultant for M/s. Giri Coffee Company. The respondent was paid his remuneration by Mr. M. L. Patel. Moreover, the respondent was provided with the quarters by the petitioners as long as the respondent was working for Mr. Patel. After Mr. Patel left M/s. Giri Coffee Company, the petitioners were trying to evict the respondent from the quarters provided by them. Since the respondent is not a workman under the petitioners, the question of arbitrarily dismissing the respondent does not even arise.
3. In order to support his case, the respondent examined himself as W.W.1, and examined Mr. M. N. Patel as W.W.2. The respondent also submitted thirty-two documents. On the other hand, the petitioners examined two witnesses, and submitted twenty-two documents.
Eventually, by award dated 16.11.2016, the learned Labour Court allowed the reference in the terms mentioned hereinabove.
4. Aggrieved by the award dated 16.11.2016, the petitioners filed an application for setting aside the award. However, by order dated 20.07.2017, the learned Labour Court dismissed the said application. Hence, the present petition before this Court.
5. Mr. Abhilash Raju, the learned counsel for the petitioners, has raised the following arguments:-
Firstly, Section 10 (4) of the Act requires the learned Labour Court to not only confine itself to the points of reference, but also to adjudicate on "matters incidental thereto". Therefore, although the reference was limited to the point whether the management is justified in dismissing Mr. Biswajit Sen, Store Keeper on 07.08.1989, or not, but the learned Tribunal should also have adjudicated on the issue “whether the respondent was an employee of the petitioners, or not?” However, the learned Labour Court has failed to do so. In order to buttress this plea, the learned counsel has relied on the case of M/s. Indian Farmers Fertilizers Co-op Ltd. v. Industrial Tribunal-I, Allahabad and Others [AIR 2002 SC 1318].
Secondly, the petitioners have consistently maintained that the respondent was not their workman, as he was a domestic servant of Mr. Patel. Since he was a domestic servant of Mr. Patel, the learned Labour Court was unjustified in concluding that the respondent was the petitioner’s workman. In order to support this plea, the learned counsel has relied on the case of The Employers in relation to Punjab National Bank v. Ghulam Dastagir [AIR 1978 SC 481].
Lastly, the respondent has not produced any evidence to establish the fact that he was working for the petitioners. Moreover, the learned Labour Court is unjustified in ignoring the testimony of Mr. Ramesh Sharma (M.W.2). Mr. Sharma had produced the Wage Registers (Ex. M. 18 to 21). None of these Registers show that the respondent was being paid by the petitioners. However, the vital oral testimony, and the documents have been ignored by the learned Tribunal. Therefore, the impugned award, and the order dated 20.07.2017, deserve to be set aside by this Court.
6. On the other hand, Mr. A. J. Srinivasan, the learned counsel for the respondent, has raised the following pleas:-
Firstly, the petitioners are unjustified in claiming that the learned Labour Court has not gone into the issue “whether the respondent was a workman, or not?” Mr. M. N. Patel (W.W.2) had clearly denied the fact that the respondent was his domestic servant. He had further denied the fact that he used to pay the wages to the respondent. Thus, there was no employer-employee relationship between Mr. M.N. Patel, and the respondent. In fact, Mr. M.N. Patel, (W.W.2), has categorically stated in his examination-in-chief that the respondent "was attending the jobs like delivering letters, bringing statements from the bank etc." "For the said work, the first party was doing, he was paid daily wages from the Company". This witness has further denied that he has any connection with the respondent’s works. According to this witness, the respondent was assigned his work by the petitioners. Relying on the said testimony the learned Tribunal was justified in concluding that the respondent was a workman under the petitioners’ control. Therefore, the learned counsel for petitioners is unjustified in claiming that the learned Labour Court has not gone into the incidental issue “whether the respondent is a workman, or not?” In fact, the said issue has been adjudicated and decided by the learned Labour Court.
Secondly, relying on the case of Gulam Dastagir (supra), the learned counsel has pleaded that the test to see whether a person is working, or not is to consider as to who is the pay master, who can dismiss and how long the service lasts, and what is the mechanism employed for terminating the service. Thus, all the tests are based on as to who can give directions to the person, and who controls the person. Therefore, the learned Labour Court was justified in relying on the testimony of Mr. M. N. Patel (W.W.2) in order to conclude that the respondent was a workman employed by the petitioner.
Thirdly, employers are known for purposefully not keeping the relevant documents in order to evade the requirements of law. Therefore, it is not surprising if the respondent's presence is not shown in the wage registers. In the absence of the documentary evidence, the testimony of Mr. M. N. Patel (W.W.2) is sufficient to knock the bottom off the pleas raised by the petitioners. Therefore, the learned counsel has supported the impugned award, and the impugned order.
7. Heard the learned counsel for the parties and perused the impugned award, and the impugned order.
8. Mr. Abhilash Raju, the learned counsel for petitioners, is unjustified in claiming that the learned Labour Court has not adjudicated on the incidental matter “whether the respondent is workman, or not?” A bare perusal of the impugned award clearly reveals that the learned Labour Court has relied on the testimony of Mr. M. N. Patel (W.W.2). After considering the said testimony, the learned Labour Court has validly concluded that "The main plea of the second party is that first party was a domestic servant of M. N. Patel who was paying salary to him and on his behalf he was occupying the quarters. This plea has been destroyed by the evidence of Mr. M. N. Patel himself wherein he has categorically stated that first party was not at all his domestic servant. He had never paid any salary. But at the same time, he states that he was working for the second party for collecting letters etc. The second party has utterly failed to prove that the status of first party was a domestic servant".
9. The petitioners have examined Mr. Ramesh Kumar Sharma (M.W.2) as a witness. This witness has produced the original salary registers of the petitioners for the years 1994 to 1999 (Ex. M.1 and Ex. M.2), and the copies of Provident Fund statements for the years 1994 to 2000 (Ex.M.3 to M.8). Indeed, this witness claims in his examination-in-chief that the respondent is not working for the petitioners. However, in his cross-examination, he clearly admits that "there is no practice of obtaining the signatures of employees in attendance register. We have not maintained attendance register of second party No.1 (the petitioner No.2 before this Court)." This admission explains as to why the attendance register does not bear the respondent’s signatures. This also proves that the petitioners were not maintaining the essential records properly. Since the records are deliberately ill kept on the basis of such documents, the petitioners can not claim that the respondent is not their workman.
10. Moreover, in his cross-examination, initially he denies the fact that a residential quarter was given by the petitioners to the respondent. But, subsequently, he admits that "the quarters given to Shair Singh is adjoining the godown. The said quarters come within the Door No.299." He further admits that "the residential quarters of the first party (the respondent before this court) comes within the Door No.299". Thus, obviously, the petitioners had provided residential quarters to the respondent.
11. This witness stands shattered as a witness. For, the witness claims that he has not participated in the functions organised by the co-workers. When he is confronted with the photographs of the birthday of respondent's son (as per Ex. W.23 to 26), this witness denies knowing the respondent, and his family members, although he admits that the photographs do show his own wife, own daughter, and himself. Surprisingly he denies even knowing the respondent, although the witness and the respondent are present together in the photographs. Pictures speak a thousand words. A witness who denies a fact based on reliable documents is an untrustworthy one.
12. The respondent had also produced the Sale Deed dated 27.09.1994, wherein the respondent is one of the witnesses in a sale deed signed by Mr. Harshvardhan Kejriwal who was the Partner of M/s. Giri Coffee Company at the relevant time. The respondent has also produced the letter addressed by the respondent to the Branch Manager, UCO Bank (Ex.W 27) and the Endorsement of the Bank (Ex. W.27 (a)). Both these documents clearly show that the respondent was working for the petitioners. Hence, the respondent has clearly established the fact, through oral and documentary evidence, that he was working for the petitioners as a workman. Hence, Mr. Abhilash Raju, the learned counsel, is unjustified in claiming that the there is no jural relationship of employer and employee between the petitioners and the respondent. Therefore, after assessing the oral and documentary evidence, the learned Labour Court was legally justified in holding that the respondent is a workman under the petitioners, that his services were terminated abruptly, and arbitrarily. For, the mandatory provisions of the Act were not complied with. Hence, the respondent's termination was illegal. Thus, this court does not find any illegality, or perversity in the impugned award, and the impugned order.
For the reasons stated above, this court does not find any merit in the writ petitions. Consequently, they are hereby dismissed. No order as to costs.
Sd/- JUDGE Np/-