High Court

Legal Reasoning

IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD924 WRIT PETITION NO. 12954 OF 20231.The Maharashtra State Co-operativeCotton Growers Marketing FederationLtd.,2.The Zonal Manager,The Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd....PetitionersVERSUSVishnukant s/o Babarao Kadam....Respondent...Advocate for the Petitioners : Mr. Shelke Shivaji T.Advocate for Respondent : Mr. V. P. Golewar...CORAM : R. M. JOSHI, J.Dated : June 25, 2024PER COURT :-1.Heard. By consent of both sides the petition is heard finally atadmission stage. 2.The petitioner Maharashtra State Co-operative Cotton GrowersMarketing Federation Limited being aggrieved by the impugned orderpassed below Exhibit - F in Misc. Application (Delay) ULP No.07/2012holding that the applicant/respondent herein is workman within themeaning of Section 2 (s) of the Industrial Disputes Act.3.The record indicates that the respondent filed Complaint ULPunder Section 28, 30 of the Unfair Labour Practice read with M.R.T.U.Page 1 of 9 2924 WP 12954-2023and P.U.L.P. Act under 5, 9 and 10 of Schedule IV. Since there wasdelay in filing of the complaint, Misc. Application (Delay) ULPNo.07/2022 was filed for condonation thereof. The said applicationwas rejected by the Industrial Court by order dated 02/07/2014.This order was challenged before this Court in Writ PetitionNo.1870/2015. This Court by order dated 14/07/2015 set aside thesaid order and directed the Industrial court to frame issue regardingthe status of the respondent and his relationship with the petitionerherein. In view of the said direction, issue was framed as towhether the respondent is a workman and there is employeremployee relationship between the respondent and the applicant.4.At the outset, learned Counsel for the petitioners raisesobjection to the issues framed by the learned Industrial Court. It ishis submission that while framing the said issue, the burden iswrongly cast upon petitioners though that the respondent is not aworkman. It is his submission that the initial burden lies on therespondent to prove that he is a workman and once he dischargesthe said burden the onus will be shifted on the petitioners. Though itseems that issue is not framed properly, but it is a matter of recordPage 2 of 9 3924 WP 12954-2023that the petitioners never raised objection to the issue framed. Infact both parties went ahead to lead evidence before the IndustrialCourt. The evidence led by both the parties sufficientlydemonstrates that they were conscious of the burden to proveissues, which includes issue of workman. The respondent ledevidence to support his case and thereafter petitioners stepped inwitness box to prove contrary. Parties having gone ahead to leadevidence on the basis of issues and being fully conversant of the realissues involved in the application and burden of proof thereof, thisCourt finds no reason to cause any interference in impugned orderon the ground that the issues are not properly framed/ worded.5.Learned Counsel for the petitioners by placing reliance on theJudgment of this Court in case of Standard Chartered Bank vs.Vandana Joshi and another, reported in 2010 (2) Mh.L.J.,submits that the burden lies on the person who asserts the status ofa workman under Section 2 (s) of the Industrial Disputes Act andhas to establish with reference to the dominant nature of his workthat he performs falls within one of the stipulated categories inSection 2(s). It is further observed therein that the fact that anPage 3 of 9 4924 WP 12954-2023employee is not vested with the power to sanction leave or toinitiate disciplinary proceedings is not conclusive of the question asto whether the work performed by him falls within the categoriesstipulated in section 2 (s).6.As per the directions issued by this Court, the issue ofworkman and relationship between the parties are framed. Bothsides led evidence. It is undisputed that complainant examinedhimself twice. In his evidence at Exhibit U-14 he has specified theduties performed by him. According to him, he was required toassist the other staff and that had to do the work as directed by hissuperiors. It is observed by the Industrial Court that during thecross-examination of the respondent herein, there was nosuggestion made with regard to the nature of work done by himwhich constitutes managerial or administrative work. In this regard,it would be relevant to take note of admitted fact that the petitionershad issued order of appointment termed as contract appointment.The respondent was appointed as Grader. The letter of appointmentdoes not show that he was required to perform any other dutiesthan Grader. Apart from this, the document placed on record by thePage 4 of 9 5924 WP 12954-2023petitioners at Exhibit C-18 i.e. the agreement between the partiesshows that the respondent was required to perform following work :-1)To grade/categorize cotton in specified variety andgrade.2)To procure raw cotton from farmers who havebrought valid 7/12 statement have scoured valid takenfrom APMC.3)To maintain fire fighting arrangement and otherarrangement in factory.4)To effect weighment or Raw Cotton lint, seed,bales etc.5)To dispatch/ deliver lint, seed, bales etc. asdirected by officers of party No.1.6)To maintain complete record of the centre andsupervise the staff at the centre.7)To do all allied, incidental and ancillary work atcentre in respect of cotton Procurement, processing etc.Bare perusal of the duties required to be performed by therespondent, shows that his dominant duty was to Grade / Categorizecotton in specified variety and grade. The other duties are ancillaryand incidental in nature. In this regard, it would be relevant to takenote of the evidence led by the petitioners before the IndustrialCourt. The witness of the petitioners in no uncertain terms hasPage 5 of 9 6924 WP 12954-2023accepted that the duty of the respondent was to classify the cottonand to take notes. He further admits that there is no document toshow that the respondent herein was having any power or anyauthority. 7.This Court finds that the observations made by the learnedSingle Judge of this Court in Standard Chartered Bank (Supra)would not come to the aid of petitioners in any manner. Fromevidence on record it is clear that the dominant work of therespondent is to grade/ categorize cotton in specified variety andgrade.8.At this stage, it would be relevant to take note of the definitionof workman under Section 2 (s) of the Industrial Disputes Act whichreads thus : -“workman" means any person (including an apprentice)employed in any industry to do any manual, unskilled, skilled,technical, operational, clerical or supervisory work for hire orreward, whether the terms of employment be express orimplied, and for the purposes of any proceeding under this Actin relation to an industrial dispute, includes any such personwho has been dismissed, discharged or retrenched inconnection with, or as a consequence of, that dispute, orPage 6 of 9 7924 WP 12954-2023whose dismissal, discharge or retrenchment has led to thatdispute, but does not include any such person -(i)who is subject to the Air Force Act, 1950 (45 of 1950),or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62of 1957); or(ii)who is employed in the police service or as an officer orother employee of a prison, or(iii)who is employed mainly in a managerial oradministrative capacity, or(iv)who, being employed in a supervisory capacity, drawswages exceeding [ten thousand rupees] per mensem orexercises, either by the nature of the duties attached to theoffice or by reason of the powers vested in him, functionsmainly of a managerial nature.9.Perusal of the said definition shows that any person who isemployed to do any manual, unskilled, skilled, technical,operational, clerical or supervisory work for hire or reward, isworkman. As far as present case is concerned, the work of therespondent can be categorized as skilled or technical. He isappointed to grade the cotton in specified varieties. If it is so, hepossesses special skill of caegorization/ grading of cotton. Thenature of work performed as a Grader is duly covered in thePage 7 of 9 8924 WP 12954-2023category of skilled as well as technical work. The evidence led bythe respondent more than sufficiently demonstrates that he hasbeen able to prove that he performed the work as covered by thesaid definition. Once such burden is discharged, the onus stoodshifted on the petitioners to prove that he was performingmanagerial or administrative duty as dominant part of his work.10.As discussed above, the evidence led by the petitioners fallsshort to prove the said case of the petitioners before the Court.Having regard to the evidence on record and considering thedominant nature of duties performed by the respondent, this Courtfinds no perversity in the reasoning recorded by the learnedIndustrial Court while holding the respondent as a workman withinthe meaning of Section 2 (s) of the Industrial Disputes Act. It is alsoheld that the relationship of employer and employee betweenpetitioners and respondent. The evidence led by the petitioner inthe form of order of appointment, agreement between the partiesetc. is sufficient to show such relationship, to maintain a complaint. 11.Having regard to the above discussion, Court finds no merit inthe present petition to challenge the order. Hence, the petition isPage 8 of 9 9924 WP 12954-2023dismissed.12.At this stage, learned Counsel for the petitioners submits thatsince the issue of relationship between the petitioners andrespondent is decided in an application for Condonation of Delay, thesaid finding may not come in the way of the petitioners to challengethe complaint on merits if delay is condoned. He further submitsthat the issue regarding forfeiture whether legal or otherwise is yetto be decided and it can be only decided during the hearing ofcomplaint only.13.This Court finds substance in the said contention, hence it ismade clear that the observations made by the Industrial Court withregard to the relationship between the parties to be treated only forthe purpose of prima facie case being made out to maintaincomplaint and to decide the application for condonation of delay, andthe same shall not preclude the petitioners to raise all otherobjections except for objection with regard to the issue of workmanduring hearing of complaint on merits. ( R. M. JOSHI, J. )vj gawade/-.Page 9 of 9