Union Bank Of India vs Jaiveer Singh Negi
2010 Latest Caselaw 1276 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          W.P.(C) No. 1447/2007

                                    Date of decision : 8.3.2010

Union Bank of India                   ...   Petitioner

                               Through :Mr. O.P. Gaggar, Adv.

                      versus

Jaiveer Singh Negi                                    ..... Respondent
                               Through : Mr. K.S. Parihar, Adv.


CORAM

* HON'BLE MR.JUSTICE KAILASH GAMBHIR

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?                              Yes

2.    To be referred to Reporter or not?                            Yes

3.    Whether the judgment should be reported
      in the Digest?                                               Yes


Kailash Gambhir, J. (ORAL)

*

1. By this petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks quashing of the

impugned award dated 21.11.2006 passed by the Labour

Court whereby the reference was answered against the

petitioner management and in favour of the respondent

workman directing the petitioner to give compassionate

appointment to the respondent within a period of two

months.

2. Brief facts relevant for deciding the present petition

are that the respondent is the son of late Hukam Singh Negi,

who was employed as an armed guard in the petitioner bank

and died on 1.9.2000 after falling from a roof. Thereafter, the

respondent on 8.11.2000 applied for employment with the

petitioner bank on the ground of compassionate employment

which was disallowed. Feeling aggrieved by the same, one

Bhartiya Mazdoor Sangh, a Trade Union, espoused the cause

of the respondent and an industrial dispute was raised

bearing ID No. 95/2003 where vide award dated 21.11.2006 ,

the petitioner bank was directed to grant compassionate

appointment to the respondent within two months from the

date of publication of the award. Feeling aggrieved with the

same, the petitioner has preferred the present petition.

3. Without touching upon the merits of the claim of

the respondent for his entitlement for compassionate

appointment, counsel for the petitioner submits that the

respondent who is seeking his employment on

compassionate grounds on account of death of his father

does not fall within the definition of „workman‟ as envisaged

under Section 2(s) of the I.D. Act, 1947. Counsel thus submits

that the learned Tribunal has wrongly assumed the

jurisdiction to decide the reference without appreciating the

fact that the respondent being a dependent of the deceased

employee was not a workman. Counsel further submits that

the petitioner has taken an objection on the maintainability

of the reference itself as once the respondent being not a

workman, he has no right to raise any industrial dispute

under the I.D. Act. Counsel thus submits that the order

passed by the learned Labour Court is ex facie illegal and

perverse.

4. On the other hand, counsel for the respondent

submits that technicality should not come in the way of this

court to dispense justice while exercising jurisdiction under

Article 226 of the Constitution of India. Counsel thus

submits that this court under Article 226 can always mould

the relief to serve the ends of justice.

5. I have heard learned counsel for the parties and

gone through the records.

6. The respondent is the son of Mr. Hukum Singh Negi

who was engaged as an armed guard on permanent basis

with the petitioner bank. The father of the respondent

unfortunately died on 1.9.2000 while falling from roof. After

his death the respondent along with his mother approached

the petitioner bank to seek employment on compassionate

grounds but no heed was paid to their request. Hence, left

with no remedy, the respondent raised an industrial dispute

and Ministry of Labour had referred the dispute for

adjudication to the Industrial Tribunal in terms of the following

reference :

"Whether the action of the management of Union Bank of India, Meerut in not giving Compassionate Appointment to Shri Jaiveer Singh Negi vide Smt. Sushila Devi's application dated 22.9.2000 is legal and justified? If not, what relief is the concerned workman entitled to?"

7. It is not in dispute that the respondent, Jaiveer

Singh sought his employment with the petitioner bank on

compassionate grounds due to the demise of his father

during his service and therefore, he was yet to acquire the

status of an employee with the petitioner bank. Admittedly,

there was no relationship of employer and employee between

the parties and therefore to extend the benefit of the

provisions of I.D. Act to a person who has not acquired the

status of an employee would be clearly far fetched. Section

2(s) of the I.D. Act defines a "workman" as under :-

""Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the term of employment be expressed or implied and for the purpose of any proceeding under this Act in relation to an Industrial Dispute includes any such person, who has been dismissed, discharged or retrenched in connection with, or as a

consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute."

8. A bare perusal of above provision would amplify

that the respondent by no stretch of imagination can be

considered as a „workman‟ entitled to raise reference under

Section 10 of the I.D. Act. Here, it would be pertinent to refer

to the judgment of the Apex Court in Mukand Ltd. Vs.

Mukand Staff & Officers' Association 2004(10)SCC460

where it held that:

"The above submission of learned counsel for the appellant is well founded under the Act. Disputes can be raised only by the workmen with the employer.

If the non-workmen are given the status and protection available to the workmen, it would mean that the entire machinery and procedure of the Act would apply to the non- workmen with regard to their employment/non-employment, the terms of employment, the conditions of labour etc. This would cast on the appellant-Company the onerous burden of compliance with the provisions of the Act in respect of the non-workmen. In our view, the situation is not envisaged by the Act which is solely designed to protect the interests of the workmen as defined in Section 2(s) of the Act.

..................

In our view, the material that was placed before the Tribunal was not considered or discussed and that there was, as such, no adjudication by the Tribunal. The whole award of the Tribunal, in our view, is liable to be set aside on the ground of non-application of mind by the Tribunal to the material on record. In the first place, the Tribunal has no jurisdiction to entertain and decide a dispute which covered within its fold "persons who are not workmen".

The Tribunal, in this case, has exceeded its jurisdiction. It has embarked upon an enquiry against non-workmen and, therefore, the decision of the Tribunal is a non-compliance with the provisions of the Act. Therefore, the determination by a Tribunal on a question other than the one which Statute directs it to decide, would be a decision not under the provisions of the Act and, therefore, in exercise of its jurisdiction is liable to be set aside".

Hence, applying the aforesaid observations to the case at

hand where the petitioner had taken an objection before the

learned Labour Court challenging the locus of the respondent

to raise an industrial dispute but the learned tribunal failed

to decide the said objection of the petitioner except stating

that no espousal was required so far the nature of the

dispute raised by the respondent was concerned. However,

the learned Labour Court on merits found the respondent to

be entitled for compassionate appointment. Since the

impugned award is being set aside on the technical ground of

the respondent being not a „workman‟ falling within the

definition of Section 2(s) of the I.D. Act, therefore, remedy of

the respondent to seek compassionate appointment with the

petitioner bank remains open. Similarly, the petitioner bank

will have the right to take its decision as per the applicable

rules in case the respondent approaches the petitioner in this

regard. The impugned award is accordingly set aside.

9. The parties are directed to bear their own costs.

10. With above directions, the petition stands disposed

of.

March 08, 2010                              KAILASH GAMBHIR,J
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