Dismissed

Minesh Premchandbhai Jain v. Parikh Enterprises Ltd.

Gujarat HC25 Aug 2022SCA/3693/2018

Case brief

AI extract

What is this about?

The High Court dismissed two Special Civil Applications challenging a Labour Court award. It upheld the award finding the respondent a workman, held reinstatement moot due to the respondent's death, and directed payment of back wages to the legal heirs.

What did the court decide?

Petitions dismissed; reinstatement not ordered due to death; back wages directed to legal heirs.

Minesh Premchandbhai Jain Vs Parikh… — Pension and Retirement Benefits | Gujarat HC (2022)

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 13212 of 2017 With CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2018 In R/SPECIAL CIVIL APPLICATION NO. 13212 of 2017 With R/SPECIAL CIVIL APPLICATION NO. 3693 of 2018

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================================================================ PARIKH ENTERPRISE LTD.

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Versus

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MINESH PREMCHANDBHAI JAIN & 1 other(s)

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================================================================

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Appearance:

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MR.VARUN K.PATEL(3802) for the Petitioner(s) No. 1 MR DG SHUKLA(1998) for the Respondent(s) No. 1 MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2

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================================================================

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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

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Date : 25/08/2022

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ORAL ORDER

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These two petitions are filed against the same award of the Labour Court. First petition being SCA No.13212 of 2017 is filed by the employer challenging the award directing reinstatement of the respondent-workman with 50% back wages. The other petition being SCA No.3693 of 2018 is filed by the workmen and claiming 100% back wages.

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1.1 With consent of learned Advocates for both the parties, both the petitions are taken up for joint hearing and disposal as both the petitions raise common questions of fact and law. The

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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facts are recorded from the Special Civil Application No.13212 of 2017 filed by the employer.

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The impugned award is passed by the Presiding Officer, Labour Court No.5, Ahmedabad dated 28.11.2016 in Reference (T) Case No.1170 of 2000. It is a case where the respondent-workman joined the petitioner company in 1984 as Plant Supervisor on salary of Rs.350/- per month and last salary being rupees 7825/-. By letter dated 08.04.2000, the respondent, who was, at the relevant time, working as Senior Chemist-cum-Shift-In-charge, came to be terminated on the ground that his services were no more required by the petitioner company. This decision of the petitioner company gave rise to an industrial dispute by the respondent.

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The main contention of the learned Advocate for the petitioner company is that the respondent does not fall in the definition of a workman as contemplated under section 2(s) of the Industrial Disputes Act. Learned advocate for the petitioner submitted that the nature of work assigned to the respondent does not fall in the work as specified in section 2(s) of the Industrial Disputes Act.

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3.1 Learned Advocate for the petitioner took this Court through the evidence of the respondent-workman as well as the evidence of the representative of the company to indicate that the

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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nature of job was such which included the respondent to sign the ESIC forms and the respondent was responsible for day-to-day functioning of a complex mechanism and functioning of the chemical machinery and such being of highly technical nature, the respondent was required to be highly qualified.

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3.2 Learned advocate also submitted that the respondent was also responsible for supervising and allotting work to the subordinates and was also responsible for issuing get passes for other junior employees if they seek permission to leave the factory premises.

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3.3 Learned advocate for the petitioner submitted that an error is committed by the Labour Court in not appreciating the evidence in correct perspective and though there was sufficient evidence with regard to the nature of work, the Labour Court has recorded that as the respondent had no authority to terminate or hire an employee in the company, he would not fall in the definition of a workman for deciding as to whether the respondent is a workman or not.

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3.4 Learned Advocate relied upon the decision of the Supreme Court in case of S.K.Maini Vs. Carona Sahu Company Limited & Ors ., reported in AIR 1994 SC, 1824 , wherein the Apex Court has decided the test to determine whether an employee

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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is a workman who may be discharging duties of administrative and managerial nature and he may not be a workman though is required to do some clerical work or is not vested with the power to appoint or discharge employees under him.

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3.5 Learned Advocate thereafter relied upon decision of the Apex Court in case of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh , reported in (2005) 3 SCC, 232 . Learned Advocate relied upon paras-15, 16 and 17, particularly submitting that a chemist employed in the sugar mill was not treated as a workman.

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3.6 Lastly, learned Advocate has relied upon an unreported decision of this Court in Special Civil Application No.7246 of 2009, wherein by oral judgement dated 21.06.2019, this court took into consideration the the nature of work rendered by a workman. There the petitioner-workman was doing work of Supervisor and Plant Operator and his duty was to monitor the final product, to maintain proper temperature/pressure, PH and dispatching the goods, which work was termed as a work contemplated for a person to be a workman and such work cannot be said to be manual or unskilled or skilled or Technical or operational or clerical or supervisory in nature.

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As against this Advocate for the respondent-workman submitted that the respondent was discharging duties of Plant

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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Supervisor and was undertaking a work of a skilled employee who was trained in running a chemical process plant it is submitted that the evidence recorded of the workman also indicates that the nature of work of the respondent was that of a workman and merely because salary was given above Rs.1600/-, he cannot be termed to be a person discharging work of supervisory in nature. Learned Advocate submitted that the evidence of the petitioner company also indicates that the nature of work of the respondent cannot be termed to be that of a of supervisory or managerial nature or in any manner, which may take such work out of the definition of workman.

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4.1 It is further submitted that if it was the contention of the petitioner company that the respondent is not a workman then it was the burden of the petitioner company to discharge by placing necessary documents with regard to the duty list of the respondent to take him out of the definition of workman.

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4.2 Learning Advocate for the respondent relied upon the decision of of this Court in case of Shankarbhai Nathalal Prajapati Vs. Maize Products , reported in 2002 (3) GLR, 2273 , to submit that the nature of work of a chemist, i.e. Shift Chemist is to be treated as a work of a workman and therefore, the respondent would fall in the definition of a workman.

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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4.3 Learned Aadvocate lastly submitted that respondent workman as recently expired in the year August 2021 and therefore, there is no question of now reinstatement. However, as the Labour Court has found the termination of the service of the respondent in violation of section 25 (g) and (h), the case of the respondent deserves to be considered for payment of 100% back wages.

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In rejoinder learned Advocate for the petitionercompany submitted that the decision of this Court in case of Shankarbhai Nathalal Prajapati (supra) was subject matter of challenge in LPA, wherein stay was granted. However, subsequently, the matter was settled and therefore, reliance of learned Advocate for the respondent on such judgement may not be accepted.

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Having heard learned Advocates for the parties and having periods the documents on record, it appears that the petitioner is a company involved in the manufacturing of various chemical products, where the respondent came to be initially appointed as Plant Supervisor in the year 1984 and thereafter, was terminated by order dated 08.04.2000 stating in the communication that the service of the respondent is no longer required when he was serving on the post of Senior Chemist-cumShift In-charge.

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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The only submission made by learned Advocate for the petitioner company is about the respondent not being a workman and thereby the Industrial Disputes Act not being applicable. The Court has perused the impugned award, wherein the Labour Court has referred to the evidence led by both the parties and has noted down the nature of work undertaken by the respondent workman. In the opinion of the Court, the entire nature of work is closely associated with the manufacturing process. The respondent workman was having the educational qualification of B.Sc. with Chemistry, was involved in the manufacturing process with the help of the other workmen, the supervision of such workmen was under him by virtue of his knowledge and therefore, supervising them was nearly incidental to carry out the work of manufacturing, but in no term can it be considered to be a work which is of a supervisor in nature in the terms of administration.

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It would also be relevant to consider the evidence of the petitioner company itself where the witness on behalf of the company was examined Exh.70, wherein this witness has deposed that in the company, no specific post has been assigned and in the income tax record, name of the respondent is shown as a staff worker and the pay slip has been placed at exhibit 57 where in such detail has been shown. This deposition also shows that the services of the respondent were terminated without there being

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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any departmental enquiry or issuance of show cause notice and that the work for which the respondent was engaged was continued and was being undertaken by other employees who joined the petitioner company subsequent to the respondent.

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The court finds that the labour Court has undertaken an elaborate discussion by referring to the evidence threadbare and concluding that the respondent was engaged in a work which would be covered in the definition of workman and court sees no reason to interfere in such findings. It would be appropriate to mention herein that though the learned Advocate for the petitioner has argued that it is the burden of the respondent to discharge that he is a workman, in the opinion of the Court, the deposition of the workman clearly indicates that the respondent was discharging the duties which would ordinarily fall in the definition of a workman and having discharged his burden claiming that he is a workman, the burden has shifted on the petitioner company, which in the opinion of the Court, has not been discharged by the petitioner company to establish that the respondent is not a workman. From the record, the Court does not find anything in the form of document at the time of appointing or terminating the respondent and the nature of duty list assigned to the respondent and therefore, the conclusion drawn by the Labour Court on the basis of the deposition of the workman himself and representative

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C/SCA/13212/2017 ORDER DATED: 25/08/2022

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witness of the petitioner company, clearly defines the work of the respondent to be of a nature of a workman.

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The Court therefore finds no reason to interfere with the award of the Labour Court. As it is now reported that the respondent workman has expired in August 2021, there would not be any question of reinstatement. However, insofar as the issue of the back wages and other dues is concerned, in the opinion of the Court, after the respondent, now his legal heirs would be entitled to the receive the dues that are payable to the respondentworkman pursuant to the direction of paying the back wages and benefits, if any, to the respondent.

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With the aforesaid, both the petitions are hereby dismissed. Notice is discharged. No order as to costs.

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In view of the order passed in the main matter, Civil Application does not survive. Disposed of accordingly.

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(A.Y. KOGJE, J)

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SHITOLE

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Minesh Premchandbhai Jain v. Parikh Enterprises Ltd.

Case brief

What is this about?

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Minesh Premchandbhai Jain v. Parikh Enterprises Ltd.

Case brief

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