Jharkhand High Court
Avinash Mishra vs The State Of Jharkhand & Anr on 21 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W.P.(L) No. 3726 of 2021
Avinash Mishra .... .. ... Petitioner
Versus
The State of Jharkhand & Anr. .. ... ... Respondents
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.........
For the Petitioner : Mr. Shailesh Poddar, Advocate
For the Resp.-State : Mr. Raunak Sahay, AC to G-V
......
02/ 21.10.2021.
Learned counsel for the petitioner has submitted that petitioner, Avinash
Mishra was working since 09.07.2014 as an Associate vide offer of an employment
issued by respondent no.2, who was running its organization in the name and style of
Urban Mobility Transformation Services Pvt. Ltd., though his employment was
contractual in nature, initially for a period of 12 months, but the same was renewed
from time to time till he was unlawfully dismissed on 09.09.2020.
Learned counsel for the petitioner has further submitted that the name of
organization was changed later on in the year, 2016 as Urban Works Institute, but the
employees, office address everything remained the same and the petitioner continued
to be employed in the same capacity without having to give a fresh application for
employment.
Learned counsel for the petitioner has further submitted that at the time of
dismissal from the service, petitioner was getting a salary of Rs.40,075/- on
11.02.2021 and thereby it has been held by Deputy Labour Commissioner, Ranchi
that petitioner does not come under the definition of workman in view of Sections
2(s)(iii) and (iv) of the Industrial Disputes Act, 1947. In this regard it has been
submitted by learned counsel for the petitioner that petitioner was working as
Research Associate though his salary was Rs.40,075/-, but as per the Act, which
deals with salary of Rs.10,000/- per month only. As on today, the salary of all the
workmen is more than Rs.10,000/- in all the firms, as such, to reject the claim of the
petitioner, the respondent-Conciliator ought to have held that petitioner was not a
workman as he was holding Administrative or Managerial post, in view of the
judgment passed by the Apex Court in the case of Anand Regional Coop. Oil
Seedsgrowers' Union Ltd. Vs. Shaileshkumar Harshadbhai Shah, reported in
(2006) 6 SCC 548.
Learned counsel for the petitioner has further submitted that in view of
Section 12(4) of the Industrial Dispute Act, 1947 if the conciliation fails then
Conciliation Officer should have sent the report to the appropriate Government, but
he cannot reject the claim of the petitioner directing him to appear before the
competent court for outstanding amount.
Learned counsel for the petitioner has further submitted that order passed by
the Deputy Labour Commissioner, Ranchi as contained in Letter No.516 dated
23.03.2021 is bad in law and may be set aside as Deputy Labour Commissioner is of
the opinion that applicant is not a workman, but his matter has not been referred and
irreparable loss and injuries have been caused to the writ petitioner.
Learned counsel for the resp.-State, Mr. Raunak Sahay, AC to GP-V has
submitted that claim of the petitioner has not been refused rather he was advised
under Section 2(s)(iii) and (iv) of the Industrial Disputes Act, 1947 that he is not a
workman and his application has been disposed of under Section 12(4) of the
Industrial Disputes Act, 1947 for agitating the same before the competent Court of
Law.
Be that as it may, the finding which has been recorded by the Deputy Labour
Commissioner, Ranchi, who is the conciliating authority has not stated any word that
whether the petitioner was working under the Managerial or Administrative capacity.
Only on the basis of Section 2(s)(iv), his claim cannot be disputed.
Under the aforesaid circumstances, State is directed to file counter-affidavit
within a period of four weeks.
Let notice be issued upon respondent no.2- Urban Works Institute, through its
Managing Trustee having its office at New No.5 (Old No.2), 3 rd Street Nehrunagar,
Adyar, Chennai, P.O. Adyar, P.S.- Adyar, Tamilnadu- 600020, also at Ground Floor,
Sagar Kunj, Behind Sarojini Apartments, Ranchi College Road P.O.- Ranchi
University, P.S. Gonda, Ranchi- 834008, under both process, i.e. under registered
cover with A/D as well as under ordinary process for which requisites etc. must be
filed within a period of one week.
Put up this case after service of notice.
(Kailash Prasad Deo, J.)
R.S.
