Bombay High Court
Everest Advertising Pvt. Ltd. vs Pratik C. Khandhadiya And Ors. on 17 March, 1999
Equivalent citations: [1999(82)FLR115], (1999)IIILLJ1011BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. This Writ Petition under Article 226 of the Constitution of India challenges the order of the 1st Labour Court, Bombay dated September 25, 1998 made in Complaint (ULP) No. 243 of 1991 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called "the Act").
2. The Petitioner is an Advertising Agency. As a part of its work, it carries on the production of Audio-Visuals. The first Respondent was appointed in the employment of the Petitioner by a letter dated December 11, 1987 as an Executive in the Audio-Visuals Department, with effect from January 11, 1988. By an order dated April 30, 1991, the first Respondent was promoted to the position of Group Manager, Audio Visual, with effect from April 1, 1991. Upon his appointment, the monthly emoluments of the first Respondent were suitably revised as indicated in the said letter. It may be mentioned here that in the Audio Visual Department, as Group Manager, the first Respondent was required to oversee the work of Senior Film Executive, Audio Visual Assistant, Billing Executive and Stenographers. The services of the first Respondent were terminated with effect from September 2, 1991. The first Respondent gave an Advocate's notice on September 9, 1991 contending that the termination of his services was illegal and called upon the Petitioner to reinstate him in service with full back wages and continuity of service. By its Advocate's reply dated September 25, 1991, the Petitioner suitably replied the said notice and declined to accede to the demand.
3. The first Respondent moved Complaint (ULP) No. 243 of 1991 before the Labour Court invoking Items 1(a), 1(b), 1(d) and 1(f) of Schedule IV of the Act. The thrust of the case made out in the Complaint was that while the first Respondent was working in the Audio Visual Department, he had to carry out physical work as Technician, Cameraman and Editor for various agencies, in house jobs. He specifically contended that he was doing mainly 'manual and technical work' and had no power of an Executive and administrative nature. For this reason, the first Respondent contended that he was an 'employee' within the meaning of Section 3(5) of the Act read with Section 2(s) of the Industrial Disputes Act, 1947 and, therefore, entitled to protection under labour laws. He alleged that the action of abrupt termination of his service was mala fide and taken as retaliation for a complaint made by him about rifling of his table drawer and taking away of his personal belongings therefrom, including cash amount of Rs. 2,000/- on the night of September 2, 1991. He also alleged that because of the said incident, in order to extract revenge on him, he was served on September 7, 1991 a back-dated letter dated September 2, 1991. It was contended in the Complaint that the order or termination of service was illegal and amounted to unfair labour practices under Items 1(a), 1(b), 1(d), and 1(f) of Schedule IV of the Act. The Petitioner appeared before the Labour Court and contested the case. In a nutshell,' it was the case of the Petitioner that on and from April 1, 1991 the first Respondent had been promoted to the post of Group Manager of the Audio-Visual Department in a managerial category. The Petitioner contended that the first Respondent was not a 'workman' even when he was working as Senior Manager and, much less so after he was promoted as Group Manager. The Petitioner also denied that the Labour Court had jurisdiction to entertain the Complaint since the first Respondent was not an 'employee' within the meaning of Section 3(5) of the Act. On merits, the Petitioner denied that the termination of the first Respondent's service amounted to an unfair labour practice as alleged and prayed for dismissal of the Complaint.
4. The Labour Court tried the Complaint and recorded elaborate evidence lead by the parties. By its impugned order dated September 25, 1998, held that the Petitioner had, engaged in unfair labour practice under items a(a), (b) and (d) of Schedule IV of the Act and directed reinstatement of the first Respondent with full back wages and continuity of service on the post which he was occupying prior to April 1, 1991 and on the wages drawn prior to April 1, 1991. Being aggrieved thereby, the Petitioner is before this Court.
5. Mr. Cama, learned Counsel appearing for the Petitioner, straight away drew my attention to the unmistakable findings of the Labour Court made in paragraphs 11 and 12 of the impugned order. After considering voluminous documentary evidence which dealt with the nature of work entrusted to the first Respondent, the Labour Court came to the conclusion that the initial lines and approving of several documents by the first Respondent indicated that the first Respondent was entrusted with supervisory powers and that he was exercising supervisory powers after April 1, 1991 i.e. after his promotion as Group Manager in Audio-Visual Department. The Labour Court, however, took the view that the documents signed and initialled by the first Respondent which pertained to the period prior to April 1, 1991 showed that he was performing duties which would fall within the ambit of Section 2(s) of the Industrial Disputes Act, 1947; that problems arose between the parties after April 1, 1991 after promotion of the first Respondent as a Group Manager. The Labour Court then took the view that if such things are allowed, then it would be easy for an employer to promote a workman to a higher post by giving him work of that post for a few months and thereafter abruptly terminated his services and contend that, on the date of termination of his service, the workman was not covered by the provisions of Section 2(s) of the Industrial Disputes Act, 1947. On this reasoning, the Labour Court set aside the order of termination served on the first Respondent and directed reinstatement of the first Respondent in the post held by him and salary drawn by him prior to April 1, 1991.
6. Mr. Cama contended that, however liberal the proceedings for adjudicating claims of workman under the labour laws are, the basic rules of pleadings must apply even to such proceedings. He strongly relied on the following observations of the Supreme Court in the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Anr., (1979-II-LLJ-194)(SC):
"A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Pvt.) Ltd. v. Industrial Tribunal (1967-II-LLJ-677)(Punj) at p. 680, commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if, there is no pleading there is no question of proving something which is not pleaded. This is very elementary."
The contention of the learned Counsel is correct. There is no doubt that even in proceedings under labour statutes, though certain amount of latitude may be shown in construing pleadings, pleadings determine the conduct of the trial. When we peruse the pleadings on record, we see that it was nowhere the case of the first Respondent that the promotion granted to him on April 1, 1991 was illegal or mala fide. On the other hand, his contention throughout appears to be that he was working as a manual and/or technical person, and therefore, he was covered by the provisions of Section 2(s) of the Industrial Disputes Act, 1947 and Section 3(5) of the Act. One can sympathise with the dilemma with which the first Respondent was faced. If he had honestly admitted that on and after April 1, 1991 he had ceased to be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, the Compliant itself would have been dismissed as without jurisdiction. In order to get over this difficulty, he resorted to the subterfuge of alleging that all along he had continued as manual and/or technical workman. This contention of the first Respondent has been categorically rejected by the Labour Court, and, rightly so, considering the voluminous evidence, both documentary and oral. Though Mr. Ganguli, learned Counsel appearing for the first Respondent, contends that the Labour Court has made an erroneous finding of fact with regard to the nature of work of the first Respondent and that if I reappreciated the evidence, it would demonstrate that the first Respondent was not a workman. I decline to do so. It is not the function of this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, to sit in appeal over findings of facts. At any rate, it cannot be done on the first Respondent's plea. Nonetheless, in order to satisfy my judicial conscience, I did scrutinise a few of the documents and I find that in each one of those documents the first Respondent's signatures/initials are borne describing him as 'Group Manager'. The contention of Mr. Ganguli that the first Respondent was never promoted to the post of Group Manager has, therefore, no basis and needs to be rejected. One fails to understand why the first Respondent subscribed his signatures/initials to the several documents which described him as 'Group Manager', Audio Visual, if he was not holding that post. Taking into consideration the totality of the circumstances, the Labour Court's finding that, with effect from April 1, 1991, the first Respondent was promoted to the post of Group Manager, Audio Visual, is correct and is liable to be upheld.
7. Turning next to the question as to what exactly was the work content of the post of Group Manger, the Labour Court, after careful appreciation of mind, has recorded a clear finding that, as Group Manager from April 1, 1991 the first Respondent was not carrying out duties which would fall within the ambit of the duties of a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Having perused the record and heard the learned Counsel, I am not persuaded to take any different view of the matter, nor is it my function in exercise of writ jurisdiction.
8. There is one more question which needs to be considered. Having arrived at the conclusion that on and from April 1, 1991 the first Respondent was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 read with Section 3(5) of the Act, was the Labour Court justified in directing reinstatement on the basis that, at some point in his career albeit a couple of months prior to the date of his termination of his service, the first Respondent was a 'workman'. In my view, it was wholly impermissible for the Labour Court to do. I repeatedly asked Mr. Ganguli as to what was the cause of action pleaded in the Compliant. With the help of the learned Counsel, I perused the Complaint and I find that it is not contended that the cause of action for the Complaint was the promotion effected with effect from April 1, 1991. In fact, if this was so, then the Labour Court could not have entertained jurisdiction under Item 1 of Schedule IV of the Act, Mr. Ganguli was, therefore, constrained to contend that the cause of action was the termination of service with effect from September 2, 1991, but that it included within its ambit what had been done earlier by the employer as a necessary prelude. I am afraid it is not permissible to raise such new contentions in the High Court, when they were not even whispered before the trial Court. Herein again, the judgment of the Supreme Court in Shankar (supra) appears to conclude the matter.
9. Mr. Cama sought reliance on the judgment of a learned Single Judge of this Court in The Premier Automobiles Ltd. v. The Premier Automobiles Employees' Union, (1994-III-LLJ(Suppl.)-1048). In my view, this judgment is apposite and virtually forecloses the contention urged by Mr. Ganguli, which appears to have appealed to the trial Court. In Premier Automobiles (supra) this Court pointed out that whatever be the nature or character of employment prior to the date of termination of service, it is the character of employment as on the date of termination of service that determines the jurisdiction of the Tribunal. I respectfully concur with the view expressed therein. Applying this law to the facts of the present case, I am of the view that it was the character of employment of the first Respondent as on September 2, 1991 which would govern the issue of jurisdiction of the Labour Court and not what happened prior thereto. The Labour Court has held that from April 1, 1991 and upto the date of termination of service on September 2, 1991, the first Respondent was not a "workman" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Hence, the Labour Court had no jurisdiction to entertain the first Respondent's Complaint. Complaint (ULP) No. 243 of 1991 filed by the first Respondent before the Labour Court at Bombay was therefore, liable to be dismissed.
10. In these circumstances, the Writ Petition is allowed. The impugned order of the Labour Court dated September 25, 1998 made in Complaint (ULP) No. 243 of 1991, is hereby quashed and set aside and the Complaint is dismissed.
11. The amount of Rs. 3,00,000/- (Rupees Three lakhs only) deposited by the Petitioner, if held in a security, shall be realised, but actual disbursement of money not to be made for a period of one month from today.
12. Rule accordingly made absolute. No order as to costs.