Gujarat High Court
Tata vs General on 20 September, 2011
Author: R Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
Print
SCA/13670/2011 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13670 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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TATA
CHEMICAL LIMITED - Petitioner(s)
Versus
GENERAL
SECRETARY & 1 - Respondent(s)
=========================================================
Appearance :
MR.VARUN
K.PATEL for
Petitioner(s) : 1,
MR MUKESH B DAVE for Respondent(s) : 1,
MR
RINDANI, AGP NOTICE SERVED BY DS for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 20/09/2011
ORAL
JUDGMENT
1. On 12/09/2011, Notice was issued returnable on 19/09/2011. Learned Advocate Mr.M B Dave, appeared on behalf of respondent No.1-General Secretary, Tata Chemical Staff Union and learned Assistant Government Pleader, Mr.R A Rindani, appeared for respondent No.2 and waived service of notice.
2. Learned Senior Advocate Mr.K M Patel for the petitioner requested for the priority in the matter on the ground that on 30/09/2011 the matter will become infructuous and then the question involved may be said to be an 'academic question'. On his request the matter is taken up for final hearing to which learned Advocate, Mr.M B Dave for respondent No.1 and learned Assistant Government Pleader for respondent No.2 have no objection.
2.1 RULE.
Mr.M B Dave for the respondent No.1 and Mr.Rindani, for respondent No.2 waive service of notice of Rule.
3. Heard learned Senior Advocate Mr.K M Patel for the petitioner, Mr.T R Mishra learned Advocate for Mr.M B Dave learned Advocate for respondent No.1 and learned Assistant Government Pleader for respondent No.2.
4. Learned Senior Advocate for the petitioner submitted that the petitioner is aggrieved by order dated 04/08/2011 (Annexure - A) whereby one 'Hothibha D Jam' is conferred the status of 'protected workman' for the year 2010-2011. In the order itself it is mentioned that, 'for declaration of 'protected workman' for the year 2011-12, application will be required to be made before 30/09/2011, which is suggestive of the fact that present status of 'protected workman' will come to an end on 30/09/2011'.
4.1 Learned Senior Advocate invited attention of the Court to that order and submitted that the Conciliation Officer and Assistant Labour Commissioner, Jamnagar has not given any cogent reasons for conferring the status of 'protected workman' on the person concerned. Learned Senior Advocate submitted that the authority has mentioned in paragraph No.4 that, 'about 1400 workmen are working in the establishment; as per sub-section (4) of Section 33 of the Industrial Disputes Act, 1947 (herein after referred to as 'the Act') one percent of the total strength of the workmen can be conferred the status of 'protected workman; and minimum number prescribed is five and maximum number prescribed is 100'.
4.2 The authority has then in nutshell considered the case pleaded by the establishment and it is stated therein that, 'it was contended by the establishment that as the workmen whose names are mentioned in the 'demand notice' (Annexure - B) dated 20/09/2011, have accepted the 'salary revision scheme' and therefore no further demand can be made by them. Besides, the establishment has also contended that, 'these workmen do not fall within the definition of the term 'workman', contained in the said Act. (Section 2 (s) of the Act) and therefore the demand of the union shall be rejected'.
4.3 Learned Senior Advocate for the petitioner submitted that after putting the contentions of the establishment in nutshell, the authority has decided the matter in a very cryptic manner stating that, 'the case of the establishment cannot be accepted'. Learned Senior Advocate for the petitioner submitted that the reasons set out for not accepting the case of the establishment are suggestive of non-application of mind on the part of the authority. Learned Senior Advocate for the petitioner invited attention of the Court to the reasons set out by the authority that is, 'acceptance of the demand, made by the Union, will not increase any financial burden / liability of the establishment, hence the workmen cannot be denied the benefits admissible under the law; that the case of the establishment, the workmen mentioned in the demand do not fall within the definition of 'workman', cannot be accepted in view of the provisions of the Industrial Disputes Act, 1947'.
4.4 Learned Senior Advocate for the petitioner submitted that the aforesaid reasons are totally irrelevant to the dispute involved in the matter. Learned Senior Advocate for the petitioner submitted that the question before the authority was as to whether persons whose names mentioned in the demand notice (Annexure - B) can be conferred the status of 'protected workman' and for that the case of the establishment was that the persons whose names are mentioned in the demand notice do not fall within the definition of the term 'workman' and therefore they cannot be conferred the status of 'protected workman'.
4.5 Learned Senior Advocate for the petitioner submitted that the Union is 'Tata Chemicals Staff Union' and it is on record in the form of earlier demand notice dated 15/09/2008 (Annexure - H) that, the 'Supervisors' working in the company are the members, and then the names of the persons are set out for whom the status of 'protected workman' is sought for. But thereafter in the demand notice made for the year 2010-11 (Annexure - B), it is stated that, 'the staff members working in the company are the members'. Learned Senior Advocate for the petitioner submitted that this change of nomenclature in later demand notice is suggestive of the fact that even the Union was of the opinion that if the 'supervisors' are stated to be members of the Union, it will be difficult to get the status of 'protected workman'.
4.6 Learned Senior Advocate for the petitioner emphatically submitted that so far as 'Hothibha D Jam' is concerned, he was serving as 'Assistant Fire Officer' when he made an application for 'salary revision scheme', (page No.29). There he has declared that, 'I undertake that I will not claim any additional monitory benefits, either what is mentioned in the claim. I am in agreement with all the clauses of the scheme, which I have read / have been read out to me and I have understood the same.' (emphasis supplied) 4.7 Learned Senior Advocate for the petitioner submitted that the entire salary revision application is on record (Annexure - E Colly) as part of the communication to the Conciliation Officer. Learned Senior Advocate for the petitioner submitted that communication dated 15/10/2010, a copy of the notice dated 23/01/2007 was enclosed. There the ' eligibility' for getting the benefits of the scheme are set out in Clause - 2, which reads as under:
"The scheme is designed to attract all the permanent supervisors working in S4 to S1 categories, mainly working and intending to work in supervisory capacity, either by nature of duties, attached to the office or by reason of the powers vested in him/her, functions mainly of a managerial nature.
The scheme shall be applicable to only those supervisors who are doing mainly the supervisory and administrative work"
(emphasis supplied) 4.8 Learned Senior Advocate for the petitioner submitted that it was after taking into consideration the contents of the 'salary revision scheme' that Hothibha D Jam made an application for getting the benefits of the said 'salary revision scheme'. After having obtained and enjoyed the benefits of 'salary revision scheme' now to contend that he cannot be considered to be 'supervisor', performing supervisory and administrative work and that he should be conferred the status of 'protected workman', is nothing but 'blowing hot and cold' in the same breath.
4.9 Learned Senior Advocate for the petitioner invited attention of the Court to Clause - 3 of the said scheme which pertains to 'definition' of which sub-clause (ii) is the definition of the term 'employee' which reads as under:
'ii.
"Employee" means an employee by whatsoever name called on the permanent rolls of the company on the date of introduction of the Scheme, and in future and presently in the grade of S1 to S4.' 4.10 Sub-clause
(vi) pertains to definition of the term 'supervisor' which reads as under:
'vi. "Supervisor"
means an employee who being employed in a supervisory capacity, or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.' 4.11 Last but not the least, learned Senior Advocate, invited attention of the Court to Clause 6 of the said scheme which pertains to 'Acceptances, Payment and Administration', which reads as under:
"... Once the management informs the employee, and employee acknowledges the terms and conditions of the SRS (salary revision scheme), the employee shall be governed by the rules of the company and the amendments thereof, and no employee can claim any benefits of what so ever nature accrued by any previous or present settlement."
(emphasis supplied) 4.12 Learned Senior Advocate for the petitioner submitted that if a person is allowed to obtain and enjoy all the benefits flowing from a scheme which was meant only for the 'supervisors' and for the persons performing the supervisory and administrative work, and their functions was mainly of managerial nature, the person concerned - Hothibha D Jam cannot now be allowed to contend that he falls within the definition of the term 'workman' given in the Act and cannot be allowed to enjoy the status of 'protected workman'.
5. As against this, learned Advocate Mr.T R Mishra, for Mr.Dave, learned Advocate for respondent No.1 vehemently contended that the authority has rightly conferred the status of 'protected workman' on the person concerned - Hothibha D Jam. Learned Advocate for respondent No.1 submitted that the establishment was deliberately trying to confuse the authority by contending that, 'as the employee has accepted the 'salary revision scheme' he cannot be permitted to make any additional demands'. Learned Advocate for respondent No.1 submitted that the authority has held that the contentions raised by the establishment that, 'employee does not fall within the definition of the term 'workman' is rightly rejected'.
5.1 Learned Advocate for respondent No.1 referred to and relied upon the following decisions of the Hon'ble the Apex Court and also this Court.
5.2 Learned Advocate for the respondent referred to a decision of the Hon'ble Apex Court in the matter of ' S K Verma Vs. Mahesh Chandra & Another reported in 1983 II LLJ 429'.
5.3 At this juncture, learned Senior Advocate for the petitioner submitted that the learned Advocate for the respondent No.1 may verify the decision rendered by the Five Hon'ble Judges of the Hon'ble the Apex Court in the matter of ' H R Adyanhaya & Ors., Vs. Sandoz (India) Ltd., & Ors., reported in (1994) 5 SCC 737' has held the said decision to be 'per incuriam'. Learned Advocate for the respondent No.1 does not dispute this fact.
5.4 Learned Advocate for respondent No.1 next relied upon a decision of this Court in the matter of ' Shankarbhai Nathalal Prajapati Vs. Maize Products, reported in 2002 III CLR 919' wherein this Court considered various decisions of the Hon'ble Apex Court and also considered the definition of the term 'workman' in paragraph No.3.2 and held that, to decide whether a person is a 'workman' or not what is important is the nature of work performed by an individual. Learned Advocate for respondent No.1 also invited attention of the Court to paragraph No.3.5 wherein the Court has considered the decision of the Hon'ble the Apex Court in the case of 'S K Verma (Supra)'. Lastly, learned Advocate for respondent No.1 invited attention of the Court to paragraph No.5 of the said judgment wherein the Court has observed as under:
"5.
For the foregoing reasons, I find that the Labour Court has committed grave error in throwing out the reference at the threshold by holding that the petitioner is not a workman..."
5.5 Learned Advocate for respondent No.1 next relied upon a decision of the Hon'ble the Apex Court in the matter of ' Anand Bazar Patrika (Private) Ltd., Vs. Its Workmen, rendered in Civil Appeal No.704 of 1966 on 7 th February, 1969'.
5.6 Learned Advocate for respondent No.1 next relied upon a decision of this Court in the matter of ' Arun Mills Ltd., Vs. Dr.Chandraprasad C. Trivedi, reported in 1976 (32) FLR 323' wherein even the ' doctor' is held to be a 'workman'.
5.7 Learned Advocate for respondent No.1 next relied upon a decision of this Court in the matter of ' Natvarlal U Modi Vs. Ahmedabad Dist. Co-op Milk Producers Union Ltd., reported in 2005 (1) GLH 33' wherein even a person with a designation of ' Manager' is held to be a 'workman'.
5.8 Learned Advocate for respondent No.1 next relied upon a decision of the Hon'ble Apex Court in the matter of ' C Gupta Vs. Glaxo-Smithkline Pharmaceuticals Ltd., reported in (2007) 7 SCC 171' wherein the Hon'ble Apex Court was pleased to hold that, 'even if the nomenclature held by a person is 'Industrial Relations Executive' he can yet be a 'workman'.
5.9 In substance the submission of the learned Advocate for respondent No.1 is that mere nomenclature is not a decisive factor. What is required to be taken into consideration for deciding the question whether a person is a 'workman' or not is the 'nature of work'.
5.10 There cannot be and in fact there is none, dispute about the aforesaid proposition of law.
6. In light of the aforesaid submissions what falls for consideration is as to whether in the facts and circumstances of the case on hand, a person who is given a status of 'protected workman' by the authority fall within the definition of the term 'workman'.
6.1 This Court is of the considered opinion that a person who obtains and enjoys the benefits flowing from 'salary revision scheme' who knowing very well the contents of the scheme applied for the grant of benefits of that scheme (Page No.29 - application for salary revision scheme), cannot be allowed to claim that he is a 'workman'. This person was having the designation of 'Assistant Fire Officer' in the year 1971 but as discussed herein above, mere nomenclature is not a decisive factor. But then what is weighing with the Court is that it was specifically mentioned in the scheme that the same is meant for the 'permanent supervisors' working in S4-S1 categories. It was further provided in the 'eligibility' clause of the scheme that, ' the persons who are mainly working and intending to work in supervisory capacity, either by nature of duties, attached to the office or by reason of the powers vested in him/her, functions mainly of a managerial nature .
(emphasis supplied)
7. What is important is that the scheme did make it clear that the same is meant only for the persons who ware working as 'supervisors' and performing 'managerial functions' and those who are doing mainly the 'supervisory and administrative work'. That being so, the person concerned (Hothibha D Jam) applied for the benefit of that scheme. To allow such person to 'blow hot and cold' and to allow him to obtain a status of 'protected workman' will amount to permitting him to do mockery of justice. That cannot be allowed and this Court is of the opinion that once the establishment has placed the fact of 'salary revision scheme' and the fact of concerned person having applied for the benefits of the said scheme and the fact that he has in fact obtained benefits since 2007, the person concerned could not have been granted status of a 'protected workman'.
8. Nowhere it is pointed out as to why Union - respondent No.1 herein is insisting on this workman alone when the list given by the Union is consisting of not one or two but as many as 12 employees for whom the status of 'protected workman' was asked for. Only because, he happens to be a 'Vice President' of the Union, he seems to be hijacking the Union and getting his name listed on the top of the list as is clear from Annexure - B.
9. Be that as it may, the Court is not concerned with this later part of his conduct. It is for the Union and its members to decide as to whether he is fit to be continued as 'Vice President'. When question comes of considering the legality and validity of an order passed by the authority, if this Court is of the opinion that the person concerned has himself claimed to be a person outside the purview of the term 'workman', he can definitely not be allowed to claim the status of 'protected workman'.
10. In light of the aforesaid discussion, the petition deserves to be allowed and is accordingly allowed. The impugned order dated 04/08/2011 passed by the Conciliation Officer and Assistant Commissioner of Labour, Jamnagar in 'Protected Workman Conciliation Case No.8 of 2010' is quashed and set aside.
10.1 Rule is made absolute. Taking into consideration the nature of the question involved in the matter, the Court deems it proper not to pass any order of cost.
(RAVI R TRIPATHI, J.) sompura Top