Madhya Pradesh High Court
Intas Pharmaceutical Limited vs Yogendra Singh Chouhan on 1 December, 2015
Author: Sujoy Paul
Bench: Sujoy Paul
1 WA 592/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
D.B.:- Hon'ble Smt. Justice S.R.Waghmare and
Hon'ble Shri Justice Sujoy Paul
Writ Appeal No. 592/2015
Managing Director Intas Pharmaceutical Ltd. and another
Vs.
Yogendra Singh Chauhan and another
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Shri Ajay Bagadia, learned counsel for the appellant.
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ORDER
(01/ 12 /2015) This writ appeal filed under Section 2(1) of M.P. Uccha Nyalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005, assails the order dated 02.11.2015 passed by learned Single Judge in W.P.No. 6445/2015.
2. Shri Ajay Bagadia, learned counsel for the appellant advanced two fold submissions. Firstly, it is contended that in the writ petition the petitioner has challenged two interlocutory orders passed by the Labour Court dated 05.02.2015 and 12.08.2015. Secondly, petitioner had challenged the industrial dispute which was referred for adjudication before the Labour Court. Learned Single Judge has erred in not disturbing the orders passed by the Labour Court dated 05.02.2015 and 12.08.2015. Learned Single Judge has completely erred in not dealing with the second prayer i.e. regarding validity of industrial dispute/reference.
3. We have heard him at length.
4. Shri Bagadia advanced arguments on merits to show that the impugned order of the Labour Court before the writ court were bad in law.
5. In the considered opinion of this Court, the said orders of Labour Court were passed in judicial proceedings. The said orders were put to test before learned Single Judge. In view of recent judgment of Supreme Court reported in (2015) 5 2 WA 592/2015 SCC 423 (Radhey Shyam and another vs. Chhabi Nath and others) and (2015) 9 SCC 1 (Jogendrasinhji Vijaysinghji vs. State of Gujarat and others), we are of the considered opinion that the petition filed by the petitioner against the said orders of the Labour Court was a petition under Article 227 of the Constitution. The learned Single Judge has exercised his power under Article 227 of the Constitution. The learned Single Judge was not exercising his original jurisdiction under Article 226 of the Constitution so far the impugned orders of Labour Court are concerned.
6. So far the validity of reference is concerned, it is seen that the petitioner has not pressed the said relief before the writ court. There is no whisper about any argument being advanced against the reference order. It was not the contention of Shri Bagadia that the said arguments regarding validity of reference were advanced before learned Single Judge and yet the same were not dealt with.
7. Shri Bagadia criticized the reference order by contending that the designation of the workman concern was "Area Business Executive". This fact was deliberately suppressed by him. By designation itself, it is clear that he cannot be treated as workman or sales promotion employee under the relevant statute. He submits that for this reason, reference was bad.
8. Although this point is not pressed before learned writ court, we deem it proper to deal with this contention. In the opinion of this Court, whether the concern person is a "workman" under the Industrial Disputes Act or a "Sales Promotion Employee" can be examined only after examining his nature of work. The designation alone is not sufficient to decide as to whether he is workman/sales promotion employee. The Apex Court in (2001) 7 SCC 394 (Hussan Mithu Mhasvadkar vs. Bombay Iron & Steel) opined as under:-
In deciding about the status of an employee, his designation alone is not decisive and what really should go into consideration is the 3 WA 592/2015 nature of his duties and the powers conferred upon, as well as the functions assigned to him. Even if the whole undertaking be an industry, those who are not workmen by definition may not be benefited by the said status. It is the predominant nature of the services that will be the true and proper test.
9. In view of aforesaid judgment, it is clear that the reference at this stage cannot be declared as illegal on the basis of designation of concern workman. It is open to the employer to take objection in this regard in its written statement. This Court has no doubt that if such objection is taken, the labour court will deal with this aspect in accordance with law. At this stage, we find no reason to interfere with the matter
10. As analyzed above, the writ appeal is not maintainable against the interlocutory orders passed by the labour court on 05.02.2015 and 12.08.2015. No interference can be made with reference for the reasons stated above. Writ appeal fails and is hereby dismissed.
(Mrs. S.R. Waghmare) (Sujoy Paul)
Judge Judge
(alok)