1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6077 OF 2009 The Chairman, The Karad Urban Co-op. Bank Ltd. & ors. ... Petitioners v/s Shri Madhukar Laxman Thorat ... Respondent Mr.A.V.Anturkar i/by S.B.Deshmukh for the petitioners. Mr.K.S.Bapat i/by Mr.Milind Deshmukh for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 6TH JULY, 2010 P.C.: 1. Leave to amend. Amendment to be carried out forthwith. 2. The petition challenges the order of the Labour Court dated 11.4.2008 declaring that the respondent is an employee as defined under Section 3 (13) of the Bombay Industrial Relations Act, 1946 (in short, “the B.I.R. Act”). This 2 order has been confirmed by the Industrial Court by its order dated 7.4.2009. The petitioners have also challenged the order passed by the Labour Court on 31.3.2007 directing them to reinstate the respondent, temporarily. This order has been confirmed by the Industrial Court which order is also challenged in this petition. 3. The petitioners had preferred Writ Petition No. 6041 of 2007 before this Court in which the orders passed by the Labour Court dated 31.3.2007 and of the Industrial Court confirming the order of the Labour Court were impugned. The petition was disposed of by passing the following order:- “(i) The orders impugned in the present petition shall not be implemented till the Labour Court decides the preliminary issues regarding its jurisdiction and the maintainabilty of the complaint, on the ground that respondent is not an employee under the aforesaid provisions of law. The Labour Court shall decide the application filed by the petitioner on 8th august 2006 within six months from today. In the event, the Labour Court concludes that the respondent is an employee, the orders which are held in abeyance, shall be implemented and executed. (ii) The petitioners may challenge the order impugned in this writ petition, in the event the complaint or any interim orders are decided against them.” Since the Labour Court had not considered whether the 3 respondent is an employee as defined under Section 3(13) of the B.I.R.Act, the Labour Court was directed to first decide that issue. While the Labour Court decided the preliminary issues, the interim relief granted by the Labour Court was kept in abeyance. The Labour Court decided these issues in favour of the respondent by concluding that he is an “employee” as defined under Section 3(13) of the B.I.R. Act and therefore the complaint under the M.R.T.U. & P.U.L.P. Act was maintainable. Aggrieved by this order, the petitioners preferred a revision application. It appears that despite the direction that the order passed by the Labour Court was to be kept in abeyance, the Industrial Court had reviewed its own order passed on 21.7.2007 which had confirmed the order granting interim relief in favour of the respondent. The respondent therefore filed Writ Petition No. 5409 of 2008 challenging the order passed on 21.5.2008 by the Industrial Court. That petition was allowed and the order impugned in the petition of the Industrial Court dated 21.5.2008 was set aside. Thereafter a review petition was filed by the Bank. That review petition was dismissed. The Industrial Court ultimately confirmed the order of the Labour Court that the respondent was an “employee”. 4. The present petition is therefore directed against both, 4 the order declaring the respondent as an employee as defined under Section 3(13) of the B.I.R. Act as well as the order directing the petitioners to reinstate the respondent, temporarily. 5. In my opinion, the order passed by the Labour Court holding that the respondent is an employee is correct. The Labour Court has considered the evidence on record and has concluded that the respondent is an employee. The Labour Court has, by a well reasoned order, considered all the relevant documents which were filed by the parties to arrive at its conclusion. The Labour Court has rightly held that the nature of the work that the respondent was performing on the date of his alleged resignation i.e. 5.8.2005 was that of a Clerk. Based on the pleadings and the evidence on record, the Labour Court has, in my opinion, rightly concluded this issue by holding the respondent to be an “employee” under Section 3(13) of the B.I.R. Act. The Industrial Court has confirmed this decision of the Labour Court. I do not see any reason to defer with the concurrent findings of fact arrived at by both the Courts below. There is no perversity in the orders passed by both the Courts below. 6. As regards the orders of the Labour Court directing 5 that the respondent be temporarily reinstated, in my opinion, there is no need to interfere with that order. The Industrial Court has confirmed the order of the Labour Court. The Labour Court has in its discretionary jurisdiction available to it under Section 30 sub-section (2) of the MRTU & PULP Act, directed that the respondent should be temporarily reinstated. The order has been passed in exercise of the jurisdiction conferred on the Labour Court under the MRTU & PULP Act. The order cannot be said to be perverse. The Industrial Court has rightly confirmed the order. 7. In these circumstances, the orders passed by the Labour Court which have been confirmed by the Industrial Court are upheld. It is relevant to note that the order granting interim relief has already been complied by the petitioners pursuant to the directions of this Court and therefore there is no reason to disturb the position today. 8. Writ petition dismissed. ..... 6