Tata Motors Limited through Its General Manager Legal Services Sri Rajesh Kumar Das Vs D K Singh

1 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 953 of 2022

Tata Motors Limited (previously known as Tata Engineering & Locomotive Company Limited) a Company registered under the Companies Act, having its registered office at 24 Homi Mody Street, Fort, Mumbai and its works at Jamshedpur, P.O. & P.S. - Telco, District East Singhbhum, (Jharkhand) through its General Manager (Legal Services) Sri Rajesh Kumar Das, aged about 57years, son of Late P.N. Das, resident of C/15, Vivekanand Road, PO - Baridih, PS- Sidhgora, Town Jamshedpur, DistrictEast Singhbhum (Jharkhand) ........... Petitioner

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Versus

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D.K. Singh, Son of Sri Kedar Singh, Resident of Quarter No.163/2/2, Chhota Govindpur, P.O. & P.S. Gobindpur, Jamshedpur, District-East Singhbhum, Jharkhand

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........... Respondent

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With

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W.P. (L) No. 3588 of 2022

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D.K. Singh, aged about 56 years, Son of Sri Kedar Singh, Resident of Quarter No.163/2/2, Chhota Govindpur, P.O. & P.S. Gobindpur, Jamshedpur, District-East Singhbhum, Jharkhand ........... Petitioner

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Versus

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Employers in relation to management of Tata Motors Limited, Jamshedpur, P.O. & P.S.- Telco, District-East Singhbhum, Jharkhand. ........... Respondent

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For the Petitioners : Mr. Amit Kr. Das , Adv.

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Mr. Pankaj Srivastava, Adv. For the Respondents : Mr. Pankaj Srivastava, Adv. Ms. Rashmi Kumar, Adv.

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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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By the Court:- Heard the parties.

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Both the writ petitions have been filed invoking the jurisdiction of this court under Article 226 of the Constitution of India, in respect

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2 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

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of the same award dated 17.02.2020 passed by learned Presiding Officer, Labour Court, Jamshedpur, in I.D. case no. 02 of 2012, by which, learned Labour Court, Jamshedpur, has directed that the respondent of W.P. (L) No. 953 of 2022, be paid a compensation of Rs. 6,00,000/- by the writ petitioner of the W.P. (L) No. 953 of 2022 company, within one month, from the date of publication of award, failing which, the same will carry a penal interest of 12%.

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The brief facts of the case is that workman before the Labour Court, Jamshedpur, who is the petitioner in W.P. (L) No. 3588 of 2022 and respondent in W.P. (L) No. 953 of 2022, was registered in the company as a ward of the employee of the company, namely Kedar Singh and it appears that as per scheme, one of the dependents of a regular employee in regular employment, on completing certain period of service by the employee, in regular employment, is kept in dependent register and is offered employment, by the management as and when work is available and such dependents are also given preference when regular are available. The workman was employment engaged intermittently but he was made to separate from the company from 28.08.2008 and he was called for medical test on 20.10.2008 for considering to make him permanent employee but held him to be medically unfit. To pursue the matter, finally on 21.01.2010, his medical checkup was held again in Tata Main Hospital and he was again found medically unfit and it is claimed that in the guise of being medically unfit, his services were terminated.

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The management on the other hand, in its written statement, before learned Labour Court, challenged the maintainability of the application filed by the workman under Section 2A of the Industrial Disputes Act, 1947 and has further, pleaded that workman was found medically misfit thrice by the doctors of the management. It was then, pleaded by the management that as the petitioner himself claims to be temporary employee, who was found misfit in mandatory health checkup for all employee for being made permanent from temporary, in terms of the standing order as the workman has not mentioned for how many days, he

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3 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

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worked between 28.08.2007 to 27.08.2008 i.e. one calendar year, ending with 27.08.2008, therefore, it cannot be the case of retrenchment, victimization or contravention of Section 25F of the Industrial Dispute Act, 1947.

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On the basis of the rival pleadings of the parties, Labour Court framed the following five issues:-

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(i) Whether the petition is barred by limitation?

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(ii) Whether petitioner's discontinuance from service is a case of retrenchment or dismissal without following the statutory process of notice, notice pay, departmental Enquiry etc.?

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(iii) Whether the petitioner has been discontinued from the O.P's Employment as a temporary Employee having been declared unfit medically after following the provisions of Company's own standing order & Pre-Employment Physical Fitness Standards.

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(iv) Whether the petitioner deserves the relief of reinstatement with full back wages, continuity of service & consequential benefits?

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(v) What other relief / order can be passed in this case?

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The Labour Court, first took up issue no. (i) and considered that as the second medical examination was conducted on 21.01.2010, even though, the workman was discontinued from the service on 29.08.2008, still the petition is within time.

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The issue no. (ii), was decided against the workman by holding that on the basis of the admissions made on the part of the workman, his case is not of retrenchment, or dismissal without following the statutory procedure.

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In respect of issue no. (iii), the Labour Court held that the opp. party company did not refer the case of workman for being considered by the Chief Executive of the plant under the Exception Clause of the Pre-employment Physical Fitness standard for permanent employees, hence, decided the issued in favor of the workman.

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In respect of issue nos. (iv) and (v), the Labour Court observed that the workman does not deserve the relief of reinstatement with full back wages as in issue no. (ii) it has been decided that he was neither retrenched nor dismissed but as the opp. party no. 2 company has failed to refer the case of the workman to the Chief

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4 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

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Executive of the plant, under the Exception Clause, and as the father of the workman, was the employee of the company and the workman at the time of discontinuance of the service in the year 2008, was only 42 years old and served the company for 12 years, hence, held that, the workman deserves the compensation of Rs. 6,00,000/- and passed the said impugned order.

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Mr. Amit Kr. Das, learned counsel for the petitioner appearing in W.P. (L) No. 953 of 2022 submits that since learned Labour Court, in no uncertain manner, has held that the respondent workman is neither retrenched or dismissed from service nor it is a case of termination, nor discharge, hence, learned Labour Court, Jamshedpur has committed a grave error in entertaining the application under Section 2A of the Industrial disputes Act, 1947 as amended by the Industrial Disputes Amendment Act, 2010 the sina qua non for maintaining an application under Section 2A is that the employer must have discharged, dismissed , retrenched or otherwise, terminated the service of an individual workman. It is further submitted by Mr. Das that the admitted case of the respondent workman that he last served the company on 28.08.2008 as per the Section 2A (iii) of the said Act, the application under Section 2A (ii) of the said Act, must have been made to the Labour Court, within three years from 28.08.2008 but the application having been filed on 13.02.2012, the same is hopelessly barred by limitation and the second misfit of the workman in the medical test, is not even remotely related to discharge, dismissal, retrenchment, or termination from his services and learned Labour Court committed a grave error by holding that the limitation of three years will run from 21.01.2010. It is next submitted that the on these two grounds, the impugned award dated 17.02.2020 passed by the Presiding Officer, Labour Court, Jamshedpur, in I.D. case no. 02 of 2012 be quashed and set aside.

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Mr. Pankaj Srivastava, learned counsel for the respondent appearing in W.P. (L) No. 953 of 2022 submits that the respondent had worked for 349 days in the years 1996, 243 days in 1999 and in

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5 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

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the year 2008, the respondent was discontinued from his work, due to recession and production loss, as the production was low in the company and he was separated from the company on 28.08.2008 and on 20.08.2008, he was called for medical test but was declared medically unfit though the respondent is still medically fit. Mr. Srivastava, in respect of W.P. (L) No. 3588 of 2022 submits that the Labour Court failed to consider the case of writ petitioner- workman, as a case of victimization and revengeful activities because the petitioner displeased the employer in the year 2003, being an active member of the Union of Temporary Workers namely Telco Mazdoor Morcha and acted prejudicially to the employer’s interest and as a result of that, the petitioner was blacklisted from April 2003 to March 2005. It is next submitted that the Labour Court has committed a grave illegality by not passing an order to reinstate the services of the petitioner in the company of the respondent, with full back wages and also the compensation awarded by learned Labour Court is inadequate for illegal retrenchment of the petitioner.

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Ms. Rashmi Kumar, the learned counsel for the respondent in W.P. (L) No. 3588 of 2022 adopts the argument of Mr. Amit Kr. Das, learned counsel for the petitioner in W.P. (L) No. 953 of 2022 and submits that as the Labour Court committed grave illegality in entertaining application under Section 2A of the Industrial Disputes Act, 1947 as amended by the Act no. 24 of 2010 and as Labour Court Jamshedpur has held in categorical terms in answer to the issue no. (ii) that it is the admitted case of the workman that it is not a case of retrenchment or dismissal, hence, the question of reinstatement with full back wages, does not arise. It is further submitted by Ms. Rashmi Kumar that the writ petitioner has not challenged the finding of issue no. (ii) as arrived at by the Labour Court, Jamshedpur, hence, there is no merit in W.P. (L) No. 3588 of 2022, and same be dismissed.

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Having heard the submissions made at the bar and after going through the materials available in the record, it is pertinent to

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6 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

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refer to Section 2A of the Industrial Disputes Act, 1947 as amended by the Act no. 24 of 2010 which reads as under :-

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1 [2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.-- (1) Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

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(2)Notwithstanding anything contained in section l0, any such workman as is specified in sub-section (1)may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

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(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in subsection (1). (Emphasis supplied)

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The plain reading of the said section makes is clear that in order to make an application under Section 2A of the said Act, it is sine qua non that the workman must have been discharged or dismissed or retrenched or otherwise terminated from the services. The perusal of Section 2A (3) of the Industrial Disputes Act, 1947, reveals that the same provides the limitations, within which, such application is to be made and the limitation is before the expiry of three years, from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in Section 2 A of the said Act. Now coming to the facts of the case, learned Labour Court Jamshedpur, has rightly on the basis of the materials available in the record and the admissions, made by the workman has come to a conclusion that the case of the workman is not the case of dismissal or retrenchment. The said finding of learned Labour Court in respect of the issue no. (ii) has not been challenged by the workman in W.P. (L) No. 3588 of 2022 and this court do not find any reason to interfere with such finding of the Labour Court, Jamshedpur, in respect of the issue no. (ii). It is not even the case of the workman that he was discharged from the service nor there

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7 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

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is any material to suggest that the petitioner management ever terminated the services of the workman, so certainly in the absence of workman being discharged, dismissed, retrenched or terminated from the services by the petitioner management, an application under Section 2A of the Industrial Disputes Act, 1947, as amended by the Act no. 24 of 2010 is not maintainable and the Labour Court, Jamshedpur has committed grave illegality in acting upon such application, which was not maintainable.

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Even assuming for the sake of argument that the application under Section 2A of the said Act, is maintainable, still the limitation runs from the date of discharge, dismissal, retrenchment or otherwise termination from the services. It is undisputed case of the workman, that he last served the management on 28.08.2008 and his second misfit in medical examination, is of no avail and by no stretch of imagination, can be termed as dismissal, retrenchment, discharge, or otherwise termination of service, hence, the Labour Court Jamshedpur, has also committed a grave illegality by holding that the limitation of three years will run; starting from 21.01.2010. Therefore even assuming for the sake of argument that the application under Section 2A of the Industrial Disputes Act, 1947 was maintainable still the same was barred by limitation, hence on these two scores, this court has no hesitation in holding that the impugned award dated 17.02.2020 passed by learned Presiding Officer, Labour Court, Jamshedpur, in I.D. case no. 02 of 2012 is not sustainable in law, accordingly the same is quashed and set aside.

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So far as the W.P. (L) No. 3588 of 2022 is concerned , this court has already held in foregoing para of this judgment , that application of the workman under Section 2A of the Industrial Act, is not maintainable, the workman having not been dismissed, retrenched, discharged, or otherwise terminated from the services and also the same is barred by limitation hence this court is not inclined to accede to the prayer of the writ petitioner of W.P. (L) No. 3588 of 2022 for any of the reliefs as prayed for in the said writ petition.

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8 W.P. (L.). Nos. 953 of 2022 +3588 of 2022

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Accordingly, W.P. (L) No. 953 of 2022 is allowed on contest and

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the W.P. (L) No. 3588 of 2022 is dismissed.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 4^th January, 2024 Smita /AFR

Tata Motors Limited through Its General Manager Legal Services Sri Rajesh Kumar Das v. D K Singh

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Tata Motors Limited through Its General Manager Legal Services Sri Rajesh Kumar Das v. D K Singh

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