ORDER
Mukul Mudgal, J.
1. This writ petition challenges the Award dated 17.9.1996, passed by the Labour Court in ID. No. 575/91, OLD No. 604/86. By the action impugned in the claim leading to the Award, the termination of the services of the workman, the petitioner herein, who was then working as Driver with the respondent No. 1 was challenged.
2. The averments of the petitioner are that the services of the petitioner were terminated without notice and without payment of earned wages as well as retrenchment compensation and other dues. The petitioner also pleaded that he is unemployed since the date of his termination and has consequently prayed for reinstatement, full back wages and continuity of service.
3. The respondent No. 1’s stand was that the respondent is not an industry and the claimant is not a workman under the Industrial Disputes Act and nor did there exist over any relationship of master and servant as well as employer and employee between the parties and there was no establishment or firm on the address of the respondent.
4. The Labour Court has dismissed the claim of the workman, the petitioner herein on the ground that the respondent was not an industry as there was no activity in respect of production, supply or distribution of goods or services to satisfy the human wants and nothing has been produced by the workman to rebut the statement of the management witness Shri Ram Kumar Gupta who denied the existence of the industry and company in the name of Shri Ram Kumar Gupta, Contractor.
5. The Labour Court, however, found that there existed a relationship of the employee and employer between the parties and the reference was thus maintainable. However, the Labour Court declined to grant any relief as the petitioner had been unable to establish the existence of an industrial dispute. He further held that the respondent, management was not an industry and therefore he declined to decide the issue under reference. It is this Award of the Labour Court dated 17.9.1996 which is under challenge in this Court.
6. The main challenge of the petitioner is on the ground that the systematic activity of driving a car of the respondent by the petitioner clearly falls within the ambit of the judgment reported as Bangalore Water Supply & Sewarage Board Vs. Rajapa by the Hon’ble Supreme Court as well as the definition of an “Industry” in Section 2(j). He has further relied upon the principle of law laid down by the Hon’ble Supreme Court in the above judgment to the following effect :
“The focus is functional and the decisive test is the nature of the activity with special emphasis on employer employee relations.”
7. The main reliance placed by the learned counsel for the petitioner is on the statement made by the respondent No. 1 himself that he had never appointed the petitioner-workman in his company. The petitioner’s counsel submits, and in my view rightly, that this statement of respondent No. 1 clearly demonstrates that the respondent No. 1 was running a company and the whole case therefore set up by him falsely was revealed by this statement of his. He has further in his cross-examination stated that the Car DBA No. 3828 (Car) does not belong to his firm. This also, according to the learned counsel for the petitioner, demonstrated that the respondent No. 1 was running a firm and the denial of the respondent No. 1 about the existence of an industry/establishment was clearly false and motivated.
8. The relevant averment made in Para 9 of the writ petition reads as follows :
“That the respondent No. 1 in his statement stated that he had never appointed petitioner – workman in his company. It means the respondent No. 1 was running a company by which he is performing several Contracts and he is proprietor of the said company which is concealed by him as he denied all the facts wrongly and malafidely. Further the respondent No. 1 in his cross examination stated “The IBA No. 3828 has belong to my firm’s. It means that the respondent No. 1 was owner of the firm whose name was concealed by him and the petitioner workman was working as a Driver under him for that firm. In view of these facts it cannot be said that respondent No. 1 is not owner of the firm which he has concealed before the Court. It may be possible that there will be no industry in the name of Ram Kumar Gupta, Contractor, name of the firm may be different but respondent No. 1 has appointed the petitioner workman for his activities which were carried by the firm whose name is still in the dark but he admitted so. Once the relation of employer and employee between the parties proved then it is also proved that the petitioner workman was working with the firm of the respondent No. 1.”
9. Significantly the original counter affidavit in reply to Para No. 9 on 20th July, 1998 was in the following terms :
“Para 9 is totally wrong, the words “that he never appointed the petitioner in his company were never used by him in the written statement made by the respondent before the Labour Court. Had it been true the petitioner would have submitted a copy of the statement in support of the contentions which he has not cared to do. It clearly shows that the contention made by the petitioner is not correct. Similarly the petitioner has alleged “that IBA No. 3828 has belong to my firm” are incorrect false and untrue. The petitioner is guilty of misrepresentation of fact. Had it been true he would have submitted a copy of his statement made by the petitioner in support of his contentions which he has not cared to do so leading to the inference that the words were not used by the petitioner and the allegations and contention of the
petitioner are false and untrue. It is worth mentioning that the petitioner has not filed a copy of the statement made by the respondent as MW-1. The Labour Court in support of the contentions. The inference drawn on the alleged statement is therefore unwarranted, and an attempt to misled this hon’ble court.”
10. The statement and the cross-examination of Shri Ram Kumar Gupta (Respondent No. 1) dated 11.1.95 was filed in this Court by the petitioner on 12.5.99. The full text of the statement of MW. 1, i.e., Ram Kumar Gupta reads as follows :
“MW 1. Ram Kumar Gupta R/o H 2/1, Moden Town, Age 70. Delhi on S.A.
There is no Management in the name of M/s. Ram Kumar Gupta, Contractor. I was not working with the Company M/s. Ram Kumar Gupta, Contractor, at any Management. I never employed the concerned Sh. Charan Singh in my company. I had never received Ex. WW1/4 and Ex. WW1/3 and not bear my signature. No demand was ever received from claimant. The Car No. 8338 does not belong to me. The claim of Sh. Charan Singh is false against me. No Company exists in the name of M/s. Ram Kumar Gupta, Contractor, even existed as the alleged firm in the claim statement.
XXXXXXXXXXX By AR of Workman.
The address on the Ex. WW/11 & 3 is correct and is of mine. I do not say that notice Ex. WW1/1 I did not received the same. At present I am working at the given address. I was not called by the Labour Inspector at Rajpur Road, Charan Singh never worked with me as a driver in Car No. DVA 3821 Fiat w.e.f 16.9.84. It is incorrect that his service was terminated on 28.10.85 without paying of earned wages for the month of Sept & Oct, 1985. Letter marked ‘X’ pertains to me is correct, mark by A/D also been the address, which is never I did not receive even Ex. WW1/5 from Conciliation Officer. Th DBA No. 3828 does not belongs to my firm, even it is incorrect that I am deposing false. W.S. was filed and bear my signature. It is incorrect that I employed the claimant with out letter. I was brought.”
11. In this Court on 29.5.99, an additional affidavit was filed by the learned counsel for respondent No. 1 to contend that respondent’s statement that he never appointed the petitioner in his Company was made by inadvertence. The relevant plea in the additional affidavit dated 29.5.99 reads as follows :
“That with respect to the contents of para No. 9, it is submitted that due to inadvertence the Respondent No. 1 has stated that he never appointed the Petitioner in his Company. It is categorically stated that the Respondent No. 1 is not running any business, trade or profession in any manner whatsoever.”
12. In this view of the matter it is very clear that the impugned Award dated 17.9.1996 cannot stand because the Labour Court has wrongly applied the judgment of the Bangalore Water Supply Sewarage (supra) in his Award in respect of the test of systematic activity expounded by the Hon’ble Supreme Court. It is significant that the Labour Court itself has recorded a finding about the existence of an employer-employee relationship between the parties. There is no doubt that the petitioner was a part of systematic activity and worked as a Driver with the respondent No. 1. This is also evident from the other documents brought on record by the petitioner. The respondent’s lack of bona fide is further clear from the fact in the first counter affidavit dated 20th July, 1998, the statement was totally denied. Thereafter the text of the statement of respondent No. 1 was filed by the petitioner. The stand thereafter as an afterthought taken is that the
statement was made by inadvertence. Thus it is very clear that the respondent No. 1 has not only made a false averment in his first counter affidavit but the plea was sought to be disowned in the subsequent affidavit. Accordingly the writ petition is allowed. The impugned Award dated 17.9.1996 is set aside. The petitioner is granted reinstatement along with full back
wages as there is no denial of averment that the petitioner was unemployed during the interregnum. The amount due under the Award be paid to the petitioner within four weeks from today. Since the respondent No. 1 has obviously made clearly false averments on affidavit before this Court, the petitioner is entitled to the costs of Rs. 10,000/- to be paid along with the amount awarded within four weeks from today.
13. Accordingly, the petition stands disposed of.
14. List this matter on 28th January, 2000 for reporting compliance.