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2016 DIGILAW 407 (CAL)

Ananda Bazar Patrika Ltd. v. State of West Bengal

2016-05-06

DEBANGSU BASAK

body2016
JUDGMENT : DEBANGSU BASAK, J. The employer has challenged an award dated April 4, 2001 passed by the First Industrial Tribunal with regard to a reference in relation to the private respondent. By the impugned award the Industrial Tribunal has held that the order of termination passed by the employer on January 18, 1992 is illegal and whimsical. It has set aside such order of termination. It has directed the employer to reinstate and absorb the private respondent in the post of a Junior Clerk in Library department with all back wages and consequential benefits from January 18, 1992 till he is reinstated in the service within three months from the date of the award. Learned Advocate for the employer had submitted that, the private respondent was a trainee. A trainee is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Consequently, there could not have been any reference to the Industrial Tribunal. The Industrial Tribunal ought not to have adjudicated such reference. In any event, such adjudication is without jurisdiction and, therefore, a nullity. He has referred to the definition of Section 2(s) given in the Industrial Disputes Act, 1947 as also the definition of ‘retrenchment’ in Section 2(oo)(bb) and Section 25F of the Act of 1947 defining retrenchment of workman. He has submitted that, the petitioner was appointed as a trainee by the employer in terms of the letter dated October 23, 1987. He was terminated on January 18, 1992. The private respondent had accepted by a writing dated January 18, 1992, that he was lazy and that he had lacked initiative, lacked intelligence to understand the policies and procedures of the Library and that he was reluctant to accept the directions and instructions from the superior officers. Inasmuch as an employer and workman relationship did not exist between the employer and the private respondent, the award is a nullity. Furthermore, the Tribunal had erred in directing the employer to absorb the private respondent to the post of Junior Clerk under the Library department when the private respondent was not appointed as such. The Industrial Tribunal has no jurisdiction to create a post and direct an employer to absorb any of its employees to such post. Furthermore, the Tribunal had erred in directing the employer to absorb the private respondent to the post of Junior Clerk under the Library department when the private respondent was not appointed as such. The Industrial Tribunal has no jurisdiction to create a post and direct an employer to absorb any of its employees to such post. The direction contained in the impugned award to the effect that, the private respondent should be reinstated and absorbed in a post of Junior Clerk under the library department is, therefore, illegal. Learned Advocate for the private respondent has submitted that, a trainee comes within the definition of the word workman given under Section 2(s) of the Industrial Disputes Act, 1947. In support of such contention he has relied upon 1983 Volume 46 Indian Factories & Labour Reports page 10 (Tungbhadra Sugar Works (P.) Ltd. v. Labour Court, Mangalore & Anr.). He has referred to the various passages of the impugned award. He has submitted that, the Industrial Tribunal had taken into consideration the nature of work rendered by the private respondent and has, therefore, come to a rightful finding that, the engagement of the private respondent was as a workman within the meaning of Section 2(s) of the Act of 1947. He has submitted that, inasmuch as the private respondent is a workman, he should have been retrenched in terms of the Section 25F of the Industrial Disputes Act, 1947. Such a recourse not being taken, the order of termination dated January 18, 1992 is bad. The Industrial Tribunal in directing absorption of the private respondent in the post of Junior Clerk has not erred in giving such direction. The letter of appointment of the private respondent speaks that, the private respondent would be appointed in the post of Junior Clerk on the expiry of a period of four years of training from the date of joining. The default of the employer in not doing so does not visit the private respondent with any penalty. Therefore, according to him there is no infirmity in the impugned order warranting inference by the Court. I have considered the rival contentions of the parties and the materials made available on record. The private respondent was engaged as a trainee by a letter dated October 23, 1987 issued by the employer. The letter dated October 23, 1987 specifies various terms and conditions. I have considered the rival contentions of the parties and the materials made available on record. The private respondent was engaged as a trainee by a letter dated October 23, 1987 issued by the employer. The letter dated October 23, 1987 specifies various terms and conditions. Some of the salient features of such appointment are that, the private respondent would undergo a training of four years from the date of joining, he would be paid a stipend during the period of training, he would be engaged as a trainee in the library with effect from November 2, 1987, he could be transferred from one job or section or department to another or to any of the branches or subsidiaries or offices of the company anywhere in India. The letter dated October 23, 1987 also provides that, on satisfactory completion of the training the private respondent would be employed as Junior Clerk or in any other position suited to training and ability. Pursuant to and in terms of the letter dated October 23, 1987 the private respondent had joined the employer with effect from November 2, 1987. He had written a letter dated November 2, 1987 to such effect. Four years from the date of joining being November 2, 1987 would mean that on November 1, 2001 the petitioner ought to have been considered for the purpose of either continuation of the training or appointment as Junior Clerk or in any other position suitable to his training. Nothing has been placed on record to suggest that the employer has chosen to either extend the period of training or to give the private respondent an appointment in the position promised by the letter dated October 23, 1987. By a letter dated January 18, 1992 the services of the private respondent was sought to be terminated. It has been claimed in such letter that the petitioner was appointed as an apprentice and that, in terms of clause (17) of the appointment letter dated October 23, 1987 the service of the private respondent was being terminated. Section 2(s) of the Industrial Disputes Act, 1947 defines the word workman. It has been claimed in such letter that the petitioner was appointed as an apprentice and that, in terms of clause (17) of the appointment letter dated October 23, 1987 the service of the private respondent was being terminated. Section 2(s) of the Industrial Disputes Act, 1947 defines the word workman. Section 2(s) of the Industrial Disputes Act, 1947 is as follows:- “2(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.” The definition of workman in the Act of 1947 is an inclusive definition. Every person employed in an industry for a consideration to be considered as a workman for the purposes of the Industrial Disputes Act, 1947 save and except the categories of persons specified to be exempted from the purview of such section. To come within the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947, a person has to establish that there is a relationship of master and servant or in other words employer-employee relationship. Such relationship must be for a consideration. The consideration may be paid in cash or in kind. The workman concerned should be engaged in an industry. The nomenclature and the period of the appointment are also immaterial. Such relationship must be for a consideration. The consideration may be paid in cash or in kind. The workman concerned should be engaged in an industry. The nomenclature and the period of the appointment are also immaterial. All that a person needs to establish is that, an employer employee relationship or a master and servant relationship coupled with a consideration exists. In the facts of this case the petitioner was initially appointed as a trainee. A trainee is understood to mean that, an employee taken into employment for the purpose of such person being trained in any trade or profession or calling. User of the word ‘trainee’ does not take away anything from an employer-employee relationship existing between the trainer and the trainee. The Industrial Tribunal in the impugned award has considered whether a trainee can be said to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The Industrial Tribunal has returned a finding that, a trainee is a workman within the meaning of such provisions of the Act of 1947. The issue as to whether a trainee can be considered as a workman within the provisions of Section 2(s) was considered in Tungbhadra Sugar Works (P.) Ltd. (supra). It has been held that, any person including an apprentice can be regarded as workman if he is employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward. The Supreme Court in 2003 Volume 6 Supreme Court Cases page 416 (Trambak Rubber Industries Ltd. v. Nashik Workers Union & Ors.) has considered whether a trainee can be termed to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. In the facts of that case it has been held that, a trainee is a workman within the meaning of Section 2(s) of the Act of 1947. In the facts of the present case, the appointment letter stipulates that, the private respondent can be transferred to any department or to any subsidiary or to any place in India. Therefore, if the private respondent was inducted solely as a trainee and that too at the Library section, there was no need for a stipulation to such effect in the letter of appointment. Therefore, if the private respondent was inducted solely as a trainee and that too at the Library section, there was no need for a stipulation to such effect in the letter of appointment. Such stipulation in the letter of appointment demonstrates that, although the word trainee was used, for all practical purposes the petitioner was considered as a regular employee. The evidence disclosed before the Industrial Tribunal establishes such fact. The management did not produce any evidence to suggest that, there was a trainer for the private respondent and there was period evaluation of his so-called training. Quiet to the contrary, the evidence led had established the treatment of the private respondent as any regular employee. On the basis of the evidence led before the Tribunal and the materials made available on record, it cannot be said that, the private respondent was a trainee in the Library section only. The employer had retained the right to transferring him to any other department of the company anywhere in India including to its subsidiaries. Such a stipulation would mean that, the employer was considering him as a regular employee. A trainee is appointed for a specific training. In the present case although the word ‘trainee’ is used for practical purposes the private respondent was not considered for a specific training. No material had been produced to show that he was imparted any training in Library section only. In such circumstances, the employment of the private respondent comes within the definition of workman as defined in Section 2(s) of the Act of 1947. The impugned award of the Tribunal is detailed and reasoned. The Tribunal has taken into consideration the pleadings of the parties and the evidence led before it. It has discussed the issues raised. No portion of the impugned award has been demonstrated to be perverse. On completion of the training the appointment letter dated October 23, 1987 provides that, the private respondent will be employed as a Junior Clerk or any other position suited to his training and ability. A period of four years has elapsed since the date of joining of the private respondent. The employer did not give him any post. It was the failure of the employer not to do so. A period of four years has elapsed since the date of joining of the private respondent. The employer did not give him any post. It was the failure of the employer not to do so. The employer cannot set up its own default as a shield to defend its action or a sword to attack the portion of the impugned award which directs the employer to reinstate the private respondent to the post of Junior Clerk. In terms of the appointment letter the private respondent was entitled to the post of Junior Clerk. The Industrial Tribunal by the impugned order has directed the employer to do so. Therefore, such direction cannot be considered to be in excess of jurisdiction. An Industrial Tribunal has the authority to direct reinstatement along with back wages. Reinstatement has to be a post. In the present case, the Tribunal has directed reinstatement to the post that the private respondent was entitled to in terms of his appointment letter dated October 23, 1987. In such circumstances such direction of the Tribunal contained in the impugned order cannot be said to be in excess of jurisdiction. In such circumstances, I find no reason to interfere with the impugned award. I am informed that, the employer is complying with the order passed by the Tribunal under Section 2(s) of the Industrial Disputes Act, 1947. There is no merit in the present writ petition. W.P. No. 8837 (W) of 2001 is dismissed. No order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis. Later:- The prayer for stay made is considered and refused.