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Allahabad High Court · body

1989 DIGILAW 18 (ALL)

Haji Lal Biri Works v. Suddhoo

1989-01-04

M.P.SINGH

body1989
ORDER M.P. Singh, J. - This writ petition is directed against an order dated 18-1-1980 passed by the Appellate Authority allowing the appeal of the respondent No. I filed under Section 30(2) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (hereinafter referred to as the Act.) 2. The respondent No. 1 filed an appeal before the Appellate Authority on the ground that he was employee of the petitioner firm for the last 30 years but since 8-1-1977 he has been prevented from doing the work allotted to him without complying with the provisions of the Act. The petitioner denied the claim of the respondent No. I on the ground that he was not its workman and no relationship of master and servant existed between the parties. 3. The entire case is based on the oral evidence led by the parties. On behalf of the respondent No. I two witnesses were examined and on behalf of the petitioner only Syed Mohd Munees Naqvi was produced 4. The Appellate Authority has allowed the appeal of the respondent No. 1 holding that he was an employee of the petitioner but since he has become very old and infirm and was unable to work, no useful purpose will be served by passing an order of reinstatement and as such decreed the claim of respondent No. 1 for Rs. 6,840/-, as backwages and Rs. 2,500/- as damages. Against this order of the Appellate Authority the petitioner has filed the present writ petition. 5. Heard Sri Amrbish Kumar Sharma, learned counsel for the petitioner, and Sri A. K. Sinha, learned counsel for the respondent. 6. The learned counsel for the petitioner has challenged the order of the Appellate Authority on two grounds. Firstly, there is no evidence on record to establish that the respondent No. 1 was the employee of the petitioner firm. In support of his contention he has placed the evidence of all the three witnesses examined on behalf of the parties. It has also been pointed out that the most important witness in this case was the claimant himself who has not come forward as a witness nor any documentary evidence has been filed to show that he was. the employee of the petitioner. It has also been pointed out that the most important witness in this case was the claimant himself who has not come forward as a witness nor any documentary evidence has been filed to show that he was. the employee of the petitioner. At the instance of the claimant-respondent the attendance register of the petitioner firm for the year 1976 was also summoned but this name did not figure in the register itself. I have looked into the evidence and also the finding recorded by the Appellate Authority. There was no justification on the part of the Appellate Authority to have recorded the finding that the respondent No. 1 was in the employment of the petitioner. Much reliance has been placed by the learned counsel for the respondent on the statement of Syed Mohd Munees Naqvi who is said to have admitted that the respondent No. 1 was working in the petitioner firm. This is not the correct position. Syed Mohd Munees Naqvi has only stated this much that the claimant-respondent No. 1 used to come and do some repair works of the vehicles but he used to get payment from the persons whose vehicles he used to repair. It cannot be said to be an admission on behalf of the petitioner that the respondent No. 1 was in the regular employment of the petitioner. The finding recorded by the Appellate Authority is actually based on no evidence 7. Another point raised by the learned counsel for the petitioner in this case is that Section 31(2)(a) of the Act provides that the employee discharged, dismissed or retrenched may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that the he had not been guilty of misconduct as held by the employer or on the ground that such punishment of discharge or dismissal was severe. Relying upon this, the contention of the learned counsel for the petitioner is that since the respondent No. 1 was not in the employment of the petitioner and no order of discharge, dismissal or retrenchment was passed against him, the appeal filed by the respondent No. I was misconceived and not maintainable. 8. Relying upon this, the contention of the learned counsel for the petitioner is that since the respondent No. 1 was not in the employment of the petitioner and no order of discharge, dismissal or retrenchment was passed against him, the appeal filed by the respondent No. I was misconceived and not maintainable. 8. In reply the learned counsel for the respondent has placed reliance upon a decision reported in AIR 1976 SC 1111 : 1976 Lab IC 769, State Bank of India v. N. Sundara Money where the Supreme Court had only the occasion to consider the scope of word termination. It has been held by the Supreme Court. (At p. 1114 of AIR) : (At p. 772 of Lab IC) : "Termination for any reason whatsoever' xxx are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's services been terminated.?". The facts of the instant case are entirely different. In this case the only question was whether the respondent No. 1 was in the employment of the petitioner and any order of retrenchment, discharge or dismissal was passed. Even if the contention of the learned counsel for the respondent is accepted that the respondent N. 1 was prevented from doing the work, that will not bring his case within the ambit of Section 31(2) of the Act. The authority relied upon by the learned counsel for the respondent has no application to the facts of the present case. 9. I agree with the contention of the learned counsel for the petitioner that in this case the appeal was not maintainable. The order passed by the Appellate Authority is without jurisdiction. Once it is held that the appeal itself was not maintainable, there is no necessity of going into any other question nor any other point was argued. Since the respondent No. 1 has failed to establish that he was in the employment of the petitioner, there is no question for grant of any backwages or damages to him. The impugned order suffers from errors apparent on the face of record. 10. The writ petition is allowed. The order dated 18-1-1980 passed by the Appellate Authority in case No. I of 1979 is quashed No order as to costs.