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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 ..... nt - workman has filed statement of claim and a copy of statement of claim is annexed herewith and therefore, the petitioner has appeared and has filed its written statement to the statement of claim, which is filed by the respondent - workman and has pointed out the true and correct facts before the learned Labour Court. It was further pointed out by the petitioner that the respondent - workman cannot be termed as workman within the meaning of Section 2(S) of the Industrial Dispute Act, 1947. It was pointed out before the learned Labour Court that the respondent - workman was working as a maintenance consultant and was paid consultant fees but he was never employed by the petitioner in fact he was working as a consultant on contract basis. 2.2 The respondent - workman did not produce any documentary evidence; such as appointment letter, wages slip etc., to show that there was employer - employee relationship. Further, the petitioner - company has produced 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 learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also perverse. In fact, in Form No.16A itself, it has been written that the said TDS form was submitted by showing nature of payment as consultant. The learned learned Labour Court has not appreciated the fact that Form No.16A has to be filled in irrespective of whether there was employer-employee relationship or it was payment in the nature of professional service or other payment. The finding that only employer has to file Form No.16A deducting salary of employee, is wholly perverse. In fact, Form No.16A shows that the amount was paid as consultant. 4.5 Further, the learned learned Labour Court has not at all looked into Form No.26K, which was produced by the petitioner. It is categorically mentioned that for the purpose of deduction of tax from fees for professional or technical services, the said form has been filled in. Thus, it is absolutely clear that the respondent was paid consultant fees and not salary. Further, the learned 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d extort money, has filed false case and, therefore, the reference ought to have been rejected with heavy cost. Further, the learned learned Labour Court has not appreciated the fact that in a small contract like this 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. Further, the learned Judge has not appreciated that the respondent has failed to prove that he has completed 240 days of service before his alleged termination. 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 favour of the respondent. Further, the learned Judge has erred in granting backwages to the respondent. Even as per the case of the respondent, he is a technical expert person and, therefore, he is not expected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments such as bill-cum-voucher regarding the respondent workman, which is produced by the present petitioner - employer at Exh.13/1 to 13/10 and the learned Labour Court has found that though there is variation in the amount of consultation fees paid to the respondent workman but the learned Labour Court has prima facie found that such vouchers are complicated and in addition to that the learned Labour Court has 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. He has submitted that the learned 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. Moreover, the learned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent workman himself was examined and also cross-examined by the respective learned advocates where the respondent workman has initially in the examination- in-chief has submitted that he was working in Spinning Department with the Santram Spinners Ltd. - present petitioner as a Technical Maintenance In-charge from the last one year and his services were terminated on 18.04.1997 whereby in the cross-examination he has submitted that he has studied English language and Diploma in Textile and has also admitted that the sum of payment, which is made by the petitioner company by cheque, was received by him. He has also admitted in his cross-examination that there is no evidence with him that he was working as a workman in the petitioner company and his salary is fixed as Rs.9,000/- per month. He has also admitted and verified his signature at bills and vouchers at Mark - 13/1 to 13/10. He has also submitted that 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, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The judgment of Hon'ble Apex Court in the case of Sureshwati (supra), more particularly, para 17 and 18 is relevant, which is quoted herein below: "[17] The Respondent has failed to prove that she had worked for 240 days during the year preceding her alleged termination on 8.3.2006. She has merely made a bald averment in her affidavit of evidence filed before the Labour Court. It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, reiterated in RBI v. S. Mani, 2005 5 SCC 100. This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it." And the judgment of the Hon'ble Apex Court in the case of Jai Prakash Gautam (supra), more particularly para 11 is relevant, which is quoted herein below: "[11] After we have heard the learned Counsel for the parties, in our considered view, the respondent - workman had not responded even after offer of reinstatement was made by 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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