Nagraj Janardan Patil vs Jalgaon Jilha Sahakari Dudh ...
2021 Latest Caselaw 8900 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      WRIT PETITION NO.9542 OF 2018
                                  WITH
                    CIVIL APPLICATION NO.5644 OF 2019
                             IN WP/9542/2018

                Nagraj Janardan Patil,
                Age 66 years, Occupation Farmer,
                R/o 182, Bhikamchand Jain Nagar,
                Jalgaon.                                      ...Petitioner

                VERSUS

                Jalgaon Jilha Sahakari Dudh Utpadak
                Sangh Limited, Jalgaon.                       ...Respondent

                                      .....
                Advocate for Petitioner              : Party in person
                Senior Counsel for Respondent        : Mr. V. D. Hon i/b
                                                       Mr. A. V. Hon
                                        .....

                                    CORAM : SMT.VIBHA KANKANWADI, J.

                                    Date of Reserving the Order                :
                                    10-06-2021

                                    Date of Pronouncing the Order              :
                                    08-07-2021

ORDER :

1. Present petitioner/ party-in-person is challenging the Judgment and

order passed in Revision Application (ULP) No.177 of 2001 by learned

Member Industrial Court, Jalgaon on 25-04-2018 whereby the said

revision application filed by the present respondent came to be allowed

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and the Judgment and order dated 17-05-2001 on issue No.7 in

Complaint (ULP) No.42 of 1999 passed by Labour Court, Jalgaon came

to be set aside.

2. Before turning to the submissions, the checkered history is

required to be noted. It is not in dispute that the present petitioner

was in the employment of the respondent Sangh as Chief Security

Officer since 1988. Prior to that, he had retired from Indian Air Force.

Further, the administration of the respondent Sangh was taken over by

National Dairy Development Board on 11-09-1995. The further fact is

that the charge-sheet was served on the petitioner on 03-07-1996

which was signed by the Administrator Mr A. K. Josef. It is also not in

dispute that there are Model Standing Orders in view of the Bombay

Industrial Employment (Standing Order) Rules, 1959. Thereafter on

18-12-1999 the services of the present petitioner came to be

terminated. The present petitioner had filed said complaint (ULP) No.42

of 1999 under Item No.1 of Schedule IV of Maharashtra Recognition OF

Trade Union AND Prevention OF Unfair Labour Practice Act, 1971

(hereinafter referred to as, 'MRTU and PULP Act" for the sake of

brevity). The further fact that is required to be noted is that though

the issues were framed, issue No.7, "Does the respondent prove that

the complainant is not an employee within the meaning of Section 3 (5)

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of the MRTU and PULP Act and a workman within the meaning of

Section 2 (s) of the Industrial Disputes Act ?," was treated as an

important issue and evidence was adduced by the respondent. After

considering the evidence, the learned Labour Court had given the

finding to the said preliminary issue No.7 as "Not Proved". That order

was challenged by respondent Sangh in Revision Application (ULP)

No.177 of 2001. The learned Industrial Tribunal on 10-12-2001, on

hearing both sides, confirmed findings on the said issue No.7 dated 17-

05-2001. Thereafter, the respondent Sangh had approached this Court

by filing Writ Petition No.453 of 2002. This Court set aside the order

passed by the Industrial Court in the said Revision Application No.177

of 2001 and relegated the matter for deciding the revision afresh to the

extent of issue No.7. This Court had specifically directed the Industrial

Court to decide the said revision in the light of Judgment of this Court

in the case of Sadanand Ramesh Samsi vs. Kirloskar Cummins

Limited, reported in 2002 (4) Mh.L.J. 8041, by giving an opportunity to

both sides to make their submissions on the said issue. Further, after

hearing both sides, the learned Member of the Industrial Court, Jalgaon

by Judgment and order dated 01-03-2003, allowed the Revision

Application (ULP) No.177 of 2001, thereby the findings given by the

learned Labour Court on issue No.7 were set aside and the complaint

filed by the present petitioner before the Labour Court was dismissed.

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Thereafter, the present petitioner filed two writ petitions before this

Court along with the civil applications i.e. Writ Petition No.1690 of 2003

and 4028 of 2003. This Court by order dated 30-01-2018 partly

allowed the writ petitions. The Judgment and order dated 01-03-2003

passed by the learned Member Industrial Court, Jalgaon in the revision

was quashed and set aside and the matter was remitted back to the

concerned Court once again. Again it was specifically directed that the

revision be heard afresh and be decided on its own merits after giving

an opportunity of being heard to both sides. Accordingly once again

the parties were heard by the learned Member of the Industrial Court,

Jalgaon and by Judgment and order dated 25-04-2018 the said revision

came to be allowed as aforesaid by quashing the Judgment and order

dated 17-05-2001 passed by the learned Labour Court on issue No.7.

Once again the petitioner party-in-person is before this Court

challenging the said Judgment and order.

3. Heard the learned party-in-person and learned Senior Counsel

Mr. V. D. Hon instructed by learned Advocate Mr. A. V. Hon.

4. The party-in-person has taken this Court through the documents

which he has produced along with the petition and also the various case

laws which he has referred. As aforesaid, most of the facts are

admitted and the limited point on which the deliberations were required

5 WP Civil 9542-2018

were, as to whether the respondent Sangh who had raised the

preliminary objection regarding the status of the petitioner as

"employee or workman" has been correctly decided by both the Courts

below or not. At the cost of repetition, it is to be stated that

respondent Sangh had taken objection by filing a written statement

regarding the tenability of the complaint and status of the

complainant / present petitioner as an employee. If we consider the

wordings used in issue No.7 then it can be seen that the burden was on

respondent Sangh to prove the fact. Whether a negative burden can be

put on any party to prove a fact is a question, however when the

respondent Sangh had come with a specific case that the petitioner

complainant was not an employee within the meaning of Section 3 (5)

of the MRTU and PULP Act and a workman within the meaning of

Section 2 (s) of the Industrial Disputes Act, then it was for the Sangh to

prove the same. The party- in-person has vehemently submitted that a

false charge-sheet was served on him, giving a concocted story on 03-

07-1996 by Mr A. K. Josef, who designated himself as administrator.

He submitted that in the said charge sheet an incident, alleged to have

taken place on 21-05-2016 was quoted. It was alleged that he i.e.

petitioner had abused one Dhondu Shankar Patil. If the charge sheet is

considered then it can be seen that the alleged incident had taken place

out side the premises of the Sangh. Further, it was also alleged that in

6 WP Civil 9542-2018

the past also there were incidents when the complainant had abused

and assaulted the workers. The charge was framed in view of the Model

Standing Orders which are applicable to the 'workers' and, therefore,

the Sangh had treated him as a 'worker', but now unnecessary

objection has been taken. The learned Labour Court had correctly

decided the matter after relying on the decision in S. A. Sarang vs. W.

G. Forge and Allied Industries Ltd. Thane, reported in 1995-I-CLR-837.

The party-in-person has further submitted that in fact, the appointment

of Mr. Josef as Administrator is a fraud. Mr. Josef had done illegal

activities, so also other office bearers of the Sangh, as well as the

National Dairy Development Board were wrongly appointed. Said Mr.

A. K. Josef was not delegated with the powers and, therefore, he could

not have issued any notice nor he could have terminated the services of

the complainant. He has taken this Court through the various replies

given by National Dairy Development Board in response to the

applications given by the party-in-person under the Right to

Information Act. He submitted that the copies of the documents which

he had called were not even available with the said Board. Under such

circumstance, it cannot be said that the said Board had any kind of

control over the Sangh. He has filed various criminal complaints before

the Chief Judicial Magistrate, Jalgaon for the various illegal activities

done by the accused persons mentioned therein, for gross injustice that

7 WP Civil 9542-2018

has been done to him. The party-in-person has even tried to contend

that the learned Member of the Industrial Court who pronounced the

Judgment and order on 25-04-2018 was not authorized as he was

repatriated in June 2018 and, therefore, the said Judgment cannot be

said to be binding on him. He prayed for setting aside the impugned

Judgment by the learned Member of the Industrial Court and

restoration of the decision given by the learned Labour Court.

5. Per contra, the learned Senior Counsel submitted that the party-

in-person is in habit of making allegations against all those persons who

are opposing his moves. He has filed criminal complaints not only

against the office bearers of the Sangh but even the Hon'ble Ministers

holding the Port Folio of Milk Development of the State of Maharashtra

since 1995 till 2010. He has included all the Secretaries to the

Government of the said department, Commissioners, Sub-Registrars,

Assistant Registrars, Auditors, Police Officers and filed a complaint

against about 115 persons before Chief Judicial Magistrate. In present

matter, it was remanded twice with a specific direction that the learned

Member should decide the preliminary issue afresh. The point before

the Court was limited, as to whether there is any such material that

was produced to support the contention of the complainant that he is

the 'employee or workman'. Only the respondent Sangh had examined

8 WP Civil 9542-2018

four witnesses. Though the opportunity was given to the complainant/

party-in-person to lead the evidence, he has not examined anybody.

The fact which had come on record was that the complainant was

serving as Chief Security Officer and he does not dispute that. He also

does not dispute that there were about 18 to 20 employees who were

working under him. He used to sanction the leave of those persons.

So also he used to write confidential reports and supervise the work of

those employees. Even he used to give the recommendations when

called in respect of grant of increments to the employees under him.

Under such circumstance, when he had such supervisory powers, he

cannot be said to be a 'workman'. Time and again the respondent

Sangh has canvassed before this Court in view of the decision in

Sadanand Ramesh Samsi vs. Kirloskar Cummins Limited, reported in

2002(4) Mh.L.J. 804, wherein powers under Section 44 of the Industrial

Disputes Act were considered, and it was held that, if the decision by

the Labour Court is against the record then the Industrial Court can

interfere. Merely because in the charge-sheet, wrong mentioning of

rules under the Model Standing Rules, the complainant cannot become

an 'employee or worker'. Further, the facts of the case in S. A. Sarang

vs. W. G. Forge and Allied Industries Ltd., (Supra) were different. In

view of the fact that in that case several times when the notices were

issued, it was stated that the said action has been taken under the

9 WP Civil 9542-2018

Model Standing Orders. Here only one charge-sheet was given;

wherein it was so mentioned that it is under the Model Standing Orders.

The illegal activity that was done by the complainant will not go away.

Being the officer, he was not supposed to misbehave with the

employees within the premises of the Sangh. The learned Member of

Industrial Court has correctly decided the issue and a very detailed

order taking into consideration all the legal aspects involved in it, has

been passed, which requires no interference at all.

6. At the outset, this Court would impress, so also it was impressed

on the party-in-person while he was arguing that taking into

consideration the scope of the present petition; the criminal complaints

those have been filed by him cannot be looked into. The narrow point

that is required to be considered here was whether the Sangh i. e.

respondent was able to prove that the complainant is not its 'employee'

within the provisions aforesaid. What has come on record is that the

respondent Sangh had examined four witnesses but no evidence was

led in rebuttal by the complainant. Important point further is also

required to be taken into consideration is that only on the point that in

the charge-sheet dated 03-07-1996 and the show cause notice dated

12-07-1996 it was stated by the respondent Sangh that it is issued as

per the Model Standing Rules; the learned Labour Court appears to

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have held that he is an 'employee or worker'. It can be seen from the

Judgment of the learned Labour Court that he had not discussed the

oral evidence adduced by the respondent Sangh. In spite of that at one

place, it has been observed by the learned Labour Court that, "it

appears from the oral and documentary evidence and citations cited by

the respondent that the complainant is not an employee within the

meaning of Section 3 (5) of the M.R.T.U. and P.U.L.P. Act and a

workman within the meaning of Section 2 (s) of the Industrial Disputes

Act". However, as per the decision in S. A. Sarang vs. W.G.Forge and

Allied Industries Ltd. (Supra), it appears that he proceeded to hold that

the respondent Sangh failed to prove issue No.7. This appears to be a

contrary decision, as compared to his own findings. Only on the basis

of some citations, a Court is not required to come to a final conclusion

but the Court is required to consider what is the ratio laid own in the

said citation and in order to arrive at that ratio what were the facts

before the said Court should be considered. If the facts are similar, the

law involved in the case is similar; then only the said decision/ratio

would be applicable, otherwise the concerned Court now dealing with

the dispute, has to come to its own conclusion on the basis of evidence

adduced. It has been rightly considered by the learned Member of

Industrial Court now in the impugned order that the ratio in S. A.

Sarang vs. W.G.Forge and Allied Industries Ltd. (Supra) will not be

11 WP Civil 9542-2018

applicable to the facts before this Court on two grounds. One is that the

present party-in-person petitioner had not led any evidence in rebuttal,

and another fact is that, only once in the charge-sheet and in show

cause notice the Model Standing Order has been referred; whereas in

case of S. A. Sarang vs. W.G.Forge and Allied Industries Ltd. (Supra) it

was repeated act. Further in S. A. Sarang vs. W.G.Forge and Allied

Industries Ltd. (Supra) case, in paragraph No.5 it has been observed

that,

"The evidence on record is equivocal and does not clinchingly indicate the nature of the work done by the petitioner. All documents produced by the first respondent could also be explained away and did not definitely show that the petitioner was employed as Supervisor. The oral evidence is equally ambiguous."

This was the basis coupled with the repeated acts of the employer to

invoke the Model Standing Orders that had led the Court in that case to

come to the conclusion that in that case the petitioner was an

'employee and/or workman'. At the cost of repetition once again when

it is not in dispute that the petitioner complainant was serving as a

Chief Security Officer since beginning i.e. since the appointment and

was controlling about 18 to 20 employees under him by an act of

sanctioning leave, writing their confidential reports, gives

recommendations for their increments and allotting them the work in

12 WP Civil 9542-2018

different shifts etc., he cannot be termed as 'employee/ workman'. The

revision has been correctly decided. All the legal points involved are

correctly discussed and, therefore, there is no question of invoking the

Constitutional powers of this Court either under Article 226 and/or

under Article 227 of the Constitution of India to set aside the said

Judgment and order dated 25-04-2018. Another fact will have to be

mentioned that on the day the Judgment was pronounced, the said

member was very much holding the post and his repatriation order

passed by this Court on 14-06-2018 will not render the said Judgment

as illegal. It appears that these subsequent allegations are also part of

the attitude of the petitioner. It can also be seen that he has made

allegations against the learned Advocate for respondent stating that his

Vakalatnama is not properly signed. In the past also he has made

allegations against the then Advocates who were representing the

respondent Sangh.

7. Before parting, one more fact is required to be mentioned here

that when this Court was hearing the submissions by the petitioner/

party-in-person, even it was suggested as to how his approach should

be while making submissions, since he has no legal background and

even the legal aid was offered, however, the party-in-person flatly

refused to take any legal aid and, therefore, this Court was constrained

13 WP Civil 9542-2018

to hear the submissions whatever were made, apart from that all the

points are dealt with by this Court.

8. With these observations, as case is not made out for invoking the

constitutional powers of this Court, the writ petition stands dismissed.

Civil Application No.5644 of 2019 stands disposed of in view of the

dismissal of the writ petition.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-.