The Management of Ms Telco Limited through Its Duly Constituted Attorney Shri Rajesh Kumar Das Vs Manorama Shrivastava

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(L) No. 6871 of 2012

The Management of M/s. TELCO Limited (Tata Engineering & Locomotive Company Ltd) now Tata Motors Ltd, through its duly constituted Attorney Shri Rajesh Kumar Das son of Late P.N. Das, resident of C/15, Vivekanand Road, P.O.- Baridih, P.S.- Sidhgora, Town Jamshedpur, District- East Singhbhum, Jamshedpur and currently posted as Assistant General Manager (Legal Services), M/s. Tata Motors Ltd. … … Petitioner

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-Versus-

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Bhairav Nath Shrivastava son of Late K.P. Shrivastava, resident of Ramadhin Bagan, Garadi near Manfit, P.O.- Indranagaram, P.S.Telco, Town- Jamshedpur, District- Singhbhum East (Jharkhand) (Deleted vide order dated 10.06.2019).

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Smt. Manorama Shrivastava (wife) aged about 70 years

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Sri Tarkeshwar Nath (Son) aged about 45 years

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Sri Tripti Nath (Son), aged about 40 years

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All are residents of Ramadhin Bagan, Garadi, near Manfit, P.O.Indranagaram, P.S.- Telco, Town- Jamshedpur, District- East Singhbhum (Jharkhand)

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Smt. Madulika (daughter), aged about 39 years, wife of Shri Ashis Varma, R/O: Flat No. 1E, Maa Tara Apartment, 264, Purulia Road, Kanta Toli, P.O. & P.S.- Lalpur, District- Ranchi (Jharkhand) … … Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Ms. Rashmi Kumar, Advocate For the Respondents : Mr. Manish Kumar, Advocate

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Lastly heard on 03.12.2024

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23 /02.01.2025

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1. Heard the learned counsel appearing on behalf of the parties.

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2. This petition has been filed for the following reliefs: -

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“(a) For setting aside the award dated 28.12.2011 (pronounced in Open Court on 17.07.2012) (Annexure-4) passed in Reference Case No. 36 of 2002 by Sri Shiv Kumar Yadav, learned Presiding Officer, Labour Court, Jamshedpur whereby and whereunder he has been pleased to answer the reference in favour of the respondent and directed the petitioner to pay 3/4^th of the back wages and consequential benefits to the respondent from the date of his termination till the date of his superannuation along with interest @7% per annum.

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(b) For issuance of appropriate writ(s)/ order(s)/ direction(s) quashing the order making reference under Section 10(1)(c) of the Industrial Disputes Act dated 30.05.2002.

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(c) Any other relief or reliefs as Your Lordships may deem fit and proper for which the petitioner is very much entitled under the facts and circumstances of the case.”

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Argument of the Petitioner

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3. The learned counsel for the petitioner while assailing the impugned award submitted that the concerned workman was terminated on 02.11.2000 and three months’ salary was also given to him in lieu of notice period and he has received the entire terminal benefits in the year 2006 itself without any objection. The entire exercise included issuance of clearance certificate, the three months’ salary and also retiring gratuity. She submitted that after having received the terminal benefits without any protest, the concerned workman raised an industrial dispute challenging his order of termination. She submitted that the concerned workman having accepted the payment discontinued to be an employee of the petitioner and therefore, there was no relationship of employer and employee and consequently the reference itself was not maintainable.

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4. The learned counsel further submitted that the concerned workman was working as engineer in TM 1 Grade and was having the status and function of supervisory job and was drawing monthly wages @ Rs.9,985/- and consequently, he could not have been said to be a ‘workman’ within the meaning of the Industrial Disputes Act. She further submitted that a specific point in this regard was raised and evidence of the management witness was also produced to that effect inasmuch as the management witness had stated that the concerned workman was doing supervisory work, but this aspect of the matter has not been properly considered by the court and the findings with regard to Point No.1 is perverse.

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5. The learned counsel also submitted that the termination of the concerned workman has been set aside with 3/4^th of his back wages and consequential benefits from the date of his termination till the age

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of his superannuation with interest @7% per annum. There was no statement from the side of the workman in the entire record that he remained unemployed after the order of termination. The learned counsel for the petitioner relied upon the judgment passed by the Hon’ble Supreme Court reported in (2006) 1 SCC 479 (U.P. State Brassware Corpn. Ltd. and Another -vs- Uday Narain Pandey) Paragraph- 61 and 62 to submit that it was for the workman at the first instance to plead that he remained unemployed and that having not been done so, the award of back wages, being perverse, calls for interference.

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Argument of the Respondents

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6. The learned counsel appearing on behalf of the respondents while opposing the prayer submitted that the impugned award is a well-reasoned award which does not call for any interference under Article 226 of Constitution of India.

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7. With regard to the scope of interference, under Article 226 of the Constitution of India, the learned counsel referred to the judgment passed by the Hon’ble Supreme Court reported in 2023 SCC OnLine SC 996 (Central Council for Research in Ayurvedic Sciences and Another -vs- Bikartan Das and Others) Paragraph-51 onwards.

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8. The learned counsel further submitted that the payment made to the concerned workman was forwarded by the employer and consequently, the workman received the payment and the document in connection with the payment of gratuity does not even contain the signature of the concerned workman. He submitted that the concerned workman raised the dispute on the very next month of receipt of the terminal benefits and it cannot be said to be an afterthought from the side of the concerned workman.

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9. The learned counsel also submitted that the termination of the concerned workman was under challenge and therefore, it cannot be said that he ceased to be a workman within the meaning of Industrial Disputes Act.

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10. The learned counsel further submitted that with regard to the plea that the workman was working as supervisory capacity, the learned court has cited reasons for rejecting such plea based on materials on record and therefore, the findings do not call for any interference. He submitted that merely a statement that he was working as supervisory capacity is not sufficient. He relied upon a judgment passed by the Hon’ble Supreme Court reported in 1988 Supp SCC 82 (National Engineering Industries Ltd. -vs- Shri Kishan Bhageria and Others) Paragraph-7, to submit that the nature of work was required to be duly placed on record to claim that the concerned workman was working in supervisory capacity. He submitted that the finding in connection with the aforesaid issue is well reasoned and does not call for any interference.

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11. With respect to payment of back wages, the learned counsel relied upon the judgment passed by Hon’ble Supreme Court reported in (2013) 10 SCC 324 (Deepali Gundu Surwase -vs- Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Others) Paragraph-38 and submitted that it was for the petitioner employer to plead and also prove that the workman was gainfully employed. He also referred to the judgment passed by this Court in L.P.A. No. 42 of 2020 (Tata Steel Limited -versus- Sri R.S. Singh) Paragraph-38 to submit that in the said case, full back wages was granted and no interference was made with regard to grant of back wages.

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12. The learned counsel also submitted that the termination of the workman was found to be without reasonable cause and it was also held that termination was in violation of Section 25F of Industrial Disputes Act. He also submitted that the concerned workman was in employment of the petitioner since 1963 and had served long years of service before he was terminated and this aspect of the matter should be considered while considering the back wages.

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Findings of this Court

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13. The terms of reference was as follows:

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“Whether the termination of service of Mr. B.N. Srivastava and other workmen of Telco Ltd. Jamshedpur is proper and justified? If not, what relief they are entitled to?”

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14. During the course of argument, it transpired that although the terms of reference was in connection with number of workmen, but the present case relates only to Sri B.N. Srivastava and the cause title itself reflects that Sri B.N. Srivastava had represented himself before the learned Labour Court.

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15. It is not in dispute that B.N. Srivastava was appointed as Trade Apprentice way back in the year 1964 and became mechanic in 1967 and at the relevant point of time, he was designated as Engineer and was drawing wages @ Rs.9,985/- per month and was placed in TM 1 Grade.

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16. It is further not in dispute that the said workman was issued termination letter terminating his services with effect from 02.11.2000 and was also given three month’s salary instead of one month’s pay in lieu of notice. The amount was given to the concerned workman in the month of November, 2000 and he raised the dispute challenging his order of termination in the month of December, 2000, though the reference was made vide notification issued in the year 2002 and the reference case was numbered as Reference Case No. 36 of 2002.

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17. The written statement of the management which included the point of maintainability of the reference and jurisdiction of the learned Labour Court has been placed as Annexure-1 to the writ petition. Paragraph-2 of the written statement of the management reveals that objection was raised that the appropriate government did not apply its mind properly while referring the dispute and that the concerned workman was working in supervisory capacity paced in T.M. 1 Grade. Further case was that the performance of the concerned workman was not satisfactory and he was not fit for changed situation in global competition and consequently, the concerned workman was separated vide office order dated 02.11.2000. Further case of the management was that instead of one months’ salary, the concerned workman was

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offered and paid three months’ salary vide cheque dated 09.11.2000 . The case of the management has also been recorded in Paragraph-3 of the impugned award.

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18. On the other hand, the case of the concerned workman was that he was appointed as Trade Apprentice in 1964 and became Mechanic in 1967 and was working in his service on the post till his termination without any stigma, and he was terminated from the service of the company w.e.f. 02/11/2000 by an office order under the signature of senior Vice-President of the company who had no any authority to terminate him. The workman filed representation on 07/11/2000 and also sent reminder on 25/11/2000 to the Chairman, but his request was not considered. Then he has raised the dispute. At the time of termination, his work was to maintain the machinery, equipment and the quality of the production, and he had no control over co-worker, and he was never empowered to recommend or grant leave, nor he was any financial and disciplinary authority and hence, he was a workman within the meaning of the Industrial Disputes Act, 1947 and he was terminated from the service by an office order stating therein that his services no longer required. It was his case that he was terminated without any reasonable cause as no any charge sheet was issued to him for any allegation, nor any enquiry was conducted before his termination. Hence, his termination was illegal and against the principles of natural justice. The workman prayed that he is entitled for reinstatement with full back wages.

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19. The learned Labour Court framed the following issues for consideration: -

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(I) Was Mr. B.N. Srivastava, a workman at the relevant time?

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(II) Whether the termination of the workman from the service by the management is justified? If not, what relief he is entitled to?

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20. On behalf of the workman, the concerned workman was the sole witness. He, interalia, exhibited appreciation letters dated 30.09.1992 (Exhibit-W), 09.04.1998 (Exhibit-W/1) and 31.12.1988

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(Exhibit-W/2) and office order dated 29.04.2000 granting him special increment (Exhibit-W/3) in the year of his termination. It was the case of the workman that he was terminated without any reasonable cause and without any termination compensation. The workman was cross examined and during cross-examination, he stated that he had joined the service of the company willfully without any pressure and he has received final settlement and there were no term and condition in his appointment letter.

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21. On behalf of the management two witnesses were examined. The management witnesses exhibited certain documents including power of attorney (Exhibit-M/1), delegation of power (Exhibit-M/2), employment card (Exhibit-M/3), separation letter dated 02.11.2000 (Exhibit-M/4), letter dated 09.11.2000 sending 3 month’s salary as payment on account of notice period (Exhibit-M/5), office order dated 10.11.2000 (Exhibit-M/6) and clearance certificate dated 15.11.2000 (Exhibit- M/7)

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22. The learned Labour Court decided the aforesaid Point No. I in favour of the workman and upon considering the materials on record, held that the concerned workman was a workman at the relevant point of time and was not working in supervisory capacity.

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23. The argument of the petitioner is that at the relevant point of time, the workman was working as supervisory capacity. This Court finds that the said point has been decided under Point No. I vide Paragraph-8 of the impugned award. The learned Labour Court considered the materials on record and found that the workman was not assigned any power of control or supervision and the management has also not been able to show this fact. The finding of the learned Presiding Officer, Labour Court, Jamshedpur regarding Point No. I in Paragraph-8 is as under: -

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“ 8. Going through the oral and documentary evidence, I find undisputed facts that the concerned workman was employed in the company as machinist and at the time of termination, his designation was as an Engineer and the workman was

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terminated by stating that his service was no more required in the company.

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The Case of the management is that at the relevant time, the workmen was an Engineer and had control over the workman and his duty was managerial/supervisory. Hence, the concerned workman was not a workman within the meaning of I.D. Act. In reply, workman has stated that his designation was ornamental, but his work was to maintain machinery and also to maintain the quality of the production. He was never given any financial and disciplinary authority over the other workmen. Considering the material available on the record, it is clear that workman has been able to established that he was not assigned any power of control or supervision, and the Management has not been able to show these facts.

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Under the circumstance, I find force in the submission of the workman. The Hon'ble Apex court has held that an undue importance need not be given for the designation of an employee or the name assigned to the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs? The designation of the workman is not enough for the consideration for being a for the said purpose, it is necessary to prove that there were some persons working under him whose work is required to supervise; and thus, it is needed to see the dominant work done by the workman at the time of termination whether he was a supervisor, and a person indisputably carries an supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. and the work involves exercise of tact and independence, and thus, by the said standard, I am of the opinion that Mr. B.N. Srivastava did not come within the purview of the exclusionary clause of the definition of workman. Hence, he was a workman at the relevant time.”

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24. In 1988 Supp SCC 82 (National Engineering Industries Ltd. -

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vs- Shri Kishan Bhageria and Others) , it has been held by the Hon'ble Supreme Court that the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle is that one must look into the main work and that must be found out from the main duties. A supervisor is one who could bind the company to take some kind of decision on behalf of the company. The paragraph relevant for the purposes of this case is quoted as under:-

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“ 7. In P. Maheshwari v. Delhi Administration, (1983) 3 S.C.R. 949 the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. See in this connection Black's Law Dictionary, Special Deluxe, Fifth Edition. At page 1290, "Supervisor" has been described, inter alia, as follows:

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"In a broad sense, one having authority over others, to superintend and direct. The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

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25. This Court finds that except the statement that the workman was working in supervisory capacity and designation was that of an engineer, no further evidence or material was placed on record from the side of the management regarding the nature of work being performed by the concerned workman, although it was specifically asserted by the concerned workman that he was not working in supervisory capacity. This Court is of the considered view that the designation of the concerned workman as engineer and the grade which was assigned to him by itself was not sufficient to prove that he was working in supervisory capacity. This Court is of the considered view that in absence of any positive evidence with regard to the nature of work assigned to the concerned workman or to the persons having the designation which was given to the concerned workman, the petitioner-management failed to prove that the concerned workman was working in supervisory capacity. The learned labour court has considered the materials on record and has come to a definite finding that the concerned workman was not working on supervisory capacity.

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No material as such has been pointed out by the learned counsel for the petitioner to demonstrate that such finding of the learned labour court suffers from any perversity calling for any interference in writ jurisdiction. The findings of the learned Labour Court with respect to Point No. I is well reasoned and does not call for any interference.

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26. It has been argued by the learned counsel for the petitioner that the workman had accepted the terminal benefits without any objection and the relationship of the concerned workman with the petitioner did not exist at the time as employer and employee relationship and therefore, the original respondent was not a workman within the meaning of the Industrial Disputes Act. On the other hand, it is the case of the respondents that the workman raised the Industrial Dispute immediately and whatever amount was handed over to the workman was received, but the termination was in complete violation of the provisions of Section 25F of Industrial Disputes Act and was also without any reasonable cause and consequently, the dispute was raised within a short period of one month.

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27. This Court finds that the Industrial Dispute was referred for adjudication by the competent authority and the learned Labour Court, Jamshedpur was under a legal obligation to answer the reference. Considering the facts that the dispute with regard to termination was raised immediately after the order of termination, it cannot be said that the concerned workman was estopped from raising the dispute with regard to legality and validity of his termination. This Court is of the view that merely because the concerned workman was terminated, the same does not mean that the learned labour court did not have the jurisdiction to decide the legality and validity of the termination. The dispute with regard to the termination having been raised immediately upon termination, it cannot be said that the concerned workman had accepted the termination. Accordingly, the payment received by the concerned workman has no bearing in the facts and circumstances of this case. Moreover, it was the specific case of the concerned workman that the termination compensation in terms of Section 25F

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was also not paid to him. Accordingly, the argument of the learned counsel for the petitioner that the reference was not maintainable is devoid of any merit and hence rejected.

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28. With regard to Point No. II, the learned labour court considered the materials on record and found that the management witnesses had stated that concerned workman was terminated as his work was not satisfactory, but no appointment letter was placed on record to bring on record the terms and conditions of service. The learned labour court also considered the appreciation letters given to the concerned workman for his performance and the workman was also granted special increment vide order dated 29.04.2000 and in the same year, he was terminated by alleging that his performance was not satisfactory. Considering the aforesaid facts the learned labour court recorded that it could be safely said that the performance of the workman was throughout satisfactory and the workman was terminated from the service without any reasonable cause and after having held so, the learned labour court has considered that the petitioner paid only three months’ notice to pay to the workman and no termination compensation paid to the workman by the management in terms of Section 25 F of Industrial Disputes Act, 1947. Thus, the petitioner failed to satisfy the learned labour court that the termination of the services of the workman was on account of unsatisfactory performance and consequently, the learned labour court held that the termination was without any reasonable cause.

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29. The learned labour court ultimately held the termination without compliance with the provisions of Section 25F of the Act and rendered the termination void ab initio and inoperative and consequentially held that the termination of the concerned workman was not justified and further held that workman is entitled for reinstatement in his service. This Court finds no illegality and perversity in connection with the findings recorded by the learned labour court with regards to Point No. II that the termination of the services of the concerned workman was without any reasonable cause

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and also in violation of Section 25F of the Industrial Disputes Act, 1947.

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30. While considering the consequential relief, the learned labour court recorded that the workman was 17 years of age on 24.12.1963 and he has reached the age of superannuation prior to the judgment passed by the learned labour court and consequently, granted back wages to the extent of 3/4^th of his back wages and consequential benefits from the date of his termination till the date of superannuation alongwith the interest @7% per annum.

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31. This Court finds that at any point of time, the concerned workman did not even whisper that he had remained unemployed after the order of termination in the month of November, 2000. However, the learned labour court has awarded 3/4^th of his back wages and consequential benefits till the age of superannuation with interest @ 7% per annum.

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32. In the judgement reported in (2006) 1 SCC 479 (U.P. State Brassware Corpn. Ltd. and Another -vs- Uday Narain Pandey) , it has been held that it is now well-settled by various decisions that although earlier this Court insisted that it was for the employer to raise the plea that the concerned workman was employed during his termination period, but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman and a reference has been made to the earlier judgement wherein it was held that the initial burden is on the employee to plead that he remained unemployed and then the employer can bring on record materials to rebut the claim. Further in the judgement passed by the Hon'ble Supreme Court in the case of (2013) 10 SCC 324 (Deepali Gundu Surwase -vs- Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Others) , the proposition for grant of back wages have been culled out in paragraph 38 wherein it has been held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule, but this rule is subject to the rider that while deciding the

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issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee / workman, the financial condition of the employer and similar other factors. It has also been held that ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages and if the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee / workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. It has also been held that the cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages and in such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same and the Courts must always keep in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 33. On the basis of the aforesaid judgements, this Court is of the considered view that the award of back wages cannot be interfered only on the ground that the concerned workman did not plead that he

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was not gainfully employed during the period of termination and it has to be seen in the light of the facts and circumstances of each case.

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34. This Court finds that the length of service put in by the concerned workman is certainly an important factor while considering the award of back wages. In the present case the fact remains that the concerned workman had already put in more than 35 years of unblemished service and he was terminated one fine day without any reasonable cause and without giving him termination compensation and such termination was held to be in violation of Section 25F of Industrial Dispute Act, 1947. Further considering the finding that only a few years of service was left to the workman for attaining the age of superannuation and he was 17 years of age in the year 1963 and would have attained the age of 60 years sometime in the year 2006, this Court is of the considered view that grant of 3/4^th back wages and consequential relief from the date of termination till the date of superannuation is just and adequate which does not call for any interference under the limited jurisdiction under Article 226 of the Constitution of India.

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35. This writ petition is accordingly dismissed.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-

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The Management of Ms Telco Limited through Its Duly Constituted Attorney Shri Rajesh Kumar Das v. Manorama Shrivastava

Case brief

What is this about?

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The Management of Ms Telco Limited through Its Duly Constituted Attorney Shri Rajesh Kumar Das v. Manorama Shrivastava

Case brief

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