Jharkhand High Court
Shekhar Jha vs M/S. Tata Steel Limited on 18 June, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.-4560 of 2014
Shekhar Jha
Son of late S.K.Jha resident of Duplex No.D-31, Vatika Green City,
Jamshedpur, District- East Singhbhum ...Petitioner
-V e r s u s-
1. M/s. Tata Steel Limited, a company incorporated under the Indian
Companies Act, having its registered office at Mumbai and Factory and
Township at Jamshedpur, District- East Singhbhum
2. The General Manager (Medical Services), Tata Main Hospital, Tata
Steel Ltd., PO & PS- Bistupur, Jamshedpur, District- East Singhbhum
.... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Rahul Kumar Gupta, Advocate For the Respondents :- Mr. Rajiv Ranjan, Sr. Advocate Mr. Shray Mishra, Advocate Order No.-04 Dated: 18.06.2018 The present writ petition has been filed for quashing the order dated 12.07.2014 passed in B.S Case No. 03 of 2008 whereby the learned Labour Court, Jamshedpur has refrained from interfering with the order of termination of service passed against the petitioner on the ground that his case was not maintainable under the Jharkhand Shops and Establishment Act, 1953 (hereinafter to be referred as "the Act, 1953").
2. The factual background of the case as stated in the writ petition is that the petitioner was working as a Senior Manager (Administration) in the Tata Main Hospital (TMH) of the respondents. The petitioner was served with a chargesheet dated 29.06.2007 alleging that due to his act, the respondent-TMH has incurred financial loss. The petitioner submitted reply to the said show cause notice denying the allegations levelled against him. The enquiry officer conducted the enquiry and submitted the enquiry report to the General Manager (Medical Services),Tata Main Hospital, Tata Steel Ltd.(respondent no. 2). The respondent no. 2 disagreed with the finding of the enquiry officer and issued a second show cause notice to the petitioner which was replied by him on 07.02.2008 stating, in detail, the grounds and reasons for which his alleged 2 delinquency could not be established during the enquiry. However, the respondent no. 2, within a period of 24 hours, issued the order of termination dated 08.02.2008. The petitioner challenged the order of termination before the Presiding Officer, Labour Court, Jamshedpur by filing a complaint under Section 26 of the Act, 1953 which was registered as B.S case No. 03 of 2008. Both the parties defended their cases before the learned Labour Court and finally by impugned order dated 12.07.2014, the complaint of the petitioner was dismissed holding inter alia that the petitioner was not an employee within the meaning of the Act, 1953.
3. The learned counsel for the petitioner submits that the order of termination from service was passed by the respondents in violation of the principles of natural justice as no opportunity of hearing was given to him to defend his case. It is further submitted that the respondents were predetermined to pass the order of termination and the said fact finds support from the conduct of the respondents as the order of termination was passed by the respondent no. 2 within 24 hours of the submission of reply to the second show cause notice. It is also submitted that the learned Labour Court has erroneously passed the impugned order by not considering the documents on record in right perspectives. The chargesheet issued to the petitioner specifically mentioned that he had committed misconduct under Clause 23 (iii) of the Tata Iron Steel Committee's Working Standing Orders. Clause-1 of the said Standing Orders specifically provides that it will apply to all the employees. The finding of the learned Labour Court in favour of the respondents is perverse as once the petitioner has been proceeded against the said Standing Orders, he cannot be denuded of the remedies available to him under the relevant legislations which is ought to be liberally construed in favour of the employees. It is further submitted that the respondent no. 2 himself had admitted in his deposition that there was no delegation of financial powers in favour of the petitioner; and as such, on this score also, the finding of the learned Labour Court is perverse and is liable to be set aside. All the bills mentioned in the charge-sheet have been approved by 3 the General Manager, Medical Services. The respondent no. 2 in his deposition has also stated that the details of jobs and the responsibilities of the petitioner were available with the Department of Human Resources of the Tata Main Hospital, Jamshedpur which would be produced, however, the same were never produced and as such, the learned Labour Court ought to have drawn the adverse inference. It is also submitted that the learned Labour Court has based its finding on the fact that the petitioner had released funeral expenses in favour of some of the employees, however it lost sight of the fact that there was standing instruction of the respondent no. 2 to release a fixed amount towards funeral expenses without approval of any superior authority. The Tata Main Hospital (TMH) is an establishment and as such it had to fill up the statutory Form-One under the Act, 1953 and if the said statutory form was not produced indicating the name of the petitioner as an employer, the Labour Court was not justified in coming to the conclusion that the petitioner is an employer and not an employee of TMH. The learned labour court also failed to appreciate that the disciplinary authority (the respondent no.2) had not recorded the grounds of his disagreement with the findings of the enquiry officer. The learned counsel for the petitioner, in support of his submission puts reliance on the following judgments:-
(i) Tata Iron & Steel Co. Ltd. Vs. Chief Inspecting Officer and Others reported in (2005) 9 SCC 605
(ii) Ador Welding Limited Vs. Sri B. Gope reported in 2011 (3) JLJR 438
(iii) Atlas Cycle (Haryana Limited Vs. Kitab Singh reported in (2013) 12 SCC 573
(iv) B. Gope Vs. Aldor Welding Limited reported in (2016) 14 SCC 702
4. Per contra, the learned Senior Counsel for the respondents submits that at the relevant point of time, the petitioner was employed as Sr. Manager (Administration) and the nature of his duty 4 was purely supervisory and managerial in nature and as such, he was rightly denied any relief by the Labour Court. The petitioner was the Administrator of Tata Main Hospital, Jamshedpur who, at times, also used to function as the In-charge of the Hospital, which is the highest post of the Hospital. It is further submitted that the respondent company has its own Certified Standing Orders duly certified under the Industrial Employment (Standing Orders) Act, 1946, which deals with the statutory contract of service and regulates the service conditions of all the employees of respondents.
The enquiry in the case of the petitioner was conducted in accordance with the principles of natural justice, however the petitioner has failed to prove any specific prejudice caused to him during the said enquiry. In fact, the enquiry was conducted in a fair and proper manner. Though there was sufficient evidence before the enquiry officer regarding the allegation of fraud and dishonesty against the petitioner in connection with the company's business, the enquiry officer held the petitioner guilty of the negligence of duty, wherein excess payment was made. The competent authority while going through and examining the entire enquiry proceeding was of the view that there was sufficient evidence on record to hold the petitioner guilty of charges levelled against him. Thus, a second show cause notice was issued to him providing opportunity to submit his explanation. The petitioner submitted his explanation to the second show cause notice which was found unsatisfactory and as such respondent no. 2, being the competent authority, discharged the petitioner from the services of the Company. Therefore, it cannot be said that the enquiry was conducted in a biased manner. Learned counsel for the respondents puts reliance upon the judgment rendered in the case of G.M. ONGC, Shilchar Vs. ONGC Contractual Workers Union, reported in (2008) 12 SCC 272.
5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner by way of present writ petition has challenged the order of the learned Labour Court whereby it has been held that the petitioner cannot be termed as an employee within the meaning of Act, 1953.
56. Before coming into the merit of the case, it would be appropriate to go through the judgments of the Hon'ble Supreme Court dealing with the power of High Court in writ jurisdiction to interfere with the order of the Labour Court/ Industrial Tribunal.
7. In the case of Atlas Cycle (Haryana) Limited (supra) relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court has held that the Writ Court is well within its power to interfere with the finding of the Tribunal/Labour Court, if it is shown that the admissible and material evidence had erroneously been refused to be admitted or any inadmissible evidence had erroneously been admitted which has influenced the impugned findings and thus, the Writ Court would be justified in exercising its power. In other words, if a finding of fact is based on no evidence, the same would be regarded as an error of law and the same can be corrected by a Writ Court.
8. I have also perused the judgment of G.M. ONGC, Shilchar Vs. ONGC, Contractual Workers Union reported in (2008) 12 SCC 272 as has been relied by the respondents. In the said judgment also, it has been held in para 15 that the High Court has power to enquire as to whether the finding arrived at by the Tribunal was based on evidence and thereby to correct an error apparent on the face of record.
9. The thrust of the argument of the learned counsel for the petitioner is that the learned Labour Court has failed to take into consideration the relevant material placed on record and has come to an erroneous finding by relying on the documents without considering the same in their right perspectives.
10. In the present case, on perusal of the impugned order, it appears that Dr. B Rai (D.W.1) in his evidence has deposed that the petitioner was working as Senior Manager (Administration) in Tata Main Hospital (TMH). He was working in supervisory and managerial capacity and also used to grant leave to the employees. The petitioner used to certify the bills of the contractor and fix appointment of the employees also having certain financial powers.
6In para 19, he deposed that the petitioner worked on the post of General Manager from 01.10.2006 to 28.02.2010. The respondents produced three leave applications signed by the petitioner before the Labour Court. The petitioner however deposed before the Labour Court that he used to only forward the leave applications and the final authority to sanction the leave was with respondent no. 2. The learned Labour Court came to the finding that no document was produced before it to show that the power to grant sanction of leave was delegated to the petitioner. However, the learned Labour Court further came to the finding on the basis of Ext.-B (which is the office order dated 12.12.1995 by which the petitioner was authorized to issue gate pass) that the respondent no. 2 had delegated the power to issue the gate pass to the petitioner. The petitioner deposed before the learned Labour Court that by an office order, he was given power only to sign on the gate pass for ingress and egress of materials. It was further observed by the learned Labour Court that the petitioner was working as the Administrator of School of Nursing, Tata Main Hospital. Although the petitioner deposed that he was an honorary Administrator, yet in the exhibits filed by the respondents, the petitioner had signed as an Administrator and the word 'Honorary' was not written theron. It has further been observed that the petitioner had sanctioned the payment for the last rituals of some employees. Finally, the learned Labour Court held that the petitioner was not an employee and as such, his case is not triable under the Act, 1953.
11. The learned counsel for the petitioner has also put reliance upon a judgment of learned Division Bench of this Court rendered in the case of Ador Welding Limited (supra) which was subsequently modified by the Hon'ble Supreme Court in the case of B. Gope Vs. Aldor Welding Limited (supra) by directing the respondents to pay a sum of Rupees Two lakhs as full and final settlement of the dispute. It has also been contended on behalf of the petitioner that even the persons working on the post of Manager or on the supervisory post are covered under the Act, 1953 as the exclusion from the benefits of the Act, 1953 can be from the top and not from 7 the bottom rank of the Managers or the Supervisors. However, neither before this Court nor before the learned Labour Court, the petitioner has produced any such evidence to show that he did not come within 10% of the total number of employees, who may be excluded.
12. In para 10 of Ador Welding Limited (supra.), the Hon'ble Apex Court has held as under:-
"10. In view of the above reasons, the Respondent was not only working as the Sales Engineer but was doing the job of the Manger. What is the work of the Manager or what is nature of the managerial post, that depends upon the facts of the case. It is not necessary that a Manager should have a right to appoint and remove the employees, which power vests in the appointing authority. The Managerial work consists of several types of works and in an Organization there may be several persons or several workers and one or some may discharge the managerial works, whereas the appointing authority may be only one. In view of the above reasons, we do not find any substance in the submission of the learned counsel for the respondent that since respondent was not authorized to appoint and remove, therefore, he was not working as Manager. It is a settled law that one can prove his case by his own evidence or even by the evidence of the rival party himself. In this case, the claimant was the respondent and his own evidence proved the fact that he was not doing the work of a mere employee but was discharging the duties of the Manager."
13. The work of a Manager or the nature of a managerial post depends upon the facts of the case. It is the responsibility of the claimant to lead sufficient evidence to show that though he has been designated as a Manager, yet he is an employee as defined under Section 2(4) of the Act, 1953.
14. Thus, I am of the considered view that the learned Labour Court while dismissing the claim of the petitioner came to a firm view that the petitioner was working in managerial capacity. The respondents have sufficiently proved that the petitioner was working as the Administrator of Nursing School run by the TMH. The petitioner had also worked as General Manager of TMH for some period. He was also authorized to issue gate pass and had sanctioned the bills for the last rituals of the deceased employees.
815. Under the aforesaid circumstance, I find no infirmity in the impugned order. The present writ petition having no merit is accordingly dismissed.
Ritesh/A.F.R (Rajesh Shankar, J.)