Orissa High Court
General Manager, Kores (India) Ltd. And ... vs Presiding Officer, Labour Court And ... on 14 January, 1999
Equivalent citations: (2000)ILLJ467ORI
JUDGMENT R.K. Dash, J.
1. Order of the learned Presiding Officer, Labour Court, Sambalpur, passed in Industrial Misc. Case No. 28 of 1994 computing the entitlement of subsistence allowance of opposite party No. 2 has been assailed in this writ petition.
2. For better appreciation of the questions involved, a few facts giving rise to the initiation of the aforesaid Misc. Case may briefly be stated thus:
Opposite party No. 2 while working as a Technician in Kores India Limited, Rourkela office, was placed under suspension with effect from February 15, 1993 and till the filing of the case before the Labour Court he was still under suspension. Since his employer did not pay his subsistence allowance he raised an industrial dispute before the District Labour Officer, Rourkela, whereupon a conciliation proceeding was initiated where he begged apology and consequently his employer agreed to reinstate him in service with all backwages. But he was neither reinstated nor paid backwages. This led the opposite party No. 2 to approach the Labour Court by filing a petition under Section 33C(2) of the Industrial Disputes Act (in short 'the Act') seeking a direction to his employer to pay subsistence allowance and other allowances as admissible to him.
3. Kores India Limited through its functionaries, petitioners herein, refuted the claim of opposite party No. 2 contending, inter alia, that opposite party No. 2 was not a workman as defined under Section 2(s) of the Act and therefore, the proceeding as laid was not maintainable. They also challenged the claim of subsistence allowance and bonus as detailed in the petition which are at Annexures 2 and 3 of the present writ petition. Their further case was that opposite party No. 2 during course of employment had committed serious acts of irregularities detrimental to the interest of his employer for which he was transferred to Ernakulam Branch to work under a new Manager by order dated June 13, 1993. Though he received the said order, he did not join at his new place of posting and therefore, he was not entitled to subsistence allowance as claimed.
4. Both parties in support of their respective cases led oral evidence, besides documentary evidence and the learned Labour Court on appreciation of the evidence, passed the impugned order at Annexure-1 determining the claim of opposite party No. 2 as aforesaid. Aggrieved by the said order the functionaries of the Kores India Limited have approached this Court by filing the present writ petition.
5. The petitioners in the writ petition as well as in course of argument have raised the following contentions challenging the impugned order:
1) That opposite party No. 2 being not a workman as defined in Section 2(s) of the Act, his petition under Section 33C(2) of the Act was not maintainable.
2) That entitlement of the opposite party No. 2 of subsistence allowance and other monetary benefits as claimed having been disputed by the petitioners, proceeding under Section 33C(2) being summary in nature should have been entertained.
3) That since opposite party No. 2 had been given an opportunity to work as per the order dated May 31, 1993, Annexure-6 it would be presumed that suspension order (sic) had been withdrawn and therefore, he was no more entitled to subsistence allowance from that date; and
4) That determination of the claim of opposite party No. 2 by the learned Tribunal being based on no evidence, the impugned order is liable to be quashed.
6. Controverting the aforesaid submissions, opposite party No. 2 would contend that the learned Tribunal on a thorough scrutiny of the evidence computed the subsistence allowance and other allowances and there being no illegality in the impugned order, this Court should be loathe to exercise the writ jurisdiction and upset the same.
7. To appreciate the contentions we would like to deal with all the issues seriatim. Since a workman is entitled to initiate a proceeding under Section 33C(2) of the Act by making an application to the Labour Court, the first and foremost question that arises for consideration is as to whether opposite party No. 2 is a workman. Section 2(s) which defines workman reads as under:
"(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 where 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, 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 officer or other employee of a prison or
iii) who is employed mainly in a managerial or administrative capacity;
iv) who, being employed in a supervisory capacity draws wages exceeding one thousand six hundred 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."
8. It would appear from the impugned order that a contention was raised that the work of opposite party No. 2 was of managerial and supervisory in nature and his monthly salary being Rs. 3,400 at the relevant time, he was not a workman. It was, however, admitted that while working as Service Engineer he was promoted to the post of Senior Service Engineer and the job entrusted to him was installation, servicing and repair of xerox machines. No evidence whatsoever was led by the petitioners to support the contention that his work was managerial or supervisory in nature, although admittedly he was drawing salary of Rs. 3,400 per month. In course of hearing, nothing could be brought to our notice to assail the aforesaid finding of the learned Labour Court and in absence thereof we would hold that opposite party No. 3 is a 'workman' as defined in the Act.
9. Coming to the next submission of the petitioners that since the monetary benefits as claimed by opposite party No. 2 was disputed by them, proceeding under Section 33C(2) should not have been entertained, at the outset we would like to say that the purpose of Section 33C(2) is to provide speedy and effective remedy to a workman to receive any money or any benefit which can be computed in terms of money. The jurisdiction of the Labour Court therefore would not be ousted merely because the employer disputed such right. However, if the status of the workman is disputed, the monetary claim or the right as claimed is dependent on the determination of the said status, then in that case it is not permissible for the Labour Court to entertain the application under the aforesaid section. True it is, a proceeding under Section 33C(2) is analogous to execution proceeding, yet it would be within the competence of the Labour Court to compute the benefit as claimed by a workman in terms of money even though the right to the said benefit on which the claim is based is disputed by his employer. In the instant case, it was not disputed or denied by the petitioners that opposite party No. 2 being a suspended workman was not entitled to subsistence allowance during the suspension period. As regards the other claims, such as, salary for the entire month of February, 1993, bonus, etc. though the petitioners have challenged the same but that could not be a ground to hold the entire proceeding to be not maintainable. The Labour Court dealing with such matter being the executing Court can compute the claim of the workman in terms of money on the basis of the evidence available on record. In that view of the matter, the contention of the petitioners that the Labour Court ought not to have entertained the application under Section 33C(2) does not merit consideration.
10. The next question which is pivotal issue in the present proceeding is as to whether opposite party No. 2 would be treated as a suspended workman till the initiation of the present proceeding under Section 33C(2). The determination of this question centres round the letter at Annexure-6 addressed to opposite party No. 2. Admittedly opposite party No. 2 worked till February 10, 1993 and he was put under suspension on the next day, i.e. February 11, 1993. There is, therefore, no dispute that he is entitled to the salary till the last working day and from the next day onwards he is entitled to subsistence allowance since he was placed under suspension. In the present proceeding we are not concerned with the grounds or reasons of suspension, since the limited question in issue is whether as a suspended workman he is entitled to monetary benefits or not. The main contention of the petitioner is that a reading of the louder Annexure-6 would show that suspension order had been withdrawn and the workman was given an opportunity to work at another branch, but he did not join the new place of posting and therefore, from the date of receipt of the said letter, he was not entitled to any subsistence allowance. This has, however, been strongly refuted by opposite party No. 2. To appreciate the contention, that part of Annexure-6, relevant for the purpose, is extracted hereunder:
" xx xx xx As in the normal practice in Kores, we always give a fair chance to our employees in carrying out their responsibilities. We have now understood that you are not responsible enough to operate independently as you had been doing from Rourkela, and you are also not following instructions given to you by Mr. D.P. Tripathy. We, therefore, like to give you one more chance to correct your attitude towards work. For this purpose, we wish to give you an opportunity to work at our Ernakulam Branch under a new Branch Manager, You should report to our Ernakulam Branch immediately but definitely not later than June 15, 1993. You will be eligible for actual first class train fare for you and your family from Rourkela to Ernakulam, We now await your decision."
On receipt of the said letter, opposite party No. 2 through his Advocate gave a lengthy reply at Annexure-7. We quote the last paragraph of the reply, relevant for the purpose, as under:
"..... my client may be reinstated and reposted in Rourkela Service Station (under Cuttack Branch) with immediate effect and the present illegal transfer order be withdrawn failing which he shall have to resort to the door step of the competent Court by July 15, x x x x"
11. From a reading of Annexure-6 we find that though there is no specific mention about revocation of the suspension order, but it is apparent that the employer in order to correct opposite party No. 2 had given him an opportunity to work at Ernakulam Branch, not independently but under the guidance of the Branch Manager. But it would appear from the reply, Annexure-2 be insisted that he should not be removed from Rourkela Branch, his previous place of posting and he should be allowed to work there only. In that view of the matter, the contention of the opposite party No. 2 that as it was not indicated in Annexure-6 that suspension order was revoked and he was reinstated in service he did not proceed to Ernakulam Branch, as directed is not acceptable.
12. We refrain from making any more observation and whatever we have said on a reading of Annexures-6 and 7 is for the limited purpose of determining the question of entitlement of subsistence allowance as claimed by opposite party No. 2, as because we are told at the Bar that for not joining at Ernakulam Branch, opposite party No. 2 has been discharged from service and the legality and justifiability of the order of discharge is now pending for adjudication in the Labour Court, Sambalpur before which the question may arise as to whether opposite party No. 2 believed bona fide that there being no revocation of the order of suspension, he did not join at Ernakulam Branch and that he had no intention to disobey his employer's direction. The decision on the said question would be one of the guiding factors to determine the dispute. So uninfluenced by any observation made in this judgment, the learned Labour Court would be free to decide the dispute on the basis of evidence to be adduced by the parties.
13. For the foregoing discussion, we would hold that opposite party No. 2 is entitled to subsistence allowance from the date of suspension till June 31, 1993, the date of service of letter at Annexure-8 and not thereafter.
14. The last question is whether determination of the claim of opposite party No. 2 at Rs. 86,750 is correct and based on evidence. We find from the record that initially claim was made to the extent of Rs. 64,651 towards salary for the whole month of February, 1993 suspension allowance (@ 50 per cent of the salary till May, 1993 and 75 per cent from June, 1993 to July 1994, arrear travelling dues terms and commission, but by amending the petitioner it was enhanced to Rs. 94,001. From the impugned order it appears that the learned Tribunal without referring to any evidence whatsoever accepted the claim of opposite party No. 2 in toto, except the travelling dues, i.e. Rs. 251. It is admitted fact of the parties that opposite party No. 2 worked till February 10, 1993 and from the next day he was not under suspension till June 31, 1993, that is the date of service of letter, Annexure-6. In that view of the matter, opposite party No. 2 is entitled to salary from February 1, 1993 to February 10, 1993 and subsistence allowance from August 11, 1993 to May, 1993. Admittedly opposite party No. 2 was drawing salary of Rs. 3400 per month. He has claimed suspension allowance @ 50 per cent till May, 1993. We accordingly compute his salary from February 1, 1993 to February 10, 1993 and subsistence allowance for the rest period till May, 1993 at Rs. 7,365. So far as bonus is concerned, it may be stated that since bonus is linked with work opposite party No. 2 being a suspended employee was not entitled to bonus for the suspension period. We would, however, have calculated the bonus for the period from February 1, 1993 to February 10, 1993, but in absence of any evidence as to quantum of bonus paid to similarly situated other employees for the month of February, 1993, we are unable to calculate the same.
15. The writ application is accordingly disposed of. No cost.
S. Chatterji, A.C.J.
16. I agree.