IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION No.47308/2015 (L-RES) BETWEEN :
SRI. DEVIEGAM @ DEVIEEGAN S/O. CHAKRAVARTHY, AGED ABOUT 40 YEARS, RESIDING AT SU-VALAVETTI-POST, MARIAMMAN-KOLI STREET, THIRUVANNAMALAI TALUK, CHENNAI-606 806. ... PETITIONER (BY SRI. K.S. CHANDRAKANTHA GOWDA, ADV.) AND:
THE MANAGEMENT OF M/S. FENFE METALLURGICALS, No.2, SY.NO.20/A, UTTARAHALLI, BENGALURU-560 061. … RESPONDENT ( BY SRI. K.R. ANAND, ADV. ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION SETTING-ASIDE THE AWARD DATED:15.11.2014 VIDE ANNEXURE-K PASSED IN REF. No.42/2012 ON THE FILE OF III ADDL. LABOUR COURT, BENGALURU, IN FAVOUR OF PETITIONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R The petitioner workman Mr. Deviegam @ Devieegan, has challenged the legality of the award dated 15.11.2014, whereby the claim statement filed by him had been dismissed by the Labour Court.
2. According to the petitioner, in 1991, he joined the service of respondent – management, namely M/s Fenfe Metallurgicals. According to him, in 1995, he was paid a salary of Rs.3,000/- per month. During the tenure of his service, he stayed in the factory premises as would be clear from the Driving License dated 23.05.2002, Ration Card dated 07.09.2009, and the insurance policy taken by the petitioner for the year 2010-11. Furthermore, according to the petitioner, in March, 2011, he started suffering from back pain. Therefore, he applied for leave. However, without following the mandatory provisions of the law provided in the Industrial Disputes Act, 1947 (“the Act”, for short), on 04.03.2011, the petitioner was retrenched by the respondent. Since the petitioner was aggrieved by his retrenchment, he filed a claim statement before the learned Labour Court. He also submitted medical certificate dated 06.02.2014, regarding his ill health. In order to support his case, the petitioner examined himself as a witness. In turn, the respondent filed objections and examined a single witness. After going through the oral and documentary evidence, the learned Labour Court dismissed the claim statement by award dated 15.11.2014. Hence this petition before this Court.
3. Mr. K. S. Chandrakantha Gowda, the learned counsel for petitioner, submits that during the course of the proceedings, the petitioner had submitted a memo wherein he had requested that the respondent be directed to produce the Attendance Register. However, the learned Labour Court never passed any order on the said memo. Therefore, the petitioner has been denied an opportunity to buttress his case that he was not only the employee of the respondent, but also worked for more than 240 days. Therefore, according to the learned counsel, the impugned award not only deserves to be set aside, but the case deserves to be remanded to the learned Labour Court. Lastly, the leaned counsel has relied on the Driving License dated 23.05.2002, Ration Card dated 07.09.2009, and the insurance policy taken by the petitioner for the year 2010-11 in order to buttress his plea that since the petitioner was residing within the factory premises, it is abundantly clear that he was a workman for the respondent. However, the documentary evidence, produced by the petitioner, has been ignored by the learned Labour Court. Therefore, the award deserves to be set aside by this Court.
4. On the other hand, Mr. K. R. Anand, the learned counsel for the respondent, submits that the burden is upon the petitioner to establish firstly that he is an employee of the respondent; secondly, that he has worked for more than 240 days in the establishment run by the respondent.
However, the petitioner has failed to prove the same; thirdly, although the petitioner had sought production of the attendance register, but in his cross-examination, the petitioner has clearly admitted that according to him, he was not permitted by the respondent to sign in the attendance register. Thus, even if the attendance register were to be produced, the same would not show the presence of the petitioner in the establishment. Thus, production of attendance register would merely be a formality, but would not achieve any fruitful purpose. Moreover, the petitioner has not examined any independent witness to prove the fact that he had worked for more than 240 days in the respondent’s establishment. Thus, the learned Labour Court was justified in concluding that the petitioner has failed to discharge the burden placed upon him, and in dismissing the claim statement. Lastly, the Driving License, the Ration Card, and the insurance policy were never produced before the learned Labour Court. Even if they were, the documents do not establish the fact that the petitioner had worked for more than 240 days in the establishment run by the respondent. Therefore, there was no evidence for believing the statement of the petitioner that he was a workman employed by the respondent. Hence, the learned Labour Court was justified in dismissing the claim statement. Hence, the learned counsel has supported the impugned award.
5. Heard the learned counsel for parties, and perused the impugned award.
6. Undoubtedly, it is the duty of the workman to establish the fact that he is not just an employee of the respondent, but more so he/she is an employee who has worked for more than 240 days. Thus, the petitioner was legally bound to establish the said facts through cogent and convincing evidence. Surprisingly, the petitioner has not examined any independent witness, namely a co-worker, who could depose before the Labour Court that the petitioner has worked in a particular capacity and has worked for more than 240 days. Thus, the petitioner has failed to discharge the burden placed upon him by law.
7. Although the petitioner did seek production of Attendance Register, but simultaneously he pleaded that he was not permitted to sign the Attendance Register. Therefore, the Attendance Register, as a documentary evidence, would not establish the fact that petitioner had worked for more than 240 days. Thus, even if the Attendance Register were summoned by the learned Labour Court from the respondent, it would not serve any fruitful purpose. Thus, the production of Attendance Register would merely be a formality.
8. Even though the petitioner has submitted the Driving License dated 23.05.2002, Ration Card dated 07.09.2009, and the insurance policy taken by the petitioner for the year 2010-11 before this Court, however, admittedly, these documents were not submitted before the learned Labour Court. It is, indeed, a settled position of law that a new plea, based on facts, cannot be raised before the Appellate Court. Therefore, the petitioner is unjustified in raising a new plea based on certain documentary evidence, for the first time, before the Appellate Court. Thus, the said contention is unsustainable.
9. Even for the sake of argument these documents were to be considered, mere residing within the factory premises would not establish the fact that the petitioner had worked for more than 240 days. Even if these documents were to be accepted for the sake of argument, they do not throw any light on the issue involved before the learned Labour Court, or before this Court.
10. Since the petitioner has failed to establish the essential requirement of law, the learned Labour Court was justified in dismissing the claim statement filed by the petitioner.
11. Therefore, for the reasons stated above, this Court does not find any reason to interfere with the impugned award. The petition being devoid of merits, is hereby dismissed. No order as to costs.
Sd/- JUDGE Np/-