Bombay High Court
Emkay Global Financial Service ... vs Suresh Vrajlal Shah on 29 August, 2016
Bench: R.M. Savant
(34) wp-1378.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1378 OF 2016
Emkay Global Financial Services Ltd. ]
4 D, Hamam House, Ambalal Doshi Marg, Fort ]..... Petitioner
Mumbai - 400 023 ] (Orig. First Party)
versus
Suresh Vrajlal shah ]
5 C. 304, Parinay C.H.S. Ltd. Asha Nagar, ]..... Respondent
Kandivali (East), Mumbai 400 101 ] (Orig.Second Party)
Mr. Arshad Shaikh i/by Mr. Anoop Sharma for the Petitioner.
Mr. R D Oak for the Respondent.
CORAM : R. M. SAVANT, J.
DATE : 29th August 2016
ORAL JUDGMENT
1 Rule, considering the nature of the challenge raised, made
returnable forthwith and heard.
2 The writ jurisdiction of this Court under Article 226 of the
Constitution of India is invoked against the order dated 28/12/2015 passed by
the learned Presiding Officer, 8th Labour Court, Mumbai by which order the
Reference in question being Reference (IDA) No.526 of 2010 came to be
answered in the affirmative and the learned Presiding Officer of the Labour
Court resultantly has issued directions to reinstate the workman i.e. the
Respondent herein with continuity of service and 50% back wages w.e.f.
01/12/2008 i.e. from the date of termination till the date of his reinstatement.
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3 The facts giving rise to the filing of the above Petition can in a
nutshell be stated thus :-
The Respondent herein raised a industrial dispute on account of
the termination of his services. The said Industrial Dispute was referred to the
8th Labour Court, Mumbai for adjudication and has been numbered as
Reference (IDA) No.526 of 2010. In the statement of claim filed by the
Respondent it has been averred by him that he was appointed vide letter dated
01/11/2006 and has joined the establishment of the Petitioner as a clerk and
his last drawn monthly salary was Rs.10,000/- . It was his case that on
01/12/2008 he as usual reported for duties but the officer of the Petitioner
instructed him that his services are no more required, and hence there was an
oral termination of the services of the Respondent w.e.f. 1/12/2008. It was the
case of the Respondent that the said termination was without giving any
notice, charge-sheet or conducting any domestic inquiry. It was further his
case that since he had completed 240 days service in a calender year, it was
obligatory on the part of the Petitioner to follow the procedure before
terminating his services.
4 The Petitioner herein filed its written statement and raised an
issue of the Respondent being not a workman as covered by the term in Section
2(s) of the Industrial Disputes Act. It was also the case of the Petitioner that the
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Respondent has abandoned the services. Certain other facts were also pleaded
pointing out the actual reason for abandonment of the services by the
Respondent.
5 The learned Presiding Officer of the Labour Court on the basis of
the pleadings framed issues amongst which was the issue whether the
Respondent proves that he is a workman within the meaning of Section 2(s) of
the Industrial Disputes Act and whether his services was illegally terminated by
the Petitioner. The parties led evidence and the Respondent examined himself
in support of his case that he was a workman. The Respondent produced the
appointment letter dated 01/11/2006 by which he was appointed by the
Petitioner. In so far as the Petitioner is concerned, it also led the evidence of
one Mr. Ajay Bhendkale.
6 The learned Presiding Officer of the Labour Court thereafter
ventured to adjudicate upon the issues that were framed. In so far as the issue
whether the Respondent is a workman is concerned, the learned Presiding
Officer of the Labour Court proceeded to consider whether there was
employer-employee relationship between the Petitioner and the Respondent.
By adverting to the appointment letter as also the emoluments which the
Respondent was to be paid and the manner in which the said payment was
made to the Respondent, the learned Presiding Officer of the Labour Court
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arrived at a conclusion that there was employer-employee relationship between
the Petitioner and the Respondent. However, thereafter the learned Presiding
Officer by adverting to the case of the Respondent that he was a clerk held that
he was carrying out his duties which were manual or clerical in nature. The
learned Presiding Officer thereafter proceeded to decide other issues and came
to a conclusion that the termination of the Respondent by the Petitioner was by
not following the procedure and directed his reinstatement however granted
him 50% of the back-wages. As indicated above it is the said judgment and
order dated 28/12/2015 which is taken exception to by way of the above Writ
Petition.
7 The learned counsel for the Petitioner Shri Arshad Shaikh would
seek to assail the manner in which the learned Presiding Officer of the Labour
Court has adjudicated upon the issue whether the Respondent was a workman.
It was the submission of the learned counsel for the Petitioner that the said
issue has not been adjudicated upon by applying the tests laid down in so far
as Section 2(s) of the Industrial Disputes Act is concerned. It was the
submission of the learned counsel for the Petitioner that by arriving at a
conclusion that there was employer-employee relationship between the
Petitioner and the Respondent, the learned Presiding Officer has concluded the
issue.
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8 Per contra, the learned counsel appearing for the Respondent Shri
Oka sought to justify the findings recorded in so far as the said issue relating to
as to whether the Respondent was a workman but the same was not done with
any deal of conviction.
9 Having heard the learned counsel for the parties, in my view, the
judgment and order dated 28/12/2015 is required to be quashed and set aside
and the matter is required to be relegated back to the 8 th Labour Court,
Mumbai for a de-novo consideration of the said Reference . As indicated
above, the principal issue before the Labour Court was whether the
Respondent was a workman within the meaning of Section 2(s) of the
Industrial Act. The approach of the Labour Court whilst adjudicating the said
issue cannot be said to be an approach which was required to be adopted
whilst adjudicating the said issue. In so far as the said issue is concerned, it
was not the case of the Petitioner that the Respondent was not working with it.
It was the case of the Petitioner that though the Respondent was working with
it, he was working as a dealer and therefore was not a workman within the
meaning of Section 2(s) of the Industrial Disputes Act. The impugned order
passed by the Labour Court discloses that the said issue has not been
adjudicated upon by the Labour Court on the touchstone of the tests laid down
in so far as Section 2(s) of the Industrial Disputes Act is concerned. The
Labour Court ought to have adjudicated the said issue from the stand point of
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whether there was any material on record to come to the conclusion that the
Respondent fits within the definition as given in Section 2(s) of the Industrial
Disputes Act. However, the Labour Court has not done so and has accordingly
adjudicated the issue by considering whether there was an employer-employee
relationship between the Petitioner and the Respondent and thereafter has
hastened to conclude that since the Respondent was appointed as a clerk he
was carrying out manual and clerical duties which finding prima facie is sans
any evidence. Since the adjudication of the said issue would impinge upon the
finding recorded in respect of the other issues and since the issue of whether
the Respondent is a workman has not been satisfactorily addressed by the
Labour Court, the impugned Award would have to be set aside in its totality.
10 In that view of the matter the impugned judgment and order dated
28/12/2015 is quashed and set aside and the matter is relegated back to the
Labour Court for a de-novo consideration of the said Reference. De-novo
consideration would mean on the basis of the material which is already on
record. Needless to state that this Court has not deemed it appropriate to
make any observations as regards the findings on other issues as the Award
was required to be set aside on the basis of the finding on the first issue itself
as the said issue goes to the root of the matter. On remand the Labour Court to
adjudicate upon the Reference in terms of the observations made herein above.
Needless to state that the contentions of the parties are kept open. The learned
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Presiding Officer of the Labour Court would decide the said Reference on its
own merits and in accordance with law uninfluenced by the impugned order as
well as the instant order. The above Petition is accordingly allowed. Rule is
accordingly made absolute to the aforesaid extent with parties to bear their
respective costs of the Petition. The parties to appear before the Labour Court
on 26/09/2016.
[R.M.SAVANT, J]
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