Bombay High Court
Mayur Casting {} vs Ganesh Rambhau Bharambe {} on 19 December, 2013
Bench: S.S. Shinde
GAG
1/12 wp 4769.13 & 5836.13 (common Judgment).sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CIVIL APPELLATE JURISDICTION.
Writ Petition No.4769 Of 2013.
AND
Writ Petition No.5836 Of 2013.
Writ Petition No.4769/2013.
Mayur Casting {}
Through its Proprietor
ig {}
Madan Vithoba Panchal {}
Age.: Yrs., Occ.: Business. {}
R/o.: Plot No.D/50, Near Greaves {} Petitioner.
Cotton, MIDC Area, Shendra, {}
Tal.& Dist {}
Aurangabad. {}
Versus
Ganesh Rambhau Bharambe {}
Age : Major, Occ.: Business. {} Respondent.
R/o.: Plot No.108, Survey No.156/11. {}
Surewadi, Jadhavwadi, Aurangabad. {}
*****
Writ Petition No.5836/2013.
Ganesh Rambhau Bharambe {}
Age : Major, Occ.: Business. {} Petitioner.
R/o.: Plot No.108, Survey No.156/11. {}
Surewadi, Jadhavwadi, Aurangabad. {}
Versus
Mayur Casting {}
Through its Proprietor {}
Madan Vithoba Panchal {}
::: Downloaded on - 23/12/2013 20:36:19 :::
2/12 wp 4769.13 & 5836.13 (common Judgment).sxw
Age.: Yrs., Occ.: Business. {} Respondent.
R/o.: Plot No.D/50, Near Greaves {}
Cotton, MIDC Area, Shendra, {}
Tal.& Dist. Aurangabad. {}
*****
Appearance =>
Mr. A.A. More, Advocate for the Petitioner in WP 4769/13 &
Respondent in WP 5836/13.
Mrs. Sanjivani K. Deshmukh - Ghate, Advocate for
Respondent in WP 4769/13 & Petitioner in WP 5836/13.
CORAM : S.S. SHINDE, J.
DATE : 19th DECEMBER, 2013.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard with the
consent of learned counsel for both the parties.
(2) Writ Petition No.4769 Of 2013 is filed by Petitioner -
Mayur Casting challenging the Judgment and Order 19th January,
2013 passed by the learned Judge, Labour Court, Aurangabad, in
Complaint (ULP) No.100 Of 2007 and Judgment and Order dated
18th April, 2013 passed by the Member, Industrial Court,
Aurangabad, in Revision (ULP) No.8 Of 2013.
(3) Writ Petition No.5836 Of 2013 is filed by Petitioner -
Ganesh Bharambe challenging the Judgment and Order 18th
April, 2013 passed by the Member, Industrial Court, Aurangabad,
in Revision (ULP) No.8 Of 2013 and seeking confirmation of
3/12 wp 4769.13 & 5836.13 (common Judgment).sxw
Judgment and Order 19th January, 2013 passed by the learned
Judge, Labour Court, Aurangabad, in Complaint (ULP) No.100 Of
2007.
(4) The petitioner - Mayur Casting in Writ Petition
No.4769/13 is the original respondent before the Labour Court,
Aurangabad and Revision-Petitioner before the Industrial Court,
Aurangabad. The petitioner in Writ Petition No.5836/13 namely
Ganesh Bharambe is the original Complainant before the Labour
Court, Aurangabad and respondent before the Industrial Court,
Aurangabad. (For the sake of brevity and convenience, parties are
hereinafter referred to as per their original status, that is to say,
Ganesh Rambhua Bharambe as hereinafter referred to as the
complainant and Mayur Casting, as the respondent.)
(5) The Complaint has filed Complaint (ULP) No.100/07
U/Section 28 the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 ( In short, the
MRTU & PULP Act, 1971.) in the Labour Court, Aurangabad,
against the respondent, in the capacity of employee of the
respondent. It was his case that, the respondent is a Small Scale
Industry, where only five employees, including the complainant
were working. It is case of the complainant that, on 1st September,
1997 he jointed the respondent as Moulder Operator. At that time,
he was receiving monthly salary of Rs.4050/-. It is further case of
the complainant that, on 31/09/2007 his service was orally
terminated. According to him, he was in continuous service for
two hundred and forty days, during a period of twelve calendar
months preceding the date of his alleged oral termination. The
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respondent has not complied with Section 25-F of the Industrial
Dispute Act, 1947 while passing the order of termination. The
respondent has not paid his monthly salary for five months next
before his illegal termination and his last salary. In order to avoid
the payment of salary, the respondent has illegally terminated the
services of complainant and therefore, original complainant prays
that respondent has engaged in unfair labour practice, as
contemplated by Item No.1 of Schedule IV of the MRTU & PULP
Act, 1971. The complainant also prayed that, the oral termination
order be set aside and the respondent be directed to reinstate him
with continuity and back wages.
(6) Original respondent i.e. Mayur Casting filed its Written
Statement at Exh.No.C-5 and denied relationship with the
complainant. According to the respondent, the complainant is not
an employee of the respondent, therefore, no question of his
illegal termination arise.
(7) The learned lower court framed necessary Issues for its
determination and by his order dated 19th January, 2013 allowed
the original Complaint and directed the respondent to pay an
amount of Rs.2 Lakhs to the complainant towards the
compensation within one month from the date of passing of the
order while in case of default, the complainant is entitled to
interest @ Rs.9% per annum form the date of judgment, till the
realization of amount.
(8) Being aggrieved by the judgment of Labour Court,
Aurangabad, the respondent has preferred Revision (ULP)
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No.8/2013 before the Industrial Court, Aurangabad. The Member,
Industrial Court, Aurangabad by his Judgment and Order dated
18th April, 2013 partly allowed the Revision thereby, the order in
respect of payment of compensation of Rs.2 Lakhs was modified to
Rs.50,000/-
(9) Being aggrieved with the Judgment and Order dated
18th April, 2013 passed by the Member, Industrial Court,
Aurangabad, in Revision (ULP) No.8 Of 2013, the complainant -
Ganesh Bharambe has filed Writ Petition No.5836/13 thereby,
praying for restoration of order passed by the learned Labour
Court, Aurangabad, where-as respondent - Mayur Casting filed WP
No.4769/13 challenging the order/s passed by the learned
Member, Industrial Court, Aurangabad as well as Judge, Labour
Court, Aurangabad, on the grounds that, order/s directing to pay
the compensation to the complainant, passed by courts below, are
not sustainable in the eye of law.
(10) The learned counsel appearing for the respondent
(Petitioner in W.P. No.4769/2013) submits that, original
complainant did not produce any documentary evidence on record
to show that, he was appointed by the respondent - Mayur Casting
in the year 1997. He further submits that, respondent - Mayur
Casting is a Small Scale Industry, established in the year 2004
itself, therefore, there is no question of appointment of the
complainant as "Moulder Operator" in the year 1997 by the
respondent. It is further submitted that, if the complainant asserts
that he was in continuous service for two hundred and forty days,
6/12 wp 4769.13 & 5836.13 (common Judgment).sxw
before the date of his alleged oral termination; burden lies on his
shoulder to prove by adducing cogent evidence that he was in
continuous service for two hundred and forty days, during a period
of twelve calendar months preceding the date of his alleged oral
termination. However, in absence of any evidence on record, the
learned Labour Court has accepted the case of the complainant
and the learned Industrial Court, Aurangabad has mechanically
endorsed the findings recorded by the learned Labour Court,
Aurangabad that the complainant was in continuous service for
two hundred and forty days, during a period of twelve calendar
months preceding the date of his alleged oral termination. In
support of his contentions, he submits that, it is responsibility of
the complainant to prove by adducing cogent and satisfactorily
evidence that he was in continuous service for two hundred and
forty days, during a period of twelve calendar months preceding
the date of his alleged oral termination, with the respondent -
Small Scale Industry.
(11) The learned counsel appearing for the petitioner -
Small Scale Industry placed his reliance on the authoritative
pronouncement in case/s of [I] Surendranagar District
Panchayat V/s. Dahyabhai Amarsinh, reported in AIR 2006,
S.C., 110. [ii] Khashaba K. Jadhav V/s. S.H. Kelkar & Co.,
Ltd., reported in 2007(4) LJ SOFT 87 and [iii] Zilla Parishad,
Gadchiroli & Ors., V/s. Prakash s/o Nagorao Thete & Ors.,
reported in 2009(7) LJ SOFT 22. Relying on the grounds taken
in WP No.4769/13, annexrues thereto and judgments cited supra,
the learned counsel appearing for the respondent submits that,
W.P. No.4769 Of 2013 may be allowed.
7/12 wp 4769.13 & 5836.13 (common Judgment).sxw
(12) The learned counsel appearing for the complainant
(Petitioner in WP No.5836/13) invited my attention to the findings
recorded by the learned Labour Court, Aurangabad. She submits
that, original respondent though filed Written Statement, did not
entered to the witness-box to adduce evidence. It is submitted
that, evidence led by the original complainant remained un-
controverted. It is submitted that, contention of the respondent
that, it is a Small Scale Industry, which for first time established in
the year 2004 was neither pleaded nor proved by the respondent
before the courts below and therefore, at this stage, respondent
cannot agitate said point for the first time, in Writ Petition. It is
submitted that, the learned Labour Court has considered the
salary certificates of the complainant and also other materials
placed on record and also evidence of one Ramchandra Ghogare
and, thereafter, the learned Labour Court, Aurangabad was
pleased to pass the impugned judgment and order, therefore, this
court may not interfere in the said Judgment and order. It is
submitted that the learned Industrial Court, Aurangabad without
assigning any reason and without taking into consideration the
fact that the complainant has rendered more than 10 years
satisfactory service with the respondent and was in continuous
work, reduced compensation of Rs. 2 Lakhs, as already ordered by
the learned Labour Court, to Rs.50,000/-. It is submitted that, the
Industrial Court, Aurangabad has not recorded any plausible
reason so as to reduce the amount of compensation from Rs. 2
Lakhs to Rs.50,000/- Therefore, the learned counsel appearing for
the complainant relying on the grounds taken in the Petition
No.5836/13, annexures thereto, findings recorded by Judge,
8/12 wp 4769.13 & 5836.13 (common Judgment).sxw
Labour Court, A'bad submits that, Writ Petition No.5836/2013
deserves to be allowed.
(13) I have heard learned counsel for both the parties at
length. With their able assistance, I have gone through the
grounds taken in the respective Petitions, annexures thereto,
impugned judgments and orders passed by the Judge, Labour
Court and the Member, Industrial Court, Aurangabad, relevant
provisions of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971, the Industrial
Dispute Act, 1947 and and authoritative pronouncements cited /
referred by the learned counsel.
(14) Upon perusal of the findings recorded by the learned
Judge, Labour Court, Aurangabad it appears that, the Petitioner in
WP 5836/13 is the original the complainant and he was working
with the respondent - Mayur Casting since the year 1997. It
appears that, merely on the basis of evidence of the complainant
and evidence of one more witness, the learned Judge, Labour
Court arrived at conclusion that, original complainant has joined
respondent w.e.f. 01/09/1997. No documentary evidence is
considered by the Labour Court, Aurangabad so as to accept the
case of the complainant. If Paragraph No.6 of the Judgment of the
Labour Court is read in its entirety, it appears that, salary
certificates produced by the complainant on record at Exh.Nos. U-
17 and U-18 and only on the basis of these two salary certificates,
the learned Judge, Labour Court arrived at conclusion that, the
complainant was working with the respondent from the year 1997
9/12 wp 4769.13 & 5836.13 (common Judgment).sxw
as a Moulder Operator. It is evident from the dates of Salary
Certificates that one certificate is dated 10th March, 2006 and
another is dated 13th April, 2007. In respect of these salary
certificates, it is the contention of the respondent that, these
Certificate are forged by using the letter head of the respondent
Small Scale Industry. As the respondent disputed these
certificates, documents were sent to the Hand Writing Expert
however, the Hand Writing Expert informed that result is
inconclusive and he has not expressed his opinion that those are
signed by the authorized employee of the respondent or not. It
appears that, the learned Member, Industrial Court, by his
judgment and order dated 18/04/2013 accepted the findings
recorded by the learned Labour Court holding that the
complainant is in continuous employment of the respondent for
about ten years from 1997 to 2007. As already discussed, except
the oral testimony of the complainant himself and one more
witness, coupled with alleged two salary certificates, there was
nothing before the learned Judge, Labour Court, Aurangabad so as
to record concrete findings that the complainant is working from
01/09/1997 till the date of his termination i.e. 31/09/2007.
(15) Though the learned counsel appearing for the
complainant submits that, respondent has not led any evidence to
establish that the said Small Scale Industry has came into
existence first time in the year 2004, nevertheless, such
contention is not raised in the Petition. On the other hand, I find
considerable force in the argument advanced by learned counsel
for the respondent that, in view of observations made in
authoritative pronouncements in cases of Surendranagar
10/12 wp 4769.13 & 5836.13 (common Judgment).sxw
District Panchayat (cited supra), the complainant was bound to
led cogent and trustworthy evidence or to prove that he was in
continuous service for two hundred and forty days, during a period
of twelve calendar months preceding the date of his alleged oral
termination.
(16) Upon careful perusal of the judgment of the Labour
Court, Aurangabad, it appears that, no such exercise has been
undertake by the learned Labour Court, Aurangabad to find out,
whether the complainant was continuously served with the
respondent - Mayur Casting for two hundred and forty days,
during a period of twelve calendar months preceding the date of
his alleged oral termination. As already discussed in foregoing
paras, the learned Judge, Labour Court, Aurangabad also
proceeded on the footing that the complainant was working with
the respondent since 1997 till the date of his termination. Such
findings of fact recorded by the courts below appears to be in
absence of having cogent and convincing documentary evidence
on record. It was possible for the complainant to placed on
record, either his appointment letter or in its absence, any proof of
wages/salary received by him however, it appears that, the
complaint filed by the complainant was allowed by the learned
Judge, Labour Court, Aurangabad thereby, without addressing the
points discussed hereinabove.
(17) Reason for awarding the compensation of Rs.2 Lakhs in
lieu of reinstatement and back wages also appears to be half
hearted exercise, undertaken by the learned Judge, Labour Court,
Aurangabad. Why the complainant is entitled for Rs.2 Lakhs
11/12 wp 4769.13 & 5836.13 (common Judgment).sxw
towards the compensation, has not been satisfactorily discussed
by the Labour Court, Aurangabad. In absence of such discussion,
awarding an amount of Rs.2 Lakhs towards the compensation, is
not justified.
(18) The learned Member, Industrial Court, Aurangabad
taken into consideration the last wages drawn by the complainant
as Rs.6285/- per month and, thereby, calculating the wages of 15
days per year for the period of 10 years, and by awarding
additional amount of Rs.20,000/- come to the conclusion that, total
compensation of Rs.50,000/- would be just, proper, reasonable to
meet the ends of justice. It appears to this court that, exercises
done by the learned Judge, Labour Court, and the learned
Member, Industrial Court, is superficial, queer and ignoring the
view taken in the authoritative pronouncements of the Hon'ble
Apex Court and this Court in cases of Surendranagar Dist.
Panchayat, (cited supra).
(19) Apart from this observations made hereinabove, it
appears that the respondent Small Scale Industry did not get an
opportunity to lead evidence before the Labour Court,
Aurangabad. In that view of the matter, the judgments and orders
passed by the learned Judge, Labour Court, Aurangabad and
Member, Industrial Court, Aurangabad deserves to be quashed
and set aside. Hence, I pass the following order :-
O RDER
(i) Judgment and Order dated 19th January, 2013
passed by the learned Judge, Labour Court,
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Aurangabad, in Complaint (ULP) No.100 Of 2007 and
Judgment and Order dated 18th April, 2013 passed by
the learned Member, Industrial Court, Aurangabad in
Revision (ULP) No.8 Of 2013 are quashed and set
aside.
(ii) The Complaint (ULP) No.100 Of 2007 is restored
to its original file.
(iii) The learned Judge, Labour Court, Aurangabad is
directed to hear the complaint filed by complainant -
Ganesh Rambhau Bharambe afresh and decide the
same in accordance with law, after giving an
opportunity to the parties to led evidence.
(iv) Both the Petitions are disposed on above terms,
with no order as to costs.
(v) It is made clear that any observations made in
this order shall not be construed as an expression of
any opinion on the merits or demerits of the case and
appropriate decision will be taken by the learned
Judge, Labour Court, at the time of hearing of the
original complaint, uninfluenced by these observations
(S.S. SHINDE, J.)
