1 LPA294.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.294 OF 2010 IN WRIT PETITION NO.3139 OF 2010 Hiru B.Barot ..Appellant At Post Ukai Workshop Ori.Respondent Bajhar Chhopadpatti Tal.Songarh, Dist.Tapi (Vyara) Vs. 1 IPCA Laboratories Limited ..Respondent/ Plot No.255/01, Village Athal, Silvasa Ori.Petitioner 396 230, Dadra and Nagar Haveli (UT) Through Sanjay Jadhav ,GM 2 The Presiding Officer, Labour Court, Dadra Nagar Haveli at Silvasa WITH LETTERS PATENT APPEAL NO.296 OF 2010 WITH CIVIL APPLICATION NO.373 OF 2010 IN CIVIL APPLICATION NO.2561 OF 2010 IN WRIT PETITION NO.3139 OF 2010 IPCA Laboratories Limited ) Plot No.255/01, Village Athal, Silvasa ) 396, 230, Dadra and Nagar Haveli (UT) )..Appellant Ori.Petitioner Versus 2 LPA294.10.sxw 1 Hiru Barot ) At post Ukai Workshop ) Bajhar Chhopadpatti, Tal. Songarh, ) Dist. Tapi (Vyara) ) ) 2 The Presiding Officer, Labour Court, ) Dadra Nagar at Silvasa )..Respondents No.1-Ori.Respdt. ...... Ms.Jane Cox ,Adv.for petitioner in LPA 294/2010 and for Respondent in LPA 296/2010. Mr.S.K.Talsania,Sr.Counsel a/w Mr.R.V.Paranjape for respondent. In LPA 294/2010 and for petitioner in LPA 296/2010. ...... CORAM : A.M.KHANWILKAR & MRS.MRIDULA BHATKAR,JJ JUDGMENT RESERVED ON : 9/3/2011 JUDGMENT PRONOUNCED ON :13/4/2011 J U D G M E N T (Per Mrs.Mridula Bhatkar ,J.) 1. These LPAs are directed against the order passed by the learned single Judge dated 26.10.2010 in Writ Petition No. 3139/2010 granting wages under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ).The respondent-company is manufacturer of pharmaceutical products and the appellant was a workman. He was asked to prepare a Batch Manufacturing Record (BMR) but he refused to perform 3 LPA294.10.sxw accordingly and instigated other workmen, therefore, charge- sheet was issued against him on 23.11.2007. In the inquiry he was held guilty and was dismissed from the service by order dated 9.6.2008. The workman challenged the said order by filing Reference before the Labour Court. In the said Reference, an application filed for interim award (Exh.E) was contested by the company and the Presiding Officer Dadra & Nagar Haveli at Silvasa, vide order dated 20th February,2010 ,has partly allowed the said application, and directed to provisionally re-instate the workman on his initial post from the date of his termination and the employer was directed to pay 75% of total gross wages with effect from the date of re-joining the services till the disposal of the case. The said order was challenged by the company in Writ Petition No.3139 of 2010. According to the Management, as the Reference was pending, the order of the Presiding officer of the Labour Court cannot be considered to be an award as defined under Section 2(b) of the Act. The said Writ Petition has been admitted on 28th June, 2010 and the operation of the impugned order of the Tribunal dated 20th February,2010 has been stayed. Consequent thereto the worker filed Civil Application No. 4 LPA294.10.sxw 22299/2010 in the pending Writ Petition to direct the Management to pay wages in terms of Section 17-B of the Act. The said application was resisted by the Management amongst other on the ground that the order passed by the Tribunal dated 20th February,2010 was not an award. As a result provisions of section 17-B of the Act cannot be invoked. The learned single Judge, however,has rejected the said objection and has ordered that the wages under Section 17-B of the Act be paid to the worker from the date of the application within a period of eight weeks from the date of the order. 2. Both , i.e employer and the workman, are aggrieved by the said order dated 26th October,2010, passed by the learned single Judge and have filed separate Letters Patent Appeals before this Court. Employer-Company is aggrieved by the view taken by the learned Single Judge that the order passed by the Tribunal dated 20th February,2010 is in the nature of an interim award. Whereas, the workman in the cross appeal contends that the wages under Section 17-B of the Act ought to have been from the date of the impugned award or at least from the date of filing original petition. 5 LPA294.10.sxw 3. In the present matter,the core issue involved is as under :- “Whether the order passed by the Labour Court is only an interim relief or an interim award within the meaning of Section 2(b) of the Act, 1947 and if it is an interim award, whether the workman is entitled for wages under Section 17- B of the Act from the date of the said interim award ? 4. The workman was suspended on 23/11/2007. He was asked to fill the average weight, 20 tablets of Lisinopril in B.M.R.in compression area. According to the Company as per Current Good Manufacturing Practice (CGMP) norms B.M.R.filling is mandatory process. He refused to do so and instigated and provoked other workmen not to do so. He is also habitual late on duty. Thus, as per the authority he has committed willful insubordination , incited others to strike the work and threatened co-workmen and superiors. Therefore, chargesheet was issued for misconduct. The administration of Dadra and Nagar Haveli (U.T.) made reference by its order dated 16/9/2000. Krantikari Kamgar Union urged the administration of Dadra and Nagar 6 LPA294.10.sxw Haveli (U.T.) to intervene into the dispute of dismissal of workman and to reinstate him with full back wages and continuation of service from 9/6/2008 . The dispute referred by the administration Dadra and Nagar Haveli is as follows. “ Whether the action of the Management of M/s Ipca Laboratories Limited, Athal in terminating the services of Mr.Hiru B.Barot with effect from 09/06/2008 is legal and justified ? If not, to what relief the workman is entitled ?’’ 5. In the said reference (16/2008) the workman filed application( Exh.16) for interim award praying to reinstate him pending the hearing and final disposal and also prayed for gratuity, notice pay ,bonus , leave wages ,final dues ,etc.. The Company filed reply and opposed the said application. While deciding the application the following points were framed and finding was given . 7 LPA294.10.sxw Sr.No. Points Findings 1 Whether the workmen is entitled Partly Affirmative for interim relief ? 2 What order ? As per final order.” On the basis of the findings recorded by the Labour Court, the application filed by the workmen was partly allowed. The operative order of the Labour Court reads thus: “ORDER 1 The application of the Second party (workmen) is partly allowed. 2 The First party (Employer) is provisionally directed to reinstate the second party (workmen) on his initial post from the date of his termination. 3 The First party (Employer) shall pay 75% of total gross wages with effect from the date of re-joining the services till the disposal of the case.” 6. Learned Counsel Jane Cox for the workman argued that it is a dispute or reference under Section 10(4) of the Act. Under 8 LPA294.10.sxw Section 2(b), award is an interim or final determination of any industrial dispute or of any question relating thereto by Labour Court or the Tribunal. She relied on the ratio in the Supreme Court Judgment in Hotel Imperial, New Delhi & Ors. Vs. Hotel Workers’ Union reported in 1959 (II) LLJ pg-544. 7. She agreed that there is marked difference between an interim relief and interim award. She fairly conceded that if the order is an interim award, then only it attracts section 17-B, but if it is not an interim award but an interim order then no relief under Section 17-B can be granted. While explaining what is meant by determination, relying on Patna High Court, in the case of Management of Bihar, State Electricity Board, Patna and the workmen of the Bihar State Electricity Board and Ors. reported in 1971 (1) LLJ 389, she said that determination is answering the industrial dispute. In the case in hand whether the workman is entitled to re-instatement is the issue. She submitted that the application in the Reference filed by the workman was for demanding the interim award. The order is also in respect of interim award. The respondent company in the written statement 9 LPA294.10.sxw has addressed the application for interim award and it is an admission on the part of the company. She submitted that in para-15 of the order the Labour Court has determined the dispute. So the order cannot be considered as an interim relief but it is an interim award and therefore, section 17-B is rightly invoked by the learned Single Judge . 8. Mr.Talsania contended that order passed by the Labour Court is not an interim award for want of reasoned order and the said point is not properly appreciated by the learned Single Judge . He raised following points :- 1. Presiding Officer of the Labour Court did not frame a point of determination of reinstatement, but it just formulated a point whether interim relief can be granted or not ? 2. In paragraph nos.13, 14 & partly 15 of the order, the Labour Judge has only reproduced the submissions of the parties and has not discussed the issue. 3. He did not discuss whether inquiry is fair or not ? 4. The proportionality of the punishment is not discussed. He urged that the order passed by the Tribunal and also by the Single Judge deserve to be set aside and the appeal be allowed. 10 LPA294.10.sxw 9. The application Exh.16 was made before the Labour Court in respect of the legality of dismissal of the workman under the title “application for interim award” . It is argued by the counsel for the workman that the company in its reply has mentioned that “reply to the application for an interim award”. By merely addressing a particular order as an interim award by the party, it cannot take the shape and form of an interim award. We need to examine whether the Tribunal intended to pass an award in true sense. That can be assessed easily from the order itself. Under Section 10(4) of the Act , the Tribunal can pass order in respect of questions incidental to the industrial dispute. Similarly,the Tribunal may use its discretion to decide the dispute in its entirety or partially. The Tribunal is empowered to pass the award which can be final or interim award within the meaning of Section 2(b) of the Act. In the case of Hotel Imperial, New Delhi & Ors.Vs.Hotel Workers’ Union, reported in 1959(II) LLJ -544 the dispute was in respect of payment of the salaries of the workman . To that effect the Labour Court had passed order which was treated as an interim relief. 11 LPA294.10.sxw 10. Definition of “award” under Section 2(b) is gainfully reproduced as follows :- “Award” means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court. Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10-A”. 11. As aforesaid, we will have to assess the decision of the Tribunal to ascertain whether it can take the colour of an interim award or is only in the nature of interim relief. Reverting to the order passed by the Labour Court below Exhibit 16, which has been impugned in the Writ Petition by the management, after adverting to the broad facts, the Court proceeded to formulate points for determination. We have already reproduced the said points in Paragraph 5 above. As mentioned earlier, the principal point formulated by the Labour Court for its consideration was whether the workman was entitled for “interim relief”. This itself is indicative of the fact that the Tribunal was inclined to consider only grant of interim relief and not pass interim award as such. Indeed, the Tribunal then considered the question whether it was open to the Labour Court to pass interim relief (read interim award). After 12 LPA294.10.sxw referring to the relevant decisions relied by the parties, the Labour Court rightly opined that it had authority to grant interim relief (read interim award). To that extent, the view of the Labour Court is unexceptionable. 12. However, the question still remains as to whether the impugned decision of the Labour Court can be treated as interim award or is only in the nature of interim relief. We are in agreement with the submission canvassed on behalf of the management that for treating a decision of the Labour Court as an interim award, the decision should reflect that relevant point for determination to be answered in part or wholly has been formulated and addressed in the decision so as to determine the said controversy one way or the other. Only then, the Labour Court gets jurisdiction to pass an interim award. That is a jurisdictional fact. 13. In the present case, the dispute referred to the Labour Court was whether the action of the Management in terminating the services of the workman was legal and justified. In the context of 13 LPA294.10.sxw the said issue, specific points for determination ought to have been formulated by the Labour Court, which is lacking in the present case. Besides, we find that the relevant facts to invest jurisdiction in the Labour Court to pass an interim award have not been discussed and deliberated upon in the impugned decision. We say so because after opining that the Labour Court was competent to pass interim relief (read award), in paragraph 13, it proceeded to record that in the present case, the relation between the employer and the workman is admitted. Further, the termination of the services is also admitted. Then in Paragraph No.14 of the impugned decision arguments canvassed by the Counsel for the parties has been referred to. The only paragraph which is significant for considering the controversy on hand is Paragraph 15 of the impugned decision. Therefore, we would think it appropriate to reproduce the same verbatim, which reads thus: “15] I have gone through the submissions made by both the parties. If there has been long standing practice and if practice is followed by the workmen it does not amount to breach of duties. Now a days there has been framing of new norms, rules etc., There is one of the rule of BMR. The rule of BMR is in dispute. According to the workmen the BMR is not enforced. It shows that the Workmen was terminated not on a serious point. There are many cases in the Labour court at Silvassa, UT of D & N H and they 14 LPA294.10.sxw are pending since so many years and considering the circumstances it would be just and equitable to reinstate the workmen. The relief cannot be equated with a final Award. If workmen is reinstated on his initial post from the date of his termination along with 75% of total gross wages till the final decision it would meet the ends of justice. Therefore I answer to the point accordingly and pass following Order.” 14. On plain reading of the above said discussion in the impugned decision, it appears that reference is made to the fact that there has been long standing practice which was followed by the workman. On that premiss, it is concluded that if such practice is followed by the workman, it does not amount to breach of duties. The next point referred to is that new rules or norms have been framed in the form of BMR. Then opinion is recorded that the rule of BMR is in dispute as according to the workman, it has not come into force. Then the Labour Court Judge has jumped to the conclusion that the termination of workman was therefore not on a serious point. The Court then noted that there were large number of pending cases before it for many years. As a result, the Court thought it appropriate to pass just and equitable order of reinstatement in favour of the workman. It has then noted that the relief granted by it cannot be equated with a final award. In our opinion, however, the Labour Court ought to have discussed how 15 LPA294.10.sxw the findings of the Inquiry Officer were perverse, incorrect or unfair. Further, except one sentence that the workman is terminated not on a serious point, thee is no other consideration as to why the punishment imposed by the Management is unjust, much less, excessive. Suffice it to observe that the impugned decision to take the colour of an interim award ought to have determined the material points. That is lacking in the discussion in paragraph 15 of the impugned Judgment. On this finding, it necessarily follows that the decision by no stretch of imagination can be considered as an interim award as such. It, at best, can be viewed only in the nature of interim relief granted by the Labour Court. Thus understood, the question of granting relief to the workman under Section 17-B of the Act would not arise at all. 15. The opinion recorded by us hitherto is reinforced by the exposition in the case of The Management of the Bihar State Electricity Board (supra) rendered by the Division Bench of the Patna High Court. It observed thus: “We have been called upon to decide this point in this case because the submission on behalf of the petitioner is that if the order granting the interim relief has to take the form of 16 LPA294.10.sxw an interim award, the Tribunal must give cogent reasons for granting such a relief by discussing some facts and showing that prima facie the workman has a strong case against the dismissal or termination of his service. Without such a finding a temporary or provisional arrangement of giving some wages to the workman cannot be adopted during the pendency of the reference case.” “In either case is has got to take the form of an interim award and in that event the Tribunal must determine that there is a good prima facie case in favour of the workman for final adjudication and, therefore, on the facts of a particular case, granting of interim relief by the interim award is necessary. In absence of such an adjudication of the kind just indicated by me, the Tribunal is not competent to grant interim relief to the discharged workman.” (emphasis supplied) 16. Determination involves the process where the opinion or the view of the authority should be expressed. However, while determining any issue judicially, it is necessary for the Presiding Officer to frame a correct issue or point of determination and thereafter to discuss and give reasoning for its conclusion. The entire process can be called as a determination of the issue judicially. In Advanced Law Lexicon, the word adjudication is defined as it is a process of directing and determining case judicially. The application of the law to the facts and an authoritative declaration of the result. Adjudication means judicial determination of a claim after taking into consideration the material on record and after hearing the parties. Granting of 17 LPA294.10.sxw interim relief is different than interim award. All interim awards would necessarily be an interim relief, but not vice versa. Interim order, to grant incidental relief, can be passed. Adjudication is a mental process and it should reflect in the order passed by the Presiding officer wherein he is required to discuss acceptance or rejection of the evidence and also he is required to opine whether prima facie case is made out to grant the interim relief. Thus, determination of the issue stands on a higher pedestal than passing the order of interim relief. Interim relief is granted in various circumstances e.g if prima facie case is made out or to give breathing time to the party or to save the further damage etc.. But for passing interim award, the Tribunal has to consider the prima facie case of the industrial dispute and also has to weigh the findings in the inquiry and while doing so, application of mind should reflect from the order itself. 17. The incidental issue that was canvassed on behalf of Management was that assuming that the impugned decision of the Labour Court was an interim award, however, in absence of publication thereof in the Official Gazette as required as per 18 LPA294.10.sxw Section 17-A of the Act, in law, the same cannot be executed. For that reason, relief under Section 17-B of the Act on the basis of such award is unavailable. The counsel appearing for the workman on the other hand argued that whether the award is executable or otherwise, so long as the decision qualifies the definition of an Award and implementation of such decision has been stayed by the High Court, Section 17-B of the Act comes into play. According to the learned Counsel for the workman, Section 17-B of the Act will have to be liberally construed being social welfare Legislation. It is not necessary for us to examine this controversy in the fact situation of the present case. 18. The learned Single Judge has held that there is no provision in the Act empowering the Tribunal to make an order granting relief to a discharged workman except by way of making interim award which can be passed under section 10(4) of the Act and so the decision of the Tribunal to grant reinstatement as a temporary measure is an award. On this point in Hotel Imperial ,New Delhi the Hon.Supreme Court has held that interim relief where it is admitted can be granted as a matter incidental to the main 19 LPA294.10.sxw question referred to the Tribunal without being itself referred in express terms. As the words “incidental thereto” appear in section 10(4) of the Act. 19. We would now turn to the case (The Management of the Bihar State Electricity Board (supra). In the said case, Reference was made to the Tribunal about the termination of workman’s service and what relief he was entitled to. The Tribunal granted interim relief of 1/3 of the wages to respondent no.2 till the disposal of the case and the said order was challenged. In the case in hand, however, the dispute raised and referred to the Tribunal was about the legality of the dismissal and the same issue was decided by reinstating the workman without giving reasoned order. 20. With due respect, the learned Single Judge, in our considered opinion, has glossed over the crucial test to be borne in mind to discern as to whether the decision takes the colour of an interim award or is only an interim relief. For the reasons already mentioned by us, we have no hesitation in taking the view 20 LPA294.10.sxw that the impugned decision of the Labour Court, though passed in exercise of Section 10(4) of the Act, is in the nature of interim relief and by no stretch of imagination, it can be treated as an interim award as is contended on behalf of the workman. As a result, the application preferred by the workman under Section 17- B of the Act was unavailable. 21. In view of the forgoing discussion, the appeal preferred by the workman being LPA No.294 of 2010 for grant of relief under Section 17-B from the date of the order of the Labour Court is devoid of merits and the same will have to be dismissed. Whereas, the appeal preferred by the management being LPA 296 of 2010 ought to succeed. Accordingly, the same is allowed and the order passed by the learned Single Judge dated October 26, 2010 in Civil Application No.2561/2010 in Writ Petition No. 3139/2010 is set-aside and instead, the Civil Application No. 2561/2010 is dismissed. 22. While parting, we would like to clarify that the principal question considered by us is whether the decision of the Labour 21 LPA294.10.sxw Court dated 20th February, 2010 below Exhibit 16 in IDA No. 16/2008 can be treated as interim award or is only in the nature of interim relief.