1 wp-2929-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 2929 OF 2009 WITH CIVIL APPLICATION NO.978 OF 2009 IN W.P.NO.2929 OF 2009 M/s.Ravi Steel Industries Thane ..Petitioner Vs. Shri.Ravindra Indradev Rajbhar and Ors. ..Respondents .... Mr.C.R.Naidu Adv. i/b M/s.C.R.Naidu & Co. for Petitioner Mr.Y.M.Pendse Adv. for Respondent No.1 Mr.A.P.Vanarse AGP for Respondent Nos.2 and 3. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING: SEPTEMBER 09, 2009 DATE OF PRONOUNCING: OCTOBER 16, 2009 P.C.: 1. Heard the learned counsel for the parties. 2 wp-2929-09 2. Rule. By consent of the parties, Rule made returnable forthwith and the petition is heard finally at the admission stage itself. 3. The Petitioner-Management has challenged the Award dated 6.12.2008 in Reference (IDA) No. 395 of 2005 passed by the IIIrd Labour Court, Thane, whereby the Reference came to be allowed and the Petitioner was directed to reinstate the Respondent No.1 in service with full back wages and continuity of service with effect from 20.6.2000. 4. The case of the Respondent No.1 is that he was working as an operator with the Petitioner. He came to be illegally terminated on 20.6.2000, hence, he raised a dispute. As the dispute could not be settled, Reference (IDA) No.395 of 2005 came to be made to the IIIrd Labour Court, Thane. As stated earlier, the Reference came to be allowed, hence, this petition. 5. The learned counsel for the Petitioner submitted that the Reference was bad in law and the Labour Court could not have entertained the said Reference. He submitted that the order of the Reference (Exhibit- H) is bad in law on four grounds viz: (1) it pre-supposes that the Respondent no.1 is employee of the Petitioner-Management, (2) it pre- supposes that the contract of employment existed between the Petitioner and the Respondent no.1, (3) it assumes that the Petitioner terminated service of the Respondent No.1 and (4) it has been assumed that the termination was not legal. 3 wp-2929-09 6. Mr.Naidu submitted that thus by this Reference the only question left open for the Labour Court to consider, was in respect of reinstatement, back wages and continuity in service. Mr.Naidu further submitted that by making a reference only in respect of the reinstatement, back wages and continuity in service, it assumes that the Petitioner is running an establishment when in fact, the Petitioner had closed down its processing activities w.e.f. 29.7.2000. Thus, Mr. Naidu submitted that true and correct dispute was not referred and the main issue as to whether the relationship of employer and employee existed between the parties was not at all referred. He submitted that Conciliator acted ultra vires and he assumed many things and the true and correct dispute was not referred, in such case, Reference being bad in law, the Award passed by the Labour Court is liable to be set aside. He has placed reliance on various decisions in support of his contention that if the reference is bad as it does not reflect the correct dispute, then such reference ought to be quashed. The decisions are : (1) Ramesh Chandra Sankala Etc. Vs. Vikram Cement Etc. 2008(8) J.T. 1: 2008(10) Scale 112; (2) M/s. India Tourism Development Corporation, New Delhi Vs. Delhi Administration, Delhi and others; 1982 Labour I.C. 1309; (3) Sitaram Vishnu Shirodkar Vs. The Administrator, Government of Goa and others; 1985 (1) L.L.J 480; and (4) Eagle Fashions Vs. Secretary (Labour) and Others); 1999 4 wp-2929-09 (1) C.L.R. 822. 7. However, it is seen that for the first time, the Petitioner is agitating the issue that the Reference was bad, as true and correct dispute was not referred. Though according to the petitioner the order of reference is bad, no attempt has been made by the petitioner to challenge the same. The order of Reference is dated 16.9.2005. If the Petitioner was aggrieved by the same, it could have challenged it at that point of time by filing a writ petition before this Court. However, it has not done so. Moreover, even before the Labour Court though some preliminary objection was raised and the Petitioner had prayed to the Labour Court to treat the issues in their written statement as preliminary issues, however, it is seen that thereafter, the Petitioner has not insisted that the above issues may be treated as preliminary issues and may be heard and decided first. It is seen that the Petitioner in fact, participated in the proceedings and it has not raised any objection stating that the Reference is bad. Thus, it appears that the petitioner has raised this objection for the first time before this Court and it is argued that the Reference is bad. 8. I am not inclined to entertain the said issue which was not pursued earlier and was in fact given up and it is being raised now for the first time before this Court. In my opinion, the principle of estoppel would apply as though the Petitioner claimed that there was no employer- 5 wp-2929-09 employee relationship between the Petitioner and the Respondent no.1, yet the Petitioner participated in the proceedings before the Labour Court. It did not raise any issue nor pursued it before the Labour Court. On the other hand, it participated in the proceedings before the Labour Court. Thereby the Petitioner is deemed to have waived the said issue as no objection was raised by it during the proceedings before the Labour Court. Had the Petitioner really been aggrieved by the Reference, it could have taken steps to challenge the same at the initial stage or thereafter, at least, before the Labour Court. Thus, for the first time, after the award is passed this contention has been raised. In the decisions on which reliance is placed, the reference was challenged at the very first stage by filing writ petition before the Division Bench. Today, as the reference has been belatedly challenged, these decisions would not apply and today, this Court has to confine itself to the question whether the award passed is correct or not. It is well settled that the Labour Court has to confine itself to the reference which is made before it and it cannot go into the other issues. 9. As observed by me earlier, even before the Labour Court no objection has been raised by the petitioner in respect of the reference. When an objection is raised by the Management about the dispute which is referred, the burden of proof would lie on the Management. In the decision of Workmen of Aligarh Electric Supply Company Ltd. 6 wp-2929-09 Aligarh Electric Supply Company Ltd., Aligarh and others; reported in 1966 II LLJ 839, it was observed that “it was the Management who raised the objection before the labour Court that the dispute referred was not an industrial dispute. In my opinion, it was for the Management to show that the opinion of the State Government was wrong and that in fact, no industrial dispute existed. The burden of showing, in these circumstances, that the dispute referred was not an industrial dispute was on the Management and was wrongly placed by the Labour Court upon the workmen. ” Thus, the burden would lie on the petitioner Management which it has failed to discharge. Useful reference may be made to the decision of the Apex Court in the case of Newspaper Ltd. and Industrial Tribunal, Uttar Pradesh and others, reported in 1957 II LLJ 1. In the said decision, it was held that “in spite of the fact that the making of a reference by the Government under the Industrial Disputes Act, is the exercise of its administrative powers, that is not destructive of the rights of an aggrieved party to show that what was referred was not an industrial dispute at all and therefore, the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a party ’s challenge. ” 10.The learned counsel for the Petitioner submitted that earlier also, in respect of same issue, some complaints i.e. Complaint (ULP) NO. 359 7 wp-2929-09 of 2000 and Complaint (ULP) No. 91 of 2002 were made and one of the complaints was made by some Sangh and the complaints were not decided in favour of workman. He submitted that both the complaints came to be dismissed and hence, same issue could not be re-agitated in the present petition. As far as Complaint (ULP) No.359 of 2000 is concerned, it was dismissed for want of jurisdiction and complaint (ULP) No.91 of 2002 was disposed of as withdrawn with liberty to raise the issue before the appropriate forum. Both these complaints were disposed of without recording evidence. They are not disposed of after trial. Hence, it cannot be said that Reference is hit by the principles of res-judicata nor would it bar the jurisdiction under Section 59 of the M.R.T.U. and P.U.L.P. Act. 11.In the case of Seth Jeejeebhoy Dadabhoy Charity Funds and three others Vs. Farokh Noshir Dadachanji; reported in 2005 III CLR 110, the Management had challenged the status of the employee and taken the stand that he was not workman as his duties were managerial and administrative in nature. It was observed therein that “Where the employer asserts that the Complainant has been given managerial, administrative and supervisory duties, obviously to prove these facts, the burden has to be on the employer and not on the complainant. ” In the present case, the Petitioner has chosen not to examine any witness. It has only relied on its written statement wherein it has denied 8 wp-2929-09 the employer-employee relationship. However, in my opinion, mere denial of relationship of employer-employee between the parties, by itself, is not enough. For, the opposite side is obliged to give or supply particulars to enable the Court to take the view that the defence so taken is neither false, frivolous, vexatious and vague. In taking this view I am supported by the view taken in the case of Akhil Bhartiya Shramik Kamgar Union Vs. Buildtech Constructions & Ors.; reported in 2004 II CLR 179, wherein it is observed that “indubitably it is well established that the complaint filed under the Act can proceed only if the relationship of employer-employee is undisputed or indisputable. However, the principal question that arises for my consideration is; whether it is enough for the respondents to merely deny on affidavit in reply or in the written statement, the relationship of employer-employee, so far as to oust the jurisdiction of the Court to proceed with the complaint, as filed. In my opinion, mere statement of denial of relationship made in the reply affidavit, or for that matter, written statement, by itself, cannot be the basis for taking the view that the Court has no jurisdiction. In the first place, issue of jurisdiction of the Court is to be determined from the averments in the plaint and not on the basis of the defences raised in the written statement. Even if the Court were to look in to the defence of the opposite side, mere denial of relationship of employer-employee between the parties, by itself, is not 9 wp-2929-09 enough. For the opposite side is obliged to give all supply particulars to enable the Court to take the view that the defence so taken, is neither false, frivolous, vexatious and vague. ” In the present case, the petitioner has not examined any witness or brought anything on record to show that there did not exist any employer-employee relationship. Thus, in my opinion, mere statement of denial of relationship made in the reply affidavit or for that matter written statement, by itself, cannot be the basis for taking the view that the Court has no jurisdiction. 12.In Kanpur Electricity Supply Company Ltd. Vs. Shamim Mirza, reported in (2009) 1 S.C.C. 20, it was observed that :it is trite that the burden to prove that a claimant was in the employment of a particular management, primarily lies on the person who claims to be so but the degree of proof, so required, varies from case to case. It is neither feasible nor advisable to lay down an abstract rule to determine the employer-employee relationship. It is essentially a question of fact to be determined by having regard to the cumulative effect of the entire material placed before the adjudicatory forum by the claimant and the management ”. 13.In the present case from the evidence of the Respondent-employee and from the documents produced by him, it does show that he was an employee of the Petitioner. On the other hand, no evidence was led by the Petitioner in rebuttal. No witness has been examined by the 10 wp-2929-09 Petitioner nor any documents produced by it, which have resulted in the rebuttal of the claim of the Respondent-employee. In the light of the factual scenario as emerging from the evidence on record, I am convinced that the workman had discharged the burden which lay on him to prove the employer-employee relationship with the Petitioner. 14.The case of the Petitioner is that Respondent no.1 was not their employee. In support of this case, the learned counsel for the Petitioner relied on the written statement wherein the employer- employee relationship between the Petitioner and the Respondent No.1 is denied. As far as this aspect is concerned, it may be stated here that the Petitioner did not choose to lead any evidence before the Labour Court. However, the Respondent-employee has examined himself. The Respondent-employee has specifically deposed that he was working as an operator with the Petitioner since 1.4.1995. Though there is some discrepancy as far as date of joining is concerned, but there is no discrepancy about the Respondent no.1 being in the employment of the Petitioner. Moreover, the Respondent no.1 relied on ESIC Card Exhibit-26 and letter Exhibit-28 issued by the ESI Corporation. This shows that the employer of the ESIC Card No.31-7630-56 is M/s.Ravi Steel Industries i.e. the Petitioner. It is not disputed that the said ESIC Card is allotted to the Petitioner. The Respondent no.1 has relied on this document to prima facie show that he was an employee of the 11 wp-2929-09 Petitioner. Thus, it is seen that initial burden of proving that the Respondent no.1 is an employee of the petitioner, has been discharged by him by producing this document. Once the initial burden has been discharged by Respondent No.1, burden would shift upon the Petitioner to show that Respondent No.1 was not employed by them, but he was employed through a contractor. As far as this stand is concerned, no contractor was examined. No evidence has been brought on record to show as to who is the contractor, as to when agreement was entered into between the Petitioner and the Contractor in respect of the work. In fact the Petitioner-Management has voluntarily chosen not to lead evidence. Thus, the Petitioner chose not to lead evidence to rebut the evidence of the Respondent No.1 or to disprove the stand of the Respondent No.1 that he was their employee. 15.The learned counsel for the Petitioner submitted that the deposition of the Respondent no.1 was lastly recorded on 27.2.2008 and after the cross-examination was complete on 30.4.2008, a list of documents was produced by the Respondent-workman along with ESIC Card. He submitted that in such case, the said document could not be looked into. As far as this aspect is concerned, it is seen that thereafter, it was open to the Petitioner to further cross-examine the Respondent No.1. However, no such request was made by the Petitioner and on 12 wp-2929-09 18.6.2008 a pursis was submitted that evidence on behalf of the Respondent No.1 is closed. It is pertinent to note that on 18.9.2008 the Management submitted no evidence pursis. Thus, now the Management cannot raise any grievance about the same. 16.Mr.Naidu has placed reliance on a document which was produced by the Management before the Labour Court on 8.10.2008 on the basis of which, he tried to contend that the Respondent No.1 was a contract- worker employed through Contractor. However, it is seen that this document has not been brought on record by proving the same as is required under law. The said document also does not bear any exhibit number, hence, it is not possible to look into this document. Thus, it is seen that initial burden of proving that Respondent no.1 is an employee of the Petitioner, has been discharged by respondent no.1. There is no effective cross-examination whereby the stand of the Respondent no.1 has been dislodged. When the Petitioner has chosen not to disprove the stand taken by the employee by proper means, no error can be found in the order of the Labour Court in answering the Reference in favour of the Respondent-employee. Despite opportunity, the Petitioner has not proved its case before the Labour Court. In such case, it cannot be said that the Award whereby the Petitioner was directed to reinstate the Respondent-employee with continuity of 13 wp-2929-09 service, can be faulted. 17.Thereafter, the learned counsel for the Petitioner submitted that reinstatement could not have been granted because processing activities of the Petitioner had closed down in July 2000. He placed reliance on two letters addressed to the Assistant Commissioner of Labour wherein it is stated that the processing activities of the Petitioner have been closed down. These two letters have been relied upon to show that the Petitioner has closed down its processing activities from 29.7.2000. However, as far as closure is concerned, the procedure is laid down in Section 25-O of the Industrial Disputes Act. The Petitioner has not brought on record anything to show that the procedure under Section 25-O has been complied with nor has anything been brought on record to show that Section 25-F of the Act was complied with. 18.The learned counsel for the Respondent no.1 has placed reliance on the decision of the Supreme Court in the case of Workmen of the Indian Leaf Tabacoo Development Co., Ltd. Guntur, Vs. The Management of Indian Leaf Tobacco Development Co. Ltd., Guntur, reported in AIR 1970 S.C. 860. The learned counsel has placed reliance on the observations therein that Reference cannot be entertained if the Company is closed. In paragraph 4 of the said decision, it was observed that “The closure may be treated as stoppage of part of the 14 wp-2929-09 activity or business of the Company. Such stoppage of part of a business is an act of management which is entirely in the discretion of the Company carrying on the business. No industrial Tribunal, even in a reference under Section 10(1)(d) of the Industrial Disputes Act, can interfere with discretion exercised in such a matter and can have any power to direct a Company to continue a part of the business which the Company has decided to shut down. We cannot possibly accept the submission made on behalf of the appellants that a Tribunal under the Industrial Disputes Act has power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down. ” However, in the present case, there is no reliable material to show that the company has closed down, hence, this decision cannot apply to the facts of the present case. 19.The Petitioner has also preferred Civil Application No.978 of 2009 praying therein that it should be allowed to produce copies of documents which are annexed to the Civil Application as additional supportive evidence. The petitioner is now praying that it be allowed to prove thirteen documents as additional supportive evidence. However, it is seen that before the Labour Court, the Petitioner has failed to produce any of these documents or even to make a prayer before the Labour Court that the petitioner be allowed to produce these documents. It is not the case of the petitioner that these documents 15 wp-2929-09 were not available for production when the matter was going on before the Labour Court. No reasonable explanation has been given for not producing these documents before the Labour Court. In fact, the petitioner has chosen not to lead any evidence before the Labour Court. Hence, I am not inclined to grant the said prayer in the application at such belated stage. 20.In the present case, in support of the issue of closure, no documents were produced to show that in fact, the establishment of the Petitioner was closed down. Reliance was placed on some xerox copies of documents, however, the same cannot be taken into consideration as they have not been properly proved before the Labour Court. Moreover, the communication addressed to the establishment of the Petitioner shows that in fact, the business is not closed and the establishment is running. 21.The learned counsel for the Petitioner submitted that as far as back wages are concerned, the Respondent no.1 had raised demand of back wages after four years and hence, in such case, he would not be entitled to back wages. However, it is seen that in the present case, the dispute was raised in 2003 and thereafter, in the year 2004, a reminder was sent by the Respondent no.1 in respect of the dispute. In such case, it cannot be said that the Respondent no.1 was lethargic or was not diligent in following the matter. In fact, on the other hand, the 16 wp-2929-09 Respondent no.1 has pleaded that despite efforts, he remained unemployed. He has clearly stated so in his deposition. It has been observed by the Supreme Court in the case of Novartis India Ltd. Vs. State of West Bengal and others; reported in (2009) 3 SCC 124, that the fact that an employee survived and did not die of starvation cannot, be a ground for denying back wages to him. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. 22.The Labour Court has considered all the facts of this case. The Labour Court has also observed that admittedly the services of the Respondent no.1 came to be terminated without memo, charge-sheet etc. In such case, the Labour Court held that the termination of Respondent no.1 from service is illegal. Looking to the fact that Respondent No.1 could not obtain gainful employment, the Labour Court granted full back wages. 23.Looking to the material on record, in my opinion, no interference is called for with the award of the Labour Court. Hence, writ petition is dismissed. Rule discharged. 24.Civil Application No.978 of 2009 is also dismissed. 25.At this stage, the learned counsel for the petitioner has stated that they 17 wp-2929-09 wish to challenge this order, hence, he has made oral request for continuation of interim order granted by this Court. Hence, on his request, interim order is extended for a period of five weeks from today. [ SMT.V.K.TAHILRAMANI,J.]