Niskar Jena vs Md. Nasim Akhtar & Ors
2023 Latest Caselaw 107 Cal

Item no. 08 (Monthly List)


                IN THE HIGH COURT AT CALCUTTA
                             CIVIL APPELLATE JURISDICTION
                                    APPELLATE SIDE

Present:
The Hon'ble Justice T.S. Sivagnanam
              And
The Hon'ble Justice Hiranmay Bhattacharyya


                                      FMA 357 of 2019

                                      Niskar Jena
                                            vs.
                                 Md. Nasim Akhtar & ors.


Appearance:
For the Appellant            :   Mr. Nayan Rakshit

For the Respondents          :   Mr. Soumya Majumdar

Mr. Victor Chatterjee

Heard on : 04.01.2023

Judgment on : 04.01.2023

T.S. Sivagnanam J.:

This intra court appeal has been filed by the third

respondent in W.P. 11483(W) of 2015, is directed against the order

dated 10.06.2016 passed in the writ petition being W.P. 11483 (W) of

2015 filed by Md. Nasim Akhtar challenging the award passed by the 7 th

Industrial Tribunal, Kolkata in Case no. 14/10(1B)(d) of 2012 dated

30.12.2014. By the said award, the Tribunal had directed the

respondent/writ petitioner to pay a compensation of Rs.2,00,000/-

(rupees two-lacs) to the appellant on the ground that his service was

wrongfully terminated. The learned writ Court by the impugned order

allowed the writ petition and dismissed the claim petition filed by the

third respondent before the 7 th Industrial Tribunal. Aggrieved by such

order, the third respondent has come up before this Court by way of this

appeal.

We have heard learned counsel for the parties elaborately.

The short question which falls for consideration is as to whether the

appellant was an employee of the respondent/writ petitioner and was

there any documentary evidence to prove such employment. In the

absence of such documentary evidence to prove these two factors, the

appellant could not have raised the dispute before the 7 th Industrial

Tribunal.

The respondent/writ petitioner examined himself as OPW1

before the Tribunal and one other employee of the respondent was

examined as OPW 2. In the cross examination of OPW1, he has in no

uncertain terms stated that the appellant has never been an employee

under him and no wages or salary was paid to him but the service of the

appellant was utilized as and when required for the purpose of delivering

the tickets to the customers and collecting money from them. This

evidence of OPW 1 stood corroborated by the evidence of OPW 2, whose

evidence was to the effect that the appellant used to work on daily wage

basis as and when required. The evidence of OPW 2 remained intact

even during cross-examination. The appellant examined himself as PW1

and the only document, which according to the appellant, proof of his

employment is an identity card stated to have been issued by the

respondent/writ petitioner.

There are several decisions wherein it has been held that the

identity card cannot be an evidence of employment as identity cards are

issued for various purposes. In any event, such identity card was

admittedly stated to be valid for three months, even as per the evidence

of PW1. Further, PW 1 has admitted in his cross-examination that he

did not produce any documentary evidence to show that his monthly

wages was Rs. 4500/-. That apart dispute was raised respondent that

the age of the appellant was more than 60 years.

Thus, considering all these documents, the learned writ

Court was of the view that there is absolutely no evidence to prove

employment and, therefore, the Tribunal committed an error in

awarding compensation in lieu of reinstatement of the appellant.

Learned counsel for the appellant places reliance on a

decision of the Hon'ble Supreme Court in the case of Divisional

Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam

reported in 2008 III CLR 588 SC for the proposition that even a part-

time worker would be covered within the definition of Section 2(s) of the

Act. What is important to note in the said decision is the fact that the

workman therein was working under the control and supervision of the

appellant/employer was admitted by all sides. In the said fact situation,

the Hon'ble Supreme Court observed that even a part-time employee,

who is working under the control and supervision of the employer, is a

workman in terms of Section 2(s) of the Act. In our considered view, the

said decision is clearly distinguishable on facts and circumstances and

inapplicable to the case in hand.

Further, reliance was placed on a decision of Hon'ble

Supreme Court in the case of Incharge Officer & Anr. vs. Shankar

Shetty reported in 2010 III CLR 367. This decision was to support the

conclusion of the Industrial Tribunal that compensation can be

awarded instead of reinstatement. There is no quarrel on the said legal

position but what is required to be seen is whether the Industrial

Tribunal was justified in granting compensation instead of

reinstatement in the absence of any tangible evidence to prove

employment of the appellant with the respondent/writ petitioner.

Thus, the learned writ Court was right in holding that the

award of the Tribunal was perverse in the sense that in the absence of

proof of employment, compensation could not have been awarded.

For all the above stated reasons, we find that there is no

ground to interfere with the order passed by the learned writ court.

Accordingly, the instant appeal stands dismissed however without any

order as to costs. Consequently, connected application, if any, stands

disposed of.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)

RP/Amitava (AR. CT.)