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M/S SHREE BAIDYANATH AYURVEDH BHAWAN LTD. versus PRESIDING OFFICER & OTHERS

High Court of Judicature at Allahabad

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M/S Shree Baidyanath Ayurvedh Bhawan Ltd. v. Presiding Officer & Others - WRIT - C No. 34309 of 2004 [2007] RD-AH 5215 (23 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No. 34309  of  2004

M/s Shree Baidyanath Ayurvedh Bhawan Ltd., Naini..........Petitioner.

Vs.

Presiding Officer, Industrial Tribunal(I),

7, Strachey Road, U.P. Allahabad and others.................Respondents

********

Hon.Tarun Agarwala,J.

By means of this writ petition, the petitioner has challenged the validity and legality of the award passed by the Industrial Tribunal directing the petitioner to reinstate the workman with full back wages and other consequential benefits including interest on unpaid wages and cost of Rs.5000/-. For facility and convenience, the petitioner is called the "management" and the respondent is called the "workman".

The petitioner is one of the 5 units of M/s Sri Baidyanath Ayurvedh Bhawan Ltd., which is a Limited Company incorporated under the Companies Act 1956, having its Head Office at Kolkata. The petitioner is engaged  in the business of manufacture and sale of Ayurved medicines. The present dispute relates to the Naini unit of the petitioner Company. It is alleged, that all the units are independently managed and administered separately and that there is no inter unit transfer and, it is only in exceptional circumstances that  an employee is sent on a deputation to another unit, as per the requisite requirement of work.

It is alleged that the workman respondent No.2 was appointed by the Head Office in Kolkata on 19.4.1991 as a Maintenance Engineer, but was mainly appointed to do the liaison work of the Company. The petitioner was transferred by the Head Office to the Naini unit in the year 1993 and, since then, was working at the Naini unit. In the year 1999,  the management transferred the workman from Naini unit to Kolkata unit, as he was no longer required by the Naini unit. It is alleged that the workman reported for work at the Kolkata unit  but was not allowed to join on the ground that there was no vacancy on the post of Maintenance Engineer at Kolkata nor was there any requirement of work and accordingly the workman was directed to report back to the Naini unit. The workman, accordingly reported back at the Naini unit but was not allowed to join at the Naini unit. This led to a dispute and upon the failure of the conciliation proceedings, the Deputy Labour Commissioner, while exercising the  powers under Section 4-K of the U.P. Industrial Disputes Act, referred the matter for adjudication before the Industrial Tribunal. The terms of the reference order was whether the employer was justified in not taking work from the workman w.e.f. 20.1.2000 ? If not, to what relief  was the workman entitled to ?

Before the Tribunal, the workman filed his written statement contending that he was initially appointed as a Maintenance Engineer in the year 1991 at Kolkata and was transferred to the Naini unit in 1993 and that, in December 1999, he was again transferred to the Kolkata unit of the Company. The workman contended that he complied with the transfer order and reported to the Kolkata unit and requested the management to allow him to join his duties but the Kolkata unit refused to comply with the transfer order and instructed the workman that since there was no vacancy in the Kolkata unit and that the management was not in a position to allow the workman to join his duties at Kolkata, the management of the Kolkata unit directed the workman to go back to the Naini unit and, in this regard, a fax message as well as a telephonic message was sent to the Naini unit. It is alleged that the workman reported back to the Naini unit and   requested the management of the Naini unit to permit him to join his duties at Allahabad. The workman contended that the Naini unit did not allow the workman to report and submitted that he should approach the Kolkata unit for the redressal of his grievance.

The petitioner filed a rejoinder affidavit to the written statement of the workman and contended that the order of reference was bad in law and that the Deputy Labour Commissioner had no jurisdiction to refer the dispute to the Industrial Tribunal, inasmuch as, no cause of action arose in the State of U.P. and, therefore, the authority had no power to refer any dispute under the U.P. Industrial Disputes Act. It was contended that the respondent No.2 was temporarily transferred to the Naini unit and since his services was no longer required at the Naini unit, he was accordingly transferred back to the Kolkata unit in the year 1999. It was contended that since the Naini unit had transferred respondent No.2 and was also relieved   from the Naini unit, no dispute or cause of action arose in the State of U.P. and that, whatever dispute, if any, was only with the Kolkata unit and that therefore workman should approach the Kolkata unit for the redressal of his grievance.

The Industrial Tribunal, after considering the evidence on the record, held that the cause of action arose at Naini and therefore, the State Government was competent to raise an Industrial dispute. The Tribunal held that the State of U.P. had the territorial jurisdiction to refer the dispute and that a part of cause of action arose in the State of U.P. The Tribunal further found that respondent No.2 was a workman as defined under Section 2(z) of the U.P. Industrial Disputes Act and that the work which he was performing was that of a skilled workman and that there was no evidence to show that respondent No.2 was appointed for any managerial or administrative work. The Tribunal further found that  even though his designation was termed as an officer, his duties and functions were not  managerial in nature. The Tribunal further found that the initial transfer of respondent No.2 from Kolkata to Naini was not temporary nor was it for a specified period or for a specified work. The Tribunal further found that the transfer of respondent No.2 from Naini to Kolkata was malafide and was issued as a mere ploy to disengage the workman from the services of the Company. The Tribunal further found that the Management had adopted unfair labour practice and therefore, while reinstating respondent No.2 with full back wages, also awarded a cost of Rs.5000/-.

Heard Sri Vijai Ratan Agarwal, the learned Senior Counsel  assisted by Sri Piyush Bhargava, the learned counsel for the petitioner and Sri K.N.Misra, the learned counsel for respondent No.2.

The leaned counsel for the petitioner raised two submissions, namely, that the State of U.P. had no territorial jurisdiction to refer  the dispute to the Industrial Tribunal at Allahabad inasmuch as no cause of action had arisen in the State of U.P. and that the cause of action, if any, had arisen at Kolkata, the place, where the services of respondent No.2 was alleged to have been terminated. The learned counsel further submitted that even otherwise, the provisions of the Industrial Disputes Act could not be invoked, inasmuch as, the respondent No.2 was not a workman as defined under Section 2(z) of the U.P. Industrial Disputes Act. Consequently, the entire proceedings,  including the award of the Tribunal, was exfacie illegal and without jurisdiction and was liable to be quashed.

In order to find out as to whether the State Government had the territorial jurisdiction to refer the dispute, it is necessary to first consider the factual aspect of the matter. In the present case, the respondent No.2 was working at Naini unit which is in the State of U.P. and he was transferred to Kolkata unit in West Bengal. The respondent No.2 complied with the transfer order and reported for work at the Kolkata unit. The Kolkata unit did not allow the workman to join, as in their considered opinion, there was no vacancy on the post of Maintenance Engineer nor was there any requirement of work. It was contended that the Naini unit, without consulting the head office, had wrongly transferred respondent No.2 to the Kolkata unit. Further, the Kolkata unit advised the workman to go back to Naini and report for work at the Naini unit, pursuant to which, the workman again reported for work at the Naini unit. The Naini unit did not allow the workman to join and intimated the workman that he should approach the Kolkata unit for the redressal of his grievance.

The learned counsel for the petitioner submitted that upon the issuance of the order of transfer and upon relieving him, the respondent No.2 ceased to be an employee of the Naini unit and from the date of the transfer order, he became an employee of the Kolkata unit. Consequently, the non-employment of the workman by the Kolkata unit made it apparently clear that the State of U.P. had no jurisdiction to refer the dispute. The dispute, if any, could only be referred by the State of West Bengal. In support of his submission, the learned counsel for the petitioner relied upon the following case laws, namely, 1975 FLR (31)246 General Manager, N.E.Railway, Gorakhpur and others;  2000 FLR (84) 632 S.Ravirajan vs. Deputy Commissioner of Labour (Appeals) and another; 2003(4)(Suppl)LLJ 249 Siemens Ltd., Secunderabad vs. P.O., Addl. Industrial Tribunal-cum-Addl. Labour Court, Hyderabad and another;  2005(II)LLJ 333 Indian Express Newspaper (Bombay) Pvt. Limited vs. State of West Bengal and others.

In my opinion, the judgments cited by the learned counsel for the petitioner are totally distinguishable  and are not applicable in the present facts and circumstances of the case.

In order to resolve the issue with regard to the territorial jurisdiction, the crucial test involves-

(1)situs of employment,

(2)administrative control over the employee, and

(3)cause of action.

In the present case, the petitioner no doubt, transferred the respondent No.2 from Naini to Kolkata but, by this act, the Naini unit did not wash its hands off from the issue, inasmuch as, the Kolkata unit did not accept the employee and advised him to return back to the Naini unit. The correspondence of this aspect is on the record and is admitted by the employer, namely, that the Kolkata unit directed the workman to return back to the Naini unit, on the ground, that there was no requirement of work at the Kolkata unit pursuant to which the workman returned to the Naini unit and requested the management of the Naini unit to allow him to join. The Naini unit did not allow him to join and took a strange plea that the petitioner should approach the Kolkata unit for the redressal of his grievance. In my opinion, a part of cause of action not only arose at Naini but also remained at Naini, which is located in the State of U.P. Further the administrative control of the employee remained with the Naini unit and by not allowing the workman to join at Naini, indicated that there was some nexus between the workman and the Naini unit. Consequently, the State of U.P. qua the Deputy Labour Commissioner had the jurisdiction to refer the dispute. This Court, is therefore of the considered opinion, that the State of U.P. had the territorial jurisdiction to refer the dispute, which is based on the reasoning adopted by a Full Bench decision of the Patna High Court in the case of Paritosh Kumar Pal vs. State of Bihar and others, 1984 LIC 1254 and in the decision of the Supreme Court in the case of  Workmen of Shri Ranga Vilas Motors (P) Ltd. vs. Sri Rangavilas Motors (P) Ltd. and others, AIR 1967 SC 1040 and M/s Lipton Ltd and another vs. their employees,  AIR 1959 SC 676.

In the present case, I also find that a subsisting employer-employee relationship was existing between the management of the Naini unit with the workman. Consequently, the dispute was rightly raised in the State of U.P.

The learned counsel for the petitioner submitted that respondent No.2 is not a workman as contemplated under Section 2(z) of the U.P. Industrial Disputes Act. Section 2(z) of the U.P. Industrial Disputes Act defines a workman as-

(z) 'Workman' means any person (including apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i)  who is subject to the Army Act, 1950 or the Air Force  Act, 1950, or the  Navy (Discipline) Act, 1934; or

(ii)   who is employed in the police service or as an officer or   other employee of a prison; or

(iii)   who    is    employed    mainly  in   a   managerial    or      administrative  capacity; or

(iv)   who, being employed in a supervisory capacity,  draws    wages exceeding five hundred rupees per mensem   or  exercises,  either  by  the  nature  of    the     duties          attached  to  the  office  or  by  reason  of  the powers  vested  in him, functions mainly of a managerial    nature."

The aforesaid provision is more or less pari materia with the provisions of Section 2(s) of the Industrial Disputes Act (Central). The definition of  'workman' has undergone a sea change from the time of the enactment of the Industrial Disputes Act. Amendment in the definition of workman was made in the year 1947, 1956 and thereafter in the year 1982. From an unskilled manual or clerical work, the definition of 'workman' now includes a skilled, unskilled, manual, supervisory, and operational work. The moot question,  in the present case is, whether respondent No.2 is a workman as defined under the provisions of U.P. Industrial Disputes Act or not ? The appointment letter of respondent No.2 indicates that he was appointed as a Maintenance Engineer for the maintenance  of the equipments, machines, electrical systems and was also responsible for liaisoning with the Government  department and other agencies. The rejoinder statement of the employers indicates that respondent No.2 was basically appointed to do liaisoning work with his brother who was an approved consultant in the Pollution Board for the purposes of setting up a water treatment plant,  as is also clear from the evidence of the Senior Vice President. The evidence of the Foreman also indicates that he was not looking after the maintenance of the machines and that he was only looking after the pollution matter. The workman in his statement stated that he was not performing any administrative or managerial function and that he had no power to take any disciplinary action against any employee nor had any power to sanction any leave nor was authorized to write a character role of any workman.

From the evidence on record, it is clear that the primary work which respondent No.2 was performing was liaison work. According to Pocket Oxford dictionary, 'liaison' means a "person serving as a go between". Webster's Dictionary, Deluxe Encyclopedic 1987 edition defines 'liaison' as "the establishment of harmonious cooperation between separate unit of armed force." Collins Cobuild English Language dictionary 1994 edition defines 'liaison' as "cooperation and the exchange of information between different organizations or between different sections of an organizations."

From the aforesaid, it is clear, that respondent No.2 was coordinating the work between the Company and his brother and therefore, viz-a-viz between the Company and the Pollution Board. The respondent No.2, was acting as a go between the Company and the Pollution Board. The record indicates that he was not authorized to take any independent decision and that he had to work under the supervision and direction of his superiors. He had no subordinate staff nor could he sanction leave, etc. nor had any authority to take any disciplinary action against an employee of the Company. Consequently, the evidence that has been brought on the record, suggests that respondent No.2 was not performing any administrative or managerial work and that he was nothing else but a skilled workman or a glorified workman, being given a designation of an officer. In my opinion, merely by giving him a designation of an officer would not make the respondent No.2 an officer. In my opinion, it is clear, that according to the work which respondent No.3 was performing, he was a  workman as defined under the U.P. Industrial Disputes Act. The judgment cited by the learned counsel for the petitioner, namely, 1995(1) LLJ 303 H.R. Adyanthaya, etc. Vs. Sandoz (India) Ltd. etc., 2001(89) FLR 955, North Cote Nursing Home Pvt. Ltd., Bombay and another vs. Dr. Mrs. Zarine H.Rahina & another, Dharamveer Singh vs. State of Rajashthan, JT 2005(2) SC 370 Management of M/s Sonepat Cooperative Sugar Mills Ltd. vs. Ajit Singh,  are distinguishable to the facts and the circumstances of the case.

In view of the aforesaid, this Court is of the opinion that the award of the Industrial Tribunal does not suffer from any error of law. Consequently, the writ petition fails and is dismissed. In the circumstances of the case , there shall be no order as to cost.

Dated: 23.3.2007

AKJ


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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