Shanawax S/O. Srfaraj Ahamed Ummachagi Vs Basheer Ahmed S/O. Nabisab Muddebihal

M/S. HAJI S.R. UMACHAGI & CO. COEN ROAD, HUBLI, REPRESENTED BY ITS MANAGING DIRECTOR/MANAGER, MR. SARFARAJ AHMED S/O. SAYYED TAJUDDIN UMACHAGI, AGED ABOUT 60 YEARS, COEN ROAD, HUBLI, DIST: DHARWAD.

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…RESPONDENTS

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(NOTICE TO R1 IS SERVED; NOTICE TO R2 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE AWARD PASSED BY THE LABOUR COURT HUBLI IN KID NO.46/2006 ON THE FILE OF PRESIDING OFFICER LABOUR COURT HUBLI DATED 14.09.2010, IN SO FAR AS PETITIONERS ARE CONCERNED VIDE ANNEXURE-H AND ETC.

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IN WP NO.65959 OF 2012 (L-TER)

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BETWEEN:

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M/S. HAJI S.R. UMACHAGI & CO. COEN ROAD, HUBLI, REPRESENTED BY ITS MANAGING DIRECTOR/MANAGER, MR. SARFARAJ AHMED S/O. SAYYED TAJUDDIN UMACHAGI, AGED ABOUT 60 YEARS, COEN ROAD, HUBLI, DIST: DHARWAD.

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…PETITIONER

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(BY SRI. RAVI HEGDE, ADVOCATE)

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AND:

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BASHEER AHMED S/O. NABISAB MUDDEBIHAL, AGED ABOUT 50 YEARS, OCC: NIL, R/O. PLOT NO.79 OF BYALIPLOS SADAR SOFA, OLD HUBLI-580024, DIST: DHARWAD.

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MR. SHANAWAZ

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NC: 2025:KHC-D:10913 WP No. 65960 of 2012 C/W WP No. 65959 of 2012

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HC-KAR

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S/O. SRFARAJ AHAMED UMMACHAGI, PARTNER, HAJI S.R. UMACHAGI & CO. COEN ROAD, HUBLI-580020.

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MR. SHAMAJI S/O. SARFARAJ AHAMED UMACHAGI, PARTNER, HAJI S.R. UMACHAGI & CO. COEN ROAD, HUBLI-580020.

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MRS. KALIMUNNISA W/O. SARFARAJ AHMED UMACHAGI HAJI S.R. UMACHAGI & CO. COEN ROAD, HUBLI-580020.

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…RESPONDENTS

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(NOTICE TO R1 IS SERVED; NOTICE TO R2 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE AWARD PASSED BY THE LABOUR COURT IN KID.NO.46/2006 ON THE FILE OF PRESIDING OFFICER LABOUR COURT, HUBLI DATED: 14/09/2010 IN SO FAR AS PETITIONER IS CONCERNED VIDE ANNEXURE-C AND ETC.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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NC: 2025:KHC-D:10913 WP No. 65960 of 2012 C/W WP No. 65959 of 2012

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HC-KAR

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ORAL ORDER

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The present petitions are filed calling in question the order dated 14.09.2010 in KID No.46/2006 passed by the Presiding Officer, Labour Court, Hubli¹ .

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The relevant facts in a nutshell are that the respondent filed an application under Section 10(4-A) read with Section 2(A) of the Industrial Disputes (Karnataka Amendment) Act, 1987² , wherein it was contended that he was employed as a driver by the respondent-Management from 10.02.1989. That on 29.03.2006, when the workman reported for duty, he was informed that he was terminated from his services. It s contended that the refusal of the petitioners to permit the respondent to resume his work is illegal. Hence, he filed an application to declare that the retrenchment of the respondent on 29.03.2006 is illegal, null and void, as also reinstatement and back wages. Originally, the petitioner in WP No.65959/2012 was arrayed

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1 Hereinafter referred to as ‘the Tribunal’

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2 Hereinafter referred to as ‘the Act’

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HC-KAR

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as respondent No.1. Subsequently, the petitioners in WP No.65960/2012 were arrayed as respondent No.1(a) to 1(c) on the ground that they were the partners of respondent No.1, which was a partnership firm. The respondent Nos.1(a) to 1(c) filed statement of objections contending, inter alia, that the respondent No.1(a) to 1(c) are the partners of the respondent No.1. That the petitioner was employed by the father of respondent No.1(a) and 1(b) and the husband of respondent No.1(c), who was neither a partner nor connected with respondent No.1 partnership firm. The firm was arrayed as respondent No.1 who in the objections stated that the workman worked as a driver with the father of respondent No. 1(a) and (b) and that the workman himself did not turn up for work from 20.01.2005. It is further contended that after leaving the employment, the workman has purchased Tata Sumo vehicle to run taxi business on hire basis.

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Consequent to the pleadings of the parties, the

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Tribunal framed 4 issues. The workman himself examined

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HC-KAR

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as WW1 and marked Exhibits W1 to W12. The representative of the first respondent firm was examined as MW2 and a witness as MW1. Exhibits M1 to M6 were marked in evidence. The Tribunal by its order dated 14.09.2010 partly allowed the petition and passed the following order.

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“ORDER

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The petition is allowed.

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The termination order passed by the respondent dated 29.3.2006 is set aside. The respondent-Company is directed to reinstate the petitioner into service within one month from the date of commencement of the award with continuity of service with 30% of back wages.

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Send a copy of this award to the Government for its publication as contemplated under Section 17-A of Industrial Disputes Act 1947.”

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4. Being aggrieved, the present writ petitions are

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filed.

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HC-KAR

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Heard submissions of learned counsel for the petitioner in both the writ petitions. The respondent is served an unrepresented.

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It is the vehement contention of learned counsel for the petitioner that the employee ceased to work from 17.11.1994, as is forthcoming from the endorsement (Annexure-‘F’ and ‘G’ in WP No.65960/2012) issued by the Regional Provident Fund Commissioner. It is contended that the employee merely relied upon the service certificate dated 20.11.1994 issued by the petitioner in WP No. 65959/2005 (Annexure-‘E’ to WP No.65960/2012) and has not produced any other documents to demonstrate that he was in employment as on the date of the alleged refusal to work. Hence learned counsel for the petitioner seeks for allowing of the above writ petitions and granting of the reliefs as sought for.

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The submissions made by the learned counsel for the petitioner in both the petitions have been considered

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HC-KAR

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and the material on record has been produced. The question that arises for consideration is

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(i) Whether the order dated 14.09.2010 passed in KID No. 46/2006 by the Presiding Officer, Labour Court, Hubballi is liable to be interfered with?

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Admittedly the workman was in the employment

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of the firm as on 20.11.94, as is forthcoming from the service certificate, whereunder it is stated that The employee was working as a driver for 5 years. By communication dated 30.01.2008 issued by the Employees' Provident Fund Organization, whereunder a note dated 21.01.2008 has been enclosed, pursuant to a request made for copies of the relevant documents, it is forthcoming that the workman was in the employment of the firm from 01.11.1990 to 19.11.1994. The tribunal noticing the service certificate dated 17.11.94 held that the workman was employed with the respondent. The Tribunal noticing the

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HC-KAR

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contention put forth on behalf of the respondents that the workmen was employed by the father of respondent No.1(a) and (b) has recorded the following findings:

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“ 16. The learned counsel for the respondent has argued that the petitioner was engaged by Mr. Sarfaraz Ahmed Umachagi in individual capacity for driving his own car from 1.8.2003 and he was never engaged by the respondent and the petitioner failed to attend the duty from 25.1.2005. Mr. Sarfaraz Ahmed Umachagi has not produced any evidence before this Court that he engaged the petitioner individually and not on behalf of the respondent. Mr. Sarfaraz Ahmed Umachagı has not produced any acceptable evidence for having paid the wages to the petitioner in his individual capacity. Mr. Sarfaraz Ahmed Umachagi specifically stated that he engaged the petitioner w.e.f. 1.8.2003. The petitioner produced the receipt issued by Goa police dated 11.9.2001. The petitioner has paid the penalty to the Goa police in respect of Car bearing No.CRW-789. Mr. Sarfaraz Ahmed Umachagi, in his evidence stated that at no time he visited Goa in his personal capacity. So the contention of Mr. Sarfaraz Ahmed Umachagi that he engaged the petitioner w.e.f. 1.8.2003 can not

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HC-KAR

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be accepted. The petitioner in the Cross Examination admitted that Car bearing No.CRW789 belongs to Mr. Sarfaraz Ahmed Umachagi. He denied the suggestion that Mr. Sarfaraz Ahmed Umachagi was paying wages to him. On the other hand he has stated that the Manager of the company was paying wages to him. He has stated that in the month of March 2006 Mr. Sarfaraz Ahmed Umachagi denied work him. In the further cross-examination he has stated that he was not driving the vehicle in connection with company. But in view of decision given by the statutory authority under the Minimum Wages Act, I come to the conclusion that the petitioner was working with the respondent till March-2006.”

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(emphasis supplied)

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9. It is clearly forthcoming from the aforementioned

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that the Tribunal after appreciating the relevant facts has recorded a finding that the father of respondent No.1(a) and (b) has not produced any material on record to demonstrate that he was personally paying the wages to the workmen.

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HC-KAR

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Admittedly, in the present case, there is material to indicate that the workman was employed by the firm. Under the circumstances, the Tribunal was justified in directing the firm to reinstate the workman. However while ordering for reinstatement of the workman, the tribunal has also awarded 30% back wages. As rightly contended by the learned counsel for Petitioner, the workman has failed to demonstrate that as on the date of filing the petition he was receiving salaries from either the firm or the partners.

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In view of the aforementioned, it is just and proper that the order of Tribunal for back wages is set aside. Hence the question framed for consideration is answered partly in the affirmative.

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In view of the aforementioned discussion, the following order:

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ORDER

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i) The writ petitions are partly allowed.

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HC-KAR

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ii) The order dated 14.09.2010 passed in K.I.D. No. 46/2006 by the Presiding Officer, Labour Court, Hubli is partly allowed by setting aside the direction for payment of 30% back wages. However, the order of the Tribal directing reinstatement of the petitioner is affirmed.

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Sd/(C.M. POONACHA) JUDGE

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YAN, Upto para 2 HMB Para 3 to end CT-MCK List No.: 1 Sl No.: 67

Shanawax S/O. Srfaraj Ahamed Ummachagi v. Basheer Ahmed S/O. Nabisab Muddebihal

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Shanawax S/O. Srfaraj Ahamed Ummachagi v. Basheer Ahmed S/O. Nabisab Muddebihal

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