Punjab-Haryana High Court
The Sonepat Central Co-Operative Bank ... vs The Presiding Officer on 14 September, 2011
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No. 8896 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 8896 of 1991
Date of decision: 14.09.2011
The Sonepat Central Co-operative Bank Ltd. ...Petitioner
Versus
The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak
and another ...Respondents
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Surender Singh Dalal, Advocate for the petitioner.
Mr. Rajbir Sehrawat, Advocate for respondent No. 2.
RANJIT SINGH J.
Can an Advocate/Legal Advisor be a workman under the Industrial Disputes Act to approach Labour Court against his alleged termination? This question arises in the writ petition.
The Sonepat Central Co-operative Bank Ltd. has filed this writ petition to impugn award passed by the Labour Court, Rohtak whereby the respondent-Advocate has been held to be an employee of the petitioner-Bank.
As per the averment made in the petition, respondent No. 2 was practicing Advocate at District courts, Sonepat and he was appointed as Legal Advisor of the petitioner-bank for conducting the cases of Sonepat Sub Division and Gohana Sub Division by the Board of Directors on 08.10.1979. Prior to the appointment of respondent No. 2, Sh. Umesh Chulkana and Sh. Dhajja Ram were Civil Writ Petition No. 8896 of 1991 2 working as Legal Advisor of the Bank. Since they were not performing their duties well, they were removed and in their place respondent No. 2 was appointed. As per the terms and conditions of respondent No. 2, his remuneration was initially fixed at ` 220 and was enhanced to ` 330/- per month by the Board of Directors. It is, accordingly, pleaded that he was an Advocate and not an employee of the petitioner-Bank and his sole function was to attend the court cases and to give legal advice as and when required by the Bank.
The service conditions of the employees of the Bank are governed by the Haryana State Central Cooperative Bank Staff Service Rules, 1975. Even in the Regulation, there is no post of Legal Advisor. It is pleaded that Legal Advisors are engaged for conducting cases on behalf of the concerned institutions and their work is to give legal advise and, thus, they cannot be treated as employees of the institution with which they may be working.
The work of respondent No. 2 was reviewed by the Board of Directors in the meeting held on 09.08.1995. The Board decided that there was no need to have Legal Advisor and, accordingly, respondent No. 2 was removed from his assignment. Feeling aggrieved against this order, respondent No. 2 approached the Labour Court claiming himself to be the workman and challenged the removal on the ground that the same was done in violation of Section 25-F of the Industrial Disputes Act. The petitioner, accordingly, preferred a claim against his removal. The petitioner filed a response to the claim statement rebutting all the averments made in the claim. It was pleaded that labour Court/respondent No. 1 was bent upon to favour the respondent No. 2 on one or the other pretext and had Civil Writ Petition No. 8896 of 1991 3 held respondent No. 2 to be an employee by observing that there was relationship of master and servant between the parties. Not only respondent No. 2 has been held to be a workman but the labour Court has held his termination to be illegal and has directed his reinstatement with continuity in service with full backwages. The petitioner, accordingly, has challenged this Award passed by the labour Court through the present writ petition.
The writ petition was admitted and operation of the impugned order was stayed. Since the order passed by the quasi judicial authority is under challenge, the respondent-Advocate had not chosen to file any reply. Only issue that would arise for consideration in the writ petition is whether respondent No. 2, who was statedly engaged as Legal Advisor, could be termed as workman under the Industrial Disputes Act or not.
While responding to the claim made by respondent No. 2, the petitioner-management had pleaded that respondent No. 2 is not employed by the management as Legal Advisor but was rather engaged as such on contractual basis. As per the stand of the petitioner, respondent No. 2 was only paid honorarium allowance of ` 220/- per month, which was increased to ` 330/- per month. On the basis of pleadings, the labour Court framed the following issues:-
i) Whether the petitioner is not a workman as defined in Section 2(s) of the I.D. Act?
ii) Whether there is a relationship of master and servant between the parties?
iii)As per terms of reference?Civil Writ Petition No. 8896 of 1991 4
Issues No. 1 and 2 were discussed together being interconnected. The labour Court has held that person engaged to work by employer on the part time is a workman, as per Section 2(s) of the Act. The submission made on behalf of the management was that an employee to be workman in the industry must be employed to do skilled or unskilled, manual or clerical work and if an employee is not required to do any of these work, he would not fall within the definition of workman. It was stressed by the petitioner that the Legal Advisor does not perform any of the said functions and, therefore, could not be termed as workman.
In response, respondent No. 2, however, had relied upon the ratio of law laid down in S.K. Verma versus Mahesh Chandra and others 1983- Labour Industrial Cases 1483. The Hon'ble Supreme Court in this case has held that words any "skilled or unskilled. Manual, supervisory, technical or clerical work', are not intended to limit or narrow the amptitude of the definition of 'workman' and on the other hand, they indicate and emphasize the broad sweep of the definition which is designed to cover all manner of persons employed in an industry irrespective of whether they are engaged in skilled work or unskilled work, manual work, supervisory work, technical work or clerical work. The broad intention was to take in entire labour force and exclude the managerial force. It is observed that, 'That of course is as it should be".
Besides, reference was also made to Rajesh Garg Vs. Management of the Punjab State Tubewell Corporation Ltd. And another 1984 (3) SLR 397 in support of this contention. Based on the judgment, as noticed above, the issue of respondent No. 2 being Civil Writ Petition No. 8896 of 1991 5 workman was decided, accordingly, by the Labour Court.
Mr. Dalal appearing for the petitioner contends that by no stretch of imagination, the Advocate/Legal Advisor can be brought within the definition of workman. Counsel has also pointed out that the ratio of law laid down in S.K. Verma's case (supra) has been held per incurium in the case titled H.R. Adyanthaya and others v. Sandoz (India) Ltd. And others JT 1994 (5) SC 176. This very issue again came up for consideration before the Hon'ble Supreme Court in the case of Management of M/s Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh JT 2005 (2) SC 370. In this case also, the respondent-workman was appointed on the post of Legal Assistant, qualification whereof was degree in Law with a practicing licence. The nature of duties were to prepare written statements and notices, recording enquiry proceedings to give opinions. The labour Court had framed the specific issue, as is in the case in hand, to the effect whether the applicant falling in the definition of workman or not. The Hon'ble Supreme Court after noticing the definition of workman as given in Section 2(s) has held that perusal of the definition of workman clearly indicate that person would come within the purview of the said definition if he (i) is employed in any industry; and (ii) performs any manual, unskilled, technical, operational, clerical or supervisory work. It is thus, observed that if a person performed one or the other jobs mentioned in the aforesaid provisions then only would come within the purview of definition of workman. It is specifically noticed that S.K. Verma's case (supra) was decided earlier by the Hon'ble Supreme Court without taking into consideration the previous binding precedents and in particular the Civil Writ Petition No. 8896 of 1991 6 decision of May & Bakers (India) Limited v. Workmen AIR 1967 SC 678, where the Court had arrived at the conclusion that the employee, who does not perform any supervisory or managerial duties, would not be a workman. S.K. Verma's case (supra) was held to have been rendered per incuriam by a Constitution Bench of this Court in H.R. Adyanthaya's case (supra).
This question had come up for consideration before the Hon'ble Supreme Court in Mukesh K. Tripathi v. Senior Divisional Manager, LIC and others JT 2004 (7) SC 232, where is held as under:
"Once the ratio of May and Baker (supra) and other decisions following the same had been reiterated despite observations made to the effect that S.K. Verma (supra) and other decisions following the same were rendered on the facts of that case, we are of the opinion that this Court had approved the reasonings of May and Baker (supra) and subsequent decisions in preference to S.K. Verma (supra).
The Constitution Bench further took notice of the subsequent amendment in the definition of 'workman' and held that even the Legislature impliedly did not accept the said interpretation of this Court in S.K. Verma (supra) and other decisions.
It may be true, as has been submitted by Ms. Jaisingh, Civil Writ Petition No. 8896 of 1991 7 that S.K. Verma (supra) has not been expressly overruled in B.R. Adyanthaya (supra) but once the said decision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law. This Court is bound by the decision of the Constitution Bench.
This Court opined:
"The definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a 'workman' defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise.
*** *** **** A 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprentices Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A Civil Writ Petition No. 8896 of 1991 8 person who claims himself to be an apprentice has certain rights and obligations under the statute."
This decision was followed in U.P. State Electricity Board v. Shiv Mohan Singh and another JT 2004 (8) SC 272. Accordingly, the judgment passed by the High Court upholding the view on the basis of S.K. Verma's case (supra) was not approved and the judgment passed by the High Court was set aside. On this basis, it was further observed that the award, which was decided by the Presiding Officer, Industrial Disputes Tribunal or by the High Court misdirecting himself by failing to pose correct question would call for interference.
In view of the settled position of law, the ratio of law laid down in S.K. Verma's case (supra) is no more a good law. It has consistently been viewed by the Hon'ble Supreme Court that Advocate cannot come under the definition of 'workman' as per the definition of the term in the Industrial Disputes Act. The impugned award, therefore, cannot be sustained. The same is set aside. The writ petition is, accordingly, allowed. There shall be, however, no order as to costs.
September 14, 2011 ( RANJIT SINGH ) rts JUDGE