Remanded

Wali Ahmed Shareef v. the Assistant Labour Commissioner

Karnataka HC5 Mar 2021WP/7978/2017

Case brief

AI extract

What is this about?

This writ petition was disposed of by remanding the matter back to the Principal District and Sessions Judge, Chikkamagalur. The High Court held that the revisional Court failed to consider essential factual aspects regarding termination of employment and compliance with Section 39 of the Karnataka Shops and Commercial Establishments Act, necessitating a rehearing.

What did the court decide?

The matter was remitted back to the Revisional Court for fresh consideration of factual aspects regarding termination and statutory benefits within six months.

Wali Ahmed Shareef Vs the Assistant Labour… — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO.7978 OF 2017 (GM-RES)

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BETWEEN:

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WALI AHMED SHAREEF S/O.H.M.ABDUL SAMMAD SHAREEF AGED ABOUT 74 YEARS PROP: MALNAD DRIVING SCHOOL BAR LINE ROAD CHIKMAGALUR CITY – 577 101

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... PETITIONER

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(BY SRI PRAKASH M.H ADVOCATE)

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AND:

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THE ASSISTANT LABOUR COMMISSIONER AND THE APPELLATE AUTHORITY UNDER THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT CHIKMAGALUR REGION CHIKMAGALUR – 577 101

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MUMTAZ ALI S/O.M.FAZLUR RASOOL AGED ABOUT 51 YEARS R/AT HOSALLIPETE VILLAGE AND POST VASTARE HOBLI, CHIKMAGALUR TALUK CHIKMAGALUR DSITRICT – 577 101

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... RESPONDENTS (BY SMT SHILPA S.GOGI, HCGP FOR R-1, SRI SHARVAN BHARADWAJ FOR SRI SACHIN B.S, ADVOCATES FOR R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.11.2016 PASSED BY THE PRL.DISTRICT AND SESSIONS JUDGE AT CHIKMAGALUR IN REV.PETITION (S AND DE) NO.1/2016 VIDE ANNEXURE-L AND THE ORDER DATED 29.02.2016 PASSED BY THE ASSISTANT LABOUR COMMISSIONER AND THE APPELLATE AUTHORITY UNDER THE KARNATAKA SHOPS AND COMEMRCIAL ESTABLISHMENT ACT, VIDE ANNEXURE-H, AS ILLEGAL. AND ETC.,

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner has assailed the order dated 18.11.2016 passed by the Principal District and Sessions Judge at Chickmagalur, in Revision Petition (S & DE) No.1 of 2016, vide Annexure-C and the order dated 29.02.2016 passed by the respondent No.1 – Assistant Labour Commissioner and the Appellate Authority under the Karnataka Shops and Commercial Establishment Act, vide Annexure-H.

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Brief facts leading to filing of this petition are as under:

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It is the case of the petitioner that respondent No.2 was working under him as Instructor continuously for a period of ten years. During this period of service the respondent has not paid minimum wages and festival advance, leave with wages and other statutory payments. He was terminated from service or refusal of the work without notice being served.

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Aggrieved by the termination respondent not filed an application before the respondent No.1 under Section 39 of the Shops and Commercial Establishment Act, 1961 (for short ‘the Act’) for a direction to petitioner to pay a sum of Rs.44,333/-. Notice was issued to the petitioner by the respondent No.1 and after considering the materials placed by the parties and submissions of the learned counsel, the Authorized Officer – respondent No.1 directed the petitioner to pay a sum of Rs.37,656/-. Aggrieved by said order passed by the respondent No.1 petitioner preferred revision petition under Section 39 of the Act.

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It was the contention of the respondent No.2 before the Appellate Authority that though he was working regularly for the petitioner as an Instructor and despite having served for more than 10 years, he was terminated from service without giving any notice. It was also contended before the Appellate Authority that the petitioner had not paid the minimum wages and accordingly he claimed a sum of Rs.44,333/- from the petitioner. Respondent No.1 after considering the materials placed before it and evidence recorded, came to the conclusion that Petitioner employed the respondent No.2 and was running traffic school, hence, it has come within the purview of the Act, respondent No-2 was entitle to payment of minimum wages and statutory benefits which is not provided by the petitioner and hence held that the petitioner is liable to pay a sum of Rs.37,656/-.

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Respondent No.1 also held that the contention taken by the petitioner that respondent No.2 himself has stayed back and stopped from continuing to work was negatived as the petitioner has not produced

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any material to show that the respondent No.2 had himself stopped coming to work in the employment of the petitioner.

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The said order of the respondent No.1 was challenged by the petitioner under Section 39 of the Act before the revisional Court. The revisional Court while analyzing the evidence and the material placed before it by the parties came to the conclusion that respondent No.2 was employed as an Instructor and served with the petitioner for more than 10 years and during his tenure in the employment of the petitioner minimum wages and festival advance was not paid prior to refusal to work and also notice of termination was not served on the respondent No.2-Workman by the petitioner. On the basis of these aspects the Revisional Court came to the conclusion that the order passed by the Appellate Authority deserves to be upheld and rejected the contentions of the petitioner and accordingly dismissed the petition filed by the petitioner. Being aggrieved by the dismissal of the said revision petition petitioner is before this Court.

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It is contended by the learned counsel for

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petitioner that the order passed by the Appellate Authority as well as the revisional Court are arbitrary, illegal and the same is not sustainable in law and deserves to be set aside. Learned counsel further contends that the Appellate Authority as well as the revisional Court have not applied their minds as to whether petitioner comes under purviewing of the Act. It is further contended that respondent No.2 has not produced any material before the Court to show that he was terminated or removed from his employment.

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Learned counsel further contends that the fundamental aspect which is required to be considered by the Appellate Authority while entertaining the petition under Section 39 of the Act would be whether there is termination or removal from employment, which has not been considered by the respondent No.1. He further contends that the cause of action for filing the petition under Section 39(3) of the Act would be

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where an employee is removed or dismissed without reasonable cause.

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The important aspect in the said provision would arise only when employer does not reinstate him and on this condition respondent No.2 would be entitled to file an application claiming compensation from the employer. This aspect not being made available or shown before the Appellate Authority with regard to removal or termination from employment, the Appellate Authority ought to have rejected and dismissed the claim made by the respondent No.2.

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Learned Counsel further contends that during the pendency of the proceedings before the Appellate Authority petitioner has given option and made an affirmative statement wherein they have asked respondent No.2 to rejoin employment with the petitioner and as such offer being made for rejoining cause of action would not arise for respondent No.2 to further proceed in the matter as he could have joined the petitioner and continued the service. Therefore,

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learned counsel further contends that the presumption drawn in favour of the respondent No.2 by the Appellate Authority is unsustainable and bad in law. Learned counsel further contends that the Appellate Authority has failed to take into consideration the offer made to respondent No.2 to rejoin the employment of the petitioner.

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Learned counsel for petitioner further contends that the Appellate Authority and revisional Court have not considered the fact that the petitioner does not come within the purview of the Act as he claims that he is a Trainer and serving in the motor vehicle training institute, where training is imparted. As such petitioner would not come within the definition of business as defined or trade in the shop and commercial establishment. Learned counsel further contends that no doubt the petitioner has obtained license to run the driving school as per Central Motor Vehicles Rules 1989, in other words, it is merely for the purpose of imparting training in motor vehicle training. The license obtained

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has nothing to do with the petitioner coming under the purview of shop or establishment under the Act.

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Learned counsel further contends that the Appellate Authority has totally ignored the aspect of maintainability of the claim made by the respondent No.2 and no related material being placed on record to show that respondent No.2 was terminated or removed from the employment of the petitioner, the Appellate Authority has arbitrarily presumed termination of employment of respondent No.2 and also the entitlement of minimum wages and benefits claimed by respondent No.2.

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Learned counsel further contends that the revisional Court has also ignored and mis-directed itself in considering that petitioner comes within the definition of education institution as it is imparting training to motor vehicle training. The revisional Court has elaborately dealt with Section 3 of the Act, and it has negatived the aspect of the petitioner coming within the definition of the Act. Learned counsel further contends

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that the revisional Court has erred that establishment of

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the petitioner comes within the Act and respondent No.2 fulfilled requirements as contemplated under Rule 39(1) & (3) of the Act. Therefore, learned counsel contends that the order passed by both the Appellate Authority and revisional Court is contrary to the Act and also the material facts placed by the respondent before the Appellate Authority. Hence, non consideration of this aspect by the Revisional Court is another ground to set aside the impugned order.

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Learned counsel further contends that awarding of compensation under Section 39(3) of the Act by the Appellate Authority has not been considered in this enactment by revisional Court and thereby revisional Court has committed an error in confirming the order passed by the Appellate Authority. For all these reasons learned counsel further contends that the orders passed by the Appellate Authority as well as revisional Court is not sustainable and the same deserves to be set aside.

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Per contra, learned counsel for respondent

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No.2 contends that respondent No.2 is an employee working under the petitioner for more than 10 years as an ‘Instructor’ and since minimum wages, festival advance and service benefits, etc., are not paid by the petitioner and respondent No.2 was dismissed from service, he is compelled to approach the Appellate Authority claiming compensation for the work and service rendered by him. Learned counsel further contends that that it is not in dispute that respondent No.2 was employed with the petitioner and he had worked for more than 10 years as Instructor. He further contends that sudden removal of the respondent from service of the petitioner is illegal and hence he and approached Appellate Authority for seeking compensation as available to him under the Act.

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Learned counsel further contends that respondent No.2 adduced his evidence and placed material before the Court, based on which the Appellate Authority has rightfully come to the conclusion that respondent No.2 is entitled to minimum wages and

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other statutory benefits, which is applicable to him for the services rendered by him with the petitioner. He further contends that there is illegality committed by the Appellate Authority so also by revisional Court in granting compensation as claimed by him for the services rendered before the petitioner. Therefore, he seeks to dismiss this petition.

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Having heard the learned counsel for petitioner and respondents and having perused the material case papers, it is seen that the respondent No.2 admittedly worked as Instructor with the petitioner in the Driving School run by the petitioner and he was paid salary. Though it was contended by respondent No.2 that he was terminated from service without providing any fresh sufficient notice or statutory notice as contemplated in law, he has not placed any material before Court to show that there is termination of his employment to initiate proceedings under Section 39 of the Act. There are several requirements under the said Section for the employee to claim compensation. These aspects are factual aspects which requires enquiry and

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evidence before coming to conclusion on the merits of the matter.

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The Appellate Authority has not elaborately

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dealt with these aspects, such as, whether termination was actually made and whether there is any material placed before the Authority and as to what was the payment and salary received by respondent No.2 and as to the aspect whether there was any service benefits and statutory benefits that were due to the respondent No.2. Though parties have adduced evidence these materials are not placed before the authorities. However, it has been extensively discussed in the finding given by the revisional Court when the matter was taken up before the revisional Court. The revisional Court has given finding with regard to whether the petitioner would come within the purview of Education Act 1983. But has failed to consider these crucial aspects of whether there is compliance of mandatory requirement under Section 39 of the Act.

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It is submitted by the learned counsel for petitioner and also by the learned counsel for respondents that petitioner is registered under the Shops and Establishment Act is not in dispute. If this aspect is admitted and not denied by the parties, then there is no quarrel with regard to the fact that petitioner would come under the purview of the Act. The first step of the hurdle is crossed and second step would be to decide whether the respondent No.2 would come under Section 39 of the Act to entitle him to the relief claimed in the application filed by him before the Appellate Authority.

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Therefore, these material aspects ought to have been considered by the revisional Court while deciding the matter, which has not been done and these factual aspects have to be addressed and finding would have to be given by the revisional Court. On perusal of the papers, it is seen that the revisional Court has ignored all these aspects, hence these requirements under law and factual aspects require re-look and re-examination.

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I abstain myself to dwelve into merits of the

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case in the interest of betterment of the parties and suffice to say that the matter requires fresh consideration. Hence, matter is remanded to the revisional Court for consideration of all the aforestated aspects on the strength of the material placed by the parties before the Appellate Authority and revisional Authorities to arrive at a finding on the aspects discussed hereinabove. Further, since the matter pertains to the year 2013, it is important to give a direction to the revisional Court to consider and decide this matter on priority. Accordingly, I proceed to pass the following order:

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ORDER

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(1) The matter is remitted back to the Revisional Court, ie., Principal District and Sessions Judge, Chikkamagalur in Revision Petition (S & DE) No.1 of 2016.

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(2) Dispose of the matter on merits of the case by considering a fresh as discussed above.

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(3) The revisional Court shall dispose of the matter within an outer limit of six months from the date of receipt of the copy of the certified copy of the order.

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(4) It is needless to mention that parties shall cooperate with the revisional Court in speedy disposal of the matter.

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(5) All contentions of petitioner and respondent No.2 to be urged before the revisional Court are left open.

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(6) Writ petition is, accordingly, disposed of.

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(7) No order as to costs.

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Sd/JUDGE

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Wali Ahmed Shareef v. the Assistant Labour Commissioner

Case brief

What is this about?

What did the court decide?

Wali Ahmed Shareef v. the Assistant Labour Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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