Bombay High Court
Roz Mohamhad Salimulla And Others vs Afjal Faiz Mohamhad Ansari & Other on 2 May, 2019
Author: A.K.Menon
Bench: A.K. Menon
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sbw IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4010 OF 1997
1. Roz Mohamad Salimulla
2. Nizmuddin Fenku
3. Anwar Jumrati
4. Jamir Mukhtar
5. Sattar Usman
6. Aslam Mukhtar
7. Izhar Mukhtar
8. Mohamhad Avdesh Ali
9. Dara Rajbhar
10. Bilram Sofi
11. Imtiaz Shamshuddin
12. Abdul Gafar Bahauddin
13. Asmohamhad Kitabu
14. Dinanath Smitaprasad
15. Pukar Khajanu
16. Tabiz Nazir
17. Razak Madaran
18. Suddin Aslin
19. Vikram Chota-Kdas
20. Hafiz Shamsuddin
21. Manneali Bahauddin
22. Gulmohamhed Salim
23. Kamaruddin Salim
24. Isak Peermohamhad
25. Sattar Siddik
26. Jitendra Sohanlal
27. Virsajan Digmohan
28. Muneshwar Siddarath
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29. Ramadnya Yadav
30. Noormohamhad Nazir
31. Jamil Hakum Khan
32. Aslam Hasmatali
33. Dil Mohamhad Wali Mohd.
34. Ramnayan Vishwanath
35. Hasim Mohamhad Jahir
36. Duing Tulsiram
37. Jahiruddin Mannan
38. Anwarali Jumai
39. Jalil Mohd. Din.
40. Intiz Karmuddin
All above petitioners are having address at
Textile Mazdoor Sabha,
82, Bazar Peth, Bhiwandi,
District Thane. .. Petitioners
Vs.
1. Afzal Faiz Mohamhad Ansari
486, Roshanbaug,
Narpoli, Babu Chuniwala Compound,
Bhiwandi, District Thane.
2. Iqbal Faiz Mohamhad Ansari (since deceased)
2A. Mrs. Afsari Mohammed Shoaib Ansari
973/110, Mustaqe Seith Building,
Nalapar Road, Shane Aoulie Masjid,
New Gauri Pada, Hafiz Nagar, Diwan Shah,
Bhiwandi, Dandekarwadi, Thane.
2B. Mushtaque Ahmad Iqbal Ahamad Ansari
486 Roshanbaug, Near Diwanshi Baba Road,
New Gauri Pada, Bhiwandi, Thane.
2C. Mrs. Afsana Mohd. Yusuf Ansari
746, 1st Floor, Azmi Appt.,
Gauri Pada, Bhiwandi, Thane.
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3. Zulfekhar Iqbal Ansari
4. Azhar Iqbal Ansari
486, Roshanbaug,
Narpoli, Babu Chuniwala Compound,
Bhiwandi, District Thane.
5. Sydunnisa Iqbal Ansari (since deceased)
5A. Mrs. Afsari Banoo Mohammed Shoaib Ansari
973/110, Mustaqe Seith Building,
Nalapar Road, Shane Aoulie Masjid,
New Gauri Pada, Hafiz Nagar, Diwan Shah,
Bhiwandi, Dandekarwadi, Thane.
5B. Mushtaque Ahmad Iqbal Ahamad Ansari
486 Roshanbaug, Near Diwanshi Baba Road,
New Gauri Pada, Bhiwandi, Thane.
5C. Mrs. Afsana Mohd. Yusuf Ansari
746, 1st Floor, Azmi Appt.,
Gauri Pada, Bhiwandi, Thane.
6. Sahebunisa Afzal Ansari
486, Roshanbaug,
Narpoli, Babu Chuniwala Compound,
Bhiwandi, District Thane.
7. S.A. Dwivedi,
Presiding Officer,
2nd Labour Court, Thane. .. Respondents
WRIT PETITION NO.7163 OF 2004
Secretary,
Textile Mazdoor Sabha,
Bazarpeth, Near Police Station,
Bhiwandi, District Thane. .. Petitioner
V/s.
1. Iqbal Seth Ansari
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2. Afzsal Ansari (since deceased)
2A. Mrs. Afsari Banoo Mohammed Shoaib Ansari
973/110, Mustaqe Seith Building,
Nalapar Road, Shane Aoulie Masjid,
New Gauri Pada, Hafiz Nagar, Diwan Shah,
Bhiwandi, Dandekarwadi, Thane.
2B. Mushtaque Ahmad Iqbal Ahamad Ansari
486 Roshanbaug, Near Diwanshi Baba Road,
New Gauri Pada, Bhiwandi, Thane.
2C. Mrs. Afsana Mohd. Yusuf Ansari
746, 1st Floor, Azmi Appt.,
Gauri Pada, Bhiwandi, Thane.
3. Azhar Ansari
4. Zulfikar Ansari
5. Smt. Saidunnissa Ansari (since deceased)
5A. Mrs. Afsari Banoo Mohammed Shoaib Ansari
973/110, Mustaqe Seith Building,
Nalapar Road, Shane Aoulie Masjid,
New Gauri Pada, Hafiz Nagar, Diwan Shah,
Bhiwandi, Dandekarwadi, Thane.
5B. Mushtaque Ahmad Iqbal Ahamad Ansari
486 Roshanbaug, Near Diwanshi Baba Road,
New Gauri Pada, Bhiwandi, Thane.
5C. Mrs. Afsana Mohd. Yusuf Ansari
746, 1st Floor, Azmi Appt.,
Gauri Pada, Bhiwandi, Thane.
486, Roshanbaug,
Narpoli, Babu Chuniwala Compound,
Bhiwandi, District Thane. .. Respondents
Mr. K. S. Bapat for the petitioners.
Mr. A. Y. Bukhari for the respondents.
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CORAM : A.K. MENON, J.
RESERVED ON : 28 th FEBRUARY, 2019.
PRONOUNCED ON : 3RD MAY, 2019.
P.C. :
1. This common order disposes two writ petitions, the first Writ Petition no.4010 of 1997 filed on behalf of 40 petitioners who claimed to be the employees of respondent nos.1 to 6 who were stated to be related to one another and running power looms under one management. Respondent no.2 and 5 have since expired and their heirs have been brought on record being respondent nos.2A, 2B, 2C and 5A, 5B and 5C. Respondent no.7 is the Presiding Officer of the Labour Court who has also been impleaded. According to the petitioners, they have been working in the power looms of the respondent. Petitioner nos.1 to 16 claim to be working at Ashok Nagar Road and Petitioner nos.17 to 40 at Roshan Baug. According to the petitioners, the units were shown separately to defeat the provisions of law.
2. In Writ Petition no.4010 of 1997, the petitioners are aggrieved by a judgment dated 16th November, 1996 passed by the Second Labour Court, Thane in Application (IDA) no.51 of 1993 under Section 33(C) (2) of the Industrial Disputes Act. The petitioners claimed overtime wages, bonus and privilege leave from the respondents. The Labour 5/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt Court decided against the petitioners and dismissed the application under Section 33(C)(2) which led to Writ Petition no.4010 of 1997. In Writ petition no.7163 of 2004 the petitioner is the Secretary of the Textile Mazdoor Sabha said to be representing the employees of respondent nos.1 to 5 who were said to be the owners of powerlooms. It is contended that respondent no.1 has more than 200 looms in Bhiwandi located at Ashok Nagar and Roshan Baug. Respondent no.6 is the Member of the Industrial Tribunal who is also impleaded in the petition. The workers represented by the petitioner union are 28 in number all of whom are petitioners in Writ Petition no.4010 of 1997.
3. The petitioner in Writ Petition No.7163 of 2004 is aggrieved by an award dated 30th December, 2003 passed by the Industrial Court, Thane in Reference (IDA) nos.15, 16, 18, 19, 20 and 21 of 1996. The award rejected the reference filed on behalf of the workmen holding that they were not entitled to be reinstated with continuity of service and back wages from the date of termination. After these petitions were admitted the parties were referred to mediation at the Mediation Centre of this Court. However, efforts at mediation have failed. I have therefore proceeded to hear the petitions finally.
4. For the ease of reference, "Petitioners" would mean to reference to the 6/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt workmen and the union in the aforesaid petitions and "Respondent" would mean the parties who are said to own the power looms. Submissions on behalf of the petitioners:
5. Mr. Bapat, the learned counsel for the petitioners submitted that all the petitioners were employed in the power looms which were managed by the respondents. They have been working as weavers in two shifts from 7.00 a.m. to 7.00 p.m. and from 7.00 p.m. to 7.00 a.m. These petitioners were thus working for 12 hours in each shift and this would mean that they have made to work for four additional hours. It is submitted that in respect of those additional hours, the respondents were liable to pay overtime wages. According to the petitioners, they have not been paid privilege leave or bonus for last several years and sought redressal of their grievances through the Textile Mazdoor Sabha and the petitioners union in Writ Petition no.7163 of 2004. Applications have been filed by the petitioner for computation of overtime legitimately due to them and yet no relief has been given. According to the petitioners, respondent nos.1 to 6 are running a family concern, engaging the petitioners as weavers and yet not paying them their dues. They have relied upon a computation of overtime wages which Mr. Bapat submitted was computed after taking into consideration the basic wages and special allowances applicable to the power loom industry for about 5 years. Overtime was payable for 7/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt 1989-1992 for about 5 years and bonus also for the same period. The amounts of overtime are varying, however, the amount of privilege leave claimed for 1990-1991 is the same for all the workmen.
6. Mr. Bapat submitted that on an average of about Rs.66,000/- was payable as overtime for 5 years to each of the 40 workmen. Bonus for the same period was varied between 1384/- and Rs.5630/- . On a query of the Court, as to the constitution of the respondents, Mr. Bapat submitted that the respondents are under the same management, operate as one organization but informally. He submitted that the respondents though individuals were not partners operating in partnership but they were collectively owners of the business and are to be treated as employers. All the 40 petitioners are stated to be workmen employed by the respondents. He submitted that the relationship between the parties is one of employer and employee and therefore wages have been paid for years on end but they were made to work overtime without being paid compensation for overtime, bonus and privilege leave. He further submitted that there was sufficient evidence to establish an employer-employee relationship and the application under Section 33(C)(2) was based on the said computation.
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7. Mr. Bapat submitted that the Labour Court had after considering the submissions had found no employer-employee relationship and therefore held that there is no question of paying any overtime wages, bonus paid or privilege leave as claimed. He submitted that the parties had led evidence and produced numerous documents by which the petitioners attempted to establish that they were working for more than 5 years and were therefore entitled to be compensated with overtime, bonus paid or privilege leave.
8. According to Mr. Bapat the respondents had incorrectly contended that the petitioners were not employed by the respondents. He submitted that the denial was incorrect and ought not to be accepted. The Labour Court however, had proceeded to hold that in the light of a controversy regarding the existence of the employer-employee relationship the dispute could not be decided under Section 33(C)(2). The claim was therefore rejected by the Court for want of jurisdiction to decide the issue. It may be noted that some of the heirs who have been impleaded, filed affidavits and states that they were not concerned with the business, especially the daughters, who claimed that they have not been concerned with the business carried on by the original respondents at any time. Mr. Bapat therefore submitted that the impugned judgment is liable to be set aside.
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9. As regards the challenge in Writ Petition no.7163 of 2004 there are 5 respondents who are alleged to have exploited the workmen by engaging them for more than 8 hours without paying them minimum wages or overtime wages. Pursuant to a complaint made to the Government Officer, the respondents were called by the Labour Officer where they agreed to abide by the statutory provisions. It is the contention of Mr. Bapat that the respondents agreed to keep track of the work allotted to the petitioners to mark their attendance and pay proper wages.
10. According to the petitioners, their services were illegally terminated by the respondents as a result of which a complaint was filed with the Government Labour Officer(GLO). Mr. Bapat submitted that the provisions of the Industrial Disputes Act relating to termination of services were not complied with. No notice was issued, no compensation paid and the termination was therefore illegal. The petition makes reference to the complaint filed under Section 33(C)(2) and the pendency of Writ Petition no.4010 of 1997 and it was contended that all statements of claim filed by them were identical in all those references. The dispute between the parties included one relating to the existence of an employer-employee relationship. 10/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 :::
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11.In the written statement the respondents have denied the relationship. Mr. Bapat submitted that the petitioners have examined their members who were also cross examined and according to Mr. Bapat the employees had led evidence to prove that they were very much employed in the power looms at Ashok Nagar and Roshan Baug. He submitted that the defence is not bonafide. He submitted that the written statement contains incorrect statements and the petitioners had succeeded in proving that their members had been receiving correspondence at the place of work viz. at the looms. The petitioners had also addressed correspondence to the respondents and the respondents likewise had allegedly written to the workmen who had gone to their native place to come back and attend duty. The said letters are said to have been written by the respondents.
12. Mr. Bapat has relied upon numerous letters in a compilation, all of which are said to indicate and establish that the petitioners have been receiving correspondence even in their native place from their employers viz. the respondents. Likewise, the petitioners had also received letters at their place of work at Bhiwandi. Mr. Bapat relied upon the compilation of 15 documents amongst which were complaint allegedly made by one Roz Mohamad Salimulla and will forming part of Application (IDA)No.15 before the Labour Court as also the 11/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt reference before the Industrial Court. He submitted that an employee by name Hafiz Shamsuddin had received letters from the respondents. Similarly an employee Vijay Khane had also received letters from the employers and had written letters to the management. Numerous letters are said to have been issued by the Textile Mazdoor Sabha, Bhiwandi on their letterhead to the respondents and copies of which are included in the compilation. None of these documents are admitted by the respondents.
13. Mr. Bapat has taken me through some of the letters which are seen to be addressed by one Afjal Faiz Mohamhad Ansari. Some of these letters are on plain paper accompanied by envelopes which bear the name of the sender and the address as that of Roshan Baug, Bhiwandi. Mr. Bapat submitted that this is intrinsic evidence of the fact that the petitioners were employed with the respondents. In support of his contentions, Mr. Bapat relied upon the following judgments:
1) Ravindra Baburao Ambolkar v/s. Gujarat Tea Canteen and another 1
2) Hussainbhai, Calicut v/s. The Alath Factory Thozhilali Union, Kozhikode and others2
3) Bharat Sanchar Nigam Limited v/s. Bhurumal 3
4) Shankar Chakravarti v/s. Britannia Biscuit Co. Ltd. & Anr. 4 1 (1995) 71 FLR 585 (Bom) 2 (1978) 4 Supreme Court Cases 257 3 (2014) 7 SCC 177 4 (1979) 3 SCC 371 12/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt
5) Force Motors Ltd. Pune v/s. Shantilal Hukumchand Sancheti & Anr. 5
6) Mahalaxmi Co-op. Housing Society Ltd. v/s. Dilip Singh Parocha & Ors. 6
7) M/s. Iqbal Seth Ansari & Ors. V/s. Secretary, Textile Mazdoor Sabha 7
14. In Writ Petition no.7163 of 2004 filed by the union, the common award passed in Reference nos.15, 16, 19, 20 and 21 of 1996 has been assailed. Mr. Bapat contended that the evidence led by the union had well and sufficiently established an employer-employee relationship which stands proved and that the services of those workmen were terminated illegally and that the workmen concerned were idle and were not employed after their termination. He submitted that the Industrial Tribunal had failed to consider the evidence in proper light specially since it held that the GLO had filed a visit report and all this evidence was collected by the GLO. He submitted that the Industrial Court had gone wrong in concluding that when the signatures were denied by the employer, the burden lay only on workmen to prove these documents. He submitted that the Industrial Tribunal was not justified in concluding that notwithstanding the evidence of the two workmen and the Secretary of the Union Shri Khane, the employer- employee relationship is not established. He submitted that some of the letters written by the workmen from their place of employment and some letters are written by the employers calling upon the 5 2011 1 CLR 936 6 2007 1 CLR 475 7 Award dated 30.12.2003 13/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt workmen to return to attend their duties. There Mr. Bapat contended that are all indications of the fact that the evidence was loaded against the respondents. In the circumstances, there was no justification in having rejected the references holding that the workmen concerned were not entitled to reinstatement with continuity of service and back wages. On this basis, Mr. Bapat submitted that the impugned orders be set aside.
Submissions on behalf of the Respondents:
15. Mr. Bukhari, the learned Senior Advocate appearing on behalf of the respondents in these petitions supported the impugned orders and submitted that the workers concerned were not employed by the respondents. He submitted that the Labour Court had gone into the evidence. He tendered a chart in respect of 28 workers who had filed this reference forming subject matter of Writ Petition no.7163 of 2004 and submitted that the allegations against the respondents are that of oral termination of services. He submitted that in fact these are separate causes of action. Although 28 persons sought to file six references, only two workers were examined on oath. 26 persons had not been examined at all. In Reference nos.16, 18, 19 and 20 not a single workman was examined on oath. 26 employees have not even attempted to prove their case. When the notices were served upon the respondents, the employer-employee relationship was denied. He 14/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt submitted that there is no challenge to this aspect. Having denied the employer-employee relationship, it was incumbent upon the workers to prove their case.
16. On the other hand, there is absolutely no evidence of their date of joining, the respondents with whom they say they had worked and no evidence of who had terminated their services. There is no evidence of any victimization either. The statement of claim was signed by the union and not by the workmen. He submitted that the petitioners were aware of the defence taken by the respondents to the applications under Section 33C(2) forming subject matter of Writ Petition no.4010 of 1997 and in that context it was incumbent upon the workmen to plead the necessary ingredients. However, the statement of claim is silent on these aspects. Mr. Bukhari has made reference to the written statement and the evidence and has taken me through the relevant portions of the same. He contended that the GLO had not been deputed. There was no summons issued to the respondents and it is not known on what basis the GLO arrived at his findings. Evidence is recorded in the year 2003. However, the GLO was in Bhiwandi till 1995. As far as documentary evidence is concerned, he submitted that the Personal Management Advisory Services (PMAS) had no legal sanction. In the absence of proof of an employer employee 15/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt relationship, the burden was on the employees. There is no pleading or proof of employment either.
17. Mr. Bukhari submitted that of the letters produced by the workers only 7 were relevant. All of these letters were in relation to the workers in Reference no.20 of 2016. These workers are named as Noor Mohd. Nasir and none of these persons were examined. In the absence of their being examined, the letters were not proved by the individual workmen. This was a basic requirement since the letters were disputed by the respondents, since they did not bear the signatures of the respondents. In the face of these denials, it was incumbent upon the workmen to lead evidence and prove these documents.
18. According to Mr. Bukhari, letters at page nos.42 to 57 of the compilation were created only about "10 days prior to filing of the application under Section 33C(2)". To support his contention, he submitted that letters at page 44 to 45 and 49 to 50 are shown to be sent by a minor named Fahad Zulfiqar Ahmed through his guardian.
The letters are dated 15 th May, 1993 and 20th May, 1993 whereas at that time Fahad Zulfiqar Ahmed was aged 10 months since his date of birth is 4th August, 1992. The statement of claim was silent about such 16/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt correspondence. In addition, the GLO had produced certain photo copies which were disputed and the award dated 30 th December, 2003 records that the Industrial Tribunal had observed that photo copies being produced were disputed. No original document was produced to establish the employees claim.
19. Mr. Bukhari submitted with respect to the record of the enquiry said to have been conducted that the PMAS had no legal sanctity and/or evidentiary value. He submitted that the GLO had admitted in his cross examination that disputes regarding termination were not before him. Incidentally it was submitted that the person before the conciliation proceedings has not been examined. In cross examination, the GLO admitted that the steps taken by him and the report prepared by him was not based on any written complaint of the workers or the union. The report prepared by him was also silent on the visits to the establishment located at Bhiwandi. There is nothing on record to show whether the concerned parties were called for any discussions.
20. Mr. Bukhari further submitted that part of the evidence of the GLO established that certain documents were only in copy and the GLO had admitted that the only part of the proceedings had been written by him. He had also not enclosed copies of notices issued to the 17/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt respondents and even after his attention was invited to the records, he could not specify the date on which he had visited the respondent's office.
21. As regards the reference made to electricity bills, Mr. Bukhari submitted that no original bill was produced and no one from the electricity department was examined nor did the bills show how the workmen concerned were employed in those units. Moreover, the bills are of the year 1996 whereas the case of the workmen is that their services were terminated in the year 1993. Mr. Bukhari, therefore, submitted that there was no evidence that could be gathered from the electricity bills to support the claim of the respondents. He further submitted that Mr. Vijay Khane had clearly admitted that none of the persons concerned in the references were in employment as evident from his cross examination which was filed as part of the compilation. Only copies of the bills were produced and the bills were not proved in accordance with law and hence could not be considered as evidence. Furthermore, the pleadings also did not contain any reference to these bills. With reference to the remaining documents, the General Secretary of the Union Vijay Khane admitted in cross examination that he had not produced any proof that the letter dated 28 th December, 1992 relied upon by the petitioners was served upon the respondents. 18/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 :::
wp-4010.97 & 7163.04(f).odt He admitted that he had not written any letter to the respondents regarding compliance with labour laws and extended benefits under labour laws. On this basis, Mr. Bukhari submitted that both applications under Section 33C(2) were rightly rejected. In the absence of any evidence of the workmen being employed by the respondents, there is no question of directing reinstatement of these workmen. Mr. Jalisatgi supported the case set out in the affidavit on their behalf.
22.Mr. Bukhari relied upon the following judgments:
1) Municipal Council Sujanpur v/s. Surinder Kumar 8
2) Nirtubai w/o Jayantilal Mahule v/s. Head Master, Higher Grade Marathi Girls School, Gondia & Ors.9
3) Rajasthan State Road Transport Corporation v/s. Phool Chand 10
4) J. Yashoda v/s.K. Shobha Rani11
5) Central Inland Water Transport Corporation Ltd. v/s. The Workmen and another12
6) Municipal Corporation of Delhi v/s. Ganesh Razak & Another 13
7) Tara & Ors. V/s. Director, Social Welfare & Ors. 14
8) Jagannath Bhagwandas Shrivastav & others v/s. Harish Thadani & anr. 15
9) Central Group and others v/s. Motiram S. Thakare & others 16
10) Maharashtra Engineering Plastic & General Kamgar Union v/s. Little Kids & ors.17
11) Management, Eiko Computers Pvt. Ltd. Chennai v/s. C.K. Jeyachandran and 8 (2006) 5 SCC 173 9 2014(2) Mh.L.J. 861 10 2018 SCC Online SC 1583 11 (2007) 5 SCC 730 12 1974 LIC 1018 13 1995(1)SCC 235 14 1998(8) SCC 671 15 1993(3) BCR 39 16 2005 (4) LLN 487 17 2005(4) BCR 429 19/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt anr.18
12) Vividh Kamgar Sabha v/s. Kalyani Steels Ltd. & Anr. 19
13) Cipla Ltd. v/s. Maharashtra General Kamgar Union & Ors. 20
14) Hindustan Coco Cola Bottling S/W Pvt. Ltd. V/s. Bhartiya Kamgar Sena & ors. 21
15) R. M. Yellati v/s. Asst. Executive Engineer22
16) Agricultural Produce Market Committee, Solapur & Anr. V/s. Nagnath Jyotiram Ghodke since deceased by his heirs & Legal representative Smt. Sugalbai Nagnath Ghodke & Ors.23
17) D. Krishnan & Anr. V/s. Special Officer, Vellore Co-op. Sugar Mill & Anr. 24
18) Union of India through General Manager, Western Railway v/s. Shridhar R & Ors.25
19) Warana Agricultural Goods Processing Co-op Society Ltd. v/s. Dilip D. Patil & Ors.26
20) S.A. Shaikh v/s. Union of India & Ors. 27
21) Navbharat Press Employees Union v/s. State of Maharashtra & Ors. 28
23.Having heard the learned counsel at length, the core issue to be decided is in Writ Petition no.4010 of 1997. The claim is only in respect of overtime. The basis of the claim is short payment despite having worked for 12 hours a day instead of 8. In respect of the additional four hours, the claim has been agitated before the Labour Court. The applicants were apparently advised to file applications under Section 33C(2) of the Industrial Disputes Act. This would presuppose the existence of an adjudicated the sum of money that 18 2006 (2) LLJ 579 19 2001 I CLR 532 20 2001 I CLR 754 21 2001 III CLR 1025 22 2006 (1) SCC 106 23 2010 I CLR 843 24 2008 III CLR 111 25 2002 III CLR 477 26 2011 II CLR 655 27 2002 III CLR 132 28 2010 (1) ALL MR 125 20/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt would be due to the applicants in relation to their services. Admittedly, there is no such adjudication of the amount. Even assuming that the applicants could have proceeded under section 33C(2) it would entail applicability of the Industrial Disputes Act, proceeding on the basis that the Act was applicable to the Section 33C is intended to facilitate recovery of money due from an employer. Section 33C(1) reads as follows:
"33C(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of [Chapter V-A or Chapter V-B], the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer;
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period."
24. It presupposes that money is due to a workman from an employer under a settlement or under the provisions of an award or provisions of Chapter V-A or V-B of the Act. The claim in the present case presupposes liability to pay wages based on an employer employee 21/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt relationship between the petitioners and the respondent. Chapter V-A and V-B have no relevance in the facts at hand since the claim has nothing to do lay off or retrenchment of closure but merely non- payment of what according to the applicants/petitioners is wages for the additional hours of work. It therefore become necessary for the petitioners to establish firstly that they were employed with the respondents. Secondly, that they were engaged every day for about 12 hours in the course of employment and that they were entitled to be paid overtime.
25. One critical aspect is that this amount would have to go through a process of the adjudication prior to claim being made or entertained. Section 33C(1) provides all applications for money becoming due from the employer to a workman must be made within one year of the due date unless the appropriate government was satisfied that there was sufficient reason for making a belated application. The application in the instant case has proceeded on the basis that the workmen were working at the material time when the application was made.
26. The impugned judgment dated 6th November, 1996 has recorded that the workman concerned at sr.no.1 to 16 claimed that they were working at Ashok Nagar and sr.no.17 to 40 at Roshan Baug. The 22/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt petitioners were all said to be working as weavers. They were not paid privilege leave and were therefore claiming privilege leave. They were also more than 100 in number and therefore entitled to payment of bonus. On behalf of the respondents, the employer-employee relationship was denied and therefore, it was contended that the provisions of Section 33C were not attracted. Furthermore, the respondents contended that they had one power loom unit in house no.486 and in 389 both are at Bhiwandi but the petitioners were not concerned with the said two power looms. In fact, it was the case of the respondent that the petitioner has not even pleaded the exact relationship. The respondent denied that the applicants were working in house no.486 or 389 or for 12 hours. All contentions including duty hours have been denied. In fact there is an absolute denial of the relationship. It is in this background that the following issues came to be framed:
(1) Do the applicants prove that there are relationship of employer-
employee and that the application is maintainable? (2) Do the applicants prove that they are entitled for the amounts claimed as overtime wages, bonus and paid privilege leave as mentioned in the application?
27. These were the only issues that could arise on the pleadings and both 23/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt the issues have been decided against the petitioners. The impugned judgment after dealing with the facts recorded that the claim in question presupposes an employer-employee relationship and whether such a relationship exists cannot be decided under section 33C(2) and an industrial dispute would have to be raised by the union or workman and that it is a well settled position in law. The judgment proceeded to hold that the Court had no jurisdiction to decide whether or not there is any employer employee relationship and in those circumstances, there was no entitlement to receive overtime wages, bonus, privilege leave, etc.
28. I am unable to find fault with the judgment. It is based on fundamental principles that would apply in the facts of the case. Firstly, there is no adjudication of any amount that is payable by the respondents to the petitioner. If there was such an adjudication it would presuppose a finding on the existence of an employer-employee relationship and that the industrial dispute would have been raised in that sense and the opportunity of leading evidence to establish the relationship and make a claim on that basis. Sub-section (2) of section 33C also presupposes an entitlement of the workman to receive money dues which is capable of being satisfied in monetary terms if any question arose to the amount to be computed it could be decided for 24/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt the Labour Court subject to the decision of the appropriate government. Thus, unless there was an adjudication of amounts due, an application under section 33C(2) would not succeed. On first principles therefore the petitioners case must fail. However, notwithstanding the view that I have taken gone through the record in detail and have considered the submissions made at the bar.
29. Mr. Bapat had contended that the relationship of employer employee was not in dispute. He submitted that the petitioners had in fact worked for respondent no.1 regularly attended at the respective places of work and had served the respondents over many years for over 12 hours in a day. Although the conditions of service required the workman to work for 8 hours by virtue thereof he claimed that the workman was entitled to overtime, bonus, privilege leave especially since there were large number of workmen in excess of 100 workmen employed in the looms. It is necessary to observe that the contention of Mr. Bapat presupposes the petitioners being employed with the respondents, however, the respondents have denied the existence of any entity whether partnership firm or otherwise. It is not possible to accept Mr. Bapat's contention that there existed an employer-employee relationship. Mr. Bapat in his attempt to establish the petitioners entitlement has relied on several judgments which I proceed to consider.
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(i) In Ravindra Ambolkar (supra) Mr. Bapat had referred to the fact that the only evidence before the Labour Court was the petitioners testimony to come with certain letters produced by him which were received at the address of the first respondent. The employer who had examined himself and denied that there was any contract of employment and the only evidence was to indicate the contractual relationship and was the oral testimony of the petitioner in which he claimed that he was an employee. As corroborative evidence, the petitioner produced a bunch of letters which had been received at the address of the respondent where he had also been residing. The petitioner in that case was a nephew of the first respondent. Although the respondent contended that the petitioner was related to him and was living in the premises, the names of workmen employed were not entered in the muster roll and the Labour Court took a view that only the bare words of the employer could not be believed. The High Court observed that the Labour Court had chosen completely to disbelieve the evidence of the petitioner. Therefore there is no reason to interfere. There was no perversity in the order and hence the petition came to be rejected.
(ii) In Hussainbhai (supra), Mr. Bapat relied upon the tests to ascertain the existence of employer-employee relationship. In paragraph 5, the 26/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt Supreme Court held that where a worker or group of workers labours to provide services for the business of another, that other person is the employer. He has economic control over the workers and that the presence of intermediate contractors with whom the workers are immediate or direct relationship ex contractu is of no consequence when on lifting the veil the real employer is the management and not a immediate contractor.
(iii) In BSNL (supra), the Supreme Court had observed the diaries produced by the respondent employee which were maintained by him in the ordinary course of business would help him in proving that the employee had worked as a lineman. Mr. Bapat had sought to utilize this observation in support of his contention that the correspondence that he had preferred to, would establish that the workers concerned had received these letters in the usual course of business and therefore ought to be taken into consideration but the argument of Mr. Bapat overlooks the fact that in BSNL the workman concerned had suffered a electric shock pursuant to which the appellant had provided for medical treatment and hence the High Court had correctly held that the respondent had worked with the appellant on daily wage basis and also found that termination of his services were not in compliance with the Industrial Disputes Act. In my view, BSNL had relied on 27/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt Shankar Chakravarti (supra) in support of his contention that a party who appears before the Labour Court or Tribunal makes a claim or demur the claim of the other side and when a burden is cast upon the party to prove or establish a fact, it has to lead evidence and the tribunal or the Court is not required to advice the party about its rights and obligations. The obligation to lead evidence to establish a fact is on the party making the assertion and the test to be applied is who would fail if no evidence is led? In the instant case, Mr. Bukhari used this observation in support of his contention that the workman had not led any evidence save and except of two persons.
(iv) Mr. Bapat relied upon the case in the case of Mahalaxmi CHS (supra) and he submitted that the Labour Court should have appreciated the evidence but the Court had not done so. It had discarded the evidence. He further submitted that the best evidence had been ignored by the Labour Court. The statements of claim were identical and the evidence of the workman and that of the GLO should have been taken into consideration but the Court failed to appreciate this aspect. It is contended that an adverse inference should have been drawn in against the respondents in view of the evidence of the GLO but this was not done. Mr. Bapat submitted that the party with the best evidence viz. the respondents had not produced evidence. Being a 28/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt social welfare legislation provisions of the MRTU & PULP Act ought to have been strictly enforced. Mr. Bapat stressed upon the fact that GLO cannot be faulted and the evidence led had to be read in the context concerned on behalf of some of the legal heirs of the deceased employees.
30. On behalf of the respondents Mr. Bukhari has cited several cases which I have considered.
(i) In Municipal Council, Sujanpur (supra), the Labour Court and High Court had proceeded wrongly on the terms that burden of proof to establish non-completion of 240 days of work was on the management whereas the burden of proof was actually on the workman. Furthermore, burden of proving that the workman was not gainfully employed was also on the workman and furthermore the fact that some documents have not been produced by the management would not result in adverse interference being drawn against the management.
(ii) In Nirtubai Mahule (supra) also, it is held that the burden of proof in respect of an issue regarding employer employee relationship had been dealt with by the Supreme Court in the case of Workmen of Nilgiri Co-op. Mkt. Society Ltd. v/s. State of T. N. and others, a single 29/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt Judge of this Court reproduced paragraphs 47 to 50 of the judgment in Nilgiri (supra) which inter alila, holds that the person who sets up a plea of existence of relationship would bear the burden of proving it. In N.C. Johnson v/s. Secy. Thodupuzha Taluka Shop and Commercial Establishment workers' Union (Lab IC 402) Kerala High Court held that the burden of proof being on the workmen to establish the employer-employee relationship, no adverse inference can be drawn against the employer on the basis that if he were to produce books of account they would have proved employer employee relationship. In Swapan Das Gupta v/s. First Labour Court of West Bengal, it was held that where a person asserts that he was a workman of the company and it is denied that it is for him to prove the fact that he was an employee and not for the company to prove that he was not an employee of the company but of some other person. The question of relationship between the parties is a pure question of fact and ordinarily the High Court will not interfere in those.
(iii) In Phool Chand (supra) the Supreme Court observed that merely because the workman had succeeded in setting aside his order of termination or dismissal does not mean that he can receive back wages as of right. It is necessary for the workman to plead and prove with the aid of evidence that after his dismissal from the service, he was not 30/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt gainfully employed. In the instant case, Mr. Bukhari had submitted that unless there was evidence on behalf of the workman that they were employed and that they were paid wages, their claim for overtime could not be entertained.
(iv) In Force Motors Ltd. (supra), this Court held that a claim under Section 33C(2) cannot be outsted by a mere plea of denying the workmen's claim and that the provisions of Section 33C(2) had been dealt with in the case of Mahalaxmi Co-operative Housing Society in which a Division Bench of this Court had held that the scope of Section 33C(2) had already been considered in Central Bank of India v/s. P.S. Rajagopalan etc. by a Constitution Bench of the Supreme Court in which the workmen claimed that besides attending the duties of clerks, they had been operating adding machines and hence they were entitled to special allowances as provided by the Sastry Award. The bank disputed the claim. Three preliminary objections were raised; firstly that respondents can claim only non-monetary benefits that were capable of computation and therefore Section 33C(2) was not applicable. Secondly, without a reference made by the Central Government, the applications were not maintainable and lastly that the interpretation of the Sastry Award was outside the purview of Section 33C(2). The Constitution Bench had rejected the argument that if a 31/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt dispute is raised about the workman's right to receive the benefit, that dispute cannot be determined by the Labour Court under Section 33C(2). The Constitution Bench further held that on a fair and reasonable construction of sub-section(2) of Section 33C, it is clear that if the workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court and a contrary view would mean that it would option for the employer to allow the workman to avail himself of the remedy provided by sub-section(2). The claim under Section 33C(2) clearly postulates that determination of the question about computing the benefit in terms of money will have to be preceded by an enquiry into existence of a right which enquiry must be held to be incidental to the main determination.
31. Mr Bapat had submitted relying on Mahalaxmi (supra) that in an execution proceeding where the judgment debtor challenges the capacity of the decree holder to adopt a proceedings in execution, the Executing Court can go into the question whether the person invoking jurisdiction is entitled to initiate the proceedings and if so, whether he is entitled to relief sought. The Court observed that if on a mere raising of the objection by the employer that the employee who had filed application under Section 33C(2) is not a workman, the Labour Court is divested of its jurisdiction, the very object of Section 33C(2) will be 32/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt frustrated by the employer and the jurisdiction of the Labour Court cannot be ousted merely by disputing status of the person invoking him. Mr. Bapat had sought to press this observation into service. Furthermore, he submitted that the respondent in Mahalaxmi (supra) had relied upon the decision of a Supreme Court in Municipal Corporation of Delhi v/s. G. Razak (supra) but found that the judgment did not help the appellant because the respondents were a daily rated workmen who claimed that they were regular employees and therefore they were entitled to pay the same as regular employees on the principle of "equal pay for equal work". The appellant challenged the maintainability of the proceedings under Section 33C(2) and it was found that there was no adjudication by any forum of the claim of the workman for their entitlement to be paid wages. Since there was no award or settlement, there could be no occasion for computation of the benefit and on that basis to attract under Section 33C(2).
32. The Court then proceeded to examine the various judgments and concluded that when Labour Court's jurisdiction is questioned whether it has jurisdiction or not becomes an incidental matter and the Labour Court can enquire with the same and in the given case there may be necessary to determine the identity of the person against whom the claim is made if there is a challenge and such determination 33/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt would be incidental. It further held that while dealing with the application under Section 33C(2) the Labour Court must keep the legislative intent in enacting the provisions in mind. The Court after examining the various propositions, observed that when the appellant had raised a jurisdictional plea and has denied employer-employee relationship, to find out whether the plea is genuine the Labour Court must conduct the incidental enquiry and the status and prior to computing the benefit claimed by the workmen.
33. The issues raised by the appellant would have to be preceded by an enquiry into the issues raised by the appellant and the status of the workman was an incidental matter which the Labour Court must examine. The Court held in Mahalaxmi (supra) that the Labour Court had not properly appreciated the ratio in Central Inland Water Transport Company (supra) and that since the jurisdiction of the Labour Court was an issue the status of the appellant and respondent became an incidental matter and having allowed the parties to lead evidence, the judgment debtor should have given a decision one way or the other.
(i) In Tara (supra), the Supreme Court held that where nature of employment itself was in dispute, there must be prior adjudication on 34/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt merits only then the application under Section 33C(2) could be moved.
(ii) In the case of Harish Thadani (supra) a Single Judge of this Court (B.P.Saraf,J.) as he then was considered the jurisdiction of the Labour Court and held that a controversy relating to whether a person was in employment or not cannot be resolved under section 33C(2). Under Section 33C(2) the Court can only decide the amount of the benefit to be paid upon computation and the Labour Court cannot arrogate to itself power of making any adjudication in the nature of determination, whether a person was in employment or not and where there is a controversy relating to such fact there is no question of computing the quantum.
(iii) In Motiram Thakare (supra) this Court have also occasion to consider whether the issue pertaining to status of the applicant in proceeding under section 33C(2) is not an incidental to the main issue. Thus, it cannot be said that a decision on the status of a claimant could be decided in a proceeding under section 33C(2). In Kalyani Steels (supra) the Supreme Court has also held that a complaint by workmen under Section 28(1) of the MRTU & PULP Act is not maintainable till the status of the workmen were established before an appropriate forum. In Cipla Ltd. (supra) also the scope of section 33C(2) came up 35/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt for consideration. It was contended that in determining whether or not wages have been appropriately paid, the authority under the Payment of Wages Act was held to have jurisdiction to determine the incidental question of whether or not the applicant was in the employment of the Railway administration. The Court held that it was an incidental question. The Court further rejected this contention that a similar view can be taken in case of application under section 33C(2).
(iv) In Hindustan Coca Cola (supra), the Division Bench of this Court while considering import of Section 32 of Industrial Disputes Act observed that the Court constituted under Section 28 of the MRTU & PULP Act will have no jurisdiction to entertain the complaint unless his status or relationship of the employer-employee was first determined.
(v) In the case of R.M. Yellati (supra) the Court was once again considering the aspect of drawing an adverse inference and the Court concluded that mere non-production of muster rolls per se, without a plea of suppression would not be a justifiable reason for drawing an adverse inference against the employer.
(vi) In the case of Navbharat Press (supra), while interpreting Section 33C(2) the Court relied upon the Constitution Bench of the Supreme 36/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt Court in Central Bank of India affirming that the proceedings are in the nature of execution proceedings and therefore postulates determination of computation of benefits under monetary terms and also relies upon a similar view taken in the case of Inland Water Transport Corporation.
(vii) In Agricultural Produce Market Committee (supra), a Single Judge of this Court, as he then has also taken a view that if there exists a master servant relationship an application under Section 33C(2) was maintainable but if it is difficult to hold that there exist such a relationship, the application would not be maintainable. In that case the Court was considering the contention that the workman concerned was a weighman, one of the contention was that the respondent was a licencee and being a licencee he was not an employee.
(viii) On the specific issue of overtime wages in Vellore Cooperative Sugar Mill (supra) an application was made under section 33C(2) for overtime wages. It was found that there was not enough evidence of their having been employed. In absence of such oral evidence by the workmen which would also result in their cross examination, a mere reliance on the document was insufficient to determine the factual basis of the issues involved. The Supreme Court reiterated that Section 37/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt 33C(2) are in the nature of execution proceedings and presupposes an adjudication leading to the determination of a right, which has to be enforced. Given the fact that the claim had to be disputed from the beginning. Thus, existence of prior adjudication was one of the crucial elements that was required to be considered. In yet another case of Western Railway (supra) the issue of overtime was considered by a single Judge of this Court. The Labour Court had upheld the claims and directed to the employer to compute the claim of overtime. The High Court set aside the orders holding that there is absolutely no evidence before the Labour Court to support the overtime claim.
(ix) In Shri Warana Agricultural Goods Processing Society (supra), once again a single Judge of this Court has held that for enforcing rights claim under Section 33C(2) there must be pre-existing benefit or one flowing from a pre-existing right. In the present case, I am unable to find any such pre-existing right. No evidence has been led by most of the workmen to claim diverse amounts. In the case of S.A.Shaikh (supra), the claim for allowance was made in respect of night duty.
34. Having considered the plethora judgments on the issue, I find that establishing the employer-employee relationship was fundamental to 38/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt the petitioner's case and that was a pre-requisite. Although the case of Mahalaxmi (supra) may seem to come to the assistance of Mr. Bapat it does not, because even if the matter of the employer-employee relationship was at all an incidental matter, the petitioners have failed to avail of an opportunity to establish the relationship. Let me therefore examine the efforts made by the petitioners to make out a case.
35. According to the respondent, there was no partnership in existence. This is an aspect which the petitioners ought to have established if they were partnership or proprietary concerns that were running or managing the power looms, the appropriate statutory records will be available including shop and Establishment Act Licence, records of the partnership in the office of the registrar firms, or the sales tax and income tax records etc. No attempt has been made by the petitioners to establish the very basic aspects of employment of the petitioners by the respondents. Absent this, the contention of the petitioners that they were employed by the respondents is vague and would only strengthen the respondents hands and therefore their contention that there was no employer-employee relationship. In my view, unless the petitioners established the employer-employee relationship the very basis of their claim would be vulnerable. The entire substratum of their case is the 39/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt existence of employer-employee relationship.
36. Next there would have to be the determination as to the amount "due". The discretion of the Labour Court would determine the amount that may be due and is restricted the money value of benefit and Section 33C. It provides that a Commissioner may be appointed and may take evidence and submit a report to the Labour Court who would determine the amount after considering the report of the Commissioner. None of these have occasioned in the instant case. It is not the case of the petitioners that amounts due on account of such benefit assuming that to be so, the petitioners would had to contend that the benefit has to be computed and could have made an application for such assistance from the Labour Courts/Commissioner as contemplated under sub-section (2) of Section 33C and its proviso. No such attempt has been made. The pleadings do not suggest the amount of bonus, privilege leave etc. amounted to a benefit which was required to be computed.
37. On the other hand, the application, copy of which appears at Exhibit A to the petition proceeds on the basis that the petitioners are workmen employed by respondents who are family members and partners having two units. They have sought to compute overtime on the basis 40/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt of a Minimum Wages Notification. Thus, the case is specific, that they have also computed the amount of bonus and privilege leave. No basis of computation has been provided either in the statement of claim or in the form of deposition of witnesses. The amounts of bonus claimed are varying as can be seen from Rs.1,384 to Rs.5,630/-. A majority of the petitioners claim bonus of Rs.5,630/-. Likewise overtime and bonus are being claimed for the period 1988 to 1992 whereas privilege leave is being claimed for the period 1990 and 1991. The application is admittedly made in the year 1993, thus clearly filed belatedly. There is nothing to show that the appropriate government had permitted filing of the belated application as contemplated in the second proviso to Section 33C(1). Thus, the petitioners could have availed of this provision and sought adjudication of the claim on the basis that the claim for bonus and privilege leave etc. were benefits which required to be computed but no such attempt has been made instead there is a claim incorporated in paragraph 6 of the application in the form of statement of calculations but no basis for the calculation has been provided in the pleadings or in the evidence. This is one aspect that has been highlighted by the respondents.
38.The absence of such particulars is fatal to the petitioners claim even assuming the employer employee relationship was accepted. The 41/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt evidence as we have seen has not established that any or all the petitioners were in fact employed with the respondents. The vague contention in the application that the opponents are the family members and partners running the power loom business in Bhiwandi does not assist in understanding which of the petitioners are employed by the respondents or whether some petitioners namely petitioner nos.1 to 16 who claimed to be working at Ashok Nagar were employed by any of the respondents and if so which of them. All original respondents are shown to be residing at 486, Roshan Baug. The address of one of the unit is also to be said to be 486 Roshan Baug. The pleadings are vague and lacking in material particulars. The petitioners have failed in establishing which of the respondents were the employers of petitioner nos.1 to 16 and of petitioner nos.7 to 40. Although it is the contention of the petitioners that two units are shown separately with a view to defeat the provisions of labour laws no attempt has been made to show that the respondents were in partnership or otherwise.
39.The evidence sought to be relied upon by Mr. Bapat is in my view inconclusive as to employment of the petitioners who are said to addressees of the letters or authors thereof being employed with any of the respondents. Amongst the 15 documents filed, only two of the 42/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt 40 claimants, one Hafiz Shamsuddin and one Vijay Kane are stated to have received letters from the employer. Once again this is merely a vague statement. There is no pleading to the effect that those two gentlemen were in fact employed by one person or by a group of persons acting in partnership. Absent such particulars it is not possible to come to a finding in their favour. The petitioners therefore have failed to cross the first hurdle viz. of establishing the employer employee relationship.
40. It is also pertinent to note that in Reference(IT) nos.16, 18, 19 and 20 of 1996 forming subject matter of the common judgment, not a single workman was examined on oath. Admittedly in paragraph 1 of the application, the petitioners have claimed benefits mentioned in the statement annexed to the application which is a computation bereft of particulars. Thus, the petitioners had benefits in contemplation when the application was filed yet they did not avail of computation mechanism contemplated. Had that been done there may have been yet another opportunity for the Labour Court to elicit information from the respondents. As far as the respondents are concerned, they denied the employer employee relationship when notices were served upon them they have also not provided any evidence in support of their contentions but the law as we have seen clearly places the burden on the workmen.
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41. In Writ petition no.7163 of 2004 the challenge is to the common award dated 30th December, 2003 in six references. The six references cover approximately 23/28 workmen but surprisingly of these 28 persons and interestingly out of all these 28, only two persons were examined on oath. The petitioners have thus failed to establish the employer-employee relationship. The Industrial Court in the award observed that the respondents denied having 100 employees. All other aspects of the claim were also denied. What is material to note is that the petitioners in the writ petition were by then aware of the respondents contentions in the applications filed under section 33C(2) yet they did not make any effort to establish their case. Furthermore, it was noticed that only 7 workers had produced certain letters in respect of their contention of being employed by the respondents and all these persons were parties in Reference no.20 of 1996. Mr. Bukhari had also stressed upon the fact that the Government Labour Officer had proceeded under the Personal Management Advisory Services and he admitted that the issue pertaining to reinstatement was not any of his concern. In his cross examination, the Government Labour Officer admitted that although he had occasion to deal with one of the respondents, he had not produced any proof of ownership nor did the Government Labour Officer ask the said Afzal Ansari to produce any document of ownership although according to the Government Labour 44/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt Officer the said Afzal had contended that he was the owner. Furthermore, no notice has been given by the Government Labour Officer of his visits. Thus, even the so called correspondence would not come to the assistance of the petitioners.
42. Thus, having failed to establish that there was an employer employee relationship, the Labour Court was fully justified in holding under section 33C(2) which sought to recover an un-ascertained sum of money which is not specifically adjudicating as due and payable by the respondents or such of them who were found to be employers of the petitioners. In view of the aforesaid, I am of the view that the impugned award in Writ Petition no.7163 of 2004 must stand or fall depending on the fate of the judgment impugned in Writ Petition no.4010 of 1997. I am of the view that unless employer employee relationship was admitted by the respondents or otherwise proved by the petitioners, there was no occasion to consider the claim even assuming the benefits were to be subjected for an adjudicatory protest pursuant to provisions of sub-section (2) of section 33C. Writ petition has no merit.
43. In view of the failure of the petitioners to establish that they were employed there is no question of reinstatement. The contention of the petitioners that they were victimized for forming a union and that 45/46 ::: Uploaded on - 07/05/2019 ::: Downloaded on - 08/04/2020 12:43:04 ::: wp-4010.97 & 7163.04(f).odt their services were terminated orally from the dates mentioned under reference are of no avail. The award concludes that in the absence of establishing employer-employee relationship the question of terminating the services of the workman by way of victimization would not arise and the tribunal declined to grant any relief. Nothing in the impugned judgment of the Labour Court or the impugned award of the Industrial Court, has been shown to be perverse or illegal. The petitioners had all the opportunities available to them to establish their case. Furthermore, the Industrial court has observed that Government Labour Officer could not establish as to how proceedings were initiated. In this view of the matter, I am of the view that the challenges in both these writ petitions must fail and therefore I pass the following order;
(i) Writ petitions are dismissed. Interlocutory applications, if any, stand disposed.
(ii) No costs.
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