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J&K High Court · body

2005 DIGILAW 317 (JK)

Parvez S. Koul v. Presiding Officer

2005-11-19

NISAR AHMAD KAKRU

body2005
1. Lady Respondent 2-helper, a class IV employee of Tyndale Biscoe School Srinagar appointed on a valid order of appointment in the year 1988 was shown the door on the allegation of obnoxious behavior in the year 1998 after having served the school for a decade, resultantly, an industrial dispute, consequently, reference under Section 10 of the Industrial Disputes Act, 1947 (for short Act) by the State Government to the Industrial Tribunal/Labour Court, J&K, Srinagar. The proceedings culminated in an award dated 30.05.2002 setting aside the order of termination which is assailed on the grounds summarized hereunder: I. Tyndale Biscoe School does not fall within the definition of an Industry. II. Reference is incompetent because Respondent 2 has received three months salary in lieu of termination notice. III. Reference is not maintainable because Petitioners have invoked jurisdiction of the civil Court. IV. Payment of back wages is impermissible. 2. I would like to deal with all these issues in seriatim. The first being whether petitioner-School is an industry within the definition of Section 2(j) of the Act. In this behalf reliance is placed by learned counsel for the respondent 2 on the Constitution Bench of the apex Court in case Bangalore Water Supply versus A. Rajappa (AIR 1978 SC 548) which has amplified the scope of the definition `industry. He also relied on the judgment of the Supreme Court in A. Sundarambal Versus Government of Goa, Daman & Diu wherein claim was rejected on the ground that a teacher of a School does not fall within the definition of a workman. Admittedly not attracted in the case on hand because respondent 2 is a helper and not a member of the teaching staff. The judgment at the same time mandates that an education institution does fall within the ambit of an industry. That being the legal position, objection has been raised simply to be rejected and I do so accordingly. 3. As regards averment that amendment of Section 2(j) of the Act excludes an educational institution from the purview of an industry, the contention calls for reference to sub-section (2) of Section 1 which reads: "1. Short title and commencement. (1) xxxxx (2). 3. As regards averment that amendment of Section 2(j) of the Act excludes an educational institution from the purview of an industry, the contention calls for reference to sub-section (2) of Section 1 which reads: "1. Short title and commencement. (1) xxxxx (2). It shall come into force on such date as the Central Government may, by notification in the official gazette appoint." Its perusal reveals that the amendment has to come into force on a date to be appointed by the Central Government by a notification in the official gazette. In this behalf, learned counsel for the petitioner was pointedly asked to show the notification appointing the date of commencement of the Act but he has frankly conceded that date is not appointed. That being so, the amendment relied upon to exclude an educational institution is not attracted and the argument fails. In taking this view, I am fortified by a judgment of the apex Court in All India Radio Versus Santosh Kumar and another [1998 LAB.I.C. 969 (Supreme Court)]. Para 4 of the judgment is reproduced hereunder: "4. The solitary contention canvassed before us by the learned senior counsel for the appellants is to the effect that All India Radio and Doordarshan Kendra discharge sovereign functions of the State and they are not industries within the meaning of S.2(j) of the Act. Now, it has to be kept in view that as held by a Constitution Bench of this Court consisting of seven learned Judges in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa, reported in (1978) 2 SCC 213: (AIR 1978 SC 548), save and except the sovereign functions, all other activities of employers would be covered within the sweep of term `industry as defined under S.2 (j) of the Act. The functions which are carried on by All India Radio and Doordarshan cannot be said to be confined to sovereign functions as they carry on commercial activity for profit by getting commercial advertisements telecast or broadcast through their various kendras and stations by charging fees. Looking to the functions of Doordarshan and its set up, as seen from Annexure-I (annexed to SLP(C) No.7722-7722-A of 1993), being the extracts from Doordarshan Manual Vol. I, it cannot be said that the functions carried on by them are of purely sovereign nature. Looking to the functions of Doordarshan and its set up, as seen from Annexure-I (annexed to SLP(C) No.7722-7722-A of 1993), being the extracts from Doordarshan Manual Vol. I, it cannot be said that the functions carried on by them are of purely sovereign nature. Day in and day out advertisements are being telecast and even serials are being telecast on payment of appropriate charges and on which there cannot be any dispute. Same is the position with All India Radio. However, learned senior counsel for the appellant vehemently relied upon a decision of this Court ion the case of Bombay Telephone Canteen Employees Association,, Prabhadevi Telephone Exchange v. Union of India (1997) 6 SCC 723 : 1997 AIR SCW 2819). It is true that in that case a Bench of two learned Judges took the view that the Telephone Exchanges run by the Central Government were discharging sovereign functions and, therefore, the employees working in the canteen run by such Telephone/Exchanges cannot be said to be working in `industry as defined under S.2(j) of the Act. However, the said decision has been expressly overruled by a judgment of a three Judge Bench of this Court in the case of General Manager, Telecom vs. A, Srinivasa Rao (1997) 8 SCC 767 :(1998 AIR SCW 270). In that case Chief Justice Verma speaking for the three-Judge Bench in paragraph 7 of the Report has expressly overruled the said decision. In that decision other decision in Sub-Divisional Inspector of Post v. Theyyam Joseph (1996) 8 SCC 489: (1996 AIR SCW 1365) is also overruled. It has been held in the said decision that the ratio of the Constitution Bench Judgement in Bangalore Water Supply (supra) hold the field and the amendment to the definition of S.2 (j) as made in 1982 is not still brought in force and so long as the amending definition does not come into force the decision in Bangalore Water Supply (AIR 1978 SC 548) (supra) will hold the field. Consequently, it must be held that the appellant-All India Radio as well as Doordarshan are industries within the meaning of S.2 (j) of the Act and the said definition is operative being applicable at present and as existing on the Statute Book as on date." (emphasis supplied by me) 4. Consequently, it must be held that the appellant-All India Radio as well as Doordarshan are industries within the meaning of S.2 (j) of the Act and the said definition is operative being applicable at present and as existing on the Statute Book as on date." (emphasis supplied by me) 4. Next it was contended by learned counsel for the petitioner that salary of three months amounting to Rs.13, 624/- having been received by the respondent 2 in lieu of notice reference is incompetent. This contention need not detain the Court in view of the judicial decision of the apex Court in Nar Singh Pal Versus Union of India (AIR 2000 SC 1401). Para 13 of the judgment is extracted: "13. The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchment compensation was paid to him. They intended to say that once retrenchment compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment. Thus, we are constrained to observed, was wholly erroneous and was not the correct approach. The appellant was a causal labour who had attended the temporary status after having put in ten years of service. Like any other employee, he had to sustain himself, or may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meager amount of Rs.6,350/- was utilized by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained." The ratio of the judgment having answered against the employer, the argument fails. 5. Much controversy was raised on the basis of pendency of a civil Suit. To appreciate the contention reference to Section 10 of the Act becomes imperative and is extracted: "10. Such an order cannot be sustained." The ratio of the judgment having answered against the employer, the argument fails. 5. Much controversy was raised on the basis of pendency of a civil Suit. To appreciate the contention reference to Section 10 of the Act becomes imperative and is extracted: "10. Reference of dispute to Boards, Courts or Tribunals -- (1) [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time] by order in writing- (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication: .............................. .................. ..................... [(8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government.]" 6. The language of the section admits no ambiguity to the effect that power of reference of a dispute vests with the Government and when reference is made it becomes obligatory by dint of provision reproduced above upon the Tribunal to decide it on its merits, one way or the other and the Tribunal has no third option. Thus pendency of parallel proceedings is of no implication qua the reference but the suit has to go if it questions retrenchment only. I will be failing in my duties, if it is not placed on record that learned counsel for the respondent 2 submitted that he is under instructions to pursue the suit for purposes of damages because of character assassination to which respondent 2 has been subjected to as urged. I will be failing in my duties, if it is not placed on record that learned counsel for the respondent 2 submitted that he is under instructions to pursue the suit for purposes of damages because of character assassination to which respondent 2 has been subjected to as urged. In view of the submission so made, it will be entirely for the civil Court to find out whether suit can lie but suit against retrenchment is certainly not maintainable when a reference is made under the Act. 7. This brings me to the contention that grant of back wages is impermissible. To bring home the point, reliance is placed on NTC (WBAB&O) LTD. AND ANR V. ANJAN K. SAHA reported in (2004) 7 SCC 581. To appreciate the contention it has to be borne in mind that there cant be two opinions that subject to similarity of facts ratio of the judgment of the Supreme Court is binding on this Court but is there any similarity of facts needs to be examined in the light of facts involved in the judgment supra. It is a case where reinstatement with full back wages on the strength of clause 14(4)(c) of Model Standing Orders requiring the employer to grant opportunity of hearing against proposed penalty besides procedural infirmity of non supply of enquiry report was the subject matter of the appeal and the Court ruled against, whereas the case on hand essentially centers around the scope of Section 17B of the Act, obviously, facts are totally dissimilar and the judgment has no application whatsoever. To understand the scope of provision aforementioned it is advantageous to extract Section 17B of the Act: "[17B. To understand the scope of provision aforementioned it is advantageous to extract Section 17B of the Act: "[17B. Payment of full wages to workman pending proceedings in higher courts-Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court of the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rules if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.]" 8. It is discernable from above said statutory provision that when the Labour Court/Tribunal/National Tribunal directs reinstatement of any workman and the award is questioned before the High Court or the Supreme Court, the employer is liable to pay full wages last drawn by the employee inclusive of all other benefits admissible under rules and deviation is only permissible in case the employer establishes that the workman was in employment during such period. It goes without saying that if an employer fails to prove to the satisfaction of the Court that the workman had been employed for an adequate remuneration during the pendency of the writ petition, there is no escape for him but to pay the back wages. There is an additional circumstance favouring the respondent 2, traceable to the fact that during the pendency of the writ petition the respondent 2 has been working in the Petitioner- School itself which rules out probability of her employment anywhere else. Viewed thus, the Tribunal cannot be said to have erred in granting back wages to the respondent 2. 9. Now a word about a feeble mention that Petitioner-School should be allowed to hold the inquiry against the respondent 2 afresh. Viewed thus, the Tribunal cannot be said to have erred in granting back wages to the respondent 2. 9. Now a word about a feeble mention that Petitioner-School should be allowed to hold the inquiry against the respondent 2 afresh. To appreciate the contention it has to be borne in mind that the termination of respondent 2 was mainly sought to be justified by the petitioner on the allegation of her extremely obnoxious behavior, resultantly, a finding of fact by the Tribunal had become imperative, accordingly returned and reads: "...Therefore, we find that even from the statements of the witnesses of the respondents it is not made out that the petitioner was possessing the bad character or she had misbehaved any one as is alleged by the respondents. As against to it the witnesses of the petitioner who include the employees of the respondent school supported the claim of the petitioner that she had been dismissed for no reasons..." It transpires from the aforementioned reproduction that before the Tribunal the petitioner has adduced all the evidence available with him to indict the respondent No.2 character wise but of no avail, conversely, the evidence establishes her to be a person of good character and significantly there is not even an iota in the petition to dispute the veracity of the witnesses, resultantly, she has gone unscathed even on the strength of evidence produced by the petitioner himself. Thus in view of factual finding returned by the Tribunal in respect of character of Respondent-Lady no purpose will be served by initiating an inquiry afresh and the ugly character needs to be closed for good. 10. In the aforementioned backdrop, writ petition fails. It is dismissed along with CMPs without any order as to costs.