JUDGMENT
B.N. Srikrishna, J.
1. These three writ petitions arise out of the orders dated 30th September, 1987, made by the Second Labour Court, Bombay, in Applications (IDA) Nos. 885, 1340 and 1321 of 1983. The applications were made under Section 33-C(2) of the Industrial Disputes Act (hereinafter referred to as ‘the Act’). The contentions as also the facts and law are identical and therefore it would be convenient to dispose of the three writ petitions by a common judgment and order.
2. For the sake of convenience I shall hereinafter refer to the different respondent-workmen in these writ petitions as ‘workmen’.
3. Writ Petition No. 1326 of 1988 arises out of the order made in Application (IDA) No. 885 of 1983. In this 9 workmen had jointly claimed 20 days’ salary of July 1975, retrenchment compensation, one month’s wages as notice pay and 20 per cent bonus for the accounting year 1974-75.
4. Writ petition No. 1327 of 1988 arises out of the order made in Application (IDA) No. 1340 of 1983 in which identical claims were made by 8 other workmen.
5. Writ Petition No. 1328 of 1988 arises out of the order made in Application (IDA) No. 1321 of 1983 filed by another set of 7 workmen who had preferred identical claims.
6. The Labour Court granted the claims of only such of the workmen who came before the Court and gave evidence. Thus, 7 workmen in the first application, 5 in the second and 7 in the third succeeded in getting the orders in their favour. The orders in each of these applications give the amounts due to each of the applicants who has been described.
7. Though the facts pertaining to these three writ petitions are somewhat involved, the point at issue basically is whether the petitioners were the employers during the material time and as such they were liable to meet the claims of the workmen which have been found admissible. In order to decide the contentions raised by the petitioners, it would be necessary to narrate some salient facts.
8. Prior to 1943, one Khatau Bhanji Thakkar was running a sole proprietary business in the name and style of ‘M/s. Cutch Dyeing and Bleaching Works’. In November 1943, a partnership was formed of which Khatau Bhanji Thakkar, Shamji Morarji Thakkar and Girdharlal Vallabhdas Shah were three partners. They had respectively 6 annas, 5 annas and 5 annas share in the profits and losses of the partnership business. The partnership business was the running of the Cutch Dyeing and Bleaching Works which belonged solely to Khatau Thakkar. Since the property was exclusively owned by Khatau Bhanji Thakkar, it was agreed in the partnership deed of November 1943 that he would be paid a rent of Rs. 1501/-for the use of the plant, machinery, lorry and other assets of his ownership. This was in addition to his 6 annas share in the partnership. The second partner Shamji Morarji Thakkar was the cousin of Khatau Bhanji Thakkar and is the father of the present petitioners (i.e. Ramesh Shamji Thakkar and Kishor Shamji Thakkar). This partnership carried on the business in the name and style of M/s. Cutch Dyeing and Bleaching Works’ upto July 1966. On 9th July 1966, Khatau Bhanji Thakkar made his last will and testament in which it was provided that as the factory premises, machinery and the motor lorry which were used in the business of the partnership firm carried in the name and style of M/s. Cutch Dyeing and Bleaching works absolutely belonged to him as the owner along with the goodwill of the business, the said partnership firm should pay to his estate after his death, Rs. 1501/- per month for the use of the said premises and machinery and motor lorry. It was further provided in the will that the other partners and the executors of the will should continue Khatau Bhanji’s 6 annas share in the partnership till his minor son Kirtikumar attained majority and started taking part in the business. If the other partners agreed to this condition then the executors would deposit with the said partnership firm a sum of Rs. 1,75,000/- to the credit of Khatau Bhanji and any other sum standing to his credit would get 3 per cent simple interest. If the partners were unwilling to continue with the business on the aforesaid conditions, then the factory premises, machinery and motor lorry were to be given to others for continuing the business on the aforesaid conditions and if that could not be done, then the business was to be wound up. Khatau Bhanji died on 18th April, 1967. His minor son Kirtikumar was admitted to the benefits of the partnership by the other surviving two partners and the business of the firm continued. On 28th December, 1967, Shamji Morarji and Girdharlal Vallabhdas, the two surviving partners, entered into a fresh deed of partnership for arriving at what had to be done upon the death of Khatau Bhanji Thakkar. The name and style of the partnership business continued as ‘Cutch Dyeing and Bleaching Works’, the place of business continued to be the same and the Bankers continued to be the same. By this agreement, the share of profits/losses of the two surviving partners and minor Kirtikumar Khatau Bhanji were redrawn as under:
Profits
Losss
1.
Shamji Morarji (the party of the First Part)
31 paise
50 paise
2.
Girdharlal Vallabhadas (the party hereto of the second party)
31 paise
50 paise
3.
Kirtikumar Khatau Bhanji
38 paise
Nil
Being admitted only to the benefits of partnership.
The first financial year of the partnership was to be 18th April, 1967 to 31st December, 1967, and the subsequent financial years were to be the calendar year in each year. The amount of Rs. 1501/- was to be continued to be paid for “rent or hire” for use of the dyeing and bleaching machinery, works premises and the motor lorry, the exclusive ownership of which was declared to be that of the estate of Khatau Bhanji. Such rent or hire was to be credited in the account of the estate of the deceased Khatau Bhanji. A provision was made in this agreement for retirement of a partner upon giving not less than three calendar months, notice. It was provided that upon a partner retiring the partnership shall determine as to the partner giving such notice and thereupon the provisions of Clauses 15 and 16 of the Deed, mutatis mutandis, would apply as if the retiring partner had died at the expiration of the period mentioned in the notice. Clauses 15 and 16 are material and they provided as follows:
“15. If either partner shall die during the continuance of the partnership without nominating by deed or will any of his heirs to step into his place as hereinabove provided, the surviving partner shall as from the date of such death succeed to the share of the deceased partner in the partnership business which he may carry on as sole proprietor or in partnership with others and shall undertake all the debts, liabilities and obligations of the partnership and pay to the representatives of the deceased partner the net value of such share as at me date of such death after providing for the then debts and liabilities of the partnership, such value in case of dispute to be settled, by arbitration in accordance with Clause 20 hereof. Such share shall be paid to the representative of the deceased partner within the year from the date of the death of such partner with interest for the some at 3% per annum or on the diminishing balance, if the amount is paid by instalments.
16. In the event of the death of any partner without nominating any heir to take his place in the firm as aforesaid and the purchase of his share as aforesaid by the surviving partners or partner, no value shall be placed on the goodwill of the business”.
Clause 18 provided that the death or retirement of either partner shall not dissolve the partnership and the surviving partner shall be entitled to continue the business of the firm either alone or in partnership with others.
9. On 26th July, 1968, the executors to the will of Khatau Bhanji filed a suit on the Original Side of this Court, being Suit No. 128 of 1968, against Lilavti Khatau, widow of deceased Khatau Bhanji, alleging that she was unauthorisedly interfering with the business and had committed acts of mis-appropriation of assets belonging to the estate of deceased Khatau Bhanji. This Court appointed a Receiver in respect of the estate of deceased Khatau Bhanji. It appears that the Receiver did not take physical possession of the properties of M/s. Cutch Dyeing and Bleaching Works and the properties continued to be in the possession of the two surviving partners Shamji Morarji Thakkar and Girdharlal Vallabhdas Shah who continued the business of the partnership in the name of M/s. Cutch Dyeing and Bleaching Works by continuing to use the assets belonging to the estate of deceased Khatau Bhanji.
10. Girdharlal Vallabhdas Shah gave a notice of retirement from the partnership and actually retired from the partnership on 16th January, 1975, as by that time the business of the partnership had run into bad weather and was incurring huge losses. Though, upon retirement of Girdharlal Vallabhdas Shah, no partner as such was inducted into the partnership, the business of M/s. Cutch Dyeing and Bleaching Works continued as before. Who was running this business from 16th January, 1975, is the bone of contention.
11. On 6th March, 1975, a partnership agreement was signed between Shamji Morarji Thakkar and his two sons Kishore Shamjee and Ramesh Shamji (the present petitioners in all the three petitions). The business from 16th January, 1975, is the hone of contention.
11. On 6th March, 1975, a partnership agreement was signed between Shamji Morarji Thakkar and his two sons Kishore Shamjee and Ramesh Shamji (the present petitioners in all the three petitions). The deed of partnership dated 6th March, 1975, recited in the preamble as under:-
“AND WHEREAS on and with effect from the 16th Day of January, 1975 the said Shamjee has admitted the said Kishore and the said Ramesh as partner along with him in the said business in the name and style of M/s. Cutch Dyeing and Bleaching Works and the parties hereto have as from that date admitted the said Kirtikumar, son of the said Khatau Bhanji, who is a minor, to the benefits of the said partnership having a share of 38 paise (equivalent to 6 annas in a rupee of 16 annas) in the profits of the said partnership on the terms and conditions hereinafter contained”.
It was provided by Clause 2 that the business of the partnership shall be carried on in the name and style of M/s. Cutch Dyeing and Bleaching Works. The business of the partnership was to be the same as hitherto carried on in the name of Messrs. Cutch Dyeing and Bleaching Works and/or such other business as the parties from time to time may mutually agree upon. The business of the partnership was to be carried on at the same premises as the earlier business, Clause 5 of this deed of partnership provides that the business of the partnership shall be deemed to have commenced as from the 16th day of January, 1975. Similar provisions were made for the payment of Rs. 1501/- per month as rent for the use of machinery, works premises and motor lorry together with the firm’s name and goodwill of the said business belonging to the estate of deceased Khatau Bhanji and that such rent shall be credited to the account of the estate to the said Khatau Bhanji. Clauses 11 and 12 provide for the profits and losses and read as under:
“1.1 The net profits of the partnership shall be shared by the parties hereto and the said Kirtikumar son of Khatau Bhanji who is admitted to the benefits of the partnership as under:-
The said Shamjee
31%
The said Kishore
16%
The said Ramesh
15%
The said Kirtikumar
38%
12. The net losses of the partnership shall be borne by the parties hereto as under:-
The said Shamjee …
44%
The said Kishore …
28%
The said Ramesh …
28%
Clause 13 provides as under:
“13. The parties hereto shall take over all the assets, credits, outstanding, quotas, licences, permits and privileges of the said firm of Messrs. Cutch Dyeing and Bleaching Works hitherto carried on by and between the said Shamjee and the said Girdharlal in the partnership and shall be liable for all debts, liabilities and obligations thereof.
12. It appears that the financial problems of M/s. Cutch Dyeing and Bleaching Works continued unabated, and, by about June/July the situation had become so aggravated that the business of the factory was totally at a standstill by July 1975 and the services of all the workmen, including the respondent-workmen, came to be terminated on 28th July, 1975.
13. On 4.2.1977 Shamji Morarji Thakkar committed suicide. When the Original Side Suit No. 128 of 1968 came up for final hearing in 1977, the suit was dismissed, as out of the original three plaintiffs, two had expired and the third (G.V. Shah) has retired from his executorship.
October 25, 1991.
14. On 24th July, 1977, consequent upon the dismissal of the suit itself, this Court made an order discharging the Receiver. At this stage the petitioners Ramesh Shamji Thakkar and Kishore Shamji Thakkar took out a Chamber Summons No. 451 of 1977 in which the prayer was that the Court Receiver be directed to remove his seal from the premises of M/s. Cutch Dyeing and Bleaching Works and hand over vacant and peaceful possession of the premises to the present petitioners. The first petitioner Ramesh Shamji Thakkar filed an affidavit in support of the said Chamber Summons. This Chamber Summons was heard and dismissed by this Court on, 4.11.1977. Another Chamber Summons, being Chamber Summons Nos. 683 of 1977, was also taken out in Suit No. 128 of 1977 by the first petitioner Ramesh Shamji Thakkar. A similar prayer was made in the Chamber Summons by the first petitioner in his individual capacity. He filed an affidavit dated 1st December, 1977, in support of his Chamber Summons No. 683 of 1977 in which his categorical stand was that he and his brother Kishore Shamji Thakkar (Petitioner No. 2 herein) were taken as partners of M/s. Cutch Dyeing and Bleaching Works under the deed of partnership dated 6th March, 1975, and that thereafter both the petitioners had been in possession of the business premises of M/s. Cutch Dyeing and Bleaching Works since that date. It was also asserted in the said affidavit by the first petitioner that the Court Receiver of this Court and the defendants to the suit had all along recognised the fact that the present petitioners had been in possession of the premises of M/s. Cutch Dyeing and Bleaching Works since 6th March, 1975 and that there had been no order passed by the Court pertaining the Court Receiver to physically take possession of the business premises of M/s. Cutch Dyeing and Bleaching Works by dispossessing the present petitioners. This Chamber Summons came to be withdrawn on 24th April, 1978.
15. As stated earlier, the business of M/s. Cutch Dyeing and Bleaching Works came to be closed down from 28th July, 197.5. The workmen who were in the employment of the said business were not paid the compensation payable to them consequent upon closure or other dues such as earned wages for the month of July 1977 and -bonus for the year 1974-75. The respondents filed applications, being Application (IDA) Nos. 3943 to 3960 of 1978, before the Labour Court, Bombay, and claimed these amounts. The applications were filed against M/s. Cutch Dyeing and Bleaching Works, Kirtikumar Khatau Thakkar, Ramesh Shamji Thakkar and Kishore Shamji Thakkar who were shown as the Opponents-employers of the present respondent-workmen. The Labour Court tried the applications and held that the present petitioners were liable, as partners of M/s. Cutch Dyeing and Bleaching Works, to meet the liability towards the workmen on account of the termination of their services and other legal dues. Though the present petitioners asserted in their evidence that they had become the partners of M/s. Cutch Dyeing and Bleaching Works from 6th March, 1975, they did not produce a copy of the said partnership deed. The certified extracts from the Register of Firms maintained by the registrar of firms indicated that the partnership firm of M/s. Cutch Dyeing and Bleaching Works, of which the erstwhile partners were Girdharlal Vallabhdas Shah and Shamji Morarji Thakkar with the minor Kirtikumar Thakkar admitted to partnership, stood dissolved on 16th January, 1975. There was no registration of the said firm subsequent to that date. The explanation of the petitioners was that their subsequent partnership deed dated 6th March, 1975, had been registered at all. After analysing the evidence on record the Labour Court held that Kirtikumar was only a minor at the relevant period 1978 (he attained majority only in the year 1981) and therefore he could not be made liable for the liabilities of the firm known as M/s. Cutch Dyeing and Bleaching Works. The only partners of the said firm, on the admission of the petitioners themselves, were the petitioners. They were, therefore, held liable for the dues of the workmen which were quantified by the Labour Court in each of the three applications. These are the three orders which have been impugned by the present petitioners.
16. Mr. Agrawal, learned Advocate for the petitioners, raised a very ingenious contention in support of the petitioners’ case. He contended that consequent upon the retirement of Girdharlal Vallabhdas Shah on 16th January, 1975, the partnership firm known as M/s. Cutch Dyeing and Bleaching Works itself stood dissolved as the number of the partners fell below two and therefore the partnership could not have continued after the said date. He contended that under the partnership agreement of the erstwhile firm, ail assets, such as the factory premises, machinery, motor lorry and the goodwill, belonged exclusively to Khatau Thakkar and thereafter devolved upon his minor son Kir-tikumar. Kirtikumar or his legal guardian was not a party to the partnership, deed dated 6th March, 1975, and, therefore, notwithstanding what was professed in the said unregistered deed of partnership, no partnership in law could come into existence under the said deed of partnership dated 6th March, 1975, with respect to the property and business of Kirtikumar, who was the sole proprietor and owner of the business and its assets, upon this dissolution of the partnership with effect from 16th January, 1975 consequent to the retirement of the Girdharlal Vallabhadas Shah. The argument advanced appears to be prima facie attractive, but closer examination shows the fallacy in this line of reasoning. Strangely, despite the contrary stand being taken before me today, the stand taken by the petitioners before the Labour Court was that they were partners of M/s. Cutch Dyeing and Bleaching Works and that they had become partners with effect from 16th January, 1975. Abundant material was produced before the Labour Court to show that on and from 16th January, 1975, the petitioners and their father continued to be in possession of the property and that the petitioners were actually running the business, signing all relevant documents as partners of M/s. Cutch Dyeing and Bleaching Works and finally that the petitioners had contested the applications before the Labour Court by signing the written statements purportedly on behalf of M/s. Cutch Dyeing and Bleaching Works. Two things emerge from the conglomeration of these facts. First, that the petitioners retained in their possession the business and the assets of the erstwhile firm M/s. Cutch Dyeing and Bleaching Works. Second, that the business of the said Firm was carried on by the petitioners in the purported capacity of partners. When I put to Mr. Agrawal as to in what capacity the petitioners had retained control over the business and asserts of the erstwhile firm M/s. Cutch Dyeing and Bleaching Works and carried on the business, the prompt reply was that it was done either in the capacity of agents of the legal owner (i.e. Kirtikumar Thakkar) or as trespassers or as officious inter meddlers. The logical sequel of this argument is that, in either contingency, the liability towards the workmen must necessarily devolve upon the legal owner of the business, namely, Kirtikumar Thakkar. Despite the ingenuity of the argument of Mr. Agrawal, I am unimpressed. It is trite law that a business or its assets, including the goodwill, may be owned by one person while another person might run the business by using such assets. This can be done in a variety of ways of inter se arrangements between the legal owner of the assets and the person running the business. It cannot be gainsaid that in the present case the business of M/s. Cutch Dyeing and Bleaching Works was continued and the services of the employees continued un-interrupted even after the 16th January, 1975, on which date, according to Mr. Agrawal the said firm stood dissolved. The partnership agreement dated 6th March, 1975, makes it clear that the partners had acted upon the said agreement right from 16th January, 1975, and though the agreement itself was signed on 6th March, 1975, it had been given retrospective effect from 16th January, 1975, i.e. the date of dissolution. It is also significant that by this agreement the partners purported to take over the assets and liabilities of the erstwhile firm of M/s. Cutch Dyeing and Bleaching Works. It is not disputed that the petitioners were running the business in the same name from 16th January, 1975 to 28th July, 1975 on which date it was closed.
17. The next contention of Mr. Agrawal was on the question of delay and laches. The Labour Court rejected this connection by holding that several rounds of litigation which were going on inter se between the partners had contributed to the delay. Though the learned Judge of the Labour Court has not clearly spelt it out, what is discernible is that the smoke screen put up by the answerable person was so thick that it was difficult for the workmen to pierce through it and identify the real employer. There is also the fact that, as a consequence of the suit filed by the executors of the will of deceased Shamji Thakkar, a Receiver was appointed of the property and the business. The factory was closed down on 28th July, 1975, without the workmen being offered or paid their statutory and other dues. If in the state of affairs, the workmen had to go from pillar to post seeking legal counsel on empty pockets to ascertain their rights, surely quite some time would be consumed. The workmen thereafter filed applications for recovery of their wages, being Application (IDA) Nos. 3943 to 3960 of 1978. The Labour Court which disposed of the applications rejected the said applications on 6.7.1983 and held that the workmen were entitled to closure compensation under Section 25-F of the Industrial Disputes Act and not wages as claimed in the applications. The observations made by the Labour Court while dismissing these applications (read paragraphs 9 and 10) indicate that liberty was granted to the workmen to file fresh applications under Section 33-C(2) of the Industrial Disputes Act. The present applications were thereafter filed on 17.8.1983. It is not as if that the workmen were sitting idle or that sheer lethargy on their part had crystallized some right in favour of the petitioners which would be affected by the applications being considered in the year 1983. There is no limitation applicable under Section 33-C(2) and, advisedly so. The contention that on account of laches the applications should have been dismissed ignores the concept of what is laches. In the case of the respondents-workmen, they were actively pursuing their claims in another Labour Court till the Labour Court held that they were entitled to compensation and granted them liberty to move their claims afresh. In my view, the Labour Court was, therefore, justified in rejecting this contention as without merit.
18. Mr. Agrawal then pressed the contention as to res judicata which had been urged before the Labour Court. The plea of res judicata, though not taken in the written statement specifically, appears to have been permitted to be canvassed by the Labour Court. In the absence of a specific plea it is difficult to decipher what exactly are the dimensions of the factual matrix within which this plea is raised. The discussion of the impugned orders shows that vague references to various orders passed by different Courts in different proceedings were made, but it is difficult to understand how exactly the plea of res judicata could be supported thereupon. The orders were passed by some Labour Court with regard to the attachment of the property of Lilavati, mother and guardian or minor Kirtikumar. On the criminal complaints filed by the workmen, there are orders that some of the applications were not tenable against some of the respondents. I am afraid, that the material referred to in the judgment is too scanty on which the plea of res judicata could have been based. A reference was then made to the judgment of the learned Single Judge (Kailasam J.) of the Madras High Court in a case of Super Surgical Co. v. S. Desikan and Anr., . The Madras High Court held in this case that the principle of res judicata enunciated in Section 11 of the Civil Procedure Code is applicable to the Labour Court and Labour Court could not entertain a fresh claim under Section 33-C(2), on same cause of action, where the previous petition is dismissed as not being pressed. Even if the principles of rex judicata enunciated in the Code of Civil Procedure were to be applied, it must be shown that the previous judgment rendered was a judgment on merits, by a Court competent to render the judgment, and between the same parties. These are real questions of fact and the plea of res judicata, therefore, cannot be a pure question of law as supporting facts have to be clearly established. In the present case, no such attempt was made either by a specific plea in the written statement or by raising a specific issue. Though the Labour Court accepted the contention, wrongly in my view, that plea of res judicata was a pure question of law and entertained it, it rejected the plea as there was no material on record to support it. Finally, it is said that the order made by another Labour Court in Application (IDA) Nos. 3943 to 3960 of 1978 operated res judicata. This was met by the learned Judge who pointed out that the Labour Court who dismissed these applications had itself granted liberty to the respondent-workmen to file fresh applications. Thus, there is no substance in the plea of res judicata and in my view the Labour Court rightly rejected this contention.
19. Mr. Agrawal then continued his attack by putting forward the contention of jurisdiction. He contends that the applications involved resolution of intricate questions of law and therefore the Labour Court exercising limited jurisdiction, akin to execution proceedings, under Section 33-C(2) of the Act has no jurisdiction to entertain such questions of law. Such questions, namely, as to the inter se liability of the partners and questions as to the dissolution of the partnership, were intricate questions of law which could have been resolved only on a substantive proceedings, either by way of suit or by raising an industrial dispute. Mr. Agrawal relied on the judgment of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. The Workmen and Anr., . Undoubtedly, the Supreme Court in this case pointed out that the jurisdiction of the Labour Court under Section 33-C(2) was limited and could not be utilised for resolution of intricate and complicated questions of law which should best be sorted out in substantive proceedings either in civil law or industrial law. In my view, the ratio of this judgment is hardly applicable to the facts of the petitioner’s case. In the petitioners’ case, as I shall hereinafter point out, there arises no intricate or complicated questions of law. The questions, which were required to be raised and answered, were simple enough, but, in order to obfuscate them, an attempt was made to complicate the issues. Merely because a party raises all kinds of defences to cloud and complicate the issue before the Labour Court, the Labour Court does not lose its jurisdiction. The only question which was required to be answered was whether the petitioners were employers. The identification of the employer, who has to answer his liability, has always been held to be within the jurisdiction of the Labour Court trying an application under Section 33-C(2) of the Industrial Disputes Act, 1947. (See in this connection the cases of Ramkrishnan Ramnath Bidi Manufacturing v. Labour Court, Nagpur reported in 1963 I.E.L.J.P. 417, Amar Kaur v. State of Punjab 1982 LIC 1275 and M.D. Orissa Agro Industries Corporation Ltd. v. Presiding Officer, Labour Court, 1984 LIC 641. In my judgment, therefore, there is no substance in the contention that the applications were not maintainable. The Labour Court was justified in overuling the contention and entertaining the applications.
20. As far as the workmen are concerned, they are entitled to be paid for work done by them. The liability for such payment is on their immediate employer, irrespective of the complicated arrangements that may exist between him and the legal owner of the assets or business. The realities of this case bring out two relevant factors. First, the petitioners were employing the workmen during the relevant period, in whatever capacity, and second, the petitioners themselves purported to enter into a partnership agreement using the name of the erstwhile firm and also purported to sign all documents as partners of M/s. Cutch Dyeing and Bleaching Works. In the face of these facts, it is difficult to accede to the submission that despite doing all this, the liability towards workmen must be foisted only upon the legal owner of the business, namely, Kirtikumar, while the petitioners go scot free.
21. Cute contentions, forensic finesse and legal legerdemain notwithstanding, this Court is charged with the constitutional duty of rendering justice. The following note of caution sounded by Krishna lyer, J. in Hussainbhai v. The Alath Factory Tazhilali Union and Ors., 1978 2 Lab.LJ 397 at para 5 is opposite and bears repetition.
“Myriad devices, half hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances”.
22. To accede, even for a moment, to the submissions made before me, it would mean that the workmen from whom undis-putedly work has been taken, would be left nigh and dry. They cannot enforce their claims against the legal owner, Kirtikumar, as he happened to be minor during the relevant period. They cannot sue the legal guardian of Kirtikumar as he was never a party to the arrangement. Ergo, the workmen must whistle for their dues. Apart from the fact that the contentions are unsound in law, it would be unconscionable to accept the submission, particularly when the dues of the workmen are not being disputed and the workmen are in the age bracket of seventy plus. If the litigating public, consisting of poor, over-aged workmen, as in the present case, is to be left with the impression that this is a just Court, and not just a Court, the arguments presented need to be interdicted and confuted unhesitatingly. I, therefore, reject the argument of Mr. Agrawal that the petitioners are riot liable for the dues of the workmen as they were not partners of M/s. Cutch Dyeing and Bleaching Works during the relevant period.
23. The argument is also unacceptable for another reason. When the petitioners themselves categorically asserted before the Labour Court that they were partners of the business, there is no reason why they should be permitted now to take up a contrary stand relying upon the fact that the partnership was not registered and was apparently defective in law. I am not concerned with these niceties; nor the workmen. The visceral issue is that the workmen have worked during the relevant period, the petitioners run the business, in whatever capacity, and extracted work from them. The petitioners are liable for the dues of the workmen.
24. Looking at the matter, from, any point of view, I am not satisfied that the petitions have any merit or that the impugned orders of the Labour Court need to be interfered with. The three petitions are dismissed and the Rules granted therein are hereby discharged with costs.
25. An application is made for stay of the judgment for six weeks. Stay declined.
26. Certified copy to be expedited.