The Management Of Jamshedpur ... vs The Workman Sri Jitendra Kumar ...
2021 Latest Caselaw 1938 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   W.P. (L) No.3824 of 2010
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The Management of Jamshedpur Worker' College Employees Credit Cooperative Society Ltd., Jamshedpur, through its Secretary Rajiv Kumar, son of Sri B. N. Prasad, Resident of 18 Luthi Tower, P.O. and P.S. - Mango, District - East Singhbhum, Jamshedpur, having its office at Jamshedpur Workers' College, P.O. and P.S. - Mango, District - East Singhbhum, Jamshedpur.

                                          ...             ...             ...        Petitioner
                                            -Versus-

The Workman Sri Jitendra Kumar Tiwari, son of Sri Shivnath Tiwari, Resident of 21/22, Patel Nagar, Bhuiyan Dih, P.O. and P.S. - Aggrico, Jamshedpur, District - East Singhbhum, Jamshedpur.

                                                    ...         ...          ...Respondents
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           CORAM          :THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
                          (Through: Video Conferencing)
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           For the petitioner        : Mr. Saurav Arun, Advocate.
           For the Respondents       : Mr. Shree Krishna Pandey, Advocate
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             C.A.V. On 01.02.2021                      PRONOUNCED ON 18.06.2021

Dr. S.N. Pathak, J. In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing on various dates and finally on 01.02.2021, it has been reserved for final Judgment. Concerned lawyers have no objection with regard to the proceeding, which were held through Video Conferencing. They have no complaint in respect to the audio and video clarity and quality.

2. The petitioner - Management of Jamshedpur Worker' College Employees Credit Cooperative Society Ltd. has knocked door of this Court with a prayer for quashing the Award dated 28.04.2010, passed in Reference Case No. 16 of 2002 by which order of dismissal of respondent as Clerk-cum-Accountant has been held to be illegal and the termination order has been set aside and the workman is directed to be reinstated to his post along with 50% backwages with effect from 11.01.2001 with all other consequential benefits. It has also been directed that the workman shall be deemed to be in continuity of service.

3. Fact of the case in brief is that the respondent-workman joined the service on 28.04.1987 and was the permanent employee of the petitioner-Management. His services was confirmed to the post of Accountant-cum-Office Assistant on and from 17.04.1990 and confirmation was duly approved by Assistant Registrar of the management vide letter no. 938, dated 31.12.1994. However, without any

rhyme or reason, vide letter no. 25/2001, dated 11.01.2001, issued by the Secretary of the petitioner-Management, the respondent-workman was informed that he has been terminated with immediate effect and another person was engaged in his place. Being aggrieved, the respondent-workman represented before the Management on 20.01.2001 but no response was made to him. Being aggrieved, the respondent-workman raised Industrial disputes against his termination from the service. The appropriate Government, vide Notification No. 1/ Shram-D-01-31/ 2001, L.E. & T - 796, dated 14.12.2002, referred the matter before the Industrial Tribunal with the following terms:

"Whether the dismissal of service of Jitendra Kumar Tiwari, Clerk- cum-Accountant, the workman, Jamshedpur Workers' College Employees' Credit Cooperative Society Ltd., Mango, Jamshedpur is legal and Justified? If not, what relief he is entitled to?

4. After receipt of notification from appropriate Government, notices were issued to both sides, who appeared and filed their respective written statements/ reply. Thereafter, the following issues were framed by the Tribunal;

(i) Whether the termination of services of the workman Jitendra Kumar Tiwary, Clerk-cum -Accountant, the workman of Jamshedpur Workers' College Employees Credit Cooperative Society Ltd., Mango, Jamshedpur, as made by the management is proper and justified?\

(ii) Whether the instant reference is barred by the principles of resjudicata?

(iii) Whether workman Jitendra Kumar Tiwary committed any misconduct and compelled the management to take drastic steps to terminate the services of the workman?

(iv) To what relief/ relieves, workman is entitled to receive?

5. After hearing the parties, considering facts and circumstances of the case, evidences adduced by the parties, the reference was answered in favour of the workman and against the Management. After setting aside the letter of termination issued against the workman, the Tribunal further directed to reinstate the respondent-workman to his post along with 50% backwages from the date of termination till the date of reinstatement i.e. from 11.01.2001 and all other consequential benefits. The Tribunal further directed that the workman shall be deemed to be continue in service without any break. Being aggrieved, the petitnoer-Management has knocked door of this Court.

6. Mr. Saurav Arun, learned counsel appearing for the petitioner -

Management submits that Jamshedpur Worker' College Employees Credit Cooperative Society Ltd. is a registered Society under the Bihar and Orissa Cooperative Society Act, 1935 with the object for promotion of common interest

of its members in accordance with Cooperative principles and its Management vested in the Management Committee. The workman is not entitled for any relief and the reference under the Industrial Disputes Act, 1947 was bad in law. The decision of terminating services of the workman was taken in Annual General Body Meeting of the Society dated 10.01.2001 and thereafter, following the rules and regulations, workman was terminated from the services. The Managing Committee of the Society had duly offered the amount of notice pay and compensation but the workman refused to receive the same, which is lying in the office of the Management. The workman even refused to accept termination letter, which was thereafter sent to him through registered post. The respondent-

workman, instead of waiting for the decision of the Assistant Registrar, Cooperative Society, moved before the appropriate Government for reference, which is not sustainable in the eyes of law. The Industrial Dispute is premature and barred by resjudicata. Learned counsel further argues that the dispute has been raised after concealing material facts. The Conciliation Officer did not consider facts and circumstances objectively and sent failure report in a routine manner without applying his mind. Learned counsel further argues that the respondent was working with the Management in permanent capacity but without any prior information and permission, he joined the services under Moti Lal Nehru Public School where he was found indulged in illegal activities and a case was registered against him for the offence under Sections 406/ 408/ 420 of the Indian Penal Code and was remanded to judicial custody also. The workman was guilty of misconduct and double employment apart from indulging in criminal activities. Such a workman who has cheated the Management, cannot be accepted for smooth running of any institution. Action of the workman has adversely affected interest of the Management. It has further been argued by counsel for the Management that the respondent-workman illegally withdrew an amount of Rs.15,000/- as P.F. Loan from the Society without prior sanction of the Managing Committee although he was holding his separate Account for Provident Fund, which is a grave misconduct on his part. The workman was also found indulged in trying to get his pay revised without approval of General Body. The termination is fully justified and there is no violation of principles of natural justice or any rule. Learned counsel further argues that in view of Clause 29(11) of the Bye Laws of Workers' College Employees' Credit Cooperative Society, the appointment, suspension, dismissal of the salaried staff etc. in the Cooperative Society will be in terms of the Registrar, Cooperative Society. Learned counsel further argues that the Society runs with the contribution of

Rs.500 to 1000/- per members and as such it has no so much resources and is not capable to pay 50% of the backwages as per direction of the Tribunal. The Industrial Dispute itself is bad and this writ petition may be allowed. The workman, at best, could have raised the disputes under Shop & Establishment Act against him termination. Cooperative Society in no stretch of imagination can be said to be an Industry.

Relying upon the Judgment passed in the case of Som Vihar Apartment Owners' Housing Maintenance Society Ltd. Vs. Workmen, C/o. Indian Engg, & Genl. Mazdoor reported in (2002) 9 SCC 652, learned counsel submits that the whole purpose of the Industrial Disputes Act is to focus on resolution of industrial disputes and the regulation will not meddle with every little carpenter or a blacksmith, a cobbler or a cycle repairer who comes outside the idea of industry and industrial dispute. This rationale, which applies all along the line to small professions like that of domestic servants would apply to those who are engaged by a group of flat owners for rendering personal services even if that group is not amorphous but crystalised into an association or a society. Learned counsel further submits that it is clear when personal services are rendered to the members of a society and that society is constituted only for the purposes of those members to engage the services of such employees, the activities of the Society should not be treated as an industry nor are they workmen. The Award passed by the Tribunal cannot be sustained.

To buttress his arguments, learned counsel has relied upon the following Judgments:

(i) Som Vihar Apartment Owners' Housing Maintenance Society Ltd. Vs. Workmen, c/o. Indian Engg. 7 Genl. Mazdoor reported in (2002) 9 SCC 652;

(ii) Municipal Council, Sujanpur Vs. Surinder Kumar reported in (2006) 5 SCC 173;

(iii) State of Orissa and another Vs. Mamata Mohanty reported in (2011) 3 SCC 436;

(iv) Gujrat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Majdoor Sabha reported in (1980) 2 SCC 593;

(v) Novartis India Ltd. Vs. State of West Bengal and others reported in (2009) 3 SCC 124;

(vi) Municipal Council, Sujanpur Vs. Surinder Kumar reported in (2006) 5 SCC 173;

7. Mr. Shree Krishna Pandey, learned counsel appearing for the respondent-

workman argues that the poor workman has been unnecessarily harassed by the mighty Management. Neither any complaint was received from any quarter nor any show-cause or chargesheet was ever served to the workman and suddenly to the utter surprise of him, he has been served with the letter no. 25/2001, dated 11.01.2001, informing him that he has been terminated with immediate effect and some other persons were engaged in his place. Learned counsel submits that neither any approval was sought from the Assistant Registrar, Cooperative Society in the matter of termination of the workman nor any opportunity was given to him. The order of termination is vague, cryptic and in violation of principles of natural justice. Termination has been made without any reasonable cause. The termination is against the principles of natural justice and it is a retrenchment for which neither any notice nor notice pay in lieu of notice nor compensation was paid on or before termination of services and the same is against the provisions of law. Termination has been made on baseless, false allegations of wrong payment, wrong promotion and double employment but without memo of charges, show-cause, proceedings and in total violation of principles of natural justice. Drawing attention of this court towards Annexure-1, dated 11.01.2001, learned counsel submitted that the same clearly smacks of malafide and violation of principles of natural justice. Learned counsel further argued that Section 29 of the Bye-laws of the Society has also not been complied with. No domestic enquiry was ever conducted nor any reason was assigned for termination of services of the workman. Learned counsel further argues that the allegation of joining a different school is false and fabricated. The workman had neither committed any misconduct nor did he ever dupe the management. The workman was not in gainful employment during his termination, which has also been brought on record on oath vide supplementary affidavit filed by him.

Justifying findings of the Labour Court, learned counsel further submitted that there is no illegality or any infirmity in the impugned Award. The Labour Court, after leading evidences and examining witnesses and perusal of records, had come to such a finding, which cannot be interfered by this Court sitting under Article 226 of the Constitution of India. Learned counsel vociferously argued that in a Writ Court, evidences cannot be reappreciated and the Court can only interfere if the findings are perverse and arbitrary. Nothing has been brought on record to show that findings are perverse and reasonings are arbitrary and as such the order passed by the Labour Court should be upheld.

8. Having heard counsel for the parties, this Court is of the considered view that no case is made our for interference. This Court is in full agreement with the findings of the Labour Court and as such no interference is warranted for the following facts and reasons:

(i) The issue of maintainability is set at rest as admittedly the case was maintainable before the Labour Court. The Judgment relied upon by the petitioner does not come to his rescue as those are based on different facts and ratio and is not applicable in the instant case. This Court is fully satisfied that the case was maintainable before the Labour Court.

(ii) Learned counsel for the petitioner has challenged the reference belatedly, which is not accepted and is fit to be turned down on the ground of delay. Admittedly the termination order was passed by the Management without following the procedures of law. Petitioner has admitted that without serving show-cause notice and framing of charges and holding enquiry under the procedures of law, the letter of termination was issued. The law is well settled that whenever charge of misconduct is leveled against an employee, the same requires to be proved in a proper enquiry in which employee has to be given proper opportunity of hearing. Nothing was done in the instant case and the Management has failed to prove the misconduct committed by the workman.

(iii) Even the bye-laws of the College was neither adhered to nor complied.

From perusal of Section 29(11) of the Bye-laws it appears that dismissal of salaried staff can be made in accordance with instructions issued by the Registrar, Cooperative Societies from time to time. It is relevant to quote Section 29(11) of the Bye-laws, which reads as under:

"To appoint, suspend, punish or dismiss salaried staff and to fix their remuneration, as may be necessary in accordance with instruction issued by the Registrar, Cooperative Societies from time to time."

In the instant case, no such instruction was sought from the Registrar, Cooperative Society in the matter relating to termination of services of the workman and as such, the termination is against the provisions of Bye- laws of the Society and the same is not sustainable in the eyes of law.

(iv) The Management has also failed to comply requirements of Section 25-F of the Industrial Disputes Act, which itself is sufficient to hold that the order of termination is bad in law.

(v) Nothing has been argued by the learned counsel for the petitioner to show perversity in the impugned Award passed by the Labour Court rather the

learned counsel has tried to harp on the maintainability of the case before the Labour Court, which is not accepted by this Court. The case laws cited by the petitioner is not at all applicable in the facts and circumstances of the case.

(vi) The Hon'ble Apex Court in the case of Krushna Narayan Wanjari Vs. Jai Bharti Shikshan Sanstha, Hinganghat through its Secretary and another reported in (2018) 12 SCC 620 has held that unless the approach is well perverse and the petitioner had acted in no evidence, the High Court under Article 226 and 227 of the Constitution of India, is not justified in interfering with the Award as it cannot re-appreciate the evidence as an Appellate Court.

(vii) Further, in the case of Bhuwanesh Kumar Dwivedi Vs. Hindalco Industries reported in (2014) 11 SCC 85, the Hon'ble Supreme Court has held that where Labour Court commits patent mistake in law in arriving at a conclusion contrary to law, the same can be corrected by the High Court. In the instant case, the Management could not prove its case for any interference.

(viii) .So far question of parallel proceeding has been raised by the Management, it is stated that it is the Management who moved before the Registrar, Cooperative Society and the Registrar, Cooperative Society held that appointment of the workman was fully justified and in accordance with law. The order of termination was never subject matter of challenge before the Registrar and nothing is pending there. The plea of parallel proceeding also fails. Vide orders dated 19.07.2011, 22.08.2019 and 12.09.2019 (Annexures-6, 7 and 8 filed with the additional counter affidavit) it appears that all the allegations against the workman has been rejected and turned down and order was passed for his appointment forthwith.

9. Considering other aspects of the matter, it is also well settled that the orders of the Tribunal can only be interfered if there is gross illegality and the order is perverse and without jurisdiction. Nothing has been argued nor brought on record to show that the order passed by the Tribunal is without jurisdiction and is full of illegality and is perverse. This Court, sitting under Article 226 of the Constitution of India, can only interfere if the aforesaid elements are attracted. In absence of the same, no interference is warranted.

10. In view of the facts and circumstances discussed hereinabove and for the reasons expressed above, this Court is in full agreement with the Award passed by the Tribunal and as such is not in a position to take a different view what has been taken by the Tribunal. I do not find any infirmity or any illegality in the impugned Award. No interference is warranted by this Court in the impugned Award.

11. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I find the impugned Award needs no interference. The Award is confirmed and the Management is directed to act as per directions made in the Award dated 28.04.2010, passed in Reference Case No. 16 of 2002.

12. Resultantly, writ petition stands dismissed.

(Dr. S.N. Pathak, J.) RC/