Hari KarleVERSUSThe Kinetic Engineering Limited Through Its General ManagerMr. P v. Barde
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 9621 OF 2015Kisan Hari KarleVERSUSThe Kinetic Engineering Limited Through Its General ManagerMr. P. V. Barde, Advocate for petitionerMr. V. S. Bedre, Advocate for respondentCORAM: R. M. JOSHI, J.DATE: 29th NOVEMBER, 2024PER COURT :-1.This petition takes exception to award dated 30.01.2015passed by 2nd Labour Court in reference IDA No. 02/2011, whereby theprayer of the workman for reinstatement in service is refused.2. Parties are referred to as “workman” and “employer” for thesake of brevity.3.The facts which led to the filing of this petition can benarrated in brief as under.It is a case of the workman that he was appointed on dailywages as an unskilled labour in Maintenance Division since 20.05.1990.920-wp- 9621-2015.odt1 of 6 He claims to have continuously worked with the employer till31.05.1991. Thereafter, he was shown as a “Contractor”. It is claimedthat he is not a Contractor and this is a sham arrangement shown.Workman further claims that on 31.05.1991 name of the workman wasstruck out from the Muster Roll which amounts to termination of hisservices. With these averments, termination is sought to be set asise,seeking relief of reinstatement in service with backwages and continuity.4.Employer filed written statement opposing the statement ofclaim, contending that there is no privity of contract of employment i.e.,employee employer relationship between the parties. It is claimed thatthe Complaint (ULP) No. 146/1993 filed by the workman before theIndustrial Court came to be dismissed. With those amongst ordercontentions, it is thus claimed that there is no merit in the reference andemployer sought dismissal thereof.5.Learned counsel for the workman submits that two differentissues were raised by the workman by filing statement of claim beforethe reference Court, i.e., issue of non compliance of Sec 25(F) of theIndustrial Disputes Act, 1947 (for short “the Act”) but also anotherspecific plea was raised in Para 4 of the statement of claim that theemployer has retained Junior employees in service and has also920-wp- 9621-2015.odt2 of 6 appointed new employees and thereby there is non compliance ofSection 25(G) of the Act. Thus, it is his contention that there aresufficient pleadings as well as evidence to indicate that there is violationof both these provisions. However, learned Labour Court while passingimpugned award failed to record findings on the point/issue of thetermination of the services of workman by striking out his name from theMuster Roll on 31.05.1991. It is thus his submission that since such acton the part of the employer amounts to termination of services as well asit was obligatory on the part of the Labour Court to record findingsthereon and to hold that termination is illegal. He further contends thatthe issue with regard to the application of Section 25G of the Act is alsoignored by the Labour Court and hence order impugned deservesinterference and matter needs relegation back to the trial Court.6.Learned counsel for the employer supported the impungedaward by contending that the Industrial Court in the previous complaintfiled by the workman bearing Complaint (ULP) No. 146/1993 hasrecorded finding that though initially workman had worked as a dailywager with the employer, however later on he worked on contract basis.According to him, this finding is not challenged by the workman and assuch, the same having attained finality is binding on him. He drewattention of the Court to the written statement filed before the reference920-wp- 9621-2015.odt3 of 6 Court wherein the employee employer relationship is denied. With theseamongst other submissions, petition is sought to be dismissed.7.There is no dispute about the fact that in Complaint (ULP)No. 146/1993, Industrial Court has recorded following findings, “from the above evidence it is evident that initially for someperiod, the complainant has worked as a daily wager but later onhe worked on contract basis”.There is no challenge either by the workman or by theemployer to this judgment and finding. It, therefore, can safely be saidnow that initially workman has worked as a daily wager but later on hehas been working on contract basis. If it is so, it was absolutelynecessary for the learned Labour Court to consider the issue raised bythe workman with regard to termination of his services by removing hisname from the Muster Roll, since termination is claimed from date priorto he being shown on contract basis. Perusal of the entire award passedby the Labour Court, does not indicate any discussion or decision on thisissue. Apart from this, when the workman has come with a specific casethat junior to retain were retained him in the service and the freshemployees were also employeed, and in such circumstances, issue ofcompliance of Section 25(G) of Act, fell to the consideration of theLabour Court and it ought to have been decided as to whether there is920-wp- 9621-2015.odt4 of 6 termination of his services by removal of his name from the Muster Rolland the said termination, is in compliance of Section 25G or not.8.Having gone through pleadings and evidences on record, thisCourt though finds that the observations of the learned trial Court withregard to the non completion of 240 days of service and non applicationof Section 25 F is not perverse, however, since, the learned Labour Courthas failed to record any finding on these two issues, this Court finds itappropriate to set aside the impugned order and relegate reference IDAback to the the reference Court for decision on these two points. i.e.,(I) Whether the act of employer of striking out name of workman amounts to termination of his services?(II) Whether termination of the workman is illegal for non compliance of provisions of Section 25(G) of the Act. Accordingly impugned order is set aside and reference IDA No. 02/2011is relegated back. Needless to say that parties are at liberty to leadevidence in support of their contentions on above points. Parties toappear before the Labour Court on 10th January, 2025. Since the date ofappearance before the Court is determined, by consent of parties, LabourCourt is not required to issue notices. Learned Labour Court to decide920-wp- 9621-2015.odt5 of 6
Legal Reasoning
said reference within a period of 6 months from today.9.Petition stands allowed in above terms.(R. M. JOSHI, J.)bsj920-wp- 9621-2015.odt6 of 6