1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2664 OF 1991 Ramesh Bhalchandra Chavre Age 56 years, R/o. A/P Sakarwadi, Tal. Kopargaon District Ahmednagar (at present R/o. Sangamner, Tq. Sangamner, District Ahmednagar) ..Petitioner Versus M/s. Somaiya Organo Chemicals Ltd. A/P Sakarwadi, Kopargaon District Ahmednagar ...Respondent ..... Mr. T.K. Prabhakaran, advocate for the petitioner Mr. B.B. Yenge, advocate for respondent No. ..... CORAM: S.S. SHINDE, J. DATED: 4TH JANUARY, 2010 JUDGMENT:- 1 This petition is filed challenging the judgment and order dated 17.7.1991, passed by the Industrial Court, Ahmednagar, in complaint (ULP) No. 55 of 1990. The present petitioner is original complainant, who filed the said complaint under Section 28(1) of Maharashtra Recognition and Trade Union and Prevention of Unfair Labour Practice Act, 1971 (for short " the Act"), alleging that the respondent Somaiya 2 Organo Chemicals Ltd. has indulged in unfair labour practice, as mentioned under Items 5, 6 and 9 and Schedule 4 of the Act. 2 It is the case of the petitioner that the respondent is a company registered under the Indian Companies Act, engaged in manufacturing the acid. There are as many as 350 employees working under the company. The complainant/petitioner was appointed or or about 1.1.1987 as a workman. He was given 15 days work in the year 1987. He had received the amount of Rs.586/- towards his wages from 1.1.1988 onwards. He had worked for entire month but he was paid wages only for 15 days, for an amount of Rs.586/- p.m. 3 It is the further case of the petitioner that he was serving as workman with Godavari Sugar Mills (for short G.S. Mills). He was appointed in the year 1963. In the year 1986, G.S. mills was closed down. The services of the complainant under the G.S. Mills came to be terminated. The complainant has received all legal dues from G.S. Mills. It is further case of the petitioner that he retained the quarter allotted to him by G.S. Mills, although he had tendered the resignation. The residential accommodation provided to the complainant and other employees, who were formerly employed under the G.S. Mills, are maintained by the respondent Company. The respondent company incurred all expenditure for the electricity, light etc. 3 It is further case of the petitioner that the complainant and other 70 to 80 employees, who were formerly employed under G.S. Mills, have been recruited by the company. The company works in three shifts. It has maintained the attendance cards. However, for the workers, who were formerly working under the G.S. Mills, the cards are maintained for 15 days in a month by the company. These employees were not treating at par with the rest of the employees of the respondent company. There is substantial difference as regard pay and allowances, bonus leave etc. It is further case of the complainant that he is serving under the company from 1.1.1987 as a Wireman. He has already put in continuous service of more than 240 days in a year before filing of the complaint. Despite of this, company has not made him permanent by issuing him letter in writing to that effect. In the month of November, 1989, the complainant demanded arrears of wages from the company. The company stopped providing him work w.e.f. 11.11.1989. The complainant is reporting for duty from 11.11.1989 onwards regularly but he is not allowed to resume the duties by the company. It is therefore, alleged that the company has committed unfair labour practice under Item 5, 6 and 9 of schedule IV of the Act. It is the further contention of the complainant that the Model Standing orders framed under the Industrial Employment (Standing Orders) Act are applicable to the company. 4 4 The respondent company filed its written statement at Exh. C-3 denying all allegations against the company. It is the contention of the respondent that the complainant is not employee of the company and he is not "workman" under Section 2(s) of the Industrial Dispute Act, 1947. In short, the company is not employer of the complainant. The complainant was in regular employment of G.S. Mills till 6.4.1988. He resigned from the services from 5.4.1988. He was accepted by G.S. Mills on 6.4.1988. There was long standing litigation between the Mill and the union acting under the G.S. Mills. The litigation was pending before the Hon'ble Supreme Court and as such although the complainant had tendered his resignation, he was not forced to vacate the residential quarter. Some of the employees were taken in the employment by G.S. Mills for maintaining the staff quarter. The company provided facility of electricity, water and sanitation etc. to other employees and the G.S. Mills appears to have employed the complainant after his resignation on contract basis. It is further stated in the written statement that the G.S. Mills is necessary party to the complaint and non joinder of G.S. Mills as a party, is fatal to the complaint and therefore, it was prayed that the complaint be dismissed. The Industrial Court, Ahmednagar by impugned judgment and order has dismissed the complaint. Hence, this writ petition. 5 Learned counsel appearing for the petitioner submitted that the 5 respondent company has taken over all liabilities of G.S. Mills and since the petitioner was employee of G.S. Mills, he was in continuous service and therefore, he is also regular employees of the respondent company. It is further submitted that the petitioner along with other 70 employees, who were permanent in G.S. Mills, were issued with metal token bearing No.144 by the respondent. The petitioner was issued with the identity card fortnight entries therein were made by the time keeper of the respondent. Whenever the petitioner was required to go out of the factory in connection with the work of the respondent, he was to obtain the permission from in charge of the time keeper by way of gate pass which was delivered to the strangers. Again when the petitioner was required to go out of the factory for the work of the respondent with the permanent employees. It is further submitted that the petitioner has formerly submitted resignation to the G.S. Mills some time in the year 1988, while he was in employee of the respondent. The other 69 employees also submitted their resignation to the G.S. Mills and they came to be employed by the respondent and other employees of the respondents are stayed in the residential quarters which are in the factory premises of the respondent. The petitioner was in continuous service with the respondent since 1.1.1987 and more particularly since 1.1.1988 and had completed 240 days service in 1988 and in the 1989. The respondent orally terminated the service of the petitioner on 11.11.1989. While terminating the services of the petitioner, the respondent has not given 6 any notice, notice of pay, compensation and has not taken prior permission from the Government as required under Section 25(N) of the I.D. Act, 1947. It is further submitted that the G.S. Mills was not necessary parties to the proceeding, since it was closed in the year 1987 itself. The Industrial Court erred in not drawing adverse inference against the respondent for not producing the documentary evidence in support of oral evidence. It is further submitted that token bearing No. 144 issued to the petitioner by the respondent shows the conclusive evidence in favour of the petitioner and the court below has not properly appreciated the evidence, which was brought on record. Therefore, the learned counsel would submit that the petition may be allowed. 6 Learned counsel appearing of the respondent supported the reasonings given in the impugned judgment and order and submitted that the petitioner was never employee of the respondent company and nothing has been brought on record to contend that the petitioner was employee of the respondent Somaiya Organo Chemicals Limited. Therefore, learned counsel appearing for the respondent would submit that the petition is devoid of merits and the same may be dismissed. 7 I have heard learned counsel appearing for the petitioner as well as learned counsel appearing for the respondent ,at length and I am of the considered view that the Industrial Court has properly appreciated 7 the evidence brought on record by the petitioner and after appreciation of the evidence has rejected the complaint. In my view, under Article 227 of the Constitution of India, it is not possible for this Court to reappreciate the evidence, once it is appreciated by the Court below and that too when no perverse findings are recorded. The Industrial Court framed the necessary issues for its consideration/determination on each aspect/point raised in the complaint and after proper appreciation of evidence, the Industrial Court has dismissed the complaint. In para 9 of the judgment, the Industrial Court has discussed about the evidence, which is brought on record by the petitioner in the nature of gate pass produced on the record. The Industrial Court has also looked into the ticket issued by G.S. Mills and the ticket issued by the company in favour of the complainant. The Industrial Court has also looked into the evidence produced at Exh. U-12. The Industrial Court has observed that Exh.7 get pass produced by the complainant and ticket issued by the G.S. Mills and ticket issued by the respondent company and attendance cards produced at Sr. No.10 at Exh. U-12. Besides these documents, it is admitted that the complainant does not possess any document showing that he is employee of the respondent company. In para 10 of the impugned judgment, the Industrial Court has discussed about the real controversy raised in the complaint i.e. 8 whether the complainant was actually in employment of the company or otherwise and came to the conclusion that the complainant was not in actual employment of the respondent company. The Industrial Court has also taken a note of the fact that the respondent company had provided inspection of all documents and on perusal of the documents name of the complainant was not appearing in those documents. These documents mainly comprise all original register of attendance and payment of employees for the period from January, 1987 to 1990. These documents, were produced before the Court at Exh. C-4. The complainant took inspection and filed his inspection report at Exh. U-2. After inspection, said documents were given back to the company for its day to day business. The Industrial Court has proved the documentary evidence and commented on the said documentary evidence in para 12 of the judgment. The Court has looked into the gate passes provided by the complainant at Sr.No. 1 to 7 Exh.U-12. The Court has recorded the finding that these gate passes were given to the complainant while he was in employment of the company. The complainant has given particulars of these gate passes. On perusal of the gate passes the Industrial Court has came to the conclusion that the said gate passes are issued not only to the employees working under the company but they are also issued to the strangers or even to the visitors. These gate passes in the name of the complainant would not be decisive circumstances. The court has also recorded the findings that the G.S. Mill was necessary party to the complaint, 9 however, the same was not made party to the complaint. The Industrial Court has further taken a note of the applying test of probability. The court has inferred that the complainant might have went in the company for taking certain material required for maintenance of staff quarters of G.S. Mill and for taking out such material he might have been issued with such gate passes by officers of the Company. On perusal of the attendance cards at Sr. No. 10 at Exh. U-12, the Industrial Court has recorded that these documents support the stand taken by the respondent company that the complainant is not its employees but the employee of G.S. Mill. Therefore, on careful perusal of the judgment and order impugned in this petition, it clearly appears that evidence which was brought on record, by the petitioner in support of his contention has been properly appreciated by the Industrial Court, Ahmednagar. This petition does not raise any substantial question of law much less questions of law, whether the present petitioner was employee of the respondent company or not, was mainly depends on evidence and the evidence which was produced by the petitioner before the Industrial Court was very short of his assertion that he is employee of the respondent company. On query made by this Court, learned counsel appearing for the petitioner that is there anything brought on record showing that the 10 petitioner was in the employment of respondent company. The answer was in negative as there is no document in the nature of conclusive proof to suggest that the petitioner was employee of the respondent company. In my considered view, the Industrial Court has properly appreciated the evidence brought on record. I find that no case is made out to entertain this petition. Hence, Writ petition stands dismissed. Rule discharged. Interim relief, if any, stands vacated. *****