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2014 DIGILAW 1051 (PAT)

Food Corporation Of India v. Union Of India

2014-10-09

HEMANT KUMAR SRIVASTAVA

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ORDER : Hemant Kumar Srivastava, J. This writ petition has been filed by the Food Corporation of India for quashing the order dated 20.07.2004 passed by learned Presiding officer, Industrial Tribunal, Patna in Reference case No. 4C/2000 by which and whereunder order of punishment in departmental proceeding against the original respondent No. 3 was set aside and concerned employee, original respondent No. 3, was exonerated from the charges and furthermore, employer, Food Corporation of India, was directed to refund entire amount which had been recovered from the pay of the original respondent No. 3 on the basis of punishment in the departmental proceeding. The original respondent No. 3, namely, Ram Brat Paswan was an assistant grade I under the Food Corporation of India and between 1984 to 1990, he was holding charge of Silobin of the Depot at Gaya. An inspection team conducted inspection of stock of Silobin and found several illegalities/irregularities. The inspecting team found that original respondent No. 3 by misusing his official position caused loss of wheat stock and also committed act of misconduct as a result thereof, he downgraded stock from B category to below D category. Accordingly, two charge sheets were issued against him and enquiry was conducted. The Enquiring officer after conclusion of the enquiry submitted his enquiry report and thereafter, disciplinary authority, having perused the enquiry report passed punishment order dated 25.11.1998 by which the disciplinary authority reduced his rank to the lower post assistant grade II(D) at minimum pay with recovery of 1/3rd of his basic pay of three years. A dispute was raised in respect of the above stated punishment and thereafter, Ministry of Labour, New Delhi made a reference to the Industrial Tribunal for adjudication of the dispute. The parties to the above stated dispute filed their written statement and led evidence. The Industrial Tribunal, having considered the materials available on record, passed the impugned order dated 20.07.2004 against which this writ petition has been preferred. 2. Learned counsel appearing for the petitioner challenged the impugned award arguing that the Industrial Tribunal did not consider several important legal questions while passing the impugned award. The Industrial Tribunal, having considered the materials available on record, passed the impugned order dated 20.07.2004 against which this writ petition has been preferred. 2. Learned counsel appearing for the petitioner challenged the impugned award arguing that the Industrial Tribunal did not consider several important legal questions while passing the impugned award. Learned counsel for the petitioner pointed out that the Industrial Tribunal failed to consider this aspect of the matter that original respondent No. 3 was not a workman and the aforesaid point was raised by the petitioner before learned Industrial Tribunal at the initial stage of the reference but learned Industrial Tribunal did not give any finding on the above stated point. He further submitted that similarly, learned Industrial Tribunal did not give any finding on the point of covering the wheat by Tarpaulin. He further submitted that when the Corporation received notice issued by the learned Industrial Tribunal, Corporation challenged the reference before this court by filing CWJC No. 11571/2000 on two grounds, firstly, that there was statutory appeal as well as review under the Regulations 69 and 74 respectively of the Food Corporation of India (Staff) Regulations, 1971 against the order of punishment and secondly, original respondent No. 3 was not a workman under the provision of the Industrial Disputes Act, 1947. He further submitted that a petition to the above stated effect was also filed before learned Presiding officer, Industrial Tribunal, Patna. He further submitted that, however, at the time of hearing of CWJC No. 11571/2000, Corporation withdrew the aforesaid CWJC No. 11571/2000 and this court vide order dated 01.09.2003 permitted the Corporation to withdraw the above stated CWJC No. 11571/2000 but a liberty was given to the Corporation to raise all questions in reference before Industrial Tribunal. He further submitted that the petitioner/Corporation gave all details about pay and supervisory nature of work of original respondent No. 3 before Industrial Tribunal to show that original respondent No. 3 was not a workman as per definition under the Industrial Disputes Act, 1947 but learned Industrial Tribunal over-looked the aforesaid point at the time of passing final award. He further submitted that the petitioner/Corporation gave all details about pay and supervisory nature of work of original respondent No. 3 before Industrial Tribunal to show that original respondent No. 3 was not a workman as per definition under the Industrial Disputes Act, 1947 but learned Industrial Tribunal over-looked the aforesaid point at the time of passing final award. He further submitted that original respondent No. 3 was represented before Industrial Tribunal by one Vijendra Kumar but the said Vijendra Kumar had no locus standi to represent original respondent No. 3 before Industrial Tribunal as the aforesaid Vijendra Kumar was not an office bearer of the Union but learned Tribunal vide its order dated 22.03.2004 held that the aforesaid Vijendra Kumar was competent to represent original respondent No. 3. He further submitted that the petitioner/Corporation challenged the aforesaid order dated 22.03.2004 before this court in CWJC No. 4436/2004 which was withdrawn by the petitioner after passing final award. He further submitted that Food Corporation of India (Staff) Regulation, 1971 has been framed under section 45 of the Food Corporation of India Act, 1964 and in the aforesaid Food Corporation of India (Staff) Regulations, 1971, there was a specific provision for appeal and review against punishment order passed in the departmental proceeding and the aforesaid point was raised by the Corporation before learned Industrial Tribunal but learned Industrial Tribunal did not give any finding on the above stated point. He further submitted that it is well settled principle of law that wrong consideration of fact is excusable but non-consideration of fact is not excusable and, therefore, in view of the aforesaid fact, the impugned award can not sustain in the eye of law. 3. He further submitted that admittedly, this court while disposing of CWJC No. 11571/2000 gave liberty to the petitioner to raise the above stated points before Industrial Tribunal and accordingly, the above stated points were raised before Industrial Tribunal at proper stage but the Industrial Tribunal did not give any finding on the above stated points. 3. He further submitted that admittedly, this court while disposing of CWJC No. 11571/2000 gave liberty to the petitioner to raise the above stated points before Industrial Tribunal and accordingly, the above stated points were raised before Industrial Tribunal at proper stage but the Industrial Tribunal did not give any finding on the above stated points. He further submitted that there was a specific charge against original respondent No. 3 that he had not taken any step for covering the food grains by tarpaulin and evidence was also adduced against original respondent No. 3 in course of departmental proceeding but learned Industrial Tribunal, completely ignored the aforesaid fact and without giving any specific finding on the aforesaid fact, passed the impugned award. He further submitted that learned Industrial Tribunal also ignored this fact that at the relevant time original respondent No. 3 was working as assistant grade I and his work was of supervisory nature and, therefore, original respondent No. 3 was not a workman as defined under section 2(s) of the Industrial Disputes Act, 1947. He further submitted that at the relevant time, original respondent No. 3 was getting salary more than Rs. 1600/- and, therefore, in the aforesaid circumstance, he was not a workman. He further submitted that all the above stated facts were completely ignored by learned Industrial Tribunal at the time of passing the impugned award. He further submitted that moreover, the impugned award passed by the learned Industrial Tribunal was without jurisdiction because the reference made by the government was not within the purview of industrial disputes as the dispute referred and decided by learned Industrial Tribunal does not come under section 2(a) of the Industrial Disputes Act, 1947. 4. On the other hand, learned counsel appearing for the original respondent No. 3 submitted that original respondent No. 3 was a senior most clerk at the relevant time and he had got no supervisory work and, therefore, original respondent No. 3 was a workman. He further submitted that at the relevant time original respondent No. 3 was getting salary below Rs. 1600/- and, therefore, original respondent No. 3 comes under the definition of workman as defined under the Industrial Disputes Act, 1947. He further submitted that at the relevant time original respondent No. 3 was getting salary below Rs. 1600/- and, therefore, original respondent No. 3 comes under the definition of workman as defined under the Industrial Disputes Act, 1947. He further submitted that no doubt, there was alternate remedy available to original respondent No. 3 under the Food Corporation of India (Staff) Regulations, 1971 to challenge the order of punishment passed in departmental proceeding but in the case of Telecom District Manager and Others Vs. Keshab Deb, (2008) 8 SCC 402 , Apex Court of this country clearly held that workman has option to choose his own forum and, therefore, even if original respondent No. 3 did not choose to file appeal and review under the provision of the Food Corporation of India (Staff) Regulations, 1971 and a reference was made, the Industrial Tribunal had got jurisdiction to entertain the reference made by the government. He also submitted that admittedly, Corporation/petitioner filed CWJC No. 11571/2000 challenging the maintainability of reference as well as status of original respondent No. 3 as workman but the aforesaid CWJC No. 11571/2000 was dismissed as withdrawn on 01.09.2003 and thereafter, petitioner/Corporation again filed CWJC No. 4436/2004 on the same ground but the said CWJC No. 4436/2004 was, again, dismissed as withdrawn on 10.03.2011 and, therefore, the Corporation has got no right to raise the above stated plea again and the aforesaid plea is barred by principle of constructive res judicata. 5. Petitioner/Corporation has challenged the impugned award mainly on following grounds: (i) Original respondent No. 3 does not come under the definition of workman as defined under section 2(s) of the Industrial Disputes Act, 1947. (ii) There was alternate remedy available to original respondent No. 3 to challenge the order of punishment passed in departmental proceeding under the Food Corporation of India (Staff) Regulations, 1971. (iii) The dispute referred to Industrial Tribunal does not come under the definition of the Industrial Disputes Act, 1947 as defined in section 2(a) of the Industrial Disputes Act, 1947. (iv) The Industrial Tribunal did not appreciate the evidences in proper prospective and over-looked several materials available on record. (v) The Industrial Tribunal did not give any finding on the point Nos. (i), (ii) and (iii). 6. (iv) The Industrial Tribunal did not appreciate the evidences in proper prospective and over-looked several materials available on record. (v) The Industrial Tribunal did not give any finding on the point Nos. (i), (ii) and (iii). 6. Now, I would like to refer section 2(s) of the Industrial Disputes Act, 1947 which runs as follows: "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 Tribunal dispute, includes any such person who has been dismissed, discharge 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 or the Army Act, 1950, or the Navy Act, 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 Rs. 1600/- per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, function mainly of a managerial nature." 7. Petitioner/Corporation has challenged the status of original respondent No. 3 as workman mainly on two counts. Firstly, nature of work of original respondent No. 3 was supervisory in nature and secondly, at the relevant time, he was drawing his wages more than Rs. 1600/-. In this connection, the Corporation has brought on record annexures 12 and 13 to the writ petition. Annexure 12 speaks about characteristic of assistant grade I (Depot). This document shows that assistant grade I (Depot) is the senior most clerical grade and the incumbent of the aforesaid grade while working in godowns supervises and guides AG 11(D) and AG III(D) in attending the godowns, inspecting stocks and in preparing for and carrying out loading and unloading, weighting and slacking operations and incumbent of the aforesaid grade while working in the district offices etc shall be immediate/general supervision of Assistant Manager/higher officers perform a variety of clerical work. 8. 8. Annexure 13 to the supplementary writ petition reveals that till 01.08.1987, the pay scale of assistant grade I was in the pay scale of Rs. 1060-1950/- but the aforesaid pay scale revised with effect from 01.08.1987 to 31.01.1992 in the pay scale of Rs. 1825-3430/-. Annexure 13 was issued on 09.11.1992. Original respondent No. 3 has brought annexure A to the counter affidavit on record to show this fact that on 11.03.1991 assistant grade I was in the pay scale of Rs. 450-850/- i.e. below Rs. 1600/-. 9. Admittedly, annexure 13 came in light after issuance of notification dated 11.03.1991 (annexure A). Learned counsel for the petitioner clarifies that in annexure A original pay scale of assistant grade I has been shown but, as a matter of fact, circular No. 20 of 1992 dated 09.11.1992 fixed pay scale of assistant grade I in the pay scale of Rs. 1825-3430/- with effect from 01.08.1987 and, therefore, the aforesaid document clearly suggests that original respondent No. 3 was getting more than Rs. 1600/- at the relevant time. Apart from this, it has also been argued on behalf of the petitioner that annexure 12 clearly suggests that nature of work of original respondent No. 3 at the relevant time was supervisory in nature and, therefore, original respondent No. 3 was not a workman in accordance with section 2(s) of the Industrial Disputes Act, 1947. 10. From perusal of section 2(s)(iv) of the Industrial Disputes Act, 1947, it would appear that a person will not come under the definition of workman, if he being employed in supervisory capacity draws exceeding Rs. 1600/- per mensem or excess either by nature of the duties attached to the office or by reason of powers vested in him, functions mainly of a managerial nature. Therefore, the aforesaid provision clearly suggests that if a person is employed in supervisory capacity and draws exceeding Rs. 1600/-, then, in that event, he will not come under the definition of workman but if a person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, he shall be treated as workman. Therefore, even if a person is employed to do supervisory work, then also, he shall be treated as workman under the definition of section 2(s) of the Industrial Disputes Act, 1947. 11. Therefore, even if a person is employed to do supervisory work, then also, he shall be treated as workman under the definition of section 2(s) of the Industrial Disputes Act, 1947. 11. In the instant case, annexure 12 shows that post of assistant grade I comes under the category of clerical grade and if the incumbent of assistant grade I is posted in godown, supervisory power is granted to him due to nature of the work attached with his duties but when the incumbent of assistant grade I is posted in district office, no supervisory capacity is vested to him. 12. In the present case, admittedly, original respondent No. 3 was posted in Depot at the relevant time and due to nature of work, supervisory work was also vested in him but mere vesting of supervisory power does not change the grade of original respondent No. 3 because even if the supervisory work was attached with duty of original respondent No. 3 due to his posting in Depot, nature of clerical grade was not changed and according to section 2(s) of the Industrial Disputes Act, 1947, even if a workman is employed to do supervisory work, he shall be treated as workman. 13. No doubt, if a person is employed in supervisory capacity draws wages exceeding Rs. 1600/-, he shall not be treated as workman but the aforesaid rider of Rs. 1600/- is applicable in respect of those persons only who are appointed in a supervisory capacity. 14. Admittedly, in the present case, appointment of original respondent No. 3 was not in supervisory capacity neither he was functioning work of managerial nature. Therefore, in my view, original respondent No. 3 was a workman at the relevant time and there is no substance in the argument of learned counsel for the petitioner that at the relevant time, original respondent No. 3 was not a workman. 15. Admittedly, Food Corporation of India is statutory body created under the Food Corporation of India Act, 1964 and Food Corporation of India (Staff) Regulations, 1971 was framed under the power given in section 45 of Food Corporation of India Act, 1964. 15. Admittedly, Food Corporation of India is statutory body created under the Food Corporation of India Act, 1964 and Food Corporation of India (Staff) Regulations, 1971 was framed under the power given in section 45 of Food Corporation of India Act, 1964. Section 45 of Food Corporation of India Act, 1964 says that Food Corporation of India may, with the previous sanction of the Central Government, by notification in official gazette, make regulation not in consistent with this Act and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provision of this Act. The aforesaid section also says that the Food Corporation of India may make regulation in respect of method of appointment, condition of service and scale of pay of the officers and employees of the Food Corporation of India other than Secretary of the Food Corporation of India. 16. It is an admitted position that Food Corporation of India (Staff) Regulations, 1971 was made under the power given in section 45 of Food Corporation of India Act, 1964 and the aforesaid regulations contain provision of appeal and review. Article 69 of the aforesaid Regulations contain the provision of appeal and Article 74 of the Regulation contains the provision of review. The aforesaid fact has not been denied by the respondents. It is also an admitted position that after passing order of punishment by the disciplinary authority, original respondent No. 3 did not avail the provision of appeal and review rather a dispute was raised by the Union and thereafter, the Government made reference which was entertained by the Industrial Tribunal under the Industrial Disputes Act, 1947. It is also an admitted position that after passing order of punishment by the disciplinary authority, original respondent No. 3 did not avail the provision of appeal and review rather a dispute was raised by the Union and thereafter, the Government made reference which was entertained by the Industrial Tribunal under the Industrial Disputes Act, 1947. In course of hearing, learned counsel appearing for the original respondent No. 3 fairly conceded this fact that facility of alternate remedy was not availed by original respondent No. 3 prior to making reference but he argued that in view of the principle laid down by Apex Court of this country in the case of Telecom District Manager and Others v. Keshab Deb (supra), it is prerogative of the workman to choose proper forum for redress-sal of his grievance but in my view, the above stated decision is not applicable in the present case because in the aforesaid decision employee filed writ petition not only on account of violation of equality clause enshrined under Article 14 of the Constitution of India but also on account of violation of the provision of the Industrial Disputes Act, 1947 and in that circumstance, the Apex Court of this country held that employees had an option to choose his own forum. 17. In the present case, no doubt, on behalf of original respondent No. 3 the Union raised dispute alleging violation of natural justice but admittedly, there was a regulation validly framed under the power given by an Act and the regulations contain specific provision of appeal and review. Therefore, in my view, original respondent No. 3 had no option except to take recourse of appeal or review but admittedly, original respondent No. 3 had not availed the above stated alternate remedy and, therefore, in my view, learned counsel for the petitioner rightly submitted that reference was not maintainable before learned Industrial Tribunal. Therefore, in my view, original respondent No. 3 had no option except to take recourse of appeal or review but admittedly, original respondent No. 3 had not availed the above stated alternate remedy and, therefore, in my view, learned counsel for the petitioner rightly submitted that reference was not maintainable before learned Industrial Tribunal. Furthermore, it is an admitted position that when reference was made to the learned Industrial Tribunal, petitioner preferred CWJC No. 11571/2000 before this court challenging the maintainability of the aforesaid reference on account of availability of alternate remedy but on later stage, the aforesaid CWJC No. 11571/2000 was dismissed as withdrawn giving liberty to the petitioner to raise the above stated point before Industrial Tribunal and the petitioner raised the aforesaid plea in his written statement as admitted by the Industrial Tribunal at para 3 of the impugned award but Industrial Tribunal did not give any finding on the aforesaid issue and, therefore, learned counsel for the petitioner rightly submitted that wrong consideration of fact is excusable but non-consideration of fact is not excusable. 18. It is pertinent to note here that the petitioner filed this writ petition without impleading respondent No. 3, namely, Ram Brat Paswan but subsequently, petitioner impleaded original respondent No. 3, namely, Ram Brat Paswan who died during the pendency of the writ petition and his legal representatives were brought on record with permission of this court. On the basis of the aforesaid discussions, I am of the opinion that the Industrial Tribunal had got no right to entertain reference as made to it by the Central Government, in the circumstance, when original respondent No. 3 had got alternate remedy to redress his grievance and, therefore, in the aforesaid circumstance, I have no option except to set aside the impugned Patna High Court CWJC No. 458 of 2005 (12) 13 award dated 20.07.2004 and accordingly, this writ petition stands allowed setting aside the impugned award dated 20.07.2004 passed in Reference case No. 4C/2000. However, it is made clear that if legal representatives of original respondent No. 3 choose to challenge punishment order dated 25.11.1998 passed in departmental proceeding and if any appeal or review is filed against the above stated punishment order before appropriate authority under Food Corporation of India (Staff) Regulations, 1971, the said authority shall exclude the period consumed due to pendency of dispute, Reference case No. 4C/2000 as well as present writ petition and shall decide appeal and review on its own merit without being prejudiced by the observations given in the present writ petition.