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Madhya Pradesh High Court · body

2019 DIGILAW 802 (MP)

RAJASTHAN PATRIKA PVT. LTD. v. NARENDRA SHARMA

2019-11-15

G.S.AHLUWALIA

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ORDER/JUDGMENT – Shri N. K. Gupta, Senior Counsel with Shri B. S. Bais, Counsel for the petitioner in all petitions. Shri Navnidhi Parharya, Counsel for the respondent No. 1 in all petitions. None for the respondent No. 2 in all petitions. By this common order, M. P. Nos. 5470, 4908, 5474, 5488, 5491, 5501, 5502, 5521, 5526 and 5535 of 2019 shall be finally disposed of. 2. (i) Miscellaneous Petition No. 5470 of 2019 has been filed against the orders dated 3-9-2019 and 11-9-2019 passed by Labour Court, No. 1, Gwalior in 74A/ ID Act/ 2018 (Ref). (ii) Miscellaneous Petition No. 4908 of 2019 has been filed against the orders dated 3-9-2019 and 13-9-2019 passed by Labour Court, No. 1, Gwalior in 65A/ ID Act/ 2018 (Ref). (iii) Miscellaneous Petition No. 5474 of 2019 has been filed against the orders dated 3-9-2019 and 12-9-2019 passed by Labour Court, No. 1, Gwalior in 75A/ ID Act/ 2018 (Ref). (iv) Miscellaneous Petition No. 5488 of 2019 has been filed against the orders dated 3-9-2019 and 12-9-2019 passed by Labour Court, No. 1, Gwalior in 70A/ ID Act/ 2018 (Ref). (v) Miscellaneous Petition No. 5491 of 2019 has been filed against the orders dated 3-9-2019 and 11-9-2019 passed by Labour Court, No. 1, Gwalior in 72A/ ID Act/ 2018 (Ref). (vi) Miscellaneous Petition No. 5501 of 2019 has been filed against the orders dated 3-9-2019 and 12-9-2019 passed by Labour Court, No. 1, Gwalior in 67A/ID Act/2018 (Ref). (vii) Miscellaneous Petition No. 5502 of 2019 has been filed against the orders dated 3-9-2019 and 11-9-2019 passed by Labour Court, No. 1, Gwalior in 73A/ ID Act/ 2018 (Ref). (viii) Miscellaneous Petition No. 5521 of 2019 has been filed against the orders dated 3-9-2019 and 13-9-2019 passed by Labour Court, No. 1, Gwalior in 68A/ ID Act/ 2018 (Ref). (ix) Miscellaneous Petition No. 5526 of 2019 has been filed against the orders dated 3-9-2019 and 11-9-2019 passed by Labour Court, No. 1, Gwalior in 69A/ ID Act/ 2018 (Ref). (x) Miscellaneous Petition No. 5535 of 2019 has been filed against the orders dated 3-9-2019 and 11-9-2019 passed by Labour Court, No. 1, Gwalior in 71A/ ID Act/ 2018 (Ref). 3. For the sake of convenience, the facts of M. P. No. 5470 of 2019 shall be considered. Although the dates of impugned orders are different but the contents are same. 4. 3. For the sake of convenience, the facts of M. P. No. 5470 of 2019 shall be considered. Although the dates of impugned orders are different but the contents are same. 4. The respondent No. 1 has filed an application under section 17(1) of the “Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955” (In short Act, 1955) before the Assistant Labour Commissioner, Gwalior and alleged that he is entitled to receive the benefits of wage revision as provided under the recommendations of Majithia Wage Board and he claimed the wages for the period mentioned in the application. The matter is pending before the Labour Court on a reference. 5. The petitioner denied the employer and employee relationship and pleaded that in fact the respondent No. 1 is the employee of respondent No. 2, who is a contractor and thus, the provisions of Act, 1955 are not applicable. 6. The respondent No. 1 filed an application for a direction to the petitioners and the respondent No. 2 for discovery of better particulars. The discovery of following better particulars were sought by the respondent No. 1 : 1. The post and nature of work of respondent No. 1; 2. The workplace of the respondent No. 1 i.e., whether the Office of publisher situated in 3 Khedapati Colony Gwalior or in the printing press of the petitioners situated in Maharajpura Industrial Area, Pinto Park, Gwalior; 3. The name and designation of the Officer, who is supervising the work of the respondent No. 1 as well as the name of his employer; 4. Complete procedure followed by Fort Foliage Pvt. Limited for recruitment; 5. Complete procedure followed by Patrika for recruitment; 6. Complete procedure of making payment and giving advance to the employees of Fort Foliage. 7. Although the application filed by the respondent No. 1 was opposed by the petitioners and the respondent No. 2, but the Court below by order dated 3-9-2019 directed the petitioners and the respondent No. 2 to furnish the details, failing which they shall not be entitled to cross-examine the respondent No. 1 on the above mentioned issues. 8. 7. Although the application filed by the respondent No. 1 was opposed by the petitioners and the respondent No. 2, but the Court below by order dated 3-9-2019 directed the petitioners and the respondent No. 2 to furnish the details, failing which they shall not be entitled to cross-examine the respondent No. 1 on the above mentioned issues. 8. It appears that the petitioners as well as the respondent No. 2, submitted the details, however, the Court below by order dated 11-9-2019, came to the conclusion that the petitioners and the respondent No. 2 have deliberately suppressed the material facts and thus, it was held that the effect of not giving the better particulars has already been mentioned in the order dated 3-9-2019 and accordingly fixed the case for recording of evidence of respondent No. 1/applicant. 9. Challenging the orders dated 3-9-2019 and 11-9-2019, it is submitted by the Counsel for the petitioners, that the Court below has no jurisdiction to restrain the petitioners from cross-examining the respondent No. 1 on the issues in respect of which discovery of better particulars were sought by the respondent No. 1. It is further submitted that the Court below has committed material illegality by restraining the petitioners from cross-examining the respondent No. 1 on the ground that the conduct of the petitioners would cause delay. However, a very feeble attempt was made to challenge the findings of the Court below that the petitioners have suppressed the material facts. 10. Per contra, it is submitted by the Counsel for the respondent No. 1 that in fact the respondent No. 1 was appointed by the petitioners, however, from the year 2013, they started claiming that the respondent No. 1 has become the employee of respondent No. 2, but in fact the respondent No. 1 has never resigned from the employment of petitioners and never joined the services of respondent No. 2. Further more, the respondent No. 2 is nothing but it is a sham company, floated with an ulterior motive of depriving the respondent No. 1 from the fruits of recommendations of Majithia Wage Board. It is submitted that one Raghunath was working as General Manager of petitioner No. 2 and the respondent No. 2/M/s Fort Foliage was floated in the year 2012 by showing Raghunath as one of the Directors. It is submitted that one Raghunath was working as General Manager of petitioner No. 2 and the respondent No. 2/M/s Fort Foliage was floated in the year 2012 by showing Raghunath as one of the Directors. The another Director Shri H.P.S. Gill was also the employee of petitioners No. 1 and 2. Further the address of the respondent No. 2 shown in the license issued under the Contract Labour (Regulation and Abolition) Act, 1970, is the same address of the petitioners. Only when, this fact came to the light that in fact the respondent No. 2 is a sham company of the petitioners as the same has been floated by the employees of the petitioners and the said company is also operating from the address of the petitioners, then the resignation of the Directors were taken in the year 2018. 11. Heard the learned Counsel for the parties. 12. So far as the question of jurisdiction of the Court below from restraining the petitioners from cross-examining the respondent No. 1 on the issues in respect of which better particulars were sought by the respondent No. 1 is concerned, the submission made by the Counsel for the petitioners is misconceived and is hereby rejected. 13. Order XI, Rule 21, Civil Procedure Code Reads as under : 21. Non-compliance with order for discovery. – (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed or want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard. (2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. 14. (2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. 14. From the plain reading of Order XI, Rule 21, Civil Procedure Code, it is clear that the trial Court can strike out the defence of the defendant, however, in the present case, the Court below has adopted a very lenient view and instead of striking of the defence of the petitioners, has merely restrained them from cross examining the respondent No. 1 on the issues in respect of which better particulars were sought. 15. It is submitted by the Counsel for the petitioners that the provisions of Order XI, Rule 21, Civil Procedure Code are not applicable to the proceedings in hand. The submission made by the Counsel for the petitioners is misconceived and is hereby rejected. 16. Section 11 of Industrial Disputes Act, 1947 reads as under : 11. Procedure and powers of conciliation officers, Boards, Courts and Tribunals. – (1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit. (2) A conciliation officer or a member of a Board, or Court or the presiding officer of a Labour Court, Tribunal or National Tribunal may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates. (3) Every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely – (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed; and every inquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal, shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860). (4) A conciliation officer may enforce the attendance of any person for the purpose of examination of such person or call for and inspect any document which he has ground for considering to be relevant to the industrial dispute or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under this Act, and for the aforesaid purposes, the conciliation officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of enforcing the attendance of any person and examining him or of compelling the production of documents. (5) A Court, Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in the proceeding before it. (6) All conciliation officers, members of a Board or Court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860). (7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of that Labour Court, Tribunal or National Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be paid, and to give all necessary directions for the purposes aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue. (8) Every Labour Court, Tribunal or National Tribunal] shall be deemed to be a Civil Court for the purposes of sections 345, 346 and 348 of the Code of Criminal Procedure, 1973 (2 of 1974). (8) Every Labour Court, Tribunal or National Tribunal] shall be deemed to be a Civil Court for the purposes of sections 345, 346 and 348 of the Code of Criminal Procedure, 1973 (2 of 1974). (9) Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree of a Civil Court under Order 21 of the Code of Civil Procedure, 1908 (5 of 1908). (10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall executed the award, order or settlement as if it were a decree passed by it. 17. It is clear from section 11(3) of Industrial Disputes Act, 1947, that the provisions of Civil Procedure Code would apply to compel the production of documents and material objects. Thus, the provisions of Order XI, Rule 21, Civil Procedure Code, would apply to the proceedings pending before the Labour Court. 18. So far as the submission made by the Counsel for the petitioners that the Court below has restrained the petitioners from cross-examining the respondent No. 1 only on the ground of delay is concerned, the submissions are misconceived and baseless. The Labour Court has specifically come to a conclusion that the petitioners and the respondent No. 2 have suppressed the material facts in spite of the order dated 3-9-2019. The Labour Court has merely stated that the Supreme Court has directed to decide the cases of such a nature expeditiously. The right of the petitioners to cross-examine the respondent No. 1 on the issues in respect of which better particulars were sought, has been closed after giving a finding that the petitioners have suppressed the material facts. 19. So far as the findings given by the Labour Court with regard to suppression of material fact is concerned, the same has not been challenged vehemently. It is important to mention here that initially the respondent No. 1 was employed by the petitioners, and thereafter, the Company was floated by Raghunath and H.P.S. Gill in the name and style M/s Fort Foliage Pvt. Limited and the basic object of the Company was to supply man power. It is important to mention here that initially the respondent No. 1 was employed by the petitioners, and thereafter, the Company was floated by Raghunath and H.P.S. Gill in the name and style M/s Fort Foliage Pvt. Limited and the basic object of the Company was to supply man power. It is submitted by the Counsel for the respondent No. 1 that Shri Raghunath Singh and Shri H.P.S. Gill were the employees of petitioners and they continued to do so, unless and until, this fact came to light that most probably, the petitioners have floated a sham company. Further, the respondent No. 2 did not supply any manpower to any other company except the petitioners. The address of the respondent No. 2 as well as the address of the petitioners is also the same, which clearly show that the whole attempt of the petitioners is to make a paper arrangement by floating a company for supply of the manpower so that the petitioners can escape from the liability of making payment in accordance with the recommendations of Majithia Wage Board. The Counsel for the petitioners has relied upon the judgment passed by the Supreme Court in the case of Bharat Heavy Elecrticals Ltd. vs. Mahendra Prasad Jakhmola and others, reported in 2019(161) FLR 147 and submitted that the question of employer and employee relationship would depend on the factors like who appoints the workers, who pays the salary/remuneration, who has the authority to dismiss, who can take disciplinary action, whether there is continuity of service and the extent of control and supervision. So far as supervision is concerned, it is submitted by the Counsel for the petitioners that the Principal Employer cannot be said to control and supervise the work of the employee merely because he directs the workmen of the contract what to do after the contractor allots the employee to the principal employer. 20. Considered the submission made by the Counsel for the petitioners. It has been accepted by the petitioners in their written statement that the respondent No. 1 was initially appointed by the petitioners, however, it was claimed that the respondent No. 1 was not posted in News Paper Department but was working for publication of books etc. 20. Considered the submission made by the Counsel for the petitioners. It has been accepted by the petitioners in their written statement that the respondent No. 1 was initially appointed by the petitioners, however, it was claimed that the respondent No. 1 was not posted in News Paper Department but was working for publication of books etc. and from the year 2013, he tendered his resignation and joined the respondent No. 2 and from thereafter, he is working with the petitioners but he is the employee of respondent No. 2. As already pointed out, the Fort Foliage Pvt. Limited was floated by General Manager and another employee of the petitioners and they continued to work under the employment of the petitioners apart from running Fort Foliage Pvt. Limited. Only in the year 2018, the original Directors have tendered resignation, and according to the Counsel for the respondent No. 1, now Shri Umesh Parikh has become the Director of Fort Foliage who is also a retired employee of the petitioners. In the present case, the Labour Court has come to a conclusion that the petitioners and the respondent No. 2 have suppressed the material facts, and the petitioners have only made a feeble attempt to challenge the said findings. Therefore, this Court directed the petitioners to place the copy of Memorandum of Association of Fort Foliage Pvt. Limited to show that who were the original Directors, but the Counsel for the petitioners did not avail the said opportunity. However, the Counsel for the respondent No. 1 submitted that Raghunath and H.P.S. Gill were the Directors, and undisputedly, Raghunath was working as General Manager of petitioner No. 2 and according to the counsel for the respondent No. 1, Shri H.P.S. Gill was also holding a good post in the establishment of the petitioners. This fact has not been denied, however, it was submitted that both the original Directors have resigned. Therefore, prima facie, the respondent No. 2 appears to be a sham company of the petitioners, which was floated with a sole intention to by pass the recommendations of Majithia Wage Board. Thus, this Court is of the considered opinion that the whole attempt of the petitioners can be termed as unfair labour practice. Thus, under the facts and circumstances of the case, the judgment passed in the case of Bharat Heavy Electricals Ltd. (supra) is distinguishable. 21. Thus, this Court is of the considered opinion that the whole attempt of the petitioners can be termed as unfair labour practice. Thus, under the facts and circumstances of the case, the judgment passed in the case of Bharat Heavy Electricals Ltd. (supra) is distinguishable. 21. Resultantly, this Court is of the considered opinion, that the labour Court, did not commit any mistake by holding that the petitioners and the respondent No. 2 have suppressed material facts and by adopting a very lenient view, has merely restrained the petitioners from cross-examining the respondents on the issues in respect of which better particulars were sought by the respondent No. 1, instead of striking of their defence as provided under Order XI, Rule 21 of Civil Procedure Code. 22. As no perversity or jurisdictional error could be pointed out by the Counsel for the petitioners, therefore, this petition fails and is hereby dismissed.