Bombay High Court
Chordia Food Products Ltd vs Nitin Prabhakar Gurav on 26 August, 2016
Bench: R.M. Savant
(26) wp-7521.16-&-6839.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7521 OF 2016
ALONG WITH
WRIT PETITION NO.6839 OF 2016
Chordia Food Products Limited ]
55, Hadapsar Industrial Estate, ]
Solapur Road, Pune 411 013 ]..... Petitioner
versus
Nitin Prabhakar Gurav ]
Residing at Sadhana Cooperative ]
Housing Society, Plot No.31, ]
Hadapsar, Pune 411 042 ig ]..... Respondent.
Mr. Kiran Bapat i/by M/s. Desai and Desai Associates for the Petitioner.
Mr. Nitin A Kulkarni for the Respondent.
CORAM : R. M. SAVANT, J.
DATE : 26th August 2016
ORAL JUDGMENT
1 Rule in both the above Writ Petitions, with the consent of the
learned counsel for the parties made returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the judgments
and orders both dated 05/02/2016 passed by the learned Member, Industrial
Court Pune in Revision (ULP) No.34 of 2014 and Revision (ULP) No.58 of
2014. By the first order the Revision (ULP) No.34 of 2014 filed by the
Petitioner herein came to be dismissed and by the second order the Revision
(ULP) No.58 of 2014 filed by the Respondent herein came to be allowed, and
resultantly the order passed by the Labour Court came to be modified to the
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extent of setting aside the order granting compensation to the Respondent and
substituting the same by the grant of reinstatement and full back wages.
3 It is not necessary to burden this Order with unnecessary details
having regard to the final directions that are to be issued.
The Respondent herein had filed Complaint (ULP) No.225 of 2000
against the Petitioner herein who is a manufacturer of spices, pickles and other
eatables. The said complaint was filed invoking Item 1(a), (b), (d) and (f) of
Schedule IV of the MRTU & PULP Act 1971. The said complaint was founded
on the fact that the Respondent herein is a sales promotion representative. he
was getting salary of Rs.4,300/- per month and though he was designated as
Supervisor, he was not assigned with any powers of that post. The
Respondent's services came to be terminated on 20/06/2000 with effect from
27/06/2000. It was the case of the Respondent that his services were
terminated without following any procedure or payment of retrenchment
compensation. A declaration was also sought by the Respondent herein that
the said termination was illegal and that the Petitioner by terminating his
services has indulged in an unfair labour practice.
4 The Petitioner herein who is the original Respondent filed its
written statement. It was the case of the Petitioner that the Respondent was
carrying out the activities which were detrimental to the sales of the Petitioner.
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The Petitioner had lost confidence in the Respondent and a decision was
therefore taken to terminate his services. It was therefore the case of the
Petitioner that the action of termination of the services of the Respondent
herein for the reasons mentioned did not constitute any unfair labour practice.
5 On the basis of the aforesaid pleadings the Labour Court framed
the issues amongst which was the issue whether the complainant i.e. the
Respondent herein is a workman as defined under Section 2(s) of the
Industrial Disputes Act and consequently ;not a workman under Section 3(5)
of the MRTU & PULP Act, 1971. The learned Judge of the Labour Court on the
basis of the material on record and especially having regard to the fact that the
Petitioner had not produced any material to show that the Respondent
Complainant was working in a supervisory capacity held that the Respondent
Complainant was a workman within the meaning of Section 2(s) of the
Industrial Court. The learned Judge of the Labour Court also found fault with
the action of the Petitioner in terminating the services of the Respondent,
Complainant which according to it was without following the procedure and
therefore issued a declaration that the Petitioner has indulged into unfair
labour practice under Item 1(b) (d) and (f) of Schedule-IV of the MRTU &
PULP Act, 1971. The learned Judge of the Labour Court however did not
reinstate the Respondent Complainant and did not grant back wages but
granted Rs.3,00,000/- as compensation to the Respondent Complainant.
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6 The Petitioner aggrieved by the Judgment and Order dated
21/02/2014 passed by the learned Judge of the Labour Court carried the
matter in Revision by filing Revision (ULP) No.34 of 2014. Since the issue as
to whether the Respondent Complainant was a workman was put into
contention by the Petitioner, the Industrial Court proceeded to adjudicate upon
the said issue. Before the Industrial Court the judgment of the Apex Court in
the matter of H. R. Adyanathaya and ors v/s. Sandoz (India) Ltd. and ors
reported in (1994) 5 SCC 737 was cited as also the provisions of the Sales
Promotion Employees (Conditions of Service) Act, 1976 were adverted to and
especially the definition of Sales Promotion Employee within the meaning of
the said Act. The Industrial Court for a reason different than given by the
Labour Court held that the Respondent was a workman. According to the
Industrial Court the Respondent Complainant fell within the definition of the
word "Sales Promotion Employee" as postulated in the said Sales Promotion
Employees Act. This conclusion the Industrial Court arrived at on the basis
that in the definition of the Sales Promotion Employee covers a person
employed or engaged in "any establishment" and since the Respondent is
working in the establishment of Petitioner as Sales Promotion Employee he is a
workman within the meaning of the said Act. In so far as the judgment in H.
R. Adyanathaya and ors (supra) is concerned, the Industrial Court arrived at
a conclusion that the said judgment would have no application in the facts and
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circumstances of the present case wherein the Respondent Complainant was
not working as a medical representative. The Industrial Court therefore
confirmed the finding of the Labour Court as regards whether the Respondent
was a workman albeit for a different reason.
7 In so far as grant of lumpsum compensation to the Respondent
Complainant is concerned, which was granted by the Labour Court, the same
was set aside and the Industrial Court directed the Petitioner to reinstate the
Respondent - Complainant with full back wages.
8 The learned counsel appearing on behalf of the Petitioner Shri K S
Bapat would assail the finding of both the Courts below as regards the
Respondent Complainant being a workman. It was the submission of the
learned counsel for the Petitioner that the Labour Court has erred in recording
the finding to the said effect merely on the ground that no evidence was led by
the Petitioner to show that the Respondent was working in a supervisory
capacity. In so far as the Industrial Court is concerned, it was the submission of
the learned counsel for the Petitioner that the findings of the Industrial Court
based on the definition of Sales Promotion Employee was erroneous having
regard to the meaning of the word "establishment" in the said Act.
9 Per contra, the learned counsel appearing for the Respondent
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Complainant Shri Kulkarni sought to support the order passed by the Industrial
Court but not with any deal of conviction. The learned counsel for the
Respondent however fairly stated that the issue as to whether the Respondent
Complainant is a workman has not been satisfactorily adjudicated upon by the
Industrial Court having regard to the provisions of the Sales Promotion
Employees Act and the judgment of the Apex Court in H. R. Adyanathaya and
ors (supra).
Having heard the learned counsel for the parties, in my view,
without elaborating further on the findings recorded by the Industrial Court on
the aspect of whether the Respondent Complainant is a workman lest the said
observation may affect or influence the adjudication by the Industrial Court on
the remand of the matter. In my view, the adjudication of the Industrial Court
especially having regard to the provisions of the Sales Promotion Employees
Act and also having regard to the tests laid down in so far as the definition of
"workman" in Section 2(s) of the Industrial Disputes Act is concerned is not
satisfactory. The Industrial Court has without adverting to the meaning of
"establishment" has hastened to conclude that the Respondent Complainant is
a Sales Promotion Employee within the said Act and would therefore come
within the definition of the workman as postulated in Section 3(5) of the
MRTU & PULP Act, 1971. In the said process the Industrial Court has glossed
over the proposition of law laid down by the Apex Court in H. R.
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Adyanathaya and ors (supra) in which judgment the Apex Court has referred
to earlier judgment in the matter of May & Baker (India) Ltd. V. Workmen
reported in AIR 1967 SC 678 and in the matter of Burmah Shell Oil Storage
& Distribution Company of India Ltd v/s. Burmah Shell Management Staff
Association reported in 1970 3 SCC 378. Hence the impugned orders both
dated 05/02/2016 are required to be quashed and set aside and are
accordingly quashed and set aside, and the Revision Application (ULP) No.34
of 2014 filed by the Petitioner herein and the Revision Application (ULP) No.58
of 2014 filed by the Respondent Complainant are required to be relegated back
to the Industrial Court for a de-novo consideration in terms of the observations
made herein above. On remand the Industrial Court to decide the Revision
Applications latest by 31st December 2016. Needless to state that the
contentions of the parties are kept open for being urged before the Industrial
Court. The Revision Applications would be tried on their own merits and in
accordance with law uninfluenced by the earlier orders and the instant order.
Both the above Petitions are allowed to the aforesaid extent. Rule in both the
Petitions is accordingly made absolute with parties to bear their respective
costs of the Petitions.
[R.M.SAVANT, J]
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