Ramesh vs Rajeshekar

Aravind Kumar, J.—By consent of learned counsel appearing for parties, this writ petition is taken up for final hearing.

Heard Shri Anil Kale and Shri Santhosh M.S. learned advocates appearing for petitioner and respondent respectively. Perused the impugned award dated 16.03.2011 Annexure - E, whereunder Labour Court has allowed the dispute referred to it by appropriate Government under Section 10(1)(C) of I.D. Act in part and has directed the employer to pay a sum of Rs. 20,000/- to claimant by way of compensation within one month from the date of commencement of award failing which interest @ 6% p.a. to be paid.

It is the respondent herein who sought for dispute being referred under Section 10(1)(C) of Industrial Disputes Act, by moving the appropriate Government for such reference being made, contending inter alia that his father Shri Chandrashekarappa Basavanneppa Shettar, who was in services of M/s. Bhavarilal Nemichand had been illegally terminated without giving prior notice and awarding retrenchment compensation. Appropriate Government made a reference to Labour Court for adjudicating the said dispute. Workman is said to have expired even before the claim was referred to Labour Court and as such, reference claim petition was filed by his son on reference being made and said claim petition came to be resisted by the employer by filing detailed statement of objections. On the one hand, claimant contended that his father was an employee under respondent and had been working as a salesman since 1993, till his illegal termination on 15.04.2007. On the other hand, employer totally denied the relationship of employer and employee. Hence, Labour Court framed following issues for its adjudication:

"1. Whether the claimant proves that there was workman and employer relationship between his father Sri. Chandrashekarappa Basavanneppa Shettar and the respondent?

Whether the respondent proves that he is only Manager of M/s. Bhavarilal Nemichand Cloth Market?

Whether the termination of the services of Sri. Chandrashekarappa Basavanneppa Shettar with effect from 15.05.2007 is justified?

If not, what relief the petitioner is entitled for?"

Claimant got himself examined as W.W. 1 and also examined two independent witnesses to prove that his deceased father was working in M/s. Bhavarilal Nemichand shop. Respondent entered the witness box as M.W. 1 and reiterated the contentions raised in statement of objections. On evaluation of oral and documentary evidence, Labour Court allowed the dispute in part and on account of deceased workman having expired even before reference was made order of reinstatement came to be passed and a compensation of Rs. 20,000/- came to be awarded towards illegal retrenchment vide order dated 16.03.2011 which is impugned in the present writ petition.

It is the contention of Shri Anil Kale, learned counsel appearing for petitioner that Labour Court committed a serious error in not considering the report of Labour Officer dated 16.04.1999 Annexure - D and the inspection report dated 06.05.2003 which documents did not indicate about deceased Chandrashekarappa having worked as a salesman in the shop in question and as such, it has resulted in an erroneous order being passed by Labour Court awarding compensation. Hence, he prays for setting aside the same.

Per contra, Shri Santhosh M.S. learned counsel appearing for respondent would support the order passed by Labour Court and would submit that evidence tendered before Labour Court by the son of deceased workman clearly proved that deceased was in fact working in the shop of petitioner as a salesman and as such, he would defend the order passed by Labour Court and prays for dismissal of the writ petition.

As already noticed herein above, dispute in the present writ petition revolves around deceased Chandrashekarappa being an employee in cloth shop belonging to M/s. Bhavarilal Nemichand or not. It is oath against oath. Undisputedly, there was no direct documentary evidence to prove that deceased workman was discharging his duties as a salesman in M/s. Bhavarilal Nemichand, Cloth Merchant Shop No. 18 at Gadag. However, claimant has proved that deceased was working in said shop, by examining independent witness W.W. 2 who was the then President of Gadag Betageri Cloth Merchant Workers Union, who has stated that all such employees who are working in Private Shops had registered themselves as members of the Trade Union and likewise deceased Chandrashekarappa had also enrolled himself as a Member of the Trade Union and deceased was working in said shop from 1993. In order to prove this fact, a receipt issued by Trade Union for payment of subscription amount came to be produced by claimant and it was marked as Ex. W9. Copy of the same is made available by learned counsel appearing for claimant before this Court. Perusal of same would clearly indicate that name which has been reflected in Ex. W9 is Chandrashekarappa Basavanneppa Shettar. The name of shop in which he was working has also been indicated as shop No. 18 which is none other than the shop belonging to petitioner. This receipt has taken its birth at an undisputed point of time. Contents of Ex. W9 has been proved by the claimant by examining the president of the said Union. As such, it was rightly accepted by Labour Court to arrive at a conclusion that deceased Chandrashekharappa was working as a salesman in petitioner cloth shop. That apart, an independent witness has also been examined by claimant namely W.W. 3. Said witness was the Secretary of Trade Union and he has stated in his cross-examination that there are 10 to 12 shops between Oswal Silk Saree Centre and the Shop of respondent (i.e., petitioner herein). Evidence of W.W. 3 has not been shaken in the cross-examination, or in other words, his evidence cannot be brushed aside as an interested witness.

For these myriad reasons, Labour Court has rightly arrived at a conclusion that there existed relationship of "employer" and "employee" between M/s. Bhavarilal Nemichand and deceased Chandrashekharappa. There is no error committed by the Labour Court.

For reasons aforestated, I proceed to pass the following:

ORDER

"(i) Writ petition is hereby dismissed.

(ii) Judgment and award passed by Labour Court, Hubli in Ref. No. 27/2008 dated 16.03.2011 Annexure - E is hereby affirmed.

(iii) No order as to costs.

(iv) It is needless to state that respondent would be at liberty to take steps to recover said amount."