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2017 DIGILAW 376 (HP)

Mukesh Kumar v. Ansysco through its MD

2017-04-19

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. Heard. The principal grievance which has been raised by Mr. Khidtta learned counsel for the petitioner qua the award under challenge is that the said award is not sustainable in the eyes of law, as the learned Labour Court while passing the said award has failed to appreciate that there was a miscellaneous application filed by the petitioner/workman dated 4.9.2010 along with which certain documents were sought to be placed on record before the learned Labour Court to demonstrate that the engagement of present petitioner with respondent was not as a trainee, but as a workman, however learned Labour Court has neither discussed the application i.e. Annexure P-3 in the impugned award nor any separate order has been passed on the said application and non consideration of the same has caused grave prejudice to the petitioner. 2. Mr. Dadwal learned counsel appearing for the respondent has argued that the petitioner cannot be permitted to take this ground at this stage because neither any plea in this regard has been made in the writ petition nor this fact was urged or argued before the learned Labor Court. 3. I have heard learned counsel for the parties and have also gone through the records of the case well as the award passed by learned Labour Court. 4. A perusal of the record of learned Labour Court demonstrates that there is in fact on record a miscellaneous application dated 4.9.2010 filed under Section 151 of the CPC along with which documents have also been appended by the workman with the prayer that documents appended with the same be taken on record to demonstrate that he was inter alia issued identity card by the respondent/employer from which it can be inferred that the status of the present petitioner was not of a trainee but a workman. 5. Be that as it may, the fact of the matter remains that neither there is any order passed on the said application by learned Labour Court as to whether said application was allowed or rejected by it nor the same has been taken into consideration while passing the impugned award by the learned Labour Court. 5. Be that as it may, the fact of the matter remains that neither there is any order passed on the said application by learned Labour Court as to whether said application was allowed or rejected by it nor the same has been taken into consideration while passing the impugned award by the learned Labour Court. In view of the fact that the present petitioner/ workman has been non suited by learned Labour Court solely on the ground that he has not been able to prove that he was in fact engaged as a workman and further learned Labor Court has agreed with the contention of respondent/employer that the status of present petitioner was only that of a trainee, the documents appended along with the application were of significance as far as the adjudication of the reference before the learned Labour Court was concerned. Further there is no merit in the contention of Mr. Dadwal that the said issue has not been raised in the writ petition because it is evident from the averments made in the writ petition that the petitioner has raised the grievance of learned Labour Court not considering application filed by him before it under Section 151 of the CPC to place on record certain documents to prove his case. In this view of the matter, the present writ petition is allowed. Impugned award passed by learned Labour Court dated 4.1.2012 in Reference No. 38 of 2007 is quashed and set aside and the matter is remanded back to the learned Labour Court with a direction to decide the same afresh after passing appropriate order on the miscellaneous application so filed under Section 151 of Civil Procedure Code by affording opportunity to rebut the same to the employee. It is clarified that this Court has not made any observation on the merits of the case. The application so filed by petitioner shall be decided by learned Labour Court on its merit and after adjudication on the same, learned Labour Court shall proceed to decide the main reference on the basis of material on record. Parties through their learned counsel are directed to appear before learned Labour Court on 22.5.2017. As the reference petition pertains to the year 2007, this Court hopes and expects that the same shall be decided by learned Labour Court as expeditiously as possible and hopefully before 31.12.2017.