Allahabad High Court
H.R. Sugar Factory vs State Of U.P. And Ors. on 19 December, 1996
Equivalent citations: (1998)IIILLJ650ALL
Author: R.K. Mahajan
Bench: R.K. Mahajan
JUDGMENT R.K. Mahajan, J.
1. This is a writ petition filed by management-petitioner praying that a writ, order or direction in the nature of certiorari be issued quashing the interim award dated November 28, 1978 passed by the Labour Court, Bareilly (Annexure-5 to the writ petition) holding that the respondent is a workman within the definition of Section 2(z) of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter to be called as 'Act'). It is also prayed that a writ of mandamus directing the law be also issued.
2. The matter was stayed in the High Court in 1979. It appears that the petitioner, who was allegedly working as cane-inspector with the petitioner company, his services were terminated on February 16, 1975. He took up the matter to the Government and the Government considering it as an industrial dispute referred the matter to the Labour Court for decision. The Labour Court framed the following two preliminary issues :--
1- D;k fookn ls lEcfU/kr Jfed Jh mes'k pUnz nhf{kr mRrj izns'k vkS|ksfxd fookn vf/kfu;e ds vUrxZr Jfed dh ifjHkk"kk esa ugha vkrk gS A 2- D;k orZeku fookn vkS|ksfxd fookn ugha gS A
3. The Labour Court after recording detailed findings in the interim award held that the respondent is a workman and there is industrial dispute and did not go into the merits of termination order. Feeling aggrieved, the writ petition has been filed.
4. Sri J.N. Tewari, learned counsel for the petitioner has submitted that the Labour Court has committed grave error apparent on the face of record holding that the respondent is a workman and the order is based on surmises and conjecture. He has further submitted that the respondent was doing a supervisory duty and his pay was more than Rs. 500/- and as such he is not a workman and the Labour Court has no jurisdiction to return the finding.
5. The learned counsel appearing for the respondent submitted that the finding of the Labour Court is correct. She further submitted that the duty of sugar cane inspector is only to check and examine the quality and quantity of the sugar cane which were brought by the farmers. He is also to check at the time of operation season whether the stationery was available at cane centres and the clerical staff does not feel any difficulty. He is also to get information whether the sugar canes were loaded timely or not.
6. We are of the considered opinion after hearing the learned counsel for the parties that the Industrial Tribunal should avoid piecemeal trial by way of framing preliminary issues. The Labour Court perhaps did not understand the concept of the preliminary issue. It is settled law that on preliminary issue, no evidence is led. If any issue involves of leading the evidence, it remains no preliminary issue, in relation either to the jurisdiction of the Court or the suit being barred under the prevailing law. Here, the question of determination of workman was intermingled with termination of the worker's services.
7. Thus the preliminary issue does not require any evidence. However, in this case when the Government thought it fit that it is the industrial dispute and the respondent is a workman only then it referred the matter. Prima facie, the Government was satisfied about the ambit of reffering the case, It may be mentioned that the Labour Court is original Court of jurisdiction in labour matters and has vast powers in the matter of labour disputes and it is necessary to answer the reference after giving opportunity to the parties and then the award is passed. The sanctity of the award has been attached so much so that it is rarely interfered under Article 226 of the Constitution of India unless there are some jurisdictional errors. The finding of fact is never interfered and the High Court cannot examine the award as a Court of appeal or reviewing authority. The finding of fact is not interfered unless is based on no evidence. The approach of the Labour Court in trying the two preliminary issues is illegal and is not warranted by law. We would like to quote the language of Order 14 Rule I, C.P.C. regarding framing of issues as under :-
"1. Framing of issues -(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.
(4) Issues are of two kinds :
(a) issues of fact,
(b) issues of law, * * * *
8. Court to pronounce judgment on all issues :
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2) pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to :--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue."
In fact, the two issues framed by the Labour Court required any evidence. The legislature in its wisdom in 1976 by making amendment in the Code of Civil Procedure by Act 104 of 1976 introduced this provision in order to avoid piecemeal trial. It has been done if after more than 15 years, as happened in this case, the High Court or any other authority comes to a conclusion that the issue decided by the labour department is in accordance with law, but, the workman will get nothing if on preliminary issues his case is decided after 17 years. This was not the concept or intention introduced in the Industrial Disputes Act. The Industrial Disputes Act is meant to resolve the disputes expeditiously so that there is peace in the factory and there is regular and maximum production in it. The procedure, which has been adopted by the Labour Court and later on the matter has been prolonged, what a travesty of justice ? Is it not mockery of the justice by way of depriving a genuine workman to get justice quickly. The procedure in Labour Court should not be adopted lengthy one and the Labour Court cannot go beyond reference and the claim of petitioner is based on reference and the written statement of the management and avoid the decision on these technical issues and decide all the issues rather than the preliminary issues. We are of the considered view that this practice is not approved. We are fortified also with the decision of Hon'ble Supreme Court in the case of D.P. Maheshwari v. Delhi Administration and Ors. (1983-II-LLJ-425) in which it was held as under :-
".....There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore, ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other weeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues."
8. The rationale to avoid piece-meal trial is that all issues should be tried together and the matter would have been resolved on merits by this time. The Labour Court is meant to provide justice to the workers and management and to see peace and harmony prevailing in the industry and the disputes are resolved in a harmonious manner. This is a very glaring instance. Now the matter would take some time for decision and the management may file writ, to break the stamina of the worker in case it loses case and the Labour Court should stop the management from these tactics and put a brake on it rather than to encourage.
9. The learned counsel for the petitioner urged that the respondent is not a workman. We are not going to disturb the finding at all. We are satisfied with the finding of the Labour Court as well as the material on record that the respondent is a workman. The learned counsel made a frantic appeal that this question should be left open. He chose to get decision. We totally reject the same.
10. Now we would like to refer to Section 2(z) of the U.P. Industrial Disputes Act in order to ascertain whether the respondent is a workman or not. Section 2(z) of the Act is quoted below:--
"(z) 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical 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 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 Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; 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 five 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. We are of the considered view that merely the petitioner has been labelled as a cane inspector, it does not mean that he exercised the supervisory or administrative powers. He is performing the clerical job or collecting some information and doing nothing else. He has no powers of appointment or punishment etc.
12. We would like to refer certain decisions. In Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. The Burmah Shell Management Staff Association and Ors., (1970-II-LLJ-90) (SC) it has been held as under :
"A person cannot be assumed to be a workman on the ground that he does not come within the four exceptions in Section 2(s). The specification of the four types of work in the definition in Section 2(s) obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who, hot doing any such work, would be out of the scope of the word 'workman' without having to resort to the exceptions. In practice, quite a large number of employees are employed in Industries to do work of more than one of the kinds mentioned in the definition. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of 'workman' under the exceptions. For this purpose, a workman must be held to be employed to do that work which is the main work he is required to do even though he may he incidentally doing other types of work."
13. In Ved Prakash Gupta v. Delton Cable India (P.) Ltd., (1984-I-LLJ-546) (SC) it is held as under:
"In the instant case, substantial part of the work of the concerned employee consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors to the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as regards materials entering or going out of the premises of the factory. In the absence of any written directions specifying his duties the employees also did other items of works such as signing identity cards of workmen, issuing some small items of stores like torch cells etc. to his subordinate watchmen, which can be got from the stores even under the signatures of watchman and filling up application forms of other workmen and countersigning them or recommending advances and loans or for promotion of his subordinate. However, he had no power to appoint or dismiss any workman or order any enquiry against any workman.
Held that, in these circumstances the substantial duty of the concerned employee was only that of a Security Inspector at the gate of the factory premises and it was neither managerial nor supervisory in nature, so as to exclude him from the definition of "workman" under Section 2(s) of the Act."
Also in Western India Match Co. v. Workmen, (1963-II-LLJ-459) (SC) the inspectors and salesmen in the employment of the company were held as workmen. It is settled law that occasional entrustment of supervisory, managerial or administrative work, will not take a person, mainly discharging clerical duties, out of the purview of Section 2(s). So in this case also merely that the respondent was going to the field for collecting information would not confer upon him the managerial, supervisory or administrative duties. We have to see the nature of job and not the label. The pay is so meagre i.e. Rs. 500/- We will not give him the label of cane inspector as, in fact, he was performing the clerical nature of job and has no administrative powers.
14. Sri Rakesh Tewari, Advocate, has cited certain rulings i.e. Rajasthan Khadiand Village Industries v. State of U.P. 1972 Lab. IC page 976. This ruling is not relevant as this was under Rajasthan Khadi and Village Industries Board Act, 1955. Similarly, the ruling reported in Mcleod and Co. v. Sixth Industrial Tribunal, West Bengal and Ors., AIR 1958 Cal. 273, is also not relevant as it related under Section 33A of the Industrial Disputes Act, 1947 and some other matters regarding allowances and only touched regarding the definition of managerial and supervisory aspect. Similarly the ruling Lloyds Bank Ltd., New Delhi v. Panna Lal Gupta and Ors., (1961-I-LLJ-18) (SC) is also not relevant. This is related to Shastri award.
15. In view of the aforesaid discussion and reasons recorded, we find no merits in this petition. The writ petition is dismissed. However, the case be decided by lower Court within two months of the receipt of the record. We also award Rs. 1000/ - as costs payable by the management to the respondent. It may be mentioned that in U.P. Industrial Disputes Act, there is no amendment in the pay of workman i.e. under Section 2(z) Clause (iv) whereas in the Central Industrial Disputes Act, the pay has been raised to Rs. 1600/- since long. We are informed by the counsel for the parties regarding non-existence of provision at par with the Central Industrial Disputes Act. It is suggested to the Government to atleast raise the pay of workmen to Rs. 1600/- or more considering the galloping inflation.
16. The Registrar is directed to send a copy of this judgment to the Secretary, Labour, U.P. Lucknow who in turn will circulate the same to the Labour Court and Industrial Tribunal.