Bombay High Court
Jayhind Vithoba Mahadik vs The General Manager, Maharashtra ... on 13 April, 2004
Equivalent citations: 2004(5)BOMCR92, [2004(102)FLR993], 2004(3)MHLJ733
Author: Nishita Mhatre
Bench: Nishita Mhatre
JUDGMENT Nishita Mhatre, J.
1. This Petition is directed against the order dated 28th June 1996 passed by the Industrial Court, Kolhapur in Revision Application (ULP) Nos. 334 and 335 of 1995 which in revision has set aside the order dated 12th June 1995 of the Labour Court, Satara passed in Complaint (ULP) No. 123 of 1991 filed by the Petitioner. The Labour Court had allowed the Complaint partly by directing the Respondent to reinstate the Petitioner with continuity of service and 50% back wages.
2. The facts giving rise to the present Petition are as follows :
The Petitioner joined the service with the Respondent as an Assistant Security Officer after retiring prematurely from the Indian Air Force. He was later promoted on 15th May 1989 as Security Officer. The Petitioner was terminated from service with effect from 6th October 1991 without any charge-sheet being issued to him and without an enquiry being held. Aggrieved by this action of the Respondent, the Petitioner filed Complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act"). Ex-parte ad-interim orders were passed which were set aside in Revision. Writ Petition was filed by the Petitioner which was allowed. A Letters Patent Appeal was filed by the Respondent. The Division Bench of this Court directed the Respondent to pay 50% back wages to the Petitioner during the pendency of the Complaint.
3. Evidence, both documentary and oral, was led by the parties before the Labour Court. The Labour Court came to the conclusion that the Petitioner was a "workman" Under Section 2(s) of the Industrial Disputes Act, 1947 and, therefore, the Complaint was maintainable. On merits, the Labour Court held that the termination of service of the Petitioner was illegal, improper and that the Respondent had committed unfair labour practice under Items 1(a), (b), (d) and (f) of the Act. The Labour Court directed the Respondent to reinstate the Petitioner with continuity of service and 50% back wages. The 50% of the back wages has already been paid to the Petitioner.
4. Aggrieved by this order of the Labour Court, the Respondent as well as the Petitioner preferred Revision Applications under Section 44 of the Act. The Industrial Court allowed the Revision Application filed by the Respondent and set aside the order of the Labour Court on the ground that the Petitioner was not a "workman" as defined under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D.Act"). The Revision Application filed by the Petitioner was rejected. Being aggrieved by the rejection of the Revision Applications the Petitioner has preferred the present Writ Petition.
5. Mr. Patil, learned Advocate for the Petitioner, has submitted that the scope of the jurisdiction vested in the Industrial Court under Section 44 of the Act is extremely narrow. The Industrial Court can interfere with the findings of the Labour Court only if there is an error apparent on the face of the record or the findings are perverse. According to the learned Advocate, the Labour Court had arrived at a finding of fact that the Petitioner was a "workman" as defined under Section 2(s) of the I.D. Act and, therefore, the Complaint was maintainable. He urges that the Industrial Court in Revision could not come to a different conclusion on facts as to whether the Petitioner was a workman. According to the learned Advocates the Industrial Court has re-appreciated the evidence on record and concluded that the Petitioner is not a workman. He relies on the judgments in the case Ramchandra Narayan Rao v. Sub-Divisional Officer, Mandur Madhameshwar Project and Ors., and R.A. Yadav and Ors. v. Special Steels Ltd. and Anr., in support of his contention. On merits, the learned Advocate submits that there is ample evidence on record to indicate and establish that the Petitioner was a workman within the meaning of Section 2(s) of the I.D. Act. He relies on certain decisions of this Court as well as the Supreme Court in support of his contention that although the Petitioner was considered a Security Officer, that was only a nomenclature used and in fact the Petitioner was a workman as defined under Section 2(s) of the I.D. Act. Reliance is placed on the judgment of the Apex Court in Ved Prakash Gupta v. Delton Cable India (P) Ltd., as also the judgments of this Court in The President, Andha Mahila Ashram v. Smt. J.G. Ajagaonkar, and Shri Aloysius Nunes v. Thomas Cook India Ltd., .
6. Mr. Topkar, learned Advocate for the Respondent, submits that once the Industrial Court has found that the findings of the Labour Court are perverse, the Industrial Court has no reason to interfere with the order of the Labour Court. He submits that in the present case the Industrial Court has interfered with the findings of the Labour Court as the Industrial Court has concluded that the findings are perverse. On the assessment of the evidence led before the Labour Court, the Industrial Court, according to the learned Advocate, has relied on the case of H.R. Adyanthaya etc. v. Sandoz (India) Ltd., 1995 1 LLJ 303 and has rightly come to the conclusion that since the Petitioner does not fall within the purview of the definition of Section 2(s), he is not a workman as defined, although he may not fall within the excluded categories. According to the learned Advocate, the burden of proof need not be considered at this stage as evidence has been led by both the parties before the Labour Court on the basis of the issues framed. Reliance is placed on the judgment of the Supreme Court in the case of Smt. Rebti Devi v. Ram Dutt and Anr., AIR 1998 SC 310 and Arumugham (dead) by L.Rs. and Ors. v. Sundarambal and Anr., . He submits that the Respondent has discharged the burden of proving that the Petitioner was not a workman by documentary evidence and it is not necessary that in every case oral evidence must be led to establish a certain fact. According to the learned Advocate, the work that the Petitioner was performing could not be said to be either manual, skilled, technical or operational as the Petitioner was performing managerial/supervisory work. He submits that the Petitioner was required to interview persons to be appointed as watchman; he not only recommended their selection but in fact selected various persons. Leave could be sanctioned by him to the watchman working under him. According to the learned Advocate, a cumulative consideration of all the documentary evidence on record would establish unmistakably that the Petitioner was not a workman. Therefore, the Industrial Court has rightly dismissed the Complaint. The learned Advocate has placed reliance on the judgments in S.S. Samsi v. Kirloskar Cummins, 2003 I CLR 50, G.S. Khairkar v. Camlin Ltd., 1997 II CLR 1164, S.V. Panvalkar v. Presiding Officer of 1st Labour Court and Ors., 1992 I CLR 184, R.R. Wasa v. The Commissioner, Revenue Division, Amravati, 1996 I LLJ 55 and Union Carbide (I) Ltd. v. Ramesh Kubla, 1999 I CLR 193.
7. There is no doubt that the jurisdiction vested in the Industrial Court under Section 44 is circumscribed and can be exercised only if there is an error of law apparent on the face of record or the Labour Court has come to the conclusion which is perverse. In fact, the jurisdiction vested under Section 44 is akin to the jurisdiction exercised by the High Court under Article 227 of the Constitution of India. In the case of Ramchandra N. Rao (supra), a learned Single Judge of this Court has held that the jurisdiction of the Industrial Court under Section 44 is to be exercised only when there is error apparent on the face of the record or if the order of the Labour Court is perverse or is of such a nature that no reasonable man would come to such a conclusion. In the present case, the Industrial Court has in fact after considering several judgments cited before it, observed that it cannot re-appreciate the evidence. However, I find that the Industrial Court has done precisely this by re-appreciating the evidence on record. The Labour Court had arrived at a possible conclusion. The Industrial Court could not sit in appeal over the judgment of the Labour Court. Merely because a different view was possible, the Industrial Court could not have set aside the order of the Labour Court. The Labour Court had exhaustively dealt with the judgments relied on by the parties as well as the evidence, both documentary and oral led and has come to a possible conclusion. The Industrial Court, therefore, could not have interfered with this finding since there is nothing to indicate that the finding was perverse. All that the Industrial Court has done is to re-appreciate the evidence on record and come to a different conclusion. In my view, this was not the proper approach adopted by the Industrial Court.
8. Documents which were filed before the Labour Court have been produced before me to indicate that the Petitioner was not a workman but in fact was an officer of the Respondent. I have gone through this documentary evidence and I do not find that it clearly establishes the fact that the Petitioner was not a workman. Reliance placed on certain documents which indicate that the Petitioner was appraising the performance of the watchmen, would not mean that he was an officer. This was only part of a job that he was required to do. Moreover? appraisal was not confined only to Petitioner's report but the was required to be appraised by other higher authorities. Although leave could have been sanctioned by the Petitioner to the watchman concerned and their roster made by him, this would not in my view indicate that the Petitioner was not a workman. In any event, it is trite law that nomenclature does not in any manner establish the status of the person working in an establishment. The nature of the work that the person performs is required to be considered. The duties which the person is expected to carry out has also to be considered. The learned Advocate for the Petitioner has rightly placed reliance on the judgments which were similar to the case before me.
9. I have been taken through the evidence led by both the parties and I do not find any reason to differ from the findings of the Labour Court. The Industrial Court was clearly in error in setting aside the order of the Labour Court.
10. In view of the above, Writ Petition is allowed. The order of the Industrial Court, Kolhapur dated 28th June 1996 is set aside and the order dated 12th June 1995 passed by the Labour Court, Satara in Complaint (ULP) No. 123 of 1991 is restored.
11. Rule accordingly made absolute with no order as to costs.
12. Mr. Topkar, learned Advocate for the Respondent, seeks stay of this order. Operation of this order is stayed for four weeks from today.
13. Parties to act on an ordinary copy of this order duly authorised by the Personal Secretary of this Court.