1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3354 OF 2008 Devkishan Ramgopal Sharma ..Petitioner. Vs. Pradeepkumar R. Bharti ..Respondent. .... Mr. S.M. Oak i/b Mr. Mayuresh Modgi for the Petitioner. Mr. Y.M. Pendse for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 29th September, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for the Respondent waives service. By consent of the learned counsel, taken up for hearing and final disposal. 2. The Labour Court allowed a reference under Section 10 of the Industrial Disputes Act, 1947 and granted reinstatement with full backwages and continuity of service with effect from 15th November, 2000 to the Respondent. The case of the Respondent is that he was working as a Mukadam with the Petitioner for two 2 years and that when he reported for work on 15th November, 2000, his services were terminated without assigning any reason. 3. Parties adduced evidence before the Labour Court. The Labour Court in its award dated 2nd November, 2007 relied exclusively on the written statement of the Petitioner in an application filed by the Respondent under Section 33C(2) of the Industrial Disputes Act, 1947. In the aforesaid application (IDA 60/2001) there was, according to the Labour Court an admission by the Petitioner that the Respondent was employed between 1998 until 15th November, 2000. Counsel appearing for the Petitioner has submitted that as a matter of fact, there was no admission in the written statement filed by the Petitioner in IDA 60 of 2001. It was urged that what the Petitioner has stated in the written statement in the earlier proceedings was that the Respondent was employed as a Mukadam, but the power loom was run and conducted not by the Petitioner, but by certain third parties with whom there were leave and licence agreements. Moreover, it was submitted that as a matter of fact the proceedings under Section 3 33C(2) were dismissed by the Labour Court on 30th June, 2008 with the observation that the Applicant therein (the Respondent to these proceedings) had failed to prove that he was in the employment of the opponent (the Petitioner herein). 4. The relevant averment in the written statement filed by the Petitioner in IDA 60 of 2001 is to the following effect : “a) The Applicant came to be employed and was working as a “MUKADAM” with the Opponent premises. The Opponent submits that the Powerloom premises is owned and possessed by the Opponent, but the same premises were not run and conducted by the Opponent, but the same premises were run by Mr. Girdharilal Chaudhari of Bhiwandi on Leave and Licence basis since 01/11/1997 to 30/09/1998 under the Leave and Licence agreement dated 15/11/97 and the same Agreement was signed and executed by both the parties in presence of witnesses. Thereafter expiry of previous agreement, the fresh Leave and Licence agreements were prepared between Opponent Mr. Devkishan Sharma and Mr. Jayprakash M. Tripathi for further period and till today also the said Powerlooms premises have been run on Leave and Licence basis with the different parties.” “c) The Applicant was employed and working from 1998 till 15/11/2000 and making a claim of overtime. There is no cause or reason given by the Applicant for filing the above said application. The Applicant knows it very well that the said Powerloom premises were managed and conducted by the same other person during the period 4 mentioned hereinabove, so this itself is sufficient to indicate and imply that not only the claim so made is infructuous, bogus, untenable, false and improper, but the same is filed with mischievous and malafide intention to cause undue harassment and difficulties to the Opponent.” 5. Ex facie, a perusal of the aforesaid two paragraphs in the written statement filed in the earlier proceedings will show that the case of the Petitioner was that while the Respondent was employed as a Mukadam in the premises, the Petitioner himself had handed over the premises to third parties and that a leave and licence agreement was entered into by the Petitioner with them. Unfortunately the Labour Court has not read the relevant averments in the written statement in their entirety. 6. Counsel appearing for the Petitioner has not disputed that the Respondent was, as a matter of fact, engaged in the premises but, it was the case of the Petitioner that there was a leave and licence agreement with a third party. Learned Counsel for the Respondent submitted that the burden of establishing that there was such a leave and licence agreement would lie upon the Petitioner, once it is admitted that the Respondent was engaged as a Mukadam 5 between 1998 till November 2000 within the premises. Learned counsel submitted that beyond producing a photocopy of the leave and licence agreement, no evidence has been adduced. This has been disputed on behalf of the Petitioner and it was urged on behalf of the Petitioner that the leave and licence agreements have in fact been exhibited in the proceedings. This is a matter which, in my view, will have to be considered by the Labour Court. The only basis of the award of the Labour Court is an alleged admission in the written statement of the Petitioner in previous proceedings under Section 33C(2). As already noted herein above, as properly read there is no such admission in the written statement. The proceedings will therefore have to be remitted back to the Labour Court for a decision afresh on the basis of the evidence already on the record. Since parties have already adduced evidence before the Labour Court, it has been agreed that no further evidence shall be adduced and the Labour Court will proceed to deliver its award after hearing the parties. 6 7. In the circumstances, the impugned award of the Labour Court dated 2nd November, 2007 in reference (IDA) 171 of 2004 is set aside. Reference (IDA) 171 of 2004 is restored to the file of the Labour Court. Parties shall appear before the Labour Court on 13th October, 2008. The Labour Court shall lay down a time schedule for the expeditious disposal of the reference and shall endeavour to do so by 31st December, 2008. It is clarified that all the rights and contentions of the parties are kept open and the Labour Court shall decide the reference after furnishing the parties an opportunity of being heard. The Petition is accordingly disposed of. There shall be no order as to costs. *****