Writ Petition No. 3396 of 2007

25th January, 2008

Petitioner Counsel: Mr. S. G. DESHPANDE
Respondent Counsel: Mr. G. G. MODAK,Mr. SHYAM AHIRKAR

Cases Cited:
Century Spinning & Manufacturing Company Ltd. Vs. The Ulhasnagar Municipal Council, 2007 ALL SCR (O.C.C.) 105 : 1970(1) SCC 582 [Para 30]
National Engineering Industries Ltd. Vs. State of Rajasthan, (2000)1 SCC 371 [Para 30]
Mukand Ltd. Vs. Mukand Staff & Officers' Association, 2004(5) ALL MR 839 (S.C.)=AIR 2004 SC 3905 [Para 30]
Pirmohmad Karim Mohmad Pathan Vs. Sayaji Iron & Engg. Co. Ltd., (2005)1 CLR 261 [Para 30]
Sarat Chandra Mishra Vs. State of Orissa, (2006)1 SCC 638 [Para 30]
Director, Food & Supplies, Punjab Vs. Gurmit Singh, 2007 ALL SCR 2229 : (2007)5 SCC 727 [Para 30]
Mathura Prasad Bajoo Jaiswal Vs. Dossibai N. B. Jeejeebhoy, 1970(1) SCC 613 [Para 31]
The Andhra Pradesh State Rd. Transport Corpn., Hyderabad Vs. P. Venkateswara Rao, (1976)4 SCC 47 [Para 31]
Union Bank of India Vs. Union Bank of India Employees Union, Pune, (2003)III CLR 355 [Para 31]
Secretary, Indian Tea Association Vs. Ajit Kumar Barat, AIR 2000 SC 915 [Para 31]
Wyeth Employees Union Vs. Araine Orgachem Pvt. Ltd., 2007(6) ALL MR 580=(2007)III CLR 315 [Para 31]
Harnam Singh Vs. Punjab State Electricity Board, (2000)II LLJ 313 [Para 31]
Isabella Johnson [Smt.] Vs. M. A. Susai [dead] by Lrs., (1991)1 SCC 494 [Para 31]
Sonepat Co-op. Sugar Mills Ltd. Vs. Ajit Singh, 2005(5) ALL MR 427 (S.C.)=(2005)3 SCC 232 [Para 31]
ANZ Grindlays Bank Ltd. Vs. Union of India, (2005)12 SCC 738 [Para 31]
Management of Express Newspapers (Pvt.) Ltd., Madras Vs. The Workers, AIR 1963 SC 569 [Para 31]
LKP Merchant Financing Ltd. Vs. Govt. of NCT, Delhi, (2003)II LLJ 210 [Para 31]
Kopargaon Agricultural Produce Mktg. Committee Vs. Dy. Commr. of Labour, 2007(5) ALL MR 159=2007(6) Mh.L.J. 233 [Para 31]
DLF Housing Construction [Pvt.] Ltd. Vs. Delhi Municipal Corpn., AIR 1976 SC 386 [Para 31]
Union of India Vs. T. R. Varma, AIR 1957 SC 882 [Para 31]

JUDGMENT

JUDGMENT : - FACTS

In this petition, notice before admission was issued. The petition is, however, taken up for final hearing and disposal by consent. Hence Rule, and Rule is made returnable forthwith.

2. The petitioner herein was appointed as a Supervisor [Process]. According to the petitioner, the post was of a non-executive cadre. The petitioner's initial appointment was on probation and he was, in due course, confirmed in the employment. According to petitioner, the work undertaken by the petitioner was of a Skilled Technician, and he never worked in the capacity of a Supervisor, and, therefore, he was a workman as defined by Section 2 [s] of the Industrial Disputes Act, 1947.

3. Petitioner's services were terminated by assigning the ground of absence without any show cause, enquiry etc., with effect from 31st March, 1993 by Order dated 1st January, 1993.

4. The termination order was challenged by the petitioner by filing Writ Petition No.1357 of 1994. The said petition was allowed to be withdrawn with liberty to represent to the employer. Petitioner's representation was rejected. He, therefore, filed another Writ Petition No.3462 of 1998 challenging rejection of representation and also termination of his services. The Writ Petition was rejected by this Court by Order dated 15th December, 1998 with liberty to the petitioner to take recourse to the Forum as available in law.

5. The petitioner then raised a demand. The matter was subjected to conciliation proceedings, and was referred for adjudication to Labour Court [Central] under Section 10 [1], read with Section 12 [5] of the Industrial Disputes Act. The Term of Reference reads as follows:-

"Whether the action of the Management - Manganese Ore [India] Ltd., Nagpur in terminating the services of Shri. Mohammad Yunusuddin Shaikh w.e.f. 31.3.93 is legal and justified? If not, to what relief the said workman is entitled to and from which date?"

[quoted from page 5 of the Paper-Book of Writ Petition]

6. The employer preferred a Writ Petition challenging the Government's order making the Reference. The grounds of challenge, as enumerated in Writ Petition No. 678 of 2000, can be summarized, namely:-

[a] That no industrial dispute arose on 31st March, 1993 and the Reference in absence of Industrial Dispute, was incompetent.

[b] In view of disposal of Writ Petition Nos.3157 of 1994 and 3462 of 1998, the Reference is incompetent.

[c] That, the petitioner was not a workman within the purview of Section 2 [s] and hence Reference was incompetent.

[d] That the Reference was bad due to delay.

7. Writ Petition No.678 of 2000 was heard by this Court and decided by Judgment and Order dated 6th July, 2001.

8. After dismissal of Writ Petition No.678 of 2000, the proceedings commenced before Labour Court. On the employer's objection, a preliminary point as to the status of the petitioner as a 'workman' was framed. It is seen that employer has led its evidence to prove the objection and in the midst of the trial of said issue, when the cross-examination of third witness of the Management was to be conducted, the petitioner herein filed application [Annex.1] and objected to hearing on the preliminary point.

9. The ground of objection, as raised by petitioner herein, is that the issue as to petitioner's status as a "workman" was not open for enquiry, since the question was finally concluded in the Judgment in Writ Petition 678 of 2000, which was not challenged by the employer in the Supreme Court.

10. The petitioner's application was heard, and has been rejected by the Judge, Labour Court, by his Order dated 7th February, 2007, which is impugned in this petition.

11. The Judge, Labour Court, considered the submissions and held that :-

[a] The issue before the High Court was as to whether the Reference was competent.

[b] The High Court gave liberty to both the parties to raise all issues, including to consider additional evidence as to whether the petitioner falls within the definition of Section 2[s] of the Industrial Disputes Act.

[c] It is exclusive jurisdiction of Labour Court to receive and consider the evidence as to a person whose dispute is referred for adjudication to be a workman or otherwise.

[d] The finding recorded in the Judgment and Order rendered in Writ Petition No.678 of 2000 did not operate as res judicata.

[e] Principle of estoppel has no application to the case on hand.

The points noted above have been drawn from unnumbered third paragraph of the impugned judgment.

12. Both the parties have addressed this Court orally as well as furnished citations.

SCOPE OF INQUIRY IN WRIT PETITION CHALLENGING ORDER OF GOVERNMENT MAKING A REFERENCE OF INDUSTRIAL DISPUTE.

13. Ordinarily, whenever the action of appropriate Government making a Reference of an Industrial Dispute is challenged on any grounds, High Court declines to entertain a challenge to Reference on points requiring fact-finding, hearing and enquiry or trial for that purpose and all such points are normally not adjudicated. This Court would ordinarily restrict itself to the ground if the Government had material before it permitting it to exercise the power of making a reference.

FACT SITUATION OF WRIT PETITION NO.678 OF 2000

14. In the case on hand, however, the employer preferred to agitate before this Court and addressed strenuously on various other points and invited the findings on various issues. One amongst points pressed is the question as to present petitioner's status as a workman.

15. It is revealed from record of Writ Petition No.678 of 2000 that in the last few lines of paragraph 14 of the body of Writ Petition, the employer, who was petitioner, raised a specific ground, which reads as follows :-

"14. .....Before the Dispute could be said to be an Industrial Dispute for the purpose of making a reference under Section 10 and for its adjudication as such, it was necessary on the part of the respondent no.1 to first have ascertained as to whether the respondent no.3 was a workman at all. Failure to apply its mind to this aspect of the matter goes to the root thereby ousting the jurisdiction of machinery under the I.D. Act. This has rendered the Reference totally incompetent and irrelevant."

[quoted from pages 9 and 10 of the Paper-Book of Writ Petition No.678 of 2000].

16. The petitioner herein, who was respondent in Writ Petition No.678 of 2000 has dealt with his plea as to the nature of work undertaken by him, and urged that he was a Workman. Relevant pleadings in reply seen in para [g] of the Return read as follows :-

"[g] .....Even otherwise it may seen that this respondent as Supervisor [Process] in Nonexecutive Cadre was not discharging any administrative or managerial function so as to get himself excluded from the ambit and scope of definition of workman [enclosed as Annex.III] which is as per clause [s] of Section 2 of the I.D. Act, 1947. It may be noted further that Supervisor [Process] being employed in any mine as defined in clause [J] of Section [2] of Mines Act, 1952 in mining operation or in any kind of work, other than clerical work incidental or connected with the minerals obtained is within the definition of workman as per Sec.2 (1)(n)(V) of Workman Compensation Act, 1923. In view of this position the petitioner's contention that this respondent was not discharging the duties of workman within the mischief of Sec.2[s] I.D. Act cannot be accepted."

[quoted from pages 90 of the Paper-Book of Writ Petition No.678 of 2000].

Even while replying para 14 of the petition by incorporating certain averments in para [o] of the Return, the petitioner herein has denied the allegations that he is not a workman.

17. As noted by this Court earlier, normally any prudent employer under appropriate legal advice would never seek to test and have a ruling of High Court on the question which needs adjudication on facts in a full trial as, a decision on facts. This has to be so, as there would be many limitations in the summary jurisdiction before the High Court. However, it is seen that present petitioner had not just raised the point of the status of present petitioner, but made it an issue and the point to be pressed with all seriousness, as is evident from what the learned Judge has recorded in para 20 of the Judgment delivered in Writ Petition No.678 of 2000 that the point as to whether the respondent therein - present petitioner is a workman was strenuously urged.

18. Instead of re-spelling and providing a diction for what was argued before this Court in Writ Petition No.678 of 2000, it would be better and convenient to rely upon ad verbatim what this Court has recorded as pleadings and submissions of employer which are quoted below for ready reference:-

"20. It is then contended by Shri. Modak, that the respondent no.3 by his very appointment as Supervisor [Process] in the pay-scale of Rs.1595-78-2219-82-2975 plus allowances could not be said to be a workman but the respondent No.1 failed to consider this aspect of the matter. According to Shri Modak the respondent no.3 was alive to this aspect and, therefore, instead of approaching the machinery under the I.D. Act, he chose to move this Court under Articles 226 and 227 of the Constitution of India firstly by filing Writ Petition No.1357/94 and then by filing Writ Petition No.3462/98. However, neither the Respondent No.1 nor the canciliation officer took this aspect into consideration. According to Shri. Modak, this fact goes to the root of the matter thereby ousting the jurisdiction of the respondent no.1 as well as respondent no.2 to try and decide the dispute in question under I.D. Act which rendered the impugned reference incompetent."

[quoted from page 39 of the Paper-Book of present Writ Petition].

19. The language used by this Court, while describing the plea of the petitioner, has to be considered as conclusive on what was argued and pressed before the Court.

20. This Court has in the result noted the submissions in paragraph nos.21 to 26 and has then dealt with factual aspects of the matter in para 27. In para 27, this Court recorded various factual backgrounds, namely :-

[a] Advertisement for appointment [Annex.3] inviting applications for the post of Supervisor [Process].

[b] Duties of Supervisor [Process] to receive raw material and dispatch finished goods, and in absence of a Foreman, to look after the work of Foreman.

[c] The nature of work undertaken by the present petitioner was found to be of clerical and manual in nature.

21. This Court further held that nothing was brought on record by the employer to support the plea that the present petitioner undertook the work of administrative, managerial or supervisory in nature predominantly and then recorded a finding in para 27 as follows:-

"27. In the case in hand, admittedly, the Respondent No.3 was working as Supervisor [Process] in the pay scale of Rs.1595-78-2219-82-2957. On the close scrutiny of the copy of advertisement [Annex.3] annexed by the respondent no.3 with his reply, it appears that the duties of Supervisor [Process] were of receiving raw material and dispatching finished product. It is no doubt true that incidentally and owing to casual absence of plant foreman, the Respondent No.3 was required to look after the work of plant foreman. This shows that substantial part of the work of the respondent No.3 consists of manual and clerical nature. There is absolutely no material on record to show that the respondent no.3 though worked as Supervisor [Process] he was supervising the work of other employees. ...."

[quoted from page 43 of the Paper-Book of present Writ Petition].

22. After dealing with all the points raised by the petitioner, this Court has proceeded to pass a final order and dismissed the petition by discharging Rule.

23. It is seen that any of the observations made directly, indirectly or passingly do not give any liberty to the employer to treat the observations recorded in the Judgment to be "what appeared prima facie and not binding or not by way of adjudication" or in long (?) whatsoever.

24. The findings recorded by this Court, therefore, do assume the nomenclature of "per invitum." It was the sheer persistence of the employer, due to which these findings are apparently recorded by this Court. Had all other points been urged and had this point not been pressed with vigor, as is apparent, this Court would have definitely omitted to touch this issue, leaving it open to Labour Court to decide it.

THE IMPUGNED JUDGMENT

25. In the aforementioned background, learned Judge, Labour Court has recorded the findings and observations in the impugned order to the effect that :-

".....Thus the Hon'ble High Court has given the liberty to the petitioner for approaching to the proper Court which includes a right to the both parties to raise all the issues including to consider after adducing the evidence whether the petitioner falls within the definition of Section 2[s] of I.D. Act or not. It has not restricted the right of management to raise any issue before the Labour Court. ...."

[quoted from page 21 of the Paper-book of present Writ Petition]

26. Learned Advocate Mr. Modak's last point is that there is a difference in challenge and issues. Status of the workman was never an issue before High Court.

27. It is seen in the Judgment in Writ Petition No.678 of 2000 that this Court has referred to the submissions one after the other as if issues were formally framed. Moreover, the grounds of challenge as agitated in Writ Petition No.678 of 2000 are vivid enough from various averments. It would, therefore, be attempting to be hyper technical to say that as no points were formulated in the said Judgment, the issue in challenge was not at all addressed or decided.

28. Once this Court finds that the issue of workman was addressed and decided, it becomes a res judicata. The doctrine can be borrowed from Explanation VIII to Section 11 of Civil Procedure Code. Moreover, the doctrine of 'constructive res judicata' is well known to the system and the employer has to suffer for what it persuaded with all vigour and sincerity, but now wants to disown.

29. This Court is of the view that from the factual matrix of the case, it is clear that this Court's Judgment, order and findings in Writ Petition No.678 of 2000 are the product of sheer volution and are invited by the employer, and are binding on it.

30. Learned Advocate for the Petitioner Mr. S. G. Deshpande placed reliance on following Judgments to substantiate his points:-

[1] Century Spinning & Manufacturing Company Ltd. & another Vs. The Ulhasnagar Municipal Council & another [1970(1) SCC 582 : 2007 ALL SCR (O.C.C.) 105],

[2] National Engineering Industries Ltd. Vs. State of Rajasthan & ors. [(2000)1 SCC 371],

[3] Mukand Ltd. Vs. Mukand Staff & Officers' Association [AIR 2004 SC 3905 : 2004(5) ALL MR 839 (S.C.)],

[4] Pirmohmad Karim Mohmad Pathan Vs. Sayaji Iron & Engg. Co. Ltd. [(2005)1 CLR 261],

[5] Sarat Chandra Mishra & ors. Vs. State of Orissa & ors. [(2006)1 SCC 638], and

[6] Director, Food & Supplies, Punjab & another Vs. Gurmit Singh [(2007)5 SCC 727 : 2007 ALL SCR 2229].

31. Learned Advocate Mr. Modak for the respondent no.1 has placed reliance on following Judgments :-

[a] Mathura Prasad Bajoo Jaiswal & ors. Vs. Dossibai N. B. Jeejeebhoy [1970(1) SCC 613],

[b] The Andhra Pradesh State Rd. Transport Corpn., Hyderabad Vs. P. Venkateswara Rao & ors. [(1976)4 SCC 47],

[c] Union Bank of India Vs. Union Bank of India Employees Union, Pune & ors. [(2003)III CLR 355],

[d] Secretary, Indian Tea Association Vs. Ajit Kumar Barat & ors. [AIR 2000 SC 915],

[e] Wyeth Employees Union Vs. Araine Orgachem Pvt. Ltd. & ors. [(2007)III CLR 315 : 2007(6) ALL MR 580],

[f] Harnam Singh & ors. Vs. Punjab State Electricity Board & ors. [(2000)II LLJ 313],

[g] Isabella Johnson [Smt.] Vs. M. A. Susai [dead] by Lrs. [(1991)1 SCC 494],

[h] Sonepat Co-op. Sugar Mills Ltd. Vs. Ajit Singh [(2005)3 SCC 232 : 2005(5) ALL MR 427 (S.C.)],

[i] ANZ Grindlays Bank Ltd. Vs. Union of India & ors. [(2005)12 SCC 738],

[j] Management of Express Newspapers (Pvt.) Ltd., Madras Vs. The Workers & ors. [AIR 1963 SC 569 (V 50 C 89)],

[k] LKP Merchant Financing Ltd. Vs. Govt. of NCT, Delhi & ors. [(2003)II LLJ 210],

[l] Kopargaon Agricultural Produce Mktg. Committee Vs. Dy. Commr. Of Labour & ors. [2007(6) Mh.L.J. 233 : 2007(5) ALL MR 159],

[m] DLF Housing Construction [Pvt.] Ltd. Vs. Delhi Municipal Corpn. & ors. [AIR 1976 SC 386], and

[n] Union of India Vs. T. R. Varma [AIR 1957 SC 882 [V. 44 C. 129 Dec.].

32. No case is cited by learned Advocate for the respondent no.1 to urge that the finding recorded in writ jurisdiction, though it be at the behest of party suffering it does not operate as res judicata. In the background of factual matrix noted and discussed herein before, this Court has not discussed the Judgments cited by both sides.

33. In the backdrop of unambiguous findings by this Court in Writ Petition No.678 of 2000, the finding of Labour Court, quoted above, is liable to be based on conjectures, since it amounts to reading in a Judgment what is not the dictum. For arriving at these conclusions and findings, bare comparison of the Judgment of this Court is to be done with what Judge, Labour Court, reads in the judgment of this Court.

34. Here is a case of a guided rather [misguided] workman, who, at the threshold, instead of approaching the right course under the Industrial Disputes Act, was repeatedly brought before this Court, and ultimately when he is in the rightful forum, now attempt is again made by the employer to show him an exit by trying his case on a preliminary point on which the employer invited a finding by consciously arguing the matter before this Court. The fact the workman did not punctually object to the hearing of the preliminary issue does not outweigh finding recorded by this Court in his favour.

35. Rule is, therefore, made absolute. Order impugned is set aside. Application filed by petitioner before Labour Court, dated 7th February, 2007 is allowed. It is declared that the question if petitioner is a workman is not open for enquiry by Labour Court. Costs are quantified in a sum of Rs.5,000-00 [rupees five thousand only], which the employer will have to pay by depositing it in the Labour Court within six weeks with liberty to the present petitioner to withdraw the same.

Petition allowed.