This writ petition is filed by the Management against the Award dated 22.10.1998 passed by the first respondent Labour Court and made in I.D. No.922 of 1993 inasmuch as it had granted relief of reinstatement with backwages and continuity of service to the second respondent.
2. The claim of the petitioner was that the Award suffers from material irregularity and manifest error.
3. The second respondent has filed a counter affidavit dated 'nil' (May 2003) refuting the stand of the petitioner. By an order dated 29.8.2003, this Court while admitting the writ petition had granted the stay of the Award in so far as it relates to payment of backwages.
4. The facts of the case are as follows:-
The second respondent was appointed as a sales representative in the petitioner book publishing house right from the year 1988 and the petitioner started the office in Chennai. It is claimed by the second respondent that though the nomenclature was that of a sales representative, his substantial work was clerical and manual. Only four to five days in a month, he was deputed for outstation tour for sales promotion. He was doing the duties of checking the stock received from Delhi office, opening the parcels and verifying the correctness of the stocks of the invoice. He had to arrange them in the rack meant for that. He was also making bills for the customers.
5. It is claimed by the second respondent that the problem started for him in the year 1992 when his annual increment was not paid and the Sales Manager instructed the Branch Manager at Chennai not to grant increments. The second respondent complained to the Head Office, consequent to which, from 22.8.1992 he was asked to attend work in the office and not to attend any work regarding sales. Once again the second respondent made a complaint to the Head Office. However, on 15.2.1993 he was served with an order of transfer to Ernakulam Branch in Kerala State. When the second respondent workman protested that it was not part of the conditions of his service and that he will not comply with the order. He started reporting to the office at Chennai but he was not allowed to affix his signature.
6. On 04.3.1993, the workman received a telegram from the management informing that he was not reporting duty at Ernakulam Branch, and as his services were required at Jalandhar office (Punjab), he was asked to report for work at Jalandhar. The workman protested against the illegal transfer and did not comply with the same. But he was not allowed to report for duty at Chennai. Despite several letters written to the management, they did not reply to those letters. Therefore, he was forced to raise an industrial dispute regarding his non-employment under
section 2A of the Industrial Disputes Act, 1947 (for short, 'ID Act'). The dispute finally reached the first respondent Labour Court which took up the dispute as I.D.No.922 of 1993. The second respondent filed a claim statement to which the petitioner filed a counter statement.
7. Before the Labour Court, the second respondent workman examined himself as W.W.1. On the side of the petitioner management, one S.M.Alphones was examined as M.W.1. While the workman had filed 12 documents, which were marked as Exs. W.1 to W.12, on the side of the management, 6 documents were filed and were marked as Exs. M1 to M.6.
8. In their counter statement dated 01.6.1994, the management questioned the maintainability of the industrial dispute both on the ground that the second respondent was not a ''workman'' within the meaning of
section 2(s) of the ID Act and that there was no termination so as to bring the dispute within the meaning of
Section 2A of the ID Act.
9. The Labour Court on an analysis of the evidence, both oral and documentary, came to the conclusion that the non-employment of the second respondent was illegal and that he was liable to be reinstated with backwages and service continuity. The Labour Court also held that he was a ''workman'' within the meaning of
Section 2(s) of the ID Act. The mere nomenclature of the workman as a 'sales representative' will not determine his status. It also held that the petitioner management had not proved that they have power to transfer a workman from one office to other office outside the State and they have not satisfactorily proved that in the past any such workman had ever been transferred. When the workman had protested, he was denied employment when he went to report for work on 16.3.1993, and the management did not give any reply to the workman thereby proving that he was physically prevented from working, and that it will amount to a non-employment.
10. The writ petition was admitted on 03.8.1999. Pending the writ petition by an order dated 29.8.2003, this Court had granted only stay against the claim for backwages. But there was no stay regarding reinstatement.
11. Mr.S.Ravindran, learned counsel representing M/s.T.S.Gopalan & Co. and appearing for the petitioner management submitted that the finding of the Labour Court that it was an industrial dispute regarding non-employment was not justified. Under
Section 2A of the ID Act, a workman can only raise a dispute regarding his termination and in such dispute he cannot attack the order of transfer and, therefore, the dispute is not maintainable. He further submitted that the second respondent being a sales representative is not a 'workman' within the meaning of
Section 2(s) of the ID Act. Further, he did not report for work even after the Award and he was gainfully employed. For that purpose, the learned counsel for the petitioner produced a visiting card showing the workman being the representative of some other book publisher.
12. The second respondent has filed a counter affidavit dated 29.6.2003 refuting the allegations made by the petitioner management. It was submitted that there was no power of transfer. When the office was started at Chennai, the second respondent was the employee and there was no office worth its name. There were no terms and conditions enabling the person to be transferred from one place to other place and in the absence of any contract, the order of termination passed by the petitioner was illegal and it is non est in law. When the second respondent wanted to report at Chennai, it was the management which prevented the second respondent from reporting to work at Chennai. He also submitted that the visiting card of East West Book Company produced by the management was not legally acceptable and it was refused to be taken into account by the Labour Court. He also submitted that the order of transfer to Ernakulam was not given effect at all. At the relevant time, he had filed a claim petition being C.P.No.195/94 seeking bonus for the year 1992-93 at the rate of 20% and also earned wages totalling a sum of Rs.4850/-. The Labour Court computed the amount and by its order dated 02.8.1994 directed the petitioner to pay the sum of Rs.4850/-, which is due to the workman and that order has become final.
13. The learned counsel also relied upon a judgment of the Division Bench of this Court in The Management of Hindustan Motors Ltd. -vs Lakshmiah and another reported in 2002 (2) L.L.N.725. This is for the purpose of showing that when the management takes a stand that a particular person is not coming within the meaning of
Section 2(s) of the ID Act, it is for the management to establish the same by leading appropriate evidence and the burden of proof cannot be shifted on the workman. That judgment also supports the proposition that even in cases of transfer not being obeyed and if it results in a non-employment and when rival contentions are raised, it is the bounden duty of the Labour Court to adjudicate upon the dispute between the parties.
14. In the present case, the Labour Court had come to the conclusion that the second respondent is a 'workman' within the meaning of
Section 2(s) of ID Act and that is the finding of fact, which cannot be interfered with in a petition filed under
Article 226 of the Constitution. The finding of the Labour Court that there was no term of employment for transferring the second respondent to a far away place at Punjab is also well founded. His job being clerical as well as sales promotion and he being unfamiliar with the local language, would have hardly helped him to have done any work.
15. But, when the second respondent was directed to be reinstated by the impugned Award in I.D.No.922 of 1993 dated 22.10.1998, the second respondent had not sent any letter expressing his readiness to report for work. Even this Court by an interim order dated 03.8.1999 only ordered notice in the stay application and subsequently by an order dated 29.8.2003 granted stay regarding backwages thereby allowing that portion relating to reinstatement to remain without being disturbed. The allegation that he was gainfully employed was not proved by the management either before the Labour Court or before this Court with any satisfactory evidence.
16. In the light of the rival contentions, this Court is of the view that the second respondent is entitled for backwages from 16.3.1993 to 29.8.2003. If the 'non-employment' is treated as 'retrenchment' he was eligible for notice pay and retrenchment compensation with gratuity. If these amounts are calculated on the basis of the last pay drawn, it approximately comes to Rs.2,00,000/- and without giving any increment or wage revision.
17. On the facts and circumstances of the case, this Court is of the view that the petitioner management should be directed to pay a sum of Rs.3,00,000/- to the second respondent. Hence, the Award will stand modified to the effect that the second respondent is entitled to get Rs.3,00,000/- from the petitioner management as full and final settlement of all his claims towards his reinstatement.
18. The writ petition is disposed of accordingly. The petitioner management is directed to make the payment within a period of eight weeks from the date of receipt of a copy of this order. There will be no order as to costs.
js To The Presiding Officer, I Addl.Labour Court, Chennai