Shampa Sarkar, J. - (1.) The facts of the case in short are that the respondent No.1 was employed in the petitioner company since 1990 as commercial artist. After confirmation his salary was Rs.1800/-. The salary was increased to Rs.4160/- with effect from August 1, 2000. The respondent No.1 started absenting from duty on and from February 19, 2001 and a letter was issued by the company on March 7, 2001 calling upon him to attend the office immediately failing which, disciplinary action would be taken. On March 16, 2001 the respondent No.1 sent a letter to the partner of the company, inter alia, contending that a letter was issued by the accountant of the company on February 16, 2001 terminating his service which was not accepted by him. By the said letter he further informed the partner of the company that he was unwell from February 17, 2001 and had been advised to take rest. A medical certificate was also annexed to the said letter. By another letter dated May 17, 2001 the respondent No.1 informed the said partner that on April 23, 2001 he had visited the office with a medical certificate of fitness, but he was not allowed to join his duty and was asked to wait for two more weeks. By a letter dated June 11, 2001, the partner of the company Amitava Majumdar denied the contents of the letter dated May 17, 2001 and stated that in spite of several requests the respondent No.1 had refused to join and although his service had never been terminated, he himself stayed away from work. By a letter dated July 18, 2001 the respondent No.1 reiterated his request to be allowed to join his duty. On February 11, 2005 and March 5, 2005 the respondent No.1 through his learned Advocate made a representation to the company claiming all arrear dues including provident fund, gratuity along with interests. The company by a letter dated April 3, 2006 refused the claim, inter alia, stating that absenting from work on and from February 17, 2001, amounted to resignation from service and the question of release of the dues claimed did not arise. On October 27, 2008 the respondent No.1 raised a dispute with the Labour Commissioner. The conciliation proceedings failed. On November 11, 2010 a pendency certificate was issued by the Labour Commissioner and thereafter the respondent No.1 filed an application under Section 10 (1-B) (d) of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) before the learned Judge Second Labour Court, West Bengal, Kolkata, which was registered as Case No.48/2010.
(2.) The company filed its written statement before the Second Labour Court and evidence was adduced by both the parties. By an award dated December 10, 2013, the learned Judge, Second Labour Court, West Bengal, Kolkata allowed the application under Section 10 (1-B) (d) of the said Act filed by the respondent No.1. It was directed that the respondent No.1 was entitled to be reinstated with full back wages and other consequential benefits. The petitioner company was directed to comply with the award within a period of 90 days from the said date, in default the respondent No.1 was granted liberty to put the award in execution in terms of the said Act. The said award is impugned in this writ petition.
(3.) The points raised before this Court:- (a) that the respondent No.1 was not a workman under Section 2 (s) of the said Act and the Labour Court erred in not coming to a finding as to whether the respondent No.1 came within the definition of workman under the said Act; (b) that the Labour Court was wrong to lay the burden of proof on the company to show that the respondent No.1 was not employed in a supervisory or managerial capacity; (c) that the Labour Court erred in holding that in view of the existence of an employer-employee relationship between the parties, the company was a industry and the application was maintainable before it; and (d) that the Labour Court erred in holding that the petitioner was entitled to be reinstated with full back wages along with consequential benefits, without considering the question of delay in raising the dispute.;