Bombay High Court
Deogiri Nagari Sahakari Bank ... vs Ravindra Balakrishna Deshpande on 14 August, 2015
Bench: R.V. Ghuge
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6085 OF 2014
1 Deogiri Nagari Sahakari Bank Ltd.,
Aurangabad. It's Head Office at
Arth Complex, Adalat Road, Aurangabad.
Through it's Chairperson- represented
by the Administrative Officer
Shri Datta Madhavrao Shinde,
Age : 41 years, Occ : Service,
R/o Aurangabad.
2
Deogiri Nagari Sahakari Bank Ltd.,
Aurangabad. It's Head Office at
Arth Complex, Adalat Road, Aurangabad.
Through it's Chief Executive Officer-
represented by the Administrative Officer
Shri Datta Madhavrao Shinde,
Age : 41 years, Occ : Service,
R/o Aurangabad.
...PETITIONERS
-VERSUS-
Ravindra Balakrishna Deshpande,
Age : 53 years, Occ : Service,
R/o Plot No.2, Saptashrungi Apartments,
Bank Colony, Garkheda,
Aurangabad.
...RESPONDENT
...
Advocate for Petitioners : Vidwauns Sagar S. and Mr.Rohit Sarvadyna.
Advocate for Respondent : Mr.A S Deshpande.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 14th August, 2015
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Oral Judgment:
1 The learned Advocates for the respective sides have stated
that they have no objection if this Court hears this matter.
2 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
The Petitioners are aggrieved by the impugned judgment and
order dated 12.02.2014 delivered by the Industrial Court in Complaint
(ULP) No.100/2008 filed by the Respondent herein. By the impugned
judgment, the complaint was allowed and the punishment imposed upon
the Respondent was held to be in breach of the Service Rules and without
holding a domestic enquiry. Consequential reliefs were, therefore, granted
by the Industrial Court.
4 While hearing this petition, both the learned Advocates for
the respective sides have strenuously canvassed a host of factors. However,
in the light of the order that I propose to pass, I am not required to deal
with their entire submissions, lest this order may result into certain
observations which are likely to obstruct the respective cases of the
litigating sides.
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5 In the Written Statement filed by the Petitioner, it has been
specifically stated in paragraph 7 that the Respondent/ original
Complainant is a Manager working with the Bank and is not a workman
under Section 2(s) of the Industrial Disputes Act, 1947. It is, therefore,
canvassed that despite this pleading, the Industrial Court did not frame an
issue though the said issue pertains to the jurisdictional aspect of the
Industrial Court.
6 It is further submitted that the Advocate for the Petitioner
remained absent due to illness from the proceedings and did not intimate
the Petitioner about it's progress. Owing to his continued absence, the
impugned judgment was virtually delivered ex-parte as the contentions of
the Respondent had gone uncontroverted.
7 It is, therefore, stated that if the Respondent is not held to be
a workman under Section 2(s) of the Industrial Disputes Act, 1947 and
Section 3(5) of the MRTU & PULP Act, 1971, the complaint would be
rendered untenable and the Industrial Court would not have any
jurisdiction to be exercised in the said proceedings. If this be the
conclusion, the impugned judgment would result in miscarriage of justice,
if sustained.
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8 Shri A.S.Deshpande, learned Advocate for the sole
Respondent, has vehemently opposed the petition. He submits that the
case before the Industrial Court was pending for 05 years, 06 months and
02 days. An appearance was entered into by the learned Advocate on
behalf of the Petitioners, who are the Respondents in the complaint. The
Written Statement was filed. Despite this position, the learned Advocate
did not appear before the Industrial Court ever since the filing of the
Written Statement.
9 It is specifically stated in this petition that due to his health
condition, he could not pursue the matter and the counsel stopped
appearing in the matter before the Industrial Court at Aurangabad.
10 Shri Deshpande, therefore, submits that it is not the case of
the Petitioner that the concerned Lawyer was suffering from any such
ailment that compelled him to quit practice and he stopped appearing in
all Courts.
11 Having considered the submissions of the learned Advocates,
it cannot be overlooked that the Industrial Court was practically
compelled to proceed ex-parte due to the continued absence of the
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Petitioner. The complaint could not be kept pending so as to enable the
Petitioners to appear before the Industrial Court as per their own
convenience. Every stage procedurally prescribed in law was followed in
deciding the complaint. Nevertheless, the impugned judgment could be
said to be an ex-parte judgment. This issue becomes more significant and
decisive in the light of the objections raised by the Petitioner that the
Respondent/ Complainant was not a workman and the complaint was
untenable.
12 It is settled law that the status of an Employee, whether, a
workman or not, is not based on his designation or his salary structuring.
It is purely a matter of his duties/job profile and the work actually
performed by him continuously. The Division Bench of this Court in the
matter of Chandrashekhar Chintaman Vaidya v/s National Organic
Chemical reported in 2010 (II) CLR 121 has laid down the tests for
deciding the status of an employee. It would be apposite to reproduce
paragraphs 11 and 36 of the said judgment as under:-
"11. Learned Advocates for the parties have placed reliance
on various citations. The Judgments along with
purpose for which those are relied are as follows:-
[A] Appellant's citations and propositions :-
[1] Hussain Mithu Mhasvadkar Vs. Bombay Iron & Steel
Labour Board & another [(2001) 7 SCC 394].
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Proposition :-
Primary duties of an employee, purpose, aim and
object of the employment, i.e., predominant nature of
duties performed by person claiming to be a workman
under Section 2 (s) of the Industrial Disputes Act, will
be the true test to find out the status as a workman.
[2] Mukand Ltd. Vs. Mukand Staff & Officers' Association
[ 2004 AIR SCW 3731].
Proposition :-
The question of class to which the employees belong is
to be decided not on the basis of grade in which they
were placed, but on the basis of their duties,
responsibilities and powers as laid down in Section 2
(s) of the Industrial Disputes Act.
[3] D. P. Maheshwari Vs. Delhi Administration & ors.
[ (1983) 4 SCC 293].
Proposition :-
Occasional entrustment of supervisory
managerial or administrative work will not take a
person mainly discharging clerical duties out of
purview of Section 2(s) of the Industrial Disputes Act.
On facts of the case, Hon'ble Supreme Court
had interfered with the judgment of High Court where
the judgment was rendered without dealing with the
crux of the matter involved.
[4] Malabar Industrial Co. Ltd. Vs. Industrial Tribunal,
Trivandrum. [AIR 1958 Kerala 202 (V.45 C 74)].
Proposition :-
Whether the employee concerned is a workman
being a jurisdictional fact and issue, it can be
scrutinized in proceedings under Article 226 of
Constitution of India.
Main feature, pith and substance of his
employment must be manual or clerical before the
definition of "workman" under section 2(s) is
attracted.
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[5] S.K. Maini Vs. M/s. Carona Sahu Co. Ltd. & ors.
[(1994) 3 SCC 510].
Proposition :-
Predominant nature of work is to be seen, and
entrustment of some supervisory or other work, which
is incidentally done - only a fraction of his entire
work, will bring the employee within the purview of
definition of the "workman" under section 2(s) of the
Industrial Disputes Act.
[6] Standard Chartered Bank Vs. Andhra Bank
Financial Services Ltd. & ors.[ (2006) 6 SCC 94].
Proposition :-
When entire evidence has come on record,
burden of proof, whether it shifts etc., becomes
immaterial.
Moreover, this judgment does not render any
direct guidance on the facts of the case.
[7] State of Punjab Vs. M/s. Modern Cultivators [AIR
1965 SC 17 (V.52 C 4)].
Proposition :-
Failure to produce documents would lead to
only conclusion that if produced, those would have
gone against the party who has withheld the
documents and hence adverse inference against such
party is liable to be drawn.
[8] Badat & Co., Bombay Vs. East India Trading Co.[ AIR
1964 SC 538 (V 51 C 68)].
This judgment is not relevant. Hence, it is not
referred.
[B] Respondent's citations and the Propositions therein :-
1. Somnath Tulshiram Galande v/s Presiding Officer,
IInd Labour Court, Pune and others. [2008 I CLR
656].
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Proposition :-
Onus to prove that the claimant is a workman
and to prove the test to satisfy all essential ingredients
lies on one who claims said status. Unless proof of
such a fact is emerging from evidence, it cannot be
held that he is a workman.
2. Sonepat Co-operative Sugar Mills Ltd. Vs. Ajit Singh [
(2005) 3 SCC 232].
Proposition :-
A person, principally a workman, should be
employed in an industry, and must be performing
manual, skilled, unskilled, technical, operational,
clerical or supervisory work and merely because the
employee has not been performing any managerial or
supervisory duties, ipso facto he would become a
workman.
3. Northcote Nursing Home Pvt. Ltd. Bombay & another
Vs. Zarine H. Rahina (Dr.) (Mrs.) and
another[ (2005) 3 SCC 232].
Proposition :-
Burden of proving that a person is a workman
lies on the person who claims to be a workman.
4. H.R.Adyanthaya etc.etc. Vs. Sandoz (India) Ltd. Etc.
etc.[ 1994 II CLR 552].
Proposition :-
Even if it is proved that the complainant does
not do any managerial or supervisory work, unless it
is proved that he does work of the nature of manual,
supervisory, technical and clerical, he does not become
a workman under Section 2(s) of the Industrial
Disputes Act.
5. Mukund Staff & Officers' Association Vs. Mukund Ltd.
[ 2007 III CLR 296].
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Proposition :-
The burden to prove that a person is a
workman lies on the workman. The basic rule that
who approaches the Court should prove the case is not
departed in any of the provisions of Industrial
Disputes Act.
6. Electronics Corporation of India Ltd. Vs. Electronics
Corporation of India Services Engineers Union[ 2006
III CLR 704],
7. Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari
[2005 II CLR 279], and
8. Arvind Anand Gaikwad Vs. Uni Abex Alloy Products
Ltd. & ors. [1988 I CLR 26].
Proposition :-
The onus of proof was on the workman, though
the employer had raised a dispute about his status."
"36. The law as to basic test as to facts to be proved for
holding a person to be a workman under Section 2(s)
of the Industrial Disputes Act can be said to be settled
and can be summarized as follows:-
(a) The person does menial, ministerial or clerical
work.
(b) If any of the parts of his duties involves any
sort of supervision, which is on the material and not
on the men.
(c) The predominant nature of duties discharged
by the person i.e. the part of supervisory duties, if
any, is not predominant.
(d) What is seen to be is not the designation
and/or nomenclature, but performance of duties."
13 The grievance of the Petitioner in addition to the above is that
the issue of workman was not framed. This Court in the matter of
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Permanent Magnets Ltd., Mumbai v/s Vinod Vishnu Wani reported in 2002
(3) Mh.L.J. 413 : 2002 (93) FLR 32 has held in paragraph 12 as under:-
"12. The contention sought to be raised by the respondent
in this regard is that the prayer to frame issue is
restricted to the validity and legality of the Domestic
Enquiry and, therefore, right reserved by the
petitioner to lead evidence was only in case the
enquiry is held to be not in accordance with the
principles of natural justice. It cannot be disputed
that strict interpretation of the pleadings would
disclose a prayer to frame issue in relation to validity
and legality of the Domestic Enquiry. The pleadings
do not disclose a specific prayer for framing of any
other issue. However, it is always to be remembered
that framing of issue is primarily the function of the
Court and it is not for the party to make prayer in
that regard. The issues are to be framed based on the
pleadings of the parties. Merely, because the party
does not pray for framing of an issue, the Court is not
absolved of its duty of framing the issues, which
otherwise arise from the pleadings of the parties. This
does not mean that the parties are forbidden from
rendering necessary assistance to the Court in
framing of issues. However, it is primarily the duty of
the Court to frame issues, based on the pleadings.
Viewed from this angle, mere absence of the prayer to
frame issue cannot result in any prejudice to the
petitioner. The Apex Court in Makhan Lal Bangal v.
Manas Bhunia and others reported in 2001 AIR SCW
90, has ruled that an obligation is cast on the Court
to read the plaint/ petition and written statement/
counter, if any, and then determine with the
assistance of the learned counsel for the parties the
material propositions of fact or of law on which the
parties are at variance. The issues shall be framed
and recorded on which the decision of the case shall
depend. The parties and their counsel are bound to
assist the Court in the process of framing of issues.
Duty of the counsel does not belittle the primary
obligation cast on the Court. It is for the Presiding
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Judge to exert himself so as to frame sufficiently
expressive issues."
14 It is well settled that the Court is under an obligation to frame
proper issues after considering the pleadings of the litigating sides.
Despite a specific pleading in paragraph 7 of the Written Statement of the
Petitioners, the issue as to whether, the Respondent/ Complainant is a
workman or not, had not been framed. For these reasons, the impugned
judgment needs to be set aside only to enable the Petitioner to participate
in the said proceedings and to enable the Industrial Court to deliver a
judgment after a proper legal contest by the litigating sides.
15 I cannot be oblivious of the fact that this is likely to cause
hardships to the Respondent and is also likely to increase rigours of
litigation. This Court, in the matter of The Manager, Siemens Limited v/s
The Branch Secretary, Siemens Workers' Union (Writ Petition
No.7269/2011 (Aurangabad Bench), dated 18.04.2012) had imposed
costs of Rs.1 lac to be paid to each of the Respondent/ Employee for a
similar laxity on the part of the Management.
16 This Court in the matter of Municipal Council, Sillod v/s
Bhanudas Jayawanta Sonawane reported in 2014(1) CLR 554 had also
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imposed costs of Rs.1 lac on the Management/ Municipal Council.
17 By remitting the complaint back to the Industrial Court for a
fresh adjudication, it would virtually amount to reversing the clock by 07
years. As such, though I am convinced that the impugned judgment needs
to be set aside so as to enable a proper trial of the complaint on its merits
before the Industrial Court, the rigours of litigation and hardship being
suffered by the Respondent, need to be softened.
18 In the light of the above, the impugned judgment dated
12.02.2015 is set set aside and Complaint (ULP) No.100/2008 is remitted
back to the Industrial Court with the following directions:-
(a) The litigating sides shall appear before the Industrial Court on
29.08.2015.
(b) The Petitioner shall deposit an amount of Rs.1 lac before the
Industrial Court on or before 11.09.2015.
(c) Upon depositing the said amount, the Respondent/
Complainant shall withdraw the said amount without any
condition as costs for softening the rigours of litigation and
hardship being suffered by him on account of this remand.
(d) Only after the Petitioner has deposited the said amount, the
Industrial Court shall re-cast the issues strictly in accordance
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with the pleadings of the respective sides on or before
23.09.2015.
(e) The oral and documentary evidence already on record shall
not be discarded by the Industrial Court.
(f) Both the litigating sides shall be permitted to lead additional
oral and documentary evidence after framing/ re-casting of
issues.
(g) The Industrial Court shall endeavour to decide Complaint
(ULP) No.100/2008 as expeditiously as possible and
preferably on or before the 31st May, 2016.
(h) Both the litigating sides shall be precluded from seeking
adjournments on unreasonable and trivial grounds.
(i) If the said amount is not deposited as directed above, this
order shall stand recalled, the petition shall stand dismissed
and then the impugned judgment of the Industrial Court shall
stand restored.
19 This Writ Petition is partly allowed and Rule is made partly
absolute in the above terms.
(RAVINDRA V. GHUGE, J.)
