M/S. V.L. T. Cargo Movers Pvt. Ltd. vs Shri Ajitkumar S. Puri
2008 Latest Caselaw 58 Bom

                                         1




                                                                           
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                   
              ORDINARY ORIGINAL CIVIL JURISDICTION
                   APPEAL LODG. NO.382 OF 2008
                                IN
                    WRIT PETITION NO.6 OF 2008




                                                  
     M/s. V.L. T. Cargo Movers Pvt. Ltd.)
     50, Sheriff Devji (Chakala) Street, )
     Mumbai - 400 003.                   )..        Appellant




                                   
                 Versus

     1.
                     
           Shri Ajitkumar S. Puri,     )
           L/4/S, Laxmiram Bldg., )
                    
           C.H. S. Ltd., Bangur Nagar, )
           Link Road, Goregaon (West), )
           Mumbai - 400 090.           )
      

     2.    The Presiding Officer,            )
           IIIrd Labour court, having        )
   



           his office at Ground Floor,       )
           Administrative Building,          )
           Bandra (E), Mumbai.               )..    Respondents
                  --

Shri Lancy D'Souza along with Shri V.M. Parkar for the Appellant.

Ms N.D. Buch along with Shri S.R. More for the Respondents.

--

CORAM: SWATANTER KUMAR, C.J.& A.P. DESHPANDE, J

RESERVED ON : 16TH SEPTEMBER, 2008 PRONOUNCED ON: 8TH OCTOBER, 2008

JUDGMENT : ( PER SWATANTER KUMAR, C.J.)

1. The IIIrd Labour Court, Mumbai, vide its Award dated

7th May, 2007 answered the reference in favour of the workman

and directed the Company to reinstate the workman with full

back wages and continuity of service with all consequential

benefits.

The correctness and legality of the award was

challenged by the Company by filing a Writ Petition No.6 of 2008

before the learned Single Judge. The learned Single Judge,

after detailed discussion, found that the Petitioner in the Writ

Petition had failed to make out a case for interference and thus

rejected the writ petition with no order as to costs. In the present

Appeal, the Company-Appellant has taken an exception to the

order of the learned Single Judge dated 7th April, 2008.

2. Necessary facts giving rise to the present Appeal are

that the workman was employed as a Senior Clerk in the

Company since 1979 where he continued to serve till his

services were terminated on 30th January, 2003. At the relevant

time, he was drawing a salary of Rs.5,700/- per month. The

Director of the Company had come to the office where the

workman was working and had informed him that because of

slack in business, services of certain workers were required to be

retrenched. While insisting the workman to resign, a threat was

extended that in case he failed to do so, he would face

problems. On 7th January, 2003, a police officer arrested the

workman while he was on duty in respect of a complaint lodged

by the Company and with effect from 30th January, 2003, he was

not permitted to join the dutie. The same was tantamount to

terminating the services of the workman by the Company by oral

direction. The workman challenged the said termination. He

claim that his service record was unblemished; he had

completed 240 days in each year of his service and his

termination from the service was violative of the provisions of

Section 25-F of the Industrial Disputes Act, 1947, (hereinafter

referred to as the "Act").

3. The appropriate government made a reference,

which was contested by a Company by filing written statement to

the claim of the workman. In the written statement, the company

disputed various facts and also raised an objection that the

Respondent in the appeal was not a workman within the meaning

of Section 2(s) of the Act as he was doing managerial and

supervisory work and that he stopped reporting his duty at his

own. Thus, there was no violation of statutory provisions.

4. As already noticed, the Labour Court decided the

issues in favour of the workman and also found that the

Respondent No.1 was a `workman' within the meaning of

definition of the term "workman" under Section 2(s) of the Act

and while disbelieving the case put forth by the Company

granted relief to the workman. The learned Single Judge

elaborately discussed all the contested issues. The core issue

raised even in the writ petition was whether the workman

satisfies the ingredients specified under Section 2(s) of the Act or

not. After appreciating the evidence produced on record, the

learned Single Judge noticed as under:-

"16. The 1st respondent filed his affidavit in lieu of examination-in-chief. He stated that he was employed by the petitioner as a Senior Clerk since May, 1979. He deposed that at the instance of Mr. Vijaykumar Banga who had called him to his cabin he tendered a resignation from the employment in the month of December, 2002 as he was informed that unless resignation was tendered, he would be falsely implicated in a police case.

17. In the cross-examination of the 1st respondent his attention was invited to certain

documents which were signed by him. He admitted that he has signed the said documents as a Director as per the directions of the petitioner. He also admitted that he had signed a complaint addressed

to police station in his capacity as a Director. He stated that he never protested while signing the said documents as a Manager or Director though he signed the same at the instance of the petitioner.

                         .....        .....         .....

             20.
                     ig   The learned Judge has recorded a

finding of fact that Articles of Association of the

company were not produced. The learned Judge noted that the 1st respondent was required to put his signature on the muster roll as is reflected from the admitted position. Though the petitioner claims that

the 1st respondent was a Director, admittedly he was never invited to attend Board Meetings. The learned

Judge has referred to the case law on the point. After considering the oral evidence adduced by the petitioner as well as by the 1st respondent, there is a finding of fact recorded that the 1st respondent was a

workman as the petitioner could not adduce any evidence to prove the assertions made by the petitioner. Therefore, it is very difficult to accept the contention of the petitioner that the 1st respondent was not a workman within the meaning of section 2

(s) of the said Act of 1947."

5. From the bare reading of the above findings recorded

in the judgment, it is clear that the learned Single Judge has

accepted the finding of fact recorded by the Labour Court based

upon appreciation of evidence. We are unable to accept the

contention raised before us that the findings recorded are

perverse and/or contrary to the evidence on record. This Court

while entertaining the Letters Patent Appeal will not disturb a

finding merely on the ground that another view was possible.

Besides this, we may also notice that the witness Shri Vijay

Kumar Banga, Director of the Company, while being cross

examined before the Labour Court, admitted that no appointment

letter was issued to the Respondent No.1/workman appointing

him as the Director or even Manager-cum-Director. He also

admitted that the Respondent No.1 used to take directions from

the witness. He categorically admitted that "The second party

workman was never asked to attend the meeting of Board of

directors". The Labour Court in its award also noticed conflicting

description of the status of the workman reflected in the

documents from time to time. In Exhibit-7, the workman was

described as the Manager. In Complaint (ULP) No.341 of 2001

filed at Exhibit C-8 before the Court the workman had signed as

the Director of the Company while in Exhibit C-10 (FIR) he was

again described as the Manager and in Exhibit C-14 he was

described as the Supervisor/Regional Manager.

6. A specific objection has been taken by the Company

in its reply that the Respondent was not a workman within the

meaning of Section 2(s) of the Act. The onus thus was upon the

Company as the workman had already discharged his onus.

The Company has miserably failed to satisfactorily discharge its

onus in regard to its plea/objection. Nature of duty of the

Respondent No.1 ig was one of the basic aspects which the

Company alone could have proved before the Court. The

Appellant is the Private Limited Company and thus is bound by

all the provisions and the law applicable to the Private Limited

Company under the Companies Act as well as other allied Laws.

The best evidence was withheld by the Company, as it did not

produce the minutes book of the Company or Register of the

Board of Directors showing that the Respondent was and/or

had acted as the Director of the Company. The Company also

could not explain what functions/duties were assigned to the

Respondent. Even regarding this aspect, the Company failed to

discharge it onus inasmuch as the document produced by it

reflected a conflicting stand, as noticed above. In these

circumstances, and particularly in view of the fact that the

learned Single Judge has exercised discretion in consonance

with the settled principles of law, we see no reason to interfere

with the impugned judgment. Resultantly, the appeal is

dismissed, however, leaving the parties to bear their own costs.

                                             
                                     CHIEF JUSTICE




                                 
                     ig                  A.P. DESHPANDE, J