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1991 DIGILAW 262 (BOM)

Namdeo Vishwanath Rukari v. Bhagwan Vishwanath Kasture

1991-06-20

H.H.KANTHARIA

body1991
JUDGMENT : H.H. KANTHARIA, J. 1. The first respondent workman had joined the services of the petitioners in the year 1972. The petitioners are the partners of Hundekari Goods Transport Company and Shivdarshan Udyan. There were 35 to 40 employees in the firm of the petitioners and the first respondent was in charge of writing accounts of Hundekari Goods Transport Company. It is his case that he was also asked to write accounts of Shivdarshan Udyan on part-time basis on monthly wages of Rs. 200/-. And it further appears that he had resigned his post on 10-12-1977. It is the case of the first respondent workman that he was not paid his emoluments at the rate of Rs. 200/- per, month as a part-time employee for 75 months, amounting to Rs. 15,000/-. He, therefore, made a demand on the petitioners which was refused on the ground that he was never in the employment of the petitioners. The first respondent, therefore, filed Application (IDA) No. 243 of 1978 in the Court of the Labour Judge, presiding over the Second Labour Court at Pune. 2. The application was resisted by the petitioners vide their written statement. It was contended by the petitioners that the first respondent was never in their employment and the factum of employment being in dispute, an application under Section 33C(2) of the Industrial Disputes Act, 1947 cannot be looked into. 3. It was also contended that Shivdarshan Udyan being an agricultural activity, it would not be an “industry” within the meaning of the Industrial Disputes Act, 1947. 4. Both sides adduced oral as well as documentary evidence in the Labour Court. On appreciation of the evidence adduced before him, the learned Labour Judge come to the conclusion that the first respondent's application under Section 33C(2) of the Industrial Disputes Act was maintainable and that the first respondent was in the services of the petitioners for six years and three months and at the rate of Rs. 200/- per month he would be entitled to wages amounting to Rs. 15,000/. He accordingly by his judgment and order dated June 1, 1982 allowed the first respondent's application and ordered one of the partners viz. Namdeo Vishwanath Rukari to pay Rs. 15,000/- to the first respondent. 5. 200/- per month he would be entitled to wages amounting to Rs. 15,000/. He accordingly by his judgment and order dated June 1, 1982 allowed the first respondent's application and ordered one of the partners viz. Namdeo Vishwanath Rukari to pay Rs. 15,000/- to the first respondent. 5. Being aggrieved, the said Namdeo Vishwanath Rukari and his remaining three partners invoked the supervisory writ jurisdiction of this Court under Article 227 of the Constitution by filing the present writ petition. 6. Now Mr. Patil, learned Advocate appearing on behalf of the petitioners, first of all urged that the first respondent was never in the employment of the petitioners and that being the disputed question of fact, the application under Section 33C(2) of the Industrial Disputes Act would not be maintainable. In support of his contention he relied upon a Supreme Court judgment in case of Central Inland Water Transport Corporation Ltd. vs. The Workmen, (1974) 4 SCC 696 : AIR 1974 SC 1604 : 1974 Lab IC 1018 : 1974 (2) LLN 78 : 1975 (1) SCR 152, lam made to persuade myself to agree with the contention of Mr. Patil for more than one reason. Thus, first of all, which the first respondent made a demand of Rs. 15,000/- on the petitioners a reply dated May 10, 1978 was sent to the first respondent in which clear averments were made that the first respondent was in the employment of the petitioners and that his responsibility was of carrying out the work completely and he was paid not only wages as per the Minimum Wages Act but even more payment was made to him which he had accepted. Then the oral evidence of the first respondent shows that he had joined the services of the petitioners in the year 1972 and he used to write accounts of the petitioners. He was also employed as a part-time servant during which he was writing accounts in the office” of Hundekari Goods Transport Company and that Hundekari Goods Transport Compay and Shivdarshan Udyan are one and the sane firm. He has been corroborated on this account by a co-workmen named Haribhau Shelar who also used to write accounts in the office of the petitioners. He has been corroborated on this account by a co-workmen named Haribhau Shelar who also used to write accounts in the office of the petitioners. He deposed that the first respondent was also in the employment of the petitioners and that he had told him that for writing accounts on part-time basis he was offered Rs. 200/- per month. He further deposed that the first respondent was working as on accountant with Hundekari Goods Transport Company. With a view to dislodge the claim of of the first respondent, Namdeo Vishwanath Rukari, on behalf of the petitioners, deposed that Shivdarshan Udyan had no concern with Hundekari Goods Transport Company and that the first respondent was never in the employment of Shivdarshan Udyan. The record shows that the learned Labour Judge carefully examined this evidence and came to a correct conclusion that the first respondent was in the employment of the petitioners. 7. Mr. Patil thereafter submitted that assuming for the sake of argument that the first respondent was in the employment of the petitioners, admittedly he was writing accounts on the part-time basis for Shivdarshan Udyan and the activities of Shivdarshan Udyan being that of agriculture, the same would not amount to industry as agricultural activities are not the activities of an industry. Here also I am not able to persuable myself to agree with the submission of Mr. Patil because the first respondent stated in clear terms that Hundekari Goods Transport Company and Shiv darshan Udyan are one and the same firm and it appears from the record that the first respondent was in the employment of the petitioners in Hundekari Goods Transport Compan which Company used to transport, goods of their sister concern viz. Shivdarshan Udyan, among other activities and the first respondent was asked to do writing accounts with regard to Shivdarshan Udyan on the part time basis after the office hours. Thus, if the petitioners who had taken extra work from one of their employees, on part-time basis, for writing accounts for one of their other activities he does not cease to be in the employment of the Transport Company and becomes an employee in the activities of agriculture merely because he writes accounts for one extra activity of his employer after his office hours. This part-time employment cannot he separated and divorced from the main employment of the first respondent with the petitioners Therefore, there is no substance in the argument of Mr. Patil that the first respondent would not be a workman within the meaning of the Industrial Disputes Act as he was not employed in an “industry”. From the record and the submissions made on behalf of the petitioners I am more than convinced that the petitioners are playing on words in order to avoid the legitimate claim of the first respondent towards his part-time wages for writing accounts in one of the activities of his employer. 8. In this view of the matter, I find no infirmity apparent on the face of the record in the impugned judgment and order passed by the learned Labour Judge. The writ petition is thus meritless and the same deserves to be rejected. 9. In the result, the writ petition fails and the same stands rejected. Rule is accordingly discharged. The interim stay is vacated. The first petitioner, Namdeo Vishwanath Rukari, is hereby directed to pay a sum of Rs. 15,000/- to the first respondent forthwith and latest by the end of July, 1991 failing which he shall be liable to pay interest at the rate of 15 per cent on the said sum of Rs. 15,000/- effective from 1st August, 1991.