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TMI Blog2022 (12) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the respondent company is not covered within the definition of workman with a view to Section 2(S) of the Industrial Dispute Act, 1947. The petitioner has successfully established its defence by producing cogent and convincing evidence in view of the vouchers, TDS certificate, etc., and has also proved its case by cross-examining the respondent workman and also examining the manager at Exh.16, therefore, in view of that the learned Labour Court has committed gross error in drawing adverse inference that the petitioner company has not produced attendance register or payment register before the learned Labour Court, therefore, adverse inference should be drawn by inferring that the respondent is working as a workman in the petitioner company, as pleaded by the respondent in the statement of claim, this finding is also perverse and erroneous and the citations, which are cited at Bar by the learned advocate for the petitioner, are helpful in the facts and circumstances of the present case. In view of the findings given by the learned Labour Court are found perverse, illegal and improper and the same is against the materials available on record, therefore, it is found that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced various documentary evidence; such as Bills, TDS statement, etc., before the learned Labour Court to show that the respondent - workman was working as consultant. 2.3 The respondent - workman has been examined before the learned Labour Court. One Bhaveshbhai Amin, Manager appeared on behalf of the petitioner company and has been examined. 2.4 The learned Labour Court has passed the impugned judgment and award dated 30.11.2007, as noted above. Feeling aggrieved and dissatisfied with the impugned judgment and award, the petition is filed. 3. Heard learned Advocates. 4.1 Learned advocate Mr. Dipak R. Dave for the original petitioner has submitted that the impugned judgment and award passed the learned Labour Court is absolutely illegal, unjust and improper. He has submitted that the respondent - workman cannot be termed as workman within the meaning of Section 2(S) of the Industrial Disputes Act, 1947 and while passing the award, the learned Labour Court has framed wrong issues by putting the onus upon the petitioner company to prove that the respondent - workman was working as consultant and not as a workman. 4.2 Further, he has submitted that the learned Labou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned learned Labour Court has failed to consider Form No.26K and has held in absolutely illegal manner that there was employer-employee relationship. The learned learned Labour Court has wrongly held that the petitioner has failed to prove that the respondent has worked as consultant. In fact, the learned Judge has wrongly attributed the burden of proof upon the petitioner. In absence of any documents on behalf of the respondent, the learned learned Labour Court ought not to have believed the case of the respondent and ought to have dismissed the reference of the respondent. The learned learned Labour Court has also miserably failed in appreciating the oral evidence, which is adduced on behalf of the petitioner. Minor discrepancies from the cross-examination have been taken as a defence in favour of the respondent and the learned learned Labour Court has held that the respondent has been illegally terminated, which is perverse. 4.6 Further, the learned learned Labour Court has not appreciated that there is no evidence produced by the respondent on record such as Appointment Letter, Wage Sleep, etc., to prove employer-employee relationship. In absence of any evidence, reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to remain idle. Grant of 20% backwages is, therefore, is absolutely illegal. 4.8 Further, learned Advocate Mr. Dave has placed reliance upon the judgment of the Hon ble Apex Court in the case of State of Uttarkhand Vs. Sureshwati reported in (2021) 3 SCC 108, more particularly para 17 and 18 are relevant and has submitted that in the abovementioned judgment, 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 which in the present case, as per the submissions of learned advocate Mr. Dave, the workman has failed to prove such aspect of the matter. He has placed reliance upon the judgment of the Hon ble Apex Court in the case of M.P. State Agro Industries Development Corporation Ltd. versus Jai Prakash Gautam reported in 2022 LawSuit (SC) 172, more particularly para 11 is relevant and the Hon ble Apex Court has observed that the respondent workman has not responded even after the order passed by the learned Labour Court for reinstatement in service and therefore, he has prayed that though the petitioner company has informed the respondent workman to join the service in view of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Labour Court has considered that the respondent workman could not sit idle and therefore, the learned Labour Court has rightly considered 20% backwages and has rightly awarded reinstatement with continuity in service. He has submitted that the learned 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 learned Labour Court has not committed any error in the eyes of law and therefore, he has prayed to dismiss the present petition as the present petition is meritless and in view of the above stated reasons. 6.1 I have heard learned advocates for the respective parties. I have considered the impugned judgment and award passed by the Tribunal. I have perused the record and proceedings of the learned Labour Court. 6.2 It is relevant to note that it is the case of the petitioner company in the statement of claim that he was working in Spinning Department of the Santram Spinners Ltd. - present petitioner as a Technical Maintenance In-char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner company has paid total amount of Rs.1,08,000/- to the respondent workman. 6.4 Further, it is also revealed from the record that the petitioner company has examined its witness Bhaveshbhia Mohanbhai Amin, who was manager in the petitioner company, has categorically stated that the respondent was rendinging his services as a maintenance consultant in the petitioner company and for that services he was raising his bills or vouchers periodically and accordingly, the petitioner company was paying the amount by way of cheque. Further, he has submitted that there is signature of the respondent workman at Mark - 13/2 to 13/10, which is identified by respondent workman. He has submitted that Mark - 13/11 is the certificate issued by the petitioner company and Mark 13/12 is TDS, which is deducted from the amount of bills raised by the respondent workman. He has further submitted that Mark- 13/13 and 13/14 are the documents related to TDS and the said manager has categorically denied that the respondent workman was not working as a technical maintenance in-charge in the petitioner company. 6.5 Further, he has deposed in a manner that where he has disputed the claim mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was open to the Respondent to have called for the records of the School i.e. the Attendance Register and the Accounts, to prove her continuous employment till 8.3.2006. Since the School was being administered by the Government of Uttarakhand from 2005 onwards, she could have produced her Salary Slips as evidence of her continuous employment upto 08.03.2006. However, she failed to produce any evidence whatsoever to substantiate her case. The reliance placed by the Respondent on the letter dated 20.6.2013 from the Block Development Officer, Roorkee cannot be relied upon. The letter acknowledges that the Respondent was on leave when the Government took over the School, and started receiving grants in aid. The Block Development Officer s recommendation to the Chief Education Officer, Haridwar to act in compliance with the Order dated 5.2.2010 passed by the Labour Court cannot be relied on, as the Award dated 5.2.2010 was set aside by the High Court. [18] On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work. The Respondent has failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order dated 29.10.2010 and that apart, he had served for the very short period of time during the period in 1989 1990. At the same time, his total period of service even as per his own statement, in different spells is from June 1989 to July 1990 as a daily wager, and no evidence has been placed on record by the respondent workman to justify that he was not gainfully employed in the intervening period that entitles him from claiming back wages which was stayed by this Court by an interim order dated 06.08.2010. The relevant part of the Order is as under: Issue notice confined to the question of payment of back wages from the date of award till the date of reinstatement. The execution of the award to that extent shall remain stayed. Thus, in view of the above citations, the findings given by the learned Labour Court are found perverse, illegal and improper and the same is against the materials available on record, therefore, I found that this is a fit case where the supervisory powers, under Article 227 of the Constitution of India are required to be exercised, by interfering in the impugned judgment and award passed by the learned Labour Court. Accordingly, I hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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