1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6653 OF 2011 Mr.Gopikisan Zhavar & Ors. .. Petitioners V/s Shri.Kunjaram Kumar Shetty .. Respondent WITH WRIT PETITION NO.6652 OF 2011 Mr.Gopikisan Zhavar & Ors. .. Petitioners V/s Shri.Santosh Sitaram Shelar .. Respondent WITH WRIT PETITION NO.6654 OF 2011 Mr.Gopikisan Zhavar & Ors. .. Petitioners V/s Shri.Ganesh Babu Shetty .. Respondent Mr.D.S.Hatle with Mr.Deepak Jamsandekar for the petitioners. Mr.Y.M.Pendse for the Respondents. CORAM : R.G.KETKAR, J. DATE: 26th September, 2011. P.C.: 1. These matters were heard partly on 23.09.2011 and were adjourned for today i.e.26.09.2011. However due to inadvertence, office did not list these petitions on board today. By consent of the parties, petitions are taken on board for admission. Heard 2 Mr.D.S.Halte, learned counsel for the petitioners and Mr.Y.M.Pendse, learned counsel for the Respondents. Rule. Mr.Pendse, waives service for the Respondents. By consent of the parties, Rule is made returnable forthwith and is heard finally. 2. By these petitions under Article 226 & 227 of the Constitution of India, the petitioners are challenging the judgments and orders dated 14.01.2011 passed by the learned Presiding Officer, IVth Labour Court, Thane in Reference (IDA) Nos. 54 of 2008, 53 of 2008 and 52 of 2008 respectively. By these orders, the learned Judge of the Labour Court answered the references in the affirmative and directed the petitioners herein to reinstate the Respondents in service with 30% back wages and continuity of service w.e.f. 01.12.2007. The Respondents (hereinafter referred to as the workmen), addressed the demand letters dated 12.12.2007 to the petitioners herein and demanded that they may be reinstated in service w.e.f. 01.12.2007, among other demands. This was replied by the petitioners on 04.02.2008. 3. The matters were referred to the Labour Court by the Deputy Commissioner of Labour under Section 10(1) read with Section 12(5) the provisions of the Industrial Disputes Act, 1947 (for 3 short the ‘Act’ ). The workmen filed statements of claim dated 20.06.2008. The petitioners filed their written statements dated 11th July, 2008 and 14th August, 2008 resisting the claims of the workmen. The parties led oral as well as documentary evidence. Initially the references were allowed on 07.05.2010 by the learned Judge of the Labour Court, Thane. Aggrieved by these decisions, the petitioners filed writ petition Nos. 8270 of 2010, 8271 of 2010 & 8335 of 2010. All these petitions were disposed of by this Court by setting aside the said judgments and awards. The Labour Court was directed to decide the references separately taking into consideration the pleadings, the documents and the evidence already on record. Only such documents as have been already accepted by the Labour Court were ordered to be considered. It was directed that no additional documents would be considered even if filed by the parties at a later stage just before the impugned awards were passed. The references were directed to be disposed of after hearing the parties. 4. After the remand, the learned Presiding Officer by his Judgments and Orders dated 14.01.2011 allowed the references in the affirmative and directed the petitioners to reinstate the workmen 4 in service with 30% of back wages and continuity of service w.e.f. 01.12.2007. It is against these judgments and awards the present petitions are filed. 5. In support of these petitions, Mr.Halte contended that the Respondents are contractors and not the workmen. He further submitted that the workmen have not approached the authorities and the Labour Court with clean hands and have suppressed the material facts. He further submitted that the agreements were executed between the parties and the payments were made to the Respondents after deducting the T.D.S. He submitted that the Labour Court committed serious error in deciding the references. He invited my attention to the admissions given by the workmen during their cross-examination to the effect that the bills were produced alongwith the list at Exhibit 11 which show their signatures. He therefore submitted that the Labour Court ought to have exhibited these documents that proved the factum of the payments made to the workmen after deducting the T.D.S. He submitted that in labour jurisprudence, the rules of the Evidence Act are not strictly applicable. 6. On the other hand Mr.Pendse submitted that the case made out by 5 the petitioners that the Respondents are contractors is not established by them. He submitted that the petitioners examined 1st Party No.1 Gopi Kisan Zhavar by filing his affidavit at Exhibit 20, 1st party No.3 Badrinarayan Zhavar at Exhibit 21 and 1st Party No.4 Indrachari Zhavar at Exhibit 22 and closed their evidence by filing purshis at Exhibit 23 on 08.03.2010. After conclusion of the evidence, the petitioners filed documents i.e.agreements alongwith the list at Exhibit 25 on 15.04.2010. The Labour Court therefore rightly declined to rely upon the agreements in view of the order passed by this Court on 06.12.2010. 7. He also invited my attention to the evidence of the petitioners where-under they clearly admitted that the petitioners gave directions to the workmen about the type of goods required to be produced and the petitioners were also having control on the workmen. He invited my attention to Paragraph No.22 of the impugned Judgment wherein the Labour Court has distinguished between the independent contractor and the servant. The Labour Court in Paragraph No.23 came to the conclusion that the bills filed alongwith the list at Exhibit 11 & 17 cannot be looked into as the same have not been duly proved by the petitioners. 6 8. I have considered the rival submissions made by learned counsel appearing for the parties. In so far as the reliance placed on behalf of the petitioners on the agreements executed between the parties is concerned, in Paragraph No.11 of the judgment, the Labour Court came to the conclusion that the petitioners had submitted these documents alongwith the list at Exhibit 25 after conclusion of their evidence. If that be so, no reliance can be placed on these documents as it cannot be said that the petitioners have proved these documents. From the material on record, it is evident that on 15.04.2010 the petitioners made application at Exhibit 24 seeking permission to produce agreement between them and the workmen. On that application order was passed on 15.04.2010 directing other side to say. Other side strongly objected. The petitioners also filed list of documents on 15.04.2010 and filed original agreements. The petitioners closed their evidence by filing purshis on 08.03.2010 at Exhibit 23. Thus after the evidence was over, the petitioners filed documents on 15.04.2010. Mere production of the documents by itself, does not mean that the party who produces the document has proved the contents thereof. 7 9. The workmen did not have an opportunity to deal with these documents. The petitioners have neither referred in their pleadings about the execution of the agreements between the parties, nor produced those documents at appropriate stage. The Labour Court rightly came to the conclusion that these documents were produced at the belated stage, after the closure of evidence. I do not find that the Labourt Court committed any error, particularly in view of the order dated 06.12.2010 passed by this Court. That apart, on behalf of the petitioners it was admitted that they are not maintaining any register except the attendance register. Even that attendance register was admittedly not produced before the Labour Court. Thus the petitioners withheld the best evidence which was in their custody. 10.It is in these circumstances, it cannot be said that the Labour Court committed any error while passing the impugned orders. Apart from this, in Paragraph No.22 of the impugned Judgment the Labour Court has rightly drawn distinction between the independent contractor and the servant and came to the conclusion that both the ingredients of master and servant i.e. Direction and control are present in the case. I do not find that the 8 Labour Court committed any error in reaching the conclusion in that behalf. The above discussion will indicate that the petitioners did not prove the agreement as also the payments made through bills. The petitioners though admitted that they were maintaining the attendance register, they did not produce the attendance register. 11.Mr.Pendse relied upon the judgment of the Apex Court in the case of Director of Fisheries, Terminal Division V/s. Bhikubhai Meghajibhai Chavda – AIR 2010 SC 1236 and in particular paragraph No.15 thereof to contend that during the course of evidence the workmen have deposed on oath that they are in continuous service of 240 days so as to constitute the continuous service. As pointed out earlier, the petitioners did not produce the attendance register and they also failed to establish that the Respondents are the contractors and not the workmen. 12.In view of this, I do not find that the Labour Court has committed any error of law apparent on the face of record. It also cannot be said that the impugned order suffers from any perversity. The findings recorded by the Labour Court are based upon the appreciation of evidence. It also cannot be said that the findings 9 of the Labour Court are based on no evidence. In view thereof, in my opinion, these are not not fit cases for exercising powers under Articles 226 & 227 of the Constitution of India. Petitions fail and the same are dismissed. Rule is discharged in each petition, with no order as to costs. (R.G.KETKAR, J.)