Dismissed

M/S V.L.T. Cargo Movers Pvt. Ltd. , Mumbai v. Shri. Ajitkumar S. Puri and Anr.

Bombay HC6 Oct 2008APP/713/2010

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging a writ petition judge's rejection of a plea that a terminated employee was not a workman. The court held that the Labour Court's finding that the respondent remained a workman was supported by evidence and the company failed to prove otherwise.

What did the court decide?

The Letters Patent Appeal is dismissed with parties to bear their own costs.

M/S V.L.T. Cargo Movers Pvt. Ltd. , Mumbai Vs… — Labour and Industrial Disputes | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODG. NO.382 OF 2008

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WRIT PETITION NO.6 OF 2008

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M/s. V.L. T. Cargo Movers Pvt. Ltd.) 50, Sheriff Devji (Chakala) Street, ) Mumbai – 400 003.

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Mumbai – 400 003. ).. Appellant Versus 1. Shri Ajitkumar S. Puri, ) L/4/S, Laxmiram Bldg., ) C.H. S. Ltd., Bangur Nagar, ) Link Road, Goregaon (West), ) Mumbai – 400 090. ) 2. The Presiding Officer, ) IIIrd Labour court, having ) his office at Ground Floor, ) Administrative Building, ) Bandra (E), Mumbai. ).. Respondents --

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Shri Lancy D'Souza along with Shri V.M. Parkar for the Appellant.

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Ms N.D. Buch along with Shri S.R. More for the Respondents.

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CORAM: SWATANTER KUMAR, C.J.& A.P. DESHPANDE, J

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RESERVED ON : 16TH SEPTEMBER, 2008 PRONOUNCED ON: 8TH OCTOBER, 2008

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JUDGMENT : ( PER SWATANTER KUMAR, C.J.)

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The IIIrd Labour Court, Mumbai, vide its Award dated 7^th May, 2007 answered the reference in favour of the workman and directed the Company to reinstate the workman with full back wages and continuity of service with all consequential benefits. The correctness and legality of the award was challenged by the Company by filing a Writ Petition No.6 of 2008 before the learned Single Judge. The learned Single Judge, after detailed discussion, found that the Petitioner in the Writ Petition had failed to make out a case for interference and thus rejected the writ petition with no order as to costs. In the present Appeal, the Company-Appellant has taken an exception to the order of the learned Single Judge dated 7^th April, 2008.

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Necessary facts giving rise to the present Appeal are that the workman was employed as a Senior Clerk in the Company since 1979 where he continued to serve till his services were terminated on 30^th January, 2003. At the relevant time, he was drawing a salary of Rs.5,700/- per month. The Director of the Company had come to the office where the

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workman was working and had informed him that because of slack in business, services of certain workers were required to be retrenched. While insisting the workman to resign, a threat was extended that in case he failed to do so, he would face problems. On 7^th January, 2003, a police officer arrested the workman while he was on duty in respect of a complaint lodged by the Company and with effect from 30^th January, 2003, he was not permitted to join the dutie. The same was tantamount to terminating the services of the workman by the Company by oral direction. The workman challenged the said termination. He claim that his service record was unblemished; he had completed 240 days in each year of his service and his termination from the service was violative of the provisions of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as the “Act”).

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The appropriate government made a reference, which was contested by a Company by filing written statement to the claim of the workman. In the written statement, the company disputed various facts and also raised an objection that the Respondent in the appeal was not a workman within the meaning

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of Section 2(s) of the Act as he was doing managerial and supervisory work and that he stopped reporting his duty at his own. Thus, there was no violation of statutory provisions.

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As already noticed, the Labour Court decided the issues in favour of the workman and also found that the Respondent No.1 was a `workman’ within the meaning of definition of the term “workman” under Section 2(s) of the Act and while disbelieving the case put forth by the Company granted relief to the workman. The learned Single Judge elaborately discussed all the contested issues. The core issue raised even in the writ petition was whether the workman satisfies the ingredients specified under Section 2(s) of the Act or not. After appreciating the evidence produced on record, the learned Single Judge noticed as under:-

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“16. The 1^st respondent filed his affidavit in lieu of examination-in-chief. He stated that he was employed by the petitioner as a Senior Clerk since May, 1979. He deposed that at the instance of Mr. Vijaykumar Banga who had called him to his cabin he tendered a resignation from the employment in the month of December, 2002 as he was informed that unless resignation was tendered, he would be falsely implicated in a police case.

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In the cross-examination of the 1^st respondent his attention was invited to certain documents which were signed by him. He admitted that he has signed the said documents as a Director as per the directions of the petitioner. He also admitted that he had signed a complaint addressed to police station in his capacity as a Director. He stated that he never protested while signing the said documents as a Manager or Director though he signed the same at the instance of the petitioner.

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The learned Judge has recorded a finding of fact that Articles of Association of the company were not produced. The learned Judge noted that the 1^st respondent was required to put his signature on the muster roll as is reflected from the admitted position. Though the petitioner claims that the 1^st respondent was a Director, admittedly he was never invited to attend Board Meetings. The learned Judge has referred to the case law on the point. After considering the oral evidence adduced by the petitioner as well as by the 1^st respondent, there is a finding of fact recorded that the 1^st respondent was a workman as the petitioner could not adduce any evidence to prove the assertions made by the petitioner. Therefore, it is very difficult to accept the contention of the petitioner that the 1^st respondent was not a workman within the meaning of section 2 (s) of the said Act of 1947.”

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From the bare reading of the above findings recorded

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in the judgment, it is clear that the learned Single Judge has accepted the finding of fact recorded by the Labour Court based upon appreciation of evidence. We are unable to accept the contention raised before us that the findings recorded are

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perverse and/or contrary to the evidence on record. This Court while entertaining the Letters Patent Appeal will not disturb a finding merely on the ground that another view was possible. Besides this, we may also notice that the witness Shri Vijay Kumar Banga, Director of the Company, while being cross examined before the Labour Court, admitted that no appointment letter was issued to the Respondent No.1/workman appointing him as the Director or even Manager-cum-Director. He also admitted that the Respondent No.1 used to take directions from the witness. He categorically admitted that “The second party workman was never asked to attend the meeting of Board of directors”. The Labour Court in its award also noticed conflicting description of the status of the workman reflected in the documents from time to time. In Exhibit-7, the workman was described as the Manager. In Complaint (ULP) No.341 of 2001 filed at Exhibit C-8 before the Court the workman had signed as the Director of the Company while in Exhibit C-10 (FIR) he was again described as the Manager and in Exhibit C-14 he was described as the Supervisor/Regional Manager.

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A specific objection has been taken by the Company in its reply that the Respondent was not a workman within the meaning of Section 2(s) of the Act. The onus thus was upon the Company as the workman had already discharged his onus. The Company has miserably failed to satisfactorily discharge its onus in regard to its plea/objection. Nature of duty of the Respondent No.1 was one of the basic aspects which the Company alone could have proved before the Court. The Appellant is the Private Limited Company and thus is bound by all the provisions and the law applicable to the Private Limited Company under the Companies Act as well as other allied Laws. The best evidence was withheld by the Company, as it did not produce the minutes book of the Company or Register of the Board of Directors showing that the Respondent was and/or had acted as the Director of the Company. The Company also could not explain what functions/duties were assigned to the Respondent. Even regarding this aspect, the Company failed to discharge it onus inasmuch as the document produced by it reflected a conflicting stand, as noticed above. In these circumstances, and particularly in view of the fact that the learned Single Judge has exercised discretion in consonance

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with the settled principles of law, we see no reason to interfere with the impugned judgment. Resultantly, the appeal is dismissed, however, leaving the parties to bear their own costs.

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CHIEF JUSTICE

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A.P. DESHPANDE, J

M/S V.L.T. Cargo Movers Pvt. Ltd. , Mumbai v. Shri. Ajitkumar S. Puri and Anr.

Case brief

What is this about?

What did the court decide?

M/S V.L.T. Cargo Movers Pvt. Ltd. , Mumbai v. Shri. Ajitkumar S. Puri and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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