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Judgment
Rajasekhar Mantha, J
In or about 1994, the writ petitioner was appointed in the port city of Haldia in South Bengal to oversee the business of one SouthEastern Road
Carriers, a partnership firm of which the respondent nos.5,6 & 7 were partners. The writ petitioner claims to have been also required to oversee a
similar business carried on by the respondent nos.4, 5, 6 & 7 in the name of one Anupam Commercial Company being respondent no.3 herein.
As a part-time employee of the respondent no.3 the petitionerclaims to have been offered remuneration of Rs.2, 500/-. The petitioner claims to
have worked for both the said South Eastern Road Carriers as also the Respondent No.3.
Sometime in the year 1997, the writ petitioner was transferred by the respondent no.4, Promod Kumar Agarwal who was also a partner in
M/s.South-Eastern Road Carriers to the city of Calcutta from Haldia. The writ petitioner claims to have worked in the said respondent no.3 even in
Calcutta. In the year 1997, the writ petitioner was paid all his terminal dues by the said South-Eastern Road Carriers with whom he had ceased to
work.
The writ petitioner claims to be entitled to salary and/or remuneration for having worked part-time with and/or additional duties discharged to the
said respondent no.3 Anupam Commercial Company. The writ petitioner claimed salary, leave salary, bonus and other allowances totalling to
Rs.1.66 lakh by a notice of demand dated September 16, 1998.
On the refusal of the respondent nos.3 to 7 to pay his dues, the writ petitioner approached the Labour Court at Calcutta under Section 33 (c) (2) of
the Industrial Disputes Act, 1947 for assessment and recovery of his dues from the 3rd Respondent. The said Court upon notice to the opposite
parties, recorded evidence. By a judgment and award dated 28th September, 1998, the claim of the writ petitioner workman was allowed in part.Â
The respondent no.3 and its partners were directed to pay remuneration from June, 1994 till February, 1997 at the rate of Rs.2, 500/- per month and
interest @ 9% per annum was awarded on such dues from October 29, 1998.
The said award came to be challenged by the respondent nos.3 andone of its partners, the respondent nos.6 herein before this Court in W.P.28404
(W) of 2006. The said writ petition was allowed by a Single Bench of this Hon’ble Court vide judgment and order dated 28th February, 2008,
inter alia, holding that the Labour Court was first required to determine as to whether employer-employee relationship existed between the respondent
no.3 and writ petitioner.
Pursuant to the said order dated 28th February, 2008 the matter was taken up once again by the said Labour Court, West Bengal. The claim of
the writ petitioner was rejected and/or dismissed by a judgment and award dated 29th June, 2009.
The said award has been challenged before me in the instant application. The respondents are represented and have filed an affidavit-in-
opposition. The writ petitioner has filed his reply thereto.
The moot question, therefore, is as to whether the respondent no.3 was an employer of the writ petitioner workman.
I am conscious of the fact that a Writ Court does not, in normal circumstances, embark upon a process of re-apprising the evidence before a court
whose award is assailed, under Section 226 of the Constitution of India. The only grounds for intervention, are violation of principles of natural
justice or if the award is wholly perverse.
On the question of relationship between the employer andemployee admittedly, the respondent no.3 and the said South-Eastern Road Carriers had
common partners and were under common control and management. Both the companies, operated from a common office at Haldia and
Calcutta. The same is evident from the facts that have come out in evidence, before the Labour Court.
The factum of the writ petitioner having discharged work for South-Eastern Road Carriers is undisputed since he has resigned from the latter and
has received all terminal benefits therefrom. There is additional evidence that has emerged before the Labour Court. The same was noticed in
the earlier award dated 28th September, 2006. These are the road challans and cash statements and other documents relating to the principal business
of the 3rd respondent having been filled and prepared in the handwriting of the writ petitioner. The said documents have neither been denied by the
management witnesses being partner of the respondent no.3 nor has any contemporaneous evidence being produced by the respondent no.3 to
disprove the same. The respondent no.3 has also not led any evidence to indicate as to what steps they have taken against the writ petitioner for
having dealt with and prepared documents on the stationery of the Respondent no.3. The factum of the Petitioner having rendered service for the
Respondent no.3 as a workman and the Respondent No.3 being the master, is therefore undisputed.
The Labour Court came to a conclusion that, no letter of appointment issued by the respondent no.3 to the writ petitioner. Hence the court was of
the view that the master-servant relationship between the writ petitioner and the 3rd respondent could not be established. I am unable to agree with
the said finding.
It is not common place for employees of one concern in smaller organisations, to be asked to oversee and perform duties of a sister concern
without any formal letter of appointment. Hence, in my opinion, mere absence of a letter of appointment cannot negate a master-servant
relationship if the same can be established from other surrounding circumstances. Here, in the instant case the road challans, cash ledgers and other
documents being filled up by the writ petitioner have come on record. The said documents have not been challenged or upset either any oral or
documentary evidence by the management. According to me, therefore, the master-servant relationship between the writ petitioner and the
respondent no.3 is evidenced and established.
The award impugned is therefore perverse and liable to the set aside.
The question therefore is as to what relief is the writ petitioner entitled to. It is difficult to believe that for three long years the writ petitioner
claims to have worked for the respondent no.3 without any remuneration. However work rendered by a workman cannot be gratuitous and is liable
to be compensated.
Therefore, the ends of justice would be served if the writ petitioner is awarded a sum of Rs.1100/- per month for the period from January, 1994 to
August, 1997. The said sum of money shall be paid towards all-inclusive wages and salary and other emoluments of the writ petitioner by the
Respondents Nos. 3 to 7 within a period of 30 days from the date of communication of a copy of this order.
Upon failure of the said respondent nos.3 to 7 to make payment to the writ petitioner, of the sum indicated aforesaid, within 30 days as above, the
same shall carry simple interest at the rate of 7% per annum. In default of payment of either the principal sum awarded or interest as aforesaid, the
writ petitioner shall be entitled to put this order into execution as an award and also pray for costs, under the appropriate provisions of law before the
first labour court, West Bengal.
W.P.16720 (W) of 2009 is hereby allowed in part.
There will be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.