Y. Ramana Rao vs M/S Timken India Ltd. & Others
2022 Latest Caselaw 2483 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Civil Writ Jurisdiction)
                      W.P.(L) No. 3447 of 2012
                          ........

Y. Ramana Rao                                    ..... Petitioner
                            Versus
M/s Timken India Ltd. & Others               .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                                  ............
For the Petitioner                  : Mr. Amit Kumar, Advocate.
For the Respondents                 : Mr. Indrajit Sinha, Advocate.
                                    : Mr. Ankit Vishal, Advocate
                                  ........
17/07.07.2022.
       Heard, learned counsel for the parties.

Learned counsel for the petitioner, Mr. Amit Kumar has submitted, that petitioner has assailed the impugned award dated 22.03.2012 passed by learned Presiding Officer, Jamshedpur in B.S. Case No.06/2005, whereby the award has been decided in favour of the Management against the Workmen.

Learned counsel for the petitioner, Mr. Amit Kumar has submitted, that impugned award has been assailed on two counts:-

(i) That there was no valid reason to the respondents to terminate the petitioner.

(ii) That they have not followed the provisions as contemplated under Section 26 of the Bihar Shops and Establishment Act, 1953.

Learned counsel for the petitioner has submitted, that without issuing show-cause to the petitioner, he has been terminated from the job and thus it is violative of principle of natural justice and there is no evidence on record to suggest that petitioner was not doing the work to the satisfaction of respondents-authorities, as such, impugned order of termination and order of Award may be set aside.

Learned counsel for the petitioner has further submitted, that in the letter of appointment of the petitioner, it has been categorically mentioned that at the time of removal, separation or termination, three months notice shall be given by either of the parties, but the respondents instead of granting three months notice to the petitioner or salary of three months, terminated the service of the petitioner and thus respondents violated undertaking given by the company itself, which is in conflict with Section 26 of the Bihar Shops and Establishment Act, 1953.

Learned counsel for the petitioner has further submitted, that though respondents have given letter of appreciation to the petitioner, but while terminating, no compensation has been given for serving the respondents from 1991 till 2005 i.e. 15 years.

Learned counsel for the respondents, Mr. Indrajit Sinha assisted by learned counsel, Mr. Ankit Vishal has submitted, that learned Tribunal has considered the same in paragraph-5 of the impugned award, that in the cross- examination the petitioner has admitted that "he was transferred to Banglore and Hydrabad in the office of the company in sales and marketing department and he joined there and was transferred after giving him a fresh appointment letter in which it was mentioned that either of the party shall be separated from the service giving three months notice and he had not made any protest in writing against that contract. Further stated that he had put his signature on the appraisal form for year 2001, 2002, 2004. In para 34 he has categorically stated that Mr. Salil, an officer had communicated me and he used to get incentive and gift / increment for his good performance, but did not get any increment from 2002 to 2005." This shows that petitioner was not performing well for last few years and thus granting compensation to such persons, who are not discharging duty to the satisfaction of the respondent is not proper.

Learned counsel for the respondents has further submitted, that appraisal form of the petitioner has been brought on record as Exhibits-A, A/1 and A/2, which are of the year 2002-2004 and the same has been considered by the tribunal and performance was found to be poor. The same was exhibited before the learned Tribunal and this was known to the petitioner, but he has not improved himself, as such, the termination order passed under Section 26 of the Bihar Shops and Establishment Act is in- consonance with the law, which permits that three months notice or in lieu thereof three months salary be given.

Learned counsel for the respondents has placed reliance upon the judgment passed by the Apex Court in the case of State of Uttar Pradesh Vs. Dinanath Rai reported in (1969) 3 SLR 646. Para-8 of which may profitably be quoted hereunder:-

"8. It seems to us that the meaning of the statutory rule is clear. It gives option to the Government to either give a

month's notice or to substitute for the whole or part of this period of notice pay in lieu thereof. The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued Knowing the way the governments are run, it would be difficult to ascribe this intention to the rule-making authority. There is no doubt that the government servant would be entitled to the pay in lieu of notice but this he would get in the ordinary course."

Learned counsel for the respondents has further placed reliance upon the judgment passed by the Apex Court in the case of Pepsico India Holding Private Limited Vs. Krishna Kant Pandey reported in (2015) 4 SCC 270 paras-13 to 15, which may profitably be quoted hereunder:-

"13. Considering the entire facts of the case and the findings recorded by the Labour Court, prima facie we are of the view that the High Court has exceeded in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India in interfering with the finding of facts recorded by the Labour Court. It is well settled that the High Court in the guise of exercising its jurisdiction normally should not interfere under Article 227 of the Constitution and convert itself into a court of appeal.

14. While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in the case of Chandavarkar S.R. Rao vs. Ashalata S. Guram, (supra) held as under :-

"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court [pic]was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7)

7. "The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the ... power of superintendence conferred

by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.

This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:

"30...It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."

15. In the case of Birla Corpn. Ltd.. vs. Rajeshwar Mahato and Others, (2001) 10 SCC, the question of validity of termination of services of the respondent by the appellant-Corporation was referred to the Industrial Tribunal. On evidence, the Industrial Tribunal found that the duties of the respondent were mainly managerial or administrative. The Tribunal held that the respondent was not a workman and the reference was therefore not maintainable against the decision of the Tribunal. The Tribunal relying on Section 2(s)(iv) (as amended in West Bengal W.B.) held that as the respondent was drawing salary less than Rs.1600/- per month, he had to be regarded as a workman. The Corporation moved this Court against the order of the High Court. This Court while setting aside the decision of the High Court held as under, (paras 4 & 11-12) :-

"4. It was not in dispute that at the time of the termination of services of Respondent 1, he was receiving Rs 1185 per month by way of salary. The Tribunal recorded the evidence as well as took into consideration documentary evidence which was produced by the parties. On the basis of the evidence which was adduced before it, the Tribunal observed that: "The main duties of Shri Rajeshwar Mahato were both supervisory and administrative in nature.

In the instant case, Shri Mahato's functions were mainly of a managerial nature. He had control as well as supervision over the work of the jute mill workers working under him."

11. As we have also noticed hereinabove, the Tribunal had given a categorical finding to the effect that Respondent 1's function was mainly of managerial nature. His duties were both supervisory and administrative and therefore he was regarded as not being a workman. Though the Tribunal did not specifically state so, it is evident that it

is because of Section 2(s)(iii) that Respondent 1 was regarded as not being a workman.

12. Neither the Single Judge nor the Division Bench of the High Court, as we have already noticed, referred to this aspect of the matter. Even assuming that the West Bengal amendment was applicable, that would still not help to hold Respondent 1 as a workman if the finding of the Tribunal with regard to the nature of the duties performed by him, as arrived at by the Tribunal, is not set aside as being frivolous or without any evidence. As long as the finding of the Tribunal stands, namely, that the respondent was an employee mainly in a managerial or administrative capacity, the award of the Tribunal could not have been set aside. As we have already observed the Single Judge or even the Division Bench could have come to the conclusion that the finding so arrived at by the Tribunal was either frivolous or not based on any evidence. But this aspect of the case was completely overlooked by the High Court. The emphasis of the Single Judge as well as the Division [pic]Bench was only with regard to applicability of the amendment of the State of West Bengal to Section 2(s) of the Industrial Disputes Act. In our opinion, therefore, the High Court erred in allowing on this ground the writ petition filed by Respondent 1. The decision of the High Court is set aside and the writ petition filed therein by the respondent stands dismissed."

Learned counsel for the respondents has further placed reliance upon the the judgment passed by the Apex Court in the case of Madhya Bharat Gramin Bank Vs. Panchamlal Yadav reported in 2021 SCC Online SC 759 para-6, which may profitably be quoted hereunder:-

"6. Having considered the submissions made on behalf of the parties, we are of the view that the respondent is not entitled for reinstatement in view of the law settled by this Court. The judgments relied upon by Mr. Kapur are clear to the effect that violation of Section 25F of the Industrial Disputes Act, 1947, would not automatically entail in the reinstatement with full back wages. The relief to be granted depends on the facts of individual cases."

Learned counsel for the respondents has thus submitted that the impugned order does not requires any interference by the Court, however, petitioner can reply to the same.

After hearing learned counsel for the parties, on the basis of material available on record and on perusal of the impugned award, it appears that petitioner was informed by the respondents by taking his signature on the appraisal form Exhibits- A/1 to A/2, showing poor performance followed by transfer and stoppage of increments, but petitioner has not improved himself

and as such, no compensation can be granted. The impugned order does not suffer from any legality, accordingly, the same is hereby affirmed.

The writ petition is dismissed.

Three months salary ought to have been paid to the petitioner, which shall be paid, if not already paid with interest within 30 days from communication of this order.

The interest shall be paid to the petitioner of Bank rate or @ 7.5% per annum as awarded by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208.

(Kailash Prasad Deo, J.) Jay/