Hrusikesh Swain vs Unknown
2021 Latest Caselaw 12457 Ori

                 ORISSA HIGH COURT : C U T T A C K

                           WP(C) NO.1087 OF 2012
                                   With
                           W.P.(C) NO.10861 OF 2011

    In the matter of applications under Articles 226 & 227 of the Constitution of India

In WP(C) NO.1087 OF 2012

       Hrusikesh Swain                                              : Petitioner

                                       -Versus-

       The Presiding Officer,
       Industrial Tribunal, Bhubaneswar & anr.                      : Opp.Parties

For Petitioner                         :        M/s.A.Mishra, D.K.Pani & A.K.Roy

For O.P.2                              :        M/s.S.S.Das, Sr.Adv., S.Modi,
                                                P.A.Ghosh & S.S.Pradhan

In WP(C) NO.10861 OF 2011

       M/s.Hawkins Cooker Ltd.                                      : Petitioner

                                       -Versus-

       The Presiding Officer,
       Industrial Tribunal, Bhubaneswar & anr.                      : Opp.Parties


For Petitioner                         :        M/s.S.S.Das, Sr.Adv., S.Modi,
                                                P.A.Ghosh & S.S.Pradhan

For O.P.2                              :        M/s.A.Mishra, D.K.Pani & A.K.Roy

                         CORAM :
                         JUSTICE C.R.DASH
                         JUSTICE BISWANATH RATH

          Date of hearing : 16.11.2021 & Date of Judgment : 04.12.2021



                                                                             Page 1 of 14
                                       // 2 //




1.

Writ Petition bearing W.P.(C) No.1087/2012 is at the instance

of the Workman, whereas W.P.(C) No.10861/2011 is at the instance of

the Management involving a challenge to the award passed in I.D. Case

No.292 of 2008 (previously registered as I.D. Case No.50 of 2002) by the

Presiding Officer, Industrial Tribunal, Bhubaneswar being aggrieved by

both the Workman as well as Management respectively.

2. For involvement of common fact and common judgment

involving I.D. Case No.292 of 2008, keeping in view the nature of

challenge by both the Workman and the Management, as both the matters

can be decided in one hearing and with consent of learned counsel for the

Parties, this Court takes up both the Writ Petitions together in one hearing

and disposes of both with this common judgment.

3. Undisputed facts leading to W.P.(C) No.1087/2012 are that the

Petitioner, Hrusikesh Swain (Workman) involved herein claimed to have

been appointed as an Demonstration Representative by virtue of an

engagement order dated 6.2.1997 of M/s.Hawkins Cooker Ltd. with a set

of conditions appearing therein. Further case of the Workman is that

while working under the Management till 30.9.1998, all of a sudden the

Workman was not permitted to discharge his duty with effect from

1.10.1998. It is alleged that the Workman was discharged from service by

verbal order of the Management neither giving him opportunity to know

the reasons of his disengagement nor following the provision of the

// 3 //

Industrial Disputes Act, 1947 (in short, "the I.D.Act") in the matter of

retrenchment or termination. The Workman further alleged that when he

raised a dispute before the Local Labour Agency, the Management

disputed the claim of the Workman on the premises that the Petitioner

was not a Workman under the provision of the I.D.Act. It is claimed, the

conciliation proceeding ended in failure, the Labour Authority

accordingly made an order of reference on 4th April, 2002 referring the

following for adjudication of the dispute by the Competent Authority.

"(I) Whether the termination of services of Sri Hrusikesh Swain, by way of refusal of employment by the Management of M/s.Hawkins Coopers Ltd., with effect from 1st October, 1998 is legal and/or justified ?

(II) If not, what relief Sri Swain is entitled to ?"

It further reveals, for the nature of establishment of the Management even

though a reference was made to the Labour Court, Bhubaneswar, initially,

subsequently the reference was transferred to the Industrial Tribunal,

Bhubaneswar for its adjudication in exercise of power under the

provisions of the I.D.Act.

4. On being noticed, the Management appearing in the Proceeding

as First Party filed written statement submitting that even though the

Workman was engaged as a Demonstration Representative for the State

of Odisha but it denied that there was discharge of the Workman from

service. While admitting that for the nature of engagement involving the

// 4 //

Workman requiring to satisfy the Consumers on the products of the

Company in a purpose of boosting their sale, in exchange of which he

was to get commission based on sale of products, the Management

claimed, in the circumstance and for the nature of engagement, there was

no Master-Servant relationship and the other Party was not a Workman

under the definition of Section 2(s) of the Act.

5. Based on the Claimant's statement and the written statements

of the Workman and the Management, the Tribunal chose to frame the

Issues quoted herein above. To substantiate their case, the Workman

examined himself as W.W.No.1, on the other hand the Management in its

attempt to satisfy its case examined two witnesses as M.W.Nos.1 & 2

appearing to be one of the Staff and a Senior General Manager of the

First Party.

6. Considering the rival contentions of the Parties and the

materials available on record; oral and documentary, the Tribunal

answering Issue No.I came to hold that there has been illegal refusal of

employment by the Management after coming to hold that Hrusikesh

Swain was a Workman in terms of the provision at Section 2(s) of the

I.D. Act. It appears, the Tribunal deciding both the aforesaid Issues has

relied on several decisions including the decision of the Hon'ble apex

Court and came to hold that there has been illegal termination of the

Workman but however keeping in view the nature of engagement and

// 5 //

further taking into account that the Workman was not a regular employee

of the First Party, relying on the decision of the Hon'ble apex Court in

Ashok Kumar Sharma vrs. Oberoi Flight Services : AIR 2010 SC 502,

the Tribunal considered it to be just and proper to compensate the

Workman in lieu of reinstatement and back wages. The Tribunal appears

to have taken the time spent in the litigation process by the Workman into

consideration and directed the Management to pay compensation of

Rs.1.00 lakh to the Second Party in lieu of reinstatement.

7. The Writ Petition bearing W.P.(C) No.10861/2011 came to be

filed by the Management involving the aforesaid award. In filing the Writ

Petition the Management in its challenge to the award contested the same

on the ground that the reference was made without any material for its

satisfaction, as to whether there existed any industrial dispute ? The

Management thus claimed that the reference was illegal and uncalled for.

It is in this view of the matter, the Management claimed that rendering an

award involving such defective reference also becomes illegal on the

premises of contractual job involving the Second Party. The Management

also raised a question as to whether Hrusikesh Swain can be considered

as a Workman under the ambit of Section 2(s) of the I.D. Act ? The

Management also took an alternative plea that the Second Party having

miserably failed to plead that he had rendered 240 days continuous

service during the period of twelve calendar months preceding such

// 6 //

assumed termination as mandatorily required under Section 2(b) of the

I.D.Act. It is in the premises that the Workman had not completed 240

days continuous service in a calendar year, the Management claimed, the

finding of the Tribunal that the Workman has completed continuous

service of 240 days in a year becomes erroneous. The Management also

challenged the award on the premises that the Tribunal had committed

error of law in coming to hold that the Management has not taken any

specific plea regarding continuous service by the Workman and the

finding of the Tribunal on this score becomes presumptive. The

Management also challenged the finding of the Tribunal involving the

award in shifting the proof of continuous or no continuous service by the

Workman on the Management. Further taking this Court to the evidence,

the Management also took an alternate stand that in no case, it can be

construed that the matter involved a termination by the Management.

Management, on the other hand, claimed that the Workman abandoned

the job. The Management also alleged that the finding of the Tribunal

remains contrary to the evidence on record. The Management also

challenged the finding of the Tribunal on application of Section 25(F) of

the I.D.Act aspect. Finally the Management challenged the award of grant

of lakh of rupees as compensation remains contrary to the materials

available on record. It is in view of the above grounds, the Management

// 7 //

by filing the Writ Petition prayed this Court for interfering with the award

dated 30.10.2010 passed in I.D. Case No.292 of 2008.

8. The Workman in filing W.P.(C) No.1087/2012 contended that

once the Tribunal has come to hold that the Claimant was a Workman

under the provision of the I.D. Act and that there has been illegal

termination /disengagement of the Workman, the Tribunal had the only

alternative to restore the position of the Workman and it had no scope to

answer the reference by awarding a sum of Rs.1.00 lakh, as compensation

in lieu of reinstatement. The Workman in his Writ Petition also contended

that in the worse, following the decision of the Hon'ble apex Court in

Ashok Kumar Sharma (supra) at least a minimum compensation of

Rs.2.00 lakh should have been awarded. It is in the above premises, in his

Writ Petition the Workman prayed this Court for interfering with the

award so far it relates to the direction portion and the award be modified

to the extent awarding higher lump-sum compensation along with the

benefit of back wages.

9. Heard the submissions of the respective Counsel. Learned

counsel for the Management taking this Court to the stand of the

Management in the written statement as well as evidence on their part

recorded by the Tribunal attempted to harp on the ground taken note

herein above in its challenge to the award involved herein. Similarly,

learned counsel for the Workman also justified their final pleading

// 8 //

through the grounds taken in the Writ Petition and taken note herein

above.

10. Hearing the rival contentions of the Parties and on perusal of

the grounds taken by the Management, particularly, this Court from the

pleadings in the written statement and the grounds in the Writ Petition

reading together with the evidence, finds, the Management runs parallel

pleadings to establish its case. In the process, it is observed, the

Management while claiming that there was no Master-Servant

relationship, keeping in view the nature of job also took the stand that the

Workman since did not complete 240 days in a Calendar year, he is not a

Workman in terms of the provision of Section 2(s) of the I.D.Act. From

the statement of the Claimant, this Court finds, the Workman has a clear

claim to have been engaged by the Management since 2.6.1997 and there

is unilateral stoppage of work by way of prohibition on 1.10.1998. To this

claim of the Workman since the stage of conciliation contended for the

nature of job entrusted to Hrusikesh Swain, the Workman, it was

contractual and in its written statement in the Industrial adjudication

process before the Labour Court also considered by the Tribunal on

transfer of the same to the Industrial Tribunal. The Management while

attempting to demonstrate the nature of work of the Workman attempted

to non-suit Mr.Swain on the premises that Hrusikesh Swain is not a

Workman in terms of the provision of the I.D. Act. There is, however,

// 9 //

absolutely no pleading with regard to whether the Workman had

completed 240 days or not. In the above background of the pleadings,

taking into account the evidence of both the Parties and keeping in view

the Issues framed by the Tribunal, it is observed, the Tribunal has

categorically come to hold that the Management failed to refute the claim

of the Workman to have completed 240 days in a year. Further for the

pleading and the materials available, the Tribunal has also come to hold

that looking to the nature of job and remuneration received by the

Workman in discharge of his duty can be considered as a Workman under

the provision of the I.D.Act. This finding of the Tribunal is supported by

the materials available on record, the pleadings and the evidence taken

support by the respective Parties. The Tribunal appears to be justified in

such finding. Besides, it also appears, the Tribunal taking such decision

has also taken note of several decisions, particularly on the question of

one becoming workman, such as B.S.Kurup vrs. Bicycle Corporation of

India Ltd. : 1995 LLR 906 and Burmah-Shell Oil Storage and

Distributing Co. of India Ltd. Vrs. Burmah-Shell Management Staff

Association : AIR 1971 (SC) 922.

11. In the above background of the case, now taking into account

the challenge of the Management on the aspect, if Sri Swain was a

Workman, this Court finds, the claim of the Workman rather gets support

// 10 //

from the definition of Section 2(s) of the I.D.Act, which is placed

herewith as follows :-

"Section 2(s)- "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison, or

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who, being employed in a supervisory capacity, draws wages exceeding (ten thousand rupees) per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature)."

Now looking to the controversy raised by the Management on the above

aspect, this Court here also takes into account the law of the land through

different counts as follows :-

I. Any person including an apprentice employed in an Industry to

do any manual, unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward is a Workman, as held in the case of

Hutchiah vrs. Karnataka State Road Transport Corporation reported in

(1983) I L.L.J. 30.

// 11 //

II. Even a temporary or casual employee fall within definition of

'Workman', as held in The Chief Engineer (Irrigation), Chepauk,

Madras vrs. N.Natesan : (1973) II L.L.J. 446. This is also the view in the

case of Elumalai vrs. Management of Simplex Concrete Piles (India)

Ltd. reported in (1970) II L.L.J. 454

III. In Saraspur Mills. Co. Ltd. vrs. Ramanlal Chimanlal reported

in (1973) II L.L.J. 130, Hon'ble Supreme Court held - workers in Canteen

run by Cooperative Society was under an obligation to maintain and run

the Canteen for its employees.

This Court here looking to the job assigned to the Workman finds,

his work was even incidental to the main job of the Industry. This Court

here takes support of the observation of the Hon'ble Supreme Court in the

case of J.K.Cotton Spinning and Weaving Mills Co. Ltd. vrs. Labour

Appellate Tribunal of India & ors. reported in (1963) II L.L.J. 436. In

this case, Hon'ble Supreme Court in case of a Mali, observed, his

engagement with Officers residing in Bungalow was incidental to main

work of the Industry.

For the factual position narrated herein above with support of law

discussed herein above, there is no doubt that Mr.Swain is a Workman

under the provisions of the I.D.Act.

// 12 //

12. Coming to challenge of the Management on the score that

Employee involved here was only paid commission cannot be brought

under definition of 'Workman', this Court finds, in order to bring a

person within the ambit of definition, the work for which he is employed

should be for hire or reward. The work must be for wages or other

remuneration. Legislatures purportedly used words 'hire or reward' rather

than the word 'wages' definitely with a view to enlarging the scope of

definition. Word 'Hire' necessarily imports an obligation to pay. In the

case at hand, there is admission by Employer that it used to pay

commission on utilization of service of the Workman involved. It is only

a form of pay and cannot escape the satisfaction of definition Section

2(s). There is also no doubt that the work done by the Workman is

incidental to the activities of the Establishment involved. This Court here

takes support of two decisions : firstly in the case of Dharangadhra

Chemical Works Ltd. vrs. State of Saurashtra & ors. : (1957) I L.L.J.

477 (SC) (a Constitutional Bench decision). Secondly, in the case of

Charity Aids Bus Services vrs. Narayanswami Raji : (1957) II L.L.J. 29

also (1962) II L.L.J. 356 (SC).

Similarly, in the case of Chintaman Rao & anr. vrs. State of

Madhya Pradesh : (1958) II LLJ 252, Hon'ble Supreme Court held - the

identifying mark of a Servant is that he should be under the control and

// 13 //

supervision of the Employer in respect of the details of work. Here in the

case at hand, the workman satisfies this condition also.

13. For the discussions, pleadings, the materials available on record

and the citations of the Parties, this Court finds, the finding of the

Tribunal is justified requiring no interference and the finding of the

Tribunal on the aspect of the Workman involved herein remains

unassailable.

14. So far as Issue No.II, granting of relief, considering the rival

contentions of the Parties, particularly keeping in view the claim of the

Workman, this Court observes, once the Tribunal came to observe that

the Claimant was a Workman and that there has been illegal

disengagement of the Workman involved, even after relying on the

decision of the Hon'ble Supreme Court in Ashok Kumar Sharma (supra),

this Court looking to the period lost in the process of adjudication

involving the disengagement in the year 1998 and the award being passed

in the year 2010, the Tribunal should have thought for granting higher

compensation in the event the reinstatement with back wages was

declined. Looking to the further loss of time in the meantime, this Court

here also finds, both the Writ Petitions were filed in 2012 & 2011

respectively and the matter is taken up for final hearing in 2021 and in the

meantime, there is loss of another decade.

// 14 //

15. Keeping in view the above and the observation of this Court

that the Workman would have been entitled to more compensation in the

event of denial of his reinstatement, this Court interfering with the

impugned order so far it relates to the grant of compensation of

Rs.1,00,000/- (rupees one lakh) to the Second Party-Workman awarded

by the Tribunal enhances the same at least to Rs.2,00,000/- (rupees two

lakh) and directs that the modified awarded compensation shall be

released by the Management in favour of the Workman involved herein

within a period of two months from the date of this judgment.

16. This Court while deciding to entertain W.P.(C) No.10861/2011

and dismissing the same and entertaining W.P.(C) No.1087/2012 in

partial modification of the Award involved herein raises the

compensation involving the Workman to Rs.2,00,000/- (rupees two lakh).

However, there is no order as to cost.

...............................

                                                 (Biswanath Rath, J.)


C.R.Dash, J.       I agree.

                                                     ..............................
                                                      (C.R.Dash, J.)




Orissa High Court, Cuttack.

The 4th December, 2021/M.K.Rout, A.R.-cum-Sr.Secy.