C.W.P.No.5538 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.5538 of 2003 Date of Decision:- 29.04.2009 Devinder Kumar Bansal ....Petitioner(s) vs. Presiding Officer, Central Government Industrial Tribunal and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.C.M.Chopra, Advocate & Mr.Pawan Bansal, Advocate, for the petitioner. Mr.B.R.Mahajan, Advocate, for the respondent. *** AUGUSTINE GEORGE MASIH, J. The petitioner-Devinder Kumar Bansal was appointed as a Probationary Development Officer on 27.8.1987 with the Life Insurance Corporation of India (hereinafter called as the Corporation) and was confirmed as Development Officer on 31.3.1988. While he was working as such, he was served with a charge-sheet on 11.6.1994 containing charges of un-authorizedly collecting the amount of insurance premiums in cash from policy holders and agents of the Corporation and then instead of depositing the said amount with the Branch Office, he deposited cheques of matching amounts from his own account which were subsequently dishonoured and, thus, misappropriated the funds of the Corporation. The petitioner denied the charges levelled against him and accordingly, an Inquiry Officer was appointed to go into the allegations against him. After C.W.P.No.5538 of 2003 -2- conclusion of the enquiry, the Inquiry Officer submitted his report dated 7.4.1995 wherein he found the petitioner guilty of the charges levelled against him. A show cause notice was accordingly issued to the petitioner on 8.7.1995, to which he submitted his reply on 7.8.1995. On consideration of the said reply, the Competent Authority finding it to be unsatisfactory, passed order dated 1.11.1995 for removal of the petitioner from service of the respondent-Corporation. The petitioner preferred an appeal against the said order which, however, came to be dismissed vide order dated 12.8.1996 passed by the Appellate Authority. The petitioner thereafter submitted a demand notice and on failure of the conciliation proceedings, the Central Government referred the dispute to the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh vide notification dated 5.9.1997. The petitioner submitted his claim before the Industrial Tribunal-cum-Labour Court to which reply was submitted by the respondent-Corporation taking therein a preliminary objection that a Development Officer of the Life Insurance Corporation of India is not covered under the definition of “workman” as provided under Section 2 (s) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). On this basis, it was contended that the Tribunal had no jurisdiction to adjudicate upon the dispute and a prayer was made to return the reference unanswered. Apart from the said preliminary issue, on merits also the claim of the petitioner was contested by the Management. The Management further submitted an application to the effect that as the petitioner was not a workman, therefore, the reference cannot be adjudicated upon by the Tribunal. Rejoinder thereto was filed by the petitioner. On completion of the pleadings, the parties were called upon to submit their C.W.P.No.5538 of 2003 -3- evidence in support of their respective stand taken before the Tribunal. Both the parties filed their respective affidavits along with the documents besides examining their witnesses. The Industrial Tribunal-cum-Labour Court proceeded to decide the preliminary objection as raised by the Corporation with regard to the question of the jurisdiction of the Tribunal to adjudicate upon the dispute on the question that the petitioner was not a “workman” as provided under the Act and held that the petitioner is not covered by the definition of “workman” as provided in Section 2 (s) of the Act. The decision of the Tribunal is based upon the observations and the law laid down by the Hon'ble Supreme Court in the case of H.R.Adyanthaya vs. Sandoz (India) Limited etc., 1995 (1) SCT 277, which is decision by Five Judges' Bench The Tribunal, therefore, concluded that it did not have the jurisdiction to decide the reference and accordingly the reference was returned unanswered vide award dated 21.1.2003 (Annexure P-1) which is now under challenge in the present writ petition. Learned counsel for the petitioner contends that the law as laid down by the Hon'ble Supreme Court in the case of S.K.Verma vs. Mahesh Chandra and another, AIR 1984 Supreme Court 1462, was delivered in the case of a Development Officer with the Life Insurance Corporation of India. He contends that although the Hon'ble Supreme Court in the case of H.R.Adyanthaya (supra) (Five Judges' Bench), reliance whereof has been made by the Labour Court while coming to the conclusion that the petitioner was not a “workman” has referred to the judgment in S.K.Verma's case (supra) (Three Judges' Bench) but has not over-ruled the same in that case. He contends that the Hon'ble Supreme Court in para 9 of C.W.P.No.5538 of 2003 -4- H.R.Adyanthaya's case (supra) while discussing S.K.Verma's case (supra) held the decision to be per incuriam. He further contends that in para 14, the Hon'ble Supreme Court again while referring to S.K.Verma's case had held that the Court had held the Development Officer of the LIC to be a workman on the facts of that case. He, therefore, contends that as far as the case of the petitioner is concerned, the Hon'ble Supreme Court in the case of S.K.Verma's case (supra) while dealing with the question whether the Development Officer of the LIC would be a “workman” has come to the conclusion that he would fall within the definition of “workman” and therefore, the Act would be applicable and the Industrial Tribunal-cum- Labour Court would have the jurisdiction to entertain and decide the reference. He has further relied upon a latest judgment of the Hon'ble Supreme Court in the case of LIC of India vs. R.Suresh, 2 008 (3) RSJ 232, to contend that the Hon'ble Supreme Court has again while dealing with the question as to whether the Development Officer of the LIC would be a workman under Section 2 (s) of the Act, has answered the same in the affirmative in para 15 thereof. Counsel, on this basis, contends that the award passed by the Labour Court cannot be sustained and deserves to be set aside. On the other hand, learned counsel for the respondent- Corporation relying upon the judgment of the Hon'ble Supreme Court in the case of H.R.Adyanthaya's case (supra) contends that the same being a Five Judges' Bench decision would prevail and therefore, the judgment relied upon by learned counsel for the petitioner would not hold the field. He further relies upon the judgments of the Hon'ble Supreme Court in the case of T.P.Srivastava vs. M/s.National Tobacco Company of India C.W.P.No.5538 of 2003 -5- Limited, 1992 (1) PLR 640 (SC), Management of M/s.Sonepat Cooperative Sugar Mills Ltd. vs.Ajit Singh, JT 2005 (2) SC 370, and Mukesh K.Tripathi vs. Sr.Divisional Manager, LIC and others, 2004 (4) RSJ 465 to contend that the judgment in S.K.Verma's case (supra) relied upon by the counsel for the petitioner, would not be a good law and no reliance can be placed thereupon. Counsel contends that the Hon'ble Supreme Court in Mukesh K.Tripathi's case, (supra) has categorically held in para 23 thereof that the judgment in S.K.Verma's case (supra) cannot be said to have laid down a good law. He, on this basis, contends that the Labour Court has come to a correct conclusion as per the law laid down by the Hon'ble Supreme Court and, therefore, no interference by this Court is called for. He further contends that the judgment by a larger Bench would prevail over the judgments rendered by Two/Three Judges' Bench and, therefore, the judgment in the case of H.R.Adyanthaya's case (supra) would prevail over that of the three Judges' Bench judgment in S.K.Verma's case (supra). He further contends that subsequent judgment in Mukesh K.Tripathi's case (supra) has been given by a Three Judges' Bench and since the same is later in time wherein it has been specifically held that the law laid down in S.K.Verma's case (supra) is not good law, the same shall prevail. I have heard counsel for the parties and have gone through the records of the case, besides the judgments referred to by the learned counsel for the parties. There can be no dispute with regard to the proposition that the judgment given by a larger Bench would prevail over all other judgments given by Two/Three Judges' Bench but the law as settled by the Courts is to be applied to the case to be decided by the Court. C.W.P.No.5538 of 2003 -6- The pleadings and the evidence led by the parties form the basis for applying the law. The facts and the evidence lead to the findings which form the basis for application of law leading to the decision of the Court. The submissions as raised by the learned counsel for the parties on the question of law cannot be decided in isolation without reference to the pleadings and the evidence led by the parties before the Labour Court. In the present case, a finding has been recorded by the Labour Court that the petitioner would not fall within the definition of “workman” as provided under Section 2(s) of the Act but without discussing the evidence on record. The conclusions so drawn by the Labour Court are not supported by any oral or documentary evidence as none of them has been discussed by the Labour Court while coming to the conclusion arrived at. The findings based on no evidence, whether documentary or oral, unless admitted in pleadings would be perverse. In this view of the matter, the impugned award dated 21.1.2003 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Chandigarh, cannot be sustained and is hereby set aside. The case is remanded to the Labour Court to decide the matter afresh after discussing the evidence led by the parties. The parties are directed to appear before the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh on 28.5.2009. The writ petition stands disposed of. April , 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE C.W.P.No.5538 of 2003 -7- Whether referred to Reporters ________ Yes/No