1 wp-2023-10 jpc IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2023 OF 2010 Shivram Patel .. Petitioner Versus Tej Bahadur Pancham Prajapati .. Respondent Mr. S. D. Gulhane for the Petitioners Ms. R. K. Joshi for the Respondent CORAM: S. J. KATHAWALLA, J. DATED: 4 th October, 2010. P.C. 1. By this Writ Petition, the Petitioner employer has prayed that the Award dated 13 th November, 2009 passed by the Labour Court, Mumbai in Reference (IDA) No.81 of 2006 (the said Reference) be quashed and set aside and the matter be remanded back for recording of evidence afresh. 2. According to the Petitioner, he was engaged in small time activities in the business of polishing uncut diamonds. As and when he got the work he would appoint 2 to 3 workers for polishing uncut diamonds. He had never engaged the services of the 2 wp-2023-10 Respondent and was therefore shocked to receive a notice dated 18 th August, 2008 of the Sixth Labour Court, whereby the statement of claim bearing Reference (IDA) NO. 81 of 2006 filed by the Respondent was forwarded to him. 3. In his statement of claim (Exhibit A to the Petition) the Respondent alleged that he was working with the Petitioner since last two years as a bottom polisher and on 3 rd February, 2005 when he reported for duty the Petitioner refused to allow him to resume his duties and orally terminated his services. He therefore approached the Union by name Maharashtra Association of General Workers and the Union served a letter dated 28 th March, 2005 on his behalf to the Petitioner demanding his reinstatement with full back wages and continuity of service. However, the said demand was not settled due to the adamant attitude of the employer. The union therefore sent statement of justification to the Deputy Commissioner of Labour (Conciliation) and requested his intervention in the matter and the dispute therefore was referred to the Sixth Labour Court, Mumbai for adjudication. The Respondent workman has in his statement of claim further alleged that the Petitioner employer has engaged more than 50 workmen for carrying out the business activity of which the Petitioner is owner. The employer is not keeping any record such as muster roll, wage 3 wp-2023-10 register, leave register, bonus register etc. The employer has not given any proof of employment to the workmen. The payment of workman is made only by cash. The employer has started a new company at Shopping Town, Gala No.1, Subhash Lane Malad(E), Mumbai for carrying out the same activities and all the workmen are transferred to this new company. The Petitioner is engaging new workmen in place of the old workmen. The Respondent workman has submitted that the termination of his services is illegal, improper unjustified and amounts to unfair labour practice on the grounds set out in his statement of claim. He has prayed that the Petitioner be directed to reinstate him with full back wages and continuity of service with effect from 3rd February, 2005. 4. The Petitioner filed his written statement dated 17 th September, 2007 in the said Reference denying the allegations made by the Respondent against the Petitioner. According to the Petitioner, thereafter Respondent filed his affidavit in lieu of examination in chief dated 25 th July, 2008. Thereafter the Labour Court framed issues in the matter. The Petitioner filed an application dated 5 th August, 2008 before the Labour Court for framing an additional issue pursuant to which the additional issue “whether there was relationship as employer and employee between the first party and the second party” was framed. However, owing to the 4 wp-2023-10 recession wave that struck the Indian economy, the Petitioner had returned back to his village to find some source of earning and livelihood. According to the Petitioner, fighting the litigation before the Labour Court was out of his reach and means. Under the circumstances according to the Petitioner, the thought of litigating or getting in touch with his Advocate on record and proceed with the litigation was a luxury which he could not afford and for this reason he failed to file his affidavit of evidence to place on record that the Respondent was not working with him. According to the Petitioner, in the meanwhile, his Advocate on record made frantic efforts to get in touch with him for filing the affidavit of evidence for denying that any employer-employee relationship existed between the Petitioner and the Respondent. 5. According to the Petitioner, in the meanwhile, the Reference before the Sixth Labour court reached the stage of evidence. The Respondent had filed/adduced his evidence as well as evidence of one Mr. Aas Mohd who also claimed to be the workman of the Petitioner. The Advocate on record of the Petitioner proceeded for cross examination of the Respondent as well as Mr. Aas Mohd. According to the Petitioner, the Respondent had failed to produce on record, any documentary proof as to the fact of existence of any company allegedly operated by the Petitioner. 5 wp-2023-10 According to the Petitioner, the Respondent himself has admitted that he never signed any register or muster roll whilst his services with the Petitioner. However, the Labour Court proceeded with the trial in the absence of the Petitioner’s affidavit in lieu of evidence and passed the award dated 13 th November, 2009 directing reinstatement of the Respondent on his original post and further directed the Petitioner to pay 25% back wages of Rs. 7000/ per month from the date of termination of his service till the date of his reinstatement in the employment. 6. According to the Petitioner, in the first week of July, 2010 he was shocked to receive a message from his son that some court proceedings were brought by the postman at his son’s residence in Mumbai. The Petitioner therefore came to Mumbai and collected the papers from the Post office in the evening of 6th July, 2010. After going through the contents of the papers, he learnt that the Sixth Labour court Mumbai has allowed the claim of the Respondent in Reference (IDA) No. 81 of 2006 and that the Respondent had initiated the proceedings under Sections 28 and 30 of the MRTU & PULP Act, 1971 against the Petitioner, being Complaint (ULP ) No. 195 of 2010. According to the Petitioner, the order passed by the Labour Court on 13th November, 2009 deserves to be quashed and set aside on the grounds set out in the petition. He has submitted 6 wp-2023-10 that owing to the financial difficulties faced by him he was not able to place his affidavit in lieu of evidence and he is left with no other remedy except by way of present petition to seek indulgence of this Court to direct the Labour Court to permit the Petitioner to file his affidavit in lieu of evidence and hear the matter afresh. 7. The learned Advocate appearing for the Petitioner has submitted before this Court that due to financial difficulties, the Petitioner was not able to place the affidavit in lieu of evidence on record and therefore this Court should set aside the award passed by the Labour Court dated 13th November, 2009 in the absence of affidavit in lieu of evidence of the Petitioner and direct the Labour Court to permit the Petitioner to file his affidavit in lieu of evidence and hear the matter afresh. 8. I have considered the submissions advanced on behalf of the Petitioner. It is an admitted fact that the Petitioner had engaged an advocate to oppose Reference (IDA) No. 81 of 2006. The Petitioner after receipt of the statement of claim dated 10 th August, 2006 filed his written statement on 16 th September, 2007. The affidavit in lieu of examination in chief was filed by the Respondent on 25th July, 2008. The application for framing additional issue as to the employer-employee relationship was filed by the Petitioner on 7 wp-2023-10 21 st October, 2008. The Petitioner has no where stated in the Petition as to when he left Mumbai for his village. According to the Petitioner “ the financial crunch faced by him was so bad that the thought of litigating or getting in touch with the Advocate on record and proceed with the litigation was a luxury which he could not afford” thereby suggesting that he left Mumbai without getting in touch with his Advocate. However, the Award shows that the Advocate for the Respondent has vehemently argued the case on behalf of the Petitioner. He has not made any submission that he is not aware of the whereabouts of the Petitioner. Instead he has informed the Court that the Petitioner has stopped his business and is in Gujarat. This belies the case of the Petitioner that he returned back to his village to find some source of earning and livelihood, without getting in touch with his Advocate because of which he could not file his affidavit of evidence. The submissions made by the Advocate for the Petitioner before the Labour Court further belies the case of the Petitioner that “in the meanwhile his Advocate on record made a frantic effort to get in touch with him for filing his affidavit of evidence for denying the employer-employee relationship between the Petitioner and the Respondent”. In view of the aforesaid facts, this Court gathered an impression that the Petitioner has approached this Court with a false case, that without getting in touch with his 8 wp-2023-10 Advocate he had left Mumbai due to financial crunch and for this reason he failed to file his affidavit of evidence to place on record that the Respondent was not working with him. However, this Court, with a view to give a chance to the Petitioner to clarify his case, asked the learned Advocate for the Petitioner as to when the Petitioner had actually left Mumbai. The Advocate for the Petitioner tried to take instructions from the Petitioner who is present in Court and informed the Court that she was unable to converse with the Petitioner since the Petitioner only speaks Gujarati. This Court, therefore, directly asked questions to the Petitioner in Gujarati which were answered by the Petitioner in Gujarati and the said conversation is recorded hereunder: Per Court: Question: When did you leave Mumbai for your native place ? Answer : I don’t remember. Question: Can you give the approximate year in which you left Mumbai ? Answer: Sometime in 2005/2006 Question: How often were you coming to Mumbai from your native place after leaving Mumbai in 2005 or 2006 ? Answer : Within, one month or three months or six months Question: Why did you not contact your Advocate when you came to Mumbai after a month or three months or six months? 9 wp-2023-10 Answer: After leaving Mumbai I returned to Mumbai only in the year 2010. I had not come to Mumbai any time in between. Question: Your answers to the earlier questions shows that you are making incorrect statement before the Court ? Answer : I have not made any incorrect statement before this Court. 9. As recored hereinabove, the Petitioner has filed his written statement on 16 th September, 2008 and an application for framing of an additional issue on 21 st October, 2008. He has not stated anywhere in the Writ Petition as to when he left Mumbai due to financial constraints. The answers given by the Petitioner to this Court as recorded hereinabove shows that the Petitioner has not only put up a false case in the writ petition but is also not honest with the Court when the above questions were put to him. I am therefore convinced that the Petitioner has come with a false case in his writ petition that he was unable to file his affidavit of evidence since he had left Mumbai without getting in touch with his Advocate and that the matter be remanded back to the Labour Court for a fresh hearing after allowing him to file affidavit in lieu of evidence. I am also convinced that after the award dated 13 th November, 2009 was passed against the Petitioner, he neglected to impugn the same 10 wp-2023-10 for a period of nine months and decided to challenge the award and seek remand of the matter by coming up with a false case only after receiving the notice from the Industrial Court pertaining to the Complaint (ULP) NO. 195 of 2010 filed by the Respondent under Sections 28 and 30 read with Items 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971. 10. Under the circumstances, the above Writ Petition is dismissed with costs on the ground of delay, latches and also on the ground that the Petitioner has approached this Court with a dishonest case. ( S. J. KATHAWALLA, J.)