Bombay High Court
Ratnam Kandaswami vs Atri Sales Corporation ... on 2 August, 2016
Bench: R.V. Ghuge
WP/7647/2016 & ANR
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7647 of 2016
Ratnam Kandaswami,
Age 62 years, Occ. Retired
R/o Banglow No.8,
KBKS Irani Road,
Sadar Bazar Camp,
Dist. Ahmednagar. ..Petitioner
Versus
Atri Sales Corporation
M.G.Road, Ahmednagar
Through Kamalkumar
Habansraj Atri, since
deceased through L.Rs.
A) Pramila Kamalkumar Atri,
Age major, occ. Business,
B) Amit Kamalkumar Atri,
Age major, occ. Business,
C) Nitin Kamalkumar Atri,
Age major, occ. Business,
All r/o 8, Govindpura,
Ahmednagar. ..Respondents
...
Advocate for Petitioner : Shri Barde P.V.
Advocate for Respondents : Shri Gawali Amol K.
...
WITH
WRIT PETITION NO. 7931 OF 2016
Kamalkumar Harbansraj Attri,
since deceased through L.Rs.
Attri Sales Corporation
M.G.Road, Ahmednagar.
A) Pramila Kamalkumar Atri,
::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:29:10 :::
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Age 54 years, occ. Business,
B) Amit Kamalkumar Atri,
Age 38 years, occ. Business,
C) Nitin Kamalkumar Atri,
Age 36 years, occ. Business,
All r/o 8, Govindpura,
Ahmednagar. ..Petitioners
Versus
Ratnam Kandaswami,
R/o Banglow No.8,
KBKS Irani Road,
Camp Bhingar,
Dist. Ahmednagar. ..Respondent
...
Advocate for Petitioners : Shri Gawali Amol K.
Advocate for Respondent : Shri Barde P.V.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: August 02, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. The petitioner in the first petition is the respondent in the
second petition. He claims to be the employee of the respondent
in the first petition, who is the petitioner in the second petition.
For the sake of brevity, the litigating sides are being referred to as
the "employee" and the "management".
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3. Rule.
4. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
5. Both the litigating sides are challenging the same award
dated 15.10.2015, by which, the Labour Court has partly answered
the Reference in the affirmative and has granted compensation of
Rs.75,000/- in lieu of reinstatement, continuity and backwages.
6. The employee claims to have joined the management in
1971. His date of birth is 5.11.1949. He claims to have discharged
duties as a Salesman till he was orally terminated on 29.12.1998.
He raised an industrial dispute by submitting a demand notice on
15.6.2006 and the matter was referred to the Labour Court in
Reference (IDA) No.33 of 2007.
7. It is submitted by the employee that he was working
continuously with the management. He was drawing Rs.2,000/-
per month as in 1998. The management has a shop license under
the then Bombay Shops and Establishments Act. His termination is
not preceded by a notice, notice pay and retrenchment
compensation under Section 25-F of the Industrial Disputes Act,
1947.
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8. Per contra, it is submitted by the management that the
employee was never appointed as a "workman" in the shop
operated by the management. Though there are a few documents,
which may indicate the signatures of the Proprietor of the shop,
namely, Shri K.H.Attri (now deceased), it does not indicate
employer - employee relationship. The skeletal documents
produced by the employee before the Labour Court are such which
do not clearly
establish continued employer
relationship. There is no material before the Labour Court, which
- employee
would indicate that the employee was appointed as a regular
workman in the service of the management.
9. It is further submitted that the employee has admitted in his
cross-examination that he has not produced any appointment
order, attendance sheet, wage register etc. so as to prove
continued service with the management. He has admitted in cross-
examination that a shop was taken on lease basis in the
Cantonment Area and his wife was operating the shop. The lease
contract was for 30 years, which was admitted. The shop was
being operated for selling of such goods, which was the business of
the management. Though it is stated that his wife was conducting
the business in the shop, the employee himself was operating the
same. It is also admitted that the employee was earning from the
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said shop, though he has tried to cover up by stating that his wife
was paying him monthly wages at the rate of Rs.3,000/-.
10. The employee is before this Court seeking enhancement in
compensation for an amount of Rs.10,00,000/-. The management is
before this Court seeking quashing of the impugned award.
11. I have considered the submissions of the learned Advocates
for the respective sides, who have taken me through the petition
paper book.
12. It is apparent that the employee had sought production of
some documents and the management had not produced them. It
is admitted that the employee had kept silent for a period of
about 8 years. It is also admitted that the Labour Court has drawn
adverse inference against the management and had concluded that
because the documents are not placed on record, it has to be
assumed that the employee was in the continuous service of the
management.
13. The cross-examination of the employee reveals that he did
not raise any dispute or issue about his purported dis-engagement
on 29.12.1998, for a period of about 8 years. Documents are
normally preserved for a period of 5 years. An industrial dispute is
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raised after about 8 years.
14. It is also revealed that the employee had acquired his
graduation degree in law and had commenced his law practice. It
is stated that subsequently he has stopped practicing.
15. The shop started by the wife of the employee in the Bhingar
Cantonment Board is said to be in competition with the
management. With the passing away of the Proprietor Shri
K.H.Attri on 1.12.2012, the legal heirs of deceased Attri submit
that the said shop is now not in operation, though the registration
is still maintained in the name of the said shop.
16. There is no dispute that the employee has attained the age
of retirement on 4.11.2009, when he completed 60 years of age.
There is no evidence to indicate that his wife was competent to
operate the shop, so as to negate the contention of the
management that the employee himself was operating the shop.
17. I find that this case brings up peculiar facts. There is hardly
any evidence on record, except the documents at Exhibit U-7/ 2 to
15, which are delivery challans, which bear the signature of the
employee. It is on the basis of these handful of documents that
the employee claims to be continuously working over the period of
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27 years with the management.
18. Though I am unable to sustain the conclusion of the Labour
Court that by these handful of delivery challans and the adverse
inference drawn, the employee has proved 27 years of continuous
service, yet there are bits and pieces of evidence before the
Labour Court so as to indicate some relationship between the
employee and the management. I find it appropriate to observe
that on the one hand, there was a little evidence to establish
continuous service of 27 years, and on the other hand, the
documents that were available would indicate some duration of
employment since the majority of the documents are with regard
to the years 1987 to 1989.
19. I find this to be a peculiar case, because, though some
relationship between the parties is established, the evidence is not
sufficient to conclude that the employee was continuously working
with the management for 27 years. The delay caused by the
employee in raising an industrial dispute has further led to there
being little evidence on record.
20. In the peculiar fact situation, I find it appropriate to sustain
the conclusion of the Labour Court, whereby, equities have been
balanced by awarding compensation to the employee.
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21. As such, both these petitions are dismissed. Rule is
discharged.
( RAVINDRA V. GHUGE, J. )
...
akl/d
