Karnataka High Court
L M Glassfiber India Pvt. Ltd., vs L M Glass Fibre General Employees Union on 9 March, 2009
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH comm? or KARHATAKA AT "~ _
DATED mxs 'rm: 913 an or _ F' ' = H
PRE,£Em5'T"' "
THE I-1oN*n1..I-: Mr. JUSTICE 1.§Am~.~.p
THE Hon-am. mt. .:::s?£*:s:%E».._1¢.A1iAr3I>4e.'§
wnrr APPEAL 2&9 593$}? 1;.-__y
BETWEEN:
L M GLASS FIBER i'ND£A W1r.LTD_ 4. ;. V
PLOT NO.6£'& _
KASABAINDQSTRJAL ARE 'a
HOSAKGTE-if-.56*2
NOW EjEPRESE;'{TED?.BY.1'fS
ASSIS'I'AN'I--' MAN'm'31:¢R -
P1,ANT-----H.Ie--. 85 A3M15:~.._ APPELLANT
-_ (By Sims {'3 PRA$i{AKAR, ADV.)
AND}: " _ .__ '
" } " ' 33.; GLASS FI1§.§E GENERAL EMPLOYEES UNION
521,0?' :s:_c>.6_: AND 52, KASABA INDUSTRIAL
TAR-SA}, Pff39é§(OTE 562 1:4,
' = REPRESENTED BY ITS GENERAL
s5:c:Ieiag£eY,sR1.c.1v:. PRASANNA
= AGED 'ABOUT 29 YEARS.
.2 T%iE ASSiS'I'AN'i' LABOUR COMMESSIONER &
V " CONCILIATION OFFECER,
BANGALORE DIVISIGN III,
KARMIKA BHAVAN,
BANNERGHNITA RGAD,
BANGALORE 29. RESPONDENZS
{By Sri T S ANANTHARAM, ABV. FOR R1
Sfi.H.M.MAN G.A. FOR R2}
WRET APPEAL FILED U] S 4 OF' THE KARNATAKR--j§*¥I[GH
COURT ACT PRAYHVG TO SET ASIDE THE ORDER..~PA;S$Ei}V.j'
THE WRIT PE'I'i'l'ION 930.1931/2008 DATED 0?/03/__2z'.}O8A.j _T .
'1'HiS WRIT APPEAL coming on .:Tj91e*i5A*:$:N£§=" '*~
aueemsm, was my GOPALA eo:w1:)g.-«:1: '1)wV}'::REp'--?rHE--V'
FOLLOWING.
The correctness ref t11eVAVorV£Aiet A Single
Judge dated 7.3.20o3'e "Wi?'.'V:i931/08(L~RES),
wherein the . ed the writ
. petition dated 21.1.2008
impuge ' second respondent
herein 'at" 13* respendent- recognized Trade _V that two workmen i.e. "é;;r1s'i-...«{3.Nax'asim}1amurthy come under is challenged in this appeal unging
2.___A is no need for us to advert: to the various this judmaent leading to the order of the learned ' Judge as he has extensively referred to the same in, £116 impugxed order. V
3. It is the case of appellant that it is a private limited company registered under the provisionsjxfhe Companies Act, 1956 and is manufacture of Blades and Wind ' ., engaged 400 employees in its':
Respondent-2 has passed. the' 1 op impugned in the writ petzitioxi; it heenwheid that the concerned not erorlwmen Within the meaning ; dtdhe Industrial Disputes Act and therefore, they ._ -be declared as 'protected worlcznen? factory, which order is quashed, t.".1e' single judge by passing the om-
been urged by the learned Senior the learned Single Judge has erred in with the detailed speaking order of the respondent, which is fully supported by 'd '"docun1entary evidence produced by the Appeilant before him. E-'urther, it is contended that virtually the learned Single Judge has re--Written the order afier fully re- V appreciating the documentary evidence on which is totally impermissible in exercise Qf jurisdiction of this Court. It is well "
law that this Court while exer:eisir;g&.. .: under Articles 226 & 227 or' Cerietjtuifiezg V . normally this womgi: te the evidence and reach 3"'-.r5Iifferer1gtvv<$e1?j1e1:t1s;ion ether than the fact findjng.g§uthefii:jfl'pifleee passed by the autklqiitg by any legal evide11_oe..._ :' " V:'fiV11diI1g and reasons on "issue that would arise for eonsidereifion Counsel appearing on behalf ' " company submits that the second reéponaeiitebeeag fact finding authority, on the basis of ma£e1tiei«:_e{ridence produced before him efiirxg nature V' %e.jj~§rjob, which was being performed by the two concerned " xiéerlgtnen referred to supra were working as workmen prior to their premotion as 'Team Leaders' is extensively extracted by the second rwpondent in the order \/ impugned in the writ petition and recorded a fact holding that they are not workmen A Section 2(5) for claiming the right of K V' in the application filed by the ._ respondent. The prayer of "'l'i*ade V union was rejected by.» a finding of fact on of material evidence on that the said by their self declafafioii of career move in Iespece .& " of * hereunder: Q lmded all p}ant __engii1eering works/and maehineries _V V' .xjs%if,I'1out being designated, preferably * wagons, pneaumtic toois eta, TV 2. I have loaded process muipment applicators preventive maintenance and break"
6. Another Ex.M5 was produced before the Tribunal in respect of Narasimhamnrthy, in the last column of his self declaration form, it is written thus:
\/ "Leader in C 85 G of blades. _ Has the capability of leading the_;~f:'~ ' team in other section with 4' training."
2? . With reference to the faete; centended by the learned v&'$_e*mer V2co1'i11sVel= (Sf > the Company that the feet by the second respondent .o1«r1egf' him has been disturbed by the-;-- exercim of his judicial and 227 of the the material evidence .._e'"n, ree d 'jurisdiction of the learned Sing§e" ' petition proceedings at the "me fifet respondent has the finding of fact A on the contentious point that arose for . '~__'$¥ hiS""eo11eidef'ation and held the concerned workmen are _ .. , '; "eza1f1cIii"et1" as per the definition of Section 2(5) of the Act though prima facie they belong to the T ""Si1pervi.eo1y cadre of the Company and therefore that finding is erroneous in law. Tlxerefore, setting aside tlm ifiayuged order by the leamw Single Judge is vitiated in law. Hence, he has requested this Court that; the erder of learned Single Judge is liable to be and restore the order of second re5P0I1dent. 4." ~
8. Another golmd of attaclgef the 'A V' is that, the ieamed Single Judge "is _ writ jurisdiction by him 226 of Constitution of India, he 'roum mat: is vitiated on account V%eit1ier;* reasoning or error in law :.ofi:1er tfie petifian, he should " and granted the relief ta the instead of that me oomd have back to the second V. 1*6$I"§3!n§1en: fo'r* reconsideration. In exercise of his 'si;ps;v:scry:eee'e§eux1sd1ceon, the learned single judge hm order and conferred the status of fivorianen" by deciaring that the maimed A ":Lf"f$tefi;men belong to workmen category assunczmg the " jurisdiction of the second respondent which is beyond the jurisdiction of the learned Single Judge in the writ mtition proceedings. Therefore, he has \m/ requested this Court to set aside the impugned allowing this writ appeal.
9. F'11r!:her the learned Senior T i 'A our attention to the voIuminous:=.§Iec111§§ie:fit${ the workmen chart of the ;
the finding of fact recerded in his order to show perfomzted by the coneemecl'. " .pm1netim1 is supeivisory... __ ' contended that the an appliswtien to the 'eecond respondent to confer the statue under Section 33(4) of 62 of Karnataka Industrial 'I}iepute4'Ru.z1ee__ upon them, in doing so by the learned %s:§:g1e 'the impugned order, has erred in law as he assumed the ougtm jm-isdiction of me second V' * and ganted the relief to the mncerned ' fizorlmaen.
10. Sri T.S.Ananatharam, learned. eounsel appearing on beha}:f of Trade U on sought to justify the findings and reasons recorded by the learned Single Judge in the impugned order by placing strong upon the earlier order passed by seoend who has conferred the status of _ for the years 2006-07 and question by the Managexnent befor_e*this e 17393/2006 as per writ petition 'was dismissedin for which the \VOI'k1}16I1 were respondent as lied However, liberty was given the all the contentions in the eppr_epriate' The Trade Union had V. the Menegement in the application to declare as protected workmen in their including thwe two worlnnen by its letter 5.3.2007 for the year 2oo7-08 and had also 'infoemed the Assistant Labour Commissioner on
-»-6.3.2007. In this regard, representation was aiso made V by the Union on 28.3.2007 to the Assistant Labour Commissioner to intervene in the matter and declare 'V the ofiice beavers including the twe concerned Worlmen as protected worlmen for the year 2007~--0_8,_ V. regard a petition was also filed. by the K before the Asst.Labour Comm;1ssie ner'*<._To11 Several requests were made 19 0 P and Q. However, on f'AseeLgbom Commissioner of five workmen as 'pxjetectegi order was called in quesmm WP 12513407. This Vto the Aw.Labom~ application of the Trade union cIa1m' as to whether the two w co:1(ie1'niedVV emjfloyees were Worlanen in terms of the 2(5) of the II) Act as on the date of my wing and they are entitled to be declared as worlmen" for the purpose of Secttiozx 33 of % '~ffI«._.D.Act.
1 1. In pursuant to the order of this Ceurt referred to supra, both the workmen @136 representation em 20%"
September 2007 to the Asst.Labour Commissioner with V ii a request to declare them as 'protected WOI'k1Il6'I1' L'5!_l_d(':I' Section 33(4) of I.D.Act r/W Rule 52 of u However, the Asst.Labo1.1r Commimioner xi" _ rejected their request by his Against which order the 'I'ra.de Ufliofflias WP 17284/O7 which came be of this V Court on 2'7. 1 1.2007 Ofioer to dispose of the with law after pmvidinijg bomi-.he parties. Whfle disposing 1:03;' this Court has obseréfed in that the Conciliation Officor has not taken by the Union in its datod"«v1.Q..,5i.2007 and also the documents support of the case. Aiter disposal of Union made one more repxotation on T 1 1. along with necessary documents. "12. Therefore, it is contended by the learned ' oounsel on behalf of the Trade Union that not conferring 'the status of "protected worimm" to the above concerned workmen on the application submitted on \\\/ 5.3.2007 by the Trade Union to him was the rc:~aa§n_ 'i'ar it to approach again the second submitting a petition on 6.3.200'? °' 2 confer the status of protected wfirlcnfieri the limits of provisions "
(4) of Sec.33 of by the Appellant before the they are not "protectegl cadre is an them must be th§3' in the mind of 1ea1'x1e;:i'.Si1i_gIt: quashed the order of the ganted status of protected $9 workmen in the impugxed it is contended that the learned Singb b.a§ interfered with the order of second respoizdént and held that except the nomenclature of leader' desiglation given to the concerned ,_%§*orI::men, it is neither the mafirial post nor was supervisory post, nor these workmen were discharging thé functions as Supervisors or Managers in the \V\/ appellanfs Cempany. Whiie conferring the stati3e.ef "protected wormen" by the Asst. Labour _ under the provisions of LI). Act, itjs the " v. which is being entrusted and concerned workmen is the"Vx_'elevazVit-.. feil v for consideration of the resolve the dispute bettveen the worlmen, as to whether thefepnm1'x';edf; warkmen or belong to of the matter has net by the second Court in the case of Arkal fig: 2 'Rae:.".~'t'v. Ciba Geigy of India Ltd., (II) LLJ 401 at paras 6, 14
-is rightly referred to by the learned Shlgle Jugige 'j_ the case of the Trade Unien and the order impugned in the writ petition. A "it: he submits that the learned Single Judge after h epplication of mind with reference to the rival leyl contentions urged in the writ petition and rightly held that the finding of fact zvecordm by the second \\\/ respondent is erroneous and therefore he has the same by assigfing vaiid reasons. The Judge after satisfying himself to "the facts' " "
and Law, he has held that T meg or 1'ei'et;."i»;-:31' recorded holding that the"iVt.'1_vi;x<1Ving" "of: by e second respondent in his orgieren the eontenfigrhs issue is erroneous in law ae apparent on the face of V power is exercised by' to the COI1C€I'IlCd worlee1c'n;v review power and quashed fije' orfier, which is in conformity with the ;1udgme:1tof' 'S§1p1eme Court reported in Tam Uni.-m.«~or India reported in 1994 see (6) he submits that the impugxed order net.ee1E*5for interference by this Court in exerciw of its jurisdiction and power.
13. Further he has our attention to the . K __oifier of dismissal passed by the employer, which fact is referred by the learned Single Judge at para-28 of the impugled order stating that the appellant was not \»~/ interested in conferring the status of workman" on the concerned worimlen, thefe --.T'I"1"t~.-n:. need for the company/empIeyer_1:e K " 'V proceedings aga1n' st them under:'t31e'_'_' Orders of the company whieh:@iefmee'
14. The very far; or dm;.5ipmaq pmceedings under against the coneemegl clause 2(e) of the the orders of dismieeal" for the alleged mismedifiefi :'i?.;1(.1ica.te that the disciplinary under the Certified Standing V. xitheeeneemed workmen. Therefore, the "by the employer before the second they are not wormen in terms of the of the worman L1/s 2(5) of the I.D.Act is not 'V'-.Aon1j§{.'.-illceneistent with their stand but also it is an affer~ _,v_t§1ought to see that tine status of "protected wormea"
should not be conferned upon the concerned workmen. The above relevant aspect of the wee is not taken into \w consideration by the second respondent at the. determining the dispute as to whether,' WOFKIBCH are workmen in t€I'IL13'"'Gf. of V workman under the I.D.Act conferring the status of " L' is one more additional }weighed in the mind of the order impugned qqasffifxg eespondent and held that are worlmlen by . .
1:5' to the above rival mm contentien?.§":1j'ged'-- of the parties, the folmwing . ~-poiniais Wotfld fer our eensideration:
K "" i~..__iWhefl1er the findings and ' masons recorded by the lcamw ~_.g'3ing1e Judge in his order in V setting aside the thxding of fast recordw by the second Iespondent in his order is vitiated either on acmunt of erroneous reasoning or error in law?
2. Whether the learned Single Judge having quashed the order impugned in the writ petition has got grower to modify 'W the order of conferring the status of protected workmen? W " ' "
3. 'What order?"
16. The above said poms ;
answered in favour of the V£3flj[1CCI'Al"i&'3_( l"* "
following reasons.
It is an "Jwas an application by the the second Iwespondentéfifj; of workmen" to the of Section 33 of LI). Act If, have been performing the was no reason for the employee of protected 'Workman for a2()O464f3'j_', which period they were _disTohaiurm'f1g " of job. This aspect of the E':a_i&-zitter considered by the second 'reepexfiept xxéfxjie exa-mining the tmtenable defence V 'thefAppe11ant in its objection statement stating workmen are not Worlwen withm the of See.2(s) of the II) Act, when the first feepondent had prayed the appeliant and second \/ respondent to confer status of "protected wurkmetl"
under Sec.33(4) of I.D.Act read with Rule 62 of the Rules. The learned single Judge after eareful the various facts regarding nature of work the concerned workmen as whetb.e;f if _-- " "
labour work etc., as submitted m' ' learned counsel for empiieyer ; workmen, employment; is end then there is no statutolyvétiiigaiiotg' of employer to initiate ._ flags agam st these two eoncefned _the certified standmg' orders of the V really in supervisory cadre. V. '_ Theee cifcumetances must have weighed in the mm ___sing1e judge to reject the untenable .. by the employer before the second that they am not eligible to be conferred K V' V' wifi; the status of "protected werlmen" fer the purpose _ "'o§i"'See.33(3) 8; (4) of the Industrial Disputes Act. In 0131* the learned Single Judge has rightly set aside the order of the second respondent keeping in View the powers conferred upon him as per Judgment of the W Apex Court in the case of Tata Cellular vs India referred supra.
17. Further, the learned S52: :2. V referred to the decision of ._ 1935 (II) LLJ 401 in the Ax;kaI.G¢Jvi' _ nd5 VRaj Ran k % vs. Ciba Geigy of Imiiga Ltei".", i11'V*Asu;.i>pox't of contention that held to be a workman. considering the rival f th;at case has made obscrsfét ti6n;V.. :§§fi&§'fV" tb fsaid observation, the 1eamefi'*%3§1:gie the same in his order 18; 1i1.éview 6f"'é§bove, We have to answa the that Union and against the employer. In so fai*~-as point is concerned, having qaashed the r;Iw;tier..};2§,A*':'rejecting the claim made by the Trasde Union to the status of protected workmen to the twe
-»v.*si;orkman keeping ix} View the earlier order of remand passed by this Court ten the second respondent with a dimction to reconsider the matter afresh awin, which is M/ 20 not done by him and therefere the learned has rightly held that these two workmen Further, the order of the leamed in 'A V' conformity with the decision of _ in AIR 1980 sc 1896 in sf' es 1 . "Fhe ._ef_ submission, V? massive ~it ," is jthe traditional ' '-liji1itatfi.bn. fw'oveii'"" ' around high __ -persgative' Without examixfmg 4_the.c0I'i*»3¢i31§;"es of this limitation, we '---_disregafd it "'-because while Art.226 has beeninspired by the royal writs its sweep' and scope exceed hide- lgzoundfiritish processes of yore. We what we are because our ~ C{>_ri_:3tit1xtion framers have felt the " for a pervasive reserve power . is the higher judiciary to right " Wrongs under our conditions. Heritage mnnot hamstfmg nor custom constrict whme the language used is wisely wide. The British paradiws are not necessarily models in the Infian Republic. 80 broad are the expressive expressions desigledly used in Article '.226 that any wder which should have been made by +1----. 14-wwvv-on .--u+'l-.---o--'-4-v -~.-w-1.3 In- -av--.-'I... LKIC IUWUI' &:tLlL1lUl'11._y UULIILI DU mama 'WV by the High Court. The very width of the power and the disinciination to meddle, except Where gross injustice or fatal illmality and the like are present, inhibit the exercise but do not abolish the power." T
19. In this View of the matter, _ the learned Sr. Counsel that has erred in quashing and modifying the same is Fi1~rt. cezgtention urged by the forviflitiixe period 2007-(jsiiii i 30.4.2003 therefore V the status of protectw workmen net' valid and cannot be accepted Sec.33(5) of I.I).Act, which reads , , "See.33. Condifions of service em, to remain unchanged under eertain eireumstarw during pendency of proceedings. Sub Sec. (5) Where an employer makes an appiicatiosn to a conciliation oflioer, Board (an arbitrator, a Labour Court, 'Tribunal or Natiena} 'I'ribuna1 under the proviso to sub-sectien \u/ 22 taken by him, the authority concerned shall, without delay,. hear such application and pass,',H__ (within a period of th;*c;e»_montr1s*~ ' from the date of zeccipt bf stxch _ a.ppiication),_ such oré;icr' ' Q relation thereto as_itdec1ns.fit . ' " "
Provided tl1£it_ °1':!.$ proceedings. befoznf such authority 'shall -4 on mm gmmmfitmmgmfiaqmmm mxdfiflinflfismmfiflfifilhm exnizfed wi?;hout~ s:__1chf {)_IUC€;'3fHI1gS supra, We do not find any intcxfere with the order of appeal is devoid of merit.
A dismissed. _ Sd/-= Judge Sdflé -g =* ;=,; Iudgé \