The prayer in the Writ Petition is for issuance of a Writ of Certiorari to quash the award passed by the Labour Court, Karaikkal in I.D.No.8 of 2000 dated 14.06.2002.
2. The petitioner is the Management of Arigner Anna Primary Agricultural Co-operative Bank and the second respondent was its employee. The second respondent was retrenched from service on 21.2.1987 and was served with a notice in this regard on 23.2.1987. According to the petitioner/Management, before the order of retrenchment was passed, the second respondent was offered one month pay in lieu of one month notice period. However, the second respondent returned the amount and remitted the same into the Bank. Thereafter, on 18.8.1999, the petitioner submitted a petition before the Labour Officer for conciliation. The Labour Officer submitted a failure report to the Government of Pondicherry and the Government by an order dated 24.7.2000, referred the dispute for adjudication before the first respondent. The Labour Court adjudicated the claim and passed the impugned award ordering reinstatement with backwages. Aggrieved by such award, the petitioner Management is before this Court.
3. The learned counsel for the petitioner would submit that the first respondent/Labour Court has no jurisdiction to entertain the claim made by the second respondent, since the second respondent is not a workman as defined under
section 2(s) of the Industrial Disputes Act as the second respondent was working as a Manager in the petitioner Bank and the Labour Court without considering this aspect has passed the award; that the second respondent himself had admitted in several representations that he is the Manager and since this is admitted, the Management cannot be called upon to prove the same independently and that during the course of cross examination, the second respondent has stated that there were two other persons working under him which proves that the duties discharged by him were managerial in nature. Therefore, it is submitted that the Labour Court had no jurisdiction to adjudicate the claim of the second respondent. The learned counsel would further submit that there is an inordinate and unexplained delay of 12 years between the date of retrenchment and the date on which the second respondent initiated conciliation proceedings and on that ground itself, the Claim Petition ought to have been dismissed. That the Labour Court concluded that the second respondent was gainfully employed for a period of three years from 1.7.1989 to 6.6.1991 and such fact having been suppressed in the Claim Statement, the Labour Court ought to have denied the backwages in its entirety and erred in granting the relief of continuity of service.
4. The learned counsel for the petitioner relied on the following decisions in support of his contention that the 'Manager is not a workman':
(i) 2001 (1) LLJ 154 (SC) [BIRLA CORPN. LTD. vs. RAJESHWAR MAHATO & OTHERS]
(ii) 1994(2) LLJ 1153 (SC) [S.K.MANI vs M/S CARONA SAHU COMPANY LTD. & OTHERS]
(iii) 2004 (3) GLR 2753 GUJART HC [GUJARAT INDUSTRIAL CO-OP. BAK LTD. Vs. D.G.JOBANPUTRA] On the question of delay in raising the dispute, the learned counsel placed reliance on the following decisions:
(i) 2007(2) LLJ 935 JHARKHAND, HC [BRAHMANAND TIWARI Vs PRESIDING OFFICER LABOUR COURT & ANOTHER]
(ii) 1991 (2) LLN 684 KARNATAKA HC [C.CHANNAIAH Vs. PRESIDING OFFICER & ANOTHER On the aspect relating to gainful employment and that backwages is not automatic, the learned counsel relied on the following decisions:
(i) 2006 (1) SCC 479 [U.P.STATE BRASSWARE CORPN. LTD. & ANOTHER Vs UDAI NARAIN PANDEY]
(ii) 2009 (1) LLJ 326 SC [TALWARA COOP. CREDIT AND SERVICE SOCIETY LTD Vs. SUSHIL KUMAR]
(iii) 2009 (11) SCALE 50 METROPOLITAN TRANSPORT CORPORATION Vs. V.VENKATESAN
(iv) 2007 (2) LLJ 390 SC UTTRANCHAL FOREST DEVELOPMENT CO-OPERATION Vs. M.C.JOSHI]
5. Per contra, the learned counsel appearing for the second respondent would submit that the issue as to whether the petitioner is a workman or not was never canvassed either before the Labour Officer or before the Labour Court and it is raised for the first time before this Court and therefore such a plea should not be entertained. It is further contended that this being a question of fact, the same ought to have been raised by the Management at the earliest point of time and having failed to do so, they cannot be permitted to raise such a contention before this Court in a Writ Petition filed against the award of the Labour Court. It is further contended that the petitioner was only a Salesman in one of the shops attached to the petitioner Management and mere use of the terminology "Manager" is not a decisive factor, as the second respondent was only earning Rs.750/- per month and he was engaged in the sale of agricultural products and fertilizers. It is further contended that there is no latches as alleged by the petitioner, since the second respondent had represented as early as on 5.8.1987 and subsequently in 1992, for which a reply was received from the Management on 28.8.1992. Thereafter, the second respondent issued a legal notice during 1999 and subsequently, initiated proceedings for conciliation. Inasmuch as the second respondent having been illegally thrown out of employment, cannot be denied legal remedy solely on account of passage of time.
6. The learned counsel by referring to the bylaws of the Society, would submit that even for the purpose of availing leave, the second respondent has to obtain permission of the President of the Society and as per the bylaws, the second respondent had only power to incur expenses to the extent of Rs.5/- and these facts would go to establish that the second respondent was only a workman in the petitioner Management.
7. The learned counsel for the second respondent would submit that decisions relied on by the learned counsel for the petitioner have no application to the facts and circumstances of the present case as the case on hand is a case of retrenchment and the case laws relied on by the learned counsel for the petitioner are cases relating to dismissal or termination of service. The Labour Court having arrived at a factual finding that the order of retrenchment was bad in law, this Court should not re-appreciate the factual finding and come to a different conclusion. On the above grounds, the learned counsel prayed for dismissal of the Writ Petition.
8. I have carefully considered the submissions made by the learned counsel appearing on either side and perused the materials available on record.
9.The first question to be decided is as to whether the second respondent was a workman or was employed in a managerial position ?
10.Before going into the factual aspect, it is noteworthy to mention that this aspect of the matter was not raised by the Management at any earlier point of time. The failure report submitted by the Labour Court has been filed in the typed set of papers filed by the second respondent. A perusal of the same reveals that though notice was served on the petitioner by the Labour Officer to submit their objections to the claim made by the second respondent, the petitioner/Management did not submit any written response. However, the representative of the Management appeared for the enquiry on 21.4.1999 before the Labour Officer and reiterated the stand that the order of retrenchment passed against the second respondent was valid.
11.It appears that the conciliation proceedings were adjourned from time to time and ultimately since the conciliation failed, the Labour Officer has submitted his failure report on 23.9.1999. The Government by G.O.(Rt) No.24.7.2000, referred the dispute for adjudication to the first respondent and the terms of reference are as follows:
"1. Whether the act of filling up of the vacancies by the Management of M/s Arignar Anna Primary Agricultural Co-operative Bank, T.R.Pattinam,Karaikal without giving preference to the retrenched employee viz. Thiru T.Arangasamy is justified or not ?
2. To what relief/ benefits the said workman is entitled to?
3.To compute the relief, if any, awarded in terms of money if it can be so computed. ?"
This Government Order was also published in the Pondicherry Government Gazetee on 15.8.2000.
12.A perusal of the Government Order as well as the Gazettee Notification reveals that the second respondent was described as workman of the petitioner Management. Thus it appears that the petitioner Management did not raise a contention either before the Government or after the Notification by challenging the order of reference, stating that the second respondent was not a workman.
13.The Hon'ble Supreme Court in (2007) 7 SCC [C.GUPTA v. GLAXO-SMITHKLINE PHARMACEUTICALS LTD.,] laid down the factors to be considered for determination of whether particular employee is a "workman" as per
Section 2(s) of the Industrial Disputes Act and held thus:
"18.It is not in dispute that the nomenclature is really not of any consequence. Whether a particular employee comes within the definition of workman has to be decided factually. In fact, it has been found as a matter with reference to various factual aspects that the duties undertaken by the appellant overwhelmingly fell in the managerial cadre...."
Thus, the question whether the second respondent is a workman or not is purely a question of fact and cannot be decided purely on the nomenclature of the post held by the second respondent.
14. Before the Labour Court, the second respondent filed his claim statement. Apart from various other grounds, the second respondent has raised a contention that the order of retrenchment is in violation of
section 25(f) of the Industrial Disputes Act. The petitioner Management filed their counter statement and even in the said counter statement, the petitioner did not raise the question of jurisdiction. Thus, it is clear that the question as to whether the second respondent was a workman or a person employed in Managerial capacity is raised for the first time before this Court. A faint plea has been raised by the learned counsel for the petitioner contending that in the written argument before the Labour Court, such contention was raised. As held by their Lordships of the Hon'ble Supreme Court in the case of C.GUPTA, referred supra, the question whether the second respondent was a workman or discharging managerial function is a question of fact. Therefore, it has to be not only specifically pleaded, but also to be proved before the Labour Court. In the absence of any such specific plea and in the absence of any proof to the said effect, such a plea cannot be allowed to be raised at this distance of time. Mere mention in the written argument before the Labour Court will not justify the stand of the Management.
15.It is not in dispute that the second respondent was earning only Rs.750/- per month and from the bylaws it is clear that the second respondent had only power to spend to the value of Rs.5/-. Therefore, it is evidently clear said that the second respondent was not exercising managerial function. In any event, a mere attempt by the second respondent stating that he was the "Manager" would not make him a person discharging managerial functions. In absence of any evidence to this aspect, I am not able to countenance such a plea raised by the petitioner.
16. On the factual aspect, the Labur Court framed two issues for consideration namely whether the second respondent has to be reinstated with backwages and as to what relief the second respondent is entitled to ? The second respondent examined himself as W.W.1 and marked 12 documents. The Management examined one Mr.Sivaji as M.W.1 and marked 11 documents. The Labour Court after considering the oral and documentary evidence held that the Management by a resolution dated 21.2.1987, retrenched the service of the second respondent and another employee Govindarasu with effect from 23.2.1987 and before the order of retrenchment was passed, the Management did not give any notice or any pay in lieu of notice and deposition of the Management witness was to the effect that when the second respondent was in employment, he caused loss to the society and certain complaints were received and based on that the second respondent was retrenched. Thus, it is clear that the order of retrenchment was punitive and if that be the case, the petitioner Management ought to have framed charges and conducted an enquiry before dispensing with the services of the second respondent. Therefore, the Labour Court on considering the aspect that no charges were framed on the allegations against the second respondent and no domestic enquiry was conducted, came to the conclusion that the order of retrenchment was not based on any allegation against the second respondent as stated by the Management witness. However, the fact was that the order of retrenchment was made pursuant to a resolution dated 21.2.1987 alleging poor financial condition of the petitioner bank and that they were unable to pay the wages to their employees. Therefore, the Labour Court concluded that prior to the order of retrenchment, the Management was bound to comply with the provisions of
section 25(f) of the Industrial Disputes Act and on failure to comply with the mandatory provisions, the resolution retrenching the second respondent from service is not sustainable. Further, the Labour Court took note that after the second respondent was retrenched, one Vellupillai was appointed as Manager, Chandra as Cashier, one Balaji as Salesman and Anbhazagan and Swaminathan as peons and one Tractor Driver on daily wage basis and even at that point of time, the request made by the second respondent to reinstate him in service was not considered. In fact this was one of the issues referred for adjudication. The Labour Court also appreciated the documents filed by the workman Exs.W4, W8 and W9, which were letters sent by the second respondent requesting the Management to reinstate him in service. Therefore, the Labour Court disbelieved the reasons given in the resolution passed by the petitioner for retrenching the service of the second respondent more particularly when immediately after the second respondent was retrenched, they have employed several persons in various positions. Thus, the Labour Court came to a conclusion that the second respondent has to be reinstated in service.
17. On the aspect relating to backwages, the Labour Court held that between the period 1.7.1989 and 6.6.1991, the second respondent was employed in Pondicherry Fishermen Co-operative Society with a monthly wages of Rs.800/- as established by Ex.M9 and therefore denied the backwages for the said period.
18. Thus, in my view, the Labour Court after properly appreciating the evidence available on record came to a conclusion that the order of retrenchment was without any basis and that there has been violation of
section 25(f) of the Industrial Disputes Act and therefore passed the award of reinstatement with backwages, however, denied backwages for the period from 1.7.1989 to 6.6.1991, during which period the second respondent was employed in the Pondicherry Fishermen Co-operative Society. Therefore, I find no valid reason to re-appreciate the findings arrived at by the Labour Court to come to a different conclusion.
19. Coming to the case laws relied on by the learned counsel for the petitioner, it has to be noted that the aspect as to whether the second respondent was a workman or a person discharging Managerial functions, is a question of fact which ought to have been raised and proved before the Labour Court. In the case on hand, this contention was never raised either before the Conciliation Officer or at the time when the matter was referred for adjudication by the Government or before the Labour Court. In the absence of any such plea having been raised at any earlier point of time, especially when they have suffered an award which has been rendered after appreciating the facts and findings on record, the case laws on these aspects cannot render any assistance to the case of the petitioner Management.
20. Similarly on the aspects relating to the delay in raising the dispute, the Labour Court itself appreciated the scope of the documents marked by the respondents namely Exs. W4, W8 and W9 and came to the conclusion that the second respondent has been continuously requesting for employment. That apart, it is seen that the second respondent has been making series of representations between 1987 to 1992 and ultimately initiated Conciliation proceedings in 1999 and thereafter the matter was referred to the Labour Court for adjudication. Therefore, on facts I find no justification to reject the claim of the second respondent on the ground of laches as alleged by the petitioner/ Management.
21.The delay or laches cannot be assessed solely on account of physical running of time. This has to be appreciated considering the facts available on record. To throw out a matter on the question of delay, it should be established that there has been a supine indifference on the part of the persons approaching the Court/Forum or a deliberate inaction. In the case on hand, the second respondent being a low wage earner, cannot be faulted for having repeatedly represented to the petitioner for reinstatement and thereafter invoking the provisions of the Industrial Disputes Act. Hence, I am not able to accept the contentions raised by the petitioner in this regard.
22.It is true that backwages is not automatic. For denying backwges, the Labourt Court has to assign reasons. The management has been able to prove that the second respondent was gainfully employed by receiving salary of Rs.800/- per month from a Co-operative Society between 1.7.1989 and 6.6.1991. For this period, the Labour Court has rightly denied wages. Therefore, for all the above reasons no error can be attributed to the award passed by the Labour Court.
23. In the result, the Writ Petition fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
20.08.2010 rpa Index :Yes Internet:Yes T.S.SIVAGNANAM J, rpa To
1. The Presiding Officer Labour Court, Karakal, Pondicherry.
Order in W.P.No.9162 of 2003 20.08.2010