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M/S Mishra Mills Store Co. & Others v. Presiding Officer, (Industrial Tribunal-3) Kanpur & Others - WRIT - C No. 31448 of 2002 [2005] RD-AH 868 (24 March 2005)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition is directed against an award dated 12.4.2002 passed by the Industrial Tribunal (III) Kanpur- respondent no. 1 (Annexuire 1 to the writ petition).  By the impugned award, the Industrial Tribunal has directed that the respondent no. 2- Ramesh Chandra Mishra will be deemed to be in continuous service w.e.f. 17.6.1999 with back wages. The award has been enforced by publication on notice board on 19.6.2002.

The petitioner is an establishment registered under the Shops and Commercial Establishment Act and is engaged in the sale of machinery of mills having less than 5 workmen. The respondent no. 2- Ramesh Chandra Mishra is uncle of Sri Pradeep Chandra Misra- petitioner no. 2 who is his nephew and proprietor of the petitioner no.1-company.

It appears from the records that the respondent no. 2- Ramesh Chandra Mishra was one of the elders of the family who used to sit in the shop and assist petitioner no. 2 who had to remain out of station for about 20-25 days every month.  There arose some family dispute regarding partition due to which the family relations became strained, as such, respondent no. 2- Ramesh Chandra Mishra filed a case under Section 2-A of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act') before the Conciliation Officer, Kanpur claiming himself to be a workman in the capacity of Accountant in the petitioners' establishment.  He alleged that he was not paid the minimum wages as prescribed by the State Government and on 17.6.1999, he was removed from service without any notice or retrenchment compensation.

On conciliation proceedings having failed, the matter was referred by the State Government to the Industrial Tribunal III, Kanpur, where it was registered as Adjudication Case no. 83/2000.  The question referred to was whether the removal/retrenchment of the workman since 17.6.1999 was just and valid ? If not, to what relief, the workman was entitled to.

On receipt of summons, the parties appeared before the Industrial Tribunal and filed their written statements.

The case of the petitioner before the Industrial Tribunal was that the respondent no. 2 was not a workman and Section 2-A of the Act is not applicable, as such, the reference made by the State Government was bad.  It was stated that the respondent no. 2 is the real uncle of petitioner no. 2 and he was helping in the business activities and there was no relationship of ''master and servant' between him and the petitioners.

The respondent no. 2 alleged that he was working as an Accountant in the petitioners' establishment since July 1997 and was illegally terminated from service w.e.f. 17.6.1999 without complying with the provisions of Section 6-N of the Act.

It appears from the record that the case of respondent no. 2, was that being real uncle of the proprietor, he had helped in the establishment of business and was helping petitioner no. 2 in the business. Due to family dispute after July 1999, the relations deteriorated and he raised the dispute due to this reason only. Sri Ramesh Chandra Mishra- respondent no. 2 in his evidence before the Industrial Tribunal has stated that he has not been given encashment of earned leave for 40 days in a year; he is more than 75 years of age; his status in the establishment is that of an employer and he has unequivocally stated that he used to take policy decisions in the business activities of the petitioners as employer and the proprietor also obeyed his order.  He was never treated as a workman but after the family dispute, the circumstances changed.  He is suffering from old age and several ailments.  He also admitted that after 60-65 years of age, a person is not capable to perform work and that all the employees worked under his direct control and obeyed his orders. He could not prove before the Industrial Tribunal that he was working as Accountant in the establishment and had not filed any documentary evidence to establish that he was an Accountant in the shop. The evidence of respondent no. 2 is very relevant which has been conveniently overlooked by the Industrial Tribunal.  Relevant part of the evidence is as under :-

"              eSa viuh tUe frfFk ugha crk ldrk ijUrq orZeku esa esajh mez yxHkx 75 o"kZ gksxh A feJk fey LVkslZ ds ekfyd dk uke Jh iznhi pUnz feJk gS] tks Jh izdk'k pUnz feJk ds iq= gSa A esjs firk o izdk'k pUnz feJk ds firk o xksih ukFk feJk Fks A iznhi pUnz feJk esjk lxk Hkrhtk gS A eSa iznhi pUnz feJk ds O;kikj esa lg;ksx djrk Fkk QeZ dh tM esjs gkFk dh gSA eSa feJk fey LVksj esa ekfydks dh rjg fu.kZ; ysrk Fkk A esjs fu.kZ; iznhi feJ ekurs Fks A iznhi pUnz feJ gekjk lEeku djrs Fks vkSj dHkh ukSdjksa tSlk O;ogkj ugha fd;k Lor% dgk ckn esa O;ogkj [kjkc gks x;k A ikfjokfjd ruko esa gekjs vkSj iznhi ds laca/k [kjkc gks x;s A eSaus vius o iznhi feJ ls laca/k [kjkc gksus ds dkj.k okn yxk;k d;ksafd eq>s ukSdjh ls fudky fn;k x;k A  esajs lykg ls izfroknh ifr"Bku ds O;kikj esa mRrjksRrj o`f) gqbZ ;s lgh gs A eq>s ;s irk ugha gS fd iznhi feJ vkt Hkh eq>ls lg;ksx dh vis{kk djrs gSa A &&&&&&&&&&&&&&&&&&&&& eSaus bl Ik=koyh esa dke djus dk dksbZ izek.k nkf[ky ugha fd;k gS A oSls 60&65 ds ckn dke djus dh fLFkfr vkneh dh ugha jgrh A eSa tc yxHkx 60 o"kZ dk Fkk rks lEiw.kZ dk;Z esjs Onkjk gh fd;k tkrk Fkk A



ESak izfr"Bku esa lcls ofj"B Fkk A nqdku ls eqrkfyd fdlh dke dks djusa dsk dgrk Fkk rks mls djrk Fkk A  lc Jfed esjs fu;a=.k esa dke djrs Fks &&&&&&&&EkSaus vius ,dkmUVsaV ds in ij dk;Z djussa dk dksbZ fyf[kr izek.k Ik=koyh esa nkf[ky ugha fd;k gS] gkftjh jftLVj esa uke ugha Fkk&&&"

From the evidence of petitioner no. 2, it is clear that normally he used to remain out of station for 20-22 days in a month and the entire work of the establishment was being looked after by respondent no. 2 who had the authority to appoint, terminate, punish or grant leave to any employee.  Since the respondent no. 2 was working as an employer, he also used to maintain accounts of expenditure and income and was given the percentage of profit earned by the establishment at the end of the year.  Apart from this, the respondent no. 2 was also receiving Rs. 2000/- per month for his own expenses which was adjusted from the profits.

The Industrial Tribunal has not considered the statement of respondent no. 2 as well as his status in the firm and also the evidence of the petitioner that respondent no. 2 was working as an employer in the shop and was exercising powers of appointment, punishment and termination.  The Industrial Tribunal has cursorily held that there was no evidence that the respondent no. 2 was given any percentage in profit and has held that looking at the evidence, no detailed investigation is required to come to the conclusion that the respondent no. 2 was Accountant in the petitioners' establishment; his status was that of a workman and that he was removed w.e.f. 17.5.99 without following the procedures of retrenchment.  The Industrial Tribunal further held that in case the respondent no. 2 was not able to work, he should have been retrenched after following the procedures of retrenchment and awarded reinstatement with full back wages.

It is evident that the Industrial Tribunal has not considered the fact that respondent no. 2 could not be said to be a workman in view of his own admission even if he was not given any percentage in the profit. Even otherwise he was paid Rs. 2000/- per month and was performing administrative, managerial and supervisory duties hence was not a workman as defined in Section 2(z) of the U.P. Industrial Disputes Act, 1947.

It would not be out of place to mention that the provisions of Shops and Commercial Establishment Act apply to the petitioners' establishment.  A Division Bench of this Court in M/s. Shree Baidyanath Ayurved Bhawan V. Lalta Prasad and others- 1979 (38) F.L.R-455 has held that where no age is fixed either in contract of service or in any condition of service, Payment of Gratuity Act, 1972 would be applicable wherein age of superannuation is provided as 58 years.  In  a similar case in Binoy Kumar Chatterjee Vs. M/s. Jugantar Limited and others - (1983) 3 SCC-289 the apex court, after considering the contentions of the parties, held as under :-

"..... The age of superannuation marks the end-point of the workman's service.  If he is employed afresh thereafter for a term, such employment cannot be regarded as employment contemplated within the definition of the expression ''retrenchment'."

Thus Section 25-F applies where a workman is retrenched and the provision is not applicable to cases where the workman has attained the age of superannuation or was appointed afresh after having superannuated.

In the instant case, the petitioner no. 2 is real nephew of respondent no.2 who is more than seventy eight years now.  He treats him as an employer and elder of the family and respects and binds himself with the decisions taken by respondent no. 2.  In fact respondent no. 2 was not a workman, at all and provisions of Section 6-N are not applicable. It is admitted fact by respondent no. 2 that he has now become old and infirm and is suffering from various ailments and he had raised the dispute only because of dispute in the family members.  The Industrial Tribunal has committed a manifest illegality in not considering the evidence and the law in this regard.  It has passed the impugned award on a wrong assumption that merely because the petitioners could not prove that the respondent no. 2 had share in the profit, he was an Accountant even though there was no evidence in this regard, as stated above.  The workman had failed to discharge his burden of proof that there was any relationship of ''master and servant' between him and the petitioners.  The findings given by the Industrial Tribunal are perverse, illegal and without any basis.

For the reasons stated above, the writ petition is allowed. The impugned award dated 12.4.20002 (Annexure 1 to the writ petition) is quashed.  No order as to costs.

Dated 24.3.2005



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