RAMAKRISNA RAMNATH Vs. STATE INDUSTRIAL COURT NAGPUR

JUDGEMENT

(1.) This is a petiton under Arts. 226 and 227 of the Constitution of India for a writ of cetiorari to quash the orders passed by the Additional District Magistrate and the State Industrial Court on 29-4-1958 and 8-10-1958 respectively.

(2.) The circumstances leading to this petition briefly state are as follows: Respondent No. 3 Shamroo Kawdoo made an application to the Additional District Magistrate who was empowered to act as Labour Commissioner, complining that he was wrongfully dismissed from service by the petitoner. Accordingly to him, he was dismissed from service with effect from 19-7-1958. The application was made under S. 16 of the C. P. and Berar Industrial Dispute Settlement Act. The petitioner contended that respondent No. 3 was not an employee in the factory, that he was working under one Shamran Mahadeo and that there was no privity of contract between the petitioners and the respondent No. 3. He further stated that the was prepared to re-employ respondent No. 3 provided the latte renounced his claim for backwages and also if he was agreeable to work under Shamrao Mahadeo. The Labour Commissioner came to the conclusion that respondent No. 3 was an employee of the petitoner and consequently directed him to reinstate respondent No. 3 and also to pay him backwages. The petitioner went up in revision to the State Industrial Court. The State Indudstrial Court upheld the decision of the Labour Commissioner. That is why the petitoner has now come to this Court under Arts. 226 and 227 of the Constitution for quashing the order of the two industrial Courts.

(3.) In the petition it was contended that the appointment of the Additional District Magistrate under section 16(2) of the C. P. and Berar Industrial Dispues Settlement Act as Labour Commissioner was not valid inasmuch as the name of the person was not mentioned in this order. Mr. Phadke for the petitoner however did not press this objection before us. It was also contended in the petition that as a matter of fact. the respondent 3was not dismissed from service, that he himself deliberately remained absent from 19-7-56 to 31-7-1956 and that is why his name was removed from the attendance register. The Labour Commissioner however recorded a finding that and this finding was upheld by the State Industrial Court. Mr. Phadke concede that it will not be open to him to challenge this finding before this Court in its jurisdiction under Art. 226 of the Constitution. Mr. Phadke therefore confined his attention to two points as follows. The Labour Commissioner has not recorded any finding as to whether responded No. 3 was actually in the employment of the petitioner. This was a question of fact and it was the duty of the Labour Commissioner as a fact-finding Court to record a clear finding on the question. Secondly, he complained that the Labour Court have misunderstand the meaning and scope of the definitionof "employee" as contained in S. 2(10) of the Act. It is not in dispute that the name of the respondent No. 3 was entered in the attendance Register of the factory. It was the specific case for the petitioner that his name was taken off the register because of his continuous absence from duty for more than two weeks. Presmably, the attendance register was maintained under the provisions of the Factories Act. No explanation has been offered on behalf of the petitioner as to why respondent No. 3's name was entered in the register. It is contended for the petitioner that responded No. 3 was working under one Shamrao Mahadeo who was a Relaiwala and that ther was no private of contract bwtween responded e and the petitioner. It was further suggested that respondent No. 3 was receiving his wage from Shamro Mahadeo. If that be the correct position, then it is difficult to understand why the petitioner should think of enrolling the name of respondent No. 3 in the attendance register.