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2017 DIGILAW 396 (CAL)

Champdany Industries Ltd. v. State of W. B.

2017-04-17

RAKESH TIWARI, SHIVAKANT PRASAD

body2017
JUDGMENT : 1. This is an application for condonation of delay in filing the appeal. Since we find that sufficient cause has been shown, we condone the delay and allow G.A. No.1230 of 2017. 2. Now, the stay application being G.A. No.1238 of 2017 is taken up for hearing along with the appeal being APOT No.125 of 2017. 3. The appellant is a company having its registered office in Kolkata. The company, vide letter dated August 17, 1992, appointed Mr. Trilochan Pattanayak, the writ petitioner/ respondent no.3, as Electrical Supervisor on probation for a period of six months, which was extended on completion of the probationary period vide letter dated October 29, 1994 with effect from November 1, 1994 as Electrical Supervisor on contractual basis for a period of three years. This contractual period was further extended for three years by renewal of the contract vide letter dated July 21, 1997. But the employment of the respondent no.3 was brought to end on November 21, 1998 vide letter of the even date. 4. The contention of the learned counsel for the appellant is that the respondent no.3 was not a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the 1947 Act"). It is the further contention of the appellant that the respondent no.3, at the time of his termination from service, was drawing a salary of more than Rs.2500/- per month as he was discharging supervisory and managerial duties. 5. Admittedly, the conditions of service of the respondent no.3 were governed by the terms and conditions contained in the letters dated October 29, 1994 and July 21, 1997. The services of the respondent no.3 were terminated vide letter of the company dated November 21, 1998 enclosing therewith a cheque representing his one month's salary in lieu of one month's notice. 6. An industrial dispute was raised by the respondent no.3. The conciliation proceeding having failed, the matter was referred to the 4th Industrial Tribunal, Kolkata, by the order of reference dated July 29, 2005. The parties filed their respective written statements and also adduced evidence before the Tribunal who, after hearing the parties and considering the materials on record, passed an Award dated March 15, 2011 by holding the termination to be valid and justified. 7. The parties filed their respective written statements and also adduced evidence before the Tribunal who, after hearing the parties and considering the materials on record, passed an Award dated March 15, 2011 by holding the termination to be valid and justified. 7. Aggrieved by the aforesaid Award, the respondent no.3 herein preferred a writ petition before this Hon'ble Court under Article 226 of the Constitution of India, bearing W.P. No. 1034 of 2012 (Sri Trilochan Pattanayak v. The Fourth Industrial Tribunal & Ors.), wherein the affidavits were exchanged and ultimately the matter was taken up for final hearing on February 3, 2017, when the Hon'ble Court, inter alia, passed the following order: "The impugned award dated 15th March, 2011 of the Industrial Tribunal is set aside. The writ petitioner be immediately reinstated in the services of the company together with benefits consequential to this order, particularly provided in paragraph 9 of Mohan Lal v. The Management of M/s. Bharat Electronics Ltd.; reported in AIR 1981 SC 1253 to be paid within three months of communication of this order. The writ petitioner is to be reinstated immediately." 8. The judgment of the writ court is assailed on the ground that while passing the impugned order dated February 3, 2017, it failed to answer the jurisdictional issue as regards the status of the writ petitioner/respondent no.3 to invoke the jurisdiction under the 1947 Act and that as the respondent no.3 was a contractual employee, the Court could have granted the maximum relief of salary computation till the date of expiry of the contractual period of employment because of premature termination of the services, and not beyond that. 9. The Writ Court, after considering the nature of duties discharged by the workman, came to the conclusion that though he was designated as Electrical Supervisor but he was not discharging any managerial or administrative nature of duties. Hence, by virtue of the nature of his work, he would have been a workman and not a supervisory staff as he did not fall within the exceptional clause provided under section 2(s) of the 1947 Act. 10. The terms and conditions of service of the workman were as follows: "1. You will be responsible to Mr. K.K. Chatterjee and will work under his guidance and supervision. 2. 10. The terms and conditions of service of the workman were as follows: "1. You will be responsible to Mr. K.K. Chatterjee and will work under his guidance and supervision. 2. You will be paid a salary of Rs.800/- (Basic+D.A.), House Rent Allowance of Rs.300/- and Travelling Allowance of Rs.200/- per month for attending your duties from 10 a.m. to 6 p.m. from Monday to Saturday. You shall not be entitled to any other benefits. 3. This appointment is purely on probation for a period of six months and shall be reviewed upon satisfaction of the management after the completion of the probationary period of six months. 4. You will remain as a full time employee of the company during the period of this appointment and the company shall have the appropriate right to lend your service to any works of the company, as it may deem fit. 5. You will, during the period of your service with the company, diligently, faithfully and assiduously serve the company and perform your duties in efficient and faithful manner. Besides performing your duties as mentioned, you will be bound, as often as you may be required to make yourself generally useful in the performance of whatever suitable duties may from time to time be assigned to you by the Directors/Executives of the company. 6. You will not divulge any business secrets of the company to anybody and will obey all or any directions and orders of your Superior Officers. 7. Notwithstanding anything to the contrary herein contained, the company will at its sole discretion, be entitled to terminate your service with the company, at any time during the said period. 8. During the period of your service with the company you shall also not engage yourself in any other trade or unauthorized speculation or accept even any part time employment whether on payment of remuneration or in any honorary capacity with any other person, firm, company or institution, irrespective of whether any such part time employment be in regard to any commodity other than the commodities you may be called upon to deal with the company, under this appointment. You will also not act in any manner prejudicial to the interest of the company and/or its associates whether during or after office hours." 11. You will also not act in any manner prejudicial to the interest of the company and/or its associates whether during or after office hours." 11. It is crystal clear from the terms and conditions of service that the workman was appointed as an electrical supervisor in the company's works at VIP Road which was extended from November 1, 1994 for a period of three years under the following further terms and conditions: "1. You will be responsible to Mr. D.K. Maheshwari and will work under his guidance and supervision. 2. You will be paid a Basic Salary of Rs.750/- per month with an annual increment of Rs.25/- only. A fixed Dearness Allowance of Rs.475/- per month. A fixed House Rent Allowance of Rs.175/- per month. 3. You will contribute to the Champdany Provident Fund in accordance with the Rules of the Fund. 4. You will be entitled to leave of 28 days in a year with full pay provided that such leave will not be accumulated and will lapse in case it is not availed of within any particular year unless mutually agreed otherwise from time to time. 5. You will be entitled to Sick leave in every year with half pay for not more than 14 days in all on Medical Certificate obtained from Medical Practitioner registered under the Bengal Medical Act, 1914 or any other law for the time being in force. 6. The company will have the right to transfer you from one Department to another and/or from one place to another in similar cadre, as may be deemed fit by the company, and you will be bound to accept such transfer. 7. You will be covered by ESI Scheme towards your Medical benefit. 8. You will not divulge any business secrets of the company to anybody and will obey all or any directions and orders of your Superiors of the company. 9. You will during the period of service with the company, diligently, faithfully and assiduously serve the company and perform your duties in efficient and faithful manner. Besides performing your duties as mentioned, you will be bound, as often as you may be required, to make yourself generally useful in the performance of whatever suitable duties which may, from time to time, be assigned to you by your Superiors of the company. 10. Besides performing your duties as mentioned, you will be bound, as often as you may be required, to make yourself generally useful in the performance of whatever suitable duties which may, from time to time, be assigned to you by your Superiors of the company. 10. During the period of your service with the company, you will also bind yourself not to engage yourself in any trade, business or other work, office or employment of profit directly or indirectly either by yourself or by your agents, friends and/or relatives, during or outside office hours. 11. This employment will remain in force for a period of three years, as stated herein above. Notwithstanding anything to the contrary herein contained, the company will, at its sole discretion be entitled to terminate your service with the company at any time during the said period after giving one month's notice in writing or one month's salary in lieu thereof with or without assigning any reasons for such termination or earlier determination. You will also have the right to leave the organization upon giving one month's notice from your side in writing. 12. All or any disputes and differences arising between yourself and the company with regard to and/or in connection with and/or in relation to your service with the company and/or relating to the terms and conditions herein contained or otherwise, whether at the time of such disputes and differences, the service of yourself with the company and/or this agreement be subsisting or not, shall be referred to the sole arbitration by an Arbitrator appointed by the company, as the case may be, entirely at the company's discretion and/or convenience and the decision of such arbitration shall be final and binding in any event on both yourself and the company in all respects. 13. Both the parties bind and oblige themselves to fulfil their respective parts of the promises in each other under the penalty of Rs.1400/- in name of liquidated damages to be paid by the party failing to the party performing or willing to perform the same over and above performance." 12. It is settled law that designation does not matter by the status of workman is decided by actual nature of duties performed by him. It is settled law that designation does not matter by the status of workman is decided by actual nature of duties performed by him. The Court, noticing the definition of workman under section 2(s) of the 1947 Act found that, from the letter of appointment, as quoted above, though the workman was appointed and designated as electrical supervisor, but he was actually working under Sri K.K. Chatterjee who was his supervisor. He was not discharging any administrative or supervisory nature of duties. Therefore, the services of the workman concerned were illegally terminated for not complying with the mandatory conditions of conditions precedent to retrenchment under the 1947 Act as has rightly been held by the Writ Court. 13. On a query being made, learned counsel for the appellant could not show that the workman fell into any of the exceptions to the definition of "workman" so as to exclude him from the rigours of section 2(s) of the 1947 Act by proving that he was actually discharging supervisory or managerial nature of duties. 14. For the reasons stated above, we do not find any illegality and/or infirmity in the order of the learned Single Judge. The appeal and the connected stay application accordingly are dismissed.