Kunwar Prasad vs Creative Garments And Anr.
2001 Latest Caselaw 141 Bom

ORDER

R.J. Kochar, J.

1. The Petitioner is aggrieved by the Award dated January 16, 1999 passed by the 12th Labour Court at Mumbai in Reference (IDA) No. 653 of 1993 made by the State Government for adjudication of an Industrial Dispute raised by the Petitioner for reinstatement with full back wages and continuity of service with effect from June 15, 1992. The Labour Court has rejected the reference by the impugned Award.

2. It is the case of the Petitioner that he was in employment of the Respondent Company as a Pressman from 1989. On and from June 15, 1992 he was not allowed to join his duties and was orally told that his services were no more required. No orders in writing were passed. It appears that on August 13, 1992 the Petitioner approached through its Union the respondent Company for reinstatement with full back wages and continuity of service. There was no reply to the said letter sent by the Union. The Petitioner therefore approached the Commissioner of Labour for intervention in the dispute which was finally referred by the State Government for adjudication after the failure of the conciliation proceedings. Both the parties as usual completed their proceedings and filed their documents and adduced oral and documentary evidence.

3. Before the Labour Court it was the case of the Petitioner workman that he was in employment of the Respondent Company as a Pressman from 1989 and he was illegally terminated from employment from June 15, 1992 without giving any reason and in contravention of Section 25-F of the Industrial Disputes Act, 1947. It was the case of the Respondent Company that the Petitioner was never in its employment, and therefore, there was no employer-employee relationship between them and therefore there was no dispute or an industrial dispute which existed to be referred and to be adjudicated by the Labour Court. The employer has mentioned in its written statement that it had reliably learnt that the Petitioner was in employment of one Kamlesh Ironing as an Ironer and Shri Dudhnath was the Proprietor of the said firm. In the aforesaid circumstances the employer has denied any responsibility to reinstate the petitioner. The Respondent Company has also contended that the Petitioner had lodged a false complaint against the company and that the conciliation proceedings were also bad in law. The Petitioner examined himself and has averred on oath all the facts which he had narrated in his statement of claim, He has denied on oath that he was not employed by the Respondent Company and that he was employed under Kamlesh Ironing. He has in fact said that he was not knowing any Kamlesh Ironing. He did not have any documentary evidence to show that he was an employee of the Respondent Company. He has, however, relied on some letters received by him from his native place at the address of the Respondent Company. It further appears that Respondent Company examined only its Time Keeper who was employed from June 1992 and was not in employment when the Petitioner was employed. He has therefore, only expressed his ignorance about the termination of the Petitioner from employment. The Time Keeper in cross examination admitted that the business of the Respondent Company was of exporting ready made garments and that iron and press of such garment was an integral part of production and was of perennial nature. The Respondent Company has examined its own witness one Shri Dhudnath Kanojia, who claimed to be a Contractor working for the Respondent Company from 1976-77 and from 1986 (he has given both these years). According to him he was doing the work of pressing of the stitched garments of the Respondent Company on contract basis. He however, denied the fact that he had terminated the Petitioner from employment. According to him, the Petitioner left the employment in the year 1991. It is his case that he was the Proprietor of his firm Kamlesh Ironing. The witness tried to say that he was supervising the work of the Petitioner and that his name was mentioned in his register. In cross examination he has admitted that he himself was working as a Pressman with the Respondent Company from 1976 and that he was getting weekly wages and that he had worked for the Company 8/9 years and that he had resigned and had gone to his native place. He came in the year 1986 as he was called by the Supervisor of the Respondent Company and accepted the work on contract basis to press the new ready made garments manufactured by the Company. He had admitted that prior to 1986 the clothes were pressed by the employees of the Company and since 1986 he was doing the work as contractor. He has however admitted that there was no written contract between the company and himself as contractor. He has also admitted that he had no licence under the Contract Labour (Regulation and Abolition) Act. He has also admitted that even the Respondent Company had not registered under the said Act. He has also admitted that the so-called register produced by him to show that the petitioner was in his employment did not bear the name or stamp of Kamlesh Ironing. He has also admitted that there were 63 employees employed by the Respondent Company in May 1992 and prior thereto. He has denied the suggestion that he himself was an employee of the Respondent Company and that the so-called Kamlesh Ironing was a bogus name to deprive the claim of the Petitioner as against the Respondent Company.

4. On the basis of the said pleadings and evidence the Labour Court has rejected the reference and has refused to give any relief to the petitioner. The conduct of the Respondent Co 2mpany from the beginning has been dubious. The Petitioner had addressed two letters to the Respondent Company claiming reinstatement with full back wages and continuity of service on the basis that he was illegally terminated from the employment by the Respondent Company. Any genuine and bona fide party would instantly deny the claim and would say that it was totally false and bogus claim. The Respondent Company kept quiet. When the Petitioner approached conciliation proceedings, there also the Respondent Company did not attend to deny the fact of employment of the Petitioner. Even before the Labour Court the Respondent Company did not whisper in its written statement that the respondent Company had given the work of pressing and ironing to Kamlesh Ironing. It did not say that there was relationship of principal and contractor between the Respondent Company and the said Kamlesh Ironing. It did not claim in any manner that Kamlesh Ironing was its contractor. It indeed, did say that the Petitioner was employed by the said Kamlesh Ironing. It did not disclose in the written statement its relationship of contractor for the reasons best known to him. In the evidence the Proprietor did not step in the witness box to say that the Petitioner was never employed by the Respondent Company. Only a Time Keeper who was employed after the Petitioner was terminated from employment was examined and therefore, he had no knowledge of any fact. It is further significant to note that the Respondent Company examined as its own witness the so-called Proprietor of the so-called Kamlesh Ironing, the so-called contractor.

5. The theory of contractor and the contract labour has been introduced for the first time in the evidence and that is by examining the so-called contractor. It is very pertinent to note that the Proprietor of the Respondent Company had never stepped in the witness box to swear on oath that the Petitioner was never in his employment and to further swear on oath that Kamlesh Ironing was a contractor of the Respondent Company. To evade the liability the Respondent Company has tried to put up the so- called bogus firm in the name of Shri Dudhnath Kanojia, as the Proprietor of the so-called Kamlesh Ironing. On the top of it there is not even a piece of paper with them to establish a relationship of principal employer and the contractor engaged to do the work of the Respondent Company on contract basis. It is surprising that the learned Labour Court has lost sight of all these crucial facts and has not applied its mind to such important aspect in the matter. It is very surprising to note that the Labour Court has decided the matter on the point that the Petitioner had not denied that he was not an employee of Kamlesh Ironing. The Labour Court has based its finding that there was a payment register and that from the deposition of the contractor it was clearly proved that the Petitioner was working under the supervision and control of Dudhnath. It is very surprising to note that Labour Court has decided the matter on the deposition of the so-called contractor without any documentary evidence that he was a contractor. The so-called wage register has been relied on by the Labour Court. It is significant to note that the Petitioner has denied his signature in the said so-called register produced by the so-called contractor. This relationship was never pleaded by the Respondent Company in its written statement. I wonder from where the relationship of principal employer and contractor has been inferred by the Labour Court particularly when it was not the case of the Respondent Company that Kamlesh Ironing was its contractor. I am constrained to say that there is absolutely no application of mind by the Labour Court to the pleadings and to the evidence on record. The award of the Labour Court is a perverse award which deserves to be quashed and set aside forthwith. There has been a grave miscarriage of justice at the hands of the Labour Court. I therefore, quash and set aside the Award and make the Rule absolute in terms of prayer Clause 21 (a). I direct the Respondent company to reinstate the Petitioner with full back wages and continuity of service and other consequential benefits with effect from June 15, 1992. The Respondent Company shall pay the amount of Rs. 5000/- as costs to the Petitioner.

6. All concerned to act on an ordinary copy of this order duly authenticated by the Associate of this Court.