Madras High Court
The Principal General Manager vs The Central Govt. Industrial Tribunal on 2 April, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2012 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.24707 of 2008 and M.P.No.3 of 2009 The Principal General Manager Bharat Sanchar Nigam Ltd., Coimbatore. ... Petitioner Vs 1.The Central Govt. Industrial Tribunal cum Labour Court, Chennai. 2.P.Rajaganesan ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the Award of the first respondent passed in I.D.No.87 of 2006 dated 23.06.2008 and to quash the same as illegal. For Petitioner : Mr.M.Govindharaj For Respondents : Ms.Y.Kavitha for M/s.P.V.S.Giridhar Associates for R2 O R D E R
The writ petition is filed by the petitioner viz., Bharat Sanchar Nigam Limited, Coimbatore (for short BSNL), challenging an Award passed by the Central Government Industrial Tribunal cum Labour Court (for short CGIT) in I.D.No.87 of 2006 dated 23.06.2008 By the impugned Award, the CGIT directed reinstatement of the second respondent with 50% backwages and other consequential benefits.
2. The writ petition was admitted on 15.10.2008. Pending the writ petition, an interim stay was granted. Subsequently, the workman filed M.P.No.2 of 2009 seeking for a direction to comply with payment under Section 17-B of the Industrial Disputes Act, 1947 (for short I.D.Act). This Court vide order dated 06.07.2009 directed compliance of Section 17-B of the I.D.Act from the date of filing of the writ petition viz., 26.09.2008. The petitioner BSNL was directed to deposit 50% of the backwages to the credit of I.D.No.87 of 2006 before the CGIT. The CGIT was in turn directed to deposit the same in any one of the Nationalised Bank in a fixed deposit initially for a period of two years with a periodical renewal and the workman was permitted to withdraw the interest periodically. The main writ petition was directed to be listed for final hearing in the second week of October 2009.
3. Subsequently, the workman filed M.P.No.3 of 2009 seeking to modify the order dated 06.07.2009 passed in M.P.No.2 of 2009, to grant wages at the rate of Rs.3,255/- per month instead of Rs.1,650/- per month. That application is yet to be ordered.
4. The petitioner BSNL also filed an additional affidavit contending that one Senior Sub-Divisional Engineer by name Kulanthaisamy had engaged the workman as a casual driver contravening the standing instructions. Since there is a ban on recruitment, any recruitment made will be contrary to BSNL CDA Rules. The said Kulanthaisamy was proceeded with disciplinary action. The stand of the workman that the post of Driver was vacant at BSNL office, Veerapandi, Tiruppur was also denied. However, this Court is not inclined to accept the additional affidavit at this stage, as in a writ of Certiorari, this Court can only go into the correctness of the Award passed by the CGIT and no additional material can be brought in to test the correctness of the Award. In essence, in a writ in the nature of Certiorari, no fresh document can be brought in which was not made available before the quasi judicial authority.
5. The case which led to the passing of the impugned Award are as follows:-
The second respondent workman claiming that he was engaged as a Driver on 01.08.2001 at the office of Sub-Divisional Telecom, BSNL, Veerapandi, was assigned to drive the department vehicle bearing No.TN-38-L8-235. Apart from being paid monthly wages, he was also given additional allowance for cleaning the vehicle. He was maintaining the tripsheet and log book in which he had put his signature every day. Though the workman was demanding regularisation, the same was not forthcoming. He claimed that his job involves picking up the Sub-Divisional Engineer Kulanthaisamy at his place and drop him in his office. Thereafter, he will be driving the vehicle for Junior Telecom Officer, Lineman to attend line fault, cable fault and to identify fault locator in the Exchange. In case, any regular lineman was on leave, he would also perform the work of lineman. He was also given telephone connection at Thirupur Exchange. In normal course, he has to drive the vehicle according to the instructions of the Senior Divisional Engineer and Junior Telecom Officer. When he reported for duty on 02.06.2003, he was orally informed that his services were no longer required. At the time of termination, he was neither given notice nor notice pay and no reasons were assigned for his termination.
6. Thereafter, the workman raised an industrial dispute before the Assistant Labour Commissioner (Central), who is the jurisdictional Conciliation Officer. The said Conciliation Officer, after notice to BSNL, as he could not bring about any compromise between the parties sent a failure report under Section 12(4) of the I.D.Act to the Government of India. The Government of India, through their Ministry of Labour by an order dated 17.10.2006 referred the dispute relating to termination of service of the second respondent for adjudication by the CGIT, Chennai.
7. The order of reference made under Section 10(1)of the I.D.Act reads as follows:-
"Whether the action of the Management of Principal General Manager, Coimbatore in terminating the services of their workman Sri.P.Rajaganesan w.e.f 02.06.2003 is legal and justified? If not, to what relief the workman is entitled to and from which date?
8. The CGIT registered the dispute as I.D.No.87 of 2006 and issued notice to both sides. The workman filed his claim statement on 19.12.2006. The petitioner Management filed their counter statement dated Nil February 2007.
9. Before the CGIT, the workman had examined himself as W.W.1. On his side, 42 documents were filed and marked as Exs.W1 to W42. Exs.W16 to W36 were the Log Book maintained by the workman in the office of the BSNL signed by him. Ex.W37 was the conduct certificate issued by the Divisional Engineer BSNL, Tiruppur. Ex.W38 is the conduct certificate issued by another Divisional Engineer, BSNL, Veerapandi. Exs.W1 to W15 were the wages paid to the workman. On the side of BSNL, one L.K.Suresh, who was the Sub-Divisional Engineer (Legal) in the office of Principal General Manager, BSNL, Coimbatore was examined as M.W.1. BSNL did not choose to file any document at their disposal.
10. The CGIT upon evidence placed, (both oral and documentary) came to the conclusion that the workman had worked 26 days each in August 2001, September 2001 and October 2001, 25 days each in November 2001, December 2001 and February 2002, 28 days each in April 2002 and June 2002 and 29 days each in March 2002 and May 2002. A combined calculation of these days showed that he had worked more than 293 days within a period of one calendar year and therefore, before dispensing with his service, the BSNL should have complied with the legal requirement under Section 25-F of the I.D.Act. On the question of onus of proof, the CGIT recorded that the initial burden cast upon the workman has been discharged and it was BSNL, which did not choose to bring any documents kept at their disposal. Therefore, it was proved that the workman had worked for more than 240 days within in a period of 12 months preceding his termination.
11. The contention raised by the BSNL was that the workman has been engaged on temporary basis and therefore, he cannot get regularisation and any such attempt to get his services regularised will be contrary to the dictum laid down by the Supreme Court in State of Karnataka and others v. Uma Devi and others reported in 2006 4 SCC 1. On the other contention that the branch office has no power to recruit a person as a Driver and the Rules and Regulations have been violated, the Tribunal held that when there is statutory requirement to dispense with his services, the employer cannot disregard the statutory requirement by referring to Uma Devi's case. It was in that view of the matter, CGIT held that the workman is entitled for wages, but at the same time, though the workman pleaded before CGIT that during the relevant time, he was not in their employment, but curiously, the CGIT held that he is eligible only for 50% backwages. In any event, since the workman is not aggrieved about the deprivation of 50% backwages, it is unnecessary to go in the issue of quantum of backwages payable to the workman at this juncture.
12. Mr.M.Govindaraj, learned counsel for the petitioner relied on the judgment of the Supreme Court reported in (1978) 2 SCC 358 [Punjab National Bank v. Ghulam Dastagir] for contending that in case any subordinate officer of an organisation engages a Driver, he cannot be deemed to be a driver of the employer and in that circumstances, he cannot be said to be a workman within the meaning of Section 2(s) of the I.D.Act. This judgment was relied upon principally on the ground raised in the additional affidavit. As already held by this court, such pleading cannot be entertained after the Award was passed. In the counter statement filed before the CGIT, the Management did not make any such contention. On the other hand, their statement is contradictory. While in Paragraph 5, they say that he is not an employee of the BSNL, in paragraph 6, they say that he was engaged on daily wages basis as and when regular workers went on leave. This stand of the Management falsifies their new plea taken in the additional affidavit viz., that he was not an employee of the BSNL. Under Section 2(s) of the I.D.Act, it is immaterial whether a person is temporary, casual or permanent, the definition of the term 'workman' do not make any distinction between the status of an employee for the purpose of I.D.Act.
13. Per contra, the learned counsel for the second respondent placed reliance on the judgment of the Supreme Court reported in (1997) 11 SCC 396 [Rattan Singh v. Union of India and another]. In that case, the Supreme Court while recording the submission made by the counsel for the workman, who was the appellant, agreed with the said submission as found in the following paragraphs 2 and 3:-
"2. Shri S.M. Ashri, the learned Senior Counsel appearing for the appellant, has submitted that merely because the appellant was a daily-rated worker does not mean that he is not entitled to the protection of Section 25-F of the Act. Shri Ashri has invited our attention to the judgment of the first appellate court dated 22-1-1985 wherein it is recorded that admittedly the appellant was a workman and he has served the Telephone Department on the dates mentioned in the said judgment which shows that the appellant has continuously worked for more than 240 days in a year. The submission of Shri Ashri is that the termination of the services of the appellant was in violation of Section 25-F of the Act.
3. We find merit in the said submission of Shri Ashri...."
14. The learned counsel also referred to the judgment of the Supreme Court reported in (2009) 1 SCC 20 [Kanpur Electricity Supply Company Limited v. Shamim Mirza], wherein the Supreme Court held that it is neither feasible nor advisable to lay down an abstract rule to determine the employer-employee relationship and it is essentially a question of fact to be determined by the appropriate adjudicating authority having regard to the entire material. In that case, the Supreme Court after noticing that the workman did not produce any order of appointment, but yet it held that the salary slips and some contemporaneous evidence being let in can be an useful material for proving continuous service. In paragraph 21, the Supreme Court held as follows:-
"21. It is true that in the instant case, the workmen did not produce the letters of appointment as also their salary slips but they have been successful in adducing some contemporaneous documentary evidence, including ECR sheets bearing the signatures of the workmen and that of another senior officer of the appellant Company (Ext. W-7, Exts. W-10 to W-15), which shows that they were collecting cash on behalf of the appellant; depositing it in the van or central office of the appellant and were answerable to the officials of the appellant...."
15. The learned counsel also referred to the judgment of the Supreme Court reported in (2008) 10 SCC 698 [Divisional Manager, New India Assurance Company Limited v. A.Sankaralingam], wherein the Supreme Court held that even accepting that a particular person is a part-time workman, if his services are dispensed with, without regard to Section 25-F of the I.D.Act, he will be not only workman within the meaning of Section 2(s) of the I.D.Act and once he satisfies the definition of continuous service under Section 25-B of the I.D.Act, he is entitled for the normal relief.
16. The learned counsel further referred to the judgment of the Supreme Court reported in (2010) 5 SCC 497 [Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat (Haryana], wherein the Supreme Court held that when an employer did not produce any evidence under Section 25-F of the I.D.Act, there is no scope for the High Court to interfere with such finding of fact and the non-compliance of Section 25-F of the I.D.Act, it will be well within the Court to grant appropriate relief.
17. The learned counsel further referred to the judgment of the Supreme Court in reported in (2011) 6 SCC 584 [Devinder Singh v. Municipal Council, Sanaur] for contending that under Section 2(s) of the I.D.Act, it is immaterial whether a person is temporary, casual or permanent, the definition of the term 'workman' do not make any distinction between the status of an employee for the purpose of I.D.Act. In paragraphs 12 to 14, the Supreme Court held as follows:-
"12. Section 2(s) contains an exhaustive definition of the term workman. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term workman.
13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of workman."
(Emphasis added)
18. The learned counsel lastly referred to a judgment of the Supreme Court reported in (2010) 3 SCC 192 [Harjinder Singh v. Punja State Warehousing Corporation] for contending that it is not a consolation to grant compensation in case of statutory violation and the normal rule of reinstatement should be applied by the adjudicating authority as well as the High Court. In fact in that case, the Supreme Court after referring to the contention of the employer regarding Uma Devi's case also struck a note of caution that such pleas cannot be raised for the first time before the Court and it has to be raised at the stage of trial. It also held that the adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal and those points cannot be urged before a writ court. It was well within the limits of a High Court in the exercise of jurisdiction under Article 226 to deny any such interference. It was also held that the High Court in exercise of certiorari jurisdiction cannot convert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
19. On the question of relief to be given to the workman instead of compensation, the Supreme Court in paragraph 31 of Harjinder Singh's case (cited supra) held as follows:-
"31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employerpublic or private."
20. In his concurring view rendered by A.K.Ganguly,J., in paragraph 43 of Harjinder Singh's case (cited supra), he had stated as follows:-
"43. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother Singhvi, J. that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity."
21. In the light of the legal precedents and the factual matrix recorded by the CGIT, it is not a fit case where any interference is called for. In fact the earliest case on the point is State Bank of India v. Shri N.Sundara Money reported in AIR 1976 SC 1111. The Supreme Court dealt with the case of substitute workman and yet held that if a workman completes 240 days in a period of 12 calendar months, his services cannot be dispensed with unless the mandatory condition precedent laid down is complied with by the employer. In such circumstances, reinstatement with backwages is the normal relief that has been laid by the Supreme Court. In fact that case did not arose out a proceeding before the Labour Court, but it arose out of a proceeding instituted before the High Court under Article 226.
22. In view of the above, there is no case made out. Hence, the writ petition stands dismissed. The petitioner BSNL is hereby directed to implement the Award dated 23.06.2008 made in I.D.No.87 of 2006 in toto within a period of eight weeks from the date of receipt of a copy of this order. The parties are allowed to bear their own costs. Connected miscellaneous petition is closed.
svki To The Central Govt. Industrial Tribunal cum Labour Court Chennai