1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3092 OF 2008 Anchor Engineering & Files and Others ..Petitioners. Vs. Bhagelu Prasad Ayodhya Sharma ..Respondent. ..... Mr. K.S. Bapat i/b Mr. Avinash Fatangare for the Petitioners. Mr. L.R. Mohite for the Respondent. ... CORAM: DR. D.Y. CHANDRACHUD, J. 2nd May, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for the Respondent waives service. By consent of the learned counsel, taken up for hearing and final disposal. 2. A complaint of unfair labour practices has been instituted by the Respondent before the Industrial Court challenging an order of termination. The Labour Court has by its impugned order dated 21st November, 2005 come to the conclusion that the Respondent was a workman within the meaning of Section 2 2(s) of the Industrial Disputes Act, 1947 and that the enquiry was not fair and proper. This order of the Labour Court has been confirmed in revision by the Industrial Court by the order dated 18th January, 2008 which is challenged in these proceedings. The grievance of the Petitioner, as elaborated in the submissions before this Court by the learned counsel, is that the entire judgment of the Labour Court would show that though the first 42 pages comprising of paragraphs 1 to 59 are devoted to a verbatim reproduction of the complaint, written statement and documentary and oral evidence, when it comes to the reasoning of the Learned Judge, the observations do not reflect a due and proper application of mind. The learned counsel submitted that even the brief observations in paragraphs 60, 61 and 62 would show that there is a non-application of mind to the documentary material which was referred to in the previous paragraphs and that consequently the finding that the Respondent is a workman is not justified on the basis of the material on the record. Secondly, it has been urged that there is virtually no discussion at all as to why the Labour Court came to the conclusion that the enquiry was not fair and 3 proper. 3. On the question as to whether the Respondent is a workman the Labour Court noted that the Respondent had deposed that he was working as a Forging Operator and that he was not doing any supervisory work. The Labour Court held that the Petitioner herein “miserably failed to prove” that the Respondent is not a workman; that no appointment letter to that effect was produced and that the service conditions of the workman were admitted by the witness to be governed by the terms of the industrial settlement. There is merit in the grievance that the Labour Court has totally failed to apply its mind to the documentary material adduced on behalf of the Petitioner which is referred to in the earlier paragraphs, to wit paragraphs 52 and 54 of the judgment. The relevant extracts from paragraphs 52 and 54 which record the submissions of the Petitioner, make a reference to the following documentary material : “Exh. - 18 is the letter dtd. 23rd May, 1998 addressed to Respondents by the Complainant wherein the second line he has contended that he is Forging Department Supervisor. Exh. - 19 is the letter dtd. 5th June 1998 4 addressed to Respondents by the Complainant in which the Complainant refers to himself as the Forging Department Supervisor. Exh. 20 – is letter addressed to Respondents dtd. 24th January 1999 by the Complainant, in that letter Complainant has signed the said letter as Forging Department Supervisor. In the cross examination the Complainant has admitted that he used to sign as Departmental Head on the leave application of the charge hands, operators and helpers. The copies of the said leave applications are collectively at Exh. - 21 at list Exh. 15. The Complainant in his cross examination, has admitted the said documents and his signature thereon. ..... The ESI Certificates are at pages 17 to 20, 32 and 33 of Exh. -15. On admission by the Complainant, the documents were marked as Exh. 22 collectively. These documents would reveal that whenever the workmen are away from work they had to send medical certificate to the Complainant who was their Supervisor. He has submitted that at page 35 to 39 of Exh. - 15 are copies of the Shift-Chart. On page 7 of his cross-examination, the Complainant has admitted that the said documents show the shifts of charge-hands, operators and helpers. The said shift charts are marked as Exh. - 23. These documents would reveal that the Complainant was allotting the work to the charge-hands, operators and helpers. The Respondents submit that allotment of work can be done only by a supervisor and not a worker. At Exh. - 24 collectively i.e. at Page Nos. 11 to 29 of Exh. - 15 are applicatoins made by Satyadev Naik and Rajbhur requesting for changing the shifts. These applications are also signed by the Complainant as admitted by him in his cross-examination. These documents would show that the Complainant was authorized not only to allocate the shifts but also to change the shift on request made by the workers.” 5 4. Having made a reference to the documentary material and the submissions of Counsel appearing for the Petitioner, the Labour Court is manifestly in error in not discussing the evidence and holding against the Petitioner on the ground that no documentary evidence was produced. On the second aspect of the judgment viz. that the enquiry was not fair and proper, there is virtually no discussion at all as to why the Labour Court came to the conclusion that the charge sheet was vague or that it was not in accordance with the standing orders. In this view of the matter, the Petition would ordinarily have required admission and interim relief would have to be granted staying the operation of the order of the Labour Court which was confirmed in revision. The revisional Court has in a rather brief judgment again merely referred to the submissions and arrived at the conclusion that the Labour Court had considered all the evidence, documentary and oral. 5. In order to obviate a delay in the further proceedings, the learned counsel have agreed to the suggestion of the Court that 6 the impugned orders of the Labour Court and the Industrial Court should be quashed and set aside and the proceedings in Complaint (ULP) 51 of 2002 may be remitted back to the Labour Court for a decision afresh on the preliminary issue. In that view of the matter and for the reasons already recorded, the order passed by the Labour Court on 21st November, 2005 and the order of the Industrial Court in revision dated 18th January, 2008 are quashed and set aside. Complaint (ULP) 51 of 2002 is restored to the file of the Labour Court, Thane which shall now proceed to pass fresh orders after furnishing to the parties an opportunity of being heard. Parties shall appear before the Labour Court for receiving further directions on 9th June, 2008 so that a time schedule can be fixed for expeditious disposal. The Petition is allowed to the aforesaid extent. There shall be no order as to costs. *****