Bombay High Court
Shri Kishore Ahuja vs Balkrishna C Kadam on 18 January, 2013
Author: R. M. Savant
Bench: R. M. Savant
wp-2367.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2367 OF 2006
Shri Kishore Ahuja ]
501, Kakad Apartment, ]
4, Pali Road, Bandra (W), ]
Mumbai 400 050 ].... Petitioner.
Versus
1] Balkrishna C Kadam ]
E/10, B.E.S.T. Quarters ]
Jerbai Wadia Road, Parel
ig ]
Mumbai 400 012. ]
]
2] Gokul Dairy Farm ]
C/o Shop No.3 ]
Happy House ]
Kalina Kurla Road, ]
Opp. Air India Colony ]
Mumbai 400 029. ]
]
3] Shantilal Dave ]
C/o Shop No.3 ]
Happy House ]
Kalina Kurla Road, ]
Opp. Air India Colony ]
Mumbai 400 029. ]
]
4] Narayan Joshi ]
Shop No.1, Om Vithoba ]
Rukmini Apts, Near Isckon ]
Juhu Road-A, ]
Mumbai 400 049 ]
]
5] Sunil Ahuja ]
202, Kakad Apartment ]
4, Pali Road, Bandra (W), ]
Mumbai 400 050 ]..... Respondents.
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Mr. Rajesh Gehani for the Petitioner.
Mr. Rakesh Sawant i/by Mr. A K Jalsatgi for the Respondent No.1.
CORAM : R. M. SAVANT, J.
DATE : 18th January 2013
ORAL JUDGMENT
1 The Writ Jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is invoked against the Award dated 31/12/2004 passed by the learned Presiding Officer, 4th Labour Court, Mumbai by which Award the Reference filed by the Respondent herein has been allowed and the Petitioner-Company has been directed to reinstate the workman i.e. the Respondent herein in service with continuity of service and full back wages w.e.f. 30.09.1996.
2 The factual matrix involved in the above Petition can be stated thus :-
The workman i.e. the Respondent herein claimed to be in employment of one M/s. Gokul Diary Farm for a period of six years prior to the date of his alleged illegal termination of service. It was his case that the said Gokul Dairy Farm was paying him Rs.2000/- per month and the business of of the said farm was of supply of milk. It was his case that the said farm was supplying milk to the small dairies on commission basis. It was his case that lgc 2 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 the said farm was employing about seven employees. It was his case that during the said six years of his employment, he had worked for more than 240 days in each calender year and was a permanent workman of the said farm. It was his case that the Petitioner herein had given said Gokul Dairy Farm to one Shantilal Dave and Narayan Joshi in the year 1994 on commission basis.
However it was his case that though the said farm was given to the said Shantilal Dave, the service conditions of the employees who were employed in the said farm were not affected. It was his case that the said Shantilal Dave carried out the business peacefully upto the end of January 1996. Thereafter the said farm came to be sealed by the Court on account of which the Petitioner i.e. the Kishore Ahuja and Sunil Ahuja transferred the workmen in their another business office of theirs known as Kishor Brothers, Vithoba Lane, Vitthal Wadi, Kalbadevi Road, Mumbai wherein the Respondent/workman worked till he was illegally terminated on 30/09/1996. It was his case that he was terminated since he had asked the Petitioner who is the owner of the said farm to provide him various benefits on account of which the Petitioner had got annoyed and did not allow him to resume the duty on and from 30/09/1996. It was his case that the termination of his service amounts to retrenchment under the provisions of the Industrial Disputes Act and the said retrenchment is illegal and bad in law for non-compliance of the provisions relating to the retrenchment. The Respondent/workman had accordingly raised a demand which went into conciliation and on failure of the conciliation lgc 3 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 proceedings, the matter was referred under Section 12 of the Industrial Disputes Act to the concerned Court for adjudication of the Reference.
3 The Reference was to the following effect :-
"Shri Balkrishna C Kadam should be re-instated in service with continuity of service and full back wages w.e.f 30/9/1996"
The statement of claim which has been filed pursuant to the Reference, the facts which have been stated herein above have been mentioned.
4 The Petitioner herein i.e. Kishore Ahuja and the Respondent No.5 Sunila Ahuja appeared in the said Reference and resisted the claim of the Respondent/workman by filing their Written Statements. In so far as Kishore Ahuja is concerned, it was stated by him that he did not issue any letter dated 30/9/1996 and that he was not concerned with the affairs of the said Gokul Dairy Farm since 1993. It was his case that the said Shantilal Dave was exclusively concerned with the management and affair of the said Gokul Dairy Farm. It was further his case that the Respondent-workman worked with the said Shantilal Dave since the year 1993 in the said Gokul Dairy Farm in a managerial capacity on part time basis and he left the service of the said Shantilal Dave in November 1995 after his full dues were paid by the said Shantilal Dave. It was further the case of Petitioner Kishore Ahuja that the Respondent-workman has nothing to do with the said Gokul Dairy Farm and lgc 4 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 that the whole claim of the workman was false and baseless.
5 In so far as Sunil Ahuja, who is the Respondent No.5 to the above Petition and the First Party in the Reference, is concerned, it was his case that the Reference in question was bad in law for non joinder of necessary parties as the workman had failed to implead Shantilal Dave and Narayan Joshi who were the employers concern. It was also the case of Sunil Ahuja that since the year 1993 he ceased to assist Kishor Ahuja in the affairs of the said farm and till the date of filing of the Written Statement he was not connected with the affairs of the said farm in any manner whatsoever. It was his case that in the year 1993, Kishor Ahuja handed over the entire management of the said farm to the said Shantilal Dave and Narayan Joshi. He therefore prays for rejection of the claim and dismissal of the Reference.
6 In the Reference amongst the issues framed was the Issue No.1 which was to the following effect :-
"Issue No.1 - Does Party No.2 prove that his service were illegally terminated by Party No.1 w.e.f.
30.09.1996?"
7 The parties led both the oral and the documentary evidence. In so far as the workman was concerned, he examined himself and on behalf of the Petitioner the evidence of Kishore Ahuja was adduced. It has come in the lgc 5 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 evidence of the workman that he was working as a clerk in Gokul Dairy Farm at Kurla since 16.12.1990 to 30.06.1996 and his salary was Rs.2000/- per month. He has also deposed that in the year 1994-95 for two years Gokul Dairy Farm was handed over to Shantilal Dave and Narayan Joshi for conducting on commission basis. It has further come in his evidence that after completion of the said period of two years, the said Shantilal Dave had refused to hand over the possession of the Dairy to the Petitioner, hence Kishore Ahuja lodged a Complaint with Kurla Police Station. It has further come in his evidence that in view of the fact that premises were sealed by the police, that he was was working at Kalbadevi office which was owned by Kishore Ahuja. He has deposed that he used to do bill collection and goods delivery. He has deposed that on 30.06.1996 the First Party i.e. the Petitioner and the Respondent No.5 terminated his service orally and that prior to such termination no charge sheet etc was issued to him. In so far as the evidence of the workman is concerned, what is significant to note that though in the demand notice as well as the statement of claim it was his case that he was terminated on 30/9/1996, in his deposition he has stated that he was terminated on 30.6.1996. Hence there was a variance in the case of the workman in respect of the date of his termination. It is required to be borne in mind that the Reference which was referred for adjudication was in respect of termination of the workman on 30.9.1996.
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8 The document which has some significance in the context of the
case of the workman that he was terminated illegally on 30.9.1996 is the document which is a report filed by the police pursuant to the enquiry conducted in the matter of the Complaint made by Kishore Ahuja regarding his dispossession from the premises of the Gokul Dairy Farm in the year 1996 after the same was handed over to him for a brief period after the period of agreement had come to an end. The said document i.e. the statements recorded before the police was produced in the Reference and marked as Exhibit- U-8. The said document was exhibited after the workman i.e. the Respondent herein had accepted that the signature on the said document was his. In the said statement before the police the workman had stated that he was employed in Gokul Dairy Farm since 1991. In his cross examination he stated that he had joined Gokul Dairy Farm in the year 1991. He further admitted in the statement that his service came to be terminated in the year 1995 by Shantilal Dave after paying all his dues.
9 In the statements which have been recorded by the police, the statement of Kishore Ahuja was recorded. He has stated that on 23.2.1996 while he was at his residence, his manager Shri Balkrishna Kadam i.e. the workman and another servant were present in the shop and they were doing their duties.
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10 Before the Labour Court the discrepancies and the contradictions
in the case of the workman were brought to its notice by the Advocate appearing for the Petitioner. The Labour Court as can be seen from the impugned Judgment and Order has in fact observed that there is in fact contradiction in the case of the workman from the statement of claim to what he has deposed before the Court. The Labour Court observed that it could not go beyond the Reference but thereafter glossed over the said discrepancy/contradiction by observing that though there are discrepancies it did not mean that the oral evidence and claim of the workman is not reliable.
It further went on to observe that such discrepancies make no difference. What seemed to have weighed with the Labour Court was the fact that in the statement made by Kishore Ahuja before the police he has stated that while he was at his residence on 23.2.1996 the workman and another servant were present in the shop when the incident of the Petitioner being ousted from the premises took place. This seems to be the basis on which the Labour Court came to a conclusion that the services of the workman were terminated by the Petitioner. In so far as the statement before the police Exhibit U-8 is concerned, the Labour Court held that the said statement could be used only for contradicting the witness. The Labour Court, therefore, by the impugned Award directed reinstatement of the workman with full back wages. As indicated above, it is the said Award dated 31.12.2004 which is impugned in the present Petition.
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11 Heard the learned counsel for the parties. The learned counsel
appearing for the Petitioner Shri Gehani would contend that the Reference in question in fact was not maintainable against the Petitioner and the Respondent No.5 and the same was maintainable only against the said Gokul Dairy Farm against whom in fact the workman had issued demand notice and also against whom the notices for conciliation etc. were issued. The learned counsel would contend that Kishore Ahuja and Sunil Ahuja were roped in much later i.e. in the statement of claim. The learned counsel would contend that the Petitioner had nothing to do with the said Gokul Dairy Farm since 1993 and in the light of the fact that it was the Respondent-workman who had stated before the police that he was terminated by Shantilal Dave in the year 1995 and was also paid all his dues, that the workman could not have any claim against the Petitioner. The learned counsel would contend that it was only for four days that the said Gokul Dairy Farm had come back in possession of the Petitioner i.e. from 10/2/1996 to 14/2/1996, and thereafter the Petitioner was illegally dispossessed by the said Shantilal Dave which resulted in the criminal case being filed pursuant to which the police was directed to inquire, and during the process of inquiry the police have recorded the statements which are comprised in Exhibit U-8. The learned counsel would contend that in view of the contradiction in the case of the Respondent-
workman as regards the date of termination and since the Reference was made lgc 9 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 on the basis that the date of termination was 30/9/1996 and since the argument the Respondent-workman had deposed in his oral evidence that he was terminated on 30/6/1996, the said fact went to the root of the matter and the Labour Court ought to have rejected the claim of the Respondent-workman and answer the Reference against Respondent-workman. The learned counsel would contend that once the statement made before police was exhibited as Exhibit U-8, in view of the fact that the Respondent had admitted his signature on the said document, the Labour Court ought to have relied upon the same and ought not to have granted the relief claimed in the Reference. The learned counsel lastly contended that the demand made against the Petitioner was malafide in view of the relations being strained between the parties on account of non-payment of the loan taken from the Petitioner by the brother of the workman.
12 Per contra, it is submitted by the learned counsel appearing for the Respondent-workman Shri Sawant that though initially demand notice and notices for conciliation etc. were in the name of the said Gokul Dairy Farm, they were also addressed to the Petitioner. The learned counsel would contend that there was no severance of relationship of employer and employee though the said dairy was given on commission basis to the said Shantilal Dave and Narayan Joshi. The learned counsel for the Respondent-workman would contend that the claim of the workman against the Petitioner would therefore lgc 10 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 survive and continue in respect of his employment. The learned counsel for the Respondent-workman would contend that the statement made before the police could not be relied upon, and that the observation of the Labour Court that the said statement could only be used for contradiction cannot be taken exception to. The learned counsel would contend that though it was the case of the Petitioner that they were not concerned with the affairs of the said dairy since 1993, there is no document placed on record by the Petitioner to substantiate their said case. The learned counsel would contend that the Award in question need not be interfered with in the Writ Jurisdiction of this Court under Articles 226 of the Constitution of India.
13 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. At the out set the said issue which arises for consideration is, whether the services of the Respondent-
workman were terminated by the Petitioner on 30/9/1996 which issue is compromised in the Reference made to the Labour Court. In that respect the evidence of the Respondent-workman would have to be seen. In his oral evidence which has been adverted to herein above, though demand was made that he was terminated on 30/9/1996, he has deposed that he was terminated on 30/6/1996. This is the first infirmity in the case of the Respondent-
workman in so far as his claim that his services were illegally terminated on 30/9/1996 is concerned. It is required to be noted that the Reference made to lgc 11 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 the Labour Court is as regards the termination of the Respondent-workman on 30/9/1996. The Labour Court therefore was bound by the terms of the Reference and could not on the basis of the said Reference embark upon the exercise of determining whether the workman was terminated on 30/6/1996.
The Labour Court has sought to trivialize the issue by observing that it hardly makes a difference whether the workman was terminated on 30/6/1996 or 30/9/1996. This in my view was an erroneous approach of the Labour Court as the evidence undoubtedly has to be considered in the context of the case which has been pleaded, and therefore, the evidence which is dehors the pleadings cannot be taken cognizance of. This in my view is the first error committed by the Labour Court. This also dents the case of the Respondent-
workman that he was terminated on 30/9/1996 by the Petitioner and the Respondent No.5.
14 In so far as the case of termination of the Respondent-workman is concerned, it would be relevant to note that the workman accepted the fact that for a period of two years the said Gokul Dairy Farm was handed over to the said Shantilal Dave and Narayan Joshi on commission basis and it is at the end of the said two years period, that the possession of the said Gokul Dairy Farm was to come back to the Petitioner. The said two persons, it seems, in fact handed over the said Gokul Dairy Farm on 10/2/1996, but after four days i.e. on 14/2/1996 it seems that the said two persons ousted Kishore Ahuja from lgc 12 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 the said dairy Farm resulting in the said Kishore Ahuja filing a private Complaint in the learned Magistrate's Court in respect of his dispossession.
The local police recorded the statements of the concerned parties in the enquiry which was conducted. In so far as the workman is concerned, it is pertinent to note that the workman in the said statement also accepted the fact that the said dairy was handed over to the said Shantilal Dave and Narayan Joshi in the year 1994 on commission basis and that it was handed over back to Kishore Ahuja, but the said two persons i.e. Shantilal Dave and Narayan Joshi ousted Kishore Ahuja from the premises of the said Gokul Dairy Farm resulting in the premises being sealed by the police in view of the dispute. It has further been recorded in the statement of the Respondent-workman that he was terminated by the said Shantilal Dave in the year 1995 and was paid all of his dues. In so far as the statement of Kishore Ahuja before the police is concerned, though it is to the effect that when he was at his residence, that the Respondent-workman and one other servant were present in the shop and they were doing their duties, the said statement has to be considered in the context of the earlier statement of the workman that he was in the service of said Shantilal Dave and was terminated in the year 1995 and was paid all his dues.
In so far as the statement of Kishore Ahuja is concerned, it is further required to be noted that he has specifically stated that he is not concerned with the said Gokul Dairy Farm since 1993, and it is the said Shantilal Dave who is concerned with the said Gokul Dairy Farm. This case of the Kishore Ahuja is lgc 13 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 corroborated by the statement of the said Shantilal Dave recorded by the police. In his statement the said Shantilal Dave has stated that he requested Bhupesh Gandhi, who was the landlord of the premises of the said Gokul Dairy Farm, to sell the said premises to him, however, the same could not be fructified in view of the fact that the Kishore Ahuja was the tenant in respect of the said premises, and therefore, it was agreed that the said premises would be given on tenancy basis to the said Shantilal Dave, and that is how he came into possession of the premises in question. It is further required to be noted that the premises were lying sealed possibly right up to the year 1997 when the criminal case in question it seems was compounded. It is on the said basis that Kishore Ahuja has opposed the claim on the ground that he has nothing to do with the said Gokul Dairy Farm. Though no document was produced during trial of the Reference before the Labour Court, the fact remains that the statement recorded by the police has been exhibited. The fact that there were some criminal proceedings pending between the parties has also come on record. During the course of the hearing of the above Writ Petition, the learned counsel appearing for the Petitioner Shri Gehani tendered a compilation of documents which Compilation comprises the Application dated 19/3/1997 for taking the case No.821/N/96 on board for compounding and the copy of Application dated 19/3/1997 seeking permission to compound the case No.821/N/96 and for withdrawing the said case. It has been averred in the said Application dated 19/3/1997 that the parties have settled the matter lgc 14 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 between themselves and that the Party No.1 therein i.e. Kishor Ahuja gives up his claim of tenancy, ownership, possession or partnership in the said shop premises or in the said business in any way whatsoever and relinquished all his rights, title, interest and claim in the said shop premises or any part thereof.
Though the said documents have been produced before this Court at this stage, the fact remains that the said documents in a way corroborate the case of the Petitioner that he had nothing to do with the said Gokul Dairy Farm since 1993, that the premises were sealed, that there was a criminal case pending, and it was Shantilal Dave who was concerned with the said Gokul Dairy Farm.
The Labour Court as indicated above has merely on the basis of the statement of Kishore Ahuja before the police that on a particular day the workman and one other servant were present in the shop and they were doing their duties came to a conclusion that the workman was in the employment of the Petitioner. The Labour Court in the said process has totally glossed over the fact that it is the case of the workman himself that he was terminated in the year 1995 by the said Shantilal Dave and was paid all his dues. The Labour Court also by observing that the statement as contained in Exhibit U-8 i.e. the statement made before the police by the Petitioner can only be used for contradiction has refused to take cognizance of the said statement. The Labour Court also did not take into consideration the glaring discrepancies and contradictions in the case of the workman, as indicated above, though in the demand notice the workman stated that he was terminated on 30/9/1996, in lgc 15 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 his evidence the workman has deposed that he was terminated on 30/6/1996.
Further though it was the case of the workman that he was appointed in the year 1990, before the police he stated that he was appointed in the year 1991.
Though he has stated before the police that he was terminated by Shantilal Dave in the year 1995 and was paid all his dues, he had stated that he continued in service with the Petitioner and was working at Kalbadevi office which was one of the concerns of the Petitioner. There was absolutely no material produced on record as regards his employment at Kalbadevi.
15 In my view, there are too many loose-ends in the case of the Respondent-workman in his pursuit of the relief of reinstatement and back wages. The Labour Court in my view, has totally mis-directed itself by not considering the aspects as mentioned herein above, and merely on the basis of the statement of Kishore Ahuja recorded before the police, which statement the Labour Court does not accept in so far as the workman is concerned, has allowed the Reference. The findings recorded by the Labour Court, in my view are not on the basis of the evidence on record and therefore can be said to be perverse. The Labour Court in the teeth of the case of the Petitioner and the Respondent No.5 that they were not concerned with the said Gokul Dairy Farm since 1993 ought to have addressed the said issue, however, without addressing the said issue had allowed the Reference against the Petitioner.
Though it is the case of the Petitioner that the demand was raised against the lgc 16 of 17 ::: Downloaded on - 09/06/2013 19:34:33 ::: wp-2367.06 Petitioner was malafide in view of the strained relations between the parties on account of the non-payment of the loan by the brother of the Respondent-
workman, it is not necessary to go into the said aspect. In my view, therefore, the impugned Award is required to be quashed and set aside and is accordingly quashed and set aside. Rule is accordingly made absolute in terms of prayer clause (a) with parties to bear their respective costs.
[R.M.SAVANT, J]
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