Bombay High Court
M/S Garware Polyesters Ltd ... vs Nandram Abaji Mandge on 30 August, 2016
Bench: R.V. Ghuge
This Order is modified/corrected by Speaking to Minutes Order dated 01/09/2016
WP/8836/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8836 OF 2016
M/s Garware Polyesters Ltd.
Naygaon, Waluj, Aurangabad
through its Manager. ..Petitioner
Versus
Shri Nandram Abaji Mandge,
Age 62 years, R/o Waluj,
Tq. Gangapur, Dist. Aurangabad. ..Respondent
ig ...
Advocate for Petitioner : Shri T.K.Prabhakaran
Advocate for Respondents : Shri R.B.Muley
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: August 30, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the order dated 29.6.2016,
delivered by the Labour Court below application Exhibit - 19 by
which, the petitioner has been directed to produce the documents
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mentioned in the notice for production filed by the respondent /
employee. The petitioner is also aggrieved by the judgment and
order dated 30.7.2016, passed by the Industrial Court, by which
Revision (ULP) No.24 of 2016, filed by the respondent has been
dismissed.
5. I have heard the learned Advocates for the respective sides at
length.
6.
Issue pertains to the production of documents. The following
documents have been asked for by the respondent through his notice
Exhibit U-19. The eight documents at issue are as under:-
A. Appointment order of complainant.
B. Alleged promotion order of complainant issued in the
year 1987.
C. Alleged Promotion order of complainant issued in the
year 1995.
D. Production report of Silvasa Plant for the year 2000.
E. Production report of Pondicherry Plant from 2001 to
2005.
F. Certified Standing Orders of the respondent company.
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G. Muster roll of Silvasa Plant for the year 2000.
H. Muster roll of Pondicherry plant from 2001 to 2005.
7. It is trite law, in the light of the judgments delivered by this
Court in the matter of The 20Th Century-Fox Corporation Versus F.H.
Lala And Ors. [(1974) II LLJ 156 Bom.] and in the matter of Mackinon
Mackenzie Ltd. Versus G.S.Baj and others [2006 (4) Mh.L.J. 492],
that the documents must be established to be in the exclusive
custody of a party and the said documents must be relevant and
germane to the cause of action, which would assist the Court in
properly adjudicating the matter.
8. In the light of the law as is settled, it is relevant to consider
the pleadings of the respondent in the Complaint (ULP) filed by him
before the Labour Court, for challenging his termination dated
12.4.2005.
9. In paragraph No.2 of the Complaint, the respondent has
pleaded that he was appointed in 1987, he was performing the duty
of a Junior Supervisor at the Aurangabad plant and thereafter, was
promoted as Senior Supervisor in 1995.
10. The respondent was transferred to Silvasa from Aurangabad on
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21.10.2000. There is no dispute that he has not challenged the said
transfer. Subsequently, he was transferred on 20.12.2001 from
Silvasa to Pondicherry. It is not in dispute that the respondent did
not challenge this transfer.
11. In paragraph no.5 of the Complaint, the respondent has
pleaded that though he was working as a Senior Supervisor, the
nature of his duties were of a skilled labourer.
12.
On the point of jurisdiction, this litigation had travelled upto
the Supreme Court. By an order dated 16.2.2016 in Civil Appeal
No.1409 of 2016, the Honourable Apex Court allowed the appeal filed
by the respondent and directed the Labour Court, Aurangabad to
consider the Complaint filed by the respondent on it's merits. The
judgment of this Court and the Industrial Court was, therefore, set
aside and after restoring the complaint to the Labour Court, the
parties were directed to appear on 8.3.2016.
13. It is the case of the petitioner / management that the
respondent is not a 'workman' under Section 2(s) of the Industrial
Disputes Act and is not an 'employee' under Section 3(5) of the the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 ("the said Act "). Naturally, the onus and
burden lies on the petitioner to prove that the respondent is not a
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'workman'.
14. The respondent has challenged his termination w.e.f.
15.4.2005, which is said to be illegal as it was under the garb of a
closure of the Pondicherry plant. The age of retirement, according to
the management, is 62 years and the respondent has attained the
age of superannuation in 2013. The complaint, on the basis of it's
pleadings indicates that the respondent has challenged his
termination on the ground that the circumstances at the Pondicherry
plant did not warrant a closure. It is conceded by the petitioner that
there are about three employees at the Pondicherry plant, including
the respondent.
15. The demand for production of documents will, therefore, have
to be scrutinized in the light of the pleadings of the parties.
Needless to state, admitted facts are not required to be proved and
hence the documents in connection with the same, may not be
necessary.
16. As such, since the date of appointment of the respondent is
admitted, his promotion as Junior Supervisor in 1987 and Senior
Supervisor in 1995 has been admitted by both the sides, the
documents at Sr. No. A, B and C, below Exhibit U-19, are not required
to be produced.
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17. In so far as the document at Clause D, pertaining to the
production report of the Silvasa plant is concerned, as the
respondent was transferred to Silvasa and thereafter was shifted to
Pondicherry and as both the transfer orders are not challenged, the
production reports from Silvasa are not necessary.
18. The notice of closure of establishment, dated 12.4.2005,
issued by the petitioner to the respondent indicate that there were
only three employees affected by the said closure. It is not stated in
the said notice that the said closure is on account of fall in business
or losses or any other reason of the kind. Nevertheless, the onus and
burden would lie on the petitioner to indicate reasons for the
closure, considering the pleadings of the respondent.
19. On this count, the defense taken by the petitioner that the
production report of the Pondicherry plant is not available, cannot be
believed for the reason that the respondent had filed his complaint
in June 2005 before the Labour Court and since then the litigating
sides are in litigation. Considering the pending litigation, it is
expected that the petitioner would preserve its records and would
refrain from destroying them as the said documents could be relevant
to the pending litigation. In this backdrop, I find that the order of
the Labour Court and Industrial Court, directing the production of
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documents under Clause 6E deserves to be sustained. As such, the
petitioner shall produce the said documents.
20. For the reasons assigned with regard to the production of
documents 6E, the same reasons are required to be assigned for the
production of the document at 6H, which is the muster roll of the
Pondicherry plant. The petitioner will, therefore, have to produce
the said documents, since it would indicate the number of employees
engaged notwithstanding that the petitioner contends that there
were only three aggrieved / affected employees. This document is
required since the applicability of Chapters V-A and V-B of the
Industrial Disputes Act, 1947 would be germane to the cause of
action.
21. In so far as the Certified Standing Orders of the Company are
concerned, the petitioner contends that the Pondicherry plant did
not have Certified Standing Orders. It is stated across the Bar, that
since there were only three employees, even the Model Standing
Orders would not apply. The closure notice has used the term "You
are one of the three employees affected by such notice." It is not
the case of the petitioner that there were only three employees.
Contention is that only three employees are affected. It cannot be
ruled out that there could be some more employees and there could
be a possibility that they may be adjusted or accommodated
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elsewhere. As such, the petitioner shall produce it's Service
Conditions, as may be applicable to its employees, at the Pondicherry
plant, which can be borne out by the appointment order or any
settlement or agreement. As such, the petitioner shall produce such
service conditions before the Labour Court.
22. The Muster Roll of the Silvasa plant, under Clause 6G, would
not be relevant to the pending complaint and hence, the said
document is not required to be produced.
23. With the above directions, this petition is partly allowed and
the impugned orders of the Labour Court as well as of the Industrial
Court shall stand modified accordingly. Rule is made partly absolute
in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
