Vikrant Kumar Biswal vs Presiding Officer
2023 Latest Caselaw 1267 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                                WP(C) No.4411 of 2022

      Vikrant Kumar Biswal                            ....                      Petitioner

                                           -versus-
      Presiding Officer, Labour Court,                ....              Opposite Parties
      BBSR


      Advocates appeared in this case :

      For Petitioner :              In Person
                                    Mr. Aditya Mishra, Advocate
                                    (Amicus Curiae)
      For Opposite Parties : Mr. S.K. Ruplal, Advocate
                             Mr. R. Panigrahi, Advocate
                             Mr. B. K. Sethy, Advocate
                             Mr.Ravish Kumar, Advocate
                             Mr. M. Kumar, Advocate
                             Mr. Sourav Tibrewal, Advocate
                             Mr. A. Khandelwal, Advocate
      CORAM:
      JUSTICE ARINDAM SINHA
      JUSTICE SANJAY KUMAR MISHRA

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                      Date of hearing and Judgment 07.02.2023
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ARINDAM SINHA, J.

1. The writ petition was directed to be listed for hearing today marked at

10:30 A.M.. It has been so listed and called on. Petitioner appears in person.

Mr. Mishra, learned advocate and Amicus Curiae also appears. Mr. Kumar,

learned advocate appears on behalf of opposite party no.3. Mr. Ruplal,

learned advocate appears and files Vakaltnama. He submits he has been

engaged by opposite party no.2. He prays for four weeks' time for his client

to use counter. Opposite party no.4 goes un-represented.

2. Perused the order-sheet. It appears, Mr. Ruplal was engaged to appear

on behalf of opposite party no.5. He has now been empowered by opposite

party no.2 as well. Opposite party no.5 is Regional Manager, Customer Care

of Tata Motors Limited and opposite party no.2, Tata Motors itself. Both

Vakalatnamas were executed, in respect of opposite party nos.5 and 2, by

same person of Tata Motors, based in Kolkata. Furthermore, we on 20th

December, 2022 had satisfied ourselves that apart from opposite party no.3

all else had been served. We directed service on opposite party no.3. On it

being made, Mr. Kumar had represented said opposite party, said by

petitioner to be his employer, on 11th January, 2023. Tata Motors by itself or

through opposite party no.5 did not appear before the Labour Court. It is clear

that opposite party nos.2 and 5 were waiting in the wings and have now

appeared with prayer for adjournment of four weeks. The prayer is rejected.

All the more because Mr. Kumar has travelled to do this case physically and

this was surely known by opposite party nos.2 and 5.

3. On query from Court, Amicus Curiae submits, the industrial dispute

went before the Labour Court on invoking provision in section 2-A(2) in

Industrial Disputes Act, 1947. In the circumstances, we do not have benefit of

failure report on conciliation under section 12(4).

4. Perused impugned award. Three issues were framed. Of them answer

to issue no.2 decided the case in the Labour Court. Said issue is reproduced

below.

"2. Whether the second party is coming under the definition of workman as defined U/s. 2(s) of ID Act?"

Finding of the Labour Court is that on going through documents produced by

petitioner (workman) it appeared he did not make any attempt to prove his

nature of duty so as to enable the Court to find it out and ascertained whether

it comes within definition of manual, clerical or operational nature of job.

Said Court found initial burden of proof was on the workman to show that he

had been employed to do manual, clerical and operational nature of job. The

Court found revelation from evidence of petitioner that he had not adduced

any evidence whatsoever in support of his contention that his nature of job

comes within definition of workman.

5. On perusal of the claim statement we find petitioner had described

himself as second party/workman. On query from Court petitioner relies on

paragraphs 3 and 5 of his claim petition to submit, fact of him being

workman was duly put forward. We have confirmed from Amicus Curiae that

those two paragraphs are relevant for purpose of determining pleadings on

the fact and issue no.2 was framed on basis of paragraph 5.

6. Amicus Curiae points out, there was exhibit-17 before the Labour

Court. He takes us through the exhibit to show, it was a training programme

that was to be adhered to by petitioner on the schedule to be determined by

others. He submits, appreciation of the document may lead to inference that

petitioner was employed to visit several dealerships and workshops in Odisha

and also sent to Jharkhand, for collecting information, to be shared with

higher ups. This would make him be doing a job under supervision, being

work of clerical nature. He submits, that would make him a workman within

the meaning of section 2 (s) doing skilled, technical, operational and clerical

nature of work.

7. Mr. Kumar submits, it was clear by petitioner's terms of appointment

that his job functions were responsibilities of managerial/training. With

reference to exhibit-17 he points out that the several days training programme

included imparting training for soft skills and customer relation management.

There were also subjects of safety on parameter compliances, security as well

as interaction with works managers, amongst others. He submits, this does

not constitute any function that will attract meaning of workman in clause (s)

under section 2. He supports impugned award in saying there was no

evidence adduced by petitioner before the Labour Court for his client to

dispute or test. In the circumstances, there should not be interference.

8. Mr. Ruplal renews his prayer for adjournment.

9. We reproduce below paragraph 3 and relied upon passage in paragraph

5 of the claim statement.

"03. That, the Second Party/Workman was entrusted by the First Parties No.1 to 3 having job responsibility to take care of Training programs for TATA Motors across the Odisha as per format given by TATA Motors HQ based in Mumbai. The First Parties No.5 to 7 are direct employees of TATA Motors Ltd. and directly coordinating with the First Party No.4 including the First Parties No.1 to 3. Accordingly as per instruction of First Party No.4 Company, the Second Party /Workman was taking direct instructions from the First Parties No.5 to 7 for rendering his best service as per his ability.

05. xxx xxx xxx It is pertinent to mention here that the Second Party performed his assigned duties diligently to the best

of his ability under the direct control and supervision of First Parties/Management. For all practical purposes, the disputant is a "workman" within the meaning under section-2(s) of the Industrial Dispute Act. 1947 and the First Parties No.1 to 4 are the employer and First Parties No.-5 to 7 are the client of the First Parties No.1 to 4 for whom the Second Party was working under the their direct control and supervision. As such the Management is coming within the Definition of "Industry" as per the provision of Industrial Dispute Act. 1947 read with the provisions of Contract Labour Act."

(emphasis supplied)

10. We then looked at the written statement filed by opposite party no.3

(employer). There is some denial therein of allegations made in the claim

petition. There are assertions also. We extract a passage from sub-paragraph

(1) under paragraph 6 and reproduce it below.

"6(1) xxx xxx xxx Its settled principle of law that the work of Trainer/Teacher/Master are not manual work, skilled or unskilled, nor is it clerical, or technical or supervisory and thus, employee engaged as a Trainer/Teacher/Master are not a 'workmen' under the Industrial Disputes Act 1947 and thus, under the such circumstances the petitioner cannot be treated as

a workman within the meaning of section 2(s) of the Industrial Disputes Act (supra)."

(emphasis supplied)

Sub-rule (4) under rule 10-B in Odisha Industrial Disputes Rules, 1959 says,

the party raising a dispute may submit a rejoinder. We find petitioner had

filed a rejoinder. Contents of it are reproduced below.

"01. That, I am the workman in the case.

02. That, the first party management did not paid any heed towards hon'ble Court and was constantly absent since beginning of the case.

03. That, as the acceptance of WS will further delay the process of justice, hence I request the hon'ble Court to decline the WS filled by first party no.1-4."

There is no denial to said assertions made by the employer in its written statement.

11. We have carefully looked at exhibit-17. We find it purports to make

Drona, mentioned therein, to be a trainer. A person, who will impart training

cannot be said to be a workman within meaning of clause (s) in section 2.

Petitioner, employed as a trainer in the automobile business would be

required to train persons doing, inter alia, manual, unskilled, skilled, technical

and operational jobs. We find from the evidence, management witness

(MW1), in paragraph 21 of his evidence on affidavit, said as much.

12. On analysis of above relevant reproduced pleadings of petitioner in the

claim petition we find there is omission to state nature of work, to be basis of

his allegation that he is a workman. On such omission there was no

requirement of denial nor cross-examination of the workman, at trial. It

cannot be gainsaid that a person holding a managerial post will also have

superiors above him, to give him instructions and be in supervision regarding

discharge of his functions. We have not been able to find perversity in

impugned award.

13. We appreciate assistance rendered by learned Amicus Curiae in

situation of he himself having no assistance.

14. The writ petition is dismissed. It will not prevent petitioner from

finding remedy if he seeks damages for wrongful dismissal.

S. K. MISHRA, J.

15. The Supreme Court in A. Sundarambal v. Govt. of Goa, Daman and

Diu, reported in (1988) 4 SCC 42 posed the short question as to whether a

teacher employed in the school falls within definition of the expression

'workman' as defined under section 2 (s) of the Industrial Disputes Act,

1947. The question was answered in the negative. The Supreme Court agreed

with reasons given by the High Court for taking the view that teachers cannot

be treated as a 'workman' as defined under the Act. A passage from

paragraph 10 in the judgment is extracted and reproduced below.

"10. xxx xxx xxx. We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as 'workmen' within the meaning of section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching."

Above law declared appears to have been argued for the principle of it, by the

employer in its written statement in paragraph 6(1), reproduced above.

( Arindam Sinha ) Judge

( S. K. Mishra ) Judge

Prasant Sahoo