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2014 DIGILAW 863 (GAU)

Giat Tanti v. Warden Tea Ltd. & Ors.

2014-09-09

B.K.SHARMA

body2014
1. Heard Mr. P. Mahanta, learned counsel for the petitioner and Mr. P. Kataki, learned counsel representing the respondent Nos. l and 2. 2. This writ petition is directed against the award dated 29th June, 2010 of the Labour Court of Assam at Dibrugarh in Reference Case No. 4/ 2005 holding that the petitioner is not a workman as envisaged in the Industrial Disputes Act, 1947 (‘the Act’). 3. When the writ petitioner was dismissed from the services of the Tara Tea Estate, a dispute having been raised, the Government of Assam vide notification dated 7th March, 2005 made a reference to the Labour Court for adjudication the following issues : “(1) Whether the management of Tara T. E was justified in dismissing Smt. GeetaTanti? (2) If not, whether Smt. Geeta Tanti is entitled for reinstatement from the date of her dismissal or any other date with full back wages or any other relief? 4. On receipt of the notice from the Labour Court, both the parties entered appearance and filed their respective written statements. It appears that on the basis of the plea raised by the Management, a preliminary issue was framed on 27th March, 2007 as to whether the petitioner is entitled to adjudication of the issues, she being not a workman within the definition of the aforesaid Act. It is this preliminary issue, which has been answered in favour of the Management and against the petitioner. The proceeding having been decided on the basis of the said preliminary issue, there was no adjudication of the issues under the reference made to the Labour Court and referred to above. From the materials on record including the records received from the Labour Court, it appears that in the written statement of the Management, a plea was taken that the petitioner was provided with a permanent job as garden school teacher to teach children and accordingly, she was designated as a teacher of the school of Tara Tea Estate. On the other hand, in the written statement filed by the petitioner, it was contended that she was appointed as a daily rated worker and was assigned with the duty of a teacher in the garden LP School. 5. In the proceeding before the Labour Court, both sides examined two witnesses, each, in support of their pleas. On the other hand, in the written statement filed by the petitioner, it was contended that she was appointed as a daily rated worker and was assigned with the duty of a teacher in the garden LP School. 5. In the proceeding before the Labour Court, both sides examined two witnesses, each, in support of their pleas. Having regard to the preliminary issue raised in the proceeding, the Labour Court before proceeding any further with the matter, took up the said issue and the same having been decided in favour of the Management, it did not go into the issues framed for adjudication. From the materials on record, it appears that the service of the petitioner was dispensed with pursuant to a domestic inquiry. The correctness or otherwise of the said domestic inquiry was not gone into, in view of the above position. 6. It appears that the witnesses examined by both sides stated in their deposition that the petitioner was a daily rated worker of the Tea Estate but was entrusted with the duty of a school teacher. It is also in the evidence that the petitioner was appointed as a daily rated worker with fixed daily wage of Rs. 29.10 per day (Exhibit A, appointment order). On perusal of the said Exhibit-A, appointment order, nowhere it is to be found that the petitioner was engaged as a teacher, rather she was appointed as a daily rated worker on daily payment of Rs. 29.10 per day. There was a rider in the appointment order that though the petitioner was appointed as a garden labour, she might be called upon to do other duties. According to the petitioner, apart from her assigned duties in the school as a school teacher, she was also required to perform some other official duties as and when required. The Labour Court even after recording the finding that the petitioner was engaged as a daily rated worker and used to work as teacher of the garden school drawing the inference there-from held that the petitioner was not a workman within the meaning of the definition provided for in the aforesaid Act. The Labour Court even after recording the finding that the petitioner was engaged as a daily rated worker and used to work as teacher of the garden school drawing the inference there-from held that the petitioner was not a workman within the meaning of the definition provided for in the aforesaid Act. While recording the said finding, the learned Presiding Officer, Labour Court confined the issue as to the nature of the duty, which the petitioner used to perform, unmindful of the fact that she was engaged as a daily rated worker on daily payment of Rs. 29.10 per day and that she had no hand in her assigned duties by the Management. 7. Section 2(s) of the Act defines “workman” as follows: “ (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 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.” 8. The Management of the Tea Estate after having employed the petitioner as a daily rated worker could not have taken the plea that because of the assigned duties with the basic foundation as a daily rated worker, the petitioner stood excluded from the definition of the term “workman”. The said expression will have to be understood in the context in which the petitioner was employed. The said expression will have to be understood in the context in which the petitioner was employed. She was basically employed as a daily rated worker and if that be so, she was very much a workman within the aforesaid definition. 9. Once it is held that the petitioner was a workman under the Management, the reference would require adjudication of the Labour Court. In such adjudication, the validity or otherwise of the domestic enquiry pursuant to which the petitioner was dismissed from service, may have to be gone into and depending upon the order to be passed on that count, parties may have to adduce evidence in the reference proceeding depending upon the outcome thereof, the above quoted reference/issues will have to be answered. It is ordered accordingly. 10. The impugned award is set aside and quashed holding that the petitioner comes within the definition of “workman” requiring adjudication of the above quoted issues by the Labour Court at Dibrugarh. 11. Let the adjudication be carried out and completed as expeditiously as possible, preferably within six months from today. 12. The Registry shall send down the case records immediately along with the coy of this judgment and order. 13. The writ petition stands allowed to the extent indicated above.