“Does the management prove that the first party is a workman? If, so, to what relief is he entitled to?”
For ages, managements have always contended in the labour courts and Industrial Tribunals that the first party is not a workman. This has been the contention from the 1950’s, (Dimakuchi Tea Estate case, 1958 1 LLJ 500) till date (Rajasthan Housing Board case, 2019 SCC Online 936). The opposite of this has transpired in civil courts where the managements have taken a stand that the civil court would not have jurisdiction since the plaintiff is a workman under the Industrial Disputes Act, 1947 which prescribed a specific machinery in this regard.
Hon’ble Mr.Justice F.M.Ibrahim Kalifulla, (Supreme court of India) in a session for newly recruited labour court judges, [(2013) 1 LW (JS) 13] quoted several judgements to draw a line between the civil courts and labour courts. To be short, and to quote in the form of an example, a suit for declaration of date of birth by a workman can be adjudicated by the civil court, where a case of termination would be within the jurisdiction of the labour court.
Going back to the main question, when a management would always want to prove that an employee is in a supervisory capacity, why would the management strive to establish the first party is a workman to its own detriment?
Well, at first, I presumed this was a clerical error. But then, I came across similar orders of reference in multiple cases. Which is when I decided to write. Interestingly, in this particular case, what happens if I don’t prove that he is a workman? (“If yes, to what relief is he entitled to?”). The employee is not entitled to any relief?
Is this a way to place the burden on the management?
Bank of Baroda v. Ghemarbhai Harjibhai Rabari, (2005) 10 SCC 792 : 2005 SCC (L&S) 963 at page 795 (3 judges)
“While there is no doubt in law that the burden of proof that a claimant was in the employment of a management, primarily lies on the workman who claims to be a workman, the degree of such proof so required, would vary from case to case.”
When this is the law, is the reference by the government valid? What a paradox.
Do share your thoughts.
I fully agree and appreciate the initiative taken by Ms Shri Bhoomi Advocate. I think it’s high time the govt acts on it as per law and does act whimsical.