IN THE HIGH OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of case Date of decision: 14.05.2009 Writ Petition No. 162 (M/S) of 2004 A.F.R. (Approved for Reporting) _______________________________ (Initial of Judge) Date: 14.5.2009 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up beforethe Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 162 (M/S) of 2004 Century Textile and Industries Limited Having its Registered Officer at Dr. Annie Besant Road, Mumbai (Maharashtra) Having its unit at Century Pulp and paper Ghanshyam Dham, P.O. Lalkuan, District Nainital, Through Mr. B.C. Sharma, General Manager, (Works & Administrative) Century Pulp & Paper, Lalkuan, District Nainital ………..Petitioner Versus (1) Assistant Labour Commissioner / Conciliation Officer, Kumaun Region, Haldwani, District Nainital (2) Shri Ram Chandra Nainital R/o Amrawati Road, Malli Bomari, Hadwani, ……….Respondents Mr. Vijay Bahadur Singh, Senior Advocate, assisted by Mr. T.A. Khan, Advocate, for the petitioner. Mr. Chetan Joshi, Advocater, for the respondent No. 2. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Article, 227 of the Constitution of India, the petitioner has challenged the order dated 27.12.2003, passed by respondent No. 1, hereby reference has been made under Section 4-K of U.P. Industrial Disputes Act, 1947, to the Industrial Tribunal / Labour Court, Haldwani, in respect of the following industrial dispute:- Whether termination order dated 16.11.2000, passed by the employer against its workman Shri Ram Chandra Malani, S/o Shri Chiranji Lal Malani, Assistant Officer (Raw Material), is proper and / or legal? If not, to what benefits is the workman entitled? (2) Heard learned counsel for the parties. (3) Brief facts of the case, as stated in the writ petition, are that petitioner is a unit of Century Textile and Industries Limited, having its registered office in Mumbai. In its unit, situated at Ghanshyam Dham, P.O. Lalkuan, District Nainital, the petitioner manufactures Rayon Grade Pulp & Paper, Bagasse Paper etc. According to the petitioner, respondent No.2 Shri Ram Malani was appointed as Assistant Officer in the cadre of Shift In-charge vide appointment letter dated 01.06.1995 (copy annexure 1 to the petition). He was confirmed vide letter dated 01.12.1995 (copy annexure 2 to the petition) in the service of the petitioner. It is stated in the writ petition that respondent No. 2 performed his duties as Assistant Officer till 16.11.2000 and many Supervisors and Assistants were under his command. This job description, issued to the respondent No.2 on 31.01.1999 (copy annexure 4 to the petition) disclosed the nature of job performed by him. As per the terms, mentioned in the appointment letter, services of respondent No. 2 were liable to be terminated by one month notice or payment of one month salary in lieu thereof. Vide order dated 16.11.2000 (copy annexure 6 to the petition), services of respondent No.2 were terminated and he was offered one month salary, but he did not turn up for obtaining ‘no dues certificate’. Instead, he challenged termination order dated 16.11.2000 by filing Writ Petition No. 202 (S/S) of 2000. Said writ petition was dismissed by Division Bench of this Court vide order dated 18.10.2002 (copy annexure 8 to the petition) on the ground that the employer is not a public authority. Thereafter, respondent No. 2 Shri Ram Chandra Malani filed a case under Section 24-K of U.P. Industrial Disputes Act, 1947, in the year 2003 before respondent No. 1 i.e. Assistant Labour Commissioner, Haldwani. The petitioner (employer contested said case and filed its written statement before said authority, challenging the jurisdiction to entertain the application moved by the respondent No. 2. The petitioner who was employer of respondent No. 2 took the plea that the nature of job of respondent No. 2 was managerial and administrative. It was pleaded by the employer that under the definition of workman, given in Section 2(z), respondent No.2 was an employee of Officer’s Class. However, respondent No. 1 vide its order dated 27.12.2003 (copy annexure 12 to the petition) made a reference of industrial dispute to the Labour Court, as mentioned above. Hence, this petition, challenging the legality of the order passed by respondent No. 1 referring the dispute to Labour Court. (4) On behalf of respondent No.2 a counter affidavit has been filed in which the deponent has admitted being appointed as Assistant Officer (Raw Material). It is further stated by the contesting respondent No.2 that the petitioner has distorted the facts and it is wrong to say that the respondent No.2 was not a workman. It is further stated that the cases of similarly situated workmen, namely, Hemant Kumar, Assistant Officer (Electrical) and Vipin K. Mainali, Administrative Officer, are being tried by the Labour Court, as is apparent from annexures CA-1 and CA-2 to the counter affidavit. It is further stated that the correctness affidavit. It is further stated that the correctness of the terms and conditions or job description can be examined by the Labour Court / Industrial Tribunal. It is further stated that dispute as to whether the respondent No.2 is a workman or not is a question of fact and cannot be decided by this Court in its writ jurisdiction. (5) On behalf of petitioner, attention of this Court is drawn to the case of National Engineering Industries Ltd. Vs. State of Rajasthan and others, AIR 2000 Supreme Court 469, in which it has been held that a writ petition assailing the validity order of reference on the ground that there is absence of industrial dispute is maintainable. I have gone through the case law, referred on behalf of petitioner. The case of National Engineering Industries Ltd. (supra) relates to a dispute arisen out of tripartite settlement between Management, Labour Court and the Staff Union of the industry. Later, a union made fresh charter of demands on which the Conciliation Officer made a failure report. Consequently, workers’ union filed a writ petition in the High Court seeking direction to the State Government to make reference of their disputes to Industrial Tribunal. The High Court in said case directed the State Government to decide the question on the failure report of the Conciliation Officer whether to make or not to make the reference. However, the Government had already made the reference by then. Observing that a settlement of dispute between the parties themselves is to be preferred to industrial adjudication as the settlement is likely to lead more lasting peace then an award, the apex court held that the dispute of settlement unless it is not bona-fide or arrived at on account of fraud or misrepresentation etc. cannot be a subject matter of industrial dispute. In the present case the facts are totally different. Here, the question is whether the respondent No. 2 is a workman or not. The employer says that nature of a job was administrative and managerial, while the employee (respondent No. 2) denies such nature and claims to be a workman, as such it requires evidence to examine whether the job handled by respondent No.2 was managerial in nature or that of a ‘workman’, defined under Section 2(z) of U.P. Industrial Disputes Act, 1947. (6) Also, the case of The Nedungadi Bank Ltd. Vs. K.P. Madhavnakutty and others, AIR 2000 Supreme Court 839, referred on behalf of the petitioner, is of no help in the present case. In said case after dismissal, the employee availed remedy of departmental appeal but lost, and then after keeping quiet for long seven years time attempted to raise an industrial dispute. In these circumstances, the apex court held that though no time limit is prescribed for making a reference of industrial dispute but that does not mean that the power can be exercised at any point of time, hence the apex court upheld the power to judicial review of the High Court in the matter. (7) In the case of Sharad Kumar Vs. Government of NCT of Delhi and others (2002) 4 Supreme Court Cases 490, the apex court has held that where a question requires examination of factual matters as to whether a particulate post held by the employee is managerial in nature or that of a ‘workman’, and requires evidence of the parties, it can be decided by the Industrial Tribunal or Labour Court, as the case may be, before coming to the conclusion whether termination of such employee is legal or not. In the present case the situation is similar to the case of Sharad Kumar (Supra), as such this Court is not inclined to interfere in the industrial dispute referred by respondent No. 1, without making any observation as to whether respondent No.2 is a workman or not. (8) For the reasons as discussed above, the writ petition is dismissed with the observation that the petitioner may agitate the issue whether the respondent No.2 is a workman or not before the Industrial Tribunal / Labour Court, while defending its case on other grounds. No order as to costs. (Prafulla C. Pant, J.) 14.05.2009 ______________ NS