Case: The Factory Manager,Cimmco Wagon Factory Vs. Virendra Kumar Sharma

be compelled to do so. May be, the respondent did not give up training and continued working as a Co-ordinator in anticipation of being provided employment as his father was also an employee in the factory. There was no evidence on record to indicate that either GPF or ESI were deducted from the salary of the respondent as he was not being paid any salary. Having regard to the evidence placed on record, the Labour Court held that the respondent was not a workman. As regards the presumption to be drawn under Section 103 of the Act, the Labour Court observed that such a presumption was put to an end by the facts of the case as the respondent was not given any appointment letter; he was neither paid any salary or wages and that the master and servants relationship did not exist between the parties. As per clause 5 of the Exbts. M1 and M2, the appellant was not bound to give employment to the respondent. It may be added here that the letter Exbt. W-6 (Annexure R1/8 produced in this appeal) written by the respondent himself shows that his services came to an end on 30.6.82. If that be the case, his claim that he continued in the service as a regular employee till April, 1983 is not acceptable. 10. The learned Single Judge looking to the award passed by the Labour Court has observed that the respondent was continued as an apprentice for a period of two years in the appellant company and beyond that his services were not extended by the appellant. The learned Single Judge did not find any illegality, impropriety or perversity in the award. The learned Single Judge also proceeded to say that not a single document was placed on record from which it could be established that the respondent was a regular employee. In this view, the learned Single Judge declined to exercise jurisdiction under Article 226 of the Constitution of India and dismissed the writ petition. 11. The Division Bench of this High Court in the impugned order referred to Exbts. W7 and W8 to hold that the respondent was a workman. From a plain reading of these letters, it is clear that they are only recommendatory. It is also brought on record, as observed by the Labour Court that Shri Goyal was not competent authority to give any appointment. The Division Bench in the impugned order has stated thus : "Though it is true that no appointment letter has been issued to the writ petitioner, nor any payment was made to the writ petitioner, but still it is the established fact that he was asked to work in the factory by the authorities." 12. Assuming that the respondent was asked to work in the factory in anticipation of securing employment, that too by an officer who was not competent to give appointment, did not make the respondent workman or a regular employee of the appellant company. We have no hesitation to say that the Division Bench was not right in raising presumption under Section 103 of the Act in order to say that the respondent was a workman in relation to an industrial dispute for the purposes of any proceedings under the Industrial Disputes Act, 1947. Section 103 of the Factories Act, 1948 read as under :- "103. Presumption as to employment - If a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved, be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory." (Emphasis supplied) 13. The presumption available under this Section in the first place is rebuttable and secondly it is available only for the purpose of the said Act. It is also not the case of the respondent that this presumption is made available in relation to an adjudication of a dispute referred to under Section 10 of the Industrial Disputes Act, 1947. Section 103 of the Act is included in Chapter X under the heading "Penalties and Procedure" which chapter deals with general penalty for offences, liability of owner of premises in certain circumstances, enhanced penalty after previous conviction etc. The Act provides for the health, safety, welfare, and other aspects of workers in factories. It was enacted to consolidate and the law regulating labour in factories. The presumption under Section 103 of the Act as already noticed above is to be raised for the purposes of the said Act. Even otherwise on the material placed on record when it was factually established that the respondent was not a workman, raising a presumption under Section 103 of the Act in his favour was not correct. At any rate there were no good reasons sustainable in law to upset the finding of fact recorded by the Labour Court based on the evidence placed on record after proper appreciation of the same and more so when the award of the Labour Court was affirmed by the learned Single Judge. Having regard to the facts, circumstances of the case and in the light of the evidence placed on record, it is not possible to accept that there was any unfair labour practice as observed in the impugned order. Thus in view of what is stated above, we find it difficult to sustain the impugned order. Hence the appeal is allowed. The impugned order is set aside and the award of the Labour Court is restored. 14. The Division Bench of the High Court while directing reinstatement of the respondent in service had ordered payment of 25% of the back-wages. The respondent aggrieved by denial of full back-wages, has filed Civil Appeal No. 5408/98. In the light of the conclusion arrived at by us in Civil Appeal No. 4501/98, this appeal is dismissed. There shall be no order as to costs. 15.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The presumption available under this Section in the first place is rebuttable and secondly it is available only for the purpose of the said Act. It is also not the case of the respondent that this presumption is made available in relation to an adjudication of a dispute referred to under Section 10 of the Industrial Disputes Act, 1947. Section 103 of the Act is included in Chapter X under the heading "Penalties and Procedure" which chapter deals with general penalty for offences, liability of owner of premises in certain circumstances, enhanced penalty after previous conviction etc. The Act provides for the health, safety, welfare, and other aspects of workers in factories. It was enacted to consolidate and the law regulating labour in factories. The presumption under Section 103 of the Act as already noticed above is to be raised for the purposes of the said Act. Even otherwise on the material placed on record when it was factually established that the respondent was not a workman, raising a presumption under Section 103 of the Act in his favour was not correct. At any rate there were no good reasons sustainable in law to upset the finding of fact recorded by the Labour Court based on the evidence placed on record after proper appreciation of the same and more so when the award of the Labour Court was affirmed by the learned Single Judge. Having regard to the facts, circumstances of the case and in the light of the evidence placed on record, it is not possible to accept that there was any unfair labour practice as observed in the impugned order. Thus in view of what is stated above, we find it difficult to sustain the impugned order. Hence the appeal is allowed. The impugned order is set aside and the award of the Labour Court is restored.