Calcutta High Court
Subir Guha Thakurta vs Johnson And Johnson Ltd. And Ors. on 29 March, 2006
Equivalent citations: 2006(4)CHN459, (2006)3LLJ408CAL
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose, Tapan Kumar Dutt
JUDGMENT Pinaki Chandra Ghose, J.
1. This appeal is arising out of an order dated January 6, 2005, whereby the Hon'ble First Court was pleased to set aside the order and/or judgment passed by the learned Tribunal.
2. Facts of the case briefly are as follows:
Appellant was appointed by the respondent-company as a Medical Service Representative (hereinafter referred to as MSR) on probation at a monthly salary of Rs. 250/-. On June 27, 1973. Such appointment was confirmed by the company (respondent No. 1) and subsequent thereto appellant was promoted as Field Sales Officer on or about December 24, 1981 and thereafter on January 1, 1986 promoted to the post of Sales Trainee Officer. On or about January 1, 1988 he was promoted to the post of District Manager in the Junior Management Staff Cadre. Subsequent thereto, he was promoted to the post of Zonal Manager with effect from October 1, 1990. It further appears that on April 1, 1994 respondent by virtue of a Scheme of Amalgamation sanctioned by the Bombay High Court amalgamated with a company, which is a subsidiary company Ethinor Limited and the appellant became the employee of the respondent-company with effect from April 1, 1994 and thereafter he was acting as the District Manager and Zonal Manager of the respondent-company.
3. In or about June, 1996 appellant had submitted reports of working with certain MSRs and on that account claimed reimbursement of fictitious expenses. On July 9, 1996 a letter was issued by the then Sales Manager of the respondent A. K. Sikdar and the appellant did not reply to the same. Thereafter, on August 23, 1996 the then Corporate Employees' Relation Manager wrote a letter to the appellant asking him to appear before him on August 30, 1996 at Bombay Office for his explanation to the charge made against him. On August 30, 1996 appellant duly appeared and did not make any attempt to refute the charge against him. On September 19, 1996 service of the appellant was terminated with effect from September 19, 1996 after paying him three month salary in lieu of notice as per terms of Contract of Employment.
4. Appellant took recourse to the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) and finally by an order No. 1627-I.R., dated November 24, 1997 Labour Department, Government of West Bengal referred dispute to the Third Industrial Tribunal for adjudication. Appellant duly filed its statement before the learned Tribunal claiming an award directing the respondent-company to reinstate him in service with full back wages and other benefits. The Company (respondent) duly filed its written statement and thereafter, evidences were adduced by the parties before the learned Tribunal and learned Tribunal on August 29, 2003 published the award.
5. The learned Tribunal came to conclusion that Sri Subir Guhathakurta appellant herein, falls within the definition of the workman under Section 2(s) of the said Act and also held that the reference is maintainable in law issues referred before the learned Tribunal are that (a) whether the termination of service of Sri Subir Guhathakurta with effect from September 19, 1996 is justified? and (b) to what relief, if any, is he entitled?
6. It appears that the learned Tribunal after hearing the parties came to the conclusion that the appellant was illegally terminated from service without compliance with the provisions of the said Act. Learned Tribunal also held that the order of termination is unjustified, learned Tribunal further came to the conclusion that Sri Guhathakurta, appellant herein, had been able to establish his case and on the other hand the employer, respondent herein, had failed to discharge its onus that Subir Guhathakurta was working in managerial or supervisory capacity in the company. It is also held that Sri Guhathakurta is entitled to all reliefs claimed and is entitled to be reinstated in service with full back wages and other consequential benefits from the date of termination. The company was directed to reinstate Guhathakurta in service and pay him back wages within 30 days from the date of publication of the award.
7. Subsequent thereto, in pursuance of the provisions of Section 17 of the said Act, Governor was pleased to publish the said award by a Notification dated September 10, 2003.
8. The respondent company filed a writ petition before this Hon'ble Court and by a judgment and/or order dated January 6, 2005 reported in (2005) 3 Cal HN 608 passed by His Lordship AMITAVA LALA, J. His Lordship after hearing the parties came to the conclusion that the judgment and/or order passed by the learned Tribunal cannot be sustained and His Lordship set aside the said order as well as the Notification issued by the Government of West Bengal on September 10, 2003.
9. It is the case of the appellant that the Hon'ble First Court set aside the award without assigning any reasons although the award was set aside on the ground of perversity, In fact, there is no reason given by the Hon'ble First Court on that ground.
10. Question arose before the learned Tribunal that whether the appellant was acting in the managerial cadre or not and the said fact was based on the material available before the learned Tribunal and on such materials and the evidence adduced before the learned Tribunal. The learned Tribunal came to the conclusion that the respondent did not perform his duties in a managerial cadre and further held that the appellant was not authorized to take independent decision. Further the appellant did not act independently or he had control over his subordinates. It is the case of the appellant that the Hon'ble First Court has failed to appreciate those facts and sat on appeal, appraised the evidence afresh and the Hon'ble First Court decided that matter as an appeal.
11. Mr. Arunava Ghose, learned advocate appearing on behalf of the appellant submitted that the company failed to prove its case before the learned Tribunal and no evidence was produced to show that the appellant was performing his duties in a managerial cadre. He further drew our attention to Section 2(s) of the said Act and submitted that the "promotion of sale" cannot be treated as a function under the managerial category. Appellant used to prepare reports, submitted the reports before the authorities, and the same is only for the purpose of 'Promotion of Sale' of the company. According to him onus lies on the respondent company to prove that the appellant does not come within the purview of Section 2(s) of the said Act, but the company has failed to prove its case.
12. It is the obligation on the part of the company to lead evidence to establish the facts pleaded in the pleadings and he relied upon a decision reported in T.H. Mustafa v. M.P. Verghese . He further contended that there could not be an issue without any pleadings Evidence adduced by the parties without supported by a pleading, even if the same is good evidence, the Hon'ble Court should reject the same in the absence of proper pleadings. He also relied upon a decision Anandabazar Patrika v. Workmen . Hence, he submitted that the order so passed by the Hon'ble First Court, should be set aside.
13. On the contrary, Mr. Partha Sarathi Sengupta, learned advocate appearing on behalf of the respondent company submitted that the Hon'ble First Court held that the finding of the Tribunal was perverse and further held that the appellant was not a workman and he cannot come within the meaning of Section 2(s) of the said Act. His Lordship set aside the said award passed by the Tribunal on the ground of perversity. He concluded that the judgment of the Hon'ble First Court does not suffer from any error or infirmity.
14. He submitted that the findings of the learned Tribunal that Subir was a workman, is perverse, since such a finding could not be arrived at by any reasonable authority on the basis of the evidence adduced by the parties learned Tribunal completely misconstrued the facts and published the award relying upon a decision of the Hon'ble Apex Court reported in S.K. Verma v. Mahesh Chandra which was held to be a decision per incurium by the Constitutional Bench of the Hon'ble Supreme Court in a case reported in H.R. Adyanthaya v. Sandoz (India) Ltd. . Furthermore, he relied on Mgmt. of Sonepat Co-operative Sugar Mills Ltd. v. Ajit Singh reported in 2005-I-LLJ-1122 (SC) and submitted that the said S. K. Verma's case was also rendered as per incurium in view of the said decision of the Hon'ble Supreme Court. The learned Tribunal relied on the said decision which is not a good law, and came to the conclusion. Therefore, the learned Tribunal erred in law. He further relied upon a decision reported in Mukesh K. Tripathy v. Senior Divisional Manager LIC and submitted that the Hon'ble Supreme Court held in the said decision that though the S. K. Verma's case had not been expressly overruled in H.R. Adyanthaya's case, but once the said decision had been rendered per incurium, it cannot be said to have laid down a good law. He also relied upon a decision reported in Collector of Customs v. Biswa Nath Mukherjee 1974 CLJ 251 and contended that the order of the learned Tribunal suffered from perversity and therefore, it is not sustainable under the eyes of law. He contended that the Writ Court is entitled to weigh and appraise the evidence to find out if the facts existed to enable the Tribunal to assume jurisdiction in the matter and if the Writ Court finds that the Tribunal had come to a wrong decision on the evidence adduced by the parties, the Writ Court should interfere with the conclusions of the Tribunal and he relied upon the decisions reported in Baldev Singh v. Indian Explosive Ltd. 76 CWN 342, Raza Textiles Ltd., Rampur v. Income Tax Officer (supra) where the Hon'ble Supreme Court held that whether the employee concerned is a workman or not has to be decided by the learned Tribunal and that issue being a jurisdictional one, the findings of the Labour Court in that behalf would be subject to judicial review.
15. He further contended that the appellant was not a workman and cannot come within the purview of Section 2(s) of the said Act. The appellant joined as a Medical Representative in the year 1972 and thereafter he was promoted to the post of Zonal Manager in the year 1990. As a Zonal Manager, Subir used to draw Rs. 10,000/- as monthly emolument comprising Rs. 7200/- as salary and Rs. 2800/- as House Rent Allowance. He used to verify and countersign Field Force Expense Reports submitted by MSRs (appearing at page 89 of Part-I of the Paper Book). The same is also admitted in Subir's deposition before the Tribunal (which is appearing at pages 32-49 of Part-II of Paper Book) Subir used to assess the performance of the Field Staff (appearing at pages 50-64 of Part-II of the Paper Book). Subir used to prepare Monthly Report regarding sales record of MSRs and used to give suggestions for improving sales of the Company's products (appearing at pages 165-236 of Part-II of the Paper Book). He further drew our attention to the Monthly Report (appearing at page 201 of Part-II of the Paper Book) in respect of the eight MSRs whose names appeared in paragraph 3 of the Written Statement filed on behalf of the company before the Tribunal (page 43 of Part-I of the Paper Book) and therefore, he contended that the contention advanced on behalf of Subir that there is no evidence to show that the said eight MSRs who used to work under Subir is baseless. Subir used to sanction the leave application of the MSRs working under him (which are appearing at pages 237-243 of Part-II of the Paper Book). Subir used to sanction Leave Travel Application of the MSRs working under him (pages 244-249 of Part-II of the Paper Book) Subir used to certify the tour programmes of the MSRs working under him (appearing at pages 250-253 of Part-II of the Paper Book). He also drew our attention to a letter dated May 17, 1996 written by A. Sikdar to Subir requesting him to organize the working area of MSR, P. Basu in Calcutta for 25 days (appearing at page 254 of Part-II of the Paper Book). He also drew our attention to a letter addressed by V. Y. Willinkr to Subir intimating that Subir was to reach Bombay on August 30, 1996 by morning flight and he drew our attention to the said letter (appearing at page 259 of Part-II of the Paper Book), He submitted that the contention advanced on behalf of the appellant that it was the only time he travelled by air is belled by Subir's oral evidence at page 93 of Part-I of the Paper Book where he has deposed that he travelled from Calcutta to Bombay on several occasions by air and the company paid the fare and also arranged accommodation. Mr. Sengupta submitted that the aforesaid facts clearly show that the duties and functions discharged by Subir were of a managerial nature Subir was clearly not a workman within the meaning of Section 2(s) of the said Act.
16. Mr. Sengupta also relied upon a decision reported in S.K. Maini v. Carona Sahu Co. Ltd. pointed out that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employee. Thus it is submitted that Subir's lack of power to appoint or dismiss employees does not per se establish that he was not in the managerial cadre.
17. According to Mr. Sengupta, the Tribunal framed a wrong question, which is reproduced hereunder:
Whether Sri Guhathakurta comes within the definition of workman of the Industrial Disputes Act or whether he was holding the post of Managerial nature?
18. By posing a wrong question learned Tribunal came to a wrong answer Inasmuch as merely by holding (though perversely) that Subir's work was not Managerial it jumped to the conclusion that Subir was a workman without discussion under what category of the definition Subir would come. He submitted that the learned Tribunal misdirected itself in law by posting such a wrong question.
19. He further contended that the learned Tribunal proceeded on the basis that the onus was on the company to prove that Subir was not a workman rather than the onus being on Subir to prove that he was a workman. According to him, this was a wrong approach in law and he relied upon a decision reported in (supra) and submitted that the onus is on the employee to prove that he is a workman.
20. He further submitted that whether Subir was a "workman" or not within the meaning of the said Act involved a jurisdictional fact in the sense that the Tribunal's jurisdiction to entertain the reference and pass an award rested on the finding that Subir was a "workman". Learned Tribunal perversely decided the said question on the basis of the evidence adduced by the parties before it. Hence, the Hon'ble First Court in the exercise of the writ jurisdiction rightly interfered with the Tribunal's award.
21. He further contended that in the course of deciding the aforesaid issue, the Tribunal committed, inter alia, the following errors of law:
(i) Learned Tribunal erroneously proceeded on the basis that the onus of proving that Subir was not a "workman" Was on the company.
(ii) It relied and based its decision on the Supreme Court decision in S.K. Verma's case 1983-11-LLJ-429, which is no longer a good law as it would be evident from the subsequent Supreme Court decisions.
(iii) It addressed a wrong question and arrived at a wrong finding,
(iv) It drew a wrong legal inference from the facts and evidence before it. Thus introducing an error of law in the decision.
(v) The evidence on record, both oral and documentary, beyond any shadow of doubt show that Subir was not a workman, because he did not come under the first part of the definition of workman under Section 2(s) of the said Act and secondly because in any event his job is in the nature of managerial and therefore, he comes under the exclusion Clause of the definition.
22. He further submitted that the appeal should be dismissed since the Hon'ble First Court was justified and right in setting aside the impugned award of the learned Tribunal.
23. After considering the facts and circumstances of this case and after scrutinizing the decisions cited before us on behalf of the parties, it appears to us that in the course of deciding the issue learned Tribunal proceeded on the basis that onus of proving that Subir was not a workman lies on the company. The decision of the learned Tribunal was based on the S.K. Verma's case (supra) which has already been held to be per incurium and not a good law by subsequent Hon'ble Supreme Court's decision. It further appears to us that the learned Tribunal addressed a wrong question and drew a wrong legal inference from the facts and the evidences adduced before it. Therefore, in our opinion introducing an error of law in the decision. We do not have any hesitation to hold that the evidence on record both oral and documentary would show that Subir was not a workman because, he did not come under the first part of the definition of "workman" of Section 2(s) of the said Act and secondly, in any event, his job are purely managerial and supervising in nature and therefore, he comes under the exclusion clause of the said definition and further in law the onus is on the employee to prove that he is a workman which has already been held in a decision reported in 2004-III-LLJ-740 (SC) (supra). Therefore, learned Tribunal was wrong on that question stating that onus lies on the company to prove that he is not a workman. We have also found that in Mgmt. of Sonepat Co-operative Sugar Mills Ltd. v. Ajit Singh (supra) the Hon'ble Supreme Court held that jurisdiction of the Industrial Court to make an award would depend upon a finding whether the concerned employee is a workman or not. When such an issue is raised, the same being a jurisdictional one, the finding of the Labour Court on that ground would be subject to judicial review and therefore, in our opinion, the Hon'ble First Court rightly gone into the matter in connection with the said jurisdictional question and came to the conclusion in the matter.
24. After scrutinizing the facts and the documents placed before us by the parties, we have found that the appellant used to work in the managerial cadre of the company and his duties and functions would only confirm that the nature of his job were of a managerial nature. In our opinion, therefore, he cannot attract Section 2(s) of the said Act and cannot claim himself to be a workman. After analyzing the decisions cited by Mr. Sengupta, learned advocate for the respondent we find that the learned Tribunal wrongly relied on a decision and came to such conclusion. We have also found that there is much substance in the arguments made by Mr. Sengupta and we do not have any hesitation to accept such contention and we hold that the Hon'ble First Court was correct in holding that the order of the learned Tribunal is perverse and we uphold the decision of the Hon'ble First Court and we dismiss this appeal.