Allowed

The Food Corporation Of India Through Its Executive Director East Ms B Subhalaxmi v. Mohammad Shaukat Ali And Anr.

Jharkhand HC12 Oct 2023WPC/3419/2016

Case brief

AI extract

What is this about?

The High Court of Jharkhand set aside an award by the Central Government Industrial Tribunal which adjudicated a complaint under Section 33A of the Industrial Disputes Act. The court held the tribunal lacked jurisdiction because the complainants, being Assistant Managers and Grade-I staff, were not workmen under Section 2(s) of the Act based on prior High Court rulings.

What did the court decide?

The impugned award dated 09.06.2014 passed by the Central Government Industrial Tribunal-I, Dhanbad, is set aside as the Tribunal lacked jurisdiction.

The Food Corporation Of India Through Its… — Labour and Industrial Disputes | Jharkhand HC (2023)

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W.P. (L) No.3419 of 2016

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 3419 of 2016

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The Food Corporation of India, a statutory Corporation constituted by and under the Food Corporations Act of 1964, through its Executive Director (East), Ms. B. Subhalaxmi working at its Zonal Office at 10A, Middleton Row, P.S. Park Street, P.O. & Dist.Kolkata- 700071

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.... Petitioner

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Versus

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Mohammad Shaukat Ali, ex- Manager (Depot), son of Abdul Sattar, resident of Belahia, P.O.- Bakhri, Via Sursand, P.S.Sursand, Dist.- Sitamarhi, State- Bihar, PIN-843331

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Kedar Nath Tiwary, ex-AG-I (Depot), son of late Narsingh Tiwary, resident of Collectorate Road, Jagudhar Ganj, Buxar, P.O. & Dist.- Buxar, State- Bihar, PIN-802103

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…. RespondentS

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioner : Mr. Nipun Bakshi, Advocate : Mr. Shubham Sinha, Advocate For the Respondents : Mr. Jai Prakash Jha, Sr. Advocate : Mr. Pawan Kr. Pathak, Advocate …..

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By the Court:-

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Heard the parties.

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This Writ Petition has been filed under Articles 226 and 227 of the Constitution of India with the prayer for:-

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(a) issuance of a writ of, or in the nature of certiorari or any other appropriate writ or order or direction for setting aside the award dated 09.06.2014 passed by the learned Presiding Officer, Central Government Industrial Tribunal No.1, at Dhanbad, in

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W.P. (L) No.3419 of 2016

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Complaint Case No.11 of 2013, whereby it has been held that the respondent-workmen be treated as workmen in continuous service from the date of their dismissal and the action of the petitioner-management has been held to be illegal and not justified without examining the merits of the case and without considering that the respondents were proceeded against for major misconduct and were found guilty in a duly-constituted enquiry proceeding and

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(b) For issuance of any other or further order or orders as may be considered to be necessary for doing conscionable justice to the petitioner.

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At the outset, learned counsel for the petitioner submits that the petitioner does not want to enter into the merits of the said award dated 09.06.2014 and confines its argument only to the ground that admittedly the respondent no.2 being Ex-Assistant Grade-I (Depot) of the petitioner; as is evident from the cause-title of the impugned award which is annexed as Annexure-5 to this writ petition. It is then submitted by the learned counsel for the petitioner that in view of the judgment passed by a Division Bench of this Court in L.P.A. No.446 of 2019 dated 04.08.2023 paragraphs-36 and 37 of which reads as under:-

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“36. Considering the totality of the facts and circumstances of this case and the work assigned to Assistant Grade-I (D), in which the respondent was working at the relevant point of time, through the circular dated 30.10.1996, this Court has no doubt that the appellant was working in the supervisory capacity and was assigned the work of supervision

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W.P. (L) No.3419 of 2016

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and control over the Assistant Grade-II (D) and Assistant Grade-III (D) while performing their duties. Accordingly, this court is of the considered view that the respondent cannot said to be a workman under Section 2(s) of the aforesaid Act.

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37. In view of the finding of this Court that the respondent was not a workman within the meaning of Section 2(s) of the aforesaid Act at the relevant point of time, this Court is of the considered view that the order dated 20.09.2016 deciding the preliminary issue as well as the impugned final award cannot be sustained in the eyes of law and accordingly, they are setaside.”

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It has been held by the Division Bench of this Court that as the Assistant Grade-I (D) of the petitioner; works in supervisory capacity and was assigned the work of supervision and control over the Assistant Grade-II (D) and Assistant Grade-III (D) while performing their duties, hence, the Assistant Grade-I (D) of the petitioner; cannot be said to be a workman under Section 2 (s) of the Industrial Disputes Act, 1947.

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It is then submitted by the learned counsel for the petitioner that so far as the respondent no.1 who is the Ex- Manager (Depot) is concerned, the Central Government Industrial Tribunal No.1, Dhanbad held him to be a workman relying upon the judgment of Delhi High Court in W.P.(C) No.2084 of 1988 dated 05.08.2011. It is next submitted by the learned counsel for the petitioner by relying upon the judgment dated 12.12.2022 passed by the single Bench of Delhi High Court in the said W.P. (C) No.2084 of 1988; which was passed after remand of the said writ petition by the

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W.P. (L) No.3419 of 2016

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Division Bench as Division Bench of Delhi High Court in L.P.A. No. 697 of 2012 whereby and whereunder they Division Bench set aside the said initial judgment dated 05.08.2011 passed by the Single Judge in said W.P. (C) No.2084 of 1988 decided by Justice S.Muralidhar as is lordship then was and submits that in paragraph no.54 of the said judgment dated 12.12.2022 of Delhi High Court in W.P. (C) No.2084 of 1988 which reads as under:-

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“54. On the conspectus of the decisions and material on record and in the absence of the fact that Respondent No. 3 had not disclosed anywhere the true nature of duties performed by the Assistant Managers, this Court would like to hold that Category II Assistant Managers are not “workman ‟ within the meaning of Section 2 (s) of the I.D. Act. Further, nature of duties as mentioned in the Job description (Exhibit M-1), it is clear that the dominant nature of the work of the Category II Assistant Managers was managerial in nature. From the above discussion, it is apparent that the learned Labour Court has erred in its finding while reaching to the conclusion that “Assistant Manager Depot‟ was workmen .”

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wherein the Single Judge of Delhi High Court after remand has held that Category II Assistant Manager of the petitioner are not workmen within the meaning of Section 2 (s) of Industrial Dispute Act, 1947 as dominant nature of the work of the Category II Assistant Managers was managerial in nature. Hence, it is submitted that as the very basis upon which the learned Central Government Industrial Tribunal No.1, Dhanbad in the impugned award has held that the respondent no.1 to be a workmen no more exists; on this score alone, the impugned award is liable to be set-aside.

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It is then submitted by the learned counsel for the petitioner relying upon the judgment of a coordinate Bench of this Court in

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W.P. (L) No.3419 of 2016

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the case of Food Corporation of India vs. Vijay Shankar Prasad, Ex Manager (D) in W.P. (C) No. 6948 of 2016 dated 04.07.2023 in which the coordinate Bench relying upon the said single Bench judgment Delhi High Court passed by Mr. Justice Gaurang Kanth dated 12.12.2022 in W.P. (C) No.2084 of 1988 that the Category II Assistant Managers of the petitioner are not workmen. It is further submitted by the learned counsel for the petitioner that though the respondent no.1 who was the complainant of Complaint Case No.2/2012 before the Central Government Industrial Tribunal No.1, Dhanbad in the complaint filed under Section 33 A of the Industrial Disputes Act, 1947 has been described as Ex-Manager (Depot) but he was in fact, Category II Assistant Manager.

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Learned counsel for the respondent no.1 also fairly submits that though the respondent no.1 has been described as Ex-Manager (Depot) but in fact, he was Ex- Category II Assistant Manager.

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It is next submitted by the learned counsel for the petitioner that in view of the settled position of law, that the respondent no.1 is also not a workman under Section 33 A of the Industrial Disputes Act, 1947. It is then submitted by the learned counsel for the petitioner that in view of the fact that both the respondent nos.1 and 2 are not workmen, the Complaint Case No.11 of 2013 filed under Section 33 A of the Industrial Disputes Act, 1947 is not maintainable. Hence, it is submitted that as the Central Government Industrial Tribunal-I, Dhanbad was not having jurisdiction to entertain the complaint; the entire award be set

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W.P. (L) No.3419 of 2016

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aside as the said Tribunal was lacking the jurisdiction to entertain the same and having passed the said award without jurisdiction.

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Learned Senior Advocate appearing for the respondents fairly submits that the Hon’ble Division Bench of this Court in L.P.A. No.446 of 2019 has held that the Assistant Grade-I (D) of the petitioner- Food Corporation of India is not a workman under Section 2 (s) of the Industrial Disputes Act, 1947 but it is submitted that an S.L.P. has been filed before the Hon’ble Supreme Court of India against the said order passed by the Division Bench and the same has not yet come before the Hon’ble Supreme Court of India and hence no order of stay has been passed by the Hon’ble Supreme Court of India in respect of the said L.P.A. No.446 of 2019. It is next submitted by Mr. Jha, learned Senior Advocate appearing for the respondents by drawing attention of this Court to the definition of the workmen as mentioned in Section 2 (s) of Industrial Dispute Act, 1947 that the definition itself includes the persons who do supervisory work also. Hence, it is submitted that merely because the respondent nos.1 and 2 were doing supervisory work hence, they cannot be said to be not a workman. It is next submitted by the learned Senior Advocate appearing for the respondents that keeping in view the facts and circumstances of the case; the respondents be given the liberty to prefer a statutory appeal before the Chairman of the petitioner. It is next submitted that since the respondent was pursuing the matter diligently before the wrong forum,

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W.P. (L) No.3419 of 2016

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hence, Section 14 of the Limitation Act saves the period of limitation.

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To this prayer, learned counsel for the petitioner submits that Executive Director East of the petitioner who was the sole opposite party in Complaint Case No.11 of 2013 before the Central Government Industrial Tribunal No. -I, Dhanbad in its written statement has taken the plea that the respondents ought to have taken the recourse of statutory appeal before the Chairman of the petitioner and even knowing pretty well the provisions of statutory appeal; which has also been mentioned in the appellate order passed by the Managing Director of the petitionercorporation, copy of which has been kept at Annexure-2 series to this writ petition and the respondents having not availed the same the prayer for filing the statutory appeal is barred by limitation. It is then submitted that the respondent is not a workman otherwise also as he was earning more salary then the maximum salary prescribed by law; for bringing a person within the ambit of the definition of “Workman”.

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Having heard the rival submissions made at the Bar and after going through the materials available in the record, this Court, in view of the judgment of the Division Bench of this Court in L.P.A. No.446 of 2019; wherein it has in no uncertain manner been, held that the Assistant Grade-I (D) of the petitioner- Food Corporation of India is not a workman under Section 2 (s) of the Industrial Disputes Act, 1947 and also the judgment dated 12.12.2022 passed by the Hon’ble Delhi High Court in W.P. (C) No.2084 of 1988

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W.P. (L) No.3419 of 2016

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which has been approbated by a coordinate Bench of this Court in judgment dated 04.07.2023 in W.P. (L) No.6948 of 2016; has no hesitation in holding that the Central Government Industrial Tribunal No. -I, Dhanbad has no jurisdiction to entertain the Complaint No.11 of 2013 filed under Section 33 A of the Industrial Dispute Act, 1947; as the complainants before it were not workmen, in terms of Section 2 (s) of the Industrial Dispute Act, 1947. Hence, the impugned award dated 09.06.2014 passed in Complaint Case No.11 of 2013 by the Central Government Industrial Tribunal-I, Dhanbad, being without jurisdiction; the same is set aside.

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Keeping in view the facts and circumstances of the case, the respondents are accorded liberty to file a statutory appeal against the appellate order passed by the Managing Director of the petitioner-corporation; subject to the limitation to be decided by the competent authority.

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This writ petition is disposed of accordingly.

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Let the copy of this judgment be sent to the tribunal concerned, forthwith.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 12^th October, 2023 AFR/Sonu-Gunjan/-

The Food Corporation Of India Through Its Executive Director East Ms B Subhalaxmi v. Mohammad Shaukat Ali And Anr.

Case brief

What is this about?

What did the court decide?

The Food Corporation Of India Through Its Executive Director East Ms B Subhalaxmi v. Mohammad Shaukat Ali And Anr.

Case brief

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