Bombay High Court
Ramasare Yadav vs M/S Manikgarh Cement Factory on 9 December, 2009
Bench: V. A. Naik
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITON NO.2107 OF 2002
PETITIONER:
Ramasare Yadav, aged about 32 years, resident of R.C. Yadav, W.C.L. Open
Cast Durgapur Colony, Tahsil & District Chandrapur
VERSUS
RESPONDENT:
M/s Manikgarh Cement Factory, Gadchandur, Disdtrict : Chandrapur
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Shri F.G. Isaac, advocate for the petitioner
Shri R.B. Puranik, Advocate for respondent
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CORAM: SMT. VASANTI A. NAIK, J.
DATE: DECEMBER 09, 2009
ORAL JUDGMENT.
By this petition, the petitioner challenges the award passed by the Labour
Court Chandrapur on 11.10.2001 answering the reference in the negative and
against the petitioner.
2] The petitioner had filed a statement of claim before the Labour Court,
Chandrapur. It was his case that he was working continuously with the respondent
w.e.f. 13.5.1987 as a Pre-loader Operator. It was stated in the statement of claim that
his services were abruptly terminated w.e.f. 21.11.1989 without assigning any
reason and without complying with the provisions of section 25-F and G of the
Industrial Disputes Act. The petitioner sought for reinstatement in service with
continuity of service and back wages.
3] The respondent filed a written statement and pleaded that the petitioner was
never in the employment of respondent and therefore, there was no question of
terminating his services. It was then stated in the reply that the reference was not
tenable and was liable to be rejected on the sole ground that there was no
relationship of employer and employee between the parties. On the aforesaid
pleadings of the parties, the issues were framed and the Labour Court by the
impugned order dated 11.10.2001 dismissed the case of the petitioner by holding
that the petitioner failed to prove that he was employed by the respondent and his
services were illegally terminated by the respondent. The order dated 11.10.2001 is
impugned by the instant petition.
4] Shri F.G. Isaac, the learned counsel for the petitioner submitted that the
Labour Court was not justified in holding that there was no employer and employee
relationship between the parties. The learned counsel for the petitioner submitted
that it was for the first time brought in the evidence of the witness of the respondent
that the petitioner was an employee of one S.K. Sharma, a contractor, though this
plea did not find place in the written statement. The learned counsel for the
petitioner then submitted that on a proper appreciation of the evidence on record, the
Labour Court ought to have reinstated the petitioner in service with back wages.
5] Shri R.B. Puranik, the learned counsel for the respondent submitted that the
Labour Court has properly appreciated the entire evidence on record and recorded
the findings of facts in favour of the respondent and this court may not interfere with
the findings of facts in exercise of writ jurisdiction. The learned counsel for the
respondent submits that the petitioner had utterly failed to prove that he was an
employee of the respondent and since he had failed to show that, the Labour Court
rightly held that there was no relationship of employer and employee between the
parties. The learned counsel for the respondent sought for the dismissal of the writ
petition.
6] I have considered the submissions made on behalf of the parties and perused
the impugned order dated 11.10.2001. On perusal of the same, it is clear that the
Labour Court committed no error in answering the reference in the negative and
against the petitioner. The Labour Court had scanned the evidence tendered by the
parties in a extremely reasonable manner and had arrived at a conclusion that the
petitioner had failed to establish that he was working with the respondent and there
was an employer and employee relationship between the parties.
7] The Labour Court considered the evidence of the witnesses, to hold that the
petitioner was not working with the respondent, but was working with Shri S.K.
Sharma, a Contractor. The Labour Court held that there was no reason to disbelieve
the documents at exhibit 18 to 22, which were maintained by the contractor. The
Labour Court then held that the salary of the employees was paid through the bank
on the basis of attendance marked in the Time Office. The Labour Court held that
the salary of the petitioner was however, not paid from the bank. It was, according
to the Labour Court, apparent from the record that though marking the attendance
and preparation of wages was done in Time Office, there was nothing on record to
show that the attendance of the petitioner was also marked in the Time Office. In
fact the name of the petitioner did not appear in the attendance register. The Labour
Court held that the workers engaged by the contractor had no concern with the Time
Office and the Contractor used to make the payment to the workers including the
petitioner from time to time. The petitioner had also not produced any appointment
letter or any other document to show that he was an employee of the respondent. In
fact, it was admitted by the witness examined by the petitioner that the contractor
was maintaining the muster roll and paying salary to the petitioner. The petitioner's
witness further admitted that the respondent had never paid salary to the petitioner
and the name of the petitioner was never on the muster roll of the respondent, as he
was an employee of Shri S.K.Sharma. Thus on a proper appreciation of the relevant
evidence on record, the Labour Court held that there was no employer and employee
relationship between the parties and in such circumstances, the reference was
answered against the petitioner. There is no reason to interfere with the findings
recorded by the learned Industrial Court in exercise of writ jurisdiction.
8] In the result, the writ petition fails and is dismissed with no order as to costs.
JUDGE
SMP.
