Orissa High Court
M/S. Neelachal Ispat Nigam Ltd vs The Presiding Officer on 16 October, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 5534 of 2019
M/s. Neelachal Ispat Nigam Ltd. .... Petitioner
(NINL), Kalinga Nagar Industrial
Complex, Duburi, Dist-Jajpur
-versus-
The Presiding Officer, Industrial .... Opposite Parties
Tribunal, Bhubaneswar and
another
Advocates appears in the case:
For petitioner: Mr. Aditya Mishra, Advocate
For Opp. Parties: Mr. Satyabrata Mohanty, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
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Date of Hearing and Judgment: 16th October, 2023
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ARINDAM SINHA, J.
1. Mr. Mishra, learned advocate appears on behalf of petitioner- management. He submits, impugned is award dated 16 th August, 2018 Page 1 of 13 // 2 // made by the Industrial Tribunal. By it there was direction upon his client to appoint opposite party no.2, widow of an ex-Operative-cum-Senior Technician. Mainly definition provision in section 2(k) of Industrial Disputes Act, 1947 was relied upon in impugned award. This is because though opposite party no.2 did not come under definition of 'workman' in section 2(s), the tribunal held she would come within meaning of phrase 'any person' used in section 2(k). The direction made in impugned award is reproduced below.
"The First Party M/s. Neelachal Ispat and Nigam Ltd. is hereby directed to appoint Smt. Minati Panigrahi, w/o:
Late Simanchal Panigrahi, Ex-Operative-cum-Sr. Technician, in a suitable post within a period of six months from the date of publication of the Award."
2. On query from Court Mr. Mishra submits, the tribunal relied on judgment dated 29th January, 2009 of a Division Bench in the High Court of Delhi, in L.P.A. no.384 of 2008 (Delhi Development Authority v. Sudesh Kumar and Ors.). The Division Bench had relied upon judgment of the Supreme Court in Workmen of Dimakuchi Tea Estate v. Management of Demakuchi Tea Estate reported in AIR 1958 SC 353 as also (1958) 1 LLJ 500. Said Division Bench also relied upon another judgment of the Supreme Court in Kays Constructions Co. (Private) Ltd. v. Its Workmen reported in AIR 1959 SC 208. He W.P.(C) no. 5534 of 2019 Page 2 of 13 // 3 // hands up SCC online print of Demakuchi Tea Estate (supra) and Manupatra print of Kays Construction (supra).
3. Mr. Mishra submits, there can be no parity sought by opposite party no.2 with widows of deceased workmen earlier having got appointment under the resettlement and rehabilitation scheme of the Government. His client had since assumed the management. It did not and does not have a policy for compassionate appointment. Opposite party no.2 was never a workman and hence, there could be no industrial dispute arisen nor referred to the tribunal. It proceeded on irrelevant consideration and its decision directing giving appointment is perverse as not based on any relevant material nor the law.
4. Mr. Mohanty, learned advocate appears on behalf of opposite party no.2. On query from Court regarding provision in the Act of 1947, under which the direction for appointment was made, he submits that the right of employment accrued to his client relates back to the order of reference dated 8th December, 2015. On further query from Court he submits, his client's husband died due to illness while in employment. The terms of employment covered death benefit to the employee. On still further query from Court he submits, his client did not apply under section 17-B on having obtained award for getting appointment. W.P.(C) no. 5534 of 2019 Page 3 of 13
// 4 //
5. In Sudesh Kumar (supra) the High Court of Delhi relied on Dimakuchi Tea Estate (supra). In so doing the Court said in paragraph- 12 that the tribunal had power to have, by impugned therein award, directed appointment on compassionate ground. Paragraph-12 is reproduced below.
"In our opinion, the Tribunal has the power, in the interest of industrial peace, to direct the appointment of a candidate on compassionate basis upon an industrial dispute espoused by the representative Trade Union. We find no merit in the present appeal and the same is hereby dismissed with costs quantified at Rs.25,000/-. The appellant-DDA is directed to implement the award of the Tribunal within a period of four weeks from today."
(emphasis supplied) As such it is necessary for us to try and understand what was said in Dimakuchi Tea Estate (supra). Said judgment of the Supreme Court was by a Bench of three learned Judges. There was the majority opinion of the Chief Justice and another learned Judge, while the third learned Judge gave a dissenting view.
6. Facts in Dimakuchi Tea Estate (supra) were that one Dr. K.P. Banerjee, who had been appointed Assistant Medical Officer (AMO) and was on probation, had his services terminated. On query made by the W.P.(C) no. 5534 of 2019 Page 4 of 13 // 5 // doctor, reason for the termination was supplied. Pursuant to the termination Assam Chah Karmachari Sangha took up the doctor's case of dismissal. Definition of 'workman' underwent amendment in year 1956. The definition as stood prior to the amendment and applied in Dimakuchi Tea Estate (supra) is reproduced below.
"(s) "workman" means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Government."
It will be necessary here to reproduce below section 2(k).
"(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"
In context of above facts and law, there was question raised for answer by the Supreme Court on whether an industrial dispute could be raised and maintained regarding dismissal of the doctor. The terms of reference, given in paragraph-3 of the judgment are reproduced below. W.P.(C) no. 5534 of 2019 Page 5 of 13
// 6 // "(i) whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K.P. Banerjee, A.M.O.?
(ii) If not, is he entitled to reinstatement or any other relief in lieu thereof?"
7. Phrase 'any person' used in definition section 2(k) received consideration by the learned judges. Paragraph-9 from the majority view is reproduced below.
"A little careful consideration will show, however, that the expression "any person" occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be the subject-matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. It is well settled that "the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, W.P.(C) no. 5534 of 2019 Page 6 of 13 // 7 // nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."
(emphasis supplied)
8. The Bench, by the majority view, proceeded to interpret the phrase by taking into consideration provisions in the Act itself for ascertaining its objects. In paragraph-11, result of the exercise was stated. Said paragraph is reproduced below.
"Thus, an examination of the salient provisions of the Act shows that the principal objects of the Act are-
(1) the promotion of measures for securing and preserving amity and good relations between the employer and workmen;
(2) an investigation and settlement of industrial disputes, between employers and employers, employers and workmen, or workmen and workmen, with a right of representation by a registered trade union or federation of trade unions or association of employers or a federation of associations of employers;
(3) prevention of illegal strikes and lock-outs;
(4) relief to workmen in the matter of lay-off and retrenchment;
and (5) collective bargaining.
W.P.(C) no. 5534 of 2019 Page 7 of 13
// 8 // The Act is primarily meant for regulating the relations of employers and workmen-past, present and future. It draws a distinction between 'workmen' as such and the managerial or supervisory staff, and confers benefit on the former only."
(emphasis supplied)
9. Interpretation of phrase 'any person' was given by the majority view as is contained, inter alia, in a passage from paragraph-14, reproduced below.
"14. xxx xxx xxx The reason for the use of the expression "any person" in the definition clause is, however, not far to seek. The word 'workman' as defined in the Act (before the amendments of 1956) included, for the purposes of any proceedings under the Act in relation to an industrial dispute, a workman discharged during the dispute. This definition corresponded to s. 2.(j) of the old Trade Disputes Act, 1929 except that the words "including an apprentice" were inserted and the words "industrial dispute" were substituted for the words "trade dispute". It is worthy of note that in the Trade Disputes Act, 1929, the word 'workman' meant any person employed in any trade or industry to do any skilled or unskilled manual or clerical work for hire or reward. It is clear enough that prior to 1956 when the definition of ' workman' in the Act was further widened to include a person dismissed, discharged or retrenched in connection with, or as a consequence of the dispute or whose dismissal, discharge or retrenchment led to the dispute, a workman who had been discharged earlier and W.P.(C) no. 5534 of 2019 Page 8 of 13 // 9 // not during the dispute was not a workman within the meaning of the Act. If the expression " any person " in the third part of the definition clause were to be strictly equated with 'any workman', then there could be no industrial dispute, prior to 1956, with regard to a workman who had been discharged earlier than the dispute, even though the discharge itself had led to the dispute. That seems to be the reason why the Legislature used the expression 'any person' in the third part of the definition clause so as to put it beyond any doubt that the non-employment of such a dismissed workman was also within the ambit of an industrial dispute. There was a wide gap between a 'workman' and an 'employee' under the definition of the word 'workman' in s. 2 (s) as it stood prior to 1956; all existing workmen were no doubt employees; but all employees were not workmen. The supervisory staff did not come within the definition. The gap has been reduced to some extent by the amendments of 1956; part of the supervisory staff (who draw wages not exceeding five hundred rupees per mensem) and those who were otherwise workmen but were discharged or dismissed earlier have also come within the definition. If and when the gap is completely bridged, workmen will be synonymous with 'employees', whether engaged in any skilled or unskilled manual, supervisory, technical or clerical work, etc. But till the gap is completely obliterated, there is a distinction between workmen and non-workmen and that distinction has an important bearing on the question before us. Limitation no. (3) as formulated by learned counsel for the appellants ignores the distinction altogether and equates 'any person' with any W.P.(C) no. 5534 of 2019 Page 9 of 13 // 10 // employee'-past, present or future: this we do not think is quite correct or consistent with the other provisions of the Act. The Act avowedly gives a restricted meaning to the word 'workman' and almost all the provisions of the Act are intended to confer benefits on that class of persons who generally answer to the description of workmen. xxx xxx xxx"
(emphasis supplied) We have also gone through the dissenting view but are bound by the majority view that prevails and is the declaration of law under article 141 in the Constitution of India.
10. In Kays Construction Co. (supra) the Supreme Court was again confronted with phrase 'any person' in definition section 2(k). Facts of the case were appellant had decided to close its business claiming financial distress and terminated the services of its employees. In the meantime, it had agreed to sell its machinery, tools, furniture and fittings to respondent no.2. Said respondent had been successful in a tender for construction of railway coaches. Said respondent appointed a few of the terminated workmen. Other workmen of appellant raised the industrial dispute regarding termination of their services on ground of financial difficulties and closure. There was allegation of complete hiatus between appellant and respondent no.2 purchaser. Said respondent had contended that the W.P.(C) no. 5534 of 2019 Page 10 of 13 // 11 // workmen could not raise industrial dispute against it as they had never been appointed by it.
11. In dealing with the case, the Supreme Court referred to its earlier decision in Workmen of Dahingeapara Tea Estate v. Dahingeapara Tea Estate reported in AIR 1958 SC 1026. Said Court in the relied upon judgment had in turn relied upon Dimakuchi Tea Estate (supra). The dispute raised by the union was for reinstatement on continuity by looking through the arrangement entered into between appellant and respondent no.2 for terminating services of the workmen. In that context, there was finding by the Supreme Court that the persons, who were sought to be terminated by appellant, though had never been appointed by respondent no.2 but came within meaning of 'any person' under section 2(k), to maintain the industrial dispute.
12. On analyzing above declarations of law made by the Supreme Court, in context of facts in which the decisions were rendered, we have not been able to find that the direction by the tribunal for giving appointment to a person, who is widow of a deceased workman and therefore, on compassionate ground, is a direction that could be made under any provision in the Act of 1947. Non-employment talked about in the decisions relied upon had direct nexus with the persons, who were no W.P.(C) no. 5534 of 2019 Page 11 of 13 // 12 // longer in employment having had employment prior thereto but which employment was sought to be terminated in a roundabout manner. Hence, industrial disputes were raised, maintained and answered in favour of those seeking employment. The relief was re-instatement by necessary appointment. An employer may or may not have a policy for compassionate appointment but the working of the Act, as declared in Dimakuchi Tea Estate (supra), does not include claims for appointment on compassionate ground. As such we do not find similarity between those persons and the unfortunate widow of the employee who died, for her to claim to be covered by phrase 'any person' in definition section 2(k), to raise an industrial dispute and thereby have direction for appointment.
13. We, therefore, are in respectful disagreement with the Delhi High Court on Sudesh Kumar (supra). More so, because we have ascertained from Mr. Mohanty that the terms of employment included consequences of death and there is no dispute with regard thereto. Furthermore, the direction is such that it does not come within or under section 17-B for opposite party no.2, successful in the tribunal, to have moved for interim relief during pendency on adjudication of the challenge by this writ petition.
14. We are also not impressed by Mr. Mohanty's contention regarding parity. Challenge before us is impugned award. By reason of there not W.P.(C) no. 5534 of 2019 Page 12 of 13 // 13 // being challenge to any earlier appointment on compassionate ground, the omission cannot, in our opinion, bar petitioner-management from maintaining the challenge. Furthermore, Mr. Mishra's submission has been that prior appointments on compassionate ground were given under the resettlement and rehabilitation scheme of the Government. Said contention stands stated in impugned award.
15. For reasons aforesaid, we set aside and quash impugned award. The writ petition is allowed and disposed of.
(Arindam Sinha) Judge (S.S. Mishra) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 17-Oct-2023 16:23:21 W.P.(C) no. 5534 of 2019 Page 13 of 13