THE MANAGEMENT OF M/S A.M.P.ROSE (P) LTD v. MR. BASAVARAJ MADIWALAR

(BY SRI. AKARSH SUDHAKAR KANADE, ADV.) …RESPONDENT Location: High Court of Karnataka THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE THE WP 26/10/2021 ORDER DATED NO.41022/2012 AND DISMISS THE WRIT PETITION. PASSED IN THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.08.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BASAVARAJA J., PRONOUNCED THE FOLLOWING: - 2 - WA No. 70 of 2022 CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN HON'BLE MR JUSTICE G BASAVARAJA CAV JUDGMENT (PER: HON'BLE MR JUSTICE G BASAVARAJA)

1. This intra-court appeal is preferred assailing the order dated 26th October, 2021 passed in Writ Petition No.41022 of 2012 by the learned Single Judge whereby the writ petition came to be allowed by setting aside the order dated 17th March 2009 impugned therein.

2. Heard Sri Radhakrishna Holla A., learned Counsel for the appellant and Sri Akarsh Sudhakar Kanade, learned Counsel appearing for the respondent.

3. It is the case of the appellant-Management that it is a Company engaged in the supply of packaging machinery and equipment for use in confectionery in India. The respondent- workman herein was appointed as Vendor Development Engineer on 01st July, 1998 to discharge managerial function in purchasing the requirement of the appellant-Management. While the respondent-workman was so discharging services, on the ground that he was carrying on a private business in the name and style as BMP Rose Company, which is verbally and phonetically similar to the one as the appellant-Management - 3 - WA No. 70 of 2022 herein, his services came to be terminated on 04th September,

2023. The workman raised an industrial dispute in ID No.261 of 2006. The Labour Court, vide order dated 17th March, 2009 rejected the claim of the workman. Being aggrieved by the rejection, the workman approached this Court in Writ petition No.41022 of 2012 which petition came to be allowed by order dated 26th October, 2021 setting aside the order of the Labour Court and considering the fact that the workman had attained the age of superannuation during the pendency of the writ petition, ordered that the petitioner-workman would be entitled to all consequential benefits excluding the period from the date of impugned award becoming effective till filing of the writ petition. The appellant-Management is before this Court challenging the order dated 26th October, 2021 passed by the learned Single Judge in Writ Petition No.41022 of 2012.

4. The learned counsel appearing for the appellant- Management submits that, the respondent is not a "Workman" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short hereinafter referred to as the "ID Act"), and the Labour Court, after duly appreciating the evidence adduced before it, has given a finding that the respondent is not a workman within the meaning of Section 2(s) of the ID - 4 - WA No. 70 of 2022 Act. Learned counsel submits that the learned Single Judge has brushed aside all the contentions taken and the documents produced and has passed an order holding that the duties performed by the petitioner in the respondent organization were merely clerical, routine and mechanical duties thereby indicate that he was a workman within the meaning of Section 2(s) of the ID Act which is an error and the same needs to be set aside. Learned counsel further submits that there was delay of three and a half years in preferring the writ petition against the order of the Labour Court and the same has not been explained to the satisfaction of the Court. On all these grounds, learned Counsel sought to allow the appeal and to set aside the order of the learned Single Judge. To buttress his submissions, the learned Counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION v. GAJADHAR NATH rendered in Civil Appeal No.7536 of 2021 decided on 08th December, 2021.

5. Per contra, Sri Akarsh Sudhakar Kanade, learned counsel appearing for the respondent-workman submits that the learned Single Judge has considered all the documentary evidence produced before it, has held that the respondent is - 5 - WA No. 70 of 2022 'workman' under Section 2(s) of the ID Act and ordered for payment of consequential benefits which cannot be found fault with and accordingly sought for dismissal of the appeal.

6. We have given our anxious consideration to the submissions advanced by the learned counsel for the parties and perused the judgment of the learned Single Judge. Though it was vehemently contended before the learned Single Judge that the petitioner was not a workman within the meaning of Section 2(s) of the ID Act, the learned Single Judge, after considering the evidence of the petitioner before the Labour Court and also considering the evidence adduced by the Management, observed that the respondent-Management has complete control and custody of the entire records with regard to the nature of duties to be performed by the workman and also referred to Clause 3, so also, Clauses 15 and 16 of the letter of appointment which specifically state that the respondent-Management advised the petitioner-workman to perform all duties attached to post to which he was appointed to and further that the credibility or veracity of the testimony of workman having not been impeached or shaken in the cross- examination lead to sole inference that the petitioner was a workman, so also, whilst the petitioner was not doing any - 6 - WA No. 70 of 2022 supervisory work, his duties were merely clerical, routine and mechanical duties indicate that the workman fall within the meaning of Section 2(s) of the ID Act and accordingly allowed the writ petition by setting aside the order of termination. The decision relied upon by the learned counsel will not come to the aid of the appellant. In the decision relied upon it was not the case of the Management that the Conductor was not the workman within the meaning of Section 2(s) of the ID Act and the workman was removed from service on account of misconduct and after holding enquiry. In the case on hand, the contention of the management is that the petitioner was not a 'Workman' within the meaning of Section 2(s) of the ID Act. Moreover, the respondent-Management has not produced any material to indicate the nature of work/duty attached to the post of Vendor Development Engineer. Hence, the learned Single Judge has clearly observed that adverse inference has to be drawn against the Management, particularly, in the light of the uncontroverted testimony of the petitioner with regard to nature of duties.

7. Further, with respect to the contention that the petitioner was carrying on a private business in the name and style BMP Rose Company, the learned Single Judge has - 7 - WA No. 70 of 2022 observed that the said company was run by the wife of the petitioner along with her brother and the respondent- management has not produced any documentary evidence to show that business was carried by the petitioner-workman and accordingly, held that the finding of the Labour Court that the petitioner was carrying on a separate independent private business is based on surmises and conjectures and not based on material evidence and accordingly, set aside the order of the Labour Court, which according to us, is just and proper and cannot be found fault with.

8. As regards the contention taken by the learned counsel for the appellant with regard to the delay of three and half years in preferring the writ petition is concerned, the learned Single Judge has observed that an amendment application was filed by the petitioner seeking to insert paragraph 3(a) stating the reasons for the delay, it observed by the learned Single Judge in the impugned order that though the amendment application filed by the petitioner was allowed vide order dated 21st September, 2015 permitting the petitioner tio amend the petition and explain the delay in filing the writ petition, the respondent has not chosen to file any additional statement of objections controverting the explanation offered - 8 - WA No. 70 of 2022 by the petitioner in explaining the delay and the circumstances, the accepting the reasons assigned in the amendment application, delay was condoned, which cannot be found fault with.

9. On examination/consideration of the entire material placed before this Court, we do not find any error in the impugned order and the appellant has failed to make out a ground to interfere with the order passed by the learned Single Judge. Accordingly, we proceed to pass the following: O R D E R i. Writ Appeal is dismissed; ii. Order dated 26th October, 2021 passed by the learned Single Judge in Writ Petition No.41022 of 2012 is confirmed. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (G BASAVARAJA) JUDGE