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2017 DIGILAW 188 (BOM)

Mac Tailors v. Filomena Fernandes

2017-01-30

C.V.BHADANG

body2017
JUDGMENT : Both these petitions are between the same parties and can be conveniently disposed of by this common judgment. 2. The brief facts are that the petitioner M/s. Mac Tailors is a tailoring shop of which Mr. Joseph Pereira is the sole proprietor and is represented by his duly constituted Attorney Mr. Peter Rodrigues. The petitioner is engaged in tailoring business specialized in stitching of gents clothes. According to the petitioner, there are two regular skilled tailors employed in the shop, namely Mr. Assis Rodrigues and Mr. Peter Rodrigues. In the peak season, the petitioner is also engaging the services of some casual part time skilled tailors on contract basis, namely Vincent Rodrigues and Mr. Rama Kalangutkar, who used to work from their residence. According to the petitioner, besides skilled tailors, the petitioner was also employing “helpers” for doing petty unskilled jobs of hemming, ironing, stitch marking as per the designer's chalk markings, button stitching, pocket stitching, zip attaching, etc. According to the petitioner, the first respondent was employed as a helper on a casual and temporary basis and she used to work according to exigency of work. It is contended that she never worked on regular basis. 3. On 15/05/1992, the first respondent had a spat with another co-employee, lady helper by name Ms. Casilda Lobo, upon which, the first respondent asked for payment of her dues, which were promptly paid to her. According to the petitioner, the first respondent did not report back to work from 16/05/1992 onwards and has abandoned the service. The first respondent raised a dispute before the Assistant Labour Commissioner on 01/06/1992, claiming that her services were illegally terminated. During the conciliation proceedings, the petitioner gave a written offer to the first respondent to report back to work. However, the first respondent did not report back to work. Instead, the first respondent raised an industrial dispute, which was referred to the Industrial Court being Reference IT No.11/1994. The petitioner claimed that she was employed as a Tailor and not as a Helper and her services were terminated on 15/05/1992, after which, she was not allowed to report back to work. The Industrial Court, by an Award dated 04/07/2007, has held that the action of the petitioner in terminating the services of the first respondent, is not legal and justified and directed reinstatement with full back wages. The Industrial Court, by an Award dated 04/07/2007, has held that the action of the petitioner in terminating the services of the first respondent, is not legal and justified and directed reinstatement with full back wages. The Industrial Court came to the conclusion that the first respondent was employed as a Tailor. The said Award dated 04/07/2007 is subject matter of challenge in W.P.No.598/2007. 4. The first respondent filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (the Act, for short), claiming that she has not been paid minimum wages, as notified and payable to a tailor. The first respondent sought the recovery of sum of Rs.15,165/-towards the difference in the wages paid along with interest. The petitioner contested the application, claiming that the first respondent was neither appointed nor discharging the duties as a tailor. The petitioner claimed that the first respondent was working as a helper and is not entitled to wages payable to a tailor under the Minimum Wages Act, 1948. The Industrial Tribunal found that the first respondent was doing the work as a tailor and was entitled to the difference in the wages and by a judgment and award dated 28/06/2007, has directed the petitioner to pay a sum of Rs.15,165/-along with future interest at the rate of 9% p.a. from the date of the application till payment. This judgment and award is subject matter of challenge in W.P.No.516/2007. 5. I have heard Shri Pereira, the learned Counsel for the petitioner and Shri Nigalye, the learned Counsel for the first respondent. With the assistance of the learned Counsel for the parties, I have gone through the record and the impugned judgment and award passed by the Tribunal. 6. It is submitted by the learned Counsel for the petitioner that the first respondent was working as a helper and was not discharging any duties of a skilled or semi-skilled nature. The learned Counsel has referred to the evidence led by the parties, in order to demonstrate that the first respondent was not doing the work of stitching of clothes or of cutting and tailoring. It is submitted that the first respondent was only doing the work of stitching of back pockets and work, such as, hemming, ironing, side stitching, zip attaching, belt stitching, collar stitching, sleeves stitching, etc. It is submitted that the first respondent was only doing the work of stitching of back pockets and work, such as, hemming, ironing, side stitching, zip attaching, belt stitching, collar stitching, sleeves stitching, etc. It is submitted that the said work was done as per the markings made on the clothes and this would not partake of the nature of the tailoring work. The learned Counsel pointed out that issue no.3 framed by the Tribunal in the proceedings, under the Minimum Wages Act, was whether the first respondent was doing the work as tailor or as a helper. It is submitted that the Tribunal has not given any reasons for holding that the first respondent was working as a tailor. It is submitted that the finding on issue no.3 is based on the finding against issue no.1, namely whether the first respondent was appointed as a tailor. It is submitted that the nature of the work discharged by the first respondent, would clearly show that it was of an unskilled nature and the first respondent was not working as a tailor. The learned Counsel, however, did not dispute that the wages as notified for the tailor or an assistant tailor under the Minimum Wages Act, have not been paid to the first respondent. It is next submitted that interest could not have been granted on the difference in the wages, as awarded. 7. In so far as the challenge in W.P.No.598/2007 is concerned, it is submitted that the first respondent has abandoned the service when she failed to report back to work from 16/05/1992 onwards. It is submitted that the Tribunal was in error in holding that the services of the first respondent were terminated by the petitioner. The learned Counsel has referred to the reasoning articulated by the Tribunal while holding that this was not a case of abandonment of service, but of termination of service. It is submitted that the Tribunal was in error in holding that the petitioner had not conducted any departmental enquiry for the alleged abandonment of the service. It is submitted that the petitioner, being a small establishment, cannot be expected to conduct a full-fledged departmental enquiry. It is submitted that the Tribunal was in error in holding that the petitioner had not conducted any departmental enquiry for the alleged abandonment of the service. It is submitted that the petitioner, being a small establishment, cannot be expected to conduct a full-fledged departmental enquiry. It is submitted that the reasoning of the Tribunal that the first respondent would not abandon the service on her own accord, also cannot be accepted in as much as the first respondent was privately doing tailoring work before and during the course of her service. He, therefore, submits that the order, directing reinstatement cannot be sustained. In so far as the award of back wages is concerned, it is contended that the first respondent has admitted that she was working after 16/05/1992 and can, thus, be said to be gainfully employed. It is submitted that even self-employment would be sufficient to hold that the first respondent was gainfully employed and as such, the award of full back wages cannot be sustained. Reliance is placed on the decision of this Court in the case of Sonal Garments Vs. Trimbak Shankar Karve; [2003(1) L.L.N.91], Raju Sankar Poojari Vs. Chembur Warehouse Company and another; [2003 LLR 1150], Prabhat Enlarging Works Vs. Prabhakar Antaramji Bagmare and others; [1985 LAB.I.C. 1185], M/s. Sharda Industries and Engineering Works Pvt. Ltd. Vs. Chandraball s/o Harbans Choube and Ors. (W.P.No.367/1985, dated 18/09/1987) and M/s. Payal Electronics vs. Arun Vasant Pawar and another; [2003 LAB.I.C. 1789], in support of his various submissions. 8. On the contrary, it is submitted by the learned Counsel for the first respondent that the first respondent was appointed as a tailor and now the petitioner cannot claim that she was not working as a tailor, but only was working as a helper. It is submitted that even otherwise, the nature of the work done by the first respondent, is sufficient to hold that she was working as a tailor, as has been rightly found by the Tribunal. 9. It is submitted that under the notification issued under Section 3(1)(a) read with Section 5(2) of the Minimum Wages Act, a cutter or tailor or 'sewing machine man' has been categorised as a skilled worker. It is submitted that admittedly, the wages as notified for a tailor, have not been paid to the respondent and the Tribunal has rightly awarded the difference in the wages. It is submitted that admittedly, the wages as notified for a tailor, have not been paid to the respondent and the Tribunal has rightly awarded the difference in the wages. On behalf of the first respondent, reliance is placed on the decision of this Court in the case of Prabhavati Ramgarib B. (Mrs) Vs. Divisional Railway Manager, 2010 (1) CLR 1039, in order to submit that there is no legal prohibition or rule of law preventing grant of interest, for the period during which, the difference of wages remains unpaid. 10. In so far as W.P.No.598/2007 is concerned, it is submitted that the Tribunal has rightly come to the conclusion that the services of the first respondent were terminated and that this was not a case of abandonment of service. It is submitted that admittedly, there is no show cause notice issued or domestic enquiry held and once the termination was found to be illegal and bad, the consequential relief of reinstatement with back wages, cannot be faulted with. 11. I have carefully considered the rival circumstances and the submissions made. The following points fall for determination in these petitions :- (i) Whether the first respondent was appointed and was working as a tailor with the petitioner ? (ii) If yes, whether the first respondent is entitled to the difference of wages from 12/04/1985 to 15/05/1992, amounting to Rs.15,165/- ? (iii) If yes, whether the petitioner is entitled to interest on the said amount and at what rate ? (iv) Whether the services of the petitioner were terminated with effect from 16/05/1992, as claimed by the first respondent ? (v) If yes, whether the petitioner is entitled to the order of reinstatement with back wages and at what rate ? (vi) What order ? POINT NO.(i) : 12. In LCC No.30/1992, (under Section 33-C(2)) of the Act) and the Reference, the first respondent examined herself. The petitioner examined Peter Rodrigues and Ms. Justina D'Souza. In the Reference, the first respondent also examined one Prakash Appa Bandekar, who was then working as a Labour Inspector at Mapusa. Prakash Bandekar states that he was working as a Labour Inspector under Goa, Daman and Diu Shops and Establishment Act, 1973 (Shops and Establishment Act, for short) as well as Minimum Wages Act and he was supposed to maintain registration file of each shop. Prakash Bandekar states that he was working as a Labour Inspector under Goa, Daman and Diu Shops and Establishment Act, 1973 (Shops and Establishment Act, for short) as well as Minimum Wages Act and he was supposed to maintain registration file of each shop. The petitioner is registered under the Shops and Establishment Act with effect from 14/02/1977. 13. The first respondent claimed in her evidence that she was appointed as a tailor and was doing the work of stitching collars, side pockets, etc. It has further come in her evidence that she never took measurement nor has taken any trial. She was doing the work of stitching, which included hemming, ironing, pocket stitching, side stitching, zip attaching, belt stitching, round attaching, collar stitching, sleeves stitching, side and button hole stitching and this work was done as per the markings made on the clothes. The appointment letter is produced at Exh.A-1, which indeed shows that she was appointed as a tailor. Peter Rodrigues claims that he is a Diploma Holder in cutting and designing and the tailoring shop was looked after by the Assis Rodrigues, who is also a Diploma Holder in cutting and designing. Peter also claims that the first respondent was stitching back pockets as per the markings made by the Clemantha Rodrigues. He claims that the first respondent was not able to do work independently and she required guidance from time to time. He claimed that an unskilled employee only operates machines and does hand stitching, but has no knowledge of cutting and stitching of garments. A skilled employee does all the work of cutting, stitching, etc. Thus, he claimed that the first respondent was doing the work as a helper and not as a tailor. Same is the evidence of Ms. Justina D'Souza. The question is whether the first respondent was appointed and was working as a tailor. 14. The Tribunal framed in all 7 issues, out of which, issue nos.1 to 3 are relevant for the present purpose and they read thus :- “1. Whether the applicant was appointed as a tailor by the opponent? 2. Whether the tailor comes under category of skilled labour ? 3. Whether the applicant was doing the work as tailor or as a helper?” 15. The Tribunal has given elaborate reasons on issue no.1, while coming to the conclusion that the first respondent was working as a tailor. Whether the applicant was appointed as a tailor by the opponent? 2. Whether the tailor comes under category of skilled labour ? 3. Whether the applicant was doing the work as tailor or as a helper?” 15. The Tribunal has given elaborate reasons on issue no.1, while coming to the conclusion that the first respondent was working as a tailor. The Tribunal has found that the appointment letter Exh.A-1 showed that the first respondent was appointed as a tailor with effect from 12/04/1985. The appointment letter is issued under the signature of Peter Rodrigues. It was contended before the Tribunal that the appointment letter is not issued by the sole proprietor, Joseph Pereira, but by Peter Rodrigues, who is one of the employees in the establishment. The Tribunal has found that Peter Rodrigues was one of the family members of the sole proprietor Joseph Pereira and the appointment letter is signed for and on behalf of the establishment by Peter Rodrigues. The Tribunal further found that the sole proprietor Joseph Pereira did not enter into witness box and has executed a deed of Power of Attorney in favour of Peter Rodrigues. The Tribunal has, therefore, held that an adverse inference will have to be drawn against the sole proprietor as he did not enter the witness box and if at all the letter of appointment issued to the first respondent, was without the knowledge or consent of the sole proprietor, the first respondent would not have been allowed to work in the establishment. The Tribunal has further found that in the register of employees (Exh.0-5), the first respondent has been shown as a tailor and had the first respondent not been appointed as a tailor, there was no reason to show the nature of her work as a tailor. The finding recorded by the Tribunal, in my considered view, does not suffer from any infirmity. That apart, the work done by the first respondent would also clearly partake of the nature of the tailoring work. It is true that it has come on record that the first respondent was not doing the cutting of the clothes. The tailoring work, which comprises of stitching of clothes (in the present case gents clothes), would involve a wide gamut of activity right from taking measurements, cutting, stitching, including allied work of back pocket stitching, hemming, zip attaching and taking trials, etc. The tailoring work, which comprises of stitching of clothes (in the present case gents clothes), would involve a wide gamut of activity right from taking measurements, cutting, stitching, including allied work of back pocket stitching, hemming, zip attaching and taking trials, etc. It cannot be accepted that because the first respondent was doing only some of these 14 activities, she cannot be regarded as a tailor. 16. I have carefully gone through the findings recorded by the learned Tribunal on issue nos.1 to 3 and I do not find any reason to interfere with the same. 17. It was submitted by the learned Counsel for the petitioner that the petitioner had sought appointment of an Assessor under Section 11(5) of the Act, which was rejected by the Tribunal by an order dated 01/11/2001. It is submitted that this was a fit case, where the Tribunal ought to have appointed an Assessor so as to find out the level of skills possessed by the first respondent, which would have assisted the Tribunal in deciding whether she was working as a tailor. 18. I have gone through the order dated 1/11/2001. Under Section 11(5) of the Act, the Tribunal, if thinks fit, can appoint one or more persons having specific knowledge of the matter under consideration as Assessor or Assessors, to advise it in the proceedings. Rule 25 of the Industrial Disputes (Central) Rules, 1957, lays down that the findings of the Assessor are not binding on the Tribunal. The Tribunal has, therefore, found that the appointment of the Assessor is only for the purpose of taking advice of an expert. The appointment of an Assessor is in the discretion of the Tribunal. In the present case, the parties had led evidence on the nature of the duties performed by the first respondent, which are relevant and material to decide whether she was working as a tailor. The actual work performed by the first respondent has clearly come on record and thus, the Tribunal was expected to decide the issue on the basis of such evidence and, therefore, found and in my view rightly so, that the appointment of Assessor was not necessary. do not find that the order, refusing to appoint Assessor, suffers from any infirmity. The actual work performed by the first respondent has clearly come on record and thus, the Tribunal was expected to decide the issue on the basis of such evidence and, therefore, found and in my view rightly so, that the appointment of Assessor was not necessary. do not find that the order, refusing to appoint Assessor, suffers from any infirmity. Thus, considering the fact that the first respondent was shown to be appointed as a tailor in the appointment letter, her duties were shown to be that of a tailor in the register of employees and the nature of work performed by the first respondent, would clearly show that she was working as a tailor and not merely as a helper. Point no.1 has, thus, to be answered in the affirmative. POINT NO.(ii) : 19. The difference in wages claimed is as under : Period Total wages paid during the period Total wages payable during the period Total Diff. Payable 12/4/85 to 30/4/86 3790/- 4830/- 1040/- 1/5/86 to 31/3/89 10,500/- 18,200/- 7,700/- 1/4/89 to 31/3/91 8,400/- 12,480/- 4080/- 1/4/91 to 31/1/92 4,000/- 5,200/- 1,200/- 1/2//92 to 31/3/92 800/- 1,450/- 650/- 1/4/92 to 15/5/92 675/- 1,170/- 495/- Total 28,165/- 43,330/- 15,165/- 20. The learned Counsel for the petitioner did not dispute the factum of the wages paid and those, which are payable to a tailor as per the notification under the Minimum Wages Act. Thus, the order directing payment of difference of wages for the period from 12/04/1985 to 15/05/1992, cannot be faulted with. The point is, thus, answered in the affirmative. POINT NO.(iii) : 21. This point may not detain me long. This Court in the case of Prabhavati Ramgarib (supra), has, inter alia, held that interest can be awarded in equity as well as as on principles analogous to Section 34 of the Code of Civil Procedure. In that case, the petitioner's deceased husband had earlier filed an application under Section 33-C(2) of the Act and the respondent, by an order dated 30/09/1992, was directed to pay a sum of Rs.65,781/-, which was eventually paid on 14/03/2003. The petitioner, being the widow of the workman, filed an application again under Section 33-C(2) of the Act, claiming interest at the rate of 12 % p.a. on the aforesaid amount, for the period from 30/09/1992 to 14/03/2003. The petitioner, being the widow of the workman, filed an application again under Section 33-C(2) of the Act, claiming interest at the rate of 12 % p.a. on the aforesaid amount, for the period from 30/09/1992 to 14/03/2003. This Court, after taking survey of the various decisions and the provisions of Interest Act, 1978, inter alia, held in para 32 of the judgment that the term 'instrument' in Section 3(1)(a) of the Interest Act, is wide enough to include the decision of the Labour Court under Section 33-C(2) of the Act and, accordingly, interest would be payable on the said sum from 30/12/1992 till its payment and or realisaion. It has been held that even assuming that the order dated 30/09/1992 is not a written instrument and the petitioner is, therefore, not entitled to payment of interest under Section 3(1)(a) of the Interest Act, she would still be entitled to the same under Section 3(1)(b) of the Interest Act. This Court, after noticing the judgment of the Hon'ble Supreme Court in the case of South Eastern Coalfields Ltd. Vs. State of M.P.; [(2003)8 SCC 661], has held that in an appropriate case, interest is also payable in equity in certain circumstances. Thus, the contention on behalf of the petitioner that the Labour Court could not have granted interest, to my mind, cannot be accepted. The interest has been granted at the rate of 9% p.a., which is reasonable. In the result, point no.3 is answered in the affirmative. The interest would be payable at the rate of 9 % p.a., as has been awarded by the learned Labour Court. POINT NO.(iv) : 22. This takes me to the challenge in W.P.No.598/2007. The Tribunal has given three reasons for coming to the conclusion that this is a case of termination and not abandonment of service. Firstly, the Tribunal has held that it is difficult to believe that after working for a period of 7 years, the first respondent would voluntarily abandon her services and that too on account of the alleged quarrel with a coemployee. Secondly, it has found that the first respondent had lodged a complaint with the Assistant Labour Commissioner within 15 days of her alleged termination and had brought to the notice of the Assistant Labour Commissioner that her services were terminated. Secondly, it has found that the first respondent had lodged a complaint with the Assistant Labour Commissioner within 15 days of her alleged termination and had brought to the notice of the Assistant Labour Commissioner that her services were terminated. Thirdly, it has been found that if at all, there was abandonment of service, as claimed by the petitioner, it was necessary for the petitioner to have held a domestic enquiry, which is not done. This is countered on behalf of the petitioner by showing that the first respondent was independently working at her own house and as such, merely because she was employed for 7 years, would be no reason for her not to abandon the service. The contention is that the first respondent may be having better prospects if she had worked full time at her house than doing service. Secondly, it is contended that the petitioner being a small establishment, is not expected to conduct a domestic enquiry. In my considered view, none of the submissions can be accepted. It has come on record that prior to her joining service and even after 16/05/1992, the petitioner continued to work on her own. It has also come on record that even when she was working with the petitioner, after the working hours, she was doing some work on her own. However, this would not be sufficient to hold that the first respondent would have abandoned the service rather than continuing. A person would opt for a stable income and merely because she was working on her own after her regular working hours, would not be sufficient to attribute an intention to abandon the service. The fact that the petitioner is a small establishment also would not be sufficient to claim that the petitioner had not taken any action against the first respondent. A regular domestic enquiry apart, there is no evidence to show that the petitioner had ever issued a letter to the first respondent intimating about her not reporting back to work and asking her to resume, which would have been the normal course had there been an abandonment of service by the first respondent. The first respondent has, within 15 days, approached the Labour Commissioner, complaining about her termination. Thus, the view taken by the Tribunal on the basis of these circumstances and the material on record, is a plausible view, which does not require interference. The first respondent has, within 15 days, approached the Labour Commissioner, complaining about her termination. Thus, the view taken by the Tribunal on the basis of these circumstances and the material on record, is a plausible view, which does not require interference. I, therefore, hold that the services of the first respondent were terminated by the petitioner. The point is, accordingly, answered in the affirmative. POINT NO.(v) : 23. It has come on record that the petitioner is an Establishment registered under the Shops and Establishment Act. The Tribunal has found and to my mind rightly so, that the services of the first respondent cannot be terminated in contravention of Section 39 of the Goa, Daman and Diu Shops and Establishment Act read with Rule 23 of Goa, Daman and Diu Shops and Establishment Rules, 1975 framed thereunder. Once, the termination is held to be illegal and bad in law, the reinstatement with back wages is the normal rule, subject to just exceptions. In the present case, it has come on record that after the impugned award was passed, the first respondent had joined the service on 22/10/2007 after reinstatement and she had discontinued after working for a day. Thus, the first respondent is not now interested to continue with her employment and the relief of reinstatement, thus, does not survive. The question is only of back wages. It is now well settled that it is for the employee to show that he/she was not gainfully employed during the course of the forced unemployment, so as to be entitled to full back wages. There may be a case, where the employee is able to show that he was employed at wages lesser than what he was getting during his/her employment, in which case, the employee would be entitled to the difference. The question depends upon facts and circumstances of each case. In the present case, it has come on record that the petitioner was independently working on her own even prior to her joining service and after her termination. The particulars of her earning, have not come on record. However, in the given circumstances, I find that the award of full back wages cannot be sustained and the back wages in the present case, can be restricted to 50 %. The particulars of her earning, have not come on record. However, in the given circumstances, I find that the award of full back wages cannot be sustained and the back wages in the present case, can be restricted to 50 %. The impugned award is modified to that extent and it is ordered that the first respondent would be entitled to 50% of the back wages from 16/05/1992 to 22/10/2007, the date on which she joined the duties and then voluntarily left. 24. In the result, W.P.No.516/2007 is hereby dismissed and W.P.No.598/2007 is partly allowed to the extent indicated above. In the circumstances, there shall be no order as to costs.