Dismissed

Ms Himachal Futuristic Communication v. State

Himachal Pradesh HC4 Aug 2014CWP/4624/2013

Case brief

AI extract

What is this about?

This court dismissed four writ petitions challenging the Industrial Tribunal's awards. The court held that determining employee status under the Industrial Disputes Act was a factual finding immune from writ interference, as the employer failed to prove the employees were managerial rather than skilled workmen.

What did the court decide?

The impugned awards of the Industrial Tribunal were upheld and the writ petitions were dismissed with costs.

Ms Himachal Futuristic Communication… — Labour and Industrial Disputes | Himachal Pradesh HC (2014)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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CWP No.4622 of 2013 a/w CWPs No. 4623, 4624 & 4626/2013. Judgment reserved on 21.7.2014 Date of decision: 4^th August, 2014.

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M/s Himachal Futuristic Communications Ltd.

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…..Petitioner(s)

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Versus State of HP and another …Respondent(s)

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Coram:

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The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting ?¹ Yes.

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For the petitioner(s): Mr. Rahul Mahajan, Advocate.

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For the respondent(s):

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Mr.Shrawan Dogra, Advocate General, with Mr. Romesh Verma, Mr. V.S. Chauhan, Additional Advocate Generals with Mr. J.K. Verma and Kush Sharma, Deputy Advocate Generals, for respondent No.1. Mr. Rohit Sharma & Mr. Anuj Gupta, Advocates, for respondent No. 2.

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Mansoor Ahmad Mir, Chief justice.

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These four writ petitions involve common

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questions of law and fact hence taken up together for disposal by this common judgment.

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The writ petitioners have questioned the award(s) made by the Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla, H.P., hereinafter referred to as “The Tribunal” for short, whereby references made by the appropriate Government, under Section 10 of the Industrial Disputes Act, 1947 for

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1 Whether the reporters of Local Papers may be allowed to see the judgment ?

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short “The Act” have been determined in all the four references. The Tribunal held that the applicant(s) before the Tribunal-respondent(s) No. 2 herein, in all the four writ petition(s), are workmen, in terms of Section 2 (s) of the Act and termination orders were not made in accordance with the provisions of Section 25-N of the Act and quashed the termination orders made by the petitioner(s) herein, constraining the petitioner(s) to question the said impugned award(s) by the medium of the present writ petitions.

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It appears that all the four references came up before the Tribunal and were dealt with separately and separate awards have been made by the Tribunal, but on the same date, i.e., on 26.3.2013. In all the four references, petitioner(s) pleaded that respondent(s) No. 2 herein-applicant(s) before the Tribunal were not workmen, in terms of the Mandate of Section 2 (s) of the

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Act.

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It is apparent from the record that in Reference Petition No. 91 of 2009, titled Nisha Thkaur versus M/s Himachal Futuristic Communication Ltd., the petitioner was Senior Engineer, in Reference Petition No. 93 of 2009, titled Rajnesh Bala versus M/s Himachal Futuristic Communication Ltd ., the petitioner was Engineer, in Reference Petition No. 94 of 2009 titled Seema Sharma versus M/s Himachal Futuristic Communication, Ltd. , the petitioner was Engineer

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(Document Cell)., and in Reference petition No. 95 of 2009 titled Gayatri Seth versus M/s Himachal Futuristic Communication, Ltd , the petitioner was Engineer.

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The issues were framed in all the four references by the Tribunal. Statements of petitioners(s) and respondent(s) No.2 herein were recorded in all the references, separately and their evidence was closed. 6. Respondent(s) No.2 herein deposed in their statements before the Tribunal rather averred that they were appointed as skilled workmen and were performing the duties as skilled workmen. The General Manager was not competent to terminate their services. 7. The writ petitioner(s) herein before the Tribunal examined only one witness in all the four references, namely, Mr. M.S. Gupta, the General Manager of the Company. Mr. Gupta in all the four references deposed that respondent(s) No. 2 herein were not working as workmen but as Senior Engineer, and Engineers and they were discharging their supervisory or managerial function and so many workmen were under their control. Further deposed that they used to sanction leave and used to forward leave application to the authority. However, no such leave application was produced in evidence to show, who were the employees working under them and even petitioner(s) herein have not examined any such technician or workman before the Tribunal, who was

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working under them. Even no document or proof was placed before the Tribunal which could have been made basis for holding that respondent(s) No. 2 herein have sanctioned the leave of the workman under their control and they have issued instructions here and there and were discharging their duties in the supervisory capacity.

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The learned counsel for the writ petitioner(s) argued that the Tribunal has fallen in error in holding that respondent(s) No. 2 herein were workman.

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The Tribunal, after examining the evidence and the record came to the conclusion that respondent(s) No.2 herein were working as skilled workmen and fall within the definition of Section 2 (s) of the Act. It is apt to reproduce Section 2 (s) of the Act herein:

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"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—

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(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

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(ii) who is employed in the police service or as an officer or other employee of a prison; or

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(iii) who is employed mainly in a managerial or administrative capacity; or

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(iv) who, being employed in a supervisory capacity, draws wages exceeding⁵⁷ [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.”

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The Tribunal, after examining the record held that respondent(s) No. 2 herein were not discharging supervisory or managerial function. While going through the provisions of Section 2 (s) of the Act, one comes to an inescapable conclusion that the writ petitioner(s) have to prove that respondent(s) No. 2 herein were not workmen and were discharging supervisory or managerial function.

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It is a question of fact and the Tribunal, keeping in view the reply filed by the petitioner(s) herein and in view of the issue framed, came to the conclusion that writ petitioner(s) have failed to prove that respondent(s) No. 2 herein were workmen under their control or they were performing their duties in managerial or supervisory capacity. It was for them to prove the said fact but they failed to do so.

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The question is-whether the question of fact can be questioned by the writ petitioner(s) and the Writ Court can interfere? The answer is in negative. Our view is fortified by the apex Court judgment in case titled Bhuvnesh Kumar Dwivedi versus M/s. Hindalco Industries

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Ltd., reported in 2014 AIR SCW 3157, wherein it has been held that question of fact cannot be interfered with by

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the Writ Court. It is apt to reproduce paras 16, 17 and 18

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of the said judgment herein.

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“16. The appellant has claimed that the High Court has modified the award passed by the Labour Court which has awarded reinstatement of the appellant with full back wages and other consequential benefits to simply awarding compensation to the tune of Rs.1,00,000/- by the High Court in lieu of reinstatement with back wages and consequential benefits which order is bad in law in the light of the legal principles laid down by this Court in the catena of cases. In the case of Heinz India (P) Ltd. v. Union of India, this Court, on the issue of the power of the High Court for judicial review under Article 226, held as under:

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“60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' one is instantly reminded of the classic and oft quoted passage from Council of Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935, where Lord Diplock summed up the permissible grounds of judicial review thus: Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.

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By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decisionmaking power and must give effect to it. Whether he

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has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.

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By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system... ...

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I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”

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Further, in the case of Devinder Singh v. Municipal Council, Sanaur, it was held that :

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“22. ……A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the Appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of

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time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC 477, Swaran Singh v. State of Punjab (1976) 2 SCC 868: (AIR 1976 SC323) P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54: (AIR 2001 SC479), Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675: (AIR 2003 SC3044) and Shalini Shyam v. Rajendra Shankar Path (2010) 8 SCC 329: (2010 AIR SCW 6387).

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23. In Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477 ) (supra), this Court identified the limitations of certiorari jurisdiction of the High Court under Article 226 of the Constitution in the following words:

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The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on

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the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.

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In the second judgment - Swaran Singh v. State of Punjab (AIR 1976 SC232) (supra), this Court reiterated the limitations of certiorari jurisdiction indicated in Syed Yakoob v. Radhakrishnan (AIR 1964 SC477) (supra) and observed:

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In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of

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their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.”

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17. The judgments mentioned above can be read with the judgment of this court in Harjinder Singh’s case (AIR 2010 SC1116) (supra), the relevant paragraph of which reads as under:

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“21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:

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“10. … The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.”(State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 p.928, para 10.)

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18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced

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that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant”

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[Emphasis added]

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Applying the test to the instant case, the question of fact determined by the Tribunal cannot be made subject matter of the writ petition and more so, when the writ petitioner(s) have failed to prove the defence raised, in answer to the references before the Tribunal.

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The apex Court in case titled Mukesh K. Tripathi, versus Sr. Divisional Manager, L.I.C. and others , reported in AIR 2004 SC 4179, discussed the law on the subject and held that the Tribunal or the Court while examining whether an employee is a workman in terms of the mandate of Section 2 (s) of the Act or otherwise, has to take into account so many aspects and it is for the employer to plead and prove that employee is not a workman. It is apt to reproduce paras 33, 37, 38, 40, 41 and 42 of the said judgment herein.

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“33. The definition of 'workman’ as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a 'workman1 defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must

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be working in one or the other capacities mentioned therein and not otherwise. 34 to 36…………..

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37. It is true that the definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act is exhaustive.

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38. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word 'includes' but therefor also it is necessary to keep in view the scheme of the object and purport of the statute which takes him out of the said definition. Furthermore, the interpretation section begins with the words' unless the context otherwise requires."

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39………

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40. In Sri Chittaranjan Das v. Durgapore Project Limited and others (1995 (2) CLJ 388), it was opined:

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"In my opinion, it is not difficult to resolve the apparent conflict. Both in the Industrial Employment (Standing Order) Act, 1946 as also the certified Standing Order of the company the word 'including an apprentice' occurs after the word 'person'. In that view of the matter in place of the word 'person', the word 'apprentice' can be substituted in a given situation but for the purpose of becoming a workman either within the meaning of the 1946 Act or the standing order framed thereunder, he is required to fulfil the other conditions laid down therein meaning thereby he is required to be employed in an industry to do the works enumerated in the said definition for hire or reward, whether the terms of employment be express or implied."

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41. The question as to who would answer the description of the term 'workman' fell for consideration before this Court in Dharangadhra

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Chemical Works Ltd. v. State of Saurashtra and others (AIR 1957 SC 264), wherein this Court held :

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"The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act."

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42. Yet again in Workmen of Dimakuchi Tea Estate v. Mani agement of Dimakuchi Tea Estate (AIR 1958 SC 353), this Court held:

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"A little careful consideration will show, however, that the expression 'any person' occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject matter of dispute must relate to (i) employment or nonemployment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employeremployee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workman. Secondly. The definition clause must Be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. It is well settled that-

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'The words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or

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etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."

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(Maxwell, Interpretation of Statutes, 9th Edition, p.55).

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Applying the test to the instant case and while keeping in view the definition under Section 2 (s) of the Act, the writ petitioner(s) have specifically averred in their reply before the Tribunal that they had informed

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respondent(s) No. 2 herein that there was no manufacturing activities in the plant thus, no work was expected in near future and for that reason their services were terminated, which suggests that respondent No. 2 herein were not discharging supervisory or managerial function but were performing manufacturing activities and because of lack of manufacturing activities in the plant, their services were terminated. Thus, it is admission on the part of the writ petitioner(s) that respondent(s) No.2 herein were working as workmen.

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The writ petitioner(s) have also not issued notices to them, in terms of Section 25-N of the Act. Section 25 -N of the Act reads as under:-

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“25-N Conditions precedent to retrenchment of

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workmen.

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(1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,—

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(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and

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(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.”

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The Tribunal has dealt with this issue in paras 18, 19, and 20 of the impugned award(s), which needs no interference.

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Having said so, no case for interference is made out. All the impugned award(s) merit to be upheld and the writ petitions dismissed. Ordered accordingly. copy of this judgment be placed on each files.

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(Mansoor Ahmad Mir) Chief Justice.

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August 04, 2014 (Tarlok Singh Chauhan) (cm Thakur) Judge

Ms Himachal Futuristic Communication v. State

Case brief

What is this about?

What did the court decide?

Ms Himachal Futuristic Communication v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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