SRI. ULLAS S. PRASAD v. MAHALAKSHMI B M

(BY SRI.ROHITH C.V., ADVOCATE FOR SMT. RAMA R. IYER, ADVOCATE FOR RESPONDENT) …RESPONDENT - 2 - NC: 2024:KHC:3585 WP No. 3289 of 2013 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.03.2012 IN APPLICATION NO.8/10, PASSED BY THE PRESIDING OFFICER, II ADDL. LABOUR COURT, BANGALORE VIDE ANNEXURE-A. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner is assailing the order dated

26.03.2012 in I.A.No.8 passed by the Presiding Officer, II Additional Labour Court, Bangalore (Labour Court for short), whereby I.A.No.8 filed under Section 151 of C.P.C. read with Sections 2(s)(iii) of Industrial Dispute Act, 1947 (hereinafter I.D. Act for short) by the respondent - company, came to be allowed and consequently, the claim petition filed by the petitioner came to be dismissed as not maintainable.

2. The records reveal that petitioner was appointed on 01.04.1990 by the respondent - company and as per the terms contended in the order of appointment, the respondent - company had agreed to pay sum of Rs.17,000/-. Since, the closure compensation - 3 - NC: 2024:KHC:3585 WP No. 3289 of 2013 under Section 25 FFF of I.D. Act, leave encashment for 45 days, salary compensation for three months for no notice and bonus due from April 2005 to July 2006 at 20% per annum taking Rs.3,500/- limit per month was not paid to the petitioner by the respondent - company, the petitioner moved an application under section 33(C)(2) of the I.D. Act.

3. The respondent - company filed statement of objections before the Labour Court inter alia denying the claim made by the petitioner.

4. After filing the objections, the matter was posted for evidence of the petitioner and when the matter was listed for cross-examination of the petitioner, the respondent company did not make any appearance on the said day. The matter was posted for respondent's evidence and on that day, respondent filed an application to recall the orders and give permission to cross-examine the petitioner. Later, the petitioner was cross-examined partly. This being the fact, the respondent - company filed - 4 - NC: 2024:KHC:3585 WP No. 3289 of 2013 I.A.No.8 seeking for dismissal of the petition on the ground that the petitioner is not a workman. The petitioner filed objections to the said application and also filed I.A.No.9 seeking permission to produce additional affidavit evidence. The Labour Court on hearing the petitioner and the respondent - company was of the considered view that the parties cannot be permitted to adduce evidence to establish their rights and thereafter, make a computation.

5. Being aggrieved by the allowing of I.A.No.8 and consequently, dismissal of the claim petition filed by the petitioner, the present petition is filed.

6. Heard Miss.S.Aishwarya, learned counsel on behalf of Sri.P.N.Rajeswara, learned counsel for the petitioner Sri.Rohith C. V., learned counsel for respondent - company and perused the material on record.

7. The sum and substance of the contention of the learned counsel for the petitioner is that the order passed - 5 - NC: 2024:KHC:3585 WP No. 3289 of 2013 is without affording any opportunity to the petitioner to justify the maintainability of the application under section 33(C)(2) of I.D. Act and the Labour Court has failed to take note that an affidavit evidence sought to be produced to show that the petitioner is a workman and the reasons accorded by the Labour Court is without considering the application filed by the petitioner and without affording any opportunity.

8. Per contra, learned counsel for the respondent would justify the order of the Labour Court and would contend that the dispute under Section 33(C)(2) of I.D. Act, the parties cannot be permitted to adduce the evidence to establish their right and thereafter, make computation and in the said contest would contend that the Labour Court was justified in allowing the application filed by the respondent - company and dismissed the claim petition of the workman. - 6 - NC: 2024:KHC:3585 WP No. 3289 of 2013

9. This Court has considered the rival contentions urged by learned counsel for the parties and perused the material on record.

10. It is not in dispute that the petitioner is claiming certain reliefs under Section 33(C)(2) of I.D. Act and it is also not in dispute that the petitioner was appointed by the respondent company in the year, 1990. Material on record would also reveal that the petitioner has filed an application to substantiate their claim that fall within the definition of Section of 2(s) of the I.D. Act. The Labour Court without affording any opportunity has dismissed the claim petition wherein, the right of the petitioner to substantiate that he is a workman has not been adjudicated. In the circumstances, this Court is of the considered view that the order of the Labour Court warrants interference of this Court.

11. Having regard to the nature of work, it depends upon the facts and circumstances of the case, the Labour Court was not justified in concluding that the petitioner is - 7 - NC: 2024:KHC:3585 WP No. 3289 of 2013 not a workman as defined under Section 2(s) of I.D. Act, without affording any sufficient opportunity petitioner to lead additional evidence sought in I.A.No.9. In the said context, whether or not an employee is a workman under Section 2(s) of I.D. Act is required to be determined with reference to its principal nature of duties and function and such question is to be required only by placing evidence on record. This Court is of the considered view that the matter requires to be remitted back to the Labour Court for fresh consideration in accordance with law. Accordingly, this court passed the following: ORDER i. Writ Petition is allowed. ii. Impugned order dated 26.03.2012 on the file of II Additional Labour Court, Bangalore in application No.8/2010 is hereby set aside and consequently, I.A.No.8/2010 filed by respondent - company is hereby rejected. - 8 - NC: 2024:KHC:3585 WP No. 3289 of 2013 iii. The matter is remitted back to the Labour Court for fresh consideration in accordance with law. iv. Parties to appear before the Labour Court on

12.02.2024. v. The Labour Court to dispose of the claim petition as expeditiously as possible not later than six months from the date of appearance. Sd/- JUDGE KAV List No.: 1 Sl No.: 11