Food Corporation of India Vs K v Sreenivasan

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE AWARD DATED 14.09.2017 PASSED IN CR.NO.30/1989 C/W COMPLAINT NO.01/1989 BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT VIDE ANNEXURE-M.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING, IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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This petition is filed by the petitioners to quash the

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common award dated 14.09.2017 in CR.No.30/1989 C/w. Complaint No.1/1989 passed by the Central

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Government Industrial Tribunal-cum-Labour Court (for short, 'tribunal').

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The petitioners-Food Corporation of India (for

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short, 'FCI') is a statutory Corporation constituted by the Government of India. The respondent-workman raised the industrial dispute before the Regional Labour Commissioner (C), Bengaluru against the petitioners seeking cancellation of the transfer order of the respondent, who was the Regional Secretary of the FCI Employees Union. The Government of India made reference under Sub-Section 2(A) of Section 10 of the Industrial Dispute Act, 1947 (for short, 'the Act') for

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adjudicating the issue. The issue raised before the tribunal was that -

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"Whether the action of the management of the Food Corporation of India in transferring Shri K.V.Sreenivasan, Regional Secretary of FCI Employees Union, Karnataka Region, Karnataka Region to Tamil Nadu Region, is justified? If not, to what relief the said employee is entitled?"

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2.1 It is the case of the petitioners that the respondent was transferred from Bengaluru to Tuticorin subsequent to his promotion, but despite the said transfer, the respondent remained absent from duty from 31.01.1987 to 27.04.1989. After following due procedure of law, domestic enquiry was held against the respondent and based on the said enquiry report, the respondent was terminated from services of the petitioners-FCI.

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2.2 The respondent challenged the said order of termination by way of complaint before the tribunal in

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complaint No.1/1989. The reference in CR.No.30/1989 and

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complaint No.1/1989 were clubbed and tried together.

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2.3 To the claim petition filed by the respondent, the petitioners filed detailed objections denying the charges made about mala fide intentions of the FCI in transferring the respondent, contended that it was normal course of transfer for service exigencies and administrative reasons and sustained the order of transfer of respondent from Bengaluru to Tuticorin.

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2.4 It is the case of petitioners that during the pendency of the proceedings before the tribunal, the respondent filed a petition before the Disciplinary Authority that he is about to retire and the order of dismissal passed by the petitioners may be reconsidered. Taking into consideration the request of the respondent, the order of dismissal passed by the petitioners was converted into one of compulsory retirement. It is the further case of the petitioners that the tribunal,

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considering the changed circumstances of dismissal order being converted into one of compulsory retirement, did not find the need to proceed further with the reference and accordingly, rejected the same. Complaint No.1/1989 filed

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by the respondent was disposed of on 29.06.2001 with a direction to the petitioners-FCI to provide all monetary benefits to the respondent, if already not given.

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2.5 This being the situation, the respondent filed a miscellaneous application in complaint No.1/1989 to recall the order dated 29.06.2001, which came to be allowed by an order dated 27.11.2002. It is the further case of the petitioners that the said order of revival was questioned by the petitioners in WP.Nos.39286 and 39287 of 2004. This Court, vide order dated 30.11.2007, rejected WP.No.39286/2004 and allowed WP.No.39287/2004 on the finding that the respondent is a workman and the tribunal has jurisdiction and further, a direction was issued to the tribunal to dispose of both C.R.No.30/1989 and complaint No.1/1989 within a period of six months and the

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matters be decided by the tribunal after the order of this Court. The tribunal passed an award holding that the punishment of dismissal of the respondent with effect from 27.04.1989 and his transfer to Tamil Nadu is illegal and directed the petitioners to pay 50% of the amount, out of the total amount of backwages with all consequential benefits from the date of dismissal i.e. 27.04.1989 till the superannuation i.e. 30.06.1992.

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2.6 Aggrieved by the above said common award, the petitioners are before this Court.

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It is the vehement contention of Sri Dinesh Rao N., learned counsel for petitioners that the award passed by the tribunal is illegal, perverse, arbitrary and untenable. It is contended that the tribunal erred in alleging that the respondent is a workman as defined under the Act. It is further contended that admittedly, the respondent was working as an Assistant Manager, which was Grade-II Officer post. He was promoted as an Assistant Manager during August, 1986 and he was

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retained in Bengaluru, but during general transfer in January, 1997, he was transferred to Tuticorin. Therefore, he contends that the respondent cannot be considered to be a workman as defined under the Act.

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3.1 Learned counsel further contends that the petitioners taking lenience and giving due credit to the long service of the respondent, modified the order of dismissal during the pendency of reference and converted the same to one for compulsory retirement, thereby enabling the respondent to get pension and gratuity as per the Rules. Learned counsel further contends that after the transfer of the respondent from Bengaluru to Tuticorin, he remained unauthorisedly absent from 31.08.1987 to 27.04.1989.

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3.2 Learned counsel further contends that the charges levelled against the respondent that he remained unauthorisedly absent came to be proved in the enquiry. It is contended by learned counsel for petitioners that the

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order of transfer of the respondent was challenged before this Court in WP.No.1126/1987, which was withdrawn unconditionally and another writ petition in

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WP.No.15666/1987 was filed, which also came to be dismissed. Therefore, the tribunal has failed to take into consideration that the subject matter before the tribunal was hit by res judicata .

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3.3 Learned counsel further contended that the respondent would not fall within the category of workman as defined under Section 2(s) of the Act for the reason that he was working as an Assistant Manager, which is a Grade-II Officer post and he is not the workman as his work is supervisory in nature. He has also contended that the transfer order is only for the exigencies of service. It was taken out on administration ground and there was no mala fide reason or victimisation of the respondent. Therefore, when the respondent is managerial in capacity,

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he cannot be permitted as a workman to come within the definition of Section 2(s) of the Act. Hence, he contends

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that the tribunal has failed to consider these aspects and consider the changed circumstances of the respondent's dismissal being converted into one for the compulsory retirement and without deliberating on the relevant issues and the petition being barred by res judicata, it just proceeded to pass the impugned award, which is illegal and arbitrary and the same deserves to be set-aside.

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3.4 It is also the vehement contention of learned counsel for petitioners that pursuant to dismissal order being converted into one for the compulsory retirement and several litigations that have been filed by the parties, the petitioners made good the entire payment of wages as per the award of the tribunal. Therefore, there is no amount due to be paid to the respondent. It is also contended that during the course of pendency of this petition, the respondent has already superannuated in the year 1992. Hence, the question of reinstatement would not arise and further order passed on payment of 50% of wages and other consequential benefits of the tribunal is

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perverse, illegal and the same deserves to be set-aside.

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On these grounds, he seeks to allow the petition.

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Per contra, Sri Ajay Prabhu M., learned counsel for

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respondent vehemently contends that the respondent was an active member of the trade Union having taken part in the formation of the Union in Karnataka. He was the Vice President of the National Committee and Regional Secretary. Due to his affiliation to the Union and activities

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conducted for the welfare and well being of the workman, he was not liked by the petitioners-FCI. Therefore, there was a deliberate intent to victimise the respondent by one reason or the other. Learned counsel further contends that the respondent was victimised by issuance of chargesheet on 26.06.1976 on the ground that he was exposing misdeeds and illegal activities contrary to the interest of

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the workman and accordingly, the respondent was inflicted with minor penalty after enquiry being conducted and the same was questioned before this Court in

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WP.No.3601/1980 which was allowed and consequently,

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the said order was set-aside.

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4.1 Learned counsel further contends that the FCI promoted some of the employees from the post of Assistant Grade-I to the post of Assistant Manager. The respondent also fell within the same category. Though the respondent being the Senior in the list at Sl.No.24, he was conveniently ignored because of his participation in the trade union. It is contended by learned counsel that due

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to the activities of respondent in the Union, the petitioners transferred the respondent from Bengaluru to Tuticorin with ulterior mala fide intentions on 20.01.1987. It is further contended that due to this order of transfer, a dispute was raised based on which the Central Government made a reference for adjudication of the dispute before the CGIT. Consequently, the petitioners initiated the disciplinary proceedings against the respondent and based on the illegal report, passed an order of dismissal from service. Learned counsel further

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contends that aggrieved by the same, the respondent preferred a claim petition before the tribunal and an award came to be passed by the tribunal in favour of the respondent setting aside the order of dismissal and directed the petitioners to pay backwages and all other consequential benefits, salaries and allowances and benefits of promotion due to the respondent.

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4.2 Learned counsel further contends that there is no

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illegality or perversity in the award passed by the tribunal as all the materials, both oral and documentary have been considered by the tribunal in its order. Since the petitioners have not paid the backwages as ordered by the tribunal, the petitioners are liable to pay the backwages and consequential benefits and all other entitlements.

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4.3 Learned counsel for respondent relies upon the

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judgments of the Hon'ble Apex Court in the cases of Sadhu Ram vs. Delhi Transport Corporation reported in (1983)4 SCC 156 and so also, Srihari Hanumandas

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Totala v. Hemant Vithal Kamath & Ors. reported in

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(2021)8 SCR 387 in support of his case.

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Having heard learned counsel for petitioners and

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learned counsel for respondent, the point that arises for consideration before this Court is-

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"Whether the petitioners have made out any good ground to allow the petition and to setaside the award passed by the tribunal?"

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There is no dispute with regard to the fact that

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the respondent was an employee of the petitioners-FCI. He was promoted from the post of the Assistant Grade-I to

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the post of Assistant Manager and so also, it is not in dispute that the respondent was involved in the trade union activities of the petitioners-FCI. It is also not in dispute that the respondent was transferred to Tamil Nadu (Tuticorin) and relieved by an order dated 20.01.1987 just

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few years prior to superannuation. On the basis of the dispute raised and the complaint lodged against the dismissal order, the tribunal, after considering all the

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materials placed on record and the fact that during the pendency of the case, the order of dismissal was converted into one for compulsory retirement as the respondent had superannuated on 30.06.1992. The tribunal came to the conclusion that the order of dismissal was not justifiable and accordingly, set-aside the same and directed the petitioners to pay 50% of the total amount of backwages and other consequential benefits, salary and allowances, promotion and all benefits that are due to be payable to the respondent till the date of his superannuation by considering the respondent to be in continuous service.

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Learned counsel for petitioners has raised two questions before the tribunal. Firstly, as to the issue of the matter being hit by res judicata, the tribunal did not agree with the petitioners taking into consideration the earlier proceedings as to whether the petitioners have made out any good ground of res judicata being applicable

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in the present facts of the case and having considered all

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the materials that were placed before it. Secondly, the tribunal also answered the issue as to whether the respondent is a workman as contemplated under Section 2(s) of the Act. The same has been elaborately considered relying upon the materials both oral and documentary placed before it. It is not the nomenclature used as Manager or Assistant Manager, but it is the work involved that would decide as to whether the respondent would come within the definition of Section 2(s) of the Act. The tribunal has looked into the aspect as to whether the respondent is performing any supervisory or managerial work or that he was only doing clerical work and he did not have any subordinate physical work. In the present case on hand, the petitioners had initially dismissed the respondent from the service but later on considering the fact that the respondent was due for superannuation converted the same into one for compulsory retirement. It is relevant to note here that the respondent falls within the category of 'protected workman'. It is relevant for this

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Court to see as to whether the tribunal has committed any illegality or perversity in the award passed by it. The tribunal has considered all materials placed on record and dealt with each of the issue for consideration and exercised its discretion in judicious manner by taking all relevant facts into consideration. In my opinion, the award of the tribunal does not warrant interference as the tribunal exercises the discretion to pass the award on the basis of the materials placed before it both on facts and law.

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The judgment in the case of Srihari stated supra

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relied on by learned counsel for respondent would be squarely applicable to the case on hand, wherein the Hon'ble Apex Court at para-17 has held as under:

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"17. Section 11 CPC enunciates the rule of res judicata : a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a 'former suit'. Therefore, for the purpose of adjudicating on the issue of res judicata it is

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necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11. Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C.Saravanabava [(2004) 1 SCC 551] discussed the plea of res judicata and the particulars that would be required to prove the plea. The court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the 'former suit' while adjudicating on the plea of res judicata:

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“11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

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13. Not only the plea has to be taken, it has to be substantiated by producing the copies

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of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward intheir respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964)7 SCR 831] placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in

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the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”"

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In the present case on hand, I do not find any material or evidence placed before the tribunal to confront

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earlier round of litigations. Hence, the question of res judicata will not apply to the present case.

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It is relevant to mention that the scope of interference by this Court on the award passed by the tribunal is in a narrow compass, as this Court is not sitting in the appellate jurisdiction to entertain or consider all the evidentiary matters which were placed and appreciated by the tribunal. In the case of Sadhu Ram stated supra , the

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Hon'ble Apex Court at para-3 has held as under:

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"3. We are afraid the High Court misdirected itself. The jurisdiction under Art. 226 of the Constitution is truly wide but, for that very reason it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate Court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with

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the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court."

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Considering the facts and circumstances of the case, the question of setting aside the award of the

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tribunal would not arise with regard to dismissal of the respondent for the reason that the respondent has already superannuated on 30.06.1992. Now coming to the

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question of second part of the order of payment of 50% of total amount of backwages and consequential benefits, it is submitted across the Bar by learned counsel for petitioners that during the proceedings, entire monetary benefits were paid. Therefore, there is no amount due to

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be paid to the respondent. Strangely, no document is produced by the petitioners. However, pursuant to the award of dismissal, several petitions were filed by the parties against each other and in the contempt petition filed by the petitioners in CCC.No.542/1991, it is stated that the petitioners have issued a cheque for Rs.17,844.95 paisa being difference of the amount from the period from 28.12.1979 to 31.12.1986 which has been accepted by the respondent herein and thereafter, the balance amount was paid. However, learned counsel for respondent contends that the backwages have not been paid for the reason that

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pursuant to the award on 14.09.2017, the petitioners filed this writ petition on 15.12.2017 and obtained an interim order of stay of the award on 06.07.2018 and therefore,

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the wages as per the award of the tribunal has not been paid. In view of the fact that the petitioners have not placed any materials to show that they have paid the backwages at 50% of the amount and other consequential benefits as per the award, they are liable to pay the same from 20.01.1987.

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In view of the fact stated that in the contempt petition, the difference amount has been received by the respondent till 31.06.1986, the respondent would be entitled to payment of 50% of backwages as ordered by the tribunal from 20.01.1987 till the date of his superannuation i.e. 30.06.1992 deducting any amount that is already paid by the petitioners if any by producing necessary proof of such payment.

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In view of the discussions made hereinabove, I pass the following:

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ORDER

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i) The petition is dismissed ;

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ii) Ordered accordingly.

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In view of dismissal of the petition, pending Interlocutory Applications, if any, do not survive for consideration and the same pales into insignificance.

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SD/(PRADEEP SINGH YERUR) JUDGE

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LB List No.: 1 Sl No.: 20

Food Corporation of India v. K v Sreenivasan

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Food Corporation of India v. K v Sreenivasan

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