IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.04.2009 CORAM: THE HONOURABLE MR. JUSTICE K.MOHAN RAM AND THE HONOURABLE MR. JUSTICE M.DURAISWAMY Writ Appeal No.1358 of 2006 and M.P.No.1 of 2006 M.Ganesan ... Appellant/2nd Respondent Vs. 1. The Management of Tamil Nadu Electricity Board, 791 Anna Salai, Chennai – 600 002 2. The Presiding Officer, I Additional Labour Court, Chennai. ... Respondents/Petitioner/ 1st Respondent Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 21.08.2006 passed in W.P.No.8471 of 1998. WP.No.8471/1998 : Petition presented to this Court to issue a Writ of Certiorarified Mandamus calling for the records of the first respondent in I.A.No.508 of 1997 in I.D.No.245 of 1988 and quash the order dated 26.11.1997 and direct the first respondent to frame the issue as to whether the second respondent could fall within the definition of Workman under Sec.2(S) of the Industrial Disputes Act along with other issues to be tried viz., whether the domestic enquiry held against the second respondent was fair and proper. For Appellant : Mr. A.R.Gokulnath For Respondents : Mr. S.Ravindran, for M/s. T.S.Gopalan & Co. J U D G M E N T (Judgment of the Court was delivered by K.Mohan Ram, J.,) The above writ appeal is directed against the order dated 21.08.2006 passed in W.P.No.8471 of 1998 by Mr. Justice N.Paul Vasanthakumar. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant joined in the services of the first respondent in the year 1970. He was lastly working as an Assistant Engineer (Electrical), O & M East, Savagiri, Periyar Electricity System. His last drawn wages was Rs.1,272/- per mensem. The appellant was removed from service by the final order dated 04.04.1985 with retrospective effect from 08.08.1993 F.N. on certain allegations of misconduct. The appeal preferred by the appellant against the final order was rejected by the Chairman of the first respondent by proceedings dated 28.10.1986. 3. Being aggrieved by the order passed by the Chairman of the first respondent, the appellant raised a dispute before the concerned Conciliation Officer. But the Conciliation proceedings failed which resulted in the dispute being referred for adjudication to the second respondent. The industrial dispute was taken as I.D.No.245 of 1988 by the second respondent. The first respondent filed a counter statement and one of the grounds taken in the counter statement was that the appellant will not fall under the definition of 'workman' as contained in Section 2 (s) of the Industrial Disputes Act (hereinafter referred to as "the Act") and as such the I.D. is not maintainable. Since the appellant had contended before the Labour Court that the domestic enquiry conducted against him by the management was not fair and proper and was one sided it became necessary for the Labour Court to decide whether the domestic enquiry conducted was fair and proper and that question was taken up as a preliminary issue. The appellant was examined as W.W.1 and Exs.W-1 to W-12 were marked on the side of the appellant and on the side of the first respondent-Management, Exs.M-1 to M-11 were marked. At that stage the first respondent filed I.A.No.508 of 1997 praying the second respondent to frame the following preliminary issue namely, 'Whether the respondent M.Ganesan is a 'workman' within the meaning of Section 2 (s) of the I.D. Act.?" and decide it along with the issue "Whether the enquiry was fair?". 4. The appellant filed his counter affidavit contending that the first respondent herein was estopped from raising the said preliminary issue since it had all along admitted that the appellant herein was a 'workman'. After considering the rival contentions the second respondent held that the first respondent is estopped from raising the said preliminary issue and for arriving at such a conclusion the Labour Court referred to the Charge Memo and charge sheet issued by the respondent under the certified standing orders of the Board describing the petitioner as "workman" and also basing reliance on a decision of the Bombay High Court reported in 1996 I L.L.J. 67 (S.A.SARANG v. W.G. FORGE & A.I. LTD. AND ORS.) and ultimately dismissed I.A.No.508 of 1997 as not maintainable by order dated 26.11.1997. https://hcservices.ecourts.gov.in/hcservices/ 5. Aggrieved by the said order of the second respondent the first respondent filed W.P.No.8491 of 1998 which was allowed by the learned Single Judge by the order dated 21.08.2006 and against that order the appellant has filed the present writ appeal. 6. Learned counsel for the appellant submitted that the learned Judge has proceeded on the wrong premise that the appellant had contended that the Management having appeared before the Conciliation Officer it should be taken that the management had accepted the appellant's status as "workman" under the Act and therefore there is no necessity to try the issue whether the appellant is a 'workman' as a preliminary issue. He further submitted that the learned Judge has failed to see that the contention of the appellant was that in view of the Management having repeatedly asserted that the appellant was a workman and in view of the management having taken action against the appellant under the provisions of its certified standing orders for workmen other than those engaged in the clerical work the management was estopped from raising the above said issue before the second respondent herein. He further submitted that it was the management's case that the appellant was a workman to whom its certified standing orders were applicable and therefore it rightly proceeded by framing charges under its provisions; the learned Judge failed to see that even the departmental appellate authority asserted that the appellant was governed only by the Standing Orders for workman other than those engaged in clerical work and therefore the appellant was a workman; further before the Conciliation Officer the stand of the Management was that the appellant was a workman; in view of the aforesaid facts the management cannot now turn around and contend that the appellant was not a workman; this was the stand taken by the appellant before the first respondent and the first respondent had referred to the aforesaid facts and has based reliance on the decision of the Bombay High Court reported in 1996 I L.L.J. 67 (referred to supra). 7. Learned counsel for the appellant submitted that the decisions referred to and relied upon by the first respondent before the learned Single Judge have no relevance to the facts of this case since the facts of those cases are totally different from the facts of the case on hand. He further submitted that the Apex Court has held in number of cases that the Courts should not place reliance on the decisions without discussing as to how the factual situation of the case fits it with the fact situation of the decision on which reliance is placed. According to the learned counsel the learned Judge has not compared the facts of this case with the facts of the decisions on which reliance was placed by the first respondent. 8. Learned counsel for the appellant submitted that in the affidavit filed in support of the writ petition the facts referred to by the second respondent for arriving at such a conclusion and the reliance placed on the decision of the Bombay High Court have not https://hcservices.ecourts.gov.in/hcservices/ been denied or disputed; in the counter affidavit filed in the writ petition also these aspects have been high-lighted by the appellant but according to the learned counsel unfortunately the learned Judge has not even considered the contentions raised by the appellant in the counter affidavit; similarly the learned Judge has not even referred to the decision of the Bombay High Court reported in 1996 I L.L.J. 67 (referred to supra). He submitted that the question of estoppel pleaded and raised by the appellant before the second respondent and which has been accepted by the second respondent has not at all been considered by the learned Judge. 9. Learned counsel for the appellant drew our attention to the following portions of the answer statement filed by the first respondent in the Conciliation Proceedings before the Conciliation Officer:- "v) As per the standing order for workmen engaged in categories other than those in clerical categories one who is unauthorised absence or (sic. 'for') more than 10 days is liable for disciplinary proceedings. As the petitioner's absence from board's service unauthorisedly exceeded 10 days and he disobeyed the order of superiors, the Assistant Divisional Engineer called for explanation of the petitioner for his unauthorised absence and disobeyed of orders in his Memo No.ADE/O & M/Syd/J4/F1/3/1339/83 dated.2.9.1983. In his letter dated.9.9.1983 given in person at Head-quarters mentioned in para 1. above, the petitioner suppressed all the above facts and misrepresented to higher authorities." .... "10) The following 7 charges were framed by the Divisional Engineer / South / Erode in the same dt.30.11.1987 against the Assistant Engineer, for his unauthorised absence and disobeyal orders (vide copy enclosed.). CHARGE.I. Thiru M.Ganesan, A.E / O & M / East / Sivagiri has failed to join the 20th batch of Training at Madras and thus disobeyed the orders of the Superintending Engineer / Periyar Electricity System / Assistant Divisional Engineer, / O & M / Sivagiri, Assistant Divisional Engineer, Memo.No.ADE/ O & M / SVG / JA / R.1161 dt.6.8.1983. This is a misconduct as per Standing Orders in respect of Workmen other than those engaged in Clerical Work. Standing Order.No. 30 (1). CHARGE.II. Thiru M.Ganesan, Assistant Engineer / O & M / Sivagiri is unauthorisedly absented from duty from 8.8.83 F.N. Onwards. This is a misconduct as per standing orders in respect of workmen other than those engaged in clerical work. Standing Order No.30 (XIII). https://hcservices.ecourts.gov.in/hcservices/ CHARGE No.III. Thiru M.Ganesan, Assistant Engineer / O & M / Sivagiri East has disobeyed the orders of the Assistant Divisional Engineer / O & M / Sivagiri and refused to rejoin in the old post vide.ADE/ O & M / Sivagiri Memo.No.ADC/ O & M / JA/SVC/JA/F.1/1252/83 dt.22.6.1983. This is a misconduct as per standing orders in respect of workmen other than those engaged in clerical work. Standing Order No.30 (1)." .... "20) ...... Further at the time of D.P. he was a workman governed under standing orders for workmen and the charges were framed under Standing Orders. The D. & A. Regulations cited by him is applicable to officers." .... 24) ..... The petitioner who was working as Assistant Engineer was borne on conferred class.II category and governed under Standing Orders. The Orders on the disciplinary proceedings on the petitioner by the Regional Chief Engineer / Coimbatore are in order." 10. In the counter statement filed in I.D.No.245 of 1998 the first respondent in paragraph 13 has stated as under:- "13) The action of the petitioner was in violation of the relevant standing orders applicable to him. In the circumstances, the petitioner was issued with a charge sheet dt. 30.11.1983 enumerating the following acts of misconduct:- I) Thiru M.Ganesan, Assistant Engineer /O & M/East/Sivagiri has failed to join the 20th Batch of Training at Madras and thus disobeyed the orders of the Superintending Engineer / Periyar Electricity System / Assistant Divisional Engineer Memo.No.ADE/O & M / STC/JA/TR.1161/83 dt.6.8.1983. II) This is a misconduct as per standing orders in respect of workman other than those engaged in clerical work., Standing Order No.30 (i). III. This is a misconduct as per standing orders in respect of workman other than those engaged in Electrical Work, Standing Order. No.30 (vii). Provides that absence without leave for more than 10 consecutive days without sufficient cause constitute a misconduct. IV. Thiru M.Ganesan, Assistant Engineer / O & M / Electrical / Sivagiri East has disobeyed the orders of the Assistant Divisional Engineer / O & M / Sivagiri and refused to rejoin in the old post vide ADE/ O & M / Sivagiri Memo.No.ADE/DEMSEO / JA/F1/R.1252/83 dt.22.8.83. This is a misconduct as per standing orders in respect of workman other than those engaged in clerical work, standing order.No.30 (i)." https://hcservices.ecourts.gov.in/hcservices/ In paragraph 26 of the same counter affidavit it is stated as under:- 26) ...... The petitioner who was working as Assistant Engineer, was borne on conferred class I.category and governed by the relevant standing orders." 11. Learned counsel for the appellant submitted that the second respondent-Labour Court by properly considering the aforesaid facts and admissions and by applying the correct legal principles has rightly dismissed I.A.No.508 of 1997 and all the aforesaid facts and admissions made by the first respondent have not at all been considered by the learned Judge. He submitted that in view of the clear, unambiguous and consistent admissions made by the first respondent herein that the appellant was a 'workman' the first respondent is estopped from raising the issue namely "whether the respondent named Ganesan is a 'workman' within the meaning of Section 2 (s) of the I.D. Act?" 12. Learned counsel for the appellant drew our attention to the following paragraph contained in the order passed by the Chairman of the first respondent dated 28.10.1996 dismissing the appellant's appeal:- "4. Further his contention that he cannot be dealt with under the Standing Orders is not correct. According to the Board's Memo No.136345/736/II10/78-6, dated 10.10.1980, the Assistant Engineers of the Board are governed by Standing Order for workmen other than those engaged in Clerical work of Tamil Nadu Electricity Board and the amendment to service Regulation No.93 issued in B.P.Ms. (FB) No.40 has come into effect only from 18.5.85, therefore the orders issued by Regional Chief Engineer in Memo dated 4.4.1985 is in order." Learned counsel submitted that when the appellant himself contended before the Chairman of the first respondent that he could not have been proceeded under the certified standing orders of the Board that contention was rejected holding that the petitioner is a workman. In support of his aforesaid contentions the learned counsel relied on the decision of the Bombay High Court reported in 1996 I L.L.J. 67 (referred to supra). In the said decision, His Lordship Mr. Justice B.N.Srikrishna as his Lordship then was in paragraph 6 of the decision has laid down as under:- "6. Uniformly, in each Show Cause Notice and charge-sheet, it has been alleged that the act imputed to the Petitioner was a misconduct under the Model Standing Orders. It is not possible to ignore the cumulative effect of this conduct on the part of the First Respondent Employer. To what extent, the contention of Dr. Kulkarni needs to be accepted. If an employer continuously and consistently proposes and takes action against its employee on the footing that he is covered by the Model Standing Orders (thereby implying that https://hcservices.ecourts.gov.in/hcservices/ the employee is a "workman" within the meaning of the Act), then such employer must be estopped from denying the said fact when a dispute regarding to the dismissal of the employee finally lands up before an industrial adjudicator. It is unfortunate that the Third Respondent-Official Liquidator has not chosen to appear before the Court and assist the Court. However, the Show Cause Notices and Charge sheet pointed out to me cannot be ignored and due weightage will have to be given to them. Considering the cumulative effect of these documents, I am of the view that the Petitioner was a "workman" within the meaning of Section 2 (s) of the Act and, therefore, the impugned order needs to be interfered with." 13. In 1970 LAB. I.C. 334 (Vol. 3 C.N.77) (DB) (M/s. N.E. Works v. G.Naicker), the facts, in nutshell are that the dispute between the Management and a workman was referred for conciliation to the Conciliation Officer; the conciliation proceedings commenced before the conciliation officer; the management was represented by its Works Manager; an agreement was signed by the workman and the Works Manager; since the agreement was not implemented by the Management, the workman sought to implement the agreement two years later; the Management contended that the settlement signed by the Works Manager was not binding on the management as he was not authorised to do so; while considering the said contention in paragraph 6 of the decision it has been laid down as under:- "6. In our view, the entire matter turns upon a far simpler issue. Whether the Works Manager did or did not have the authority to proceed so far as to sign the agreement, is not the point which is really relevant. The point is that the firm permitted the Works Manager to appear on its behalf, and to take part in the conciliation proceedings. He held out that he was entitled to represent the firm for all purposes, and he signed the agreement as representing the firm. The opposite party (the workman) might well have consented to the agreement altering his position in respect of defences or contentions open to him, because he was labouring under the belief that the Works Manager represented the firm for all purposes. The firm cannot now be permitted to resile from the representation, after the opposite party had altered its position, and attempt to go behind the agreement; therefore, this is a clear case of Estoppel, and it amounts also to Estoppel because of conduct altering the situation, and rights of parties." 14. In the decision reported in 1971 (II) L.L.J. 581 (SC) (INDIAN LINK CHAIN MANUFACTURERS LTD. v. WORKMEN) in paragraph 15 it is held as under:- https://hcservices.ecourts.gov.in/hcservices/ "15. The stand taken by the company that there is no settlement in force covering the demands raised by the workmen is clear. In the statement of claim the General Secretary of Sarva Shramik Sangh representing the workmen said that the private agreement between the company and Mumbai Kamgar Union dated 5th April 1963 was duly terminated and thereafter a charter of demands was presented on 4-2-65. Thereafter the Assistant Labour Commissioner tried to conciliate and in his report Ex.U.6 while stating that conciliation proceedings have ended in a failure, relying upon the letter of the management, stated that there was no subsisting settlement / agreement or award presently in this dispute. The admission by the management is said to be made under a mistake. We do not think this is a satisfactory explanation of a categorical statement. In our view the letter of 20th March, 1965 must at any rate be deemed to be a notice of termination, because there is a categorical statement that the settlement has been terminated on 31.12.64. Even if there is no evidence of written notice terminating it on the date specified, the letter which said that it had so terminated must be taken as the requisite notice and, if so, the reference to adjudication under the Act has been made long after the expiry of the two months, i.e., on 27.12.65. If we view the matter slightly differently, the result is the same, because when both the parties to the dispute proceeded on the specific plea that there was no settlement binding on either of them in respect of the wages and dearness allowance, even prior to conciliation, the Government had no option, on a failure of the conciliation proceedings and on being informed by the written representation of the appellant that there was no settlement in force, to refer the dispute to the Tribunal. The management, therefore, is estopped from now taking the stand that the settlement was not put an end to or that the reference was invalid". 15. Learned counsel also based reliance on a decision of the Apex Court reported in AIR 2003 SUPREME COURT 2661 (Ashwani Kumar Singh v. U.P.Public Service Commission). In this decision the Apex Court in paragraphs 11, 13 and 14 has laid down as under:- "11. Courts should not place, reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a https://hcservices.ecourts.gov.in/hcservices/ statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes". 13. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 14. The following words of Lord Denning in the matter of applying precedents have become locus classicus: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive". xxx xxx xxx xxx xxx "Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and bunches. My plea is to keep the path to justice clear of obstructions which could impede it." 16. Countering the said submissions the learned counsel for the first respondent contended that simply because the charge memo and charge sheets have been issued and the certified standing orders in respect of the 'workman' other than those engaged in clerical work and the first respondent had not contended before the Conciliation Officer that the appellant is not a workman it will not estop or prevent the first respondent from raising such a question before the Labour Court, the second respondent herein. He submitted that in the counter statement filed in the I.D. itself the first respondent has contended that since the appellant is not a workman the above I.D. is not maintainable. He submitted that the dispute referred for adjudication before the second respondent relates to the non- employment of the appellant and hence one of the issues which arises for consideration before the second respondent is whether the appellant is a 'workman' within the meaning of Section 2 (s) of the Act. He submitted that if it is ultimately held by the Labour Court that the appellant is not a workman within the meaning of Section 2 (s) of the Act none of the other issues on merits will arise for consideration. He submitted that in the light of the nature of the dispute raised before the second respondent it is open to the parties to contend that the appellant is not entitled to the benefits of the Act and wherever such a preliminary issue is raised it is for the https://hcservices.ecourts.gov.in/hcservices/ workman to establish that he is a workman. He in support of his said contention based reliance on a decision of the Apex Court reported in 2001 (II) L.L.J. 1520 (H.M.Mhasvadkar v. Bombay Iron & Steel Labour Board). In the said decision in paragraph 5 the Apex Court has observed as under"- "5. On a careful consideration of the respective submissions of the learned counsel on either side, we are of the view that in a case of the nature where the Labour Court as well as the High Court entertained doubts about the status of the appellant as a workman within the meaning of Section 2(s) of the Industrial Disputes Act, instead of embarking upon an adjudication in the first instance as to whether the respondent-Board is an industry or not so as to attract the provisions of the Industrial Disputes Act, ought to have refrained from doing so and taken up the question about the status of the appellant for adjudication