Dismissed

M/S. Val Colour Arts v. Sandesh Ramesh Bhosle

Bombay HC7 Aug 2014WP/1361/2008

Case brief

AI extract

What is this about?

High Court upheld orders reinstating an employee terminated without cause. The Court rejected employer pleas regarding limitation, lack of privity of contract, and non-qualification of the employee as a workman, relying on admitted evidence. Back-wages were awarded against employer.

What did the court decide?

Petitioner's writ petition dismissed with directions to pay deposited amount to employee within four weeks.

M/S. Val Colour Arts Vs Sandesh Ramesh Bhosle — Pension and Retirement Benefits | Bombay HC (2014)

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JUDGMENT WP-1361-08

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 1361 OF 2008

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M/s. Val Colour Arts ] D-15, 3^rd floor, Gracious ] Mahakali Caves Road, ] Andheri (E), Mumbai 400 093 ] 2. Mr. Valentine D'mello ] Proprietor ] D-15, 3^rd floor, Gracious ] Mahakali Caves Road, ] Andheri (E), Mumbai 400 093 ] ..Petitioner

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versus

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Mr. Sandesh Ramesh Bhosle, ] Bhosle Chawl, ] Sambhaji Nagar No. 3, Akurli Road ] Kandivali (E), Mumbai 400 001 ] ..Respondent

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Mr. P. N. Anaokar and Mr. R. D. Oak for Petitioners. Mr. R. S. Peerzada for Respondent.

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CORAM : M. S. SONAK, J.

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Judgment reserved on : 31 July 2014 Judgment pronounced on : 07 August 2014

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JUDGMENT :-

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1] The petitioner (employer) invokes Article 226 of the Constitution of India to challenge the following:

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(i) Judgment and order dated 11 May 2007 passed by the First Labour Court, Mumbai, in Complaint (ULP) No. 346 of 2003;

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(ii) Judgment and order dated 6 February 2008 passed by the Industrial Court, Mumbai, in Revision Application (ULP) No. 135 of 2007.

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2] By the aforesaid two orders (hereafter referred to as ' the impugned orders ') the employer has been directed to reinstate the respondent (employee) with continuity of services from 9 April 2003 and back-wages to the extent of fifty percent. The impugned orders hold and declare that the employer has engaged in unfair labour practices under Items (a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('said Act').

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3] The case of the respondent – employee is that he was employed by the employer, w.e.f. 12 June 1999 under the designation 'site supervisor' on a monthly salary of Rs.5,000/-. Despite completion of blemish-less service of around four years, the employer, without assigning any reasons, orally terminated the services of the employee w.e.f. 9 April 2003. This, according to the employee constitutes unfair labour practice in terms of Items 1(a), (b), (d), (f) and (g) of Schedule IV to the said Act.

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4] Per contra, the case of the employer was that the respondent

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– employee was not at all 'regularly employed' but may have been engaged for employment at a particular site until completion of a particular painting or civil works contract. In any case, the employee being 'site supervisor' did not answer the definition of 'workman' in terms of Section 3(5) of the said Act read with Section 2(s) of the Industrial Disputes Act, 1947. On these grounds, the employer questioned the very applicability of the said Act to the case of the employee. The employer also submitted that there was delay of about 30 days in filing the complaint under the said Act and in the absence of any application for condonation of delay, the Labour Court ought not to have entertained the complaint. The employer denied practicing any victimization or unfair labour practice and submitted that services of the employee were discontinued consequent upon the conclusion of the contract at the site to which the employee was engaged. For all these reasons, the employer submitted that the complaint made by the employee under the provisions of the said Act deserved dismissal.

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5] In support of the Complaint (ULP) No. 346 of 2003, the employee examined himself and was duly cross-examined by the learned Advocate for the employer. In his deposition, the employee

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produced several documents, including in particular a certificate dated 27 February 2002 issued by the employer which states that the employee was working with the employer “ for the past two and half years as a 'site supervisor ' ”. The certificate also states that the salary of the employee as on the date of issuance of the certificate was Rs.4,700/- gross per month.

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6] The employer Mr. Valentine D'mello examined himself and was duly cross-examined by the learned Advocate for the employee. In his deposition, the employer admitted the issuance of certificate dated 27 February 2002 and also stated that the contents thereof are correct. The employer, however proceeded to state that the employee was not continuously working with him for two and half years but the certificate was issued only to enable the employee to obtain loan from the bank.

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7] The Labour Court at Mumbai vide judgment and order dated 11 May 2007 has declared that the employer has indulged into unfair labour practice under Items 1 (a), (b), (d), (f) & (g) of Schedule IV to the said Act and on the said basis directed the reinstatement of the employee with continuity of services from 9 April 2003 together with back-wages to the extent of fifty percent.

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8] The employer preferred revision application (ULP) No. 135 of 2007 before the Industrial Court to question the judgment and order dated 11 May 2007. However, by judgment and order dated 6 February 2008, the Industrial Court has dismissed the revision application. As noted earlier, the present petition is directed against the judgments and orders dated 11 May 2007 and 6 February 2008.

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9] Mr. P. N. Anaokar, learned counsel for the petitioner made the following submissions in support of this petition:

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(A) That the original complaint (ULP) No. 346 of 2003 before the Labour Court was barred by the law of limitation as contained in Section 28 of the said Act. There was no application / prayer seeking any condonation of delay. In such circumstances, the Labour Court acted without jurisdiction in entertaining the original complaint. The orders made by the Labour Court and the Industrial Court are consequently without jurisdiction and deserve to be set aside.

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( B) The material on record would indicate that there was no ' privity of contract ' as between the employee and the employer. The employee was engaged intermittently, as and when there were contracts of painting and civil works to be executed at particular sites. The burden of establishing ' employer employee relationship '

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was upon the employee, which burden the employee has failed to discharge.

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(C) In any case, the material on record establishes that the employee was 'site supervisor' drawing salary of more than Rs.1,600/- per month. There are no pleadings or for that matter evidence which would establish, that the employee answered the definition of 'workman' within meaning assigned to this term under Section 3(5) of the said Act read with Section 2(s) of the Industrial Disputes Act 1947. In the absence of any pleading or material with regard to such 'jurisdictional fact', the impugned orders are clearly without jurisdiction and unsustainable.

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(D) From the year 2006-2007, the employer's unit / activity has closed down. Despite such categorical plea, the revisional court has erred in upholding the order of reinstatement. Accordingly, the order directing reinstatement requires to be reviewed in the wake of subsequent development of closure.

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(E) In absence of pleadings and proof that the employee was not gainfully employed, the two courts concurrently erred in the award of back-wages to the extent of fifty percent. The approach of the two courts is contrary to the law laid down by the Supreme Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors .¹

1 2013 (10) SCC 324

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10] Mr. Peerzada, learned counsel for the respondent submitted that the employer had raised a patently false defence that there was no regular work in the establishment and that the employee was engaged only at a particular site and until completion of a particular contract. The defence is falsified by the certificate dated 27 February 2002 issued by the employer. Further, Mr. Peerzada submitted that the employee, was only designated as 'site supervisor', but in fact was engaged in collection of material from traders and delivery of the same to the contract sites. In such circumstances, it was submitted that the employee clearly answers the definition of 'workman' in terms of Section 3(5) of the said Act read with Section 2(s) of the Industrial Disputes Act, 1947. Further, Mr. Peerzada submitted that there is ample material on record which would establish that the employer was a going concern employing number of workman and having number of contracts relating to painting and civil works. This, according to Mr. Peerzada was evident from the documentary evidence produced on record in the course of the evidence. Finally, Mr. Peerzada submitted that the termination of the employee's services without the due process of law constituted unfair labour practices in terms of the said Act and the concurrent findings of fact recorded by the Labour Court and the

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Industrial Tribunal, ought not to be interfered with by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.

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11] Having heard the learned counsels for both the parties and perused the material on record, the rival contentions as aforesaid, now fall for determination.

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12] There is no merit in the first submission of Mr. Anaokar, that the original complaint was barred by law of limitation or for that matter that there was no prayer for condonation of delay. Records disclose that the services of the employee were orally terminated on 9 April 2003. Soon thereafter by notice dated 19 April 2003, the employee protested against such termination and demanded reinstatement with full back-wages and continuity of service. This notice was replied to by the petitioner on 3 May 2003 denying 'privity of contract '. The complaint came to be filed sometime in th month of July 2003. If the period of limitation is counted from the date of termination i.e. 9 April 2003, then there is delay of about 30 days in filing the original complaint. However, if the period of limitation is counted from the date of receipt of reply dated 3 May 2003, by which the petitioner not only confirmed the factum of

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termination effected orally from 9 April 2003 but further declined reinstatement, then the original complaint can be said to have been filed within the prescribed period of limitation.

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13] Further, there is no dispute that the Labour Court has been vested with the powers to condone delay in filing complaint provided of course, good and sufficient cause is made out for explaining such delay. In the present case, the termination of service was not by means of any letter or notice. The services of the employee came to be orally terminated. Within ten days from the date of such termination, the employee addressed a notice demanding reinstatement. The employer, vide reply dated 3 May 2003, for the first time disputed that the employee was ever regularly employed by him and declined reinstatement. All this is specifically set out in the complaint and not seriously disputed in the reply filed by the employer. In paragraph 8 of the complaint, the employee, after setting out such circumstances has submitted that there is no delay in filing of the complaint and in case the Labour Court comes to the conclusion that there is any delay in filing of the complaint, then the same be condoned. Thus, it is clear that there is not only explanation / sufficient cause for the so-called delay of 30 days in filing the complaint, but further there is a specific prayer

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seeking condonation thereof. Merely because such prayer is not contained in the ultimate paragraph which contains the prayer clauses, there is no warrant to accept the contention that the Labour Court acted without jurisdiction in entertaining the complaint. Clearly, therefore, there is no merit in the first contention raised by and on behalf of the petitioner.

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14] The employer, both in his reply dated 3 May 2003 to the employee's notice seeking reinstatement and in the reply filed before the Labour Court in response to the original complaint came up with the defence that there was no ' privity of contract ' as between the employer and the employee. It was the case of the employer that he is a small time painting contractor and would employ workers, as and when he was awarded contracts. Accordingly, the employer contended that the employee was not engaged in any work which was of the permanent or perennial nature but rather the work carried out by him was of an intermittent nature. In these circumstances, it was the case of the employer that the employee was not engaged on a regular basis, but rather engaged at a particular site for execution of a particular contract. The burden of establishment ' employer employee relationship ' was squarely upon the employee, which burden the employee has failed

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to discharge.

15] Learned counsel for the petitioner is right in his submission that the burden of establishing ' employer employee relationship ' is upon the employee. In the present case however, the material on record indicates that the employee has suitably discharged such burden. As such, there is no merit in the submission that there was no ' privity of contract ' as between the employer and the employee.

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16] In the aforesaid regard, a reference is required to be made to certificate dated 27 February 2002 issued by the employer certifying that the employee was working in the employer's organization for a period of two and half years as ' site supervisor '. The employer, in his deposition, when confronted with the certificate dated 27 February 2002 has admitted that the contents of certificate were correct and further the same were written by him. The employer, in terms stated that he does not dispute the correctness of the letter / certificate dated 27 February 2002. In the same breath however, the employer proceeded to state that the employee was not continuously working with him for two and half years and that the certificate was issued to enable the employee to obtain a loan from the bank. This is contradiction in terms. There

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was no reference to such justification in the written statement filed in response to the employee's claim statement. Perhaps, it had escaped the employer's memory that he had issued such certificate on 27 February 2002, at the stage when the defence of absence of ' privity of contract ' was raised in the reply dated 3 May 2003 and the written statement filed in response to the employee's claim statement. The certificate, contents of which have been admitted as correct by the employer, completely belie the defence as to absence of ' privity of contract ' or the non existence of 'employer employee relationship '. Accordingly, there is no merit in the contention urged by and on behalf of the petitioner that there was no ' employer employee relationship '.

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17] The next issue to be considered is whether the employee can be regarded as 'workman' within meaning assigned to this term under Section 3(5) of the said Act read with Section 2(s) of the Industrial Disputes Act, 1947. Section 3(5) of the said Act, reads thus:

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“(5) “employee”, in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of section 3 of the Bombay Act, and in any other case, means a workman as defined in clause (s) of Section 2 of the Central Act,

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and a sales promotion employee as defined in clause (d) of section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976]”

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Section 2(s) of the Industrial Disputes Act, reads thus: 2.(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment had led to that dispute, but does not include any such person-

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(i) who is subject to the Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957) or;

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(ii) who is employed in the police service or as an officer or other employee of a prison, or

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(iii) who is employed mainly in a managerial or administrative capacity, or

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(iv) who being employed in a supervisory capacity, draws wages exceeding [ Ten Thousand rupees ] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]”

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18] There is no dispute that upto the year 2007, an employee,

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who being employed in the supervisory capacity, drawing wages exceeding Rs.1,600/- per mensem or exercises, either by nature of the duties attached to the office or by the reason of powers vested in him, functions mainly of managerial nature, was excluded from the definition of 'workman' under Section 2(s) of the Industrial Disputes Act, 1947. Thus, on the date when the employee's services came to be terminated i.e. on 9 April 2003, an employee employed in the supervisory capacity and drawing wages exceeding Rs.1,600/- per mensem could not have claimed to be a 'workman' within meaning assigned to this term under Section 2(s) of the Industrial Disputes Act, 1947 and consequently 'workman' in terms of Section 3(5) of the said Act.

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19] In the aforesaid circumstances, learned counsel for the petitioner submitted that even if the employee is held to be 'site supervisor', since the salary drawn by him was in excess of Rs.1,600/- per mensem, the employee could never be held to be a 'workman' for the purposes of the said Act. Consequently, the very entertainment of complaint under the provisions of the said Act was without jurisdiction.

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20] Consequent upon oral termination of the employee w.e.f. 9

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April 2003, the employee caused a legal notice dated 19 April 2003 to be served upon the employer. The employer, in his response dated 3 May 2003 alleged that there was no ' employee employer relationship' . At this stage, there was no dispute raised as to the status of the employee i.e. whether the employee answered the definition 'workman' under the said Act or not. Though there was no dispute raised, the workman in his complaint to the Labour Court under the provisions of the said Act made a specific averment that he was filing the complaint in his capacity as an 'employee' as defined under Section 3(5) of the said Act read with Section 2(s) of the Industrial Disputes Act, 1947. Further, in the complaint, the employee stated that he was ' designated' as site supervisor and was asked to do the work at respective sites where the work of the employer was going on.

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21] Therefore, it cannot be said that there were no pleadings whatsoever to the effect that the employee was indeed a ' workman ' as defined under Section 3(5) of the said Act read with Section 2(s) of the Industrial Disputes Act, 1947. In fact, in the very first paragraph of the complaint, there was an assertion to the said effect. Further, in the complaint, the employee has not admitted that he was a 'site supervisor' but has merely stated that he was

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designated as a 'site supervisor'. The complaints under Labour Legislations ought not to be construed pedantically or like pleadings before a civil court. Some latitude is due, particularly in case of a complaint by employee complaining an unfair labour practice by his employer. Besides, this is not a case where any prejudice as such can be said to have occasioned to the employer, on account of lack of pleadings. In the revision application preferred by the employer to the Industrial Court, there was no complaint as to any lack of pleadings. In such circumstances, there is no merit in the contention of the petitioner in that there was no pleadings with regard to the employee being a ' workman ' under the said Act.

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22] The next question which arises is whether the employee has in fact established that he answers the definition of 'workman' under the said Act. This is basically a question of recording a finding of fact upon appreciation of evidence on record. In exercise of powers of judicial review, this Court is not expected to re-appreciate the evidence on record, as if it were the court of first instance or for that matter a court exercising appellate jurisdiction. As long as the finding of fact is supported by some evidence on record there is no question of interference with such finding of fact, in the exercise of

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powers of judicial review. Thus, for the petitioner to succeed, the petitioner has to make out a case that the finding of fact is vitiated by perversity, non advertence to relevant and material evidence or taking into consideration of evidence which is irrelevant or extraneous.

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23] In the present case, the employee, in his deposition before

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the Labour Court has stated that though he was designated as a ' site supervisor', he was asked to do work which was more or less like that of a delivery man. The employer used to place orders for materials as per requirements at various sites and the employee used to collect such materials from traders / shops as per the instructions of the employer and deliver them at various sites. The employee has further deposed that he was not at all concerned with the progress of work or the supervision of the same at various sites. There was no subordinate staff working under him and consequently there was no question of his exercising any supervisory functions. The employee stated that he was required to remain at the work site at the stage of commencement of the work and it was not his function to guide the workman at any particular site. He denied that he was working at any particular site and stated that he was required to visit 5 to 6 sites per day.

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24] The employer, in his deposition asserted that the employee was not 'regularly employed' by him. In any case, the employee was a 'site supervisor ' who used to get the work done from the workers subordinate to him. The employer denied having appointed any Mukadam at the site but admitted a suggestion that he had employed Deepak Thapa, Deepak Tambe, Prem Thapa, Bhanu Thapa and Mohommed, who were senior workers and were expected to take care of the workers working at the site.

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25] Based upon the aforesaid parole evidence together with the documents produced on record, the Labour Court has recorded a finding of fact that notwithstanding the designation accorded to the employee, the employee was in fact a 'workman' as defined under the said Act. This finding of fact has been confirmed by the Industrial Tribunal. The finding of fact cannot be said to be perverse or contrary to the weight of evidence on record or for that matter consideration of irrelevant or extraneous evidence. The two Courts have rightly taken note of the false defence urged by the employer, in that the employee was not ' regularly employed'. There is accordingly no merit in the third contention raised by and on behalf of the petitioner.

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26] Learned counsel for the Petitioner however submitted that the employee in the course of his cross-examination, had specifically admitted that he used to give instructions to the Mukadam at the site and from this it is clear that the employee was indeed a 'site supervisor' and therefore not a 'workman' under the said Act. This contention was based upon the response of the employee to the question as to whether he was required to guide the workman at the site. The employee replied that he was not required to guide the workman at the site but stated that one Mukadam was also posted at the site, to whom he used to give instructions.

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27] Based upon such stray response, which is obviously being read in isolation and out of context, it is not possible to conclude that the concurrent finding of fact stands vitiated. The response, obviously has to be considered along with the other statements and evidence on record. The employee has consistently deposed that he used to deliver materials from traders and shops at various sites where the work was in progress. Similarly, he has also deposed that he was delivering cheques at the sites. Most importantly, the employee has deposed that he was not working at any one particular site, but was required to visit 5 to 6 sites per day. If his

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evidence is therefore considered in its entirety, there is no perversity in the finding of fact concurrently recorded by two courts.

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28] The next contention is that the employer's unit / activity has closed down since the year 2006 -2007. Admittedly, such contention was neither raised nor could have been raised at the stage when the Labour Court upheld the employee's complaint vide its judgment and order dated 11 May 2007. This contention was raised by the petitioner in the revision application preferred before the Industrial Court. The contention is contained in ground (i), which reads thus:

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“ (i) The learned Judge, Labour Court in the teeth of the fact that there was no work available and the Applicant has closed down its activities ought not to have granted reinstatement with full back-wages and continuity of service.”

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29] In the first place, there is no question of raising such contentions in the revision application, without seeking leave of the Industrial Tribunal. Secondly, the contention as raised is completely vague and bereft of any details or supporting material. In such circumstances, the revisional court rightly refused to entertain the same or modify the judgment and order made by the Labour Court upon the said ground. Secondly, in the present petition as well apart from bald statement, the petitioner has provided no details as

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to the basis upon which he states that his activity has closed down. It is pertinent to note that the Petitioner projected himself to be some small time contractor engaged in painting and civil works. However, from the material produced on record by the employee, which was not seriously disputed by the petitioner, it is clear that the petitioner was not some small time contractor as portrayed by him. In any case, there is no question of adjudicating upon disputed question of fact as to whether the petitioner has indeed closed down his activity or not in the present proceedings. For all these reasons, there is no merit in the petitioner's fourth contention.

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30] On the aspect of back-wages, learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in the case of Deepali Surwase (supra), including in particular paragraph 33 (iii) thereof, which reads thus:

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“(iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he / she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee / workman was gainfully employed and was getting wages

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equal to the wages he / she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.”

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31] An analysis of the aforesaid indicates that the workman who is desirous of getting back-wages is required to either plead ' or at least make a statement before the adjudicating authority or the Court of first instance that he / she was not gainfully employed or was employed on lesser wages .' Thereafter, if the employer wants to avoid payment of full back-wages, then it has to plead and lead cogent evidence to prove that the employee / workman was gainfully employed and was getting wages equal to the wages he / she was drawing prior to the termination of the service.

¶139

32] In the present case, it is true that in the complaint filed by the employee there are no pleadings that the employee was not gainfully employed or was employed on lesser wages. However, it needs to be noted that in this case the termination was effected on

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9 April 2003 and the complaint has been filed in July 2003. Further, as required in the case of Deepali Surwase (supra), the employee in his deposition before the Court of first instance i.e. the Labour Court has very clearly made a statement that as on the date of deposition i.e. 21 March 2006 he was still unemployed and that he could not get suitable employment inspite of making serious efforts. Further, the employee in his cross-examination has stated that he did make attempts with private contractors and on the date of crossexamination i.e. on 5 May 2006 he was working with one builder as an office boy and earning Rs.2,500/- per month. The employee volunteered and stated that even that work has been discontinued.

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33] The Labour Court, in fact relying upon the statement of the employee that he was employed as an office boy for sometime and drawing salary of Rs.2,500/- per month, has declined 50% backwages to the employee. Accordingly, it cannot be said that the award of back-wages suffers from any jurisdictional error or in the award of the same, the principles laid down by the Supreme Court in the case of Deepali Surwase (supra) have been breached. There is accordingly no merit in the last contention urged by and on behalf of the petitioner.

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34] This Court by its order dated 11 March 2008 had granted stay

¶149

of the operation of the impugned orders. In the said order, this Court had taken note of the circumstance that amount equivalent to fifty percent back-wages then accrued, had been deposited by the petitioner before the Industrial Court and had issued directions that the said amount be invested in fixed deposit scheme of any nationalized bank until further orders to be passed by this Court. Now, that the present petition is being dismissed, the employee shall be entitled to receive the amount deposited and invested in the Industrial Court, together with interest as may have accrued thereupon.

¶150

35] In the aforesaid circumstances, the Rule made in this petition is hereby discharged. The Industrial Court is directed to pay to the respondent-employee the amounts deposited by the petitioner and invested by the Industrial Court together with interest that may have accrued upon said amount within a period of four weeks from today.

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36] In the facts and circumstances of the present case, there shall be no order as to costs.

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(M. S. SONAK, J.)

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Chandka

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M/S. Val Colour Arts v. Sandesh Ramesh Bhosle

Case brief

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M/S. Val Colour Arts v. Sandesh Ramesh Bhosle

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