Calcutta High Court
Indian Iron And Steel Co. Ltd. & Ors. vs The Learned 9Th Industrial Tribunal, ... on 2 December, 1999
Equivalent citations: (2000)2CALLT404(HC), [2000(87)FLR314]
Author: A. Lala
Bench: Amitava Lala
JUDGMENT A. Lala, J.
1. This Is a writ petition on behalf of a Central Government Company by virtue of Indian Iron and Steel Company (Acquisition of Shares) Act, 1976 and within the meaning of section 617 of the Companies Act challenging the Judgment and order of the 9th Industrial Tribunal, Durgapur, dated 26th August, 1981 as well as award dated 20th August, 1982.
2. The proceedings before the 9th. Industrial Tribunal, Durgapur, was initiated on account of termination of service of respondent No.3 herein. Apart from the factual aspect, two technical points were raised by the petitioner therein out of which one is that as to whether the respondent No.3 herein was "workman" within the meaning of section 2(s) of the Industrial Disputes Act and whether the West Bengal Government was the appropriate authority to refer the dispute before the 9th Industrial Tribunal or not.
3. Admittedly, the learned Tribunal held that the nature of work of the respondent No.3 Is coming under the four corners of the definitions of "workman" under section 2(s) of the Act as aforesaid more particularly available under order No. 22 dated 26th August. 1981 which is under challenge before this Court.
4. After such order-being passed, the petitioner moved an application before the learned Tribunal for the purpose of granting leave to them to raise its objection as to the maintainability of the order of reference on the basis of averment made in paragraph 4 of the petition and also for amendment of the written statement on their behalf.
5. Paragraph 4 of such petition is as follows :
"That your petitioner's attention has been drawn to a decision of the Hon'ble Supreme Court in the writ petition No. 1212 of 1977 dated November 13, 1980 between Som Prakash Bekhi and Union of India & Other and in view of the observation as made by the Hon'ble Supreme Court in the said judgment your petitioner has been advised to make the following attention in its written statement by way of preliminary objection and to be numbered as paragraph 2A to the written statement filed by the petitioner company.
2A. That the State of West Bengal is not the appropriate Government within the meaning of section 2A of the Industrial Disputes Act, 1947 and hence the present proceedings before the learned Tribunal are without Jurisdiction".
6. Admittedly, the prayer of the petitioner company was allowed subject to the condition that the same would be heard and decided accordingly on merit.
7. From the finding of the learned Tribunal it appears that belatedly the aforesaid point was raised by the petitioner on the basis of Supreme Court Judgment reported in 1981 Lab 1C (SC) at page 79 (Adamjt M. Badri & Ors. v. The Government Labour Officer & Anr). It was observed therein that the Hon'ble Supreme Court and High Court considered only that limited question as to whether such companies are 'other authority' under Article 12 of the Constitution and whether they are amenable to the writ Jurisdiction of the Court under Articles 32 and 226 of the Constitution of India. Apart from the same, according to the learned Tribunal, the decision of the Supreme Court Is distinguishable from the case of the present petitioner company since the company herein Is governed by the Steel Authority of India Rules but not governed by the Regulations framed by the Government of India as therein.
8. It was also observed that the ratio of the Hon'ble Supreme Court Judgment says that the Government company is a company but not the department of the Government or an Industry run by or under the authority of the Union Government. Therefore, the learned Tribunal decided the Issue that the State Government has the authority and rightly referred the dispute to the Tribunal.
9. By making the writ petition, the petitioner contended that the service of the respondent No.3 was terminated bonafide on account of loss of confidence In accordance with a term of the service contract and not by way of disciplinary action. Such point is a point on account of merit. Apart from the point, the petitioner raised grievance that the learned Tribunal ought to have examined the employee concerned as to whether the respondent employee Is coming under the four corners of "workman" or not before the point of referability of the Industrial Dispute by the State Government
10. At the time of making argument the learned senior counsel appearing for the petitioner contended that In a separate writ petition being W.P. No. 15379 (W) of 1998 a single Bench of this Hon'ble Court under order dated 10th December, 1998 held that as per the Supreme Court Judgment reported In 1997(9)SCC 277 = AIR 1977 SC 645 (Air India Statutory Corporation v. United Labour Union), the Central Government Is the appropriate authority to raise and refer any Industrial dispute so far as the petitioner company I.e. Indian Iron & Steel Company Limited Is concerned. As such the award passed by the learned Tribunal on the basis of reference of the Industrial Dispute Act by the State of West Bengal is bad ab Initio, nullity and non-est in the eye of law.
11. Incidentally, the petitioner made his submission that the respondent No.3 has not yet delivered back the possession of the occupation of premises given to him on account of his rendering service to the petitioner company. Even had it been the position that he was in service, he would have been retired on September 1989. It was further submitted that respondent No.3 made an application under section 17(b) of the Industrial Dispute Act for the purpose of release of short term fixed deposit of Rs.1,00,000/- made by the petitioner. When the matter came up for hearing, the petitioner company submitted that the respondent is gainfully employed as per Vigilance Department's report when such prayer in the application under section 17(b) of the act was not raised by him.
12. The respondent No.3 is the real contesting party herein. He has made his various submissions opposing the contentions of the petitioners' herein. However, his case if fortified with a supporting award passed by the learned Industrial Tribunal.
In any event, the respondent No.3 formulated the points as stated below and tried to clarify serially.
The formulated points are as follows :
"(i) The State Government Is not "appropriate Government" as defined in section 2(a) of the said Industrial Disputes Act, 1947 (Ground No.A of the writ petition);
(ii) The respondent No.3 is not a workman within the meaning of section 2(s) of the said Act of 1947 (Ground Nos. D to G of the writ petition);
(111) The Service of the concerned respondent No.3 was terminated on bona fide loss of confidence and In accordance with the terms of the Service Contract (Ground Nos. C, O, N, L of the writ petition);
(iv) The learned Tribunal should have held that it was a case of termination simplicator and permissible under the contract (Ground No.R to the writ petition);
(v) The learned Tribunal should have considered whether the enquiry committee which acted as a fact finding body, could be equated with full fledged domestic Tribunal holding disciplinary enquiry (Ground No.3 to the writ petition)".
13. So far as the first point Is concerned as to the State Government was appropriate Government under section 2(a) of the Industrial Disputes Act, 1947 or not. The learned counsel appearing for the respondent No.3 has cited numerous decisions to bring the Court to an appropriate conclusion.
14. Firstly, he cited a judgment reported in 1975(5) SCC 679 (Hindusthan Aeronautics Ltd. v. The Workman) wherein it was held that when the control of the company Is In West Bengal and the workers are receiving their pay packages in West Bengal and also are controlled by the officials of the Company, State of West Bengal, the appropriate Government should be the State Government and not the Central Government although the company was wholly owned and controlled by the Central Government.
15. He further cited (Heavy Engineering Mazdoor Union v. State of Bihar) by saying that the mere fact that the entire share-capital of the company was contributed by the Central Government and the shares were held by the President and certain officers of the Central Government does not make any difference i.e. to say the company and the shareholders being distinct entities, cannot make the company an agent either of the President or the Central Government.
16. Therefore, according to them by virtue of the ratio as aforesaid, the reference was correctly made by the State of West Bengal to the learned Tribunal In respect of the Industrial Disputes.
17. Apart from the judgments cited as above the learned counsel has indicated the distinguising feature of the judgments cited by the petitioner being (Air India Statutory Corporation v. United Labour Union) (supra). He stated that the appropriate Government in the case of the IISCO would be the Central Government as to word 'control' Is to be Interpreted In the changing commercial scenario broadly In keeping with the Constitutional goals. In the said Judgment, the Hon'ble Supreme Court has further laid down the principles for determination as to which Government would be the appropriate Government.
18. He contended that the petitioner relied upon a single Bench order of this Court which was based on the Supreme Court Judgment as aforesaid under which the learned Judge directed the Central Government should be considered as the appropriate Government In case of IISCO for deciding the dispute arising out of the unreported case but such order cannot be construed as a Judgment at least on the basis of the laid down principles In (Shah Babulal Khinji v. Toy a ban) and (State of Tamil Nadu v. S. Thangavet).
19. Assuming such order Is to be taken Into account on the basis of the Judgment (Air India Statutory Corporation v. United Labour Union) (supra) delivered In the month of December 1996 wherein the impugned order passed by the learned Tribunal on 20th August. 1982 much prior thereto. Therefore, the ratio of the Judgment of 1993 Suppl. (2) SCC 734 (Dr. A.R. Sircar v. The State of U.P. & Others) is to be followed herein which is made that the decision taken bonafide under any law or rule prevailing and if later decided as nugatory will be said to be hit by the principle of "defacto doctrine".
20. A Division Bench of this Hon'ble Court in the Judgment reported In 1998(80)FLR 245 (SAIL v. The State of West Bengal) held that subsequent change In law of a pronouncement of the Court will not render any act done by a person or authority invalid who at the relevant time was then competent to make the Instrument or Issue of such order. Therefore, the principle of "defacto doctrine" applies herein.
21. Now let me confine to the second point which Is In respect of the decision of the learned Tribunal as to the definition of "workman" within the meaning of section 2(s) of the Industrial Dispute Act, 1947.
22. I do not think that this point is still open before the Court or can be re-opened before the Court for the reason that after the point was duly considered by the learned Tribunal and application for amendment of the written statement was made by the petitioners only for the purpose of incorporation of the technical point of referability of the dispute by the State Government with an additional grounds In the application In connection with the merit which were allowed on a condition that the same would be heard and decided accordingly on merit. Therefore, when no such writ petition was made prior to such episode directly on the point whether the respondent No.3 is "workman" or not, now become sacrosanct. Hence, the Court is only concerned In respect of those points which are under the award Itself. Even thereafter if the question of 'workman' is discovered under the award, the same should be treated as a part of merit but not as simplicitor question of demurrer.
23. However, various judgments were cited by the respondent which also speak In favour of the respondent No.3 herein. For the sake of convenience of the parties, I deal with the same alongwith the question of merit.
24. Firstly, a single Bench judgment of Delhi High Court was cited being 1977(2)LLJ 255 (Mathur Aviation v. Lt. Governor, Delhi) at its page 9 to establish that a Pilot Is a "workman" under section 2(s) of the Act of 1947. It was held therein that a Pilot is a "workman" and whatever supervisory or administrative work he does it is only Incidental to his work.
25. Next he cited 1996(5) SLR 437 (Bank of India v. Presiding Officer. Central Government, Industrial Tribunal-cum-Labour Court) at its pages 8 to 10 to establish the question as to whether one employee is a "workman" or not to be proceeded on the basis of nomenclature but individual type of duties.
26. Thirdly, he relied upon a case (H.R. Adyantaya v. Sandoz India Ltd.) to clarity the definition that the work "workman" should be construed 'ejusdem generis' would mean skilled work whether manual or non-manual.
27. He also cited (National Engineering Industries Ltd. v. Sri Kishan) wherein it was held that Internal auditor having duties of only reporting and checking up on behalf of the management but had no Independent right or authority to take decision would be a "workman" under the Act.
28. He contended that the respondent No.3 was a Pilot only to ply the Aircraft and the duties entrusted to him in the purchased department without special allocation to his job wherein he was performing his duty of a Clerk, Therefore, the level of work cannot be said to be other than 'workman'.
29. Apart from the factual aspect, the respondent has drawn my attention to the question as to whether the employee Is a "workman" or not being the factual aspect cannot be considered by the writ Court. He relied upon a Judgment (Hindustan Antibiotics v. Workman) (New India Motors (Put.) Ltd. v. K.T. Morris) at its paragraph 3. AIR 1967 AP 408 (Andhra Scientific Co. v. A. Seshagriri Kao) at its paragraph 7, (Syed Yakoob v. Radha Krishna) as well as AIR 1990(3) SC 223 (Shri Sitaram Sugar Co. Ltd. v. Union of India) at Its paragraph 9, all of which are leading to one goal as to whether the question of "workman" being an Issue of the fact can be agitated before the writ Court or not.
30. I have already clarified the position specifically in this respect because cloud of confusion In the mind of the people are always available.
31. It is well settled principle of law that the High Court should not interfere under its writ Jurisdiction, as if sitting over the appeal, in respect of factual analysis of the learned Tribunal In coming to conclusion. The principle is this Court cannot interfere with the reason of the reasonableness of the tribunal in this respect. But one point is there which is to be discussed now.
32. The point of "workman" Is a very basis or foundation of an Industrial Dispute before the Tribunal. Therefore, Court has to see whether the order or award passed by the learned Tribunal is without any basis or foundation or not. This analysis can be based on mixed question of law and facts. If the question is purely question of law and at the threshold the writ jurisdiction was invoked in that respect there is no question for the Court to refuse writ jurisdiction to entertain the matter on the ground that the question of "workman" is a question of fact and cannot be entertained by the writ Court.
33. On the other hand, if there Is a decision of the tribunal on the facts available, the same cannot be Interfered with by the writ Court even If the same is good, bad or Indifferent because the writ Court cannot substitute Its view over and In respect of the decision of the tribunal. The principle as adopted by the Superior Courts In respect of the arbitration on numerous occasions will be squarely applicable herein. In case of mixed question of facts and law only exception is when the award is bad from the face of It. Therefore, the real point Is whether the order or award passed by the learned Tribunal is bad on account of definition of "workman" from the fact of it or not to establish such critical point before the court also, the writ Court should be Invoked as early as possible but not when the tribunal came to an appropriate finding on the facts on the basis of analysis of his nature of work In this respect and after awaiting for an award on different points when found tribunal had gone against It Law of acquiescence applies In this respect with full force. In the Instant case, the learned Tribunal held that the respondent No.3 Is a workman under an order dated 26th August, 1983 and thereafter proceeded on different points including merit and ultimately passed final award. Therefore, under no stretch of Imagination such point can be taken into account by this Court at this stage.
34. Nonetheless, the petitioners have taken me to the point that the learned Tribunal erroneously held that during the service tenure the respondent No.3 was posted in the purchase department and hereafter he was charge-sheeted and dismissed from the service. However, It was apparent from the face of the writ Court that he was terminated bonafide on loss of confidence on him and In accordance with the terms of the service contract of the writ petitioners but not by way of a disciplinary action.
35. The respondent No.3 contended that according to the petitioner no disciplinary proceedings were held as against the respondent No.3, thus the order of punishment would amount to retrenchment under the meaning of section 2(oo) of the said Act of 1947. If it is so, then the enquiry which is said to be the fact finding enquiry is not an enquiry at all. Accordingly, termination is bad. On the other hand, If It Is assumed to be the appropriate fact finding enquiry then order of termination amounts to order of retrenchment but then even section 25(f) of the Industrial Disputes Act. 1947 was not complied with. Therefore, since no procedure was followed the order is made bad.
36. The learned counsel appearing on behalf of the respondent No.3 cited various judgments on the question as to whether the order of termination was an order of "termination simplicitor" or "order of retrenchment".
37. Firstly, he cited the judgment (Punjab Land Development & Reclamation Corporation Ltd. v. The Presiding Officer, Labour Court) wherein It was held that retrenchment means termination by the employer of the service of a "workman" for any reason whatsoever otherwise than a punishment Inflicted by way of disciplinary action and those expressly excluded by the definition.
38. He further cited ajudgment reported In (Makhan Singh v. Narainpura Co. Op. Agrl. Service Society) at paragraph 4 wherein It was held that the termination of service without domestic enquiry is not bonafide and hence injustified. He also shown from the above Judgment and (Punjab Land Devl. & Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court) that the order of punishment was not a termination simplicitor nor an order of retrenchment.
39. On account of loss of confidence the respondent cited a judgment being (Kamal Kishore Lakshman v. Pan American World Airways) at its paragraphs 7, 8 and 9 wherein it was held that loss of confidence is a feature which certainly affects the character or reputation of the employee.
40. He also cited 1999(1) Labour Law Notes, 112 (Hind Mazdoor Sabha v. State of U.P.) at Its paragraphs 1 and 11 saying that at no stage the employer disclosed any facts as regards loss of confidence. Therefore, such question could not be considered in absence of materials before the Labour Court.
41. Thereafter another Judgment was cited repoted In 1988(2) LLJ 351 (Principal, Mayo College. Ajmir v. Labour Court) at its paragraph 351 to establish that when no case of loss of confidence brought forward before the Labour Court, High Court should not interfere on this account being a finding of fact.
42. I carefully considered this aspect too and I find that loss of confidence is a finding of fact. Since the Tribunal has rejected such plea' the writ Court should not interfere with the same.
43. Upon taking totality of the facts and circumstances of this case, I do not find any reason to interfere with the award passed by the learned Tribunal.
Therefore, the writ petition stands dismissed. No order Is passed as to costs.
The respondent No.3 will be entitled to all service benefits including retrial benefits. The respondent No.3 will also be entitled to Interest of the awarded amount @ 12% but at a simple rate, but such amount will be adjusted as against the claim of the petitioners out of rent of the quarters occupied by the respondent No.3.
The sums lying with the Registrar, Appellate Side, High Court, Calcutta, be released in favour of the respondent no.3 Including Interest accrued upto the date of release but excluding departmental costs, damages and expenses for the same. Such amount so released will be adjusted with monetory claim of the respondent No.3.
The respondent No.3 will vacate the premises within two weeks from the date of release of the arrear amount by the petitioner.
Xeroxed certified copy of this order will be supplied to both the parties within the time of three weeks from the date of putting requisition.
44. Petition dismissed