Md., M/S. Andhra Pradesh Gas Power ... vs Presiding Officer, Labour ...
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      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


            I.A.NO.1 OF 2020 IN W.P.NO.21822 OF 2017
                                  AND
                WRIT PETITION NO.21822 OF 2017


                         COMMON ORDER


      This Writ Petition has been filed by the petitioner Corporation

seeking a Writ of Certiorari calling for the records relating to and

connected with the award dt.06.04.2017 passed in I.D.No.56 of 2011 on

the file of the Labour Court-I, Hyderabad and to quash the same and

pass such other order or orders as this Hon'ble Court may deem fit and

proper in the circumstances of the case.


2.    Brief facts leading to the filing of this Writ Petition are that the

petitioner Corporation was formed as a joint venture company for

captive consumption of the power generated by it by its shareholders.

The power generated by the power generating units established by the

petitioner Corporation at Vijjeshwaram, Rajahmundry will be shared

among the shareholders in accordance with the Memorandum of

Understandings I and II. The power generated by the petitioner

Corporation is consumed by its shareholders at the rate of Rs.1.50 ps.
                                                   W.P.No.21822 of 2017

                                    2

per unit. The power shared by the shareholders from the petitioner

Corporation would be deducted from the total consumption and

thereafter, the balance power drawn from the Discoms would be charged

at the rate of Rs.4/- per unit by the respective Discoms. Therefore, the

role of the employee of the petitioner Corporation, who is coordinating

with the petitioner Corporation and the shareholders, with regard to the

consumption of the power generated by the Unit of the petitioner

Corporation and also from the Discoms is very important.


3.    The 2nd respondent individual, was initially appointed as a Typist

on temporary basis vide proceedings dt.28.02.1991 and was later

confirmed vide proceedings dt.29.08.1991. Apart from typing work, the

2nd respondent was also assisting the Company Secretary-cum-Finance

Manager in secretarial as well as administrative works. On 11.08.1994,

the 2nd respondent was promoted to the post of 'Accounts Supervisor'. It

is submitted that preparation of the monthly electricity consumption

bills of the shareholders is the most important and essential function in

the petitioner Corporation as it was the only source of income to the

petitioner Corporation. Therefore, if the billing is not properly done and

on time, it would suffer irretrievable loss. Since the 2nd respondent had W.P.No.21822 of 2017

gained sufficient exposure in this regard in the year 2000, the

preparation of the monthly electricity consumption bills of the

shareholders was entrusted to the 2nd respondent. Thus, the 2nd

respondent was carrying on multifarious and very crucial activities. It is

further submitted that the bills for the electricity consumed by the

shareholders are usually prepared around 23rd and 24th of every month.

4. It is submitted that in view of the crucial duties being performed

by him, the 2nd respondent would pester the management from time to

time for promotion and monetary benefits and used to threaten the

petitioner Corporation with taking leave. On 22.06.2009, the 2nd

respondent threatened to go on leave for 110 days with effect from

23.06.2009 to 10.10.2009 on the ground that his case was not considered

for promotion or for monetary benefits. Vide representation

dt.23.08.2010, the 2nd respondent made a demand for revision of his pay

scale and some other demands.

5. Further, on 16.04.2011, the 2nd respondent had submitted a leave

letter requesting the Corporation to grant one month earned leave from

16.04.2011 to 15.05.2011 to enable him to attend to his personal works.

In spite of his leave not being sanctioned, the 2nd respondent stopped W.P.No.21822 of 2017

coming to the petitioner Corporation office from 18.04.2011. On

19.04.2011, the petitioner Corporation intimated the 2nd respondent that

the leave was not granted and he was called upon to join the office

immediately. Another notice dt.20.04.2011 was also issued to the 2nd

respondent intimating that he is continuing on unauthorised leave and

was called upon to handover all the records for the purpose of

completing the power allocation committee agenda and also the billing

for the month of April, 2011. On 20.04.2011, the 2nd respondent

attended the office and thereafter applied for half day leave stating that

he is unable to attend to his duties and requested for granting medical

leave from 18.04.2011 to 26.04.2011. The said request was rejected on

21.04.2011. On the very same day, a notice was issued to the 2nd

respondent requesting him to join duty immediately and hand over the

records. He was also served with a show-cause notice dt.23.04.2011

seeking an explanation that since several important assignments which

are to be completed by the 2nd respondent were not completed, why

disciplinary action should not be taken by way of terminating his

services. The 2nd respondent submitted his written explanation admitting

that there were pending assignments on his table. He attributed the

unauthorised absence and pendency of work, to non-consideration of his W.P.No.21822 of 2017

long pending demand for promotion and revision of his pay scale and

also left the decision of his removal from service to the petitioner

Corporation. After considering the said explanation, vide orders

dt.28.04.2011, the 2nd respondent was terminated from his services.

6. Aggrieved by the same, the 2nd respondent filed I.D.No.56 of

2011 challenging the termination order dt.28.04.2011 and seeking

reinstatement into service with full back wages and continuity of service

with all attendant benefits. On 27.08.2013, the Tribunal allowed the

same by setting aside the termination order with a direction to reinstate

the 2nd respondent into service with continuity of service but without

any back wages. The petitioner Corporation filed W.P.No.36724 of

2013 challenging the award dt.27.08.2013 in I.D.No.56 of 2011.

Initially the High Court granted interim suspension of the award on

16.12.2013. The 2nd respondent also filed W.P.No.16759 of 2014

challenging the award and both the Writ Petitions were disposed of

respectively by setting aside the award dt.27.08.2013. Vide orders

dt.04.01.2017, the High Court remanded the matter to the Tribunal with

a direction to frame an issue to decide whether the 2nd respondent is a

workman under the Industrial Disputes Act and if he is held to be a W.P.No.21822 of 2017

workman, then whether the termination of the employee by the

employer is valid or not. Consequent to the remand by the High Court,

the Labour Court allowed I.D.No.56 of 2011 by orders dt.06.04.2017

and directed reinstatement of the 2nd respondent into service with back

wages, continuity of service and attendant benefits and it was also held

that the 2nd respondent is also entitled for all notional promotions, for

which he is entitled to as if he was in service for all these years.

Challenging the said award, the present Writ Petition is filed.

7. Vide orders dt.04.07.2017, this Court suspended the award subject

to payment of wages under Section 17-B of the Industrial Disputes Act,

1947. Against the same, W.A.No.993 of 2017 was filed and the said

Writ Appeal was dismissed, against which the petitioner Corporation

filed an SLP in the Hon'ble Supreme Court. The Hon'ble Supreme

Court directed the petitioner Corporation to deposit wages under Section

17-B of the Industrial Disputes Act before the concerned Court and

requested this Court to decide W.P.No.21822 of 2017 expeditiously

within a period of three months. The 2nd respondent filed an application

to modify the earlier order dt.18.08.2017 and vide orders dt.13.04.2018,

the same was disposed of by the Hon'ble Supreme Court. The 2nd W.P.No.21822 of 2017

respondent again approached the Hon'ble Supreme Court to modify the

above orders and the Hon'ble Supreme Court left it open to the 2nd

respondent to make an application for interim order including the release

of amount, if any, deposited under Section 17-B of the Industrial

Disputes Act in the event the petition is not disposed of at an early date.

Accordingly, the 2nd respondent filed I.A.No.1 of 2020 for release of

Section 17-B wages. Thus, the Writ Petition has come up for hearing

today to hear both I.A.No.1 of 2020 for release of wages deposited by

the petitioner Corporation under Section 17-B of the Industrial Disputes

Act and also for final hearing of the Writ Petition. This matter is

therefore heard finally for a decision on merits.

8. Learned counsel for the petitioner, M/s. Indus Law Firm, argued

the matter extensively with regard to the nature of the work of the

petitioner Corporation and also the nature of duties and responsibilities

of the 2nd respondent. Therefore, according to the learned counsel for the

petitioner Corporation, the 2nd respondent cannot be considered as a

workman under Section 2(s) of the Industrial Disputes Act and the

Labour Court ought not to have entertained the dispute under the

Industrial Disputes Act. As regards the setting aside of the impugned W.P.No.21822 of 2017

order, the learned counsel for the petitioner submitted that the petitioner

Corporation has issued a show-cause notice to the 2nd respondent and

after considering his explanation, (wherein the 2nd respondent admitted

the pendency of work and unauthorised absence and also agreed for

termination of services), the petitioner Corporation had terminated the

services of the 2nd respondent. He submitted that the Tribunal had set

aside the termination order on an erroneous finding that there was

violation of principles of natural justice. With regard to allowing of back

wages and other reliefs, the learned counsel for the petitioner submitted

that the 2nd respondent has not set out any facts in support of the same

that he was not gainfully employed elsewhere for the period after

termination and therefore the learned Judge has not given any basis for

awarding the same. In support of the above contentions, he placed

reliance upon various case law and copies of the said judgments are also

filed in the form of a paper book.

9. Sri B. Chandrasen Reddy, learned Senior Counsel representing

Sri Yogeshwar Raj Saxena, learned counsel for the 2nd respondent, also

filed counter affidavit and also written arguments. It is stated that the

fact that the 2nd respondent was allotted very crucial and multifarious W.P.No.21822 of 2017

duties only shows that he is not in any skilled or technical or manual or

supervisory cadre and that he was entrusted with various multifarious

activities as a worker and therefore he was a workman as defined under

Section 2(s) of the Industrial Disputes Act. He submitted that the nature

of activities carried on by the worker would determine the status of the

employee and not the designation. He also placed reliance upon various

case law in support of his contentions and also filed copies of the same

in the form of a paper book.

10. For proper appreciation of the legal position and the application

of the same to the case on hand, it is necessary to go into the definition

of 'workman' under the Industrial Disputes Act, 1947. For the sake of

ready reference, Section 2(s) of the Industrial Disputes Act, 1947 is

reproduced hereunder:

"2. In this Act, unless there is anything repugnant in the subject or context,-

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

(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 W.P.No.21822 of 2017

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 one thousand six hundred 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."

11. The Hon'ble Supreme Court in the case of S.K. Maini Vs.

M/s. Carona Sahu Company Limited and others1 has held that

it is not only the monetary benefits received by the workman

which determine the status of the workman but also the nature of

the work carried out by him. It was held that if the employee is

mainly doing supervisory work but incidentally or for a fraction of

(1994) 3 SCC 510 W.P.No.21822 of 2017

time also does some manual or clerical work, the employee should

be held to be doing supervisory works and conversely, if the main

work is of manual, clerical or of technical nature, the mere fact

that some supervisory or other work is also done by the employee

incidentally or only a small fraction of working time is devoted to

some supervisory works, the employee will come within the

purview of 'workman' as defined in Section 2(s) of the Industrial

Disputes Act.

12. In the case of Sonepat Cooperative Sugar Mills Ltd. Vs.

Ajit Singh2 also, while considering the meaning and purport of the

word 'workman' mentioned in Section 2(s) of the Industrial

Disputes Act, 1947, the Hon'ble Supreme Court has held that a

person who performs one or the other jobs mentioned in the

provisions of the Act only would come within the purview of the

definition of workman. It was held that the job of a clerk

ordinarily implies stereotype work without power of control or

dignity or initiative or creativeness and the question as to whether

the employee has been performing a clerical work or not is

(2005) 3 SCC 232 W.P.No.21822 of 2017

required to be determined upon arriving at a finding as regards the

dominant nature thereof. It was held that with a view to give effect

to the expression to do "any manual, unskilled, skilled, technical,

operational, clerical or supervisory work", the job of the employee

concerned must fall within one or the other category thereof and

therefore it would not be correct to contend that merely because

the employee had not been performing any managerial or

supervisory duties, ipso facto he would be a workman. It was held

that the issue was as to whether the employee answers the

description of a workman has to be determined on the basis of

conclusive evidence which would require full consideration of all

aspects of the matter.

13. In the case of C.Gupta Vs. Glaxo-Smithkline

Pharmaceuticals Ltd.3, the Hon'ble Supreme Court held that

whether a particular employee comes within the definition of

'workman' has to be decided factually. It was further held that

while deciding the status of a person, nature of work is relevant.

(2007) 7 SCC 171 W.P.No.21822 of 2017

14. In the case of Chinnabasappa Basappa Happali Vs. The

State of Mysore4 and other decisions relied upon by the learned

counsel for the petitioner, the test to determine the status of an

employee has been to examine the nature of the work carried on

by the employee.

15. Learned counsel for the 2nd respondent employee has also

filed a paper book along with case law and these decisions also lay

emphasis on the nature of the work carried out by the employee to

determine his status.

16. It is therefore necessary to go into the nature of the work

carried out by the 2nd respondent herein.

17. The Labour Court has set out the nature of the work carried

out by the employee at page 17 of its order. From the said data, it

is seen that the petitioner therein used to collect data as a Data

Operator, feed data as a Typist, distribute the data as a Courier and

maintain accounts as an Accountant and prepare agenda of the

meeting as a Personal Secretary of Board of Governors and

1971(1) SCC 1 W.P.No.21822 of 2017

prepare accounts as a Typist and act as a Coordinator between the

shareholders and the company. From all these duties, it is nowhere

seen that the employee is working in the capacity of a Supervisor

or a Manager. Even the management has not filed any documents

before this Court to show the nature of the work of the respondent

employee that he is carrying on managerial or supervisory

functions. It may be that the respondent employee is carrying on

duties of great importance to the organisation, but the importance

of the duties would by itself not determine or cannot be said to be

determining the nature of activities of the respondent employee. In

view of the same, this Court does not see any reason to interfere

with the award of the Labour Court, wherein it has held that

respondent No.2 is a workman under Section 2(s) of the Industrial

Disputes Act. In view thereof, the first issue decided in favour of

the employee is upheld.

18. As regards the issue of termination of services of the

employee without issuing any notice and that it is violation of the

principles of natural justice also, this Court finds that there is no

evidence placed before this Court by the petitioner that other than W.P.No.21822 of 2017

the notice issued to the employee to report for duty and also that

he would be terminated from service if he does not report for duty,

there is any other notice issued to the employee. The notice issued

on 23.04.2011 is a show-cause notice for removal from service for

indiscipline and the 2nd respondent had submitted his reply on

25.04.2011 pointing out his difficulties and also his grievance with

regard to non-consideration of his request for enhancement of his

pay. At the end of the said reply, the 2nd respondent had requested

the management to withdraw the show-cause notice dt.23.04.2011

and if the explanation is not found to be satisfactory to the

management and the management thought that the employee

deserves to be removed from service, the decision of the

management will be honoured. He also requested the management

to take decision on terminal benefits sympathetically keeping in

view his 20 years of service. As seen from the order dt.28.04.2011,

the management has considered only the last para of the 2nd

respondent's explanation agreeing to termination of services if the

written explanation of the 2nd respondent was not found

satisfactory. However, the Corporation has not discussed as to

why the explanation of the 2nd respondent was not acceptable. It is W.P.No.21822 of 2017

also evident from the conciliation application filed by the 2nd

respondent on 04.05.2011 that the 2nd respondent had not agreed

for termination willingly. It was conditional that if the explanation

of the 2nd respondent was not satisfactory, then only it was

agreeable to termination. It appears to be a decision taken in haste

to agree for termination of services. As the management has not

given any reasons for not accepting the explanation of the 2nd

respondent, the order of termination is clearly in violation of the

principles of natural justice. Though this Court does not agree with

the reasons given by the Labour Court for setting aside the

termination order, this Court upholds the finding that the employee

has to be reinstated into service as the punishment of termination

is highly excessive and the Corporation has not given any reasons

for not accepting the explanation of the 2nd respondent. However,

the 2nd respondent shall be eligible only for 50% of the back wages

and continuity of service and other attendant benefits for terminal

benefits only.

19. In view of the same, no further orders are necessary in

I.A.No.1 of 2020 and it is accordingly closed as infructuous.

W.P.No.21822 of 2017

20. In the result,--

(i) The Writ Petition filed by the Corporation is partly

allowed.

(ii) I.A.No.1 of 2020 is closed as infructuous.

21. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed. No order as to costs.

___________________________ JUSTICE P. MADHAVI DEVI Date: 06.06.2022 Svv