THE FACTORY MANAGER CIMMCO WAGON FACTORY versus VIRENDRA KUMAR SHARMA AND ANR.

Citation: [2000] SUPP. 1 S.C.R. 678 · Decided: 26-07-2000 · Supreme Court of India · Bench: S. RAJENDRA BABU

Judgment (excerpt)

A 
THE FACTORY MANAGER CIMMCO WAGON FACTORY 
B 
c 
v. 
VIRENDRA KUMAR SHARMA AND ANR. 
JULY 26, 2000 
[S. RAJENDRA BABU AND SHIVARAJ V. PATIL, JJ.] 
Labour laws : 
Industrial Disputes Act, 1947 : Sections 2(s) and 10(1). 
Workman-Determination of-Respondent worked as apprentice for 
two spells with the Company-Payment of stipend during apprenticeship 
period-Company under no obligation to provide employment after 
apprenticeshi~No appointment letter issued-However recommendatory 
D letters issued by Deputy Manager of Company, who was not competent 
authority, for appointment of respondent-Suggestion by Deputy Manager to 
respondent to work in anticipation of securing employment-No salary paid 
to the respondent-Held in the circumstances claim of the respondent that 
he was a workman was not established. 
E 
Factories Act, 1948 : Section 103. 
F 
Presumption as to employment-Nature and applicability of-Held 
rebuttable. 
Constitution of India, 1950 : Article 226 
Writ Jurisdiction-Scope of-Findings of fact recorded by Labour 
Court-lpterference with by High Court-Permissibility of 
The State Government of Rajasthan made a reference under Section 
10(1) of the Industrial Disputes Act, 1947 regarding validity of the termination 
G of service of the respondent. The respondent worked as an apprentice with 
the appellant-company in two spells. He was paid stipend of Rs. 250 per month 
during the apprenticeship period. There was a specific clause which provided 
that after the expiry of the training period, the appellant-company shall not 
be under any obligation to give employment to the respondent No appointment 
letter was issued to the respondent There was no evidence on record to indicate 
H 
678 
I
FACTORYMANAGERCIMMCOWAGONFACTORYv. V.K.SHARMA 
679 
that either GPF or ESI were deducted from the salary of the respondent as he A 
was not being paid any salary. However, the Deputy Manager of the Company 
who was not the appointing authority, had written two letters to the Vice 
President of the appellant-company recommending the appointment of the 
respondent. 
Labour Court held that the respondent was not a workman. It held that B 
(i) presumption a~ to the employment of the respondent that could be raised 
under Section I 03 of the Factories Act, 1948 stood rebutted as no appointment 
letter was given to the respondent; (ii) the relationship of master and servant 
did not exist between the appellant and the respondent. The Award passed by 
the Labour Court was unsuccessfully challenged before a Single Judge of C 
the High Court which dismissed the writ petition filed by the respondent and 
declined to exercise jurisdiction u·nder Article 226 of the Constitution. He 
found that not a single document was placed on record from which it could be 
established that the respondent was a regular employee. On appeal Division 
Bench quashed the Award passed by the Labour Court and allowed the writ 
petition of the respondent. The Division Bench relied on two letters written D 
by the Deputy Manager of the Company and held that though no appointment 
letter was issued to the respondent nor was any payment made to him yet it 
was established that he was asked to work in the factory by the authorities. 
Accordingly, it ordered reinstatement of the respondent with direction for 
payment of 25% of the back wages. Against this decision the company E 
preferred appeal before this Court. The respondent aggrieved by the denial of 
full back wages also preferred an appeal before this Court. 
Allowing the appeal of the company and dismissing that of the 
respondent, the Court 
HELD: I. Having regard to the facts and circumstances of the case and 
in the light of the evidence placed on record, it is not possible to accept that 
there was any unfair labour practice as observed in the impugned order. 
Consequently, it is difficult to sustain the impugned order which is set aside 
F 
and the award of the Labour Court is restored. (685-B-Cl 
G 
2. The Division Bench of the High Court in the impugned order had 
relied on two letters written by Deputy Manager to the Vice President of the 
appellant factory. From a plain reading to these letters it is clear that they 
are only recommendatory. Further the Deputy Manager was not competent 
authority to give any appointment. Assuming that the respondent was asked H 
680 
SUPREME COURT REPORTS (2000) SUPP. I S.C.R. 
A to work in the factory in anticipation of securing employment, that too by an 
offic

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