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2020 DIGILAW 506 (JHR)

Tata Refractories Ltd. v. Presiding Officer

2020-05-19

RONGON MUKHOPADHYAY

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JUDGMENT : RONGON MUKHOPADHYAY, J.:— Heard Mr. Amitabh, learned counsel for the petitioner and Mr. Manish Kumar, learned counsel appearing for the respondent no. 2. 2. This writ application is directed against the award dated 13.11.2000 passed by the learned Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 4 of 1994 by which the reference has been answered against the management which has been directed to reinstate the workman concerned with full back wages and continuity of service. 3. The Government of Bihar, Department of Labour Employment and Training vide notification dated 17.02.1994 had referred the following disputes for adjudication before the Labour court: “Whether Sri. M. A. Kumar, Senior Section Officer, Tata Refractories Limited, Jamshedpur is a workman under the Industrial Disputes Act, 1974? If so whether the termination of his service is proper? If not, what relief he is entitled to?” 4. In the written statement filed by the Management it has been stated that the respondent no. 2 had joined in the Jamshedpur Office of the petitioner company on 16.09.1981 in the capacity of “Senior Confidential Assistant” in the Officer Cadre on a monthly salary of Rs. 1160/- besides other allowances as per the letter of appointment dated 01.08.1981. The respondent no. 2 was subsequently promoted to the post of “Personal Assistant to the Managing Director” and thereafter further promoted to the post of Senior Section Officer and drawing a monthly salary of more than Rs. 4,800/-. 5. On the request of respondent no. 2 he was given an advance of Rs. 30,000/- by the company for purchasing of a car during the year 1988. On receiving the loan he purchased the car bearing Registration No. BET 58 and started getting car allowance from the company w.e.f. 02.04.1988. It has been stated that M/s. Shri Ram Travels was an official taxi provider to the company for local movement of the officers of the company at Jamshedpur. The respondent no. 2 was authorized to manage such car on hire and passing of bills for payment. On several occasions the respondent no. 2 instead of hiring car from M/s. Shri Ram Travels used to engage his car no. BET 58 for use by the officers of the company and used to draw payments by way of hire charges of his car. The respondent no. 2 at the same time used to draw car allowance. On several occasions the respondent no. 2 instead of hiring car from M/s. Shri Ram Travels used to engage his car no. BET 58 for use by the officers of the company and used to draw payments by way of hire charges of his car. The respondent no. 2 at the same time used to draw car allowance. It has been stated that the respondent no. 2 on several occasions had received payment for hire charges of car by forging the date slips and booking fake vehicle number though on such occasions he used his own car. On account of hire charges of the car the respondent no. 2 received a cash payment of Rs. 4,576/- during the period 13.11.1989 to 28.12.1989 though as per the procedure all payments should be made by cash. 6. It has further been stated by the management as per the rules of the company any employee having his own house within 10 km from the factory or the office is not entitled to occupy company's quarter. The respondent no. 2 is the owner of a flat at Housing Complex, Adarsh Nagar, Sonari, Jamshedpur which is within a radius of 5 km from the office he was working but he had concealed the said fact and had occupied a quarter of the company. 7. Contrary to the rules of the company, the respondent no. 2 by suppressing that he owns a house at Jamshedpur applied and received a house building loan of Rs. 82,000/- in two installments on 28.02.1989 and 22.06.1989 for the purchase of a house in Kerala. 8. An enquiry was conducted and as per the directions of the Managing Director of the company an order of termination was issued to the respondent no. 2. It has been stated that after two years from the date of termination a dispute was raised by the respondent no. 2 which ultimately was referred by the appropriate government for adjudication before the Labour court. 9. In the written statement filed on behalf of the respondent no. 2 it has been stated that prior to his joining in the petitioner-company he had worked in Tisco for about fifteen years. Although he was designated on various posts which were ornamental in nature his primary function was of taking dictation from his superior and typing. It has also been stated that the respondent no. 2 it has been stated that prior to his joining in the petitioner-company he had worked in Tisco for about fifteen years. Although he was designated on various posts which were ornamental in nature his primary function was of taking dictation from his superior and typing. It has also been stated that the respondent no. 2 was not assigned with the duty to supervise the work of any employee working in the office nor he had any control over them. He was also not assigned with the responsibility to distribute work to any employee in the office nor was he supervising their performances. It has further been stated that the respondent no. 2 was not empowered to recommend or grant leave, annual increment etc. of any employee or to initiate departmental proceeding. 10. In the rejoinder filed by the management the averments made in the written statement has basically been reiterated and so is the rejoinder filed on behalf of the respondent no. 2. 11. It has been stated by Mr. Amitabh, learned counsel for the petitioner that the respondent no. 2 was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The respondent no. 2 used to control and supervise the work of all office staffs working under him and dealt in cash in connection with various matters including hiring of car and looking after the affairs of the guest house of the company. Learned counsel has further argued that the witnesses have stated about the supervisory nature of job of respondent no. 2 as at the relevant time ten employees were working under him and the respondent no. 2 also used to forward leave application of the employees. 12. Mr. Amitabh, further submits that while terminating the service of the respondent no. 2 the management considered the nature of job performed by him which was confidential in nature and that was the reason the management took into consideration only the loss of confidence while terminating his services. The issue of loss of confidence was raised before the Labour court but according to the learned counsel for the petitioner the same was not properly considered. It has been stated that the acceptance of guilt by the respondent no. 2 even after the order of termination would only tantamount to a finding that the termination of respondent no. 2 was just and proper. Mr. It has been stated that the acceptance of guilt by the respondent no. 2 even after the order of termination would only tantamount to a finding that the termination of respondent no. 2 was just and proper. Mr. Amitabh, submits that the petitioner in terms of the directions of this Court has been paid wages as per Section 17(B) of the Industrial Disputes Act till the date of superannuation of the respondent no. 2 i.e. 02.05.2006. He further adds that the respondent no. 2 was engaged by Orient Abrasions Limited at Jamshedpur and he was doing various commercial negotiations for procurement of refractory grade raw material by the Tata Steel Limited during 1995 till 2006-07 heading there Jamshedpur marketing. It has been concluded by stating that suits were also filed by the management for recovery of vehicles loan and home loan which were decreed in favour of the management. 13. Mr. Manish Kumar, learned counsel appearing for the respondent no. 2 has stated that the respondent no. 2 was rightly held to be a workman as no document could be produced by the management before the Labour court which would indicate that the respondent no. 2 was engaged in supervisory nature of job. It has been submitted that no charge-sheet was issued by the management and no domestic enquiry was held. The entire exercise undertaken by the management was in violation of the principles of natural justice which the Labour court had properly considered. 14. The learned counsel for the respective parties having been heard at length the documents relied upon by them have also been perused. The learned Labour court while adjudicating the dispute had framed the following issues: (i) Whether Mr. M. A. Kumar is a workman within the meaning of the term workman as defined in the Industrial Disputes act? (ii) Whether the officer who has passed the termination order and the officer who has issued the termination letter were competent? (iii) Whether the termination of services of the workman Mr. M.A. Kumar is justified? (iv) Whether the workman is entitled for any relief? 15. It is to be seen at first as to whether the learned Labour court had rightly concluded that the respondent no. 2 is a workman. It is the consistent case of the management that the respondent no. 2 was acting in an administrative and supervisory capacity. M.A. Kumar is justified? (iv) Whether the workman is entitled for any relief? 15. It is to be seen at first as to whether the learned Labour court had rightly concluded that the respondent no. 2 is a workman. It is the consistent case of the management that the respondent no. 2 was acting in an administrative and supervisory capacity. Oral evidence of the management witnesses have tried to project such picture which, however, has not been backed up by any substantive document. Mr. Manish Kumar, learned counsel for the respondent no. 2 has relied upon the case of National Engineering Industries Limited v. Shri Kishan Bhageria reported in 1988 Supp SCC 82 wherein it was held: “7. In D.P. Maheshwari v. Delhi Administration the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision of behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. See in this connection Black's Law Dictionary, Special Deluxe, Fifth Edition. At Page 1290, “Supervisor” has been described, inter alia, as follows: “In a broad sense, one having authority over others, to superintend and direct. The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 8. Reference may be made to the observations of this Court in Ved Prakash Gupta v. Delton Cable India (P) Ltd. There on facts a Security Inspector was held to be a workman. At page 575 of the report this Court referred to the decision in Llyods Bank Ltd. v. Panna Lal Gupta and also the observations of this Court in Hind Construction and Engineering Co. Ltd. v. Workmen. At page 575 of the report this Court referred to the decision in Llyods Bank Ltd. v. Panna Lal Gupta and also the observations of this Court in Hind Construction and Engineering Co. Ltd. v. Workmen. In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors to the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory. There it was found that he had no power to appoint. 9. In the instant case the evidence has been summarised by the Division Bench. Reference may be made to pp. 65, 73, 80, 84 to 94, 95, 96 and 97 of the paper book which indicate the nature of duties performed by respondent 1, herein. His duties were mainly, reporting and checking up on behalf of the management. A reporter or a checking clerk is not a supervisor. The respondent herein does not appear to us to be doing any kind of supervisory work. He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company. In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor. That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Article 136 of the Constitution. It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench. Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date May 14, 1976 where the respondent reported that certain materials were lying in stores department in absence of any decision. Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date May 14, 1976 where the respondent reported that certain materials were lying in stores department in absence of any decision. It was further reiterated that on inspection of the pieces those pieces were found cracked. Similarly, our attention was drawn to several other letters and we have perused these letters. We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent. A checker on behalf of the management or employer is not a supervisor.” 16. In the present case the respondent no. 2 was designated as Senior Section Officer which post he was holding at the time of his termination. The duties and responsibilities the respondent no. 2 was entrusted with was taking dictation from the Dy. General Manager (Co-ordination) ensuring proper maintenance of company vehicles and others equipment like telephone/telex etc. to arrange printing of office stationery and ensuring its availability, proper supervision and maintenance of officers rest house and procurement of provision etc. as well as rendering the accounts for the expenditure, to make all travel arrangements for senior officers including transport and accommodation, verification of all bills including those of telephone/telex and ensuring their prompt payment, coordination of various meetings and taking necessary steps in this regard to attend to matters relating to Bihar Shops and Establishment Act and to obtain requisite approval in connection with such duties. 17. The duties and responsibilities of the respondent no. 2 as enshrined above merely indicates various works which were to be performed by the respondent no. 2 on the orders of the management. His job basically was of a coordinator. There was no string of supervision attached to his job. There was no independent authority imposed upon him by the management. He could not take any decisions which would bind the company. The designation of the respondent no. 2 was rather incongruous if compared to the nature of job he performed which was neither managerial nor supervisory. The issue no. (i) as framed by the learned Labour court was thus rightly answered in favour of the respondent no. 2. 18. The issue no. The designation of the respondent no. 2 was rather incongruous if compared to the nature of job he performed which was neither managerial nor supervisory. The issue no. (i) as framed by the learned Labour court was thus rightly answered in favour of the respondent no. 2. 18. The issue no. (ii) framed by the learned Labour court does not require to be spared a thought as it is not a matter of challenge before this Court by the management and rightly so. 19. So far as issue no. (iii) is concerned, learned counsel for the petitioner has stated that the act of the concerned workman led to loss of confidence upon the workman by the management. In this context, he has referred to the case of Regional Manager Rajasthan State Road Transport Corporation v. Sohan Lal reported in (2004) 8 SCC 218 wherein it was held as follows: “10. We notice from the finding of the Industrial Tribunal that the respondent workman had indulged in misconduct which has not only led to monetary loss to the Corporation but the Corporation has also lost confidence in the said workman. Therefore, to continue such an employee in the employment of the Corporation by virtue of a judicial order, in our opinion, is an act of misplaced sympathy which can find no foundation in law or in equity. The finding that the workman has committed the misconduct in question of not issuing tickets to passengers is a finding of fact arrived at by the Tribunal after taking into consideration the evidence recorded therein. This finding was affirmed by the learned Single Judge and the High Court has not set aside the finding. Therefore, the question of moulding the relief on the facts of this case did not arise at all. The offer of the respondent to forgo the back wages in lieu of his being reinstated is not an offer to be taken into consideration by the Court unless and until the finding of the Tribunal on misconduct was set aside and having perused the records including the order of the Tribunal, we are satisfied that this is not one of those cases in which there was room for setting aside such a finding.” 20. The concerned workman in the case under reference was engaged on daily wages and his services were terminated on the ground that the same were not required by the corporation. It was the specific case of the management that the termination was permissible as per the terms of the letter of appointment. The corporation was also permitted by the Tribunal to lead evidence to justify the charge of misconduct which was ultimately proved. In the present case the concerned workman had joined the company on 16.09.1981 and he was terminated vide letter dated 15.01.1990. Undoubtedly, the concerned workman was a permanent employee of the company and the back drop of his termination was a purported enquiry having been conducted by the management to look into the misconduct committed by him. Even before the learned Labour court the management had adduced both oral and documentary evidence but has failed to justify the absence of a departmental enquiry. Merely by stating that the management has lost confidence on the concerned workman unilaterally without giving any opportunity of hearing to the workman will not cater to the principles of nature justice. 21. Reliance has also been placed in the case of Bharat Heavy Electricals Limited v. M. Chandrashekhar Reddy reported in (2005) 2 SCC 481 wherein it was held as follows: “20. In Francis Klein & Co. (P) Ltd. this Court held : (SCC pp. 573-74, para 3) “In our view when an employer loses confidence in his employee, particularly in respect of a person who is discharging an office of trust and confidence, there can be no justification for directing his reinstatement. xxxxxxxx Even this direction is not a valid direction because if once the company has lost confidence in its employee it is idle to ask them to employ such a person in another job. What job can there be in a company which a person can be entrusted with and which does not entail reposing of confidence in that person.” 21. In Janatha Bazar (South Kanara) this Court held : (SCC pp. 520-21, paras 6 & 8) “Once an act of misappropriation is proved, maybe for a small or large amount, there is no question of showing uncalled-for sympathy and reinstating the employees in service. Law on this point is well settled. xxxxxxxxx In case of proved misappropriation, in our view, there is no question of considering past [service] record. 520-21, paras 6 & 8) “Once an act of misappropriation is proved, maybe for a small or large amount, there is no question of showing uncalled-for sympathy and reinstating the employees in service. Law on this point is well settled. xxxxxxxxx In case of proved misappropriation, in our view, there is no question of considering past [service] record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases.” 22. Again the above referred case is clearly distinguishable with the present case since the misconduct which was alleged and proved leading to termination of service since the employer lost confidence on the delinquent employee as a domestic enquiry acted as a prologue to such termination. 23. Another case which has been referred to by the learned counsel for the petitioner is Ramesh Chandra Sharma v. Punjab National Bank reported in (2007) 9 SCC 15 as well as the case of Divisional Controller, Karnataka State Road transport Corporation v. M.G. Vittal Rao reported in (2012) 1 SCC 442 . 24. In both the cases under reference departmental proceedings were duly conducted as such the question of violation of the principles of natural justice did not arise. 25. Loss of confidence of an employer over the employee attaches a stigma to the career of the employee and if such loss of confidence leads to termination of the services of an employee it should unerringly be preceded by a domestic enquiry in which the delinquent employee also participates. Mr. Manish Kumar, in this context, has referred to the case of Chandu Lal v. The Management of Pan American World Airways Inc., reported in (1985) 2 SCC 727 wherein it was as follows: “8. It is difficult to agree with the finding of the Labour Court that when service is terminated on the basis of loss of confidence the order does not amount to one with stigma and does not warrant a proceeding contemplated by law preceding termination. Want of confidence in an employee does point out to an adverse facet in his character as the true meaning of the allegation is that the employee has failed to behave up to the expected standard of conduct which has given rise to a situation involving loss of confidence. Want of confidence in an employee does point out to an adverse facet in his character as the true meaning of the allegation is that the employee has failed to behave up to the expected standard of conduct which has given rise to a situation involving loss of confidence. In any view of the matter this amounts to a dereliction on the part of the workman and, therefore, the stand taken by the Management that termination for loss of confidence does not amount to a stigma has to be repelled. In our opinion it is not necessary to support our conclusion by reference to precedents or textual opinion as a common-sense assessment of the matter is sufficient to dispose of this aspect. “Retrenchment” is defined in Section 2(oo) of the Industrial Disputes Act and excludes termination of service by the employer as a punishment inflicted by way of disciplinary action. If the termination in the instant case is held to be grounded upon conduct attaching stigma to the appellant, disciplinary proceedings were necessary as a condition precedent to infliction of termination as a measure of punishment. Admittedly this has not been done. Therefore, the order of termination is vitiated in law and cannot be sustained.” 26. The management has relied upon two letters issued by the concerned workman. The first letter which is Exhibit M/9 is a letter indicating the circumstances compelling the workman to provide his own vehicle for use of the company. The second letter dated 01.02.1990 was issued after the issuance of the termination letter dated 15.01.1990. The content of the second letter dated 01.02.1990 cannot be ascribed with acceptance of guilt rather the same can be considered to be a last ditch effort made by the workman to save his employment. Much importance, therefore, cannot placed with the letters issued by the workman concerned. The issue no. (iii) as formulated by the learned Labour court is also answered in favour of the concerned workman. 27. The learned Labour court while directing reinstatement of the concerned workman had also given a direction for payment of full back wages. 28. Mr. Amitabh, learned counsel for the petitioner has put reliance in the case of Rajasthan State Road Transport corporation, Jaipur v. Phool Chand (Dead) Through LRs reported in (2018) 18 SCC 299 : AIR 2018 SC 4534 wherein it was held as follows: “11. 28. Mr. Amitabh, learned counsel for the petitioner has put reliance in the case of Rajasthan State Road Transport corporation, Jaipur v. Phool Chand (Dead) Through LRs reported in (2018) 18 SCC 299 : AIR 2018 SC 4534 wherein it was held as follows: “11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board v. Jarina Bee (Smt.), (2003) 6 SCC 141 : ( AIR 2003 SC 2657 ), G.M. Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 : ( AIR 2005 SC 3966 ), U.P. State Brassware Corporation v. Uday Narain Pandey, (2006) 1 SCC 479 : ( AIR 2006 SC 586 ), J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 : (2007 AIR SCW 1357), Metropolitan Transport Corporation v. V. Venkatesan, (2009) 9 SCC 601 : ( AIR 2010 SC 206 ), Jagbir Singh v. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 ) : ( (2009) 15 SCC 327 : AIR 2009 SC 3004 ) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.), (2013) 10 SCC 324 : (2013 AIR SCW 5330). 15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. 15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer).” 29. When can back wages be granted was also considered in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 wherein it was held thus: “38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.” 30. In the said case a specific pleading was made by the workman concerned that there she was not gainfully employed anywhere and the management had not controverted the same. In the present case there is no such pleading made by the workman concerned either in the written statement or in the rejoinder. Learned labour court had without any reason directed payment of full back wages to the workman concerned. This was against the guidelines given in the case of Rajasthan State Road Transport corporation, Jaipur v. Phool Chand (Dead) Through LRs (Supra) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (Supra). In such view of the matter, therefore, the grant of full back wages to the workman concerned was an illegality and which is accordingly set aside. 31. To sum up, therefore, the impugned award dated 13.01.2000 passed by the learned Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 4 of 1994 is affirmed so far as the order of reinstatement and continuity of service are concerned. However, the respondent no. 2 shall not be entitled to the back wages in view of the reasoning noted above. 32. This writ application stands disposed of.