Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1142 (GAU)

Assam Co-Op. Insurance Ltd. v. Presiding Officer

2015-09-07

UJJAL BHUYAN

body2015
JUDGMENT : This case was heard on 06.08.2015 and 19.08.2015 was fixed for delivery of judgment. For unavoidable circumstances, judgment could not be delivered on 19.08.2015. Case is listed today for delivery of judgment. Accordingly, judgment is being delivered. Heard Mr. B Chakraborty, learned counsel for the petitioner and Ms. A Bhattacharyya, learned counsel for respondent No.2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of award dated 19.07.2007, passed by the Labour Court, Dibrugarh in Ref. Case No.4/2004. By the impugned award dated 19.07.2007, Labour Court held that the management was liable to reinstate the workman in her service. Petitioner is the management and workman is respondent No.2. An industrial dispute had arisen between the management of M/s. Assam Co-operative Insurance Ltd. and the workman, Smti. Rehana Sultana. Consequent upon such industrial dispute, a reference was made by the appropriate Govt. i.e., the Govt. of Assam in the Labour & Employment Department vide notification dated 12.02.2004, under section 10 (1) (C) of the Industrial Disputes Act, 1947 to the Labour Court, Dibrugarh for adjudication of the following issues:- 1. Whether the management of M/s. Assam Co-operative Insurance Ltd., Dibrugarh Branch was justified in refusing to re-instate Smti. Rehena Sultana, Office Assistant? 2. If not, whether the management was liable to reinstate Smti. Sultana or any other relief in lieu thereof? Both workman and management filed their respective written statements. In her written statement, the workman stated that M/s. Assam Co-operative Insurance Ltd. was a registered co-operative society, registered under the provisions of the Assam Co-operative Societies Act, 1949, having its Head Office at Jorhat with several branch offices at different places, including at Dibrugarh. She was appointed as a Field Assistant by the Head Office and thereafter, as a permanent Field Assistant posted at Duliajan Branch w.e.f. 31.03.1994. She was transferred to Naharkatia Branch on 05.01.1995 whereafter, to Lahowal Organizing Centre. The management abruptly closed down the said Centre without any intimation to the employees, leaving them to fend for themselves. In the year 2003, the aforesaid society re-surfaced with a Branch Office at Dibrugarh. The workman approached the Branch Office and requested the Branch Manager for reinstating her in her post, which was allowed by the Head Office. However, an undertaking was demanded from the workman to procure business of Rs.20,000.00 per month apart from making a security deposit of Rs.10,000.00. The workman approached the Branch Office and requested the Branch Manager for reinstating her in her post, which was allowed by the Head Office. However, an undertaking was demanded from the workman to procure business of Rs.20,000.00 per month apart from making a security deposit of Rs.10,000.00. The workman accepted the condition of security deposit, but refused to give the undertaking of procuring business worth Rs.20,000.00 per month. As the undertaking was not given, the workman was not reinstated in service. It was therefore contended that such retrenchment of the petitioner was illegal and she was entitled to reinstatement. It appears that management filed two written statements, one on 29.04.2004 and subsequently on 02.02.2005. In the first written statement, it was stated that M/s. Assam Co-operative Insurance Ltd. was a co-operative society having registration under the Assam Co-operative Societies Act, 1949. There were shareholder members of the society. Communication was made with the Ministry of Finance, Govt. of India for obtaining licence for conducting insurance business. However, registration of the society was cancelled on 02.02.1995 by the by the Joint Registrar of Co-operative Societies (G), Assam on the ground that the aforesaid society could not lawfully carry out the insurance business. This was challenged by the society before this Court by filing writ petition being CR No.691/1995. The cancellation order was stayed on 17.02.1995. During the pendency of the writ petition, Govt. of Assam in the Co-operation Department took the view that registration granted to the society was valid and its cancellation was not justified. Accordingly, order of cancellation was revoked and registration granted to the society was restored. This was done vide Government order dated 06.05.2000. In the meanwhile, the Insurance Regulatory and Development Authority Act, 1999 came into force throughout the country liberalizing the business of insurance. Consequently, the Bye-laws of the society were amended. It was stated that the society had not started the insurance business and it would have to raise a fund of Rs.1 crore first as per directive of the Govt. of India. In the light of the above, instruction was given that each branch had to conduct business of Rs.20 lakhs. Society had ceased to function since 02.02.1995 and was re-registered only on 29.09.2000. The workman had remained silent from 1995 till March, 2003 and when she found the society taking steps to revive its business, she laid her claim to reinstatement. In the light of the above, instruction was given that each branch had to conduct business of Rs.20 lakhs. Society had ceased to function since 02.02.1995 and was re-registered only on 29.09.2000. The workman had remained silent from 1995 till March, 2003 and when she found the society taking steps to revive its business, she laid her claim to reinstatement. As per the amended Bye-laws of the society, a member was required to purchase share money of Rs.20,000.00, but as the workman was an old employee, management agreed to re-employ her on purchasing share of Rs.10,000.00 as a special case. In its second written statement, it was stated by the management that the society would cease to exist as it was going to be amalgamated/merged with the North-Eastern Multi-State Insurance Co-operative Society Ltd., having a wide area of operation in the entire northeastern region plus the States of Sikkim and West Bengal. Averments made in the previous written statement were reiterated. It was also stated that the society had registered individuals as shareholders. Management side examined one witness whereas, workman examined three witnesses in support of her claim. After considering the materials on record, including the evidence adduced, the Labour Court held that the society or after its amalgamation with the North-Eastern Multi-State Insurance Cooperative Society Ltd., the new society, was not justified in declining to reinstate the workman as Office Assistant, since she worked under the previous society from 31.03.1994 and she was neither terminated nor dismissed from her job. Accordingly, it was held that the present management was liable to reinstate her as per original terms of agreement with the earlier society, since amalgamated. Aggrieved, management is before the Court by filing the present writ petition. This case was admitted for hearing as far back as on 23.05.2008. In the course of the proceeding, learned counsel appearing for the workman submitted that though the Labour Court had directed reinstatement of the workman, which has been challenged by the management before the Court, benefits under section 17B of the Industrial Disputes Act, 1947 were not paid since 21.01.2013. On 24.03.2014, learned counsel appearing for the management submitted before the Court that benefits under section 17B of the Industrial Disputes Act, 1947 were being continuously disbursed to the workman during the pendency of the case. Mr. Chakraborty, learned counsel for the petitioner has basically confined his argument to two points. On 24.03.2014, learned counsel appearing for the management submitted before the Court that benefits under section 17B of the Industrial Disputes Act, 1947 were being continuously disbursed to the workman during the pendency of the case. Mr. Chakraborty, learned counsel for the petitioner has basically confined his argument to two points. He submits that respondent No.2 was not a workman within the meaning of section 2 (s) of the Industrial Disputes Act, 1947. As per Bye-laws of the society, she was a shareholder member of the society, membership being obtained by way of purchase of shares. If she was a shareholder, she would not be a workman as is understood under the Industrial Disputes Act, 1947. Labour Court had failed to examine this aspect of the matter. Though this was highlighted in the written statement filed by the management, failure to consider this aspect of the matter has rendered the award untenable. Second contention of Mr. Chakraborty is that there was inordinate delay on the part of respondent No.2 seeking reinstatement from the management. From 1995, when the business of the society was closed down till March, 2003 i.e., for more than 8 years, she did not raise any claim to reinstatement. Such belated approach would clearly go to show that respondent No.2 had voluntarily abandoned her engagement with the management and only after she saw steps for revival of the society being taken, she came forward to stake her claim. This aspect was also overlooked by the Labour Court. In support of his submissions, learned counsel for the petitioner has placed reliance on the following decisions:- i) AIR 1964 Madras 103 (South Arcot Co-operative Motor Transport Society Ltd. Vs. Syed Batcha & Ors.). ii) (1998) 9 SCC 432 (K. Viswambharan Vs. State of Kerala & Ors.). iii) (2000) 2 SCC 455 (Nedungadi Bank Ltd. Vs. KP Madhavankutty & Ors.). iv) (2008) 10 SCC 115 (C. Jacob Vs. Director of Geology and Mining & Anr.). v) (2013) 10 SCC 253 (Vijay S. Sathaye Vs. Indian Airlines Ltd. & Ors.). On the other hand, Mrs. Bhattacharyya, learned counsel for the workman submits that the arguments advanced on behalf of the management cannot be entertained at this stage, since the submissions are based on facts. Labour Court had examined all factual aspects and thereafter, had recorded definite findings of fact. Based on such findings of fact, impugned award has been passed. On the other hand, Mrs. Bhattacharyya, learned counsel for the workman submits that the arguments advanced on behalf of the management cannot be entertained at this stage, since the submissions are based on facts. Labour Court had examined all factual aspects and thereafter, had recorded definite findings of fact. Based on such findings of fact, impugned award has been passed. She submits that the writ court is not expected to examine the correctness or otherwise of an award passed by the Industrial Tribunal or by the Labour Court as a Court of appeal. Approach of the writ court should be to uphold the decision of the Industrial Tribunal/Labour Court to the maximum possible extent. Unless there is any patent illegality or perversity vitiating the impugned award, the same should be upheld. In the instant case, there is no such patent illegality or perversity vitiating the impugned award. Therefore, no interference is called for. In support of her submissions, learned counsel has placed reliance on the following decisions:- i) (1983) 4 SCC 156 (Sadhu Ram Vs. Delhi Transport Corporation). ii) AIR 1988 SC 2168 (Calcutta Port Shramik Union Vs. Calcutta River Transport Association & Ors.). iii) (1995) 6 SCC 749 (BC Chaturvedi Vs. Union of India & Ors.). iv) (1999) 2 SCC 143 (Savita Chemicals (P) Ltd. Vs. Dyes & Chemical Workers’ Union & Anr.). v) (2011) 6 SCC 584 (Devinder Singh Vs. Municipal Council, Sanaur). vi) (2015) 3 SCC 101 (General Manager (Operations) State Bank of India & Anr. Vs. R. Periyasamy). vii) (2015) 4 SCC 458 (Jasmer Singh Vs. State of Haryana & Anr.). Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. Since the award has been impugned, the same may be examined at the outset. Relevant portion of the impugned award dated 19.07.2007 reads as under :- “On reading the evidence, pleadings and hearing arguments of both sides it is found that most of the facts in the case are admitted. There is no dispute on the vital points that Smt. Rehena Sultana was not a workman under M/s. Assam Co-operative Insurance Ltd. and her working as field Asstt. or Office Asstt. of the Society at its various branches like Duliajan, Naharkatia, Lahowal etc. There is no dispute on the vital points that Smt. Rehena Sultana was not a workman under M/s. Assam Co-operative Insurance Ltd. and her working as field Asstt. or Office Asstt. of the Society at its various branches like Duliajan, Naharkatia, Lahowal etc. It is also an admitted fact that at the time of inception of the North-East Multi-State Insurance Co-operative Society Ltd., original Society M/s. Assam Co-operative Insurance Ltd. under whom Rehena Sultana was a workman was merged with it. On implication it can be assumed that all liabilities of the original Insurance Society (Assam Co-operative Insurance Ltd.) vested with the newly incepted Insurance Society like N.E.M.S.I.C.S. Ltd. On merging with this newly created organization earlier workman got the lien to be absorbed in it. This newly created institution cannot ignore or evade its responsibility to give employment to the earlier employee who were neither dismissed nor terminated legally, not the old Society was wind up. This problem of the earlier workers is to be looked from the social point of view under the Industrial Disputes Act, 1947 since it was enacted with a view to give benefit to the workmen and it was legislated with that end in view. Technical points of law are to be avoided to render benefit to the workers. From the above discussions, it is found that the management of Assam Co-operative Insurance Ltd., Dibrugarh Branch or subsequent incepted new Society by amalgamation of M/s. Assam Co-operative Insurance Ltd. was not justified in refusing to re-instate Smt. Rehena Sultana as Office Asstt. since she worked under the previous society from 31.03.1994 and was not terminated or dismissed from job and accordingly the present management is liable to reinstate her as per original terms of Agreement with the earlier Society (since amalgamated) with effect from the date of her such approached to the newly created society with the facilities she was enjoying at the time of her initial appointment in the year, 1994. Accordingly the award is passed on this the 19th July, 2007.” A perusal of the relevant portion of the award, as extracted above, would go to show that Labour Court did not examine the crucial issue of the status of respondent No.2. Accordingly the award is passed on this the 19th July, 2007.” A perusal of the relevant portion of the award, as extracted above, would go to show that Labour Court did not examine the crucial issue of the status of respondent No.2. By purchasing of shares in the society, whether respondent No.2 had become a shareholder of the society and if so whether she could be termed as a workman of the society within the meaning of section 2(s) of the Industrial Disputes Act, 1947? This is an aspect, which would have a decisive impact on the outcome of the proceeding. While learned counsel for the petitioner has raised the issue of delay on the part of respondent No.2 in seeking reinstatement, Court is of the view that having regard to the cessation of business by the society for a long period of about 8 years, delay on the part of respondent No.2 in approaching the society seeking reinstatement, may not be fatal. When the society itself was not conducting business and was in a dormant state, it cannot be said that respondent No.2 had voluntarily abandoned her duty. So this ground raised by the petitioner does not appeal to the Court. On the other hand, the issue relating to respondent No.2 being a shareholder of the society and if so, whether she would still be a workman of the society within the meaning of section 2(s) of the Industrial Disputes Act, 1947 was crucial to the adjudication of the reference. This aspect was unfortunately not gone into by the Labour Court. In such circumstances, Court is of the view that it would meet the ends of justice, if the Labour Court is directed to decide this issue one way or the other on the basis of the materials already on record. Accordingly, parties are remanded back to the Labour Court, Dibrugarh for a fresh decision of the reference proceeding. However, the examination and decision on remand would be confined only to the above issue as to whether respondent No.2 was a shareholder of the society and if so, whether she would still be a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947. Let the decision be taken within a period of four (4) months from the date of receipt of a certified copy of this order. Let the decision be taken within a period of four (4) months from the date of receipt of a certified copy of this order. Consequently, impugned award dated 19.07.2007 is set aside with the clarification that management would continue to pay the wages of the petitioner till the fresh decision is given on remand. Registry to send down the case record immediately. Writ petition is accordingly disposed of. No costs.