THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.15489 of 1999 Dated:19.08.2010 Between: The Superintendent of Post Offices, Mahabubnagar, Andhra Pradesh …. Petitioner AND Balanarsamma …..Respondent THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.15489 of 1999 ORDER: This writ petition is filed seeking to issue a Writ of Certiorari calling for the records in I.D.No.26 of 1998 on the file of the Industrial Tribunal-II, Hyderabad and to quash the Award dated 28.12.1998 in the said I.D. 2. The facts that lead to filing the writ petition are that a reference was made by the Central Government under Section 10 (1) (d) of the Industrial Disputes Act, 1947 (hereinafter in short referred to as “the Act” for the purpose of convenience) for adjudication as to whether the action of the Management of Superintendent of Post Office, Mahaboobnagar, interminating the services of Smt. Balanarasamma is illegal and justified. 3. The Industrial Tribunal-II, Hyderabad by award dated 28th December, 1998 passed the award holding that the termination of the claimant/petitioner (respondent herein) by the management is not justified and that she shall only be paid 50% of the backwages at the rate at which she was drawn when she was terminated minus any payment made subsequently until she was again appointed. Accordingly, the reference was ordered. Aggrieved by the same, the respondent-Superintendent of Post Offices, Mahaboobnagar (writ petitioner herein) in the said I.D. filed the present writ petition. 4. While issuing Rule Nisi on 27.07.1999, this Court in W.P.M.P.No.19077 of 1999 granted the interim suspension as prayed for. 5. The learned counsel for the petitioner contends that the petitioner in the writ petition is the Superintendent of Post Offices, Mahaboobnagar, under whose control the claimant/petitioner was given appointment as a Sweeper and later on she was terminated from the services. Aggrieved by which, she raised an Industrial Dispute, which was referred by the Central Government under Section 10 (1) (d) of the Act for adjudication of the issue as to whether the action of the management of the Superintendent of Post Office, Mahaboobnagar interminating the services of Smt. Balanarasamma is legal and justified and the reference was ordered holding that the termination of the respondent is illegal. She contends that since the petitioner is not an industry as held by the Apex Court in Civil Appeal No.3389 of 1996 and Batch dated 2nd February, 1996, the Tribunal had no jurisdiction to deal with the matter since neither the petitioner is an industry nor the respondent was a workman within the definition as contemplated under the provisions of the Act. Therefore, the writ petition is to be allowed and the award passed by the Tribunal is to be set aside. 6. For the purpose of considering this issue, it is necessary to note the facts of the case as under:- The petitioner’s (respondent herein) mother was working as a Sweeper in the respondent’s office for a long time and she died in harness. Subsequently, the claimant/petitioner was given appointment in the place of her mother on payment of Rs.1340/- per month. One Mr. Zammeeruddin was appointed as a part time sweeper from 01.09.1995 and though the claimant was performing the same duties she was paid Rs.200/- by Mr. Mohd. Zameeruddin and when she approached the Superintendent of Post Office, Mahaboobnagar by name Mr. Mohd. Mahaboob Saheb, she came to know that her services were terminated with effect from 01.09.1995 as the post of the sweeper was combined with the duties of part time contingent Chowkidar. Thus, the claimant complained that her termination was against the rules and deprived her of acquiring states of group “D” cadre and her termination was not in accordance with the rules and that she raised the issue with higher authorities but there was no response from them. Therefore, she approached the Central Administrative Tribunal by way of filing O.A.No.598 of 1997. She further stated that she was again reinstated into service as contingent employee w.e.f. 04.08.1997 on payment of Rs.1800/- per month. She only challenged the I.D. that her termination on 01.11.1995 as illegal and unwarranted and prays for backwages from 01.09.1995 to 03.07.1997 with further prayer of regularization of her service from 29.07.1993. Under those circumstances, the matter was referred by the Central Government under Section 10 (1) (d) of the Act. 7. A detailed counter was filed by the respondent/petitioner herein explaining the facts and circumstances under which the claimant was terminated. The justification of the termination according to the respondent was that the post of part time sweeper was liquidated in accordance with the instructions given by the Director General vide No.45-14/92 SPB.I. dated 16.09.1992 as a measure of combination of duties of part time sweeper and part time chowkidar in the office of the Superintendent of Post Office, Mahaboobnagar and this combination according to the respondent was approved by the Post Master General, Hyderabad region, in his letter bearing No.PMG (M) Est-4/VI- I, dated 30.08.1995 and as the work of part time sweeper was combined with part time Chowkidar, part time gardener/waterman by converting the part time Chowkidar post to full time Chowkidar/Sweeper w.e.f. 01.09.1995. Simultaneously, abolishing the post of part time sweeper. Hence the termination was effected. It is further stated that the claimant was provided alternative appointment as part time Water Woman/Gardener w.e.f. 04.08.1997 and she is continuing as such and therefore, it was contended that there was no cause of action for filing the I.D. 8. There was no dispute on the following facts:- (i) The mother of the claimant was admittedly in service of the respondent for a long time and she died in harness. (ii) That the claimant (respondent herein ) worked as contingent sweeper at Divisional office, Mahaboobnagar from 19.07.1993 to 31.08.1995. (iii) That the case was filed before the Administrative Tribunal, for the same relief, which was withdrawn; and lastly (iv) That the claimant is provided with employment in 1997. 9. On the above aspects, there was no dispute. Therefore, the only issue that was considered by the Tribunal is as to whether the disengagement of the claimant was proper and if not, whether the claimant was entitled for relief prayed for. 10. On behalf of the petitioner (respondent herein), she herself was examined as P.W.1 and no documents were marked. On behalf of the respondent (petitioner herein) none were examined but Ex.W.1-the copy of the service certificate given by the Superintendent of Post Offices, Mahaboobnagar, Ex.W2-representation of the petitioner addressed to the post master general, A.P., Hyderabad, Ex.W.3-copy of another representation of the petitioner addressed to the Superintendent of Post Offices,Mahaboobnagar Division. Ex.W4-copy of another representation of the petitioner dated 04.09.1996 addressed to the Director and General Department of Posts, New Delhi and Ex.W.5-representation of the petitioner addressed to the Director of Postal Services, Hyderabad region have been marked. 11. After considering the contentions on either side, the Tribunal passed an award as under:- “The reinstatement, when the matter was pending before the Administrative Tribunal, can not be substituted as justification for the termination. More over, in the light of the fact that the claimant was taken into service in the place of her mother, who died in harness seems to suggest that her appointment should be in relaxation of all norms which benefit is not available to new recruitees. The learned counsel cited number of decisions, but MCD Vs., Praven Kuamr Jain and others reported at Page 64 (1) LDJ is appropriate for the application of the principles in this case. The reported case pertains to Daily rated workman who are discharged and the order was reinstatement with full backwages and other attendant benefits. High Court also confirmed the Award of Tribunal by dismissing the writ petition filed by Management. The matter was appealed to Supreme Court by special leave. The Supreme Court held that since the situation was created by the management by not following the proper procedure, order of the discharge deserves to be set aside and in the totality of the circumstances, reduced the back-wages to 50%. By now, it is settled law that back-wages need not be followed by reinstatement, nor can they be paid as a matter of fact. The totality of the circumstances were taken into account in considering the case of reinstatement with backwages. The claimant was reinstated when she approached the Administrative Tribunal, at a higher sale than what she was being paid, when she was discharged. The combination of the post even if true should not result in deprivation of the claimant. As there was no proof that she was the juniormost, nor does the Management justify for their non compliance of section 25 of I.D. Act, her real grievance was that person who was appointed in her place in 1995 obtained temporary status in 1998. If temporary status was given, it would go to her seniority. Therefore, she is entitled for seniority from the date of her appointment. Taking all the circumstances into account especially keeping in view the fact that the respondent institution being penalized for the whimsical manipulations of its officers, I hold that half of the backwages at the rate at which she was paid when she was discharged from service in just compensation and from these half backwages what was paid to her during intermittent period should be deducted. Her present post should be treated as continuation from the initial appointment for all statutory purposes like seniority, promotion etc., In the result, I hold that that the termination of the claimant by the management is not justified and that she shall only be paid 50% of the backwages at the rate at which she was draw when she was terminated minus any payment made subsequently until she was again appointed. Accordingly, the reference is answered.” 12. The learned counsel appearing for the petitioner placing the reliance on the judgment of the Apex Court referred to supra submitted that the petitioner is not an industry therefore, the I.D. is not maintainable as the Tribunal adjudicated the matter had no jurisdiction. Therefore, the Writ of Certiorari be issued quashing the award passed by the Tribunal. It is further submitted that the writ petitioner is not an industry and the respondent is not a work man as defined under the provisions of the Act. 13. Clause (g) of Section 2 deals with the definition of the employer as under:- “employer” means--- (i) in relation to an industry carried on by or under the authority of any department of (the Central Government or a State Government), the authority prescribed in this behalf or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority; Clause (k) of Section 2 deals with the “Industrial dispute” Clause (n) deals with “public utility service” Clause (n) sub clause (iii) of Section 2 deals with any postal, telegraph or telephone service; Clause (bb) of Section 2 deal with “termination of service” “termination of the service of the workman as a result o the non-renewal of the contract of the employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; Clause (s) of Section 2 deals with the “workman” “workman’ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes 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 Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); 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 one thousand six hundred rupees per mensem or exercises, either by the nature or the duties attached to the office or by reasons of the powers vested in him functions, mainly of a managerial nature. 14. The definitions of the various clauses referred to supra goes to show that a person, who is employed as a workman under any management is terminated from service without following due procedure, he has a right to raise a dispute under the Act. In the present case, the respondent is a workman within the definition of clause (s) of Section 2 of the Act. She made a representation to the Superintendent, who referred the same to the Central Government, which in turn, by exercising the power conferred under Section 10 (1) (d) of the Act, referred the same matter to the Tribunal for adjudication of the dispute. Section 10(1) (d) of the Act reads as under:- “refer the dispute or any matter appearing to be connected with or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication.” 15. The Tribunal, after considering the facts and circumstances of the case and the evidence on record, adjudicated the matter and held that the termination of the petitioner is illegal and accordingly, granted the appropriate reliefs. 16. From the entire award passed by the Tribunal, it could be seen that no plea was taken by the writ petitioner with regard to the maintainability of the I.D. before the Tribunal. It appears, for the first time by making an averment in the affidavit, filed in support of the writ petition, the learned counsel for the petitioner pleaded that the I.D. was not maintainable in spite of that the Tribunal had entertained the dispute. According to her submission, the writ petitioner before this Court is not an industry and as such, the respondent is not a workman. In support of the same, she relied upon the judgment of the Apex Court in Civil Appeal No.3389 of 1996 and Batch dated 2nd February, 1996. In the said case, the employees who were appointed as extra departmental agents have approached the Tribunal and the Tribunal holding that the appellant therein is an industry, granted the relief claimed by the respondents therein. The Apex Court observing that as the employees therein were the civil servants regulated by the Conduct Rules, they do not belong to the category of workmen attracting the provisions of the Industrial Disputes Act and accordingly, set aside the award passed by the Tribunal. The said judgment of the Apex Court relied upon by the petitioner has no application to the facts of this case. 17. In the instant case, admittedly, the mother of the respondent was initially appointed as a part-time Sweeper. Consequent to the death of her mother, the respondent herein was appointed on compassionate grounds as a part-time Sweeper. Subsequently, her services were converted into part time sweeper-cum-chowkidar and she was paid the wages for the work done by her. However, without any notice and without following any procedure under law, her services were terminated. Therefore, she made a representation to the Central Government. The Central Government has referred the matter to the Tribunal under Section 10 (1) (d) of the Act. The Tribunal after considering the evidence on record, in favour of the respondent herein holding that her termination is bad and accordingly, while ordering her reinstatement, also ordered for payment of 50% of the backwages. 18. Having regard to the facts and circumstances of the case, and also as the plea that the writ petitioner is not an industry and the respondent is not a workman was not raised before the Tribunal, the Tribunal rightly, after considering the facts and circumstances of the case, ordered for reinstatement of the respondent herein and also for payment of 50% of the backwages. 19. Therefore, in my view the award under challenge does not suffer from any legal infirmity warranting interference by this Court by exercising the extraordinary jurisdiction vested on this Court under Section 227 of the Constitution of India. 20. Accordingly, the writ petition is dismissed. No order as to costs. _______________ G. CHANDRAIAH, J 19th August, 2010 bud