Deepak Nandkishor Tiwari vs Nav Bharat Hindi Daily, Nagpur ...
2022 Latest Caselaw 8266 Bom

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      NAGPUR BENCH : NAGPUR

                                               WRIT PETITION NO. 5711 OF 2019
                        Sanjay Antuji Lambat --Vs.-- Nav Bharat Hindi Daily, Nagpur
                                               WRIT PETITION NO. 5712 OF 2019
                  Deepak Nandkishor Tiwari --Vs.-- Nav Bharat Hindi Daily, Nagpur
                                               WRIT PETITION NO. 5713 OF 2019
                   Manohar Ambadas Bhavik --Vs.-- Nav Bharat Hindi Daily, Nagpur
                                               WRIT PETITION NO. 5714 OF 2019
                       Kamlesh Narayan Bure --Vs.-- Nav Bharat Hindi Daily, Nagpur
                                               WRIT PETITION NO. 5715 OF 2019
                       Vikki Kishor Badgayye --Vs.-- Nav Bharat Hindi Daily, Nagpur
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Office Notes, Office Memoranda of Coram,                                                                     Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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           Mr. S.D.Thakur, Advocate for petitioners
           Mr. P.P.Salunkhe, Advocate for Respondent


                                                                           CORAM :                     AVINASH G. GHAROTE, J.

                                                                           DATE  :                     23/08/2022

                                               1]                           Heard Mr. Thakur, learned counsel for the

petitioners and Mr. Salunkhe, learned counsel for the respondent.

2] The petition challenges the judgment and order passed by the learned Industrial Court, dated 25.3.2019 (page 97), whereby the complaints under Section 28 read with Item 9 of Schedule IV of the MRTU and PULP Act, 1971, filed by the petitioners have been dismissed on the ground that the relationship of employer and employee has not been established. (2) 938wp5711.19+5712.19+5713.19+5714.19+5715.19

3] The ground for dismissal as evinced from para 16 of the impugned judgment indicates that evidence on record was insufficient to determine the relationship of employer and employee.

4] The record was called and Mr. Thakur, learned counsel for the petitioners by inviting my attention to the record submits that there were multiple documents placed on record under list at Exh. U-3, U-4, U-8 and U-9, all of which documents have been exhibited, however the judgment of learned Industrial Court does not indicate consideration of even a single document for determination of the issue regarding employer and employee relationship. He therefore submits that this is a fit case to be remanded back to the learned Industrial Court for decision according to law.

5] Mr. Salunkhe, learned counsel for the respondent is unable to point out the consideration of the exhibited documents by the learned Industrial Court in the impugned judgment. His only contention is that these documents are not supplied. However that is not borne out from the record.

6] That apart, if the documents under the aforesaid lists were exhibited, it was necessary for the learned Industrial Court to have taken them into consideration in arriving at a finding regarding existence (3) 938wp5711.19+5712.19+5713.19+5714.19+5715.19

or non-existence of a relation of employer and employee. That does not appear to be the position as is spelt out from the impugned judgment.

7] Mr. Salunkhe, learned counsel for the respondent further submits that the petitioners had approached the learned Labour Court claiming to have been terminated, which proceedings have been dismissed in default and therefore, that would be a factor which would come in the way of the present petitioners.

8] This contention has been noted by the learned Industrial Court in para 14 of the impugned judgment and relying upon Municipal Council, Pulgaon vrs. Sau. Manu Sudesh Malik and another, 2007 (4) Mh.L.J. 448, the contention has been rejected on the ground that the proceedings before the learned Industrial Court were prior in point of time and therefore requires adjudication. Though reliance has been placed by Mr.Salunkhe, learned counsel for the respondent on Writ Petition No. 7085/2019, Mahindra & Mahindra vrs. Sunil Namdeorao Zade, decided on 27.11.2020, the position therein was that the respondents therein were not in employment on the date when the proceedings were filed before the Industrial Court, which is not the position in the present case.

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9] Considering what has been stated above, in my considered opinion, this is a fit case to be remanded back to the learned Industrial Court for decision afresh after considering the documents placed on record. The petition is therefore allowed. The impugned judgment and order dated 26.03.2019 passed by the Industrial Court is hereby quashed and set aside and the matter is remanded back to the learned Industrial Court to hear the learned counsel for the parties and pass a judgment afresh.

10] The learned counsel for the parties shall appear before the learned Industrial Court on 5.9.2022 and shall complete their arguments by 8.9.2022. The learned Industrial Court shall decide the matter by 30.9.2022. The record be remitted back to the learned Industrial Court.

JUDGE Rvjalit