JAYANT SHANKAR KANGUTKAR, MANOHAR BHASKAR KAVALIWADI Vs. THE NEW GREAT EASTERN SPG. & WVG. CO. LTD. AND THE FACTORY MANAGER, THE NEW GREAT EASTERN SPG. & WVG. CO. LTD.

JUDGEMENT

(1.) THE Complainant employee has brought this complaint against the Respondent No. 1 mill and its Factory Manager i.e. the Respondent No. 2 for having committed unfair labour practices under item 9 of Sch. IV of the M.R.T.U. & P.U.L.P. Act, 1971. Briefly stated, the facts of the Complainant employee's case is as under:

(2.) ON appearance, the Factory Manager of the Respondent mills filed their Written Statement at Exh. C -1. According to him, the Respondent mill has been declared as sick textile mill under the Sick Industrial Companies Act and the B.I.F.R. has passed order for winding up of the mill. On the order of winding up of the Respondent mill, it preferred an appeal before the A.A.I.F.R. who has introduced a scheme and as per the said scheme, the operation of the Respondent mill was started from 5th May 1994. It is further contended that as per the request of the representative and approved union, the Respondent mill started recording attendance of the workers with effect from 7th September 1987 till 1st June 1989. Therefore, the Complainant employee was employed for the said purpose as per the recommendations of the representative and approved union on fixed wages at the rate of Rs. 1000/ - per month. The Respondents paid the wages accordingly. It is further contended that certain employees were retrenched and certain categories of the employee were absorbed, when the Respondent mill started its operation from 5th May 1994. The retrenched employees were paid their legal dues, but the Complainant failed to collect his legal dues, though it was kept ready. It is further contended that present complaint is filed on 23rd September 1994 for the cause of action arisen in the year 1989, therefore, the present complaint is barred by limitation and the same deserves to be dismissed. Thus, the Respondents have not engaged in any unfair labour practices, as alleged. So considering all the facts, the present complaint be dismissed with costs.

(3.) RECORD and Proceedings reveal that the Complaint was working with the Respondents and her services have been terminated by letter dt. 2nd December 2000 Complainant, challenged the said termination in the Labour Court under the items, referred to above. On considering the complaint and the Written Statement and also the draft issues given by both the parties, 11th Labour Court framed the issues on 4th October 2001 by giving reasons below Application Exh. U -9. Now the main contention and grievance of Mr. Rajesh Thakur, Ld. Advocate for the Applicant is that the Labour Court has committed an error and illegality while framing the issues, detailed above and as per his submission, so far Issue No. 1 is concerned, the burden lies on the employer to prove that the Complainant is not an 'employee' or 'workman' as defined U/s. 3(5) of the M.R.T.U. & P.U.L.P. Act, 1971 and Sec. 2(s) of the I.D. Act, 1947 respectively. Mr. Thakur canvassed that in the Written Statement the employer i.e. the Respondents have challenged the status of the Complainant and therefore it is for the Respondents to prove the said issue by stepping into the witness box first In support of his submission, Mr. Thakur invited my attention to a case -law relied by him in the Labour Court i.e. 2000 (3) Mh.L.J. page 404 (Aloysius Nunes V/s. M/s. Thomas Cook India Ltd.). On going through this case it indicates that there was a problem for consideration under the Industrial Disputes Act (14 of 1947), Section 2(s) 'workman' Burden of proof that the person was a workman on the person who disputes character of person in industrial reference. In the case of an industrial reference the burden of proving that the person is a workman must always be on the person who disputes the character of the person. The burden of proof never shifts unless the party who so raises produces evidence in support of the issue (Observed in para No. 3 of the case law). Thus relying on the said judgment, Mr. Thakur for the Applicant urged that the Ld. Labour Court unnecessarily shifted the burden for proving the Issue No. 1 on the Complainant and it has caused injustice and therefore requested that the order dt. 4th October 2001 and the issues framed therein be set aside and modified re -casted.