Seth Jeejeebhoy Dadabhoy Charity Funds and 3 ors. Vs. Farokh Noshir Dadachanji - Court Judgment

Excerpt:
- - you shall be held responsible for good maintenance upkeep of trust's chairs. paragraphs 44, 45 and 46 read thus (2004)iillj253sc :44. it is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.1. heard mr. c.u. singh, the learned counsel for the appellants and ms. hutoxi tavadia the learned counsel for the respondent.2. the appellants have preferred this appeal being aggrieved by the order dated june 21, 2004. by the said order the learned single judge set aside the order of the industrial court dated january 31, 2004 and held that the present appellants shall have to discharge the burden of establishing their objection to the jurisdiction of the industrial court to hear the complaint.3. mr. c.u. singh, learned counsel for the appellants submitted that the relationship of an employee and employer has to be established by the party who asserts it. that the respondent filed the complaint asserting that he was employee of the present appellants, the burden of proof was on the respondent to establish that he was an employee of the present appellants. he placed reliance upon the following judgments:1) mukesh k. tripathi v. sr. divisional manager, lic and ors. : (2004)iiillj740sc .2) workmen of nilgiri co-op. marketing society ltd. v. state of tamil nadu and ors. : (2004)iillj253sc .3) range forest officer v. s.t. hadimani : (2002)illj1053sc .4) state of gujarat and ors. v. pratamsingh narsinh parmar : (2001)illj1118sc .5) rajasthan state ganganagar s. mills ltd. v. state of rajasthan and anr. : (2004)iiillj832sc .4. relying upon the judgment of the learned single judge in the case of northcote nursing home pvt. ltd. and anr. v. zarine h. rahina and ors. reported in 2002 iv llj (supp) 1502, the learned counsel for the appellants contended that the learned single judge was bound by the view that it is for the employee to prove that she is workman under section 2(s) of the industrial disputes act and she has to enter witness box first and if learned single judge thought that the view taken in northcote nursing home pvt. ltd. was not correct, the matter has to be referred to the larger bench.5. insofar as division bench judgment of this court in waman ganpat raut v. cadbury-fry (india) pvt. ltd. reported in 1980 (41) flr 156 is concerned, the learned counsel for the appellants submitted that the said judgment does not lay down any general proposition of law and as has been observed in the judgment itself that the judgment was confined to its own facts.6. we considered the submissions of the learned counsel for the appellants.7. the respondent filed the complaint of an unfair labour practice under item-9 of schedule-iv of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971. he asserted that he was an employee of the respondent no. 1-charitable trust. in contesting the complaint, the respondent set up the plea that the complainant was a manager and employed in a supervisory capacity and, therefore, not a workman and the industrial court has no jurisdiction to hear and decide the complaint.8. the respondent was designated as a manager, but the allotment of duties to him is not in dispute. the respondent was allotted the following duties:1. in charge of the fixture and electrical fittings in both vegetarian and non-vegetarian kitchens in our baug premises.2. in charge of the cleaning and entire baug premises, kitchens, ground floor corridor, staircases, hall opposite the trust office, trustees room, ladies and gents toilets and two bathrooms used for holy bath taken before the ceremonies.3. in charge of cleaning and laying out the trust's chairs in the baug premises before and after the functions. both peons, sitaram and sachin shall help you in cleaning and laying the chairs before and after the functions. you shall be held responsible for good maintenance upkeep of trust's chairs.4. in charge of proper working and maintenance of the three water pumps in our premises.9. though the petitioner has been designated as manager, the allotment of duties noticed above reflects that amongst other duties his work was cleaning and laying the chairs before and after the functions and for that purpose the other 2 peons sitaram and sachin were to help him. by this admitted allotment of duties the burden ought to be on the appellants to prove that the respondent was discharging managerial, administrative and supervisory duties. the case set up by the present appellants that the respondent has managerial, administrative and supervisory duties has to be established by them. this positive assertion has to be proved by the appellants and for that the burden has to be placed on the appellants. it is the appellants who raised the objection that the industrial court has no jurisdiction as the complainant was not workman having been appointed as manager with managerial, administrative and supervisory duties. the burden has to be on the appellants.10. in this view of the matter, the learned single judge cannot be said to have committed any error in interfering with the order of the learned industrial court.11. in waman ganpat raut v. cadbury-fry (india) pvt. ltd. (supra), the division bench of this court on the basis of the pleadings therein held that the burden of proof to the preliminary objection has to be on the party who raises the objection. in the facts of the present case that we already noticed above, we are of the view that it is for the appellants to adduce evidence first in support of the preliminary objection.12. in the case of mukesh k. tripathi (supra) relied upon by the learned counsel for the appellants, the appellant therein was appointed as apprentice development officer. his case was that his status has been changed from apprentice to workman. in this backdrop the supreme court held that in case any person raises a plea that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. in our considered view, the judgment of the supreme court in the case of mukesh k. tripathi does not apply to the case in hand.13. in workmen of nilgiri co-op. marketing society ltd. (supra) the supreme court dealt with the principles of burden of proof. paragraphs 44, 45 and 46 read thus : (2004)iillj253sc :44. it is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.45. in n.c. john v. secretary, thodupuzha taluk shops and commercial establishments workers' union and ors. : (1973)illj366ker , the kerala high court held:'the burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship.'46. in swapan das gupta and ors. v. first labour court of west bengal and ors. 1975 lic 202 it has been held:'where a person asserts that he was a workman of the company, and it is denied by the company, it is for him to prove the fact. it is not for the company to prove that he was not an employee of the company but of some other person.'14. applying the aforesaid legal position on the present facts, it may be immediately noticed that the complainant placed on record the list of duties which was not disputed by the present appellants. the appellants raised the plea that the complainant had the managerial, administrative and supervisory duties. the burden has to be on the employer to establish the same. the judgment of the supreme court in the case of workmen of nilgiri (supra) also does not help the case of the appellants.15. the two judgments of the supreme court in the case of s.t. hadimani (supra) and rajasthan state ganganagar s. mills ltd. (supra) are also not of much help to the appellants. the question in these cases before the supreme court was regarding the proof of the workman's claim of having worked for 240 days. the supreme court held that where the workman asserts that he has worked for 240 days, it was for the workman to lead evidence to show that he had in fact worked for 240 days in a year preceding his termination.16. in northcote nursing home pvt. ltd. (supra) the learned single judge of this court held that where there was a complaint by the employee of an unfair labour practice and the respondent denied complainant was a workman, the initial burden was on the employee to prove that he was workman under section 2(s) of the industrial disputes act. in the case before us and on the facts and the available material where the employer asserts that the complainant has been given managerial, administrative and supervisory duties, obviously to prove these facts the burden has to be on the employer and not on the complainant. the burden cannot be placed on the complainant to prove that he was not given managerial, administrative or supervisory duties. in our considered view, the burden of proof must depend on the facts and pleadings of each case. it is the appellants who raised the objection that the industrial court has no jurisdiction. initial burden to prove the ouster of the jurisdiction of the industrial court therefore, has to be on the employer. we do not find any legal infirmity in the impugned order.17. appeal is dismissed in limine.