Telangana High Court
Md., M/S. Andhra Pradesh Gas Power Corp. ... vs Presiding Officer, Labour Courti, Hyd ... on 6 June, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
I.A.NO.1 OF 2020 IN W.P.NO.21822 OF 2017
AND
WRIT PETITION NO.21822 OF 2017
COMMON ORDER
This Writ Petition has been filed by the petitioner Corporation seeking a Writ of Certiorari calling for the records relating to and connected with the award dt.06.04.2017 passed in I.D.No.56 of 2011 on the file of the Labour Court-I, Hyderabad and to quash the same and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of this Writ Petition are that the petitioner Corporation was formed as a joint venture company for captive consumption of the power generated by it by its shareholders. The power generated by the power generating units established by the petitioner Corporation at Vijjeshwaram, Rajahmundry will be shared among the shareholders in accordance with the Memorandum of Understandings I and II. The power generated by the petitioner Corporation is consumed by its shareholders at the rate of Rs.1.50 ps. W.P.No.21822 of 2017 2 per unit. The power shared by the shareholders from the petitioner Corporation would be deducted from the total consumption and thereafter, the balance power drawn from the Discoms would be charged at the rate of Rs.4/- per unit by the respective Discoms. Therefore, the role of the employee of the petitioner Corporation, who is coordinating with the petitioner Corporation and the shareholders, with regard to the consumption of the power generated by the Unit of the petitioner Corporation and also from the Discoms is very important.
3. The 2nd respondent individual, was initially appointed as a Typist on temporary basis vide proceedings dt.28.02.1991 and was later confirmed vide proceedings dt.29.08.1991. Apart from typing work, the 2nd respondent was also assisting the Company Secretary-cum-Finance Manager in secretarial as well as administrative works. On 11.08.1994, the 2nd respondent was promoted to the post of 'Accounts Supervisor'. It is submitted that preparation of the monthly electricity consumption bills of the shareholders is the most important and essential function in the petitioner Corporation as it was the only source of income to the petitioner Corporation. Therefore, if the billing is not properly done and on time, it would suffer irretrievable loss. Since the 2nd respondent had W.P.No.21822 of 2017 3 gained sufficient exposure in this regard in the year 2000, the preparation of the monthly electricity consumption bills of the shareholders was entrusted to the 2nd respondent. Thus, the 2nd respondent was carrying on multifarious and very crucial activities. It is further submitted that the bills for the electricity consumed by the shareholders are usually prepared around 23rd and 24th of every month.
4. It is submitted that in view of the crucial duties being performed by him, the 2nd respondent would pester the management from time to time for promotion and monetary benefits and used to threaten the petitioner Corporation with taking leave. On 22.06.2009, the 2nd respondent threatened to go on leave for 110 days with effect from 23.06.2009 to 10.10.2009 on the ground that his case was not considered for promotion or for monetary benefits. Vide representation dt.23.08.2010, the 2nd respondent made a demand for revision of his pay scale and some other demands.
5. Further, on 16.04.2011, the 2nd respondent had submitted a leave letter requesting the Corporation to grant one month earned leave from 16.04.2011 to 15.05.2011 to enable him to attend to his personal works. In spite of his leave not being sanctioned, the 2nd respondent stopped W.P.No.21822 of 2017 4 coming to the petitioner Corporation office from 18.04.2011. On 19.04.2011, the petitioner Corporation intimated the 2nd respondent that the leave was not granted and he was called upon to join the office immediately. Another notice dt.20.04.2011 was also issued to the 2nd respondent intimating that he is continuing on unauthorised leave and was called upon to handover all the records for the purpose of completing the power allocation committee agenda and also the billing for the month of April, 2011. On 20.04.2011, the 2nd respondent attended the office and thereafter applied for half day leave stating that he is unable to attend to his duties and requested for granting medical leave from 18.04.2011 to 26.04.2011. The said request was rejected on 21.04.2011. On the very same day, a notice was issued to the 2nd respondent requesting him to join duty immediately and hand over the records. He was also served with a show-cause notice dt.23.04.2011 seeking an explanation that since several important assignments which are to be completed by the 2nd respondent were not completed, why disciplinary action should not be taken by way of terminating his services. The 2nd respondent submitted his written explanation admitting that there were pending assignments on his table. He attributed the unauthorised absence and pendency of work, to non-consideration of his W.P.No.21822 of 2017 5 long pending demand for promotion and revision of his pay scale and also left the decision of his removal from service to the petitioner Corporation. After considering the said explanation, vide orders dt.28.04.2011, the 2nd respondent was terminated from his services.
6. Aggrieved by the same, the 2nd respondent filed I.D.No.56 of 2011 challenging the termination order dt.28.04.2011 and seeking reinstatement into service with full back wages and continuity of service with all attendant benefits. On 27.08.2013, the Tribunal allowed the same by setting aside the termination order with a direction to reinstate the 2nd respondent into service with continuity of service but without any back wages. The petitioner Corporation filed W.P.No.36724 of 2013 challenging the award dt.27.08.2013 in I.D.No.56 of 2011. Initially the High Court granted interim suspension of the award on 16.12.2013. The 2nd respondent also filed W.P.No.16759 of 2014 challenging the award and both the Writ Petitions were disposed of respectively by setting aside the award dt.27.08.2013. Vide orders dt.04.01.2017, the High Court remanded the matter to the Tribunal with a direction to frame an issue to decide whether the 2nd respondent is a workman under the Industrial Disputes Act and if he is held to be a W.P.No.21822 of 2017 6 workman, then whether the termination of the employee by the employer is valid or not. Consequent to the remand by the High Court, the Labour Court allowed I.D.No.56 of 2011 by orders dt.06.04.2017 and directed reinstatement of the 2nd respondent into service with back wages, continuity of service and attendant benefits and it was also held that the 2nd respondent is also entitled for all notional promotions, for which he is entitled to as if he was in service for all these years. Challenging the said award, the present Writ Petition is filed.
7. Vide orders dt.04.07.2017, this Court suspended the award subject to payment of wages under Section 17-B of the Industrial Disputes Act, 1947. Against the same, W.A.No.993 of 2017 was filed and the said Writ Appeal was dismissed, against which the petitioner Corporation filed an SLP in the Hon'ble Supreme Court. The Hon'ble Supreme Court directed the petitioner Corporation to deposit wages under Section 17-B of the Industrial Disputes Act before the concerned Court and requested this Court to decide W.P.No.21822 of 2017 expeditiously within a period of three months. The 2nd respondent filed an application to modify the earlier order dt.18.08.2017 and vide orders dt.13.04.2018, the same was disposed of by the Hon'ble Supreme Court. The 2nd W.P.No.21822 of 2017 7 respondent again approached the Hon'ble Supreme Court to modify the above orders and the Hon'ble Supreme Court left it open to the 2nd respondent to make an application for interim order including the release of amount, if any, deposited under Section 17-B of the Industrial Disputes Act in the event the petition is not disposed of at an early date. Accordingly, the 2nd respondent filed I.A.No.1 of 2020 for release of Section 17-B wages. Thus, the Writ Petition has come up for hearing today to hear both I.A.No.1 of 2020 for release of wages deposited by the petitioner Corporation under Section 17-B of the Industrial Disputes Act and also for final hearing of the Writ Petition. This matter is therefore heard finally for a decision on merits.
8. Learned counsel for the petitioner, M/s. Indus Law Firm, argued the matter extensively with regard to the nature of the work of the petitioner Corporation and also the nature of duties and responsibilities of the 2nd respondent. Therefore, according to the learned counsel for the petitioner Corporation, the 2nd respondent cannot be considered as a workman under Section 2(s) of the Industrial Disputes Act and the Labour Court ought not to have entertained the dispute under the Industrial Disputes Act. As regards the setting aside of the impugned W.P.No.21822 of 2017 8 order, the learned counsel for the petitioner submitted that the petitioner Corporation has issued a show-cause notice to the 2nd respondent and after considering his explanation, (wherein the 2nd respondent admitted the pendency of work and unauthorised absence and also agreed for termination of services), the petitioner Corporation had terminated the services of the 2nd respondent. He submitted that the Tribunal had set aside the termination order on an erroneous finding that there was violation of principles of natural justice. With regard to allowing of back wages and other reliefs, the learned counsel for the petitioner submitted that the 2nd respondent has not set out any facts in support of the same that he was not gainfully employed elsewhere for the period after termination and therefore the learned Judge has not given any basis for awarding the same. In support of the above contentions, he placed reliance upon various case law and copies of the said judgments are also filed in the form of a paper book.
9. Sri B. Chandrasen Reddy, learned Senior Counsel representing Sri Yogeshwar Raj Saxena, learned counsel for the 2nd respondent, also filed counter affidavit and also written arguments. It is stated that the fact that the 2nd respondent was allotted very crucial and multifarious W.P.No.21822 of 2017 9 duties only shows that he is not in any skilled or technical or manual or supervisory cadre and that he was entrusted with various multifarious activities as a worker and therefore he was a workman as defined under Section 2(s) of the Industrial Disputes Act. He submitted that the nature of activities carried on by the worker would determine the status of the employee and not the designation. He also placed reliance upon various case law in support of his contentions and also filed copies of the same in the form of a paper book.
10. For proper appreciation of the legal position and the application of the same to the case on hand, it is necessary to go into the definition of 'workman' under the Industrial Disputes Act, 1947. For the sake of ready reference, Section 2(s) of the Industrial Disputes Act, 1947 is reproduced hereunder:
"2. In this Act, unless there is anything repugnant in the subject or context,-
.... .... .... ....
(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 W.P.No.21822 of 2017 10 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 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."
11. The Hon'ble Supreme Court in the case of S.K. Maini Vs. M/s. Carona Sahu Company Limited and others1 has held that it is not only the monetary benefits received by the workman which determine the status of the workman but also the nature of the work carried out by him. It was held that if the employee is mainly doing supervisory work but incidentally or for a fraction of 1 (1994) 3 SCC 510 W.P.No.21822 of 2017 11 time also does some manual or clerical work, the employee should be held to be doing supervisory works and conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in Section 2(s) of the Industrial Disputes Act.
12. In the case of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh2 also, while considering the meaning and purport of the word 'workman' mentioned in Section 2(s) of the Industrial Disputes Act, 1947, the Hon'ble Supreme Court has held that a person who performs one or the other jobs mentioned in the provisions of the Act only would come within the purview of the definition of workman. It was held that the job of a clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness and the question as to whether the employee has been performing a clerical work or not is 2 (2005) 3 SCC 232 W.P.No.21822 of 2017 12 required to be determined upon arriving at a finding as regards the dominant nature thereof. It was held that with a view to give effect to the expression to do "any manual, unskilled, skilled, technical, operational, clerical or supervisory work", the job of the employee concerned must fall within one or the other category thereof and therefore it would not be correct to contend that merely because the employee had not been performing any managerial or supervisory duties, ipso facto he would be a workman. It was held that the issue was as to whether the employee answers the description of a workman has to be determined on the basis of conclusive evidence which would require full consideration of all aspects of the matter.
13. In the case of C.Gupta Vs. Glaxo-Smithkline Pharmaceuticals Ltd.3, the Hon'ble Supreme Court held that whether a particular employee comes within the definition of 'workman' has to be decided factually. It was further held that while deciding the status of a person, nature of work is relevant. 3 (2007) 7 SCC 171 W.P.No.21822 of 2017 13
14. In the case of Chinnabasappa Basappa Happali Vs. The State of Mysore4 and other decisions relied upon by the learned counsel for the petitioner, the test to determine the status of an employee has been to examine the nature of the work carried on by the employee.
15. Learned counsel for the 2nd respondent employee has also filed a paper book along with case law and these decisions also lay emphasis on the nature of the work carried out by the employee to determine his status.
16. It is therefore necessary to go into the nature of the work carried out by the 2nd respondent herein.
17. The Labour Court has set out the nature of the work carried out by the employee at page 17 of its order. From the said data, it is seen that the petitioner therein used to collect data as a Data Operator, feed data as a Typist, distribute the data as a Courier and maintain accounts as an Accountant and prepare agenda of the meeting as a Personal Secretary of Board of Governors and 4 1971(1) SCC 1 W.P.No.21822 of 2017 14 prepare accounts as a Typist and act as a Coordinator between the shareholders and the company. From all these duties, it is nowhere seen that the employee is working in the capacity of a Supervisor or a Manager. Even the management has not filed any documents before this Court to show the nature of the work of the respondent employee that he is carrying on managerial or supervisory functions. It may be that the respondent employee is carrying on duties of great importance to the organisation, but the importance of the duties would by itself not determine or cannot be said to be determining the nature of activities of the respondent employee. In view of the same, this Court does not see any reason to interfere with the award of the Labour Court, wherein it has held that respondent No.2 is a workman under Section 2(s) of the Industrial Disputes Act. In view thereof, the first issue decided in favour of the employee is upheld.
18. As regards the issue of termination of services of the employee without issuing any notice and that it is violation of the principles of natural justice also, this Court finds that there is no evidence placed before this Court by the petitioner that other than W.P.No.21822 of 2017 15 the notice issued to the employee to report for duty and also that he would be terminated from service if he does not report for duty, there is any other notice issued to the employee. The notice issued on 23.04.2011 is a show-cause notice for removal from service for indiscipline and the 2nd respondent had submitted his reply on 25.04.2011 pointing out his difficulties and also his grievance with regard to non-consideration of his request for enhancement of his pay. At the end of the said reply, the 2nd respondent had requested the management to withdraw the show-cause notice dt.23.04.2011 and if the explanation is not found to be satisfactory to the management and the management thought that the employee deserves to be removed from service, the decision of the management will be honoured. He also requested the management to take decision on terminal benefits sympathetically keeping in view his 20 years of service. As seen from the order dt.28.04.2011, the management has considered only the last para of the 2nd respondent's explanation agreeing to termination of services if the written explanation of the 2nd respondent was not found satisfactory. However, the Corporation has not discussed as to why the explanation of the 2nd respondent was not acceptable. It is W.P.No.21822 of 2017 16 also evident from the conciliation application filed by the 2nd respondent on 04.05.2011 that the 2nd respondent had not agreed for termination willingly. It was conditional that if the explanation of the 2nd respondent was not satisfactory, then only it was agreeable to termination. It appears to be a decision taken in haste to agree for termination of services. As the management has not given any reasons for not accepting the explanation of the 2nd respondent, the order of termination is clearly in violation of the principles of natural justice. Though this Court does not agree with the reasons given by the Labour Court for setting aside the termination order, this Court upholds the finding that the employee has to be reinstated into service as the punishment of termination is highly excessive and the Corporation has not given any reasons for not accepting the explanation of the 2nd respondent. However, the 2nd respondent shall be eligible only for 50% of the back wages and continuity of service and other attendant benefits for terminal benefits only.
19. In view of the same, no further orders are necessary in I.A.No.1 of 2020 and it is accordingly closed as infructuous. W.P.No.21822 of 2017 17
20. In the result,--
(i) The Writ Petition filed by the Corporation is partly allowed.
(ii) I.A.No.1 of 2020 is closed as infructuous.
21. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed. No order as to costs.
___________________________ JUSTICE P. MADHAVI DEVI Date: 06.06.2022 Svv