Bombay High Court
Omsingh Pomsingh Parmar And Ors vs Jaiprakash Nagina Kushwaah And Anr on 5 December, 2023
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2023:BHC-AS:36212
Neeta Sawant 1/13 WP-12673-2022-GROUP-FC
5 December 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12673 OF 2022
Omsingh Pomsingh Parmar
& Ors. ...Petitioners
V/s.
Yogendra Palakdhari Gautam ...Respondents
WITH
WRIT PETITION NO. 14766 OF 2022
Omsingh Pomsingh Parmar
& Ors. ...Petitioners
V/s.
Ramashish Bhajan Ram & anr. ...Respondents
WITH
WRIT PETITION NO. 12674 OF 2022
Omsingh Pomsingh Parmar
& Ors. ...Petitioners
V/s.
Jaiprakash N. Kushwaah & anr. ...Respondents
WITH
WRIT PETITION NO. 12672 OF 2022
Omsingh Pomsingh Parmar
& Ors. ...Petitioners
V/s.
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5 December 2023
Guddu Surybali Prasad & anr. ...Respondents
___________
Mr. Filji Frederick a/w. Ms. Shamika Surve, Mr. Archit
Chaturvedi, Mr. Aayu Saxena i/b y. FF & Associates, for the
Petitioners.
Mr. Vaibhav Jagdale, for Respondent No.1.
Mr. C.D. Mali, AGP for State.
__________
CORAM : SANDEEP V. MARNE, J.
Resd. On : 1 December 2023.
Pron. On : 5 December 2023.
JUDGMENT :
1. These four petitions are fled by the employer challenging
the Awards dated 29 June 2019 and 13 December 2019 passed
by the Labour Court, Thane setting aside the termination of the
four workmen/Respondents and directing their reinstatement
w.e.f 13 November 2016.
2. The three Petitioners claim to be in the business of
trading of cotton yarn and fabric in the name and style as
'Supeema Cottons Private Limited'. The Respondents claimed
that Petitioners own and operate several manufacturing
Units/power looms and that they were employed by the
Petitioners from various dates in the year 2001 and have
rendered more than 240 days of service in each year.
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5 December 2023
Respondents complained that Petitioners were not issuing
attendance cards to them nor granted leave or bonus and that
Petitioners used to pay wages on mere vouchers by taking their
signatures on simple registers. Respondents complained that
they were terminated from service w.e.f 13 November 2016
without assigning any reason and without paying any
retrenchment compensation, notice or notice pay. Respondents
therefore complained before the Labour Enforcement Ofcer,
Bhiwandi and the dispute was taken in conciliation. Since the
conciliation failed, the Deputy Labour Commissioner made a
reference to the Labour Court, Thane for adjudication in the
matter of reinstatement of the Workmen alongwith backwages
and continuity in service w.e.f. 13 November 2016.
3. Respondents fled their Statement of Claim.
Petitioners fled Written Statement opposing the claim of the
Workmen by taking various defences. They denied employer-
employee relationship with Respondents and stated that
Respondents were neither employed by the Petitioner nor
terminated. Petitioners claimed that the concerned power loom
unit was rented out to a tenant and that therefore Respondents
are not the direct employees of the Petitioners. Petitioners
appointed a legal practitioner to present their case. Such
appointment was objected by Respondents by fling application
at Exhibit-U-2 under Section 36 of the Industrial Disputes Act,
1947. By order dated 2 February 2018, the Labour Court
allowed the application and thereby restrained the Petitioners
from appointing legal practitioner without consent of
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5 December 2023
Respondents. Another Application was fled by Petitioner's
Advocate in his capacity as Vice President of Bhiwandi Textile
Processor Association to represent the Petitioners. The
Application came to be rejected by the Labour Court by Order
dated 27 May 2019. Another application was fled for
acceptance of the authority of the Advocate to represent
Petitioners at Exhibit-C-11 which came to be rejected by Order
dated 19 June 2019. Respondents led their evidence. However,
they were not cross-examined by Petitioners despite grant of
opportunity. Petitioners also did not lead their own evidence.
The Labour Court has delivered Awards dated 29 June 2019 in
case of Respondents - Yogendra Palakdhari Gautam and Guddu
Suryabali Prasad in Reference (IDA) Nos. 110 and 111 of 2017.
Separate Awards were rendered on 13 December 2019 in case of
Respondents - Ramashish Bajan Ram and Jaiprakash Nagina
Kushwaah in Reference (IDA) No. 109 of 2017 and 112 of 2017.
By all four Awards, the Labour Court has directed Petitioners to
reinstate Respondent-Workmen from the date of illegal
termination i.e. 13 November 2016 with full backwages and
continuity of service.
4. It appears that the Petitioners did not implement the
Awards and therefore the Respondents initiated proceedings for
execution of Awards. The Tehsildar, Bhiwandi issued recovery
notices to the Petitioners. Petitioners have thereafter fled the
present petitions challenging the Awards dated 29 June 2019
and 13 December 2019.
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5 December 2023
5. Mr. Fredrick would appear on behalf of the
Petitioners and submit that the impugned Awards have been
passed without grant of any opportunity of hearing to the
Petitioners. That denial of lawful request of the Petitioners for
being represented by legal practitioner or legal expert has
resulted in decision of References without any evidence, cross-
examination and arguments on part of the Petitioners. He would
therefore pray that the Awards be set aside and references be
remanded for being decided afresh after grant of opportunity of
defence to the Petitioners by engaging a legal practitioner.
6. Mr. Frederick would further submit that there is
total absence of employer-employee relationship between the
Petitioners and the Respondents. That Respondents were never
employed by Petitioners. That the Powerloom in question was
infact rented out to third parties by Petitioners and therefore
the possibility of third parties utilizing the services of the
Respondents as and when required. That the Respondents did
not produce even a single document to prove employer-
employee relationship with the Petitioners. That therefore the
impugned Awards are liable to be set aside.
7. Per-contra, Mr. Jagdale, the learned counsel
appearing for the Respondents would oppose the petitions
submitting that there is gross delay in fling the same. That the
Awards delivered on 29 June 2019 and 13 December 2019 are
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5 December 2023
belatedly challenged by the Petitioners by fling the present
petitions in October 2022. That there is no valid justifcation for
such delay. That the petitions are fled only after the Tehsildar
issued recovery notices. He would therefore submit that the
petitions be rejected on the ground of delay and laches.
8. Mr. Jagdale would further submit that under the
provisions of Section 36 of the ID Act, the Petitioners are not
entitled to engage a legal practitioner. That the Respondents
were represented by Union representative and not by a legal
practitioner. That therefore the Labour Court has rightly
rejected the request of the Petitioners for engagement of a legal
practitioner. That the orders rejecting the representation by a
legal practitioner have attained fnally on account of failure on
the part of the Petitioners to challenge the same. That therefore
the Petitioners cannot now be permitted to raise the issue of
refusal of permission to engage Legal Practitioner while
challenging the fnal Awards. That repeated opportunities were
given to the Petitioners to cross-examine the Respondents, to
lead evidence and to produce documents. Infact on application
fled by the Respondents, Petitioners were directed to produce
various documents in the form of attendance register, wage
register, leave register, bonus register etc. which were
deliberately withheld by the Petitioners. That since the
termination of the Respondents is efected in violation of the
provisions of the ID Act, the Labour Court has rightly directed
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5 December 2023
their reinstatement with full backwages and continuity in
service.
9. Rival contentions of the parties now fall for my
consideration.
10. In the present case, the References have been
answered by the Labour Court in absence of any evidence on
the part of the Petitioners. Though Petitioners fled Written
Statement denying employer-employee relationship, they failed
to cross-examine the Respondents nor led their own evidence.
This has apparently happened on account of denial of
opportunity to Petitioners to engage a legal practitioner. The
chronology of events would indicate that the Statements of
Claim was fled by the Workmen sometime in July 2017. The
Written Statements were fled by the Petitioners in January
2018. The Petitioners apparently engaged an Advocate. The
Respondent thereafter fled application at Exhibit-U-2 objecting
to appointment of legal practitioner by Petitioners. By order
dated 2 February 2018, the Labour Court allowed the
application of the Respondents and restrained the Petitioners
from engaging legal practitioner or Labour Law Consultant
without consulting the Respondents. It appears that the
Petitioners made one more attempt by engaging the services of
Mr. Nitin Shivkar who was not only an Advocate but also
President of Bhiwandi Textile Processor Association. The
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5 December 2023
application was rejected by Order dated 27 May 2019. One
more application fled for permission to represent Petitioners
through Mr. Nitin Shivakar was rejected on 19 June 2019. Ten
days later, the Labour Court rendered Award in Reference (IDA)
No. 111/2017 (Yogendra Palakdhari Gautam).
11. It thus appears that the Petitioners kept on pressing
for representation through Advocate till decision of Reference
(IDA) No. 111 of 2017. Similar is the position in respect of the
other References as well. In their quest for being represented by
a legal practitioner, Petitioners have apparently missed out an
opportunity to lead evidence, to cross-examine the Respondents
and to fle documents. While Labour Court cannot be faulted in
denying permission to Petitioners for engaging legal practitioner,
the efect of denial of such permission is required to be
appreciated. No doubt the orders denying permission to appoint
legal practitioner has attained fnality on account of failure on
the part of the Petitioners to challenge the order. However in
the process of making repeated attempts to seek permission to
engage legal practitioner, the References are decided virtually in
absence of Petitioners.
12. Mr. Frederick has strenuously urged for remand of
the References for fresh decision after grant of permission to the
Petitioners to engage legal practitioner. In my view, considering
the nature of dispute between the parties, it would be
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5 December 2023
appropriate to give a full stop to the entire litigation, rather than
making the parties to undergo one more round of litigation
before the Labour Court. The Respondents have been
discontinued from service since 13 November 2016. The
Petitioners were directed by the Labour Court to produce
various documents such as Wage Register, Attendance Register,
Bonus Register etc. However, the said directions remained
unimplemented on account of which the Labour Court has
drawn an adverse inference against the Petitioners. Even in the
present petitions, no documents are produced by the Petitioners
to prove that Petitioners did not work with them or did not work
for the period made in the Claim. Petitioners have vaguely
stated in the petitions as under:
10. Petitioners state that they are solely engaged in the
business of trading of cotton fabrics and not in any
manner engaged in manufacturing or processing of cotton
yarn or fabric. The Petitioners being the pioneers of the
trade in Bhiwandi area coupled with the fact that they are
the owners of the compound within which several such
establishments are operating their units, the said
compound popularly came to be known after the name of
Petitioner No. 1. Respondent no. I may have been
employed with one such unit which is situated within the
said compound. It is also pertinent to note that the
workers engaged in this industry are mainly foating
workers with no fxed place of work or unit and many time
unaware of the principal employer. Several galas in the
said Compound are either sold or given out on rent to
third parties.
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5 December 2023
13. Petitioners have also took a defence in the Written
Statement that they are merely engaged in trading business and
that they do not undertake manufacturing activity. They also
stated that Petitioner No.3-Mr. Amit Omsingh Parmar had
rented out his Powerloom to independent tenant on rental
basis. Petitioners thus sought to suggest that Respondent may
have been engaged by the Tenant operating the Powerloom. If
that was the case, Petitioners ought to have produced some
documents alongwith the petitions to suggest that Respondents
were indeed employees of other employers. It is difcult to
accept that there is total absence of employer-employee
relationship between the Petitioners and Respondents.
14. The Labour Court has awarded both backwages and
continuity of service to the Respondents w.e.f. 13 November
2016. The amount of 100% backwages are refected in
Tehsildar's Recovery Certifcate as under :
Sr. Name of Workmen Date of Recovery Amount
No. Certifcate demanded
1. Yogendra Palakdhari 30.01.2020 Rs.4,20,000/-
Gautam
2. Ramashish Bajan Ram 01.11.2022 Rs.7,52,402/-
3. Jayprakash N. 04.10.2022 Rs.8,03,078/-
Khushwaha
4. Guddub Suryabali 23.08.2022 Rs.6,36,002/-
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Prasad
15. The testimony of the Respondents about non-
employment during the intervening period has gone
unchallenged on account of absence of the Petitioners in
proceedings due to refusal of permission to engage Legal
Practitioner. One option available is to remand the References
for grant of opportunity to Petitioners to lead evidence both to
establish non-existence of employer employee relationship and
also to contest claim of Respondents of not being gainfully
employed. By now a period of 7 long years have elapsed from
the dates of termination of Respondents' services. The
relationship between the parties are now strained on account of
pending litigation and especially in view of Respondents
requiring to invoke the machinery of Tehsildar for recovery of
Backwages. In such circumstances, reinstatement of
Respondents in services of Petitioners may not be appropriate.
Respondents may have, by now, secured some form of
employment. In these circumstances, in my view, award of
lumpsum compensation would be the appropriate remedy
instead of directing reinstatement of the Respondents with
Backwages. Award of full Backwages is also not be justifed in
the facts and circumstances of the case. Considering the
amounts of backwages refected in the recovery certifcates, the
backwages till date would be approximately about Rs. 9,00,000.
Therefore, it would be appropriate to award lumpsum
compensation of Rs. 6,00,000/- to each of the Respondents in
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5 December 2023
lieu of reinstatement and backwages. It appears that some
deposits are already made by Petitioners as under:
Name of Respondent Writ Petition Amount deposited
No.
1. Yogendra Palakdhari 12673/2022 Rs.4,20,000
Gautam With Tehsildar full
amount of recovery
certifcate
2. Ramashish Bajan Ram 14766/2022 Rs.3,76,200
In Labour Court 50%
amount of recovery
certifcate
3. Jayprakash N. 12674/022 Rs.4,01,538
Khushwaha In Labour Court 50%
amount of recovery
certifcate
4. Guddub Suryabali 12672/2022 Rs.3,18,001
Prasad In Labour Court 50%
amount of recovery
certifcate
16. Respondents can be permitted to withdraw the
amounts deposited with Tehsildar or Labour Court, as the case
may be, and Petitioners shall pay the balance amount of
compensation to Respondents directly.
17. Accordingly, I proceed to pass the following order:
(i) The Awards dated 29 June 2019 in Reference (IDA)
No. 111 of 2017 and 110 of 2017 as well as Awards
dated 13 December 2019 in Reference (IDA) No. 112 of
2017 and 109 of 2019 are modifed to the extent that
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Petitioner shall pay to each of the Respondents a
lumpsum compensation of Rs. 6,00,000/- in lieu of
reinstatement and backwages.
(ii) Save and except the lump sum compensation so
awarded, Respondents shall not be entitled to any other
benefts from Petitioners.
(iii) Respondents are permitted to withdraw the amounts
of compensation deposited with Tehsildar or the Labour
Court, as the case may be.
(iv) Petitioners shall pay the balance amount of
compensation directly to Respondents within 4 weeks.
18. With the above directions, the Writ Petitions are
disposed of. There shall be no order as to costs.
SANDEEP V. MARNE, J.
