Andhra HC (Pre-Telangana)
Executive Director, District ... vs Presiding Officer, Labour Court, ... on 1 March, 2002
Equivalent citations: 2002(4)ALD116, [2002(94)FLR541]
ORDER P.S. Narayana, J.
1. The writ petition is filed questioning the award dated 11-10-1995 made by 1st respondent in ID No. 550 of 1991 on the ground that it is arbitrary and illegal and also for other appropriate reliefs.
2. The facts in brief are as follows:
3. The A.P. Scheduled Caste Cooperative Finance Corporation Limited, Hyderabad, in short referred to as "Corporation" hereinafter, had been constituted and registered in the year 1974 under the A.P. Co-operative Societies Act, 1964, hereinafter in short referred to as ''Co-operative Societies Act" and the sole object of the Corporation is to evolve certain developmental schemes out of the funds provided by the Central and State Governments and to implement the same for the upliftment of the Scheduled Caste beneficiaries and no doubt several other details also had been narrated in this regard. A reference also is made to the circular issued by the Corporation stipulating the staffing pattern to the District Societies. It is also stated that in the said staffing pattern there is no post of Section Writer and whenever there was work the petitioner-Society used to engage certain personnel on daily wage basis and as soon as the work is over, the services of such daily wage employees were being dispensed with. While so, in the year 1986-87, the petitioner had engaged certain persons as Work Inspectors, Section Writers, Driver-cum-Attenders and Attenders and due to nonavailability of funds and due to the completion of the works undertaken by the petitioner-Society all the above mentioned categories of NMR workers were terminated with effect from 15-6-1989 by following the procedure as contemplated under Section 25-F of the Industrial Disputes Act, 1947, hereinafter in short referred to as "ID Act", and even retrenchment compensation had been paid and questioning the above termination a batch of writ petitions were filed i.e., WP No. 7778 of 1989 and Batch and interim orders were obtained directing the Society to continue the respective petitioners and by an order dated 12-12-1989 the above writ petitions were disposed of with the following observations:
"However it is hoped that the Society itself will take steps to rectifying injustice if a senior in a particular category is retrenched while a junior is retained. It is needless to add that the question of seniority and juniority in each category will also have to be determined by the employer, keeping in view of the date of initial engagement and also the number of days a person has worked as this is only a daily wage employment. It is also obvious that the petitioners will be entitled !o the benefits of Section 25-H of the Industrial Disputes Act that is whenever an employment on daily wage basis is available".
It is stated that in pursuance of the above direction, once again the services of the daily wage employees were terminated with effect from 31-12-1989 under notice Rc.No. 1475/89/SC/A1, dated 31-1-1990. It is further stated that the 2nd respondent was the 1st petitioner in WP No. 7778 of 1989 and his name was shown in the notice of retrenchment at Sl.No. 23 and thereby the 2nd respondent herein had no connection with the petitioner-Society and there is no master and servant relationship between the petitioner-Society and the 2nd respondent. It is also stated that he was allotted a shop in the shopping complex at B.R. Stadium, Guntur under proceedings Re.No. 7693/877 SC/B1, dated 31-8-1989 enabling him to start the business and to eke-out his livelihood and on his application the said shop was transferred in the name of his wife and he was also provided Rs. 25,000/- for establishing a fancy shop. The petitioner-Society also granted a margin money of Rs. 5,000/-, Rs. 1,200/- for the purpose of his business. It is also stated that for want of work and for want of funds, the petitioner-Society cannot appoint any one on daily wage basis and certain particulars had been narrated wherein depending upon the exigency of work, they were engaged and taking advantage of the same, WP No. 5198 of 1992 was filed seeking a direction to the 1st respondent to absorb them and the said writ petitions were allowed and hence their services were regularized to the posts of Typists and Attenders against the sanctioned posts and one more person by name Sri G.Y.N.Prasad was absorbed as Junior Accountant in one of the sanctioned post, who was also a petitioner in WP No. 5198 of 1992. Taking advantage of the above situation, the 2nd respondent herein filed ID No. 550 of 1991 on the file of the 1st respondent under Section 2-A(2) of the ID Act (A.P. Amendment Act 1 of 1987) praying for reinstatement, continuity of service and backwages and on behalf of the petitioner-Society, a detailed counter was filed denying the allegations and the 1st respondent without considering several aspects had passed the award dated 11-10-1995 in ID No. 550 of 1991 and directed the petitioner-Society to absorb the 2nd respondent on regular basis in which he has been working or in any equivalent post. It is also stated that the 1st respondent had erred in observing that the 2nd respondent herein is working in the petitioner-Society, which is factually not correct because subsequent to retrenchment under the retrenchment notice dated 31-12-1989, the 2nd respondent was not at all in the employment of the petitioner-Society and the petitioner-Society has got the staffing pattern wherein certain vacancies are specified and against all the specified and sanctioned posts the eligible persons were absorbed and same of them were absorbed in routine course and same were absorbed by the orders of the Honourable High Court in the writ petitions specified supra and hence the 1st respondent had erred in directing the petitioner-Society to absorb the 2nd respondent and the I st respondent had exercised the powers beyond the powers vested in him under Section 11-A of the ID Act. Incidentally, G.O.Ms.No. 212, Finance and Planning (FW-PC III) Department, dated 22-4-1994 also had been referred to. In the said circumstances, the District Scheduled Caste Services Co-operative Society Limited, Guntur , in short referred to as "Society" had filed the present writ petition.
4. Sri Srinivas, the learned Counsel representing Sri M.V.S.Suresh Kumar had drawn my attention to the counter-affidavit filed by the Society before the Labour Court wherein an objection was raised relating to the applicability of the provisions of the ID Act and it was pointed out that this aspect was not answered at all by the 1st respondent. The learned Counsel further contended that in the light of the retrenchment notice, there is no question of again the writ petitioner complaining of any retrenchment as such, inasmuch as there is no relationship of employer and employee at all subsequent thereto and the learned Counsel also had contended that even otherwise, to an employee of a Co-operative Society for resolution of the dispute of this nature, the remedies are provided for under the Co-operative Societies Act and hence invoking the jurisdiction of the ID Act is not permissible. The learned Counsel had placed strong reliance on a decision of the Apex Court in Raag Rang v. General Manager, Delhi Telephones, . The learned Counsel also had contended that when the jurisdiction question is raised, it is the duty of the 1st respondent to record a finding whether the contention in fact was argued by the respective Counsel or not. The learned Counsel also had taken me through the evidence of WW1 and also MW1 and Exs.W1 to W9 and M1 to M6 and had contended that the finding had not been recorded in proper perspective by the 1st respondent
5. Sri Raghavender Reddy, the learned Counsel representing the 2nd respondent had drawn my attention to the impugned award wherein all the details in fact had been well discussed and the learned Counsel also contended that there is no clear finding recorded that the juniors are being continued and in the light of the same, the direction given by the 1st respondent is well justified. Apart from it, the learned Counsel also had contended that though an objection relating to the applicability of the Act had been raised, the question was not argued at all and hence the 1st respondent had not answered the same. Even otherwise, the learned Counsel submitted that a finding had been recorded that the termination of the workman - 2nd respondent in the present case, will amount to retrenchment within the provisions of the ID Act and it is a finding of fact which cannot be interfered by the writ Court. In view of the said finding, definitely, the provisions of the ID Act are applicable and hence the 1st respondent is having jurisdiction to adjudicate upon the said aspect. The learned Counsel had taken me through the evidence and the impugned award in detail wherein from paragraphs 8 to 17, the point involved had been discussed, after appreciating both oral and documentary evidence. It was also further contended that in the light of the tests laid down in Bangalore Water Supply and Sewerage Board v. Rajappa, , definitely the Society will fall under the definition of 'industry' and this is a binding decision. The learned Counsel also had placed strong reliance on The Krishna District Co-operative Marketing Society Limited v. N.V.P.Rao, and also Co-operative Central Bank Limited v. Additional Industrial Tribunal, 1970 CC 206 (SC) and Municipal Commissioner, Rajendranagar Municipality v. Smt D.Susheela and Ors., (DB). The learned Counsel also had drawn my attention to Agricultural Produce Market Committee v. Ashok Harikuni and Anr., . The learned Counsel also had drawn my attention to Section 129 of the Co-operative Societies Act and had contended that there is no specific exclusion of the applicability of the ID Act and in this view of the matter also the contention of the writ petitioner is not sustainable.
6. Heard both the Counsel at length and also perused the material available on record. Before adverting to the respective contentions of the parties, it may be relevant to note certain admissions made by the Management Witness MW1. In the cross-examination, MW1 had stated as follows:
"It is true WW1 T. Ramaiah joined as Section Writer on 1-7-1986 in the management society and worked as such till 31-1-1990, He was to collect the margin money from the SC beneficiaries. He was also attending the maintenance of Ledgers relating to margin money. It is true when WW1 Ramaiah reported for duty on 1-2-1990 the management informed him that he was retrenched from service. It is true as on 1-2-1990 no notice or notice pay and compensation were tendered to him. It is true WW1 approached the management subsequent to 1-2-1990 for his reinstatement. The office management postponed the consideration of the request of the WW1. It is true T.A. Venkateswarlu, K. Ramarao and Rajendraprasad were juniors to WW1 but they were continued in service. T.Venkateswarlu and others filed W.P for regularization of their services and the High Court directed the management Society to absorb them on regular basis in the posts in which they were working or in any equivalent posts. It is true notice dated 16-6-1989 was not served on WW1. The witness volunteers that it was notified on the notice board of the Society. Except the persons who approached the High Court and obtained orders, others were retrenched from service. There is no nexus between the loan raised by the wife of WW1 and the employment of WW1. The witness volunteers that WW1 also obtained loan. It is incorrect to say that the management Society offered compensation and that WW1 refused to receive the same".
Apart from the cross-examination of MW1, there is clear evidence of WW1 who had clearly narrated the series of events, which clearly supports his case. As can be seen from the impugned award, all the documentary evidence had been narrated in detail and a finding was given on appreciation of evidence that the juniors are being continued in the Society and in fact the termination will amount to retrenchment within the meaning of the ID Act and the petitioner is entitled to the benefits under the ID Act and consequently directions were given. It is needless to say that these are all the findings of facts recorded on appreciation of evidence and no perversity in the recording of the evidence had been pointed out by the learned Counsel for the writ petitioner. Hence, I am not inclined to disturb these findings of facts recorded by the 1st respondent.
7. Now, the crucial question which had been argued at length by both the Counsel is relating to the applicability of the provisions of the ID Act to the subject Society. The Society undoubtedly is governed by the provisions of the Co-
operative Societies Act. Section 61 of the said Act deals with disputes which may be referred to the Registrar and Sub-section (1) of Section 61 reads as follows:
Notwithstanding anything in any law for the time being in force, if any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, arises--
(a) among members, past members and persons claiming through members, past members and deceased members;
(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society; or
(c) between the society or its committee, and any past committee, any officer, agent or employee or any past officer, past agent or a past employee or the nominee, heir or legal representative of any deceased officer, deceased agent or deceased employee of the society;
(d) between the society and any other society, Such dispute shall be referred to the Registrar for decision."
Section 62 of the Co-operative Societies Act deals with action to be taken by Registrar on such reference. Section 129 of the said Act dealing with certain Acts not to apply, specifically says the provisions of the Companies Act, 1956, A.P. (Andhra Area) Shops and Establishments Act, 1948 and A.P. (Telangana Area) Shops and Establishments Act, 1951 shall not apply to Societies. It is very relevant to note that the provisions of the ID Act are not specifically excluded by including the said Act in the said provision. Apart from this aspect of the matter, whether a Society is 'industry' or not, is a larger question. In fact, in the decision referred (2) supra, it was held by the Apex Court that 'industry' as defined has a very wide import and certain tests had been specified as specified hereunder:
(a) Where there is (i) systematic activity, (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical) and (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss), prima facie, there is an industry in the enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.
While discussing the consequences it had been specifically held that professions, clubs, educational institutions, co-operatives, research institutes, charitable projects and other kindred adventures, if they fulfil the triple tests, cannot be exempted from the scope of Section 2(j) of the ID Act. In the decision referred (3) supra, while dealing "with the aspect of retrenchment and also the provisions of the ID Act and the A.P. Shops and Establishments Act, 1966, the Apex Court held as follows:
"If the employees are 'workmen' and the management governed by A.P. Shops and Establishments Act, 1966 is an 'industry' as defined in the Central Act and the action taken by the management amounts to 'retrenchment' then the rights and liabilities of the parties are governed by the provisions of Chapter V-A of the Central Act and the said rights and liabilities may be adjudicated upon and enforced in proceedings before the authorities under Section 41(1) and Section 41(3) of the State Act".
In a slightly different fact situation in the decision referred (6) supra, the Apex Court held that agricultural produce market committee does not perform sovereign function and falls within the definition of 'industry'. In the decision referred (supra), it was held that an industrial dispute between a Co-operative Bank and its workmen relating to the conditions of services of the workmen which are governed by the bye-laws of the bank, is not a dispute touching the business of the co-operative bank within the meaning of Section 61 of the A.P.Co-operative Societies Act, 1964 and the Industrial Tribunal has jurisdiction to adjudicate on such disputes. However, the learned Counsel representing the writ petitioner had placed strong reliance on the decision referred (1) supra wherein the Apex Court while dealing with disciplinary proceedings against an employee under M.P. Co-operative Societies Act had arrived at a conclusion that a reference under the ID Act is not maintainable inasmuch as the same being excluded in view of the specific provisions in the said Act. Drawing inspiration from the said judgment, it was strenuously contended by the learned Counsel that even if a finding had been recorded by the 1st respondent that the juniors are being continued and that it will amount to retrenchment attracting the provisions of the ID Act, the remedy of such an employee is by invoking Sections 61 and 62 of the Co-operative Societies Act and not by invoking the provisions of the ID Act. In substance, the stand taken by the Society is that though otherwise an employee of the Society may fall within the definition of 'workman' and even if the Society answers all the tests so as to fall under the definition of 'industry', despite the same, the remedy is only by invoking the provisions of the Co-operative Societies Act and not by invoking the provisions of the ID Act. I am not inclined to accept with the said contention for the reason that keeping in view the object and also the ambit of the several provisions of the ID Act, such an exclusion cannot be inferred and wherever there is retrenchment within the meaning of the provisions of the ID Act, the aggrieved workman is entitled to invoke the jurisdiction of the concerned Labour Court or Industrial Tribunal. Hence, the decision referred (1) supra which had been strongly relied upon by the learned Counsel for the writ petitioner is distinguishable on facts since in the peculiar fact situation, inasmuch as a specific provision is made under the relevant Act, the said view was expressed. But, especially in the light of Section 129 of the Cooperative Societies Act, such specific exclusion of the applicability of the ID Act in the case of workmen of a Society cannot be inferred. I am further supported in this regard by the decision referred (2) supra. It is also contended by the learned Counsel for the writ petitioner that at the best 1st respondent could have ordered reinstatement, but not granting straight absorption or regularization and hence it is beyond the powers of the 1st respondent in granting such a direction. It is pertinent to note under Section 11-A of the ID Act, the words "....is satisfied that the order or discharge or dismissal was not justified, it may by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require....". The words "....such other relief to the workman including the award of any lesser punishment....." is inclusive and the words "... other relief to the workman..." definitely, in my opinion includes even such a direction and even in this view of the matter, the said contention cannot be accepted.
8. In the light of the foregoing reasons and especially in the light of the well considered detailed reasons recorded relating to several factual aspects, I am not inclined to disturb any of such findings and I am of the considered opinion that the impugned award of the Labour Court does not suffer from any illegality or legal infirmity. Accordingly, the writ petition is dismissed. No order as to costs.