Bombay High Court
Bhaskar Janardhanrao Vaidya vs Member on 27 January, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 3211 OF 2005.
Bhaskar Janardhanrao Vaidya,
Aged about 38 years, Occupation -
Nil, Resident of Kirannagar No.1,
Amravati, District - Amravati. ... PETITIONER.
ig VERSUS
1. Member, Industrial Court,
Amravati.
2. Director of Sports and Youth
Services, Maharashtra State,
Pune.
3. Principal, Sports Academy,
Amravati, C/o. Hanuman Vyayam
Prasarak Mandal, Amravati,
Tq. District - Amravati. ... RESPONDENTS.
---------------------------
Shri J.T. Gilda, Advocate for Petitioner.
Learned A.G.P. for Respondent Nos. 1 & 2.
Shri R.E. Moharir, Advocate for Respondent No.3.
-------------------------
CORAM : B.P. DHARMADHIKARI, J.
DATED : JANUARY 27, 2010.
::: Downloaded on - 09/06/2013 15:33:16 :::
2
ORAL JUDGMENT :
1. By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner / employee is challenging the judgment dated 31.03.2005 delivered by the Industrial Court in ULP Revision No. 50/2001, whereby the judgment dated 29.03.2001 delivered by the Labour Court at Amravati in Complaint ULPA No. 113/1997 came to be quashed and set aside. The Labour Court had allowed the ULP Complaint filed by the petitioner partly, by directing employer [present respondent no.2] to reinstate him back in service with continuity and 50% back wages.
2. Respondent no.3 before this Court is the Principal of Sports Academy and was respondent no.2 in ULPA Complaint. State Government took a decision to establish Sports Academy at each District place and in implementation of that decision, respondent no.2 Sports Academy was created at Amravati. As per the scheme, Director of Sports and Youth Service of State Government at Pune was to supervise and coordinate working of all District Sports Academies.
The said Director was respondent no.1 before the Labour Court and is respondent no.2 here. Industrial Court which has passed reversing ::: Downloaded on - 09/06/2013 15:33:16 ::: 3 order is respondent no.1 before this Court.
3. Petitioner filed ULPA Complaint No. 113/1997 on 20.10.1997 contending that he was earlier working with some other Government establishment and he had completed three years of apprentice ship services. Thereafter, though he became eligible, but he was not absorbed in government service. In this situation, he applied to Hanuman Vyam Prasarak Mandal, Amravati which appointed him in November, 1995. Though he was qualified to work as Stenographer and had experience also, he was given clerical duties and he worked there for about 9 months. In pursuance of policy decision taken to establish Sports Academy at each District Level. Sports Academy was accordingly established at Amravati within the premises of Hanuman Vyam Prasarak Mandal itself. Respondent no.2 Principal was in control and supervision of activity of respondent no.3. Petitioner as also some other employees working with Hanuman Vyam Prasarak Mandal were orally asked for their option for working in said Sports Academy. The petitioner gave his option and accordingly on 13.07.1996 he started working with respondent no.2 as Stenographer. Because of his previous experience in government office, he was also entrusted with other office work and treasury matters. He also contended that after his services were absorbed in ::: Downloaded on - 09/06/2013 15:33:16 ::: 4 Sports Academy, he was paid meager honorarium and that too by Hanuman Vyam Prasarak Mandal, Amravati. It was stop gap arrangement and after sanction of funds to Sports Academy at Amravati, Sports Academy was to repay the honorarium to Hanuman Vyam Prasarak Mandal. He was accordingly paid Rs. 800/- per month. He further pointed out that the Director of Sports vide letter dated 15.10.1996 addressed to respondent no.2 informed that petitioner was appointed in Sports Academy as a Stenographer, and Principal of Sports Academy was directed to send his appointment order. He contended that he was sanctioned wages as Stenographer, but then the Principal asked him to take wages as that of clerk. He disclosed his willingness to accept that amount under protest, and as that was not accepted, he filed ULPA Complaint No. 537/1997 before the Industrial Court, claiming wages as Stenographer. In this background on 04.08.1997 a letter dated 01.08.1997 was issued and served upon him whereby his services were terminated immediately with retrospective effect. He contended that this was in violation of provisions of Section 25[F] of the Industrial Disputes Act. He contends that there was violation of Section 25[H] also.
4. His complaint was opposed by present respondent nos.2 and 3, who contended that petitioner was never recruited and was not in their ::: Downloaded on - 09/06/2013 15:33:16 ::: 5 service. They pointed out that he was taken on loan because of arrangement with Hanuman Vyam Prasarak Mandal to start Sports Academy at Amravati. They pointed out that his services were made available by Hanuman Vyam Prasarak Mandal on 15.07.1996, and he was being paid honorarium of Rs.800/- per month.
5. In this background, evidence was led and the Labour Court delivered judgment on 29.03.2001 as mentioned above. The Labour Court held that there was relationship of employer and employee between the parties, and respondent nos. 2 and 3 could not establish that petitioner was sent on deputation. It further found that documents to show deputation were created after termination of service of petitioner. It has made reference to all those documents and granted relief of reinstatement with continuity and 50% back wages. In Revision No.50/2001 filed by respondent nos. 1 and 2, respondent no.1 found that appreciation of documents by Labour Court was not correct and there was no employment granted to petitioner by respondent nos. 2 and 3. It also considered the documents and the evidence on record to arrive at a finding that a dispute as to existence of relationship of employer and employee between the parties necessarily arose. In this background, it made reference to certain judgments to come to conclusion that adjudication of such ::: Downloaded on - 09/06/2013 15:33:16 ::: 6 dispute was beyond the jurisdiction of Labour Court in complaint under Section 28 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act. Thus it found that petitioner could not establish that he was working with respondent nos. 2 and 3, and also found that Labour Court could not have decided the complaint. In view of these findings, it allowed the revision filed by present respondent nos. 2 and 3.
6. In this background I have heard Shri Gilda, learned counsel for petitioner, learned A.G.P. for respondent nos.1 and 2 and Shri Moharir, learned counsel for respondent no. 3.
7. Shri Gilda, learned counsel for petitioner has at the threshold relied upon the judgments reported at (1) 2006 [6] Mh.L.J. 362 (Sunanda Hari Kadam and another .vrs. Manisha Hospital, Mumbai); (2) 2004 [3] Mh.L.J. 733 (Jayhind Vithoba Mahadik .vrs. General Manager, Maharashtra Scooters Ltd); (3) 2003 [1] Mh.L.J. 36 (Ramchanda Narayan Rao .vrs. Sub Divisional Officer, M.M. Project); (4) 2006 [3] Mh.L.J. 120 (Sayed Shabbir Sayed Chand .vrs. M.S.R.T.C. Akola);
(5) 2003 [4] Mh.L.J. 478 (V.R. Walvekar and another .vrs. Gopal Narayan Marathe and others) and (6) 2001 [2] Mh.L.J. 84 (M.K. Bhuvaneshwaran .vrs. M/s. Premier Tyres Ltd.) to urge that scope of ::: Downloaded on - 09/06/2013 15:33:16 ::: 7 jurisdiction available to Industrial Court under Section 44 of the MRTU & PULP Act is very restricted and in that jurisdiction by appreciating the entire evidence the Industrial Court could not have taken a different view of the matter. He has for said purpose invited attention to the correspondence between the parties as looked into by the Labour Court to urge that the fact that petitioner was working with respondent no.3 Krida Prabodhini as clerk has been admitted, and the fact that he was being paid Rs.800/- is also admitted. In this situation, according to him the contention that petitioner was sent on deputation by Hanuman Vyam Prasarak Mandal to Krida Prabodhini, has been evaluated appropriately by the Labour Court and no interference there in is warranted. He has taken the Court through said correspondence to urge that findings in relation thereto as recorded by the Industrial Court, are unsustainable and erroneous.
He therefore, states that the petition as filed needs to be allowed and the order of Labour Court needs to be restored.
8. Shri Moharir, learned counsel on the other hand has contended that respondent nos.2 and 3 before this Court are the department of State Government and there was no appointment of petitioner in any government service. He points out that since beginning respondent nos. 2 and 3 have taken stand that in absence of any staff services of ::: Downloaded on - 09/06/2013 15:33:16 ::: 8 petitioner were taken on loan from Hanuman Vyam Prasarak Mandal by Krida Prabodhini. He argues that the honorarium of Rs.800/- per month was infact the salary which petitioner was receiving while he was working with Hanuman Vyam Prasarak Mandal, and after petitioner started working as clerk with respondents, however respondents continued to pay very meager amount. He states that the Labour Court did not correctly appreciate the facts and therefore, had misread the documents produced on record by the Authorities. He places reliance upon those documents and particularly, its appreciation by the Industrial Court to urge that all those documents conclusively establish that petitioner was not employee of respondent nos. 2 and 3.
9. About the technical objection, as to the scope of jurisdiction available to the Industrial Court, the learned Counsel argues that as Labour Court did not appreciate the entire correspondence and there was failure to exercise jurisdiction, the Industrial Court has in revisional jurisdiction rightly appreciated the same. He argues that the evidence considered cannot be construed in any other way and finding reached by the Industrial Court on it is only conclusion logically flowing from its appreciation. He therefore, states that all judgments relied upon by the petitioner to show the limited scope of ::: Downloaded on - 09/06/2013 15:33:16 ::: 9 jurisdiction are irrelevant, because the tests laid down therein for exercising that jurisdiction are satisfied in the present matter.
10.He invites attention to the other findings of Industrial Court to urge that when respondent nos.2 and 3 had pleaded arrangement with Hanuman Vyam Prasarak Mandal and pointed out that petitioner was taken on loan from Hanuman Vyam Prasarak Mandal and documents justify this arrangement, the absence of relationship between petitioner and respondent nos. 2 and 3 was proved on record. In any case, in this situation because of the judgments in the matter delivered by the Division Bench of this Court in 2008 [1] LLJ 271 (Sarva Shramik Sangh .vrs. Janprabha Offset Works and another) and by me in 2006 [4] Mh.L.J. 21 (Maharashtra Industrial Development Corporation .vrs. Member, Industrial Court, Nagpur and others), the finding of Industrial Court, that Labour Court did not possess the jurisdiction to take cognizance of ULPA Complaint needs to be maintained. According to him, therefore, not only on merits but even on preliminary issue of jurisdiction, the ULPA Complaint as filed deserves dismissal and hence, the judgment impugned herein by the Labour Court cannot be restored.
11. Learned A.G.P. has supported the order of the Industrial Court and ::: Downloaded on - 09/06/2013 15:33:16 ::: 10 has contended that the question of right to post or of public nature of employment has not been gone into either by the Labour Court or by the Industrial Court.
12.Case of petitioner in his complaint has been briefly mentioned above.
He accepted his employment with Hanuman Vyam Prasarak Mandal and urged that after he gave option to work with Krida Prabodhini, he resumed duties w.e.f. 17.7.1996. He has thereafter stated that after his services were absorbed by respondent no.3 he was paid a meager honorarium and that honorarium was being paid by Hanuman Vyam Prasarak Mandal. Then he has pointed out that when he demanded salary of Stenographer, it was not paid to him and he was required to file ULPA Complaint No. 113/1997 for that salary. In his entire complaint he no where stated that any appointment order was issued by the respondents to him and he was appointed as Stenographer or as clerk by them.
13.In this connection when the appreciation of controversy by the Labour Court is looked into, the Labour Court has found that after option was given by the petitioner, he was appointed in Sports Academy as Stenographer. It has then found that witness no.1 examined by the Sports Academy stated that Principal was given ::: Downloaded on - 09/06/2013 15:33:16 ::: 11 powers to engage employees on honorarium basis. Labour Court has noted that this witness did not depose that any employee of Hanuman Vyam Prasarak Mandal was taken on loan in Sports Academy. Witness no.2 Shri Wadodkar, stated that when work of Sports Academy started in 1990, 5 employees of Hanuman Vyam Prasarak Mandal were taken on loan for doing that work. He further stated that out of those couple of employees i.e. petitioner, Shri Karanjkar and Shri Ingle were sent back to Hanuman Vyam Prasarak Mandal and remaining two employees namely Shri Choukhade and Shri Pokhale were then working in Sports Academy. It has then considered various documents on records, particularly documents filed with list Exh.3 to note that there was a letter at Exh. 3[6] dated 02.11.1996, whereby Principal had written to the Director to issue temporary appointment order infavour of petitioner and others. It has then made reference to letter at Exh. 3[8], whereby Hanuman Vyam Prasarak Mandal informed Principal of Krida Probodhini, that it had paid advance to these 5 employees per month and requested Principal to refund it to Hanuman Vyam Prasarak Mandal. Exh.3[9] is the communication by the Principal, Krida Prabodhini to Hanuman Vyam Prasarak Mandal stating that 5 employees were on pay roll of Sports Academy and asking Hanuman Vyam Prasarak Mandal not to pay any advance to them and assuring that advance earlier paid ::: Downloaded on - 09/06/2013 15:33:16 ::: 12 would be refunded.
14.Exh. 3[11] is the letter of the Director of Sports to Principal to pay wages by way of honorarium to employees working in Sports Academy as per Rules. Exh. 35 is a letter dated 19.10.1996 written by the Principal to Director, mentioning that petitioner and four employees were working in Sports Academy. Exh.3[4] submitted by the petitioner was sent to the Director for necessary action. It is in this background, in paragraph no.10 Labour Court concluded that there was no document by Hanuman Vyam Prasarak Mandal to show that the petitioner and others were sent to Sports Academy on deputation. It found that only in Exh.3[1] and 3[3] there was mention of such deputation. In view of the documents and admission of witness no.2 Wadodkar, that he had no personal knowledge about the things before he became Principal of Sports Academy, Labour Court concluded that there was no documentary evidence of any deputation and theory of deputation cannot be accepted. It further found that if Shri Ingle was on deputation, Principal of Krida Prabodhini could not have accepted his resignation.
In view of this discussion, it concluded that Exh. 3[1] and 3[3] were prepared lateron to show the deputation. It further found that there were no documents also to show that the respondents before it had ::: Downloaded on - 09/06/2013 15:33:16 ::: 13 any authority to sent back the employees to Hanuman Vyam Prasarak Mandal, and there was no request letter sent by the Hanuman Vyam Prasarak Mandal on record. In view of these findings it concluded that case of petitioner appeared to be probable.
15.With the assistance of both the learned counsel, I have perused the document to which the Labour Court as also the Industrial Court has made reference. The consideration by the Industrial Court shows that the document Exh. 3[3] is letter dated 01.10.1996 which has been referred to as application by the Industrial Court. This application was addressed by the petitioner to the then Hon'ble Minister of Sports and in that application, petitioner had mentioned that he was working with Sports Academy from 15.07.1996 and he was sent their by Hanuman Vyam Prasarak Mandal. He has thereafter stated that post of Stenographer was lying vacant in the academy and he be therefore given appointment order for that post.
The second document considered by the Industrial Court is Exh. 35 which is a communication dated 19.10.1996 sent to Director of Sports. This communication also shows that petitioner was working in Sports Academy and Principal forwarded their applications for further action. Copies of these applications were given to all 5 employees. Document no.8 filed with the list Exh.17 is also ::: Downloaded on - 09/06/2013 15:33:16 ::: 14 considered by the Industrial Court and though the document is not exhibited, Industrial Court has mentioned that the document was admitted by the petitioner. Perusal of endorsement dated 17.03.2001 made on this Exh.17, shows that petitioner has accepted those documents. Those documents also mention the date 02.11.1996 and it also mention that the petitioner and 4 other employees of Hanuman Vyam Prasarak Mandal were working with the Sports Academy and no appointment orders were issued to them.
The copy of the application forwarded to the Director of Sports is also filed and it has been admitted by the petitioner. In this application it is mentioned that when he was working with Hanuman Vyam Prasarak Mandal he has been sent to Sports Academy by Hanuman Vyam Prasarak Mandal. Document Exh.17[9] is written by Hanuman Vyam Prasarak Mandal to the Principal of Sports Academy which mentions that 5 employees including petitioner were working with the Sports Academy and it points out the advance paid to them from August 1996 to March 1997. All these documents are prior to the date of termination i.e., 01.08.1997 or 04.08.1997. Though these documents are on record, it is apparent that the Labour Court has not considered all these documents or their impact. The Industrial Court has noted all these documents and has also considered their effect.
::: Downloaded on - 09/06/2013 15:33:16 ::: 15It has found that these documents clearly establish that petitioner was working with present respondent nos. 2 and 3 without any appointment order and as per the arrangement between Hanuman Vyam Prasarak Mandal and respondent nos. 2 and 3. These findings therefore cannot be labeled either as erroneous or perverse.
16.The Industrial Court was aware of the restraints on its power in the matter. In paragraph no.14 therefore, it has made reference to judgment reported at 2003 [1] CLR 50 (Sadanand Ramesh Samsi .vrs. Kirloskar Cummins Ltd.) to hold that when material evidence is not considered by the Labour Court and it amounts to perversity and illegality and it gives jurisdiction to Industrial Court to re-appreciate the evidence. This reason assigned by the Industrial Court has not been even whispered to be either erroneous or perverse. Even little later it found that though documents with list Exh.17 were admitted by the employee, the Labour Court did not apply mind to those documents. It has then considered such documents as mentioned above, and again in paragraph no.18 it has found that this documentary evidence was not considered by the Labour Court at all. It has also added that the Labour Court avoided to consider the documents in which admissions were given by the respondent that he was employee of Hanuman Vyam Prasarak Mandal and he was ::: Downloaded on - 09/06/2013 15:33:16 ::: 16 sent on deputation by Hanuman Vyam Prasarak Mandal, Amravati to Sports Academy. It therefore also observed that the judgment of Labour Court was contrary to law for non consideration of relevant and admissible evidence. This line of reasoning and application of mind also continues in paragraph nos. 21 and 22.
17.In paragraph no.19 of its judgment, Industrial Court found that the employee in his cross-examination accepted that he was unable to produce any such option on record. Learned Member found that the Sports Academy was established by the Government of Maharashtra and being Government Office it was not permissible to call oral options and issue oral appointment orders. The learned Member also noticed that the petitioner was not in a position to show how he was absorbed in the service of Sports Academy. In paragraph no.20 it has reproduced the relevant part of his cross examination. In paragraph no.22, in this background it has also dealt with the conclusions of Labour Court that document Exh.3[1] and 3[3] were prepared by present respondent nos. 2 and 3 with connivance of Hanuman Vyam Prasarak Mandal and found it to be unsustainable.
Consideration above by me clearly show that no exception can be taken to this finding. It is therefore, apparent that the Industrial Court was aware of the constraints on its power and in the ::: Downloaded on - 09/06/2013 15:33:16 ::: 17 background of its satisfaction that the material evidence was ignored by the Labour Court, it has exercised jurisdiction under Section 44 of the Act. I do not find anything wrong in the said exercise. None of the judgments cited by the learned counsel for the petitioner prohibit the Industrial Court from undertaking such scrutiny in such situation.
18.The fact that respondent nos. 2 and 3 are Government Offices and employment with it is public employment, has been recorded by the Industrial Court and that fact is not in dispute before this Court. If in such circumstances, any right to post or any relief of reinstatement was to be claimed, it was necessary for the petitioner to take appropriate pleas in relation thereto. The plea with which he approached Labour Court are already reproduced briefly by me above. He did not point out any public advertisement or any open competitive selection process in which all aspirants could have been given opportunity to compete for the post of Stenographer or clerk.
In this situation, it is apparent that by granting relief of reinstatement with continuity and 50% back wages to petitioners, Labour Court had acted with material irregularity and infact exercised jurisdiction which could not have been otherwise available to it. The application of mind by the Industrial Court therefore cannot be faulted with.
::: Downloaded on - 09/06/2013 15:33:16 ::: 1819.The other aspect of the matter i.e., undisputed or indisputable relationship as employer and employee is covered by the judgment delivered by me in the case of Maharashtra Industrial Development Corporation .vrs. Member Industrial Court, Nagpur and others [supra], and the aspect also stands concluded by the later Division Bench judgment in the case of Sarva Shramik Sangh .vrs. Janprabha Offset Works and another (supra). Here it is to be noted that respondent nos. 2 and 3 did not point out that petitioner was working under any contractor. But then they pointed out that there was some arrangement between Hanuman Vyam Prasarak Mandal, Amravati and themselves, wherein 5 employees of Hanuman Vyam Prasarak Mandal were made available on loan to them. The petitioner himself has accepted that he was being paid by Hanuman Vyam Prasarak Mandal and the amount paid to him was being reimbursed by respondent nos. 2 and 3 to Hanuman Vyam Prasarak Mandal. These facts therefore clearly show that there was no direct relationship of employer and employee between the parties, and respondent nos. 2 and 3 had availed of services of petitioner temporarily from Hanuman Vyam Prasarak Mandal. In these ::: Downloaded on - 09/06/2013 15:33:16 ::: 19 circumstances, and in the present matter I do not find the finding of the Industrial Court, that Labour Court could not have attempted to resolve the disputed issue of relationship is completely wrong.
20.It therefore follows that no case warranting interference in writ jurisdiction is made out by the petitioner. Writ Petition is thus dismissed, with no order as to cost.
JUDGE Rgd ::: Downloaded on - 09/06/2013 15:33:16 :::