Delhi High Court
M/S Maharashtra Hybrid Seeds Co. ... vs Govt. Of Nct & Ors. on 23 May, 2014
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on March 26, 2014
Judgment Delivered on May 23, 2014
+ W.P.(C) 6416/1999
M/S MAHARASHTRA HYBRID SEEDS CO. LTD. ..... Petitioner
Represented by: Mr.Manoj Swarup, Advocate
with Mr.Anauj Bhandari,
Advocate
versus
GOVT. OF NCT & ORS. ..... Respondents
Represented by: None
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. The petitioner M/s Maharashtra Hybrid Seeds Company Ltd. has
filed this writ petition challenging the award dated April 30, 1999 in I.D
No.397/1996 passed by the Labour Court whereby the Labour Court has
answered the reference directing the reinstatement of the respondent in
the service of the petitioner with continuity in service and full back
wages and order dated September 15, 1999 whereby the review petition
was dismissed as being not maintainable.
2. The reference made by the appropriate government vide
notification dated August 27, 1996 was on the following terms:
―Whether the dismissal of Sh.Dr.G.N.Kar from service is
illegal and/or unjustified and if so, to what relief is he
entitled and what directions are necessary in this
respect?‖
3. It was the case of the respondent No.2 before the Labour Court
that he was employed as Regional Research Manager at Sewari,
Gurgoan, Haryana. Many duties assigned to him were manual and
physical inasmuch as he was to prepare suitable ground for sowing of
seeds, energy and other allied jobs, comparison of seeds, wheat, rice and
rape-seeds. He was neither employed in supervisory capacity nor he was
competent to control over the activities of any of the employees
subordinate to him. He was working as a team member by putting
physical labour under the Director of Research Team and as such he is
governed by definition of „workman‟ under Section 2(s) of the Industrial
Disputes Act, 1947 („Act‟ in short).
4. According to him, the appointment letter was issued by the
petitioner to him on May 04, 1988. It was his case that he was an
agricultural scientist of eminence/international repute. On account of his
reputation, the petitioner showed their interest to advertise the job of
scientist at substantial and significant wages. In the beginning the
petitioner had showed a lot of love and affection and gave impression
that joining of the respondent No.2 in the company would be taken as an
act of obligation. Earlier to the date of appointment, a communication
dated December 13, 1987 received from the petitioner, it was confirmed
that an amount of Rs.72,000/- per annum shall be paid as salary. Beside
salary a rent free accommodation was also offered. It was also confirmed
that his retirement age would be 58 years.
5. He was a permanent employee of the IARI in which he has put an
active service of more than 22 years and was lured by the temptation of
being offered a motor car with driver, Airfare in the case of Leave Travel
Concession, medical coverage to himself and to the family. He sought
voluntary retirement from his office IARI. Thereafter he was taken for
granted and he was at the mercy of the petitioner. He joined his duties on
November 16, 1988. The Managing Director of the petitioner company
was not interested to discharge his commitments made by him in the
letter dated December 13, 1987. In the appointment letter dated May 04,
1988 the salary was reduced from the promised amount of Rs.72,000/-
per year to Rs.66,000/- per year. The other prerequisites like air facilities
offered by the petitioner were also withdrawn as no reference was made
in the appointment letter dated May 04, 1988.
6. It was the case of the respondent No.2 that the petitioner in order
to get rid off of him was directed vide letter dated March 24, 1993 to
handover the charge to V.P.Ratnalikar and report for duty at Jalna,
Maharashtra. According to him, there were confirmed rumours that on
his arrival at Jalna, Maharashtra, he would be involved in some criminal
cases of embezzlement and mis-appropriation and accordingly he
expressed his agitation through his letter dated March 30, 1993, which
resulted in his dismissal from service vide letter dated December 03,
1994.
7. The respondent No.2 had also challenged his dismissal being bad
as he was the permanent employee of the company and he had crossed
the probation period of 1 year. According to him, no show cause notice
was issued to him by the petitioner. He would also state that he was
directed to participate in the inquiry at Jalna, Maharashtra. According to
him, at the time of issuance of charge-sheet he was holding his job at
Delhi which would be convenient and adjacent venue to his place of
duty. His request was declined without any justification and the purpose
for which he was repeatedly called at Jalna was to involve him in
criminal cases because of which he avoided to go there. Holding of
inquiry at Jalna, Maharashtra gave lever in the hands of the petitioner to
guide the inquiry in their own way. Holding of inquiry at Jalna was
deliberate and dishonest in order to seek a favourable inquiry report.
8. The claim of respondent No.2 was for an amount of
Rs.11,62,960/-, which included salary, compensation till retirement age,
LTC etc.
9. On the other hand, the petitioner contested the claim filed by the
respondent No.2 and would dispute that the respondent No.2 was a
"workman" within the meaning of Section 2(s) of the Act. It was their
case that his salary was Rs.9,970/- per month and was working
independently as a Manager of Research Farm at Sewari, Gurgaon
(Haryana) and dealing with the research work independently and many
supervisors worked under him. Since he was being paid more than
Rs.500/-, he does not come within the definition under Section 2(s) of
the Act. The petitioner had also challenged the jurisdiction of the Labour
Court to answer the reference in view of the fact that respondent No.2
was not a workman. The petitioner‟s further case was that the reference
need to be stayed inasmuch as the respondent No.2 had filed a suit for
alleged injustice and recovery of salary, the suit being 1112/93 before
the Civil Court, Tis Hazari, Delhi.
10. On merits it was the case of the petitioner that he was appointed
with a designation as Regional Research Manager. On May 04, 1988, he
was initially put on probation for a period of one year and his salary was
fixed at Rs.5,500/- per month. His services were subsequently confirmed
with effect from December 01, 1988 and since then his salary has
increased to Rs.5,760/- per month along with rent free accommodation
during the period of the service. The petitioner denied that the duties
assigned to the respondent No.2 were mostly manual and physical.
According to the petitioner, he was in-charge of the farm and under him,
were working several doctors and junior scientists and they were to
complete the work assigned to the respondent No.2 and his work was of
supervision and improving the standard of crops and seeds. The
petitioner has also listed the name of the staff working in the Sewari
Farm in the year 1991. That apart the petitioner had also named
additional staff recommended by the respondent No.2 for appointment.
The petitioner had also referred to the number of labourers engaged in
the farm headed by the respondent No.2. Insofar as the charge-sheet is
concerned, it was the case of the petitioner that the respondent No.2 had
intentionally not joined his duties at Jalna and had searched for a job.
According to the petitioner, the respondent No.2 had ultimately obtained
the job and has also caused great financial loss to the company through
his acts and has been using the rent free accommodation in the name of
the petitioner illegally and malafidely despite communications to vacate
the same. The petitioner justified the dismissal of respondent No.2 being
valid in accordance with the law. The petitioner would state that the
respondent No.2 had always disobeyed the orders intentionally for his
vested interest as his wife was working independently and permanently
here in Delhi. The petitioner denied that it withdrew any facility at any
point of time. The petitioner also denied that it wanted to get rid of the
respondent No.2. According to the petitioner, the respondent No.2
abandoned the services of the petitioner. The petitioner also denied that
it wanted to involve the respondent No.2 in any criminal case; that the
charge-sheet was served upon the respondent No.2 at Jalna; it also
denied holding of inquiry at Jalna was a deliberate attempt to seek
favourable report.
11. The Labour Court had framed two issues on the following terms:
―1. Whether the claimant Shri G.N.Kar is not a workman
within the meaning of Section 2(s) of the I.D.Act?
2. To what relief, if any, is the workman entitles against the
Management as per terms of reference?‖
12. On issue No.1, the Labour Court has come to the following
finding:
―The evidence led by both parties show that Dr.G.N.Kar
was not even provided with a steno those his designation
was Regional Research Manager but his main duties as
governed in para no.1 of the affidavit Ex.MW1/A which
remained unchallenged during his cross-examination are
also admitted by witness of Management MW1 in the cross
examination. These duties shows that he was doing mainly
technical/Research work. No evidence is led by
Management to show that claimant Dr.G.N.Kar was
authorised and ever issued any show cause notice or
charge sheet or took any disciplinary action against any of
the employee working at Sewari Farm. No document is
produced to show that Dr. G.N. Kar was empowered to me
appointment of the employees at Sewari Farm nor any
such appointment letter is proved on record. Further MW1
in the cross-examination has admitted the suggestion that
Dr. G.N. Kar was doing technical work and some time he
was doing some clerical work. In view of the evidence on
record, it cannot be said that the claimant Dr. G.N. Kar
was mainly doing managerial or supervisory duty. The
irrestable conclusion is that he was workman as defined
under Section 2(s) of the Act, in view of the law laid down
by the apex court in Arkal Govind Raj Rao's case (supra)
S.K.Verma's case (supra) Ved Prakash Gupta's case
(supra) and by our High Court in Blue Star Limited Case
(supra) and by Bombay High Court in Sudhir Kumar's
case (supra) Leela in favour of the workman and against
the Management.‖
13. Insofar as issue No.2 is concerned, the Labour Court was of the
view that the inquiry conducted by the petitioner was neither fair nor
proper and went on to hold the dismissal of respondent No.2 as illegal.
The grounds on which the inquiry was held not to be fair and proper are
that the Inquiry Officer was appointed before the respondent No.2 could
give reply to the charge-sheet; the Inquiry Officer has not issued any
notice to the respondent No.2 to join the proceedings; the petitioner had
not chosen to produce Inquiry Officer to prove the inquiry proceedings
as well as the inquiry report; neither the Inquiry Officer issued a notice
of inquiry to the respondent No.2 nor the inquiry was conducted by the
Inquiry Officer in a fair and proper manner.
14. Mr.Manoj Swarup, learned counsel appearing for the petitioner
would contend that the terms of appointment of respondent No.2 were
very clear as they reveal that his employment was in the petitioner
organization in a managerial cadre. He was to be paid salary of
Rs.5,500/- per month. He was liable to be transferred to any department,
office or establishment forming part of the petitioner organization in
India or abroad. According to him, the respondent No.2 had accepted the
employment on the terms mentioned in the appointment letter dated May
04, 1988 as Regional Research Manager from November 16, 1988 by
putting his signatures. He would further state that in continuation of the
earlier letter dated May 04, 1988 another letter of the same date was also
issued in continuation, wherein his designation was specified. It was also
specified that he would be provided rent free accommodation and his
retirement age would be 58 years instead of 55 years and he would be in
senior manager‟s cadre, while working at the Research Farm at Sewari.
As Regional Research Manager he was In-Charge of the Sewari Farm,
Gurgaon and had a number of employees working under him and he
used to send the report to the head office at Jalna. He had the power to
give employment and penalise the subordinate staff. As per one of the
report submitted by respondent No.2 under 2 different Research
Assistants, these 388, 316 & 218 number of workers were assigned for
different duties at different farms. The petitioner in order to assign new
responsibilities to the respondent No.2 has called upon the respondent
No.2 to report at Jalna. He would further state that the post he was
occupying being a transferrable post, he was required to report at Jalna,
Maharashtra. He would further state that the respondent No.2 in his
communication dated March 29, 1993 and giving reference to the letter
dated March 24, 1993 handed over the charge of the Sewari Farm along
with all field equipments and other store articles to Dr. V.P.Ratnalikar.
Surprisingly despite his own commitment, the respondent No.2 had
failed to report to Jalna. Instead he makes a representation addressed to
the Managing Director of the petitioner company wherein the respondent
No.2 has stated as under:
―This came to me as a surprise and shock, because I fail to
understand which new responsibilities you propose to
assign to me now. I was engaged to work on Hybrid Wheat
Programme alongwith Rice and Brassica Hybrids in Delhi,
since the inception of Sewari Farm at Gurgaon (Haryana)
as per my present qualifications, experience and
outstanding achievements of International importance. You
know very well that I am the only one who succeeded in
producing the wheat hybrid seed, which couldn't be done
by any one else, so far, suitable to Indian Conditions.
I was very well off and was satisfied with my employment
with Government of India in Indian Agricultural Research
Institute, New Delhi -12 as Senior Scientist Grade-2
Research/Scientist having completed 22 years @ Rs.4200/-
Basic per month as salary plus DA & other facilities with
60 years of secured service ahead.
You are well aware of my distinguished & successful
research knowledge achievements at International level in
wheat hybrid programme for which you needed my
services badly to produce such seeds, as to have monopoly
in Indian market and for that reason you lured me to take
voluntary premature retirement from my job with the
Government of India and to accept your offer and
appointment as Regional Research Manager for your
Delhi Region.
For this you gave me to believe that you would pay me
@8000/- per month which came down to Rs.6,000/- and I
shall continue in service for this work upto the age of 58
years and promised to give many facilities for my work as
well as for my welfare in Delhi.
There is no other wheat hybrid and Brassica seed
development area of your Company anywhere else except
at Sewari Farm, Gurgaon (Haryana), which is
conventional place for the above programme and
surprisingly I have been suddenly relieved on March 29,
1993.
I may also invite your kind attention, the change in your
attitude as soon as you came to know about my voluntary
retirement was accepted by the Government of India in as
much as that you reduced my salary from Rs. 8000/- to Rs.
6000/- pm and ultimately to Rs.5500/- pm and also
extorted my signatures and acceptance on an incomplete
and blank paper under a false pretext of typing out a
detailed agreement of my appointment later, required for
your record.
When I have produced the desired wheat hybrid seed to
give you monopoly in Indian Market, you have suddenly
relieved me of my specialised assignment without genuine
ground and assigning any reasons.
The manner and methods under which charge has been
snatched from me by your representatives, was so ugly and
disgraceful that I could not bear its shock resulting into
serious illness. I am undergoing medical treatment which
is likely to take atleast one month. I am therefore enclosing
Medical Certificate with this letter for grant of one month
leave w.e.f. 30.3.93.
Meanwhile I would like to know the nature of assignment
in detail which you now propose to give me and also
clarify the place in Delhi Region where, am I supposed to
work, as it is not possible for me to travel from Delhi to
Jalna till such time, as I am fully recovered.‖
15. Mr.Swarup would further submit that an impression has been
given in the letter dated March 30, 1993 that respondent No.2 was
working in Hybrid Wheat Programme and the said programme is carried
out only at Sewari Farm, Gurgaon, which is factually incorrect, as per his
own showing, his work would include Rice as well. The aforesaid letter
of the respondent No.2 was also followed by letter dated May 01, 1993.
In any case according to him the respondent No.2 had sought medical
leave initially till March 30, 1993 and thereafter till April 30, 1993, even
thereafter he failed to join the duties at Jalna.
16. According to Mr.Swarup, it is also the respondent No.2‟s case that
he could not have been transferred out of Sewari Farm, Gurgaon. He has
drawn my attention to the legal notice got issued by the respondent No.2
wherein he had called upon the petitioner to reinstate his client at Sewari
Farm. The said legal notice was appropriately replied by the petitioner
wherein the petitioner had called upon the Advocate to impress upon the
respondent No.2 to take up the assignment at Jalna. He has also pointed
out that immediately thereafter the respondent No.2 had filed a suit
before the District & Sessions Judge, Tis Hazari, Delhi, wherein he had
made a claim for recovery of money in the nature of salary, LTC,
medical allowance with a further prayer of his reinstatement as Regional
Research Manager In-Charge of Sewari Farm at Gurgaon. He has taken
me through the averments made by the respondent No.2 in his plaint,
particularly in para Nos.5,7 & 8, which are reproduced hereunder:
―5. That at the time of plaintiff's appointment a Regional
Research Manager, he was given rent free accommodation
at EA-46, Ist Floor, Inderpuri, New Delhi - 110012
consisting of two bed rooms, one drawing-cum-dinning
room, one kitchen, two bath rooms etc. The plaintiff has
been residing therein with his family ever since Oct.1991
and is still in possession and occupation thereof. The said
accommodation is owned by Defendant No.6, Shri Madan
Lal Oberoi residing in another part of the same building
on the ground floor and the same was taken on lease by
defendant No.1 for the plaintiff. The defendant No.1 is
bound to pay its rent for an initial period of three years
lease expiring on 30th Sept. 1994.
XXX
7. That the plaintiff is highly educated and a renounced
Scientist of International fame. He is expert in cylogenetics
and Plant breeding in general for all the crops. Specially
in Hybrid Wheat Programme in particular. His
qualifications and credentials are given below:-
Degree Year Marks Subjects University
1. B.Sc. 1962 Pass Botany Bihar
Course Zoology & University
Chemistry Muzaffarpur
Bihar
2. M.Sc. 1965 52.00% Botany; -do-
Specialization
in Plant Breed-
ing and cytoge-
netics
3. Ph.D. 1979 ----- Cytogenetics Bihar
University
Muzaffarpur
Bihar.
4. Training on 1979 ----- Induced Pasar Jamat
various Mutation Atomic Energy
aspects of in Plant Research Centre
Mutation Breeding Jakarta,Indonesia
Breeding sponsored by
IAEA & FAO
5. Wheat 1989 ------ Wheat E1 Batan
Visiting Breeding Mexico.
Scientists Programme
Programme of CIMMYTT
His experience at the time or appointment as follows:
Position held. Period Organization Nature
of work
1. Research 1966-70 IARI, New Delhi Barley
Assistant Rice &
Wheat
Research
2. Senior 1970-76 --do-- --do--
Teaching
Assistant
3. Scientist S-1 1976-82 --do-- --do--
4. Scientist S-2 1982-88 --do-- --do--
5. Regional 1988 MAHYCO Hybrid
Research uptodate Delhi Wheat Pr-
Manager ogramme
8. That the plaintiff has acquired into national recognition
of his expertise and research in the Plant Breeding and
Hybrid Wheat Programme. He has been publishing reports
of his research programme a list of which is attached to
this plaint and marked as Annexure A.
17. Mr.Swarup by pointing to the aforesaid paras would submit that it
was the case of the respondent No.2 himself that his appointment was as
Regional Research Manager and he was given rent free accommodation.
He is highly educated and a renowned scientist of International fame and
he worked in barley, rice and wheat research during his tenure as
Research Assistant to Scientist S-2 in IARI, New Delhi. According to
him the averments made by the respondent No.2 himself would in no
way depict that the petitioner was a workman within the definition of
Section 2(s) of the Act. He would state that since the respondent No.2
has not carried out the order of transfer at Jalna, he was issued a charge-
sheet for disobeying the lawful orders. According to him, the charge-
sheet dated January 04, 1994 itself has fixed the place of inquiry
proceedings at Jalna on January 22, 1994 at 2.00 p.m. He would further
state that this itself is enough communication to the respondent No.2 to
appear in the inquiry proceedings at the given place and time. According
to him, since he stood relieved from Sewari Farm, Gurgaon and no more
on the rolls of Sewari Farm, Gurgaon, the inquiry proceedings were
rightly held at Jalna. He could not have demanded the proceedings to be
held at Delhi. According to him, the letter dated February 20, 1994 was
replied to whereby his request for change of place of inquiry was
rejected. In fact in the letter dated August 20, 1994 he was called upon to
join the inquiry at the head office of the company at Jalna on September
22, 1994. If the proceedings have been held ex-parte, the same was
because of the reasons attributable to the respondent No.2.
18. Mr.Swarup would also state that a show cause notice for the
dismissal of respondent No.2 was issued on November 11, 1994 which
was not replied to and as such he was rightly dismissed. He would also
justify the non-appearance of the Inquiry Officer before the Labour
Court on the ground that Inquiry Officer being quasi judicial functionary,
the Inquiry Officer‟s report stand proved ipso facto. Even though he had
submitted a compilation of 18 judgments, he would rely primarily upon
the following judgments in support of his contentions:
(a) 2005 (3) SCC 232 Sonepat Cooperative Sugar Mills
Ltd. vs. Ajit Singh
(b) 2007 (1) SCC 491 Muir Mills Unit of NTC (U.P.) Ltd.
vs. Swayam Prakash Srivastava & Anr.
(c) 2010 (11) SCC 71 South Bengal State Transport
Corporation vs. Ashok Kumar Ghosh & Ors.
(d) 2001 (7) SCC 630 Bharat Bhawan Trust vs. Bharat
Bhawan Artists' Association & Anr.
(e) 1965 (11) LLJ SC 102 Powari Tea Estate vs.
Barkataki (M.K.) and Ors.
(f) 2009 (2) SCC 570 Roop Singh Negi vs. Punjab
National Bank
(g) 2013 (5) SCC 252 Kalinga Mining Corporation vs.
Union of India
19. No-one appeared for the respondent No.2.
20. Having considered the submissions made by Mr.Manoj Swarup,
learned counsel for the petitioner, the issues which arise for my
consideration is whether the Labour Court was right in holding that the
petitioner was a "workman" within the meaning of Section 2(s) of the
Act. I note that the Labour Court has primarily relied upon para No.1 of
the affidavit Ex.WW1/A filed by the respondent No.2 before the Labour
Court wherein the respondent No.2 has highlighted his duties as under:
(i) Sowing of seeds for experiment.
(ii) Physical trials or comparison of Seeds with selected
lines of wheat, rice, brassica etc. plants.
(iii) During crop season, to select desirable single plants
of wheat, brasaica etc. from experimental fields physically.
(iv) To rough (take out) undesirable plants from
experimental lines.
(v) To make crosses of different lines by emasculations and
pollination of desirable genotype to attain the desired
quality of hybrid.
(vi) Selection of plants for different disease at different
stages of growth for final selection.
(vii) Harvesting of ripe crops for comparison with base
check used by weight.
(viii) Harvesting of single plans lines to maintain its purity.
(ix) Threshing of crossed of ears (Bali) to use them as first
generation in the next season to select the desirable traits.
(x) Laboratory works :- To select single plants produced
on the basis of grain quality, disease-resistance, desired
height and other desired characters.
He has also stated in the affidavit that he has supervisory
work to perform and he was not having any powers or
control over the activity of any of the employees of the
management. He had been working as a team member by
putting physical labour under the Director of Research
and Research team in which the workman was one of the
member and as such job of the ―workman‖ as given in
Section 2(s) of the Industrial Dispute Act, 1947.‖
21. Such a basis of the Labour Court is totally erroneous. The Labour
Court could not have relied upon only on the affidavit filed by the
respondent No.1. It should have considered the terms of appointment of
the respondent No.2 and his own averments made in his plaint before the
Civil Court wherein the respondent No.2 has himself averred that he was
appointed as a Regional Research Manager; was given a rent free
accommodation and is a scientist of international fame being expert in
cylogenetics and plant breeding in general for all the crops and has
published reports of his research programme which work no-one has
done and having acquired knowledge which no-one has acquired so far
in the world. The respondent No.2 in the cross examination deposed that
he was in-charge of the office of the management at Village Sewari
Farm, District Gurgaon, Haryana. He also stated that there is no officer
above him at the Sewari Farm and volunteered that he was discharging
his duty as per the direction of Director, Research at Jalna (Maharashtra).
In other words, his reporting officer was Director, Research. That would
not mean that he was not performing a supervisory role over his
subordinates. It has also come on record through MW1 that the
respondent No.2 even may not be an appointing authority but on his
recommendations the management issued appointment letters to some
staff members. It has also come on record by way of testimony of
management witness No.1 that whosoever recommended by the
respondent No.2 was appointed by the petitioner irrespective of
eligibility criteria and qualification. It has also come on record through
the testimony that two officers namely Mr.A.K.Yadav and Mr.Mahavir
Prasad were recommended on the recommendations of respondent No.2.
It has also come on record that they were working under the supervision
of respondent No.2. It has also come on record that every activity at
Sewari Farm was under the control and supervision of respondent No.2,
which included the appointment of casual labours, purchase of material
required for the said purpose, supervision of crops and appointment of
staff including permanent staff as he was recommending trainees and
probationers for confirmation. It has also come on record that the
respondent No.2 was sending confidential reports of the staff reporting to
him. Even though it has come through the testimony of MW1 that the
accounts department was being looked after by Mr.S.B.Deshpande; such
a testimony would not conclude that the respondent No.2 was not
working in the supervisory capacity. The nature of work of the accounts
is specialized, different from research activity. It is not in the testimony
that Mr.Deshpande was carrying out the accounts work as the head of the
Sewari Farm. I agree with the submission of Mr.Swarup, accounts being
a specialized nature of work and to lessen the burden on the respondent
No.2 the said work was assigned to a different person would not mean
that he was not the overall In-Charge of the Sewari Farm. Not providing
a steno is not material. It has also come on record that the reports were
being prepared by the respondent No.2 in hand. The heavy reliance
placed by the Labour Court on paragraph 1 of the affidavit of the
respondent No.2 Ex.WW1/A would not show that they are the main
duties being performed by respondent No.2 but the broad work/nature of
activities being carried out in the Sewari Farm. Further, the nature of
designation given to the respondent No.2 which is different from the
designation given to others would itself reveal that he is the Head of the
farm having supervisory and managerial duties.
22. It was the case of respondent No.2 in the suit that he was working
as a Scientist in IARI. IARI is a specialized research institute in
agriculture and working as a Scientist surely would demonstrate the
nature of duties of the respondent No.2 was research. In fact keeping in
view his research background, the appointment was given by the
petitioner organization. The question which would arise is whether a
"research scientist" would be a workman. This Court had an occasion to
deal with such an issue in the case reported as 190 (2012) DLT 462
Devyash Pandey vs. Management of National Council for Cement and
Building Materials, wherein this Court was dealing with a Graduate
engineer trainee who was appointed as cadre Level Official Level M. A
charge-sheet was issued to him and pursuant thereto he was removed
from service. He raised an industrial dispute which was referred to the
Labour Court. Vide order dated April 08, 1996 an award was passed
declaring the domestic inquiry invalid, directing his reinstatement with
full back wages. A writ petition was filed by the respondent challenging
the award. This Court remanded the matter to the Labour Court for
recording fresh evidence on all issues. The Labour Court on remand held
that the appellant was not a workman and was in fact a scientist.
23. This Court after referring to the judgments namely May and Baker
(India) Ltd. vs. Their Workman AIR 1961 SC 678; Miss A.Sundarambal
vs. Government of Goa, Daman and Diu and Others AIR 1988 SC 1700;
Jamia Hamdard vs. Delhi Administration and Ors. 44 (1992) DLT 210
(DB); H.R.Adyanthaya & Ors. vs. Sandoz (India) Ltd. and Ors. 1994 (5)
SCC 737 was of the following view:
―7. The appellant before us admittedly is an engineering
graduate. As per his own statement before the Tribunal he
had been carrying out research work in process
engineering field related to cement industry. He claims to
have special knowledge in research work. It has also come
in the deposition of Shri K.Suryanarayana and Shri
R.P.Sharma that the appellant was supervising the
employees working for routine, manual and stereotype
work. The appellant was receiving wages of Rs.1600 p.m.
even in the pre-revised scale. It has been noted by the
Labour Court that the appellant was placed in the pre-
revised scale of Rs.2200-4000 (revised pay scale of
Rs.8000-13500). Therefore, we see no reason to interfere
with the view taken by the Labour Court and the learned
Single Judge in this regard. Considering the nature of the
work which the appellant was performing, it cannot be
said that he was doing any manual, unskilled, skilled,
technical, operational or clerical work within the meaning
of Section 2(s) of the Industrial Disputes Act, 1947. The
very nature of scientific research, which the appellant was
carrying out, runs counter to his being a manual,
unskilled, skilled, technical, operational or clerical worker
within the meaning of Section 2(s) of the Act. We fail to
appreciate how a scientist, who is a qualified engineering
graduate and, is engaged in research work as well as
supervising the work of other employees can be said to be
a ―workman‟ when a teacher has been held not to be a
―workman‖. We, therefore, are in complete agreement
with the view taken by the learned Single Judge with
respect to the status of the appellant.‖
24. The Supreme Court in its opinion reported as (2007) 1 SCC 491
Muir Mills Unit of NTC (U.P) Ltd. vs. Swayam Prakash Srivastava while
considering whether a professional can be termed as a workman, has in
paragraph 38 & 39 held as under:
―38. Furthermore if we draw a distinction between
occupation and profession we can see that an occupation is a
principal activity (job, work or calling) that earns money
(regular wage or salary) for a person and a profession is an
occupation that requires extensive training and the study and
mastery of specialized knowledge, and usually has a
professional association, ethical code and process of
certification or licensing. Classically, there were only three
professions: ministry, medicine, and law. These three
professions each hold to a specific code of ethics, and
members are almost universally required to swear some form
of oath to uphold those ethics, therefore "professing" to a
higher standard of accountability. Each of these professions
also provides and requires extensive training in the meaning,
value, and importance of its particular oath in the practice of
that profession.
39. A member of a profession is termed a professional.
However, professional is also used for the acceptance of
payment for an activity. Also a profession can also refer to
any activity from which one earns one's living, so in that
sense sport is a profession.‖
25. If we see the facts in the present case, we note that the
appointment of the respondent No.2 was Regional Research Manager.
He was the overall In-Charge of the Sewari Farm and his emoluments
was Rs.5,500/- per month with a car, rent free accommodation, medical
benefits to him and to his family would not demonstrate, such benefits
would be given to a workman. In May and Baker case (supra), the
question which came up for consideration before the Supreme Court was
whether a person employed by a pharmaceutical firm as a representative
whose duties consisted mainly of canvassing was a workman or not. The
Supreme Court held as under:
―XXX duties consisted mainly of canvassing orders and
any clerical or manual work that he had to do was only
incidental to his main work of canvassing could be
considered as a workman as defined in the Act.
As "workman" was then defined as any person employed in
any industry to do any skilled or unskilled manual or
clerical work for hire or reward. Therefore, doing manual
or clerical work was necessary before a person could be
called a workman. This definition came for consideration
before industrial tribunals and it was consistently held that
the designation of the employee was not of great moment
and what was of importance was the nature of his duties. If
the nature of the duties is manual or clerical then the
person must be held to be a workman. On the other hand if
manual or clerical work is only a small part of the duties of
the person concerned and incidental to his main work
which is not manual or clerical, then such a person would
not be a workman. It has, therefore, to be seen in each case
from the nature of the duties whether a person employed is
a workman or not, under the definition of that word as it
existed before the amendment of 1956.The nature of the
duties of Mukerjee is not in dispute in this case and the only
question, therefore, is whether looking to the nature of the
duties it can be said that Mukerjee was a workman within
the meaning of Section. 2(s) as it stood at the relevant time.
We find from the nature of the duties assigned to Mukerjee
that his main work was that of canvassing and any clerical
or manual work that he had to do was incidental to his
main work of canvassing and could not take more than a
small fraction of the time for which he had to work. In the
circumstances the tribunal's conclusion that Mukerjee was
a workman is incorrect. The tribunal seems to have been
led away by the fact that Mukherjee had no supervisory
duties and had to work under the directions of his superior
officers. That, however, would not necessarily mean that
Mukerjee's duties were mainly manual or clerical. From
what the tribunal itself has found it is clear that Mukerjee's
duties were mainly neither clerical nor manual. Therefore,
as Mukerjee was not a workman his case would not be
covered by the Industrial Disputes Act and the tribunal
would have no jurisdiction to order his reinstatement.‖
26. Subsequent to the judgment in May and Baker case (supra) the
Supreme Court in Miss A. Sundarambal case (supra) while examining
whether a teacher in a school is a workman or not has observed as under:
―The question for consideration is whether even after the
inclusion of the above two classes of employees in the
definition of the expression 'workman' in the Act a teacher
in a school can be called a workman. We are of the view
that the teachers employed by educational institutions
whether the said institutions are imparting primary,
secondary, graduate or post graduate education cannot be
called as 'workmen' within the meaning of Section 2(s) of
the Act. Imparting of education which is the main function
of teachers cannot be considered as skilled or unskilled
manual work or supervisory work or technical work or
clerical work. Imparting of education is in the nature of a
mission or a noble vocation. A teacher educates children,
he moulds their character, builds up their personality and
makes them fit to become responsible citizens. Children
grow under the care of teachers. The clerical work, if any
they may do, is only incidental to their principal work of
teaching. We agree with the reasons given by the High
Court for taking the view that teachers cannot be treated as
'workmen' as defined under the Act. It is not possible to
accept the suggestion that having regard to the object of the
Act, all employees in an industry except those falling under
the four exceptions (i) to (iv) in Section 2(s) of the Act
should be treated as workmen. The acceptance of this
argument will render the words 'to do any skilled or
unskilled manual, supervisory, technical or clerical work'
meaningless. A liberal construction as suggested would
have been possible only in the absence of these words. The
decision in May and Baker (India) Ltd. v. Their Workmen,
(supra) precludes us from taking such a view. We,
therefore, hold that the High Court was right in holding
that the appellant was not a 'workman' though the school
was an industry in view of the definition of 'workman' as it
now stands.‖
27. In H.R.Adyanthaya case (supra), the Supreme Court hs held as
under:
― We thus have three three-Judge Bench decisions which
have taken the view that a person to be qualified to be a
workman must be doing the work which falls in any of the
four categories, viz., manual, clerical, supervisory or
technical and two two-Judge Bench decisions which have
by referring to one or the other of the said three decisions
have reiterated the said law. As against this, we have three
three-Judge Bench decisions which have without referring
to the decisions in May & Baker, WIMCO and Burmah
SheIl cases (supra) have taken the other view which was
expressly negatived, viz., if a person does not fall within
the four exceptions to the said definition he is a workman
within the meaning of the ID Act. These decisions are also
based on the facts found in those cases. They have,
therefore, to be confined to those facts. Hence the position
in law as it obtains today is that a person to be a workman
under the ID Act must be employed to do the work of any
of the categories, viz., manual, unskilled, skilled, technical,
operational, clerical or supervisory. It is not enough that
he is not covered by either of the four exceptions to the
definition. We reiterate the said interpretation.‖
28. In Mukesh Tripathi vs. Senior Divisional Manager, LIC & Ors.
2004 (8) SCC 387, the Supreme Court while considering whether an
Apprentice Development Officer is a workman or not has held as under:
―A ―workman‖ within the meaning of Section 2(s) of the
Industrial Disputes Act, 1947 must not only establish that
he is not covered by the provisions of the Apprenticeship
Act but must further establish that he is employed in the
establishment for the purpose of doing any work
contemplated in the definition. Even in a case where a
period of apprenticeship is extended, a further written
contract carrying out such intention need not be executed.
But in a case where a person is allowed to continue
without extending the period of apprenticeship either
expressly or by necessary implication and regular work is
taken from him, he may become a workman. A person who
claims himself to be an apprentice has certain rights and
obligations under the statute.‖
29. From the perusal of the ratio of the judgment of the Supreme
Court in H.R.Adyanthaya case (supra) it is clear that to be a workman
under the Industrial Disputes Act, he must be employed to do the work
as stated in the definition itself. In this respect I reproduce the relevant
para No.16 of the Supreme Court in Sonepat Cooperative Sugar Mills
Ltd. (supra):
―16. Thus, a person who performs one or the other jobs
mentioned in the aforementioned provisions only would
come within the purview of definition of workman. The job
of a clerk ordinarily implies stereotype work without
power of control or dignity or initiative or creativeness.
The question as to whether the employee has been
performing a clerical work or not is required to be
determined upon arriving at a finding as regard the
dominant nature thereof. With a view to give effect to the
expression to do "any manual, unskilled, skilled, technical,
operational, clerical or supervisory work", the job of the
concerned employee must fall within one or the other
category thereof. It would, therefore, not be correct to
contend that merely because the employee had not been
performing any managerial or supervisory duties, ipso
facto he would be a workman‖.
30. In the case in hand, as it is held, that the petitioner was
performing supervisory and managerial duties and coupled with the fact
that the nature of duties are such which require a specialized knowledge
the respondent No.2 cannot be held to be a workman. The conclusion of
the Labour Court is totally erroneous and perverse and need to be set
aside.
31. Insofar as the conclusion of the Labour Court that no notice was
issued to the respondent No.2 with regard to the inquiry proceedings is
concerned, the same is also perverse. A perusal of the charge-sheet
would itself demonstrate that the disciplinary authority has in the same
communication called upon the respondent No.2 to attend the
proceedings on January 22, 1994 at 2.00 p.m at Jalna. This itself is a
sufficient notice to the respondent No.2 to attend the hearing. It can‟t be
said that no communication notifying the date, place and time of the
inquiry was communicated to the respondent No.2. In fact the petitioner
vide its notice dated August 20, 1994 had also informed the respondent
No.2 about the holding of the proceedings at Jalna on September 22,
1994 at 4.00 p.m, pursuant thereto also he has not attended.
32. Insofar as the conclusion of the Labour Court that appointment of
an Inquiry Officer before reply could be filed to the charge-sheet and
fixing of a date of hearing by the disciplinary authority itself would
demonstrate a bias attitude is also untenable nor fatal nor any prejudice
caused. Suffice to state that if a conclusion of bias is arrived at against
the Managing Director/Disciplinary Authority, he need to be made a
party. In the absence of him being a party, such conclusion could not
have been arrived at. Even the Supreme Court in its opinion reported as
(2010) 11 SCC 371 South Bengal Transport Corporation vs. Ashok
Kumar Ghosh has held as under:
―13. In our opinion, it may be open for a disciplinary
authority to initiate the departmental proceedings on
consideration of the reply of an employee but as an absolute
proposition of law it cannot be said that before initiating
departmental enquiry or appointing Enquiry Officer, reply of
the delinquent employee is required to be obtained and
considered unless it is the requirement of the rules. There
may be cases where the charges are of such a nature that the
disciplinary authority may not require any reply from the
delinquent employee but straightway initiates the
departmental enquiry and appoint an Enquiry Officer.‖
33. Insofar as the conclusion of the Labour Court that since the
petitioner had not produced the inquiry officer to prove the inquiry
proceedings as well as the inquiry report has resulted in unfair and illegal
inquiry is concerned, the said conclusion was primarily from the
perspective that the Inquiry Officer did not issue any notice to the
respondent No.2 to participate in the inquiry and it was the managing
director who in the charge-sheet fixed the date of inquiry. Since I have
already held that the date of inquiry was communicated to the respondent
No.2 in the charge-sheet dated January 4, 1994 and also communication
dated August 20, 1994 as also I have concluded above, the appointment
of an Inquiry Officer in the charge-sheet before the respondent No.2
could file his reply is not fatal nor any prejudice has been caused, the
conclusion of the Labour Court that the inquiry being not fair is
untenable and liable to be set aside.
34. In the last, the conclusion of the Labour Court that the respondent
No.2 had not abandoned the services, suffice to state is also erroneous
inasmuch as the respondent No.2 was transferred to Jalna vide letter
dated March 24, 1993. He received a letter on March 29, 1993 when he
handed over the charge to his successor. Despite being relieved, he failed
to join his place of posting at Jalna. He wrote two letters on March 30,
1993 and May 01, 1993 wherein he had feign illness and sought one
month leave on two occasions. He had also stated that it was not possible
for him to travel from Delhi to Jalna till such time he fully get recovered.
It is also noticed that even thereafter the respondent No.2 till the date of
issuance of charge-sheet on January 04, 1994 had not joined the place of
posting. A period between the date of transfer and the date of charge-
sheet is a considerable one. In fact even after the issuance of the charge-
sheet he did not join the duties. The Supreme Court in its latest opinion
in SLP(Civil) No.24220-24221/2007 Vijay S.Sathye vs. Indian Airlines
Ltd. & Ors. has in para No.9 held as under:
―9. It is a settled law that an employee cannot be termed
as a slave, he has a right to abandon the service any time
voluntarily by submitting his resignation and alternatively,
not joining the duty and remaining absent for long.
Absence from duty in the beginning may be a misconduct
but when absence is for a very long period, it may amount
to voluntarily abandonment of service and in that
eventuality, the bonds of service come to an end
automatically without requiring any order to be passed by
the employer.‖
35. It is apparent in the facts of this case that the absence of
respondent No.2 from duties was for a very long period. Applying the
ratio of the judgment of the Supreme Court, it is a clear case of
abandonment of service by the respondent No.2. It is a case where the
respondent No.2 had no intention to join the duties. It is not a case of
absence of temporary nature on account of ill health. Rather it is a case
where the respondent No.2 had no intention to join the duties. Hence,
being a clear case of abandonment, even this conclusion of the Labour
Court is also erroneous.
36. From all perspectives, the impugned award of the Labour Court is
liable to be set aside. I set aside the award of the Labour Court dated
April 30, 1999 passed in I.D No.397/1996 so also the order dated
September 15, 1999 whereby the review petition filed by the petitioner
was dismissed. The writ petition is allowed with no order as to costs.
CM No.16813/2013
In view of the order passed in the writ petition, the application is
disposed of as infructuous.
(V.KAMESWAR RAO)
JUDGE
MAY 23, 2014
km
