Chattisgarh High Court
Mohan Jute Mill Limited vs Ram Pratap Tiwari on 3 August, 2017
Author: P. Sam Koshy
Bench: P. Sam Koshy
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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WRIT PETITION (L) NO. 143 OF 2012
Mohan Jute Mill Limited, Raigarh, through the Managing Director, Mohan
Jute Mill Limited, Raigarh, Tahsil and District Raigarh (C.G.)
... Petitioner
Versus
Ram Pratap Tiwari, S/o Shri Vishveshwar Tiwari, aged about 57 years, R/o
Staff Colony Jute Mill, Raigarh, Tahsil and District Raigarh (C.G.)
... Respondent
For Petitioner : Mr. Amrito Das, Advocate.
For Respondent : Mr. S.P. Kale, Advocate.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
03/08/2017
1. The present is a writ petition filed by the Petitioner assailing the order dated 11.5.2012 of the State Industrial Court, Chhattisgarh, Bilaspur Bench, in Civil Appeal No. 1/C.G.I.R.Act/A/II/2012.
2. Facts in nutshell are that the Respondent in the instant case was an employee of the petitioner-establishment and that the petitioner- establishment in between went into lock out and subsequently after a considerable period of time the said establishment restarted and it is alleged that a notice was issued to the respondent-employee by the petitioner to rejoin the establishment, but the respondent did not join and after some time when the respondent did go to join he was informed that the post on which he was working is no longer vacant and therefore he could not be given joining.
3. Assailing the said action on the part of the management in not granting joining to the respondent, he filed a case before the Labour Court, Raigarh, under Section 31(3) of the C.G.I.R. Act, where the case was registered as Civil Case No. 3/C.G.I.R./2010. The Labour Court vide its order dated 19.1.2012 went on to decide the case in favour of the -2- petitioner-establishment holding that that since the designation on which the respondent was working was that of a supervisor and that the wages of the respondent was also more than Rs.1600/- a month therefore he would not fall within the definition of an employee as is defined under Section 2(13) of the C.G.I.R. Act. The Labour Court accordingly rejected the case of the respondent-employee holding that first he does not fall within the definition of an employee and the Labour Court went on to decide the case on merits and further reached to the conclusion that the respondent is not entitled for any relief.
4. This order dated 19.1.2012 of the Labour Court was subjected to appeal before the State Industrial Court, where the case was registered as Civil Appeal No. 1/C.G.I.R.Act/A/II/2012. The Industrial Court vide the impugned order has set aside the order of the Labour Court and has held that the action of the management in not permitting joining to the respondent was bad in law and illegal and thus stetting aside the order of the Labour Court, passed a direction against the petitioner-establishment for reinstating the respondent within 60 days with full back wages. It is this order of the Industrial Court which is under challenge in the instant petition.
5. According to Shri Amrito Das, learned Counsel appearing for the Petitioner, the order of the Industrial Court is bad inasmuch as at the first instance though it holds that the respondent does not fall within the definition of an employee under Section 2(13) of the C.G.I.R. Act, yet the Industrial Court has gone into the merits of the case and set aside the order of the Labour Court by granting the relief of reinstatement with back wages. According to Shri Das, once when the Industrial Court reaches to the conclusion that the respondent is not an employee under the provisions of the C.G.I.R. Act then for all practical purposes the Industrial Court could not have travelled beyond and decided the case on merits. -3- According to him, the effect of holding that the respondent does not come within the purview of an employee under the definition of Section 2(13) of the C.G.I.R. Act means the provisions of the Act itself are not applicable upon the respondent and thus the Industrial Court is denuded of his powers under the said Act and therefore any direction given by the Court after holding that the respondent does not fall within the ambit of an employee is bad in law. He thus prayed for stetting aside of the order of the Industrial Court.
6. Opposing the petition, Shri S.P. Kale, learned Counsel appearing for the Respondent, submits that the allegations made by the learned Counsel for the Petitioner are totally misconceived and baseless for the reason that the Industrial Court does not at any place hold that the respondent does not fall within the purview of an employee, rather the Industrial Court has held that the finding of the Labour Court to the effect is bad and further proceeded to decide the case on merits. Shri Kale further submits that the management in the instant case has not led any evidence before the Labour Court and that they were proceeded ex parte and yet they had not taken any step for setting aside of the ex parte order nor sought time to lead evidence to disprove the claim of the respondent on merits. It was further contended by Shri Kale that the finding of the Industrial Court particularly the paragraph which is being referred to by the learned Counsel for the Petitioner has to be read as a whole, which would clearly establish that in fact the finding of the Industrial Court is against the petitioner so far as whether the respondent falls within the definition of an employee or not. Shri Kale further submits that it is a case where it was the responsibility of the management to have first establish that the respondent does not fall within the category of an employee by leading cogent and substantive evidence. In the absence of any evidence on the -4- part of the management, the contentions put forth by the learned Counsel for the Petitioner would not had been acceptable and it is precisely this that the Industrial Court has held and thus he prayed for the dismissal of the present writ petition.
7. For better understanding of the case, it would be relevant first to quote the relevant finding of the Labour Court, which reads as follows:
"mDrkuqlkj pwafd vkosnd] vukosnd laLFkku esa Ik;Zos{kdh; lkeF;Z esa fu;ksftr Fkk ,oa 1]600@& :i;s ekfld osru ls vf/kd osru izkIr djrk Fkk blfy, eSa ;g fu"df"kZr djrk gwa fd vkosnd vf/kfu;e dh /kkjk 2(13)(ch)(iv) ds vuqca/kksa ds vuqlkj ^deZpkjh^ dh ifjHkk"kk esa ugha vkrk gSA"
8. Now, we may come to the following finding of the Industrial Court in this regard:
"deZpkjh ds dFku ij fu;ksDrk dh vksj ls dksbZ dwVijh{k.k vFkok [k.Mu ugha gqvk gSA fu;ksDrk dh vksj ls [kaMu esa dksbZ lk{; is'k gh ugha dh x;h gSA vr% fo+}ku fuEu U;k;ky; dh ;g QkbZfMax fd deZpkjh 1600@& ls vf/kd osru ikus ds dkj.k i;Zos{kdh; in ij fu;ksftr gksuk vfookfnr gSA ;g ekuuk =qfViw.kZ gS] dk;Z ds Lo:i laca/kh fu;ksDrk dh dksbZ lk{; ugha gSA"
9. Referring to the aforesaid finding of the Industrial Court, the petitioner intended to interpret as if the finding of the Labour Court was undisputed of the respondent not being an employee under the provisions of the C.G.I.R. Act. Whereas, if we carefully read the afore-referred passage of the Industrial Court and read it as a whole, it would clearly reflect that after the word in the second last line ' vfookfnr gS', there is a mark of full stop which appears to have been unnecessarily crept in, whereas the sentence should be read as a whole which clearly would reflect that the Industrial Court meant that the finding of the respondent not being an employee as his salary was more than Rs.1600/- and his designation of supervisor being undisputed is incorrect to assume, as the management has not led any evidence in respect of nature of duties discharged by the respondent.
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10. So far as whether an employee falls within the definition of 'employee' or not, the Hon'ble Supreme Court in the case of Triveni Engineering & Indust. Ltd. v. Jaswant Singh & Anr., 2010 AIR SCW 4944, dealing with the similar issue has held as follows:
"16. Whether or not a person is a workman is a matter that relates primarily to facts and circumstances of the case. The same has nothing to do with the application and interpretation of the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue is the nature of job performed by the concerned person, duties and responsibilities vested on him and other such relevant material..."
11. It is also relevant to refer one of the decisions of the Madhya Pradesh High Court rendered in the case of Babulal Dhanotiya v. M.P. Electricity Board & Ors., 1990 (1) C.L.R. 79, wherein in paragraph 6 it has held as follows:
"6. In deciding the status of an employee, the designation of the employee is not decisive. What determines the status is the consideration of nature of duties and the function assigned to the employee concerned. The essence of the matter lies in determining what the primary duty of the employees is, if it is clerical or manual work, he falls within the purview of the definition and on the other hand, if his duties are mainly of supervisory nature, he goes out of the definition. In deciding this aspect of the matter it should be seen as pointed out by the Supreme Court in Llyods Bank Ltd. v. Pannalal Gupta 1961 (2) F.L.R. 219, whether the supervisor or officer occupies a position of command or decision and is authorised to act in certain matters within the limits of his authority without the sanction of the Manager or other supervisors. It is ultimately a question of fact and will really depend on the nature of the industry and type of work in which he is engaged, the organisational set up of the particular unit of Industry and like factors."
12. The Bombay High Court in one of its recent decisions in the case of The Maharashtra State Co-operative Agricultural and Rural Development Bank Ltd. v. Shriram Shankarrao Pimpalgaonkar, decided on 11.3.2016 in Writ Petition No. 2381 of 1994, dealing under the Bombay Industrial Relations Act which is a pari materia statute to the Chhattisgarh Industrial Relations Act and the definition of employee under the two being the same, in paragraph 27 has held as under:- -6-
"27. It is trite law that the status of an employee as to whether he is a workman under the Industrial Disputes Act or an employee under the Bombay Industrial Relations Act is no longer to be decided merely on the basis of his designation or his salary structure. The whole issue turns upon the job profile and the nature of duties performed by the employee solely on the basis of which the Court has to decide whether the employee would be a workman/employee or would not be covered by the said definitions under the Industrial Disputes Act or Bombay Industrial Relations Act."
13. Likewise, in an earlier decision of the Bombay High Court reported in (2011) ILLJ 200 Bom. in the case of Chandrashekhar Chintaman Vaidya v. National Organic Chemical Industries Ltd., referring to the various decisions on the subject matter, in paragraph 36 dealing with the definition of workman/employee, it was held as under:
"36. The law as to basic test as to facts to be proved for holding a person to be workman under Section 2(s) of the Industrial Disputes Act can be said to be settled, and can be summarized as follows:
[a] The person does menial, ministerial or clerical work. [b] If any of the parts of his duties involves any sort of supervision, which is on the material and not on the men.
[c] The predominant nature of duties discharged by the person, i.e., the part of supervisory duties, if any, is not predominant.
[d] What is seen to be is not the designation and/or nomenclature, but performance of duties."
In paragraph 39 and 40, the Bombay High Court further has laid down the following guidelines in respect of nature of evidence required to prove whether the appellant is a workman/employee or not:
"39. The questions, which really go to the root of case without which the question as to whether the appellant is a 'workman', cannot be decided, can be formulated as follows:
[a] What is the quality and volume of evidence, or of proof of facts required to be brought by a person claiming to be a workman to discharge the burden of proof, and to have the onus of proof shifted on the employer who denies jurisdiction of the Court on account of the factual status of the complainant urging that he is not the workman?
[b] While the provisions of India Evidence Act do not apply in totality to the proceedings and the process of hearing and decision before the Tribunals/Courts under Industrial & Labour Laws, is it not the basic rule that facts are to be proved by legal evidence?-7-
[c] Whether the basis doctrine incorporated in Section 106 of Evidence Act applies to the adjudication under Labour Laws, though the provisions of Evidence Act have not been made applicable?
Of proof of fact as to nature of duties or work performed.
40. It is also well settled as to what is required to be done by a party is to prove a fact.
A party is required is to bring on record the proof of crucial facts on the basis of which existence or non-existence of a fact should be regarded as in existence or not in existence. If he succeeds qualitatively in leading to formation of opinion about existence of fact propounded, and in reversing the burden and letting the opponent to disprove what was proved by the party pleading a particular story."
14. In view of the aforesaid legal position coupled with the fact that the petitioner-establishment has not led any evidence to establish that the nature of duties performed by the respondent was such which was purely supervisory and he had a position of command in the establishment with administrative functions, only then he could have gone out of the purview of the definition of an employee. The designation given to a person by itself cannot be a guiding factor to decide whether he/she is an employee, supervisor, or a manager. It is ultimately the nature of duties which would decide these aspects.
15. Thus, so far as the finding of the Industrial court as is contended by the petitioner-establishment cannot be accepted and the same deserves to be and is accordingly rejected. Since there is no evidence led by the management before the Labour Court, the other finding given by the Industrial Court cannot be said to be bad in law in the light of the evidence which has been led by the respondent before the Labour Court and which has been taken into consideration by the Industrial Court while setting aside the order of the Labour Court.
16. The writ petition being devoid of merits the same is accordingly dismissed. Sd/-
(P. Sam Koshy)
/sharad/ Judge