Bombay High Court
Khare And Company, Thr Partner, ... vs Pundlik S/O Mahadeo Lokhande on 12 August, 2021
Bench: Avinash G. Gharote
WP1341.10.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1341 OF 2010
PETITIONER: Khare & Company,
Variety Square, Sitabuldi, Nagpur-12,
through its Partner Shri Arun Khare
...VERSUS...
RESPONDENT: Pundlik Mahadeo Lokhande,
Aged 62 years, Occ. Retired,
R/o. Rahul Nagar, Somalwada,
Nagpur.
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Ms. Shireen Meghe, Advocate, h/f Shri P.D.Meghe, Advocate for
petitioner
Shri S.B.Dhande, Advocate for Respondent.
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CORAM : AVINASH G. GHAROTE, J.
DATE : 12/08/2021.
1] Heard Ms. Meghe, learned counsel for the petitioner
and Mr. Dhande, learned counsel for the respondent.
2] On 09.08.2021, this matter was part-heard and
I recorded the following position.
1. Heard Ms Meghe, learned Counsel for the petitioner. The
order passed by the learned Labour Court dated 15/9/2009,
directing the petitioner, to deposit Rs.15,470/- towards
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difference of minimum wages payable to the applicant
together with encashment of leave within 60 days or to pay
the same to the applicant, has been challenged in the
present petition.
2. Ms Meghe, learned Counsel for the petitioner submits
that two grounds are raised, firstly, whether the petitioner,
falls within a definition of 'industry', as defined in Section
2(j) of the Industrial Disputes Act, 1947 for which she
contends that the petitioner, is an establishment registered
under the Shops and Establishments Act, and is engaged in
retail selling of cloth and garments. There were only three
employees working initially, out of which one by name Mr.
Tale, has been retired and apart from the respondent, there
was only one other person working in the establishment, in
view of which, it would not satisfy the requirement of
'industry'. Learned Counsel for the petitioner places reliance
upon Umashankar Jaswal Vs. Royal Auto Centre and
another, 1998 (I) CLR 740, which holds that in absence of
any organized labour in the employment of an employer or
plurality of workmen and the activity done by the employer
being substantially and mainly carried on by him, which
could not said to be organized by co-operation between him
and the employee, the establishment did not fall within the
definition of 'industry', as defined in Section 2 (j) of the
Industrial Disputes Act. She also relies upon the deposition
of the petitioner, as recorded by the Labour Court in this
regard.
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3. The next ground raised is that presuming otherwise, the
employee himself, had admitted the receipt of the difference
of minimum wages, which was evident from the receipt
dated 10/6/1997 (page 49) issued by the employee himself
(page 54) as put on record by the petitioner and therefore,
the learned Labour Court was not justified in rendering a
finding otherwise.
4. Shri Dhande, learned Counsel for the
respondent/employee submits that the termination of the
respondent, was challenged before the Labour Court, which
was set aside and the observations made therein are
material. The order of the Labour Court was also challenged
by way of Writ Petition No.1701/2007, which has been
dismissed on 27/2/2008. An letters patent appeal, against
which, also came to be dismissed and so also an special
leave petition before the Hon'ble Apex Court. He submits
that the issue as to whether the petitioner was an 'industry'
or not has been considered therein and decided and
therefore it is not permissible for the petitioner, to raise the
same again. However, copies of these documents are not on
record.
3] Today Mr. Dhande, learned counsel for the respondent
has tendered across the bar, the copy of the judgment in Writ
Petition No. 1701 of 2007, decided on 27.02.2008, in which the
question raised whether the petitioner was an 'Industry' was
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specifically considered and was answered in the affirmative.
A Letters Patent Appeal against this judgment in Writ Petition
No. 1701 of 2007, being L.P.A No. 305 of 2008, came to be
dismissed on 30.03.2009, on the ground that the same was not
maintainable. The matter was carried to the Hon'ble Apex Court by
way of Civil Appeal Nos. 9895-9896 of 2011, wherein, by an order
dated 23.03.2021, the same was dismissed. That being the position,
the finding that the petitioner was an 'industry' became final
between the parties, and it is now no longer open to challenge. The
contention of Ms. Meghe in this regard, therefore, is contrary to the
judgment in Writ Petition No. 1701/2007, which is inter parties and
binding upon them and is accordingly rejected.
4] In so far as the plea that the respondent/employee had
admitted that he had received all the amounts due and payable to
him on account of difference of minimum wages under the receipt
dated 10.06.1997, it is material to note that though there is no such
plea in the written statement of the petitioner, that such an amount
was paid, however, the receipt in that regard was placed on record
which is indicated by the cross examination of the respondent, dated
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12.07.2006, in which the respondent was confronted with the
receipt, whereupon he admitted his signature on the receipt, as well
as the date upon it as being in his handwriting. It is pertinent to
note, that the respondent has not denied the contents of the receipt
dated 10.6.1997, wherein it is recorded that he has received the
entire difference of the minimum wages on 10.06.1997. In spite of a
specific statement made in this regard in para 3 of the affidavit-
evidence of the petitioner, there is absolutely no cross examination in
this regard. This clearly indicates that the execution of the receipt
and its contents stand proved by the petitioner. The order of the
learned Labour Court does not indicate that the receipt dated
10.06.1997, indicating that the difference in minimum wages had
been received by the respondent, has been considered and
disbelieved by him. In view of it, the finding rendered that the
respondent was entitled to difference of the minimum wages of
Rs. 12,923/-, is clearly not sustainable in law. In so far as the claim of
leave encashment of 42 days amounting to Rs.3144.18 is concerned,
since the learned Labour Court has found that the leave register,
although maintained, was not produced, the finding in that regard, is
maintained.
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5] In view of the above discussion, the petition is partly
allowed. The judgment of the learned Labour Court, dated
15.09.2009, passed in IDA Case No. 95 of 1999, granting difference in
minimum wages is quashed and set aside. However, the judgment to
the extent it grants leave encashment, is maintained. The petition is
accordingly partly allowed.
JUDGE
Rvjalit
