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2010 Supreme(Bom) 300
IN THE HIGH COURT OF BOMBAY
A. H Joshi and P. B. Varale, JJ.
CHANDRASHEKHAR CHINT AMAN VAIDYA - Appellant.
vs.
NATIONAL ORGANIC CHEMICAL INDUSTRIES LTD., AKOLA - Respondent.
L. P. A. No. 130 of 2009 and W. P. No. 4980 of 2008
Decided on: 26-2-2010.
For appellant: Siddhesh Kotwal with A. C. Dharmadhikari
For respondent: R. B. Puranik
Headnote:Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 28, Schedule IV, Item-I - Industrial Disputes Act, 1947, Section 2(s) - Unfair labour practice - Complaint - Termination on account of misconduct - Complainant-appellant claimed himself a workman under Section 2(s) of Act, 1947 - Objected by respondent employer - Both Courts below and single Judge of the Court recorded finding that complainant failed to prove his status as workman - Letters Patent Appeal - Held - Single Judge not exerted on scrutiny of jurisdictional facts as to status of complainant and predominant duties performed by him - Findings of Labour Court and Industrial Court as confirmed by single Judge based on erroneous foundations - Impugned judgment and order set aside - Appellant, a workman within meaning of Section 2(s) of Act, 1947 - Complaint remanded to Labour Court for disposal on remaining issues - Appeal allowed with costs. - As to points noted in foregoing paras, the Court holds that proof of facts as to nature of duties done by the complainant rose to adequate height and sufficient degree to hold that the predominant nature of duties of complainant was proved to be clerical in nature. It was also proved by him that he does not perform any managerial functions and supervisory duty if any done by him was microscopic in extent and magnitude. The Court finds from assessment and appreciation of evidence done by the Labour Cour t in para Nos. 14 to 23 of the judgment, what is seen is that what dominated the mind of the Labour Court is the designation of the complainant. Second factor, which has gone hand in hand with the first aspect of designation is the documents where the complainant was described as supervisor or has signed the documents as Head of the Department. The Court therefore holds on Points (a), (b) and (c) in para 39 in favour of the complainant/appellant.
The result that follows is that the findings of Labour Court and Industrial Court, as confirmed by Single Judge are based on erroneous foundation, namely nomenclature of the post than predominant nature of duties.
The judgments and orders impugned based on the findings referred and discussed above deserve to be reversed and are hereby set aside. The Court answers Issue No. 1 as framed by Labour Court in favour of complainant, holding that he is a workman within the compass of the term was defined under Section 2(s) of the Industrial Disputes Act.
The complaint is remanded to the Labour Court for hearing and disposal on remaining issues within three months from the date of receipt of the order of the Court. Parties are directed to appear before the Labour Court on 22nd March, 2010.
A. H. JOSHI, J. :- Admit. Learned Adv. Mr. R. B. Puranik waives service for respondent sole.
Taken up for final hearing by consent.
Facts
2. The appellant/complainant had filed a complaint before Labour Court under section 28 read with Item 1 of Scheduled IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, against alleged illegal termination by order dated 14th April, 2003, which was in the nature of dismissal on account of misconduct.
The appellant is hereinafter referred to as "complainant."
3. In the complaint, he had set up a plea that he was a workman under provisions of section 2(s) of the Industrial Disputes Act, though his appointment was as a Supervisor.
The employer denied the plea and raised a preliminary objection as to the status of the complainant to be a workman.
4. The complainant examined himself and produced certain documents and sought production of documents from the employer. He has denied having done any managerial duties, and stated that he was doing the work of clerical nature and scrutiny of supplies received pursuant to orders placed by superiors. The employer did not lead any evidence, also did not produce the documents which complainant had sought from the employer. The respondent even did not file affidavit about existence, or otherwise, of documents sought to be produced and reasons towards failure or inability to produce those.
5. The case has proceeded on a common belief that the burden of proof to prove the fact that complainant is a workman was on the complainant. Labour Court, Industrial Court and Single Judge of this Court have recorded the finding that the workman/complainant has failed in proving his status, and, therefore, employer had nothing to prove by way of rebuttal.
6. Having failed in all Courts, the complainant is before this Court by way of present Letters Patent Appeal.
7. Heard learned Advocates Mr. Siddhesh Kotwal with Mr. A. C. Dharmadhikari for the appellant and learned Adv. Mr. R. B. Puranik for the respondent.
8. Perused the record annexed to the appeal. Appellant had produced, at the time of hearing, the copy of orders passed by Labour Court on the application for direction for production of documents filed by complainant, so also copy of cross-examination of the complainant, which documents were not the part of paper-book.
Appellant's Submissions
9. Submission of the appellant is that the findings of all Courts are based on totally erroneous test of facts required to be proved.
According to appellant :--
(a) Courts were required to see "what are predominant duties of the complainant," however, Courts got misdirected on the nomenclature of the post on which the complainant was appointed.
(b) Courts also got misdirected due to six documents which, in fact, did not prove predominant duties discharged and work performed by the complainant.
Respondent's Submissions
10. The respondent has strongly denied that primary burden of proof was discharged by the complainant and, therefore, that the onus did not shift. It is then urged that the admissions of complainant were sufficiently destructive of his claim, and, therefore, the appeal was meritless and deserves dismissal.
Case Law
11. Learned Advocates for the parties have placed reliance on various citations. The Judgments along with purpose for which those are relied are as follows :--
(A) Appellant's citations and propositions :--
(1) Hussain Mithu Mhasvadkar vs. Bombay Iron and Steel Labour Board and another, 2002(1) Mh.L.J. (SC) 1 = (2001) 7 SCC 394.
Proposition :--
Primary duties of an employee, purpose, aim and object of the employment, i.e., predominant nature of duties performed by person claiming to be a workman under section 2 (s) of the Industrial Disputes Act, will be the true test to find out the status as a workman.
(2) Mukand Ltd. vs. Mukand Staff and Officers' Association, 2004 AIR SCW 3731.
Proposition :--
The question of class to which the employees belong is to be decided not on
