Jharkhand High Court
The Management Of M/S. Telco Limited ... vs Bhairav Nath Shrivastava Son Of Late ... on 2 January, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 6871 of 2012
The Management of M/s. TELCO Limited (Tata Engineering &
Locomotive Company Ltd) now Tata Motors Ltd, through its duly
constituted Attorney Shri Rajesh Kumar Das son of Late P.N. Das,
resident of C/15, Vivekanand Road, P.O.- Baridih, P.S.- Sidhgora,
Town Jamshedpur, District- East Singhbhum, Jamshedpur and
currently posted as Assistant General Manager (Legal Services), M/s.
Tata Motors Ltd. ... ... Petitioner
-Versus-
Bhairav Nath Shrivastava son of Late K.P. Shrivastava, resident of
Ramadhin Bagan, Garadi near Manfit, P.O.- Indranagaram, P.S.-
Telco, Town- Jamshedpur, District- Singhbhum East (Jharkhand)
(Deleted vide order dated 10.06.2019).
1. Smt. Manorama Shrivastava (wife) aged about 70 years
2. Sri Tarkeshwar Nath (Son) aged about 45 years
3. Sri Tripti Nath (Son), aged about 40 years
All are residents of Ramadhin Bagan, Garadi, near Manfit, P.O.-
Indranagaram, P.S.- Telco, Town- Jamshedpur, District- East
Singhbhum (Jharkhand)
4. Smt. Madulika (daughter), aged about 39 years, wife of Shri
Ashis Varma, R/O: Flat No. 1E, Maa Tara Apartment, 264,
Purulia Road, Kanta Toli, P.O. & P.S.- Lalpur, District- Ranchi
(Jharkhand) ... ... Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Ms. Rashmi Kumar, Advocate
For the Respondents : Mr. Manish Kumar, Advocate
---
Lastly heard on 03.12.2024
23/02.01.2025
1. Heard the learned counsel appearing on behalf of the parties.
2. This petition has been filed for the following reliefs: -
"(a) For setting aside the award dated 28.12.2011 (pronounced
in Open Court on 17.07.2012) (Annexure-4) passed in Reference
Case No. 36 of 2002 by Sri Shiv Kumar Yadav, learned
Presiding Officer, Labour Court, Jamshedpur whereby and
whereunder he has been pleased to answer the reference in
favour of the respondent and directed the petitioner to pay 3/4th
of the back wages and consequential benefits to the respondent
from the date of his termination till the date of his
superannuation along with interest @7% per annum.
(b) For issuance of appropriate writ(s)/ order(s)/ direction(s)
quashing the order making reference under Section 10(1)(c) of
the Industrial Disputes Act dated 30.05.2002.
(c) Any other relief or reliefs as Your Lordships may deem fit
and proper for which the petitioner is very much entitled under
the facts and circumstances of the case."
Argument of the Petitioner
3. The learned counsel for the petitioner while assailing the
impugned award submitted that the concerned workman was
terminated on 02.11.2000 and three months' salary was also given to
him in lieu of notice period and he has received the entire terminal
benefits in the year 2006 itself without any objection. The entire
exercise included issuance of clearance certificate, the three months'
salary and also retiring gratuity. She submitted that after having
received the terminal benefits without any protest, the concerned
workman raised an industrial dispute challenging his order of
termination. She submitted that the concerned workman having
accepted the payment discontinued to be an employee of the petitioner
and therefore, there was no relationship of employer and employee
and consequently the reference itself was not maintainable.
4. The learned counsel further submitted that the concerned
workman was working as engineer in TM 1 Grade and was having the
status and function of supervisory job and was drawing monthly
wages @ Rs.9,985/- and consequently, he could not have been said to
be a 'workman' within the meaning of the Industrial Disputes Act.
She further submitted that a specific point in this regard was raised
and evidence of the management witness was also produced to that
effect inasmuch as the management witness had stated that the
concerned workman was doing supervisory work, but this aspect of
the matter has not been properly considered by the court and the
findings with regard to Point No.1 is perverse.
5. The learned counsel also submitted that the termination of the
concerned workman has been set aside with 3/4th of his back wages
and consequential benefits from the date of his termination till the age
of his superannuation with interest @7% per annum. There was no
statement from the side of the workman in the entire record that he
remained unemployed after the order of termination. The learned
counsel for the petitioner relied upon the judgment passed by the
Hon'ble Supreme Court reported in (2006) 1 SCC 479 (U.P. State
Brassware Corpn. Ltd. and Another -vs- Uday Narain Pandey)
Paragraph- 61 and 62 to submit that it was for the workman at the first
instance to plead that he remained unemployed and that having not
been done so, the award of back wages, being perverse, calls for
interference.
Argument of the Respondents
6. The learned counsel appearing on behalf of the respondents
while opposing the prayer submitted that the impugned award is a
well-reasoned award which does not call for any interference under
Article 226 of Constitution of India.
7. With regard to the scope of interference, under Article 226 of
the Constitution of India, the learned counsel referred to the judgment
passed by the Hon'ble Supreme Court reported in 2023 SCC OnLine
SC 996 (Central Council for Research in Ayurvedic Sciences and
Another -vs- Bikartan Das and Others) Paragraph-51 onwards.
8. The learned counsel further submitted that the payment made to
the concerned workman was forwarded by the employer and
consequently, the workman received the payment and the document in
connection with the payment of gratuity does not even contain the
signature of the concerned workman. He submitted that the concerned
workman raised the dispute on the very next month of receipt of the
terminal benefits and it cannot be said to be an afterthought from the
side of the concerned workman.
9. The learned counsel also submitted that the termination of the
concerned workman was under challenge and therefore, it cannot be
said that he ceased to be a workman within the meaning of Industrial
Disputes Act.
10. The learned counsel further submitted that with regard to the
plea that the workman was working as supervisory capacity, the
learned court has cited reasons for rejecting such plea based on
materials on record and therefore, the findings do not call for any
interference. He submitted that merely a statement that he was
working as supervisory capacity is not sufficient. He relied upon a
judgment passed by the Hon'ble Supreme Court reported in 1988
Supp SCC 82 (National Engineering Industries Ltd. -vs- Shri
Kishan Bhageria and Others) Paragraph-7, to submit that the nature
of work was required to be duly placed on record to claim that the
concerned workman was working in supervisory capacity. He
submitted that the finding in connection with the aforesaid issue is
well reasoned and does not call for any interference.
11. With respect to payment of back wages, the learned counsel
relied upon the judgment passed by Hon'ble Supreme Court reported
in (2013) 10 SCC 324 (Deepali Gundu Surwase -vs- Kranti Junior
Adhyapak Mahavidyalaya (D. Ed) and Others) Paragraph-38 and
submitted that it was for the petitioner employer to plead and also
prove that the workman was gainfully employed. He also referred to
the judgment passed by this Court in L.P.A. No. 42 of 2020 (Tata
Steel Limited -versus- Sri R.S. Singh) Paragraph-38 to submit that in
the said case, full back wages was granted and no interference was
made with regard to grant of back wages.
12. The learned counsel also submitted that the termination of the
workman was found to be without reasonable cause and it was also
held that termination was in violation of Section 25F of Industrial
Disputes Act. He also submitted that the concerned workman was in
employment of the petitioner since 1963 and had served long years of
service before he was terminated and this aspect of the matter should
be considered while considering the back wages.
Findings of this Court
13. The terms of reference was as follows:
"Whether the termination of service of Mr. B.N. Srivastava and
other workmen of Telco Ltd. Jamshedpur is proper and justified?
If not, what relief they are entitled to?"
14. During the course of argument, it transpired that although the
terms of reference was in connection with number of workmen, but
the present case relates only to Sri B.N. Srivastava and the cause title
itself reflects that Sri B.N. Srivastava had represented himself before
the learned Labour Court.
15. It is not in dispute that B.N. Srivastava was appointed as Trade
Apprentice way back in the year 1964 and became mechanic in 1967
and at the relevant point of time, he was designated as Engineer and
was drawing wages @ Rs.9,985/- per month and was placed in TM 1
Grade.
16. It is further not in dispute that the said workman was issued
termination letter terminating his services with effect from 02.11.2000
and was also given three month's salary instead of one month's pay in
lieu of notice. The amount was given to the concerned workman in the
month of November, 2000 and he raised the dispute challenging his
order of termination in the month of December, 2000, though the
reference was made vide notification issued in the year 2002 and the
reference case was numbered as Reference Case No. 36 of 2002.
17. The written statement of the management which included the
point of maintainability of the reference and jurisdiction of the learned
Labour Court has been placed as Annexure-1 to the writ petition.
Paragraph-2 of the written statement of the management reveals that
objection was raised that the appropriate government did not apply its
mind properly while referring the dispute and that the concerned
workman was working in supervisory capacity paced in T.M. 1 Grade.
Further case was that the performance of the concerned workman was
not satisfactory and he was not fit for changed situation in global
competition and consequently, the concerned workman was separated
vide office order dated 02.11.2000. Further case of the management
was that instead of one months' salary, the concerned workman was
offered and paid three months' salary vide cheque dated 09.11.2000.
The case of the management has also been recorded in Paragraph-3 of
the impugned award.
18. On the other hand, the case of the concerned workman was that
he was appointed as Trade Apprentice in 1964 and became Mechanic
in 1967 and was working in his service on the post till his termination
without any stigma, and he was terminated from the service of the
company w.e.f. 02/11/2000 by an office order under the signature of
senior Vice-President of the company who had no any authority to
terminate him. The workman filed representation on 07/11/2000 and
also sent reminder on 25/11/2000 to the Chairman, but his request was
not considered. Then he has raised the dispute. At the time of
termination, his work was to maintain the machinery, equipment and
the quality of the production, and he had no control over co-worker,
and he was never empowered to recommend or grant leave, nor he
was any financial and disciplinary authority and hence, he was a
workman within the meaning of the Industrial Disputes Act, 1947 and
he was terminated from the service by an office order stating therein
that his services no longer required. It was his case that he was
terminated without any reasonable cause as no any charge sheet was
issued to him for any allegation, nor any enquiry was conducted
before his termination. Hence, his termination was illegal and against
the principles of natural justice. The workman prayed that he is
entitled for reinstatement with full back wages.
19. The learned Labour Court framed the following issues for
consideration: -
(I) Was Mr. B.N. Srivastava, a workman at the relevant time?
(II) Whether the termination of the workman from the service
by the management is justified? If not, what relief he is
entitled to?
20. On behalf of the workman, the concerned workman was the
sole witness. He, interalia, exhibited appreciation letters dated
30.09.1992 (Exhibit-W), 09.04.1998 (Exhibit-W/1) and 31.12.1988
(Exhibit-W/2) and office order dated 29.04.2000 granting him special
increment (Exhibit-W/3) in the year of his termination. It was the case
of the workman that he was terminated without any reasonable cause
and without any termination compensation. The workman was cross
examined and during cross-examination, he stated that he had joined
the service of the company willfully without any pressure and he has
received final settlement and there were no term and condition in his
appointment letter.
21. On behalf of the management two witnesses were examined.
The management witnesses exhibited certain documents including
power of attorney (Exhibit-M/1), delegation of power (Exhibit-M/2),
employment card (Exhibit-M/3), separation letter dated 02.11.2000
(Exhibit-M/4), letter dated 09.11.2000 sending 3 month's salary as
payment on account of notice period (Exhibit-M/5), office order dated
10.11.2000 (Exhibit-M/6) and clearance certificate dated 15.11.2000
(Exhibit- M/7)
22. The learned Labour Court decided the aforesaid Point No. I in
favour of the workman and upon considering the materials on record,
held that the concerned workman was a workman at the relevant point
of time and was not working in supervisory capacity.
23. The argument of the petitioner is that at the relevant point of
time, the workman was working as supervisory capacity. This Court
finds that the said point has been decided under Point No. I vide
Paragraph-8 of the impugned award. The learned Labour Court
considered the materials on record and found that the workman was
not assigned any power of control or supervision and the management
has also not been able to show this fact. The finding of the learned
Presiding Officer, Labour Court, Jamshedpur regarding Point No. I in
Paragraph-8 is as under: -
"8. Going through the oral and documentary evidence, I find
undisputed facts that the concerned workman was employed in
the company as machinist and at the time of termination, his
designation was as an Engineer and the workman was
terminated by stating that his service was no more required in
the company.
The Case of the management is that at the relevant time,
the workmen was an Engineer and had control over the
workman and his duty was managerial/supervisory. Hence, the
concerned workman was not a workman within the meaning of
I.D. Act. In reply, workman has stated that his designation was
ornamental, but his work was to maintain machinery and also
to maintain the quality of the production. He was never given
any financial and disciplinary authority over the other
workmen. Considering the material available on the record, it
is clear that workman has been able to established that he was
not assigned any power of control or supervision, and the
Management has not been able to show these facts.
Under the circumstance, I find force in the submission of
the workman. The Hon'ble Apex court has held that an undue
importance need not be given for the designation of an
employee or the name assigned to the class to which he
belongs. What is needed to be asked is as to what are the
primary duties he performs? The designation of the workman is
not enough for the consideration for being a for the said
purpose, it is necessary to prove that there were some persons
working under him whose work is required to supervise; and
thus, it is needed to see the dominant work done by the
workman at the time of termination whether he was a
supervisor, and a person indisputably carries an supervisory
work if he has power of control or supervision in regard to
recruitment, promotion, etc. and the work involves exercise of
tact and independence, and thus, by the said standard, I am of
the opinion that Mr. B.N. Srivastava did not come within the
purview of the exclusionary clause of the definition of
workman. Hence, he was a workman at the relevant time."
24. In 1988 Supp SCC 82 (National Engineering Industries Ltd. -
vs- Shri Kishan Bhageria and Others), it has been held by the
Hon'ble Supreme Court that the question whether a person was
performing supervisory or managerial work was the question of fact to
be decided bearing in mind the correct principle. The principle is that
one must look into the main work and that must be found out from the
main duties. A supervisor is one who could bind the company to take
some kind of decision on behalf of the company. The paragraph
relevant for the purposes of this case is quoted as under:-
"7. In P. Maheshwari v. Delhi Administration, (1983) 3 S.C.R.
949 the question whether a person was performing supervisory
or managerial work was the question of fact to be decided
bearing in mind the correct principle. The principle therefore
is, one must look into the main work and that must be found out
from the main duties. A supervisor was one who could bind the
company to take some kind of decision on behalf of the
company. One who was reporting merely as to the affairs of the
company and making assessment for the purpose of reporting
was not a supervisor. See in this connection Black's Law
Dictionary, Special Deluxe, Fifth Edition. At page 1290,
"Supervisor" has been described, inter alia, as follows:
"In a broad sense, one having authority over others, to
superintend and direct. The term 'supervisor' means any
individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibility
to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing, the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment."
25. This Court finds that except the statement that the workman
was working in supervisory capacity and designation was that of an
engineer, no further evidence or material was placed on record from
the side of the management regarding the nature of work being
performed by the concerned workman, although it was specifically
asserted by the concerned workman that he was not working in
supervisory capacity. This Court is of the considered view that the
designation of the concerned workman as engineer and the grade
which was assigned to him by itself was not sufficient to prove that he
was working in supervisory capacity. This Court is of the considered
view that in absence of any positive evidence with regard to the nature
of work assigned to the concerned workman or to the persons having
the designation which was given to the concerned workman, the
petitioner-management failed to prove that the concerned workman
was working in supervisory capacity. The learned labour court has
considered the materials on record and has come to a definite finding
that the concerned workman was not working on supervisory capacity.
No material as such has been pointed out by the learned counsel for
the petitioner to demonstrate that such finding of the learned labour
court suffers from any perversity calling for any interference in writ
jurisdiction. The findings of the learned Labour Court with respect to
Point No. I is well reasoned and does not call for any interference.
26. It has been argued by the learned counsel for the petitioner that
the workman had accepted the terminal benefits without any objection
and the relationship of the concerned workman with the petitioner did
not exist at the time as employer and employee relationship and
therefore, the original respondent was not a workman within the
meaning of the Industrial Disputes Act. On the other hand, it is the
case of the respondents that the workman raised the Industrial Dispute
immediately and whatever amount was handed over to the workman
was received, but the termination was in complete violation of the
provisions of Section 25F of Industrial Disputes Act and was also
without any reasonable cause and consequently, the dispute was raised
within a short period of one month.
27. This Court finds that the Industrial Dispute was referred for
adjudication by the competent authority and the learned Labour Court,
Jamshedpur was under a legal obligation to answer the reference.
Considering the facts that the dispute with regard to termination was
raised immediately after the order of termination, it cannot be said that
the concerned workman was estopped from raising the dispute with
regard to legality and validity of his termination. This Court is of the
view that merely because the concerned workman was terminated, the
same does not mean that the learned labour court did not have the
jurisdiction to decide the legality and validity of the termination. The
dispute with regard to the termination having been raised immediately
upon termination, it cannot be said that the concerned workman had
accepted the termination. Accordingly, the payment received by the
concerned workman has no bearing in the facts and circumstances of
this case. Moreover, it was the specific case of the concerned
workman that the termination compensation in terms of Section 25F
was also not paid to him. Accordingly, the argument of the learned
counsel for the petitioner that the reference was not maintainable is
devoid of any merit and hence rejected.
28. With regard to Point No. II, the learned labour court considered
the materials on record and found that the management witnesses had
stated that concerned workman was terminated as his work was not
satisfactory, but no appointment letter was placed on record to bring
on record the terms and conditions of service. The learned labour
court also considered the appreciation letters given to the concerned
workman for his performance and the workman was also granted
special increment vide order dated 29.04.2000 and in the same year,
he was terminated by alleging that his performance was not
satisfactory. Considering the aforesaid facts the learned labour court
recorded that it could be safely said that the performance of the
workman was throughout satisfactory and the workman was
terminated from the service without any reasonable cause and after
having held so, the learned labour court has considered that the
petitioner paid only three months' notice to pay to the workman and
no termination compensation paid to the workman by the management
in terms of Section 25 F of Industrial Disputes Act, 1947. Thus, the
petitioner failed to satisfy the learned labour court that the termination
of the services of the workman was on account of unsatisfactory
performance and consequently, the learned labour court held that the
termination was without any reasonable cause.
29. The learned labour court ultimately held the termination
without compliance with the provisions of Section 25F of the Act and
rendered the termination void ab initio and inoperative and
consequentially held that the termination of the concerned workman
was not justified and further held that workman is entitled for
reinstatement in his service. This Court finds no illegality and
perversity in connection with the findings recorded by the learned
labour court with regards to Point No. II that the termination of the
services of the concerned workman was without any reasonable cause
and also in violation of Section 25F of the Industrial Disputes Act,
1947.
30. While considering the consequential relief, the learned labour
court recorded that the workman was 17 years of age on 24.12.1963
and he has reached the age of superannuation prior to the judgment
passed by the learned labour court and consequently, granted back
wages to the extent of 3/4th of his back wages and consequential
benefits from the date of his termination till the date of superannuation
alongwith the interest @7% per annum.
31. This Court finds that at any point of time, the concerned
workman did not even whisper that he had remained unemployed after
the order of termination in the month of November, 2000. However,
the learned labour court has awarded 3/4th of his back wages and
consequential benefits till the age of superannuation with interest @
7% per annum.
32. In the judgement reported in (2006) 1 SCC 479 (U.P. State
Brassware Corpn. Ltd. and Another -vs- Uday Narain Pandey), it
has been held that it is now well-settled by various decisions that
although earlier this Court insisted that it was for the employer to raise
the plea that the concerned workman was employed during his
termination period, but having regard to the provisions of Section
106 of the Indian Evidence Act or the provisions analogous thereto,
such a plea should be raised by the workman and a reference has been
made to the earlier judgement wherein it was held that the initial
burden is on the employee to plead that he remained unemployed and
then the employer can bring on record materials to rebut the claim.
Further in the judgement passed by the Hon'ble Supreme Court in the
case of (2013) 10 SCC 324 (Deepali Gundu Surwase -vs- Kranti
Junior Adhyapak Mahavidyalaya (D. Ed) and Others), the
proposition for grant of back wages have been culled out in paragraph
38 wherein it has been held that in cases of wrongful termination of
service, reinstatement with continuity of service and back wages is the
normal rule, but this rule is subject to the rider that while deciding the
issue of back wages, the adjudicating authority or the Court may take
into consideration the length of service of the employee/workman, the
nature of misconduct, if any, found proved against the employee /
workman, the financial condition of the employer and similar other
factors. It has also been held that ordinarily, an employee or workman
whose services are terminated and who is desirous of getting back
wages is required to either plead or at least make a statement before
the adjudicating authority or the Court of first instance that he/she was
not gainfully employed or was employed on lesser wages and if the
employer wants to avoid payment of full back wages, then it has to
plead and also lead cogent evidence to prove that the employee /
workman was gainfully employed and was getting wages equal to the
wages he/she was drawing prior to the termination of service. It has
also been held that the cases in which the competent Court or Tribunal
finds that the employer has acted in gross violation of the statutory
provisions and/or the principles of natural justice or is guilty of
victimizing the employee or workman, then the concerned Court or
Tribunal will be fully justified in directing payment of full back wages
and in such cases, the superior Courts should not exercise power
under Article 226 or 136 of the Constitution and interfere with the
award passed by the Labour Court, etc. merely because there is a
possibility of forming a different opinion on the entitlement of the
employee/workman to get full back wages or the employer's
obligation to pay the same and the Courts must always keep in view
that in the cases of wrongful / illegal termination of service, the
wrongdoer is the employer and sufferer is the employee/workman and
there is no justification to give premium to the employer of his
wrongdoings by relieving him of the burden to pay to the
employee/workman his dues in the form of full back wages.
33. On the basis of the aforesaid judgements, this Court is of the
considered view that the award of back wages cannot be interfered
only on the ground that the concerned workman did not plead that he
was not gainfully employed during the period of termination and it has
to be seen in the light of the facts and circumstances of each case.
34. This Court finds that the length of service put in by the
concerned workman is certainly an important factor while considering
the award of back wages. In the present case the fact remains that the
concerned workman had already put in more than 35 years of
unblemished service and he was terminated one fine day without any
reasonable cause and without giving him termination compensation
and such termination was held to be in violation of Section 25F of
Industrial Dispute Act, 1947. Further considering the finding that only
a few years of service was left to the workman for attaining the age of
superannuation and he was 17 years of age in the year 1963 and would
have attained the age of 60 years sometime in the year 2006, this
Court is of the considered view that grant of 3/4th back wages and
consequential relief from the date of termination till the date of
superannuation is just and adequate which does not call for any
interference under the limited jurisdiction under Article 226 of the
Constitution of India.
35. This writ petition is accordingly dismissed.
(Anubha Rawat Choudhary, J.)
Rakesh/-
