PUSTAK MAHAL PUBLISHERS Vs. HARDWARI LAL SHARMA

JUDGEMENT

(1.) By the present petition the Petitioner impugnes the award dated 10th July, 2007 passed by the learned Presiding Officer, Labour Court-II holding that the Respondent was a workman and since the termination of his services by the Petitioner was unlawful, he was entitled to reinstatement with 50% back wages, continuity of service and all other benefits.

(2.) Learned counsel for the Petitioner contends that the Respondent though initially employed as a Clerk on 1st November, 1978 admittedly left the services of the Petitioner and rejoined on 1st September, 1994. In the second stint he was appointed as a Sales Manager and thus he did not fall within the category of "workman" as defined under Section 2(s) of the Industrial Disputes Act, 1947 (in short the ID Act). The learned Trial Court ignored the entire evidence led by the Petitioner to show that the Respondent was working as a Sales Manager and not as a Clerk and erroneously held that the management had failed to produce any document to establish that the claimant was vested with managerial and supervisory powers. The evidence of the three management witnesses produced during trial and the documents signed by the Respondent and duly admitted by him have also been ignored learned Trial Court wrongly placed the onus of proving that the Respondent was not a workman on the Petitioner contrary to the law laid down by the Supreme Court in Mukesh K. Tripathi Vs. Senior Divisional Manager LIC & Ors., 2004 LLR 993; Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, 2005 3 SCC 232 and Electronics Corporation of India Ltd. Vs. Electronics Corporation of India Services Engineers Union, 2006 7 SCC 330. Thus, the impugned award requires to be set aside. In the alternative it is prayed that in case this Court comes to the conclusion that the Respondent is a workman, still in view of the fact that admittedly the Respondent was 57 years old when he was examined, had not made any efforts for an alternative employment and was being fed by his children, the relief of reinstatement with back wages should not be granted to the Respondent. The burden to show that he was not gainfully employed despite efforts lay on the Respondent which he has failed to discharge, rather he has admitted that he made no efforts to find the job.

(3.) Learned counsel for the Respondent relying upon the impugned award states that the onus was on the Petitioner to prove that the Respondent was not a workman as a preliminary objection was taken by the Petitioner. Further, the Respondent has categorically stated that though he was designated as Sales Manager, he was performing the duties of Clerk and in this regard no evidence has been led by the Petitioner to discharge its burden. Referring to Section 101 of the Evidence Act it is stated that the burden is on the person who pleads the fact. The conduct of the Respondent was very good and that is why he was re-employed, however his services were terminated without any enquiry or show cause notice and thus the termination is illegal. The Respondent is entitled to the relief as awarded by the learned Tribunal.