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2017 DIGILAW 1424 (GAU)

Ished Pedru Desouza v. State of Assam

2017-11-10

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Heard Mr. S. Chakraborty, learned counsel for the petitioner and Mr. S. Bharali, learned Additional Senior Government Advocate appearing for the respondent Nos. 1 and 2. Office note dated 18.04.2011 indicates that after service of notice, the AD card in respect of respondent No.3 had returned. The said office note also indicates that the respondent No.3 had been duly served and such service of notice had been affected in the year 2011 itself. Records of the writ petition reveals that none appears for the respondent No.3 Management. In the aforesaid premises, it is deemed appropriate that the matter be proceeded in the absence of the respondent No.3. 2. The petitioner after having served in the Indian Air Force for about 15 years as a Medical Assistant, was appointed by the respondent Tea Estate as a Pharmacist. The petitioner during his tenure in the Indian Air Force had received training at the Medical Training Centre, Banglore for 52 weeks and 12 weeks practical training at Air Force Hospital, Banglore. As per the relevant certificate issued by the competent authority, the said training of the petitioner is equivalent to the qualification for a pharmacist. The engagement of the petitioner was initially on a probation basis. On completion of the period of probation, the petitioner was terminated by the Management as per its order dated 30.07.1990 by paying one month salary in lieu of notice. The stand of the Management was that they had received certain communication from the Council of Pharmacy, requiring them not to appoint the petitioner as a Pharmacist as he was not registered under the Council. 3. Be that as it may, it is the case of the Management that on 14.08.1990, the petitioner and some of his associates had gheraod the Manager of the Garden and forced him to write a letter dated 14.08.1990 allowing the petitioner to continue in his employment w.e.f. 01.08.1990. The further case of the Management is that a group of workers of the garden and also some non-workers had forced the Manager to issue a letter dated 16.08.1990 confirming the service of the petitioner. Subsequently, it is the case of the petitioner workman that the letter of reengagement of 14.08.1990 and the confirmation of 16.08.1990 was withdrawn by the Management and the earlier order of termination was insisted upon. Subsequently, it is the case of the petitioner workman that the letter of reengagement of 14.08.1990 and the confirmation of 16.08.1990 was withdrawn by the Management and the earlier order of termination was insisted upon. In the aforesaid premises, at the instance of the workman, a reference was made as per the Notification under Memo No.GLR.305/97/47 dated 23.03.2000 of the Government of Assam, in respect of the following questions:- (i) Whether the Management of Durrung T.E is justified in terminating the services of Desouza Ished Pedru at the expiry of probationary period or not? (ii) If not, is he entitled to any other relief whatsoever? 4. In course of the proceeding before the learned Labour Court, the Management had examined four witnesses, whereas the workman had examined himself as a witness. Evidences were also led in respect of the subsequent order dated 14.08.1990, by which the petitioner was reinstated and the order of 16.08.1990, whereby the services were confirmed. 5. In the aforesaid premises, a further question for determination had arisen as to whether the said orders of 14.08.1990 and 16.08.1990 were issued by the Management under duress. Although both the Management as well as the workman had led evidences relating to such question, but the learned Labour Court in paragraph-10 of its award had held that as the question referred by the Government Notification does not refer to the issue whether the said orders were issued under duress, it was concluded that the Court had no jurisdiction to adjudicate upon the reinstatement order of 16.08.1990. The said conclusion of the learned Labour Court had again been reiterated by stating that the Court is only to see whether the termination order dated 30.07.1990 is justified or not and does not have jurisdiction to adjudicate upon the validity of the reinstatement order dated 16.08.1990, as well as the revocation order dated 15.09.1990. 6. But having said so, the learned Labour Court did not close the matter as regards the issue as to whether the said orders were issued under duress. On the other hand, the learned Court proceeded to decide the question of duress and accordingly in paragraph-16 of the judgment had held that a group of unruly workmen had threatened to beat up the staff and Manager and had demanded reinstatement of the workmen and in the circumstance the Manager had passed the order of reinstatement dated 14.08.1990 and 16.08.1990. The learned Labour Court also held that it did not find any ground to disbelieve the said evidence of the Management witness. In the award it stated that the evidences regarding the threat by a group of unruly workman had been deposed by the MW-1, MW-2, MW-3 and MW-4. 7. In the present writ petition, Mr. S. Chakraborty, learned counsel for the petitioner by relying upon a judgment and order of this Court dated 18.02.2009 rendered in WP(C) No.2601/2006 contends that the conclusion of the learned Labour Court that it had no jurisdiction to decide the consequential issue as to whether the subsequent orders were obtained by duress, was incorrect. In the judgment and order dated 18.02.2009, this Court had held as such:- “This is the essence of a referred jurisdiction which the Industrial Adjudicator exercises under Section 10 of the Act. However, it may so happen that in a given case to answer the dispute that has been referred, incidental or ancillary questions may to be gone into. Such a course of action would also appear to be in conformity with the principles for resolution of industrial disputes as visualized by the provisions of the Act. The broad issue that has confronted the Court in the present case had also arisen in a proceeding registered and numbered as W.P.(C) Nos.8367 and 8369 of 2001 disposed of on 21.5.2004. Paragraph-14 of the aforesaid order, which amply sums up the present situation, may be quoted hereinbelow with advantage:- “14………….. That the jurisdiction exercised by the industrial adjudicator on a reference made under Section 10 of the Industrial Disputes Act, 1947 is a limited jurisdiction to be exercised within the four corners of the terms of the reference can hardly be disputed. The above position is made clear by the statute itself. Section 10(4) of the Industrial Disputes Act, 1947 makes it clear that the industrial adjudicator shall have to confine its adjudication to the points of dispute referred for adjudication and the matters incidental thereto. Whether an industrial adjudication has been made by exceeding the powers vested in the adjudicator is really a question that has to be decided on the basis of the facts of a given case. At times, the question referred and matters incidental thereto may require the determination of certain other questions, which at first blush, may appear to be unconnected. Whether an industrial adjudication has been made by exceeding the powers vested in the adjudicator is really a question that has to be decided on the basis of the facts of a given case. At times, the question referred and matters incidental thereto may require the determination of certain other questions, which at first blush, may appear to be unconnected. However, on a close reading of the situation, it may be possible to confer legitimacy to such other questions that have been decided though not expressly referred, on the ground that such a decision on the other questions is really necessary to decide what has been referred. The decisions cited on behalf of the petitioner, as already noted, in fact would justify the above view taken. In the last resort, the terms of a reference made and extent of the jurisdiction conferred are essentially questions that should be determined in the facts and circumstances of each case. It will be difficult if not impossible to visualize any fixed and inflexible principles to decide the extent to which an industrial adjudication should be permitted to go in search of an answer to the question referred. In the instant case, the argument advanced on behalf of the petitioners is that as the concerned employees have been described as contract employees, the adjudication must proceed on that basis and the entitlement of the workmen must be determined by taking them to be contract employees. There was no power in the Tribunal to adjudicate and hold that the employees were in fact, the direct employees of the ONGC and not contract employees engaged by the contractors, employed by the ONGC. The power of the appropriate Government at the stage of making a reference under Section 10 of the Act is an administrative power and there is no judicial or quasi-judicial determination made by the appropriate Government at this stage. In the present case, the status of the workmen i.e. whether they were the direct or contractual employees of the ONGC was the dispute that needed adjudication. While referring the said dispute for adjudication, no mention, much less any power can be attributed to the appropriate Government to decide such status of the workmen. In the present case, the status of the workmen i.e. whether they were the direct or contractual employees of the ONGC was the dispute that needed adjudication. While referring the said dispute for adjudication, no mention, much less any power can be attributed to the appropriate Government to decide such status of the workmen. As the status of the workmen was the question referred for adjudication by the Tribunal, to accept the argument advanced on behalf of the petitioners would amount to attributing an intention to the Central Government to refer a still born question for adjudication. The expression contract employees was at best a description employed with regard to the concerned workmen and perhaps, the expression used i.e. contract employees was inapt. Keeping in view the pre-adjudication dispute between the parties and what was attempted to be solved by the reference made, this Court is of the considered view that it would be more reasonable to understand the question referred as one relating to a determination of the status of the workmen i.e. whether they were the contract or direct employees of the ONGC. 13. In General Manager, ONGC, Silchar –vs- ONGC Contractual Workers Union (Civil Appeal No.4755 of 2001) decided on 16.05.2008, the Apex Court has also approved the view that the terms of the reference in a given case cannot, in all cases, restrict the jurisdiction vested in the Tribunal under Section 10 of the Act. In the above case, the question referred having described the workmen as contract workers, a plea was taken that the industrial adjudicator could not have proceeded to determine whether the workmen were regular workers of the ONGC. Negating the contention, the Apex Court took the view that though the terms of reference appears to have ben rather loosely worded, as both the parties were aware of the real issue involved in the proceeding, the Industrial Adjudicator acted within the limits of his jurisdiction in lifting the veil so as to determine the nature of the employment of the concerned workmen. 14. 14. The discussion that has preceded and the views of the Apex Court in General manager, ONGC (Supra) and of this Court in WP(C) Nos.8367 and 8369 of 2001 would indicate that the learned Tribunal’s refusal to go into the question of the entitlement of the workmen for absorption in the light of the policy decision dated 30.05.2000 cannot be upheld in law. Both the parties to the proceeding were fully aware that the dispute related to the entitlement of the workmen for absorption and to resolve the said dispute it was necessary for the learned Tribunal below to go into the aforesaid question. Consequently, there has been a failure to exercise jurisdiction vested in the learned Tribunal by law, which is, therefore, liable to correction.” 8. From the aforesaid proposition of law laid down by this Court, it is apparent that it cannot be stated in a straight jacket manner that the Labour Court cannot proceed and decide any issue or question howsoever incidental it may be to the issue already referred to it and that it cannot go any further beyond the questions referred in the reference by the appropriate Government. Further, in a given case, while deciding the referred dispute, certain incidental or ancillary question is also to be determined; it would be inconformity with the scheme of the Act to determine such a question. In the earlier judgment, this Court had also arrived at a conclusion that the said view was approved by the Hon’ble Supreme Court and that the terms of reference in a given case cannot, in all cases, restrict the jurisdiction vested in the Tribunal under Section 10 of the Act. The Hon’ble Supreme Court also held that an Industrial Adjudicator acting within the limits of his jurisdiction, may also lift the veil so as to determine the nature of the employment of the concerned workman and accordingly, it can be concluded that the refusal of the learned Tribunal to go into a question of certain entitlement of the workman beyond the referred question cannot be upheld in law. 9. In view of such provisions of law, this Court is of the view that the conclusion of the learned Labour Court that it did not have the jurisdiction to determine the question as to whether the orders of reinstatement and confirmation were issued under duress, is found to be unacceptable. 10. 9. In view of such provisions of law, this Court is of the view that the conclusion of the learned Labour Court that it did not have the jurisdiction to determine the question as to whether the orders of reinstatement and confirmation were issued under duress, is found to be unacceptable. 10. But the said question need not detain the Court any further inasmuch as, in any view of the matter, the learned Labour Court had in fact determined the question. Therefore, in facts and circumstances of the present case, it is also necessary to determine the legality and validity of such determination of the learned Labour Court that the orders of reinstatement and confirmation were obtained under duress. 11. As already alluded the learned Labour Court by relying on the evidence of MW-1, MW-2, MW-3 and MW-4 had arrived at a conclusion that a group of workman had threatened the staffs and Manager and demanded reinstatement of the workman, which had resulted in the orders of 14.08.1990 and 16.08.1990. Further conclusion is that the learned Labour Court does not find any ground to disbelieve the evidences of the said Management witnesses. 12. On a perusal of the respective evidences laid by MW-1 to MW-4, it is noticed that in the cross examination of MW-1, a specific question was put as regards the evidence pertaining to a group of workman threatening to beat up the staff and the Manager of the garden. In this respect, questions were also put to the Management witnesses as to whether any FIR was lodged against the concerned workman, which was replied in the negative by the Management witnesses. Similar questions were also put to MW-2 as regards lodging of FIR and as to whether any proceeding was initiated against such other workman, who had indulged in the act of threatening. Further the workman in his evidence had clearly deposed that against such alleged act, the Management had filed a complaint case before the learned Chief Judicial Magistrate, Sonitpur u/s 630 of the Indian Companies Act etc, wherein also the workman was acquitted by holding that the Management could not prove the allegation of duress. The said judgment in the criminal case was also exhibited before the learned Labour Court. The said judgment in the criminal case was also exhibited before the learned Labour Court. Further, in paragraph-10 of his deposition, the workman had denied that after his initial termination, the workers had indulged in any act of violence in the garden and had gheraod the Manager’s office and that they had forced him to write letters of 14.08.1990 and 16.08.1990. 13. In view of the aforesaid contrary evidence available on record, the conclusion of the learned Labour Court that it does not find any ground to disbelieve the evidence of the Management witnesses is found to be incorrect to the extent that having not considered the contrary evidence, the learned Labour Court cannot arrive at a conclusion that it does not find any ground to disbelieve the evidence of the Management witnesses. 14. In view of such non-consideration of the relevant evidence from the workman side that there was neither any duress nor any overt act on the part of the workers to force the Management to issue the orders of reinstatement and confirmation, this Court deems it appropriate that the matter be remanded back to the learned Labour Court for an appropriate adjudication by appreciating the entire evidence on record. It is provided that as the matter is remanded back, if the parties desire and the learned Labour Court finds it appropriate, further evidence may be allowed to be adduced by either of the parties and the learned Labour Court on its appreciation, shall pass appropriate orders thereon. 15. In terms of the above, the award dated 27.04.2009 passed in Reference Case No.01/2001 by the learned Labour Court is accordingly set aside and the learned Labour Court is directed to adjudicate the matter afresh by retaining the evidence already adduced and if necessary by allowing the parties to adduce further evidence, as indicated above. 16. As the respondent Management had not appeared before this Court, it is provided that the learned Labour Court shall issue appropriate notice to the Management as well as to the workman before proceeding further with the matter. The subsequent exercise of a fresh adjudication be completed by the learned Labour Court within a period of six months from the date of receipt of a certified copy of this judgment and order. In terms of the above, the writ petition stands disposed of.