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2021 DIGILAW 244 (ORI)

Niranjan Sahoo v. State Of Odisha

2021-06-11

S.K.PANIGRAHI, S.PANDA

body2021
JUDGMENT S.K. Panigrahi, J. - The petitioner by way of this writ petition, has prayed for modification of the judgement and award dated 31.12.2016 in I.D. Case No.32 of 2015 passed by the learned Presiding Officer, Labour Court, Bhubaneswar, where the Opposite Party No.2 has been directed to reinstate the petitioner in his service and pay 50% of his back wages. The modification sought for is only to the extent of the back wages. The petitioner seeks 100% back wages and a suitable direction to that effect. 2. The factual conspectus of the present petition hovers around the order of termination of the petitioner w.e.f. 18.02.2014 which is alleged to have been passed in a mechanical manner without application of mind and thereby illegal and the domestic enquiry, neither fair nor proper. The petitioner was posted as the District Manager of Maxxim Division by the management of M/s. Ranbaxi Laboratories Ltd. (hereinafter 1st party management no.1 ). Moreover, he is also a bonafide member of Odisha Sales Executives Association which has been affiliated to All India Federation of Sales Executive Associations, both of which are registered Trade Unions. While attending the meeting dated 27.07.2012 in Mumbai relating to review of sales, the petitioner was asked to sign on the letter consisting the minutes of the meeting. The petitioner refused to sign on the same after realising that the contents were not in consonance with the discussion in the meeting. On 29.05.2013, the petitioner received a show cause notice from the Zonal Manager, HR of the 1st party management no.1. The petitioner has emphasised that during this period, he had received letters of commendation from his superiors in the month of August, September, October 2012 and June 2013. In addition to that he was invited for promotion to the next level vide e-mail dated 15.02.2013. 3. The show cause reply submitted by the petitioner was not accepted by the 1st party management no.1 and charge was framed against him and he was put under suspension vide charge sheet dated 19.07.2013. The petitioner in his reply to 1st party management no.1 informed that the allegations made in the charge sheet are not specific but vague and general in nature. An advocate was engaged to conduct domestic enquiry against the petitioner. The petitioner in his reply to 1st party management no.1 informed that the allegations made in the charge sheet are not specific but vague and general in nature. An advocate was engaged to conduct domestic enquiry against the petitioner. The petitioner in his submission prayed before the 1st party management no.1 to be allowed to be represented by anyone of the office bearer of his Trade Union against the domestic enquiry. However, his plea was ignored by the 1st party management no.1. The petitioner has alleged that the domestic enquiry was conducted on 03.08.2013 and 31.08.2013 violating the principles of natural justice and was only an eyewash. The list of witnesses and documents relied on by the 1st party management no.1 during the domestic enquiry were not provided to the petitioner. Further, no minutes of enquiry was supplied to him. Thereafter the termination letter dated 18.02.2014 was issued to the petitioner. 4. The Odisha Sales Executive Association raised an industrial dispute before the DLO, Cuttack against the illegal suspension and subsequent termination of the petitioner. The said dispute was admitted into conciliation on 18.08.2014. Due to non-cooperation of the 1st party management no.1, the conciliation failed and failure report was submitted to the appropriate authority. The Government of Odisha in the Labour and E.S.I. Department, in exercise of powers conferred upon it by Section 12(5) r/w Section 10(1)(c) of the Industrial Disputes Act, 1947 referred the following dispute for adjudication by the Labour Court, Bhubaneshwar vide Letter No.4643-IR(ID)-16/2015/LESI dated 22.05.2015. Thereafter, Sun Pharmaceuticals Industries Ltd. (hereinafter 1st party management no.2 ) entered the law suit and filed show cause. Pursuant to a scheme of arrangement between the erstwhile 1st party management no.1 and 1st party management no.2, effective on 24.03.2015, they were merged and 1st party management no.1 lost its identity. 5. Following the submission of the claim statement by the petitioner, written statement by the Opposite Party No.2 and the subsequent Rejoinder by the petitioner, the Labour Court framed seven issues which are as follows: i. Whether the Sun Pharmaceutical Industries Ltd. is bound by the present reference? ii. Whether this Court has jurisdiction to decide the reference? iii. Whether the second party is coming under the definition of workman as definedU/s 2(s) of the ID Act, 1947? iv. ii. Whether this Court has jurisdiction to decide the reference? iii. Whether the second party is coming under the definition of workman as definedU/s 2(s) of the ID Act, 1947? iv. Whether the first party management no.1 has followed the principle of natural justice during the enquiry conducted against the second party? v. Whether the domestic enquiry conducted by the first party management no.1 against the 2nd party is just and fair? vi. Whether the termination of the services of the second party-petitioner by the 1st party management no.1 w.e.f. 18.02.2014 is legal or justified? vii. If not, to what relief the workman is entitled? The learned Labour Court has decided all the seven issues in favour of the workman. However, while replying to Issue no.7, the Labour Court held that the there is no evidence that after the termination of the petitioner, he tried for his engagement under any other company. Additionally, he has not contributed anything to the 1st party management after his termination. Hence, he is only entitled to 50% back wages. The petitioner has approached the Court regarding the modification of the same. 6. Learned Counsel for the petitioner submits that the petitioner after his termination from services, did try for his engagement in some other company but unfortunately, he did not succeed, and therefore the evidence of his attempts for getting engaged does not have any relevance to the dispute in question. The petitioner has repeatedly maintained that he was not gainfully employed after the termination of service. The Opposite Party management has also never objected to this nor did they provide any evidence to this effect. Further, after being terminated, the petitioner was deprived of any scope to contribute to the Company. After the end of the domestic enquiry on 31.08.2013, the management remained silent for five months before issuing the 2nd show cause notice on 31.01.2014. During this period, the petitioner wrote two letters to the 1st party management no.1 dated 08.11.2013 and 07.01.2014 appealing therein to reinstate him into services. However, the management did not heed to his appeal. The petitioner was deliberately and intentionally deprived of working for the company, for which he has no fault at all. Hence, the award of the learned Labour Court wherein the petitioner was granted 50% back wages needs to be modified to full back wages in the interest of justice. 7. However, the management did not heed to his appeal. The petitioner was deliberately and intentionally deprived of working for the company, for which he has no fault at all. Hence, the award of the learned Labour Court wherein the petitioner was granted 50% back wages needs to be modified to full back wages in the interest of justice. 7. Learned Counsel for the Opposite Party No.2 submits that the State Government vide order dated 22.05.2015 refers to 1st party management no.1. Prior to the date of reference 1st party management no.1 had already been amalgamated with 1st party management no.2 and there was no existence of the said management on the date of reference. Therefore, without the rectification of the reference by the appropriate authority of State Government, the said proceeding against 1st party management no.2 was beyond the scope and purview of reference and the impugned award having been passed without jurisdiction is a nullity. He has further submitted that the petitioner was entitled to benefits and allowance and his responsibility was in lines with that of a Manager and as such cannot be termed as a workman. Therefore, the petitioner is not a workman as per the definition as laid down u/s 2(s) of the Industrial Disputes Act, 1947, and thereby the award is not maintainable. Thus, the impugned award is a result of gross abuse of process of law and misrepresentation by petitioner and is also perverse to the materials available on record. Hence, the award passed by the learned Presiding Officer, Labour Court, Bhubaneswar should be set aside. 8. The first issue pertains to the reference of 1st party management no.2 as a party to the suit when it was not present in the reference by the appropriate authority of the State Government. It has been brought into notice that pursuant to a scheme of arrangement effective on 24.05.2015, 1st party management no.1 was merged with 1st party management no.2, which was also cleared during the investigation. Further, it was clarified that there is no existence of the 1st party management no.1. The learned Counsel for the Opposite Party No.2 has strictly contended that without the rectification of the reference by the appropriate authority of State Government, the said proceeding against 1st party management no.2 was beyond the scope and purview of reference. Further, it was clarified that there is no existence of the 1st party management no.1. The learned Counsel for the Opposite Party No.2 has strictly contended that without the rectification of the reference by the appropriate authority of State Government, the said proceeding against 1st party management no.2 was beyond the scope and purview of reference. However, it needs to be emphasised that the employees of the 1st party management no.1 continued in their service under 1st party management no.2 and the management of the erstwhile 1st party management no.1 was also taken over similarly. This, in turn, indicates the obligation of the 1st party management No.2 towards the management of the 1st party management No.1. Further, in the case of M/s Ranbaxy Laboratories Ltd. vs M/s. Sun Pharmaceuticals Industries Ltd. [1], the Court has extracted the relevant clauses of the Scheme of Arrangement wherein it has been clearly provided that the 1st party management no.2 is bound by the legal proceeding pending against the 1st party management no.1. Therefore, the reference by the appropriate authority of State Government against 1st party management no.1 is binding on the 1st party management no.2. 9. The second issue pertains to jurisdiction of this Court to decide the reference. The learned Counsel for the Opposite Party No.2 has contended that in the appointment letter Ext.C at Clause 18, it has been clearly mentioned that any dispute arising between the company and the petitioner with regard to interpretation of the letter or in the matter with regard to any claim or payment or damages etc. shall only be dealt with and adjudicated upon by the Courts functioning in Delhi. However, as rightly pointed out by the learned Presiding Officer of the Labour Court, it is a settled principle of law that the parties cannot exclude the jurisdiction of a Court by an agreement when a Court has got jurisdiction under an Act. The Government of Odisha in the Labour and E.S.I. Department, in exercise of powers conferred upon it by Section 12(5) r/w Section 10(1)(c) of the Industrial Disputes Act, 1947 referred the following dispute for adjudication by the Labour Court, Bhubaneshwar vide letter No.4643-IR(ID)-16/2015-LESI dated 22.05.2015. Section 10. The Government of Odisha in the Labour and E.S.I. Department, in exercise of powers conferred upon it by Section 12(5) r/w Section 10(1)(c) of the Industrial Disputes Act, 1947 referred the following dispute for adjudication by the Labour Court, Bhubaneshwar vide letter No.4643-IR(ID)-16/2015-LESI dated 22.05.2015. Section 10. Reference of disputes to Boards, Courts or Tribunals.- (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,-- (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication. Section 12. Duties of conciliation officers. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. Therefore, this Court has ample jurisdiction to decide the dispute raised by the petitioner in the present reference. 10. The third issue pertains to whether the petitioner falls under the provision of workman u/s 2(s) of the Industrial Disputes Act, 1947. The learned Counsel for the Opposite Party No.2 has contended that the petitioner was entitled to benefits and allowance and his responsibility was in lines with that of a Manager and as such cannot be termed as a workman. He has further contended that the petitioner was supervising the works of the Territory Executives working under him and he was performing his duty in managerial and administrative cadre. It is well settled principle of law that designation or name of the post is not material while dealing with the question of person being workman. He has further contended that the petitioner was supervising the works of the Territory Executives working under him and he was performing his duty in managerial and administrative cadre. It is well settled principle of law that designation or name of the post is not material while dealing with the question of person being workman. The main duties the employee is performing is the criteria to determine whether he falls within the category of workman in the I.D.Act. In S.K. Maini vs Carona Sahu Co. Ltd, (1994) AIR SC 1824 , the Supreme Court has held as under: 9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. Additionally, Labour Court has rightly relied on the case of Hussan Mithu Mhasvadkar vs Bombay Iron & Steel Labour Board, (2001) AIR SC 3290 . wherein the Supreme Court held that: 10. No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him. 11. wherein the Supreme Court held that: 10. No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him. 11. Even if the whole Undertaking be an Industry, those who are not workmen by definition may not be benefited by the said status. It is the predominant nature of the services that will be the true and proper test. In the present case, during witness hearing and cross-examination, it was admitted the petitioner was engaged in tasks which do not fall under personnel in managerial cadre and further was abstained from certain powers reserved for personnel in managerial or administrative position. Firstly, there are no documents before the Court to indicate that the territory executives were reporting to the petitioner and the latter was supervising their works. Moreover, the target for sale was fixed for the petitioner by the management from time to time. Further, the petitioner did not have any authority to sanction leave of the territory executive, nor take any disciplinary action against them. In addition to that, the petitioner had no role to play in formulating sales strategy, but he had the duty to execute through his team. Therefore, it can be established that the petitioner is a workman as defined u/s 2(s) of the Industrial Disputes Act, 1947. 11. The fourth and fifth issue pertain to the compliance to the principle of natural justice and the legality of the domestic enquiry. In the case of Laxmi Shankar Pandey vs Union of India And Ors, (1991) AIR SC 1070. , the Supreme Court held that: 6. ....It is laid down that such enquiries must be conducted in accordance with the principles of natural justice and that a reasonable opportunity to deny the guilt and to cross-examine the witnesses produced and examined, should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the mode of enquiry. From the witness examination and cross-examinations, it has been admitted that there were several flaws in the process of domestic enquiry followed by the 1st party management no.1. From the witness examination and cross-examinations, it has been admitted that there were several flaws in the process of domestic enquiry followed by the 1st party management no.1. The 1st party management no.1 has failed to produce the depositions of the witnesses recorded by the Enquiry Officer during the enquiry before the Court. It has been further admitted that the Enquiry Officer had not sent any notice to the petitioner for the domestic enquiry conducted against him. Therefore, there is a clear violation of the principle of natural justice. It is a settled law that in case the violation of principle of natural justice leads to hampering the domestic enquiry where the accused is not provided with a reasonable opportunity to defend himself, such a proceeding shall be held as null and void. In the present case, 1st party management no.1 has violated the principle of natural justice and the domestic enquiry is thereby held as null and void. 12. The sixth issue pertains to the legality of termination of the petitioner. From the issues discussed above, it is clear that the petitioner is a workman u/s 2(s) of the Industrial Disputes Act, 1947 and therefore, has the right to challenge his termination. Further, it has been proven that the 1st party managements have violated the principle of natural justice and the domestic enquiry has been thereby held as null and void. Hence, the termination of the petitioner by the 1st party management no.1 is illegal and not justified. Further, considering that the management of the 1st party management no.1 is binding on the 1st party management no.2, the latter shall be liable for the illegal termination of the petitioner. 13. The seventh issue pertains to the benefits the petitioner is entitled to, considering that the termination was illegal. The learned Labour Court has decided all the seven issues in favour of the workman. However, while replying to Issue No.7, the Labour Court held that there is no evidence that after termination of the petitioner, he tried for his engagement under any other Company. Additionally, he has not contributed anything to the 1st party management after his termination and hence, he is only entitled to 50% back wages. However, while replying to Issue No.7, the Labour Court held that there is no evidence that after termination of the petitioner, he tried for his engagement under any other Company. Additionally, he has not contributed anything to the 1st party management after his termination and hence, he is only entitled to 50% back wages. However, it is a settled principle of law that in case a workman was terminated illegally, he is entitled to the full back wages irrespective of whether he was engaged elsewhere during that particular time or not. In the case of Bhuvnesh Kumar Dwivedi vs M/s. Hindalco Industries Ltd., (2014) 11 SCC 85 . the Supreme Court held that: 30. On the issue of back wages to be awarded in favour of the appellant, it has been held by this Court in the case of Shiv Nandan Mahto v. State of Bihar & Ors., (2013) 11 SCC 626 . that if a workman is kept out of service due to the fault or mistake of the establishment/company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service. The relevant paragraph of the judgment reads as under: 5. .... In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the Appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the Appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the Appellant was entitled to be paid full back wages for the period he was kept out of service. Therefore, the petitioner should be granted 100% full back wages in the interest of justice. 14. In our considered opinion, the act of suspension and subsequent termination of the petitioner without due compliance of the principle of natural justice vitiates the proceedings, dehors sufficient reasons smacks arbitrariness and malafide. Hence, the order dated 31.12.2016 passed in I.D. Case No.32 of 2015 by the learned Presiding Officer, Labour Court, Bhubaneswar is hereby modified. 14. In our considered opinion, the act of suspension and subsequent termination of the petitioner without due compliance of the principle of natural justice vitiates the proceedings, dehors sufficient reasons smacks arbitrariness and malafide. Hence, the order dated 31.12.2016 passed in I.D. Case No.32 of 2015 by the learned Presiding Officer, Labour Court, Bhubaneswar is hereby modified. The present Writ Petition is allowed and all consequential benefits be granted to the petitioner forthwith preferably within a period of one month. Accordingly, the Writ Petition is disposed of. No order as to cost. 1 CA Nos.64 and 73 of 2015 and CA No.963-964 of 2014 in/and CP No.165 of 2014 (0 & M) pronounced on 9 March, 2015.