Calcutta High Court
M/S. Mileage Advertising (P) Ltd vs Goutam Bhattarjee & Ors on 19 July, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present:
The Hon'ble Justice Shampa Sarkar
W.P. No.609 of 2016
M/s. Mileage Advertising (P) Ltd.
Versus
Goutam Bhattarjee & Ors.
For the petitioner : Mr. Soumya Majumder,
Mr. Victor Chatterjee,
For the respondents : Mr. Nayan Rakshit
Heard on : 15/03/2019, 09/04/2019, 14/06/2019 & 18/06/2019
Judgment on: 19/07/2019
Shampa Sarkar, J. :
The facts of the case in short are that the respondent No.1 was employed in the petitioner company since 1990 as commercial artist. After confirmation his salary was Rs.1800/-. The salary was increased to Rs.4160/- with effect from August 1, 2000. The respondent No.1 started absenting from duty on and from February 19, 2001 and a letter was issued by the company on March 7, 2001 calling upon him to attend the office immediately failing which, disciplinary action would be taken. On March 16, 2001 the respondent No.1 sent a letter to the partner of the company, inter alia, contending that a letter was issued by the accountant of the company on February 16, 2001 terminating his service which was not accepted by him. By the said letter he further informed the partner of the company that he was unwell from February 17, 2001 and had been advised to take rest. A medical certificate was also annexed to the said letter. By another letter dated May 17, 2001 the respondent No.1 informed the said partner that on April 23, 2001 he had visited the office with a medical certificate of fitness, but he was not allowed to join his duty and was asked to wait for two more weeks. By a letter dated June 11, 2001, the partner of the company Amitava Majumdar denied the contents of the letter dated May 17, 2001 and stated that in spite of several requests the respondent No.1 had refused to join and although his service had never been terminated, he himself stayed away from work. By a letter dated July 18, 2001 the respondent No.1 reiterated his request to be allowed to join his duty. On February 11, 2005 and March 5, 2005 the respondent No.1 through his learned Advocate made a representation to the company claiming all arrear dues including provident fund, gratuity along with interests. The company by a letter dated April 3, 2006 refused the claim, inter alia, stating that absenting from work on and from February 17, 2001, amounted to resignation from service and the question of release of the dues claimed did not arise. On October 27, 2008 the respondent No.1 raised a dispute with the Labour Commissioner. The conciliation proceedings failed. On November 11, 2010 a pendency certificate was issued by the Labour Commissioner and thereafter the respondent No.1 filed an application under Section 10 (1-B) (d) of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) before the learned Judge Second Labour Court, West Bengal, Kolkata, which was registered as Case No.48/2010.
2. The company filed its written statement before the Second Labour Court and evidence was adduced by both the parties. By an award dated December 10, 2013, the learned Judge, Second Labour Court, West Bengal, Kolkata allowed the application under Section 10 (1-B) (d) of the said Act filed by the respondent No.1. It was directed that the respondent No.1 was entitled to be reinstated with full back wages and other consequential benefits. The petitioner company was directed to comply with the award within a period of 90 days from the said date, in default the respondent No.1 was granted liberty to put the award in execution in terms of the said Act. The said award is impugned in this writ petition.
3. The points raised before this Court:-
(a) that the respondent No.1 was not a workman under Section 2 (s) of the said Act and the Labour Court erred in not coming to a finding as to whether the respondent No.1 came within the definition of workman under the said Act;
(b) that the Labour Court was wrong to lay the burden of proof on the company to show that the respondent No.1 was not employed in a supervisory or managerial capacity;
(c) that the Labour Court erred in holding that in view of the existence of an employer-employee relationship between the parties, the company was a industry and the application was maintainable before it; and
(d) that the Labour Court erred in holding that the petitioner was entitled to be reinstated with full back wages along with consequential benefits, without considering the question of delay in raising the dispute.
4. Mr. Soumya Majumder, learned Advocate appearing on behalf of the petitioner company urged that the respondent No.1 was admittedly a commercial artist and he used to determine whether the designs would go for block printing or colour printing. As the job of the respondent No.1 involved use of imagination and artistic ideas he could not be a workman. Apart from that, the respondent No.1 also had the power to take a decision about the nature and quality of the final designs. Further, according to Mr. Majumder, the law required the Labour Court to come to a specific finding as to whether the petitioner was actually a workman or not before the other reliefs with regard to reinstatement and payment of full back wages could be granted. He submitted that the Labour Court should have come to a positive finding about the status of the respondent No.1 as a workman instead of drawing an inference in the negative, in view of the failure of the petitioner company to prove that the respondent No.1 was appointed in a managerial or a supervisory capacity. According to him, the Labour Court applied the wrong tests while coming to the finding that the application was maintainable at the instance of the petitioner.
5. Mr. Majumder relied on the decisions of S.A. Phenany & Ors. vs. J. Walter Thompson Co. (Eastern) Ltd., Bombay, reported in 9 FJR 324, Kirloskar Brothers Limited vs. Presiding Officer, Labour Court, Delhi, reported in 1976 LABIC 918, T.P. Srivastava vs. National Tobacco Co. of India Ltd., reported in AIR 1991 SC 2294, Sonepat Cooperative Sugar Mills Ltd. vs. Ajit Singh, reported in (2005) 3 SCC 232, State of U.P. vs. Jai Bir Singh, reported in (2005) 5 SCC 1 and Muir Mills Unit of NTC (U.P.) Ltd. vs. Swayam Prakash Srivastava & Anr., reported in (2007) 1 SCC 491 in support of his above contentions.
6. Mr. Nayan Rakshit, learned Advocate appearing on behalf of the respondent No.1 submitted that the Labour Court rightly held that the petitioner had failed to prove that the respondent No.1 was employed in a managerial or supervisory capacity and as such there was no reason for this Court to disagree with the decision of the Labour Court. He submitted that it is trite that even in case of abandonment of service the respondent No.1 should have been given a notice before termination. He further contended that either the workman should be terminated by way of a disciplinary proceeding or by way of retrenchment. In the instant case, no disciplinary proceeding was initiated by the authorities although by the letter dated March 7, 2001, the respondent No.1 was informed that in case of his failure to join his duties, disciplinary proceedings may be initiated. It was submitted that retrenchment compensation was also not paid to the respondent No.1 and he could not be termed as a retrenched workman. Mr. Rakshit further submitted that the Industrial Disputes Act, 1947 was a beneficial piece of legislation and in case of any controversy or doubt with regard to the interpretation of a particular clause or provision, the interpretation which would go in favour of the workman. In view of the failure by the company to show that the respondent No.1 was employed in a managerial capacity, the respondent No.1 had to be treated as a workman. He relied on the affidavit-in-opposition filed before this Court to show that the respondent No.1 used to reproduce designs given by the art director to the respondent No.1 and the art director used to get the designs from the customers as per the requirements of the customers. Although the respondent No.1 used his imagination and artistic ability to reproduce the designs, he did not have any control, the final decision was not his. Thus according to Mr. Rakshit, the respondent No.1 was performing a technical function and came within the definition of workman under Section 2 (s) of the said Act.
7. He also submitted that in view of the illegal termination, the respondent No.1 was entitled to be reinstated with full back wages as directed by the learned Labour Court.
8. Mr. Rakshit relied on the decisions of D.K Yadav vs. M/s. J.M.A. Industries LTD. reported in 1993 (67) FLR 111, Ranbaxy Laboratories Limited vs. State of West Bengal and Others reported in 2014 (1) CLR (H.C. CAL) 339, Arkal Govind Raj Rao vs. Ciba Geigy of India Ltd., Bombay reported in 1985 I L.L.J SC 401 in support of his above submissions.
9. On the nature of work, the respondent No.1 in his affidavit-in- opposition had stated that he used to receive the designs from the art director and his responsibility was to reproduce the designs and decide whether to send the designs for colour printing or block printing. He was thus covered by the definition of 'workman'. From the order impugned, I do not find any decision on the point as to whether the respondent No.1 was a workman within the purview of the said Act.
The Court framed four issues namely:-
"1. Is the written statement filed by the applicant u/s. 10 (1-B) (d) Act, 1947 (West Bengal Amendment) maintainable in fact & law?
2. Whether the termination of service of the applicant w.e.f. 16.2.2001 was proper and justified in law?
3. Whether the applicant is a workman as contemplated u/s. 2 (s) of the I.D Act?
4. Is the applicant entitled to get any relief as per law and equity?"
10. The Labour Court arrived at a decision that the application before it at the instance of the respondent No.1 was maintainable in view of the fact that the petitioner company had failed to prove that the respondent No.1 was employed in a managerial or supervisory capacity. The relevant portion of the award is quoted below:-
"At the time of cross-examination, P.W.-1 said that he used to work as an artist. After completion of the design he determined whether it should be sent for block printing or colour printing. This nature of job is basically professional in occupation. But, the company did not produce any evidence to show that the nature of job performed by the applicant is a supervisory or managerial one. So, from the materials on record and evidence of both sides, it appears that there is the employer-employee relationship between the parties and there is no dispute as regard the status of the O.P. Company to come to a definition of an industry."
11. This is not the correct interpretation of the law. The Labour Court had itself framed the issues as to whether the respondent No.1 was a workman and whether the said application was maintainable before it. Having framed the issue, evidence should have been led by the parties to that effect. The Labour Court ought to have arrived at a positive finding that the respondent No.1 was covered by the definition of workman before venturing into deciding the legality of the termination of the respondent No.1 and the eligibility of the said respondent to be granted full back wages with consequential benefits.
12. Definition of 'Workman' under Section 2 (s) of the said Act is quoted below:-
"2. (s) 'workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957);
or
(ii) Who is employed in the police service or as an officer or other employee of a prison, or
(iii) Who is employed mainly in a managerial or administrative capacity, or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
13. Although, the learned advocate for the respondent No.1 submitted that the petitioner was doing technical nature of work, there is nothing on record to show that the Labour Court had come to a finding that respondent No.1 was a workman as per the definition under the said Act, on the basis of the evidence that was led before it.
14. It is settled law that the test of substantial work performed by the employee concerned is to be applied to find out whether the employee was employed to do skilled, unskilled, manual work, supervisory work, technical work or clerical work. It is the nature of the duty of the employee primarily and not his designation that would determine whether he was a workman fitting into one of the particular categories within the definition of 'Workman'. In this case, the nature of work of respondent No.1 was not taken into consideration by the Labour Court.
15. In the decision of Arkal Govind Raj Rao (supra) it has been held as follows:-
"6. Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of a person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant."
16. In the decision of Kirloskar Brothers Limited (supra) it has been held that a social legislation like the Industrial Disputes Act confers certain rights and obligations upon certain categories of persons. Those rights and obligations must be limited to be attracted only in the case of such persons as are covered by the statute. Certain rights are conferred upon a "workman" as defined by Section 2 (s) of the Act. Therefore, those rights are available only to persons who can be called workman and not to all those who are not covered by the exceptions given in Section 2 (s). What has to be seen is whether a person is a workman or not and not whether he is a workman because he is not a Manager or one employed in an administrative capacity. The proper approach in law would be to first see whether an employee is a workman and then see whether any of the exceptions are attracted. Reading the definition of "workman", I find that it is necessary that a person must be employed in an industry to do any skilled, unskilled, manual, supervisory, operational, technical or clerical work for hire or reward. Thus the first thing to find out is whether the employee concerned is employed to do such kind of work. If it is found that he does, then he would be a workman.
17. In Burmah Shell Oil Storage & Distribution Company of India Ltd. vs. Burmah Shell Management Staff Association and Others, 1970 (2) L.L.J. 590 (4) also the Hon'ble Supreme Court held that for an employee in an industry to be a workman under Section 2 (s) of the said Act, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. One other aspect which was pointed out in the case of Burmah Shell Oil Storage & Distribution Company of India Ltd. (supra) was that often quite a large number of employees are employed in industries to do more than one kind of work. In such cases what has to be seen is what is the dominant part of the work done by such an employee. If the dominant part of the work that an employee has to do is skilled or unskilled manual work, operational work or supervisory work or technical work or clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification.
18. In the decision of Sonepat Cooperative Sugar Mills Ltd. (supra) it has been held that it was now trite that the issue as to whether an employee answers the description of a workman or not had to be determined on the basis of evidence and the jurisdiction of the Industrial Court to make an award in the dispute would depend upon a finding as to whether the employee concerned was a workman or not.
19. In this case the conclusion of the Labour Court about the maintainability of the application has not been tested on the parameters as settled by law. There is no positive finding that the respondent No.1 would come under one of the categories mentioned in the definition of 'workman' in Section 2
(s) of the said Act.
20. This Court sitting in judicial review cannot go into the evidence and sit in appeal over the decision of the Tribunal, and arrive at its own conclusion as to whether the respondent No.1 was a workman from the records available and by appreciating the evidence in the absence of a specific finding by the Labour Court.
21. In the decision of Heinz India Private Limited & Anr. vs. State of Uttar Pradesh & Ors., reported in (2012) 5 SCC 443 the scope of judicial review has been elaborated as hereunder:-
60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of "judicial review" one is instantly reminded of the classic and oft-quoted passage from Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 :
(1984) 3 All ER 935 (HL)] , where Lord Diplock summed up the permissible grounds of judicial review thus: (AC pp. 410 D, F-H and 411 A-B) "... Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. ...
By 'illegality' as a ground for judicial review I mean that the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. ...
I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an Administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
61. . . . . . . .
62. In Tata Cellular v. Union of India [(1994) 6 SCC 651] this Court identified the grounds of judicial review of administrative action in the following words: (SCC pp. 677-78, para 77) "77. The duty of the court is to confine itself to the question of legality. Its concern should be:
(1) Whether a decision-making authority exceeded its powers? (2) committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached or, (5) abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] unreasonableness.
(iii) Procedural impropriety."
22. In this case, I find that the Labour Court applied the wrong legal tests in coming to a finding that the application at the instance of the respondent No.1 was maintainable before it, without coming to a specific finding that the respondent No.1 was a 'workman' by taking into account the substantial/dominant nature of work done by the respondent No.1 which would fit into one of the categories as stated in Section 2 (s) of the said Act. The award impugned is thus perverse and suffers illegality in the absence of a specific finding to that effect.
23. In view of the above this Court is not required to go into the question of legality of the other reliefs of reinstatement and payment of full back wages to the respondent No.1 as granted by the Labour Court. The award dated December 10, 2013, is set aside and the entire matter is remanded back to the Second Labour Court, West Bengal, Kolkata for fresh adjudication on the issues framed by the said Court. The learned Labour Court will be at liberty to allow the parties to adduce further evidence in support of their claims.
24. With regard to the decisions cited by Mr. Majumder namely, S.A. Phenany & Ors. (supra), Muir Mills Unit of NTC (U.P.) Ltd. (supra) and National Tobacco Co. of India Ltd. (supra) as to whether an artist is a workman, I am of the opinion that in view of the directions passed hereinabove these decisions need not be considered at this stage. The decisions cited by Mr. Rakshit on the point of illegality of the termination of respondent No.1 also need not be considered at this stage.
25. As the case is an old one the learned Labour Court is requested to dispose of the matter expeditiously, preferably within a period of four (4) months from the date of communication of this order.
26. This writ petition is thus disposed of with the above directions.
27. There will be, however, no order as to costs.
Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shampa Sarkar, J.)