1 wp-1056-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 1056 OF 2009 M/s.Kamal Textiles ..Petitioner Vs. Mr.Shivshankar S.Rajbhar and Anr. ..Respondents .... Mr.V.A.Patil Adv. for Petitioner Mr.A.S.Rao Adv. for Respondent .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : OCTOBER 5, 2009 P.C.: 1. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 2. The case of the respondent is that he was working with the petitioner from 8.2.1997. He came to be terminated from service by the petitioner on 5.5.2002 without following due procedure. He raised a dispute. Ultimately, reference came to be made to the IInd Labour Court, Thane. Reference (IDA) No.532 of 2002 came to be allowed by award dated 17.2.2006. The petitioner was directed to reinstate the respondent workman with 40% back wages and continuity of service from 5.5.2002. Hence, this petition. 3. The learned counsel for the petitioner submitted that the Respondent 2 wp-1056-09 was not their employee and hence, there is no question of terminating him. He submitted that the business of the petitioner was given to another person to run the business and the respondent-workman had not been employed by the petitioner. 4. It is the specific case of the petitioner that the petitioner had given its business to another person to run the same. However, no agreement between the petitioner and the said person had been produced to show that the business was given to somebody else to run the same on contract basis. In fact even in the written statement, the petitioner had not stated the name of the person/firm, the year of the agreement nor examined the said person. Thereafter, it was stated that the petitioner had entered into a written agreement with a person by name Ghisala. However, this person was not examined nor any documents were produced to substantiate this contention. Thus, there is nothing to show that the petitioner had entered into a contract with somebody else to run the business or that the contract for running its business was assigned to someone. 5. The learned counsel for the petitioner submitted that the respondent had not examined any one to show that the respondent was working with the petitioner. Thus, the contention is that the respondent had not examined any co-worker to prove that the respondent was an employee of the petitioner. The learned counsel for the petitioner submitted that 3 wp-1056-09 bare statement of the respondent is not sufficient to prove that he was in the employment of the petitioner and it was necessary for the petitioner to examine a co-worker in support of his contention. He placed reliance on the decision of this Court in the case of Ravindra Baburao Ambolkar Vs. Gujarat Tea Canteen reported in 1995 FLR (71) 585. He has placed reliance on the observations therein, wherein, it is observed that the petitioner was unable to produce and examine even a single co-worker to affirm the fact that he was working in the respondent-establishment. It was observed that in such case, it was difficult to interfere with the order of the Labour Court who has chosen completely to disbelieve the evidence of the petitioner on the ground that the petitioner was unable to produce and examine a single co- worker to affirm the fact. 6. I have carefully perused the said decision. On perusal of the said decision, it is seen that the petitioner therein claimed that he is an employee and he placed reliance on a bunch of letters which he had received at the address of the first respondent to substantiate his claim. It is seen that the petitioner who claimed to be an employee of the Respondent, was the nephew of the first respondent, he was residing at the address of the first respondent therefore, the employer explained receipt of all the letters at his establishment address pointing out that the petitioner was related to him i.e. he was his nephew and he was 4 wp-1056-09 living on the said premises. It is seen that in the said case, the establishment had produced the muster roll in which the names of all the workers employed were entered. The establishment also claimed that workmen had been issued attendance cards and their signatures were taken in the employment register when the wages were disbursed from month to month. The petitioner's name was not found therein. Moreover, in the said case, petitioner claimed to have been working with the establishment since the year 1973 in its canteen whereas the respondent-establishment pointed out that canteen was started in the year 1980 and they produced the registration certificate of the canteen under the provisions of Bombay Shops and Establishment Act, 1948 in support of their contention. It was in these circumstances that it was observed that “the unsupported bare word of the petitioner that he was in the employment of the first Respondent could not be believed, that the petitioner being the nephew of the first respondent was residing at the premises of the first respondent which could easily explain receipt of letters at that address and that one material circumstance highlighted before the Labour Court was that despite his tall claim that he was working from the period 1973 to 1982 in the first respondent ’s establishment, the petitioner was unable to produce and examine even a single co-worker to affirm the said fact. ” The said decision being distinguishable on facts, it cannot be made applicable to the present 5 wp-1056-09 case. In the present case, it is an admitted fact that no muster roll has been maintained by the petitioner nor any other document which is required to be maintained under the various labour laws. The petitioner has not produced any evidence nor maintained any documents which are necessary. In such case, when the petitioner does not maintain muster roll or any document to show who is working with them, nor the petitioner has given any documents like appointment letter, attendance card, pay-slip either to the respondent or any of its workers in such case, it would be difficult to establish that the co-worker if examined, was actually working with the petitioner and therefore, the respondent was also working with the petitioner. 7. Thus, I find no merit in the contention of the learned counsel for the petitioner that respondent was not its employee and therefore, not entitled to any relief. The Labour Court has considered all the facts and thereafter came to the conclusion that the respondent was the employee of the petitioner and granted reinstatement with back wages and continuity of service. No case is made out for interference. Writ petition is dismissed. [ SMT.V.K.TAHILRAMANI,J.]