PERSON WORKING IN THE CAPACITY OF CONSULTANT CANNOT BE DEEMED WORKMAN

[Mr. M. GOVINDARAJAN]

In SANTRAM SPINNERS LIMITED VERSUS BABUBHAI MAGANDAS PATEL - 2022 (12) TMI 1238 - GUJARAT HIGH COURT, the respondent was Technical in charge of the petitioner’s company in the Spinning Department and earning Rs.9000/- per month.  The respondent was terminated orally on 18.04.1997.  Thereafter the respondent, as a workman, raised an industrial dispute before the Labor Court and filed a statement of claim before the Authority.  The petitioner filed a written reply to the said claim.  In the reply the petitioner contended that the claimant cannot be considered as a ‘workman’ under section 2(s) of the Industrial Dispute Act, 1947.  The petitioner further submitted that the respondent was working as a maintenance consultant on contract basis and he was paid consultation fee.  He was never employment in the petitioner company. 

The respondent was examined by the Labor Court.  The Labor Court on 30.11.2007 passed the award that the respondent was to be reinstated with continuity service along with 20% of back wages.  Against this order the petitioner filed the present petition before the High Court. 

The petitioner submitted the following before the High Court-

• The award passed by the Labor Court is absolutely illegal.
• The respondent cannot be termed as ‘workman’ within the meaning of section 2(s) of the Industrial Disputes Act, 1947.
• While passing the award the Labor Court has framed wrong issues by putting the onus on the petitioner to prove that the respondent is a consultant and not a workman.
• The workman is to prove that he has been employed with the petitioner.
• The respondent did not produce any proof that he was a workman employed with the petitioner.
• In the absence of any documentary evidence the Labor Court ought not to have held that there was employer-employee relationship between the petitioner and the respondent.
• The learned Labour Court has recorded finding that the bills, which have been produced on record are in one hand writing and there are some different amounts, therefore, the said vouchers are complicated and cannot be believed and this finding of learned Labour Court is perverse.
• The form 16A issued for TDS in respect of the respondent only in the capacity of consultant and not as workman.
• The Labour Court has not at all looked into Form No.26K, which was produced by the petitioner.
• The Labour Court has wrongly held that the petitioner has failed to prove that the respondent has worked as consultant.
• The learned Labour Court has also miserably failed in appreciating the oral evidence, which is adduced on behalf of the petitioner.
• The learned Labour Court has not appreciated that there is no evidence produced by the respondent on record such as Appointment Letter, Wage Slip, etc., to prove employer-employee relationship.
• The Labour Court has not appreciated that Notification of B.I.R. Act, which was produced by the petitioner company to show that B.I.R. Act is applicable to the petitioner.   Therefore, reference ought not to have been entertained by the Labour Court.
• The respondent, who was working as a consultant on the contract basis, so as to harass the petitioner and extort money, has filed false case and, therefore, the reference ought to have been rejected with heavy cost.
• Where consultant is being engaged, there is no practice of written contract but it does not mean that the respondent was not working as consultant.
• In absence of any proof produced by the respondent to show that he has continuously worked or that he has worked for 240 days in a year preceding his alleged termination, no relief ought to have been granted in favor of the respondent.
• The Labor Court erred in granting 20% back wages to the respondent.
• The onus to prove is entirely upon the employee that he has worked continuously for a period of 240 days in the petitioner institute as a workman in the present case.
• The award dated 30.11.2007 passed by the Labour Court, Kalol in Reference (LCK) No.357 of 1997 is absolutely illegal, unjust and improper and bad in the eye of law and therefore, the same deserves to be quashed and set aside by the High  Court.

The respondent submitted the following before the High Court-

• The award passed by the learned Labour Court is just and proper and with proper reasons.
• The Labor Court rightly found that the employer has filed income tax Form No.16A, by which the tax was deducted to the income tax by the employer, which is showing that the respondent is working as a workman – employee of the petitioner company.
• The Labour Court has rightly drawn inference against the petitioner company as petitioner has failed to produce any documentary evidence; like attendance register, salary register to show that the respondent is not workman in the petitioner company.
• The learned Labour Court has considered that the respondent workman could not sit idle and therefore, the Labour Court has rightly considered 20% back wages and has rightly awarded reinstatement with continuity in service.
• The Labour Court has found that the petitioner institute has failed to establish by leading cogent and convincing reasons to establish its case that the respondent workman is working as a technical consultant and not as a workman in the petitioner - institute and therefore, he has submitted that the Labour Court has not committed any error in the eyes of law.

Therefore, he prayed to dismiss the present petition as the present petition is meritless.

The High Court considered the submissions of both the parties. The High Court perused the entire case and the documents filed in the case.  From the various documents filed in the case and the deposition of the respondent and the Manager of the petitioner company, the High Court found that the respondent has failed to establish prima facie that he was appointed as a workman in the petitioner institute.  But the petitioner has established its case that the respondent is rendering his services as a technical consultant and for that purpose, the petitioner company has produced ample documentary evidences from Mark – 13/1 to 13/10 and 13/11 to 13/13, and more particularly, the respondent has admitted his signature on that document where he has received payment towards his consultation fees.

The High Court held that the Labour Court has committed gross error in drawing adverse inference that the petitioner company has not produced attendance register or payment register before the Labour Court, therefore, adverse inference should be drawn by inferring that the respondent is working as a workman in the petitioner company.

The High Court set aside the award passed by the Labor Court.