Mrs.Shashikala vs M/S Hindustan Machines Tools ...
2016 Latest Caselaw 2896 Bom

                                             1                    WP No. 3331/1995

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                             
                       BENCH AT AURANGABAD

                          WRIT PETITION NO.3331 OF 1995




                                                     
      1)       Mrs. Shashikala w/o Sudhakar Bankar
               Age: Major, occu. Labour,
               R/o Mukundwadi, Ashoknagar,




                                                    
               Aurangabad.

      2)       Mrs.Muktabai w/o Trimbakrao Mahindra
               Age: Major, occu. Labour,
               R/o Brijwadi, Near Naregaon,




                                      
               Chikalthana, Aurangabad 431 210.= PETITIONERS

               VERSUS        
      1)       M/s Hindustan Machines Tools Ltd.
               Through its General Manager,
                            
               H-2, M.I.D.C., Industrial Area,
               Chikalthana, Aurangabad.

      2)       The Member,
               Industrial Court, Aurangabad. =                 RESPONDENTS 
      

                                   -----
      Mr.Prakash B.Patil, Advocate for Petitioner;
   



                                       -----
                                   CORAM :  P.R.BORA, J.

DATE :

16 th

June,2016.

ORAL JUDGMENT:

1) Heard. Order dated 14th December, 1994

passed by the Member, Industrial Court,

Aurangabad in Revision (ULP) No.22/1991 is

questioned in the present petition by the

original complainants.

2) Vide the aforesaid order, the Industrial

Court had set aside the order passed by the

Labour court at Aurangabad in Complaint (ULP) No.

70/1986 on 15.4.1991. The present petitioners,

who are herein after referred to as the original

complainants, had filed the aforesaid Complaint

before the Labour court at Aurangabad under

Section 28(1) of The M.R.T.U. and P.U.L.P. Act

(for short the said Act), alleging unfair labour

practice under item 1 of Schedule IV of the said

Act, against the present respondents.

3) It was the contention of the original

complainants that though they had continuously

worked with the respondents, without following

due process of law their services were

terminated. According to the original

complainants, the said termination was,

therefore, illegal and they were entitled for the

relief of reinstatement with all consequential

benefits.

4) The Complaint so filed before the Labour

court was resisted by the respondents. It was

the contention of the respondents that the

complainants had worked with the respondents for

a temporary period i.e. from 1.4.1985 to

30.4.1985 and 1.8.1985 to 17.9.1985 as the casual

employees for attending the gardening work at the

factory. It was the further contention of the

respondents that subsequently, the gardening work

was outsourced and the said gardening contractor

had availed the services of the complainants. It

was further contended that the complainants were

never regular employees of the respondents and

had never worked continuously with the

respondents much less for the continuous period

of 240 days in one calender year so as to make

them entitled for the benefits provided under the

provisions of the Industrial Disputes Act.

5) The learned Labour court, after having

assessed the oral and documentary evidence

brought before it, allowed the Complaint and

directed reinstatement of the complainants with

continuity of service and with back wages. The

aforesaid order passed by the Labour court was

challenged by the respondents before the

Industrial court by filing Revision (ULP) No.

22/1991. The learned Industrial Court, vide the

impugned order, set aside the Judgment and order

of the Labour court and consequently dismissed

the Complaint (ULP) No.70/1986. Aggrieved by the

said order, the original complainants have

preferred the present writ petition.

6) Shri Prakash B.Patil, learned Counsel

appearing for the petitioners, submitted that

the Industrial court has grossly erred in

interfering with the judgment of the Labour court

when there was enough evidence showing that the

complainants were the employees of the

respondents. The learned counsel submitted that

the issuance of ESI Cards in favour of the

complainants was the positive proof with the

complainants to show that they were the employees

of the respondent factory. The learned Counsel

further submitted that sufficient material was

also produced before the Labour court evidencing

that both the complainants had worked for the

continuous period of more than 240 days. In the

circumstances, according to the learned Counsel,

the finding recorded by the Industrial Court that

the complainants were the casual employees and

had not worked continuously with the respondent,

is erroneous and deserves to be set aside.

7) On perusal of the judgment passed by the

Labour court as well as by the Industrial Court,

it is revealed that the complainants had failed

in proving that they were employed by the

respondents and further that they had worked with

the respondents for the continuous period of more

than 240 days during the period of one year. On

the contrary, the documents which were produced

on record indicate that the complainants were

employed by the gardening contractor viz. M/s

Poonam Garden Services. Though it is true that

the entry Cards were issued in favour of the

complainants and they were also holding ESI

Cards, the learned Industrial Court has rightly

observed that in the Entry pass, it was

specifically mentioned that they were the

representatives of Mr.Melwani, i.e. the

Proprietor of M/s Poonam Garden Services. It has

also been rightly held by the learned Industrial

court that the issuance of ESI Cards cannot be

said to be a positive proof to prove that the

complainants were the regular employees of the

respondent factory and further that they had

continuously worked for the respondent so as to

make them entitled for the benefits under the

provisions of the Industrial Disputes Act. From

the evidence on record, the conclusion which has

been recorded by the Industrial Court that the

complainants have failed in establishing that

they worked continuously as employees of the

respondent factory, appears to be sound. Even in

the petition, no such material has been placed on

record so as to arrive at a different conclusion.

8) After having carefully perused the

judgments of the courts below, it does not appear

to me that the learned Industrial Court has

committed any error in allowing the revision

application filed by the present petitioners.

The writ petition is devoid of any substance and

deserves to be dismissed. It is accordingly

dismissed, however, without any order as to cots.

Rule discharged.

sd/-

(P.R.BORA,J.)

bdv/

fldr 15.6.2016