M/S. Simplex Tailors Thru. Its. ... vs Rajendra Deorao Randive
2016 Latest Caselaw 3477 Bom

                                            1                                           wp1457.08




                                                                                     
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      




                                                             
                               NAGPUR BENCH, NAGPUR.




                                                            
     WRIT PETITION NO.1457 of 2008


     M/s. Simplex Tailors,
     through its proprietor,




                                               
     Mangesh s/o Dnyaneshwar Fulzele,
     Aged about 36 years, Occ.- Business,
                             
     R/o Modi No.2, Sitabuldi, Nagpur.                                ....       PETITIONER
                            
                         VERSUS


     Rajendra s/o Deorao Randive,
     Aged about 44 years, Occ.- Service,
      


     R/o Plot No.124, in front of New 
     Durga Mandir, Old Nandanwan, 
   



     Nagpur-9.                                                        ....       RESPONDENT


     ______________________________________________________________





                Shri S.G. Ramteke, Advocate for the petitioner,
                Shri S.B. Dhande, Advocate for the respondent.
      ______________________________________________________________

                                   CORAM : Z.A. HAQ, J.

DATED : 29 JUNE, 2016.

th

ORAL JUDGMENT :

Heard Shri S.G. Ramteke, Advocate for the petitioner-

employer and Shri S.B.Dhande, Advocate for the respondent-employee.

2. The employee approached the Conciliation Officer with a

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grievance that he was illegally removed from the employment. The

Conciliation Officer referred the dispute for adjudication to the Labour

Court. The Labour Court, by the impugned order, answered the

reference in favour of the employee and directed the employer to

provide work to the employee and granted other reliefs regarding

continuity of employment and payment of 50% back wages

considering the wages as Rs.1,400/- per month.

3. While issuing Rule, by the order dated 08-04-2008, this

Court stayed the execution of the impugned order. Subsequently, the

employee filed Civil Application No.6559/2008 on which an order is

passed on 30-09-2008 directing the employer to deposit the regular

back wages of the employee at the rate on which he was drawing his

wages earlier, before 10 th of each month. Pursuant to this order, the

employer has deposited Rs.1,400/- per month and the amount is

withdrawn by the employee.

4. The claim of the employee is that he was working as Tailor

with the employer since 01-07-1993, his duty hours were from 12-00

noon till 9-00 p.m. and he was paid Rs.1,400/- per month. Relying on

the judgment given by the Hon'ble Supreme Court in the case of Silver

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Jubilee Tailoring House and others vs. Chief Inspector of Shops and

Establishments and another reported in 1973 II Labour Law Journal

495, the Labour Court concluded that the services of the employee

were terminated illegally.

5. The learned Advocate for the petitioner-employer has

pointed out the stand of the employer in the written statement filed

before the Labour Court, to the effect that the employee was doing the

work of employer on contract basis, that the employee used to go to

the employer's shop once or twice in a week for ten to fifteen minutes

to collect the clothes for stitching and the employee was doing the

work at his home. The employer pleaded that the employee was not

working under the control of the employer. The learned Advocate for

the petitioner has pointed out the copies of extract of attendance

register which show the signatures of the employee against the entries

of his name and the time he visited the employer's shop. The entries

show that the employee visited the employer's shop sometime at 8-00

p.m., sometime at 7-00 p.m., sometime at 7.30 p.m. The employee has

not placed any documentary evidence on the record or has not led

evidence to rebut the claim of the employer relying on the above

documentary evidence.

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6. In the case of Silver Jubilee Tailoring House and others,

the workers pleaded that they were working on piece-rate basis, that

they attended the shop every day if work was available and that the

work of stitching was done as per the instructions of the employer.

Considering the pleadings of the workers, it was held that the

relationship of employer and employee existed between the parties.

From the material on the record, in the present case, it

cannot be said that the employee has established that he was working

with the employer as his employee at his shop from 12-00 noon till 9-

00 p.m. as contended by the employee.

In my view, the findings recorded by the Labour Court are

unsustainable. Hence, the following order :

            (i)        The impugned award is set aside. 





            (ii)       It is held that the employee has failed to establish that he

was working with the employer as his employee at his

shop from 12-00 noon to 9.00 p.m. every day.

(iii) It is clarified that the amount deposited by the petitioner

and withdrawn by the employee shall be with the

employee and employer will not be entitled to seek refund

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of it. If any amount deposited by the petitioner is with the

Registry of this Court, the said amount alongwith interest,

if any, shall be refunded to the petitioner.

(iv) The petition is allowed in the above terms.

(v) In the circumstances, the parties to bear their own costs.

                                        ig                                   JUDGE

    adgokar