IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.12160 of 1990 (O&M) Date of decision: 10.07.2009 M/s Sudarshan Finance Corporation ...Petitioner versus The Presiding Officer, Labour Court, District Ambala and another. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Rajesh Punj, Advocate, for the petitioner. Mr. B.S.Saini, Advocate, for respondent No.2. ----- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J. 1. The writ petition challenges the award passed by the Presiding Officer, Labour Court, Ambala, directing reinstatement of the workman with continuity of service with back wages. The matter went for an adjudication before the Labour Court in a situation where the workman claimed that he had joined the services of the management as an Organizing Manager on 01.04.1976, promoted as a Business Manager on 01.10.1976 and posted as Area Manager on 01.04.1984 at Ambala. He was transferred to Muzaffarpur by order dated 21.03.1986, but he did not join at the place of posting. He did not join as ordered and he was served with an order of termination on 04.06.1987 retrospectively to take effect from 15.04.1986. Civil Writ Petition No.12160 of 1990 (O&M) - 2 - 2. The workman complained that the provisions of Section 25-F of the Industrial Disputes Act, had not been complied with and the termination effected was not valid and sought for reinstatement. 3. The management took up two contentions principally: (i) the petitioner was not a workman within the ambit of the Industrial Disputes Act; (ii) the respondent-management itself was not an industry and hence, no relief was possible under the Industrial Disputes Act. The Labour Court which went into the adjudication reasoned that a mere designation of the petitioner as a workman was not conclusive and hence with no proof available that the petitioner was engaged in any supervisory or managerial functions, he could not be taken outside the definition of workman. It also said that the management witness had also admitted that the petitioner had no powers of effecting any transfers of any person working under him nor to take any administrative decision relating to the functioning of the office. He was merely required to transmit all papers to the head office for decision and to an argument made on behalf of the management that the petitioner had also carried out an order of transfer of an employee on 10.11.1984, it said that a singular instance where such an order of transfer was made could not invest him with status as having served either in a supervisory capacity or in a managerial activity. The Labour Court observed that it was the management to place on file the relevant documents to prove the functions assigned to the claimant at the time of his promotion as Area Manager. Adverting to the evidence of the claimant that he did not have Civil Writ Petition No.12160 of 1990 (O&M) - 3 - supervisory functions, the Labour Court also found that even the several acts requiring the claimant to hand over documents relating to office to a Legal Advisor could not be said to be a job of supervisory nature. 4. After coming to the conclusion that the claimant was only a workman, the Labour Court found that there could not have been an unilateral decision to terminate the services even if the petitioner had not joined at the place of transfer and the retrospective order of termination effected without constituting any enquiry was bad in law. The Labour Court consequently passed the award in the manner already indicated above. 5. The learned counsel appearing for the management placed at the forefront of his arguments that the claimant was admittedly the Area Manager at Ambala, when he was served with an order of transfer. The designation, according to him, was an indication of the functions that he had to carry out. He also referred to the office order purported to have been issued on 31.03.1986 that detailed the nature of duties which he had to perform that included the following:- “................. 5. His duties will include the overall supervision and guidance in the proper performance of the duties of Development Officer, Branch Managers, Business Managers, Collection Staff, Inspectors and Agents of his Zone. ................... 13. He should guide the Development Officers, Branch Managers and Organising Managers for the overall improvement of administration business and collection.” Civil Writ Petition No.12160 of 1990 (O&M) - 4 - 6. Learned counsel for the respondent would immediately join issues on the document and point out that this office order itself was created subsequently and it was not admittedly given to him at the time when he was promoted as Area Manager. It must be noticed that this order was served upon the claimant on 31.05.1986. The order of termination itself was made only in 1987 although purported to be effective from 15.04.1986. It can not therefore be said that the letter dated 31.05.1986 was issued delineating the duties of Area Manager as pertaining to managerial functions only for the purpose of creating evidence and deny the claimant his status as a workman. A Constitution Bench of the Hon'ble Supreme Court held in H.R. Adyanthaya and others Versus Sandoz (India) Ltd.-1994(5) SCC 737, that a person claiming to be a workman must show that he was performing duties any skilled or unskilled manual work, technical or operational clerical or supervisory work. The initial burden was always on the person claiming the status as a workman. In terms of the Constitution Bench, a 3 members Bench in Mahesh Tripathi Versus Sr. Divisional Manager LIC-2004 (4) RSJ 465, held that an apprentice Development Manager was a workman. The delineation of managerial duties found in the letter dated 31.03.1986 itself is not denied. The finding of the Labour Court that the claimant was a workman is therefore wrong and hereby set aside. 7. The reinstatement and back wages that have been ordered was also challenged by the learned counsel appearing for the petitioner by saying that the “workman” is now aged more than 80 years and the benefits of Section 17-B of the Industrial Disputes Act, could Civil Writ Petition No.12160 of 1990 (O&M) - 5 - not, therefore, be given. It is seen from records that the workman has subsequently filed a petition in C.M. No.10514 of 2007 to determine whether the interim order passed by the Court on 24.12.1999 keeping the earlier order in abeyance was to be operative and whether he was entitled to obtain the benefit till the disposal of the writ petition by recalling the orders which were passed subsequently on 21.01.2000 permitting objections for the claim of benefit of Section 17-B and on 28.07.2000 adjourning the petition claiming benefits under Section 17-B sine die and to be taken up along with the writ petition. The learned counsel appearing for the respondent would urge that there was no particular age which was stipulated in the terms of service for superannuation and so long as he was not found unfit and not retired, is entitled to treat himself as still in service and avail of the benefits of Section 17-B of the Industrial Disputes Act. The prayer for reinstatement and back wages was also bound to be granted as found by the Labour Court. 8. The learned counsel appearing for the management counters the arguments by stating that in the absence of specific term of employment relating to age, the Industrial Employment (Standing Orders) Central Rules, 1946 should be taken as governing the issue and clause 3 of the said rules stipulates as follows :- “The age of retirement or superannuation of a workman shall be as may be agreed upon between the employer and the workman under an agreement or as specified in settlement or award which is binding on both the workman and the employer. Where there is no such agreed age, retirement or superannuation shall be on completion years of age by the workman.” Civil Writ Petition No.12160 of 1990 (O&M) - 6 - Admittedly, he had already completed the age of superannuation and therefore, the issue of reinstatement of payment of wages under Section 17-B of the Industrial Disputes Act, cannot be abated. 9. The relief under Section 17-B of the Industrial Disputes Act is to relieve the workman of his hardship and compensate him for what is otherwise denied to him by the management failing to implement the award for reinstatement. The Court that passes an order permitting a workman to obtain the benefits under Section 17-B of the Industrial Disputes Act will allow the workman to retain the benefit irrespective of the result of the writ petition if the Court had allowed the continuance of the benefits till the disposal of the writ petition. In other words, the workman could not have been asked to forsake the benefit and refund the amounts already received even if the ultimate decision was made in favour of the management. Admittedly, this Court did not allow for such a benefit and had directed issue of continuance of benefit to be decided at the time of disposal of the writ petition. The benefit under Section 17-B of the Industrial Disputes Act is in the very nature of things provisional and if the benefit had abated at some point of time by orders of Court and not revived till the disposal of the writ petition, it shall be impermissible to allow the workman to secure the benefit at the time when the writ petition itself is disposed of. Under the circumstances, I find there is no scope for reviewing the order and directing the payment of benefit under Section 17-B from the date when the management had stopped making the payments by virtue of the orders passed by this Court on 24.12.1999. Civil Writ Petition No.12160 of 1990 (O&M) - 7 - 10. An order for reinstatement in view of the present position that the workman has admittedly gone past the age of 80 years, the question of reinstatement does not arise in view of the decision that I have arrived that the respondent is not a workman. The award of the Labour Court is therefore set aside and the writ petition is allowed. No costs. (K.KANNAN) JUDGE 10.07.2009 sanjeev