Digvijay Cement Co. Ltd. vs Chandvani Jamnadas S.

R. Balia, J.—These two petitions arise out of the same award by both the contesting parties in the following circumstances.

From the material placed on record in two petitions and the documents namely plaint, written statement, order of the trial Court on an application

for temporary injunction and the memo of appeal in suit filed by Jamnadas Shobhraj Chandvani, an employee (hereinafter referred to as ""J"")

challenging the termination to be illegal and seeking the relief for reinstatement, the scenario emerges like this. J was employed by Shri Digvijay

Cement Co. Ltd. (hereinafter called ""the Company"") as trainee supervisor with effect from September 1, 1970 by order dated September 1, 1970

after holding interview. One of the conditions of the employment was that the services were liable to be terminated by giving thirty days'' notice on

either side after confirmation. During the probation period, it would be terminated without notice. J was confirmed by order dated November 1,

1972. He was thereafter, promoted to the post of Assistant Development Engineer by the Company on July 13, 1975. Thereafter, it appears that

the Company was not satisfied with the performance of J and by its order dated January 28, 1983, services of J, were terminated with effect from

February 1, 1983. However one month''s salary in lieu of the notice was given. In the order, it was specifically mentioned that ""you have been

employed in supervisory capacity right from the beginning and were discharging supervisory functions"". Vide letter dated March 30, 1983

employees took up the stand that his service conditions are governed by the Model Standing Orders applicable to the, Company as also the

provisions of the Industrial Disputes Act are applicable. He also raised the contention in his notice that the notice is illegal as it was not in

consonance with the provisions of the Industrial Disputes Act. This was apart from contesting allegations about his unsatisfactory working. The

company replied it by its letter dated April 6, 1983 taking the stand that since the date of joining, J was appointed as trainee supervisor and not as

a workman and, therefore, the Standing Orders did not apply to him either at the time of his joining or when he has been relieved from the service

of the Company; that his services have been terminated strictly in accordance with the terms of employment.

In the first instance, employee filed the Civil Suit No. 71 of 1983 in the Court of the Civil Judge, (S.D.) Narol challenging the termination order.

The termination order was challenged primarily on the ground that it was passed without following the principles of natural justice as no inquiry was

conducted against the charges levelled against him and the show cause notice was not given and that the President of the Company is not

competent authority to terminate the service of the plaintiff. The resolution of the Board regarding termination of service was the necessary pre-

condition and that the defendants have not followed the rules and regulations in terminating the plaintiff''s services. In the pleadings of the plaint, no

averment to the effect as to whether the plaintiff was the supervisor or the workman has been raised nor any reference to termination being

contrary to the provisions of the Industrial Disputes Act has been made. In the written statement, the Company denied the averment made in the

plaint. In the written statement filed by the defendant-Company also, no reference to any provisions of the Industrial Disputes Act was made. In

the additional plea raised in the written statement, no objection as to the maintainability of the suit on the ground of availability of remedy under the

Industrial Disputes Act has been raised by the defendant-Company. It appears that in the affidavit filed along with the application for temporary

injunction, the defendant had tried to project that the Company was controlled by the Government and was the instrumentality of the State. On

these premises, though the trial Court granted ad-interim order, but by order dated February 8, 1983, rejected application for temporary injunction

on the ground that the plea of the plaintiff that defendant-Company is controlled by the Government is misrepresentation of facts and the plaintiff''s

case is not failing in the category of public employment. He was not entitled to the injunction in view of the specific provisions under the Specific

Relief Act prohibiting for specific performance of the contract of service J appealed before the Assistant Judge vide Misc. Appeal No. 18 of 1983.

In Memo of Appeal also, no plea as to the termination being illegal being in breach of the provisions of the Industrial Disputes Act has been raised.

However it appears that during the course of hearing of appeal before the Assistant Judge, the plaintiff-appellants relied upon the provisions of

Section 25-F of the Industrial Disputes Act to urge that the requirement of Section 25-F(b) has not been fulfilled regarding payment of

compensation for the completed period of service before termination was effective and therefore, termination by way of retrenchment was illegal. It

is in response to this plea, the defendant company said that the termination orders is not illegal since it gave one month''s notice and asked the

plaintiff to clear accounts. Regarding order being punitive, it was said that the same is not punitive and referring to the plaintiff''s service condition, it

was urged by the defendant that the plaintiff was not entitled to any relief Thus, in substance, J, had raised two-fold contentions in his appeal.

Firstly that no inquiry to sustain the termination. Secondly, that no compensation was paid as per the provisions of the Industrial Disputes Act and

therefore, the termination was bad in law because of the breach of Section 25-F. This amounted seeking enforcement of right arising from the

provisions of Industrial Disputes Act, 1947 and it the remedies lays as provided under the Act by raising industrial dispute and not by civil suit. The

appellate Court came to the conclusion that from the contention raised by the plaintiff, it falls in the realm relating to validity of the retrenchment

and, therefore, civil suit is not maintainable. He rejected the application for temporary injunction vide order dated February 22, 1983. It is

informed by the learned Counsel for J that since then, this suit has been dismissed and the matter has come to an end.

However, after being unsuccessful in the Civil Court in obtaining the temporary injunction, J raised industrial dispute and the dispute was

referred to the Labour Court, Ahmedabad which was registered as Reference L.C.A. No. 107 of 1984. Before the Labour Court, the Company

raised defence that J was working in the supervisory capacity and the salary of the employee being more than Rs. 1000/- at the time of termination,

he is not falling within the definition of ""workman"" as defined u/s 2(s) of the Industrial Disputes Act and, therefore, provisions of the said Act would

not apply to J.

The Labour Court found as a fact that J was engaged in supervisory capacity drawing salary beyond the limit specified in the definition of the

workman u/s 2(s) of the Act and, therefore, reference is liable to be rejected. However, it was of the opinion that because of the mala fide

contention raised by the Company before the Civil Court, for denying the relief to the plaintiff from that forum which has led the employee to

invoke the Jurisdiction of the Labour Court resulting in destroying his remedy in the process. The Labour Court which rejected the reference,

awarded compensation of Rs. 75, 000/- to the employee against the Company.

Feeling aggrieved with the award of compensation, the Company has filed Special Civil Application No. 6675 of 1997. After the Rule was

issued and the operation of the award of compensation in favour of J was stayed by this Court, J filed Special Civil Application No. 9060 of 1997

challenging the finding of the Labour Court that he was working in supervisory capacity and was not a workman within the definition of the

workman u/s 2(s) of the Industrial Disputes Act.

Firstly, coming to Special Civil Application No. 6675 of 1997 filed by the Company, it has been urged by the learned counsel for the petitioner-

company that the Tribunal having come to the conclusion that the employee was not the workman within the meaning of Section 2(s), the Labour

Court had no jurisdiction to award the compensation which was not related to the termination order. Moreover, the assumption that the Company

has misled the employee as well as the civil Court for denying the relief to the employee against the alleged illegal termination is apparently

erroneous. If the appellate order passed in the civil proceedings is read, at no point of time the Company has given any suggestion or inclination

that the employee is the workman amenable to the provisions of the Industrial Disputes Act. On the contrary, in its letter of termination and in reply

to the objections to the termination raised by the employee, it has been made clear that he has'' been employed from the beginning until the date of

service in supervisory capacity and he is not falling within the definition of a workman and neither the Model Standing Orders nor any provisions of

the Industrial Disputes Act, 1947 apply to him. That is the plea which has been consistently taken by the Company before the Labour Court as

well. In the civil Court also, it was not the plea of the Company that J is covered under the Industrial Disputes Act. It was only in response to J''s

plea, that he is a workman and that he is protected under the Industrial Disputes Act, that the Company had urged that if that be so, remedy of J

would be under the Industrial Disputes Act and not by filing the civil suit. As the right claimed against illegal retrenchment flows from the provisions

of the Industrial Disputes Act, person must be confined to remedies provided under the provisions of the Industrial Disputes Act.

On the contrary, it has been contended by the learned Counsel for J that this is the finding reached by the Labour Court on the basis of record

and finding of fact cannot be, interfered in a petition under Articles 226 and/or 227 of the Constitution. It was also urged by the learned Counsel

for the respondent employee that it was the plea of the Company or rather it was the statement of the Company that the provisions of the Industrial

Disputes Act apply to the employee and, therefore, he has suffered adverse order in Civil Court proceedings and was driven to have recourse to

the remedies under the Industrial Disputes Act, 1947.

Haying carefully considered the rival contentions, I am of the opinion that from the narration of facts, it is apparent that at no point of time, the

Company has been responsible in driving the employee to have recourse to the provisions of the Industrial Disputes Act or seeking reliefs

thereunder. As noticed above, in the order of termination itself, it has been mentioned that he has been (J) throughout as supervisor and his services

are being terminated in accordance with the terms of employment by giving him one month''s salary in lieu of notice. When the employee objected

to such termination, with reference to the provisions of the Standing Orders and the I.D. Act, which has apparently been seen after J has filed civil

suit and obtained ex-parte ad-interim order, on the ground that the notice of termination was illegal because it was not as per the provisions of the

Industrial Disputes Act in reply to the said objections, the Company stated that J is not a workman but is a supervisor since that date of joining until

the termination of employment and that the Model Standing Order and the I.D. Act do not apply to him. The plea does not appear to have been

raised before the trial Court inasmuch as the trial Court has refused the injunction only or, the ground that it being not a case a public employment,

J is not entitled to the relief of specific performance of contract of service, ''The argument appears to have been raised for the first time during the

course of hearing before the appellate Court. The appellate order referred to above in no uncertain terms states that the plaintiff raised the issue

that the termination which is challenged in the suit is violative of the provisions of the Industrial Disputes Act particularly with reference to Section

25-F(b) of the I.D. Act and in response to this plea as to maintainability of the suit for raising this dispute was raised by the Company.

It may be noticed that even without raising any objection, the law is well settled by the decision of the Supreme Court in the matter of The

Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, that if the right which is sought to be enforced is a right

created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the

case may be. The civil Court was bound to take notice of this pronouncement of the Supreme Court and held against the plaintiff as to the

maintainability of the suit for challenging the termination, being violative of any provisions of Chapter V-A of the I.D. Act. It cannot be said that the

defendant-Company had at any time given out that J was a workman and governed by I.D. Act or Model Standing Orders. However it is for the

suitor to find proper forum on the basis of right which he is seeking to enforce. If he in spite of being told about his status which the Company

thinks, he insists to consider his status otherwise and pursue his remedies on that basis, blame cannot be placed at the doors of the Company to

hold that the Company has misled J to abandon his rightful remedies and diverted him to remedy which was not available under law. On the basis

of the material, it is not possible to reach the conclusion that the petitioner-Company was in any manner responsible for misleading the employee to

abandon one of these remedies and pursues another remedy, very premise on the basis of which the compensation is awarded to the employees

does not survive. The order cannot be sustained.

It may be noticed here that if the employee is held to be working in the supervisory capacity drawing salary beyond the limit prescribed at the

relevant time u/s 2(s) Proviso 4, remedy of the employee against the termination and the breach of the contract simpliciter would be in civil Court

only and not elsewhere and there too unless the employment falls in the category of public employment protected by some statutory provisions, he

is not entitled to claim specific performance of contract for service by claiming reinstatement nor he can claim damages without proving as a fact

the alleged breach of contract on the part of the employer and damages caused to him directly by such breach. In that view of the matter, even

otherwise, once the Tribunal has found that the reference was not maintainable and it has reached the conclusion that the termination was in breach

of contract, solely on the ground that the civil Court has passed the order on the arguments raised before by J himself which resulted in loss of

remedies it cannot confer jurisdiction on the Labour Court to grant compensation for loss of employment.

If at all driving the employee to invoke the jurisdiction of the Labour Court could be attributed to mala fide on the part of the employer the best

the Labour Court could have done is to saddle such erring party with exemplary or compensatory cost but it could not have related anything to the

loss of employment legality of which is not gone into nor it had jurisdiction to go into on its own finding. The order of the grant of compensation by

the Court, in my opinion, thus suffers from the errors apparent on the face of the record and cannot be sustained.

However, before proceeding further the petition filed by J may be considered. It has been urged by learned counsel for J that the finding of the

Labour Court that J was not the workman but employed in supervisory capacity not falling within the definition of workman under the provisions of

Section 2(s) Proviso 4 is erroneous, and liable to be disturbed in exercise of Jurisdiction under Article 226. Firstly, in the petition this finding has

not at all been challenged. If one has to look at the grounds raised in this petition, entire petition is couched to see setting aside of the termination

order on the ground that termination was in breach of principal of natural justice and for reinstatement and also direction to the respondents to

comply with the award of the Labour Court for paying the compensation of Rs. 75,000/-. So far as grounds raised in the petition are concerned,

the learned Counsel for J has not made submission in that light and in my opinion rightly when the suit for specific performance of agreement of

service is not maintainable under the provisions of the Specific Relief Act itself, petition under Article 226 of the Constitution of India in the realm

of private employment between two private parties for the relief is not maintainable. Further, as discussed earlier, mandamus for complying with the

award for payment of compensation of Rs. 75,000/- cannot be issued in favour of the employee J as I have come to the conclusion that the award

to the extent is not sustainable.

Even otherwise on merit of contentions, the Tribunal has referred to the statement of the employee-J himself wherein he has admitted that by

order dated January 15, 1973, he has been confirmed as Supervisor. He was promoted in the shift machine plant as Supervisor. About 20

employees were working under each shift in the shift machine plant and he was supervising the work of all the workmen in all the three shifts. He

was supervising the work of the employees working under him. He was distributing the work amongst them. He was responsible for maintaining

the quality of production under him and he was also responsible to provide the guidelines to these workmen under him who would not work

satisfactorily. On these premises, the Labour Court has reached the conclusion that J does not fall in the category of workman on the date of his

termination because he was employed in the supervisory capacity and his wages were more than Rs. 500/- prescribed limit at the relevant time to

keep the Supervisor within the ambit of workman. This finding of the Labour Court does not suffer from any error which can be corrected in

exercise of extraordinary jurisdiction while considering the issue of a writ of certiorari.

Accordingly, Special Civil Application No. 6675 of 1997 filed by the employer-Company is allowed. Award of the Labour Court dated May

12, 1997 to the extent it awards a sum of Rs. 75,000/- by way of compensation to the employee-J is quashed and set aside with no order as to

costs. Rule is made absolute accordingly.

Special Civil Application No. 9060 of 1997 filed by the employees dismissed. Rule is discharged. There shall be no order as to costs.