Punjab-Haryana High Court
Indian Farmers Fertilizers ... vs P.O., Labour Court, Chandigarh And ... on 23 December, 1999
Equivalent citations: (2000)125PLR33
Author: A.S. Garg
Bench: A.S. Garg, Harjit Singh Bedi
JUDGMENT A.S. Garg, J.
1. This order will dispose of L. P. A. No. 445 of 1998 and Cross-Objection No. 1 of 1998, arising out of common judgment passed by the learned Single Judge, dated July 14, 1998.
2. When there is a controversy relating to workman, the management would seldom offer a sympathetical shoulder for him to lean upon, especially, when the question arises as to the loss of faith in him. Respondent No. 2 J. C. Arora was employed on daily wages with the Indian Farmers Fertilizers Company Limited-appellant with effect from April 4, 1997 as a salesman. He was supposed to work as Salesman Fertilizers to various agriculturists and others. There was an advertisement Annexure G dated April 5, 1978 inviting applications for the post of Salesman in the department of the appellant. The minimum qualification required was that a candidate had to be a matriculate with two years experience as Salesman. The last date for receipt of the applications was April 14, 1978 i.e. within ten days of the publication of the advertisement. Respondent No. 2 made an application for this post on July 22, 1978.
3. Respondent No. 2 in his application Annexure H dated July 22, 1978 had mentioned that he was matriculate and had experience of having worked from September 1, 1969 to December 1, 1972 i.e. for three years and three months with Ram Raj Agricultural Co-operative Society Limited, Member, District Muzzafarnagar (U.P.) as a Salesman at a salary of Rs. 250/- per mensem and his services were terminated ultimately as no longer required. Another experience was from December 1, 1975 to September 27, 1976 for nine months 26 days in Haryana Warehousing Corporation, Ganaur as Accounts Clerk-cum-Godown-Keeper. Similarly, it was mentioned that his services were terminated as no longer required. These facts and circumstances were confirmed in the attestation form Annexure I dated April 14, 1979 by respondent. It was also referred that he did not earn any disqualification like the prosecution or any other penalty during his previous service. He was selected for one of the posts and he started working as such and his services were regularised on April 11, 1979. During his tenure with the appellant he was transferred from Sangrur Centre to Jagadhari, where he joined on June 6, 1990. At that place he committed some irregularity, by selling the fertilizer at an unrevised rate despite the revision of rates.
4. It also transpired that the experience which he had mentioned to have attained by him in his application form as well as in the attestation form were wrong. It also came to light that vide Annexure K, respondent No. 2 workman worked as Poster in the Office of Senior Superintendent Railway Mail Service where he tendered his resignation on March 22, 1972. In that department he remained under suspension from November 3, 1970 to November 25, 1979. He was placed under suspension for using abusive language and showed disrespect and exhibited indiscipline and it was, therefore, for that reason that his services were terminated. It also came out to be a fact that he also worked as a Messenger in the Food Corporation of India and he remained absent. He failed to produce medical certificate though his period of absence was being treated to be that of leave on medical ground vide Annexure L. Still in another document Annexure H it is mentioned that he also worked as Godown-keeper with the Warehousing Corporation and he was relieved of his duties within the probation period in 1976 as his conduct was not found satisfactory. So, wherever he worked before joining this service, his conduct was reprehensible.
5. So looking to all these circumstances the management issued a charge-sheet in the following terms :-
1) The retail sale price of the chemical fertilizer, namely Urea and NPK had been increased by the Government of India with effect from June 8, 1980 and this was announced in the morning news bulletin of A.I.R. at 8.00 A.M. on June 8, 1980 (Sunday). In spite of the increase in the selling prices of Urea and NPK, you with dishonest intentions and in connivance with Mr. Subash Chander, Helper, unauthorisedly had opened the Farmers Service Centre, Jagadhari on Sunday June 8, 1980 which was a closed day for the Centre and has unauthorisedly affected the sale of 285 bags of Urea at pre-revised rates on Sunday the June 8, 1980. With your active connivance Mr. Subhash Chander made these sales in your presence. Although the actual sale was effected on June 8, 1980, cash memos were prepared on that date but the actual date written on the cash memos was June 9, 1980; thus the cash memos prepared were post-dated which is a serious irregularity.
2) Again Mr. Subhash Chander, Helper, with your active connivance and in your presence had effected the sale of 9 bags of Urea (Cash Memo. 5362) and 6 bags of NPK (Cash Memo No. 5408) on pre-revised price on June 9, 1980. The pre-revised price of the bag of Urea was Rs. 72.50 paise and NPK Rs. 100/- and revised price of Urea was Rs. 100/- and NPK Rs. 137.50 per bag.
3) Thus on the sale of 294 bags of Urea and 6 bags of NPK the total loss to the society on account of difference of selling price comes to Rs. 9,310/-. Thus, you by your dishonest action or in connivance with Shri Subhash Chander caused a financial loss of Rs. 8,310/- to the society.
4) You are aware that the fertilizer from our Farmers Service Centre should not be sold to any fertilizer dealer. In spite of this, the aforesaid sale of 294 bags of Urea was actually made on Sunday June 8, 1980 at your instance to one Shri Gurcharan Singh S/o Shri Karam Singh, who himself was a fertilizer dealer at Jagadhari. The receipts were wrongly issued in the name of 5 different farmers though the total sale was made to only one person namely Shri Gurcharan Singh. The details of the names given in the sale receipts/cash memos are given below :
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Cash Name of the party to whom fertilizer No. dt. Amount Qty. No.
Memo Sr. sold 9.6.1980
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1. Sh. Gurcharan Singh, S/o. Sh. Karam 5357 Rs. 4350.00 60 bags Singh Vill. Mandoli.
2. Sh. Bhagwan Singh, S/o. Shri Jahawa 5358 Rs. 3987.50 55 bags Singh Vill. Naharpur
3. Sh. Sewa Singh, S/o. Sh. Rai Singh 5359 Rs. 5800.00 80 bags Vill. Satgoli
4. Sh. Kapoor Singh, S/o. Sh. Ram Singh 5360 Rs. 3262.00 45 bags Vill. Satgoli
5. Sh. Hari Chand, S/o. Sh. Ram Krishan 5361 Rs. 3262.00 45 bags Vill. Munda Mazra
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Further the signatures/thumb impression appearing on the aforesaid cash Memo Nos. 5258, 5359, 5360 and 5361 for having received the fertilizer (other than cash memo No. 5357 in the name of Shri Gurcharan Singh) are all forged.
5) In the application for employment dated July 22, 1978 and the attestation form dated April 11, 1979, you were supposed to correctly state all the facts as asked for from you. But it has been found that you had subnutted wrong information with regard to previous service, the details of which are given below :-
i) At the time of regularisation in the regular grade of salesman in this Organisation in your application for employment dated July 22, 1978 and in Attestation Form dated April 11, 1979 you had stated that you had worked as a Salesman from September 1, 1969 to December 1, 1972 on a salary of Rs. 250/- p.m. with Ram Raj Agricultural Co-operative Society Limited, Member, District Muzzaffar Nagar. In support of the experience of working with Ram Raj Agricultural Co-operative Society Limited, Member, District Muzzaffar Nagar, you had enclosed a false service certificate while the fact is that you had worked as a Class IV employee from February 15, 1967 to March 27, 1972 in the office of the Sub Record Office, RMS 'D' Division, Karnal. Thus, you have furnished the wrong information and suppressed the factual information.
ii) In your employment application dated July 22, 1978 and Attestation Form dated April 11, 1979 you had given wrong information about your employment for a period of March 28, 1972 to December 1, 1972. You had shown that during this period, you had worked with Ram Raj Agricultural Co-operative Society Limited, Member, District Muzzaffar Nagar as a Salesman on a salary of Rs. 250/- per month. While in fact during this period, you had actually worked in the office of the District Manager, Food Corporation of India, Rohtak as a Class-IV employee.
iii) You are supposed to disclose your all previous employment details while filing the employment form but in your employment application dated July 22, 1978 you have not shown as having worked with Food Corporation of India, Rohtak from March 28, 1972 to September 20, 1975, although you had actually worked in this office and thus you have suppressed the factual information. You have thus furnished wrong information and have suppressed the factual information about your past experience and Service Record and thus obtained employment in IFFCO by furnishing false information and suppressing the factual information. But for this misrepresentation of facts, you should not have been eligible for employment in IFFCO."
6. A regular enquiry was ordered and ultimately it was found by the Enquiry Officer that respondent No. 2 had caused the loss to the appellant to the tune of Rs. 8.310/- due to sale of fertilizer and committed other irregularities and knowingly furnished false information regarding his past experience of two years. He admitted that he had furnished false information regarding qualification under pressure of one D. S. Kanwar, Deputy Manager of the appellant as these things did not mean anything material and he did at the asking of that person. He claimed that he had written a letter to the department for correction of his mistake. The Enquiry Officer held that no such letter had reached the Manager. It was also finally observed by the Enquiry Officer that this was a serious breach of trust, fraud and misuse of position by the said workman. This brought the respondent before the Labour Court where the question arose as to whether respondent No. 2 was a workman or not ? It was being claimed that a Salesman is not a workman within the definition of Section 2(s) of the Industrial Disputes Act, (hereinafter referred to as the Act). This question was answered in favour of the respondent No. 2. While taking the lapses on the part of respondent No. 2, it was observed that Section 11-A of the Act was applicable. Despite short comings of the employee he was allowed reinstatement with 50 per cent backwages vide award dated November 29, 1991 which is Annexure P-1. This brought the workman in a writ petition claiming the full back wages. The management also came up in a writ petition before this Court and claimed setting aside of the award altogether and to maintain the findings of the Enquiry Officer. The learned Single Judge held that respondent No. 2 was a workman and dismissed the writ petition under Article 226/227 of the Constitution of India with the finding that the reinstatement was justified and the workman was entitled to Only 25 per cent of the backwages instead of 50 per cent and dismissed the writ petition of the workman.
7. This still brought the management in Letters Patent Appeal with the averments that in fact respondent No. 2 is not a workman and that the provisions of Section 11-A of the Act were not attracted in such a case where it had not only been proved but admitted that the workman had furnished false information regarding his past experience which was required to be mentioned in obtaining a job and he caused loss to the appellant-management which too was being brushed aside as perhaps the employee did not know about the revised rates of the fertilizer. Obviously the employee is resisting the Letters Patent Appeal. The letters Patent Appeal was admitted on December 1, 1998.
8. The learned counsel for the appellant and the respondent in person have been heard at length.
9. The learned counsel for appellant first of all has argued that in the real sense respondent No. 2 is not a workman and there are various judicial pronouncements which excludes the Salesman from the definition of workman and, therefore, the respondent No. 2 was completely excluded from bringing a reference before the Labour Court. He has referred to a case, namely Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. Burmah Shell Management Staff Association and others, (1970-II-LLJ-590) (SC). The official/employee involved was a Transport Engineer whose day to day work was of supervisory nature and it did not involve any manual work. Therefore, it was concluded by the Apex Court that he was not a workman. In another case T. P. Srivastava v. National Tobacco Co. of India Ltd. (1992-I-LLJ-86) (SC), the person concerned was a Salesman. There were many other Salesmen under him to work in the field. So the Section Salesman only managed the other Salesmen to work in the district of Bikaner and to see the progress of the sale and no manufacture, skilled or unskilled work was involved. In H. R. Adyanthaya v. Sandoz (India) Ltd. (1995-I-LLJ-303) (SC). In this case too there was a Medical Sales Representative who was not to perform any manual work or something like that and was also not held to be a workman. Lastly the learned counsel cited S. K. Maini v. Carona Sahu Company Ltd. and others (1994-II-LLJ-1153) (SC). In this case there was a Shop Manager/Incharge of the company, whose duty was purely supervisory in nature. The Apex Court held that the status has to be determined with reference to the principal nature of duties and functions performed by the employee. So, in this case the Shop Manager who himself was not to do any skilled or unskilled manual work was not held to be a workman.
10. So where the job of an employee is partly manual and partly clerical, he would squarely fall within the definition of Section 2(s). The facts of each and every case has its own peculiarity and merely because a person is designated to be a Salesman would not be such an employee who could be excluded from the definition of workman. There may be Salesman of tickets in a Transport who sells the tickets by calling passengers from here and there. He ensures their sitting arrangements in the bus/vehicle. So his physical and manual activities are involved. Similarly there are other Salesmen who have to partly do manual work and partly clerical work. The job of respondent No. 2 in the case in hand is neither supervisory nor purely clerical nor purely managerial. We are of the opinion that the findings of the learned Single Judge as regards this aspect of the case cannot be disturbed. In this view, we also find support from the authority in Carona Sahu Co. Ltd., Bombay v. The Presiding Officer, Labour, Jalandhar and another, 1993 (66) F.L.R. 266 (P&H) wherein it was held that the duties of Salesman would strictly come within the definition of 'workman' as given in Section 2(s) of the Act. The Bombay High Court in Krishan Charan Pramod Nath Chakraborty v. Indian Textiles Co. Ltd. and another, 1986 (62) F.L.R. 289 (Bom.) held that a Salesman is a workman under the Act. This was so held on the basis of the duties where the respondent in that case as a Salesman used to attend to customers, prepare Cash-Memos and demonstrate as to how to use the articles. The scope of the expression 'workman' is very wide and it is necessary to interpret the definition as not to wipe out the object of the Act.
11. However, coming to the other important point that of act and omission on the part of the employee having mentioned wrong facts and circumstances regarding his past employment by way of experience as a Salesman, the names of the Companies mentioned by him were contacted and it was found that he was never employed there. The respondent No. 2 was never employed as Salesman either with the Food Corporation of India, with the Post and Telegraph Department or in the Ware Housing Corporation. It may be mentioned here that it is the admitted case of the employee workman that he had mentioned his qualifications regarding the past experience at the instance of Shri D. S. Kanwar. So he tried to shift his burden on to some other Senior Officer of the management without connecting him to be responsible for inciting such a person to furnish false information. It is already mentioned that no letter is actually written by the employee even later on to correct his qualification in the application form or attestation form. A part of the observation made by the learned Labour Court regarding the conduct of an employee and his misdemeanour as under :
"Therefore, was not in a position (regarding revised rates of fertilizer) to Radio News. He denied that he was awarded (informed) of any increase in the rates of urea. As regarding mentioning of wrong facts in the application, it was stated by the petitioner these facts were given at the instance of Shri D. S. Kanwar, Deputy Manager, who had helped him in getting job with the IFFCO on the plea that some experience has to be mentioned while joining the new service."
12. The learned counsel for the appellant has quoted a case, namely Sanjay Kumar Bajpai v. Union of India and others, 1997 10 S.C.C. 312. This case relates to an employee who had knowingly supplied wrong information which helped him in obtaining the job and termination of his service was held to be justified. The aforesaid authority is fully applicable to the facts and circumstances of the present case where also the respondent No. 2 had also furnished wrong information in order to obtain a job with the appellant. Respondent No. 2, who has appeared in person, has raised few objections with regard to the maintainability of Letters Patent Appeal as well as to negative the contentions raised by the learned counsel for the appellant. According to him, the Letters Patent Appeal was admitted to a limited question as to the calculation of period of experience the respondent had acquired before his services were regularised. According to him, the aforesaid questions as to if he was a workman or not and that there was any concealment of facts regarding experience while he got into service and irregularities committed by him in the sale of Urea were not to be looked into. However, such a contention is untenable in view of the order of admission itself wherein it is mentioned "admit". Thus the admission of the LPA was not restricted to a limited point. There is no mention in the order of admission as such. Moreover, the point on which the L.P.A. was admitted and mentioned in the admission order is only one of the contentions raised by the appellant and could not restrain the appellant from raising the other questions involved for a just and proper decision of this appeal. The law is settled on the point that all the questions relating to the disposal of the appeal and taken up in the appeal can be adjudicated upon by the Bench. He then further argued that the sale of Urea was not in any way to the monetary disadvantage to the appellant. It was the contributory factor of the appellant itself that no intimation was sent to the respondent to charge the revised rates. It is already held in the enquiry as well as not repelled in the judgment of the Labour Court that it was the lapse on the part of the employee i.e. respondent No. 2. In fact the case in hand is peculiar where such objections or points taken up by the workman are totally of no significance when the lapses on his part are admitted one. His explanation that he mentioned a wrong qualification which he did not possess just to obtain the job and that it was because of Shri D. S. Kanwar, the Deputy manager of the appellant does not appear to be convincing as no responsible officer would ask such an employee to mention wrong facts and circumstances relating to his past service experience. Similarly, about the sale of Urea he mentioned that he was not communicated the rates. Respondent No. 2 further went to the extent that he even conducted the sale on holiday i.e. Sunday and did not even wait for a working day to come for conducting the sales. In such circumstances, it would be legitimate expectancy of the management that such a workman should not be foisted on them. Mention of the wrong experience in writing in the application form amounts to a sort of creation of false document and fabrication and then conducting of sale of Urea on the lower rates than prescribed are very serious lapses on the part of the workman and cannot be taken into oblivion. He even did not mention anywhere that he was relieved of the services being temporary wherever he worked with a stigma. His experience of two years has to be taken on the date he made an application i.e. on April 22, 1977 and cannot be counted on the date when he was actually regularised i.e. April 1, 1979. The experience is always to be reckoned on the date when the person applies and not from any later date after he had been allowed to join the service. His argument that since he applied much later than the prescribed date, therefore, he could not be deemed to have come against the vacancies so advertised. According to him, he was working as a temporary hand on daily wages already and he was not taken against vacancies advertised on September 15, 1978. As such he is estopped from saying so now as this is an after-thought when he has been found liable for various short comings he has put up such an explanation.
13. In the case in hand it is the conceded position that conditions of the employment of respondent No. 2 was that he was also to perform the work of "Helper" if and when such a Helper was not available. He was not incharge of any group of persons or had supervisory duty. Rather he himself was the person who brought the customers and not only issued cash memos but also was responsible for opening of the Godown and to see that the supply come to the Godown and the bags are duly issued and carried. If the Helper is not there, he has to carry the bags. There was nothing to suggest that respondent No. 2 was working in the supervisory capacity.
14. Regarding the provisions of Section 11-A of the Act in a case of discharge and dismissal of workman it is the satisfaction of the Tribunal or any other authority dealing with the matter which may satisfy such Court to award lesser punishment than dismissal etc. Such a satisfaction cannot be deemed to be purely discretion of the Court. It must be based on certain facts and circumstances which dilute the acts and omissions of the employee in the real sense. It is also to be seen that in case of grant of such a relief of exonerating the employee not only of his inefficiency but the real situation is to be seen i.e. loss of faith, if the matter deserves consideration. A misconduct is such that it cannot be ignored. We are of the opinion that in the case in hand the matter relating to the utter misconduct of respondent No. 2 has not been taken in the right perspective by the Tribunal nor cogent reasons are found for doing so in the discussion mentioned by the learned Single Judge. Hence the appeal filed by the management is allowed as a result of which the order of the learned Single Judge as well as that of the Presiding Officer Labour Court is set aside and the termination of the services of respondent No. 2 is restored. Cross-objections are ordered to be dismissed.
15. Certified copy of judgment to be given/despatched to respondent No. 2 free of cost.