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Judgment
Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.
The petitioner is challenging the impugned award dated 23.12.1983 passed by the Labour Court, Ghaziabad in Adjudication Case No. 133 of 1980 directing reinstatement of respondent No. 2 with full back wages.
By interim order dated 25.4.1984 the operation of impugned award was stayed. The petitioner was directed to pay wages to respondent No. 2 w.e.f. 23.12.1983 with an option to continue to pay him wages month to month or take work from him.
The Backdrop of the case is that respondent No. 2 was appointed on 28.9.76 and was working as a ''Tagadgir'' at Bulandshar. His main duties were to realize payment from the customers who had purchased seeds and manure on credit from the petitioner company as per the list furnished by the Delhi office of the petitioner Company as well as to also to promote the sales of the employer. As engagement with the company was for a very short tenure i.e. with effect from 30.9.1976 up to 30.9.1979, his services were hired and controlled by New Delhi office and in fact the order of termination was also passed by the Delhi Office as such the Labour Court, U.P. Ghaziabad had no jurisdiction.
During his tenure of employment respondent No. 2 was posted at Muzaffamagar When Inspector under the Minimum Wages Act and inspected the establishment on 25.10.1978 showing respondent No. 2 to be employed a Salesman in his inspection report. Subsequently the respondent workman transferred to Bulandshar where he worked for the last six months prior to his termination though there was no shop or establishment of the petitioner there.
On transfer to Bulandshahar, respondent No. 2 neglected in performance of his duties for which he was issued warning letters from time to time to improve interalia his conduct and to show better result in performance of his duties. All these letters were issued after 15.5.1979 prior to termination of service. Inspite of warning respondent No. 2 did not improve his conduct and work efficiency, therefore, the petitioner was constrained to terminate his services.
The stand of respondent No. 2 is that the termination order was passed with malafide intention and as an act of victimization for the reason that had verbally demanded wages as per the revised wages for the post Salesman under the Minimum Wages Act on which he was working. Since the employers got annoyed with his rightful demand they terminated his service in order to teach him a lesson.
Aggrieved by his illegal termination of service an identical dispute was raised by the workman which was referred by the State Government to Labour Court, Ghaziabad for adjudication and was registered as Adjudication Case No. 133 of 1980. After evaluating the pleadings and evidence the Labour Court vide its award dated 23.2.83 directed reinstatement of respondent No. 2 with back wages holding his termination order by the employer to be illegal and unjustified.
The petitioner is challenging the order of reference made by the State of U.P. to Labour Court, Ghaziabad as well as the award passed by the Labour Court interalia on the grounds that In the present case, the Adjudicating authority has not exercised its jurisdiction and has held respondent No. 2 to be a workman by solely relying upon an inspection report of a machinery of the State Government and has not given an independent finding of its own and thus erred in law as such the order of reference is bad in law on two scores: (i) The State Government did not have the territorial jurisdiction over the dispute in as much as respondent No. 2 was working under the direction and control of the office at New Delhi and that the employer did not have any establishment at Bulandshahar where respondent No. 2 was posted at the time of termination and that the order of termination was passed by the Delhi Office as such if at all dispute arose it arose within the territorial jurisdiction of Union territory of Delhi and as such only the appropriate Government of Union territory of Delhi had the jurisdiction to refer the dispute.
The petitioner has relied upon the judgment of National Tobacco Co., Employees Union (Regd), Jullundur Vs. Manohar Singh and Another, Lipton Limited and Another Vs. Their Employees, wherein it has been held that industrial dispute does not arise at a place where workman works and reside but where the employer is exercising effective control.
Respondent No. 2 is not a workman as defined u/s 2(z) of the U.P. Industrial Disputes Act, 1947. He was neither performing duties of a skilled or unskilled, manual, supervisory, technical or clerical work and in fact his primary duties was that of a Tagadgir, i.e. of a Collection Agent to pursue the customers of the Company to pay the amount towards credit of goods given to them and collect the payment as per list provided by the Delhi office. The nature of main work of the respondent No. 2 was more or less the same as that of a ''Canvassor'' or a ''Sales Promotion Employee'' who are not workman under the Industrial Disputes Act. Respondent No. 2 failed to prove that he was performing either of the duties as enshrined in the definition of the workman as the law is well settled that the burden is on the workman to establish as to in which category of the definition he falls to be held a workman. A Sales Promotion Employee is not a workman under the Industrial Disputes Act and as such respondent No. 2 is not a workman.
The petitioner has not admitted that respondent No. 2 is a workman as defined under the U.P. Industrial Disputes Act and has seriously contested it before the Labour Court as well as before this Court and if some where in the writ petition respondent No. 2 has been referred as workman the intention was to mention that he was an employee of the company but certainly not a workman within the meaning of Industrial Disputes Act and the same may not be treated as admission on part of the employer. Law is well settled that it is nature of duties which can only decide whether a person is a workman within the meaning of Industrial Disputes Act and certainly not the designation.
The petitioner has relied upon the judgment reported in 1970 (2) LLJ 590 Burmah Shell Oil Storage & Distribution Co. of India Ltd. v. Burmah Shell Management Staff Association 1995 Lab.l.C.303 of H.R. Advanthava v. Sandoz 2004 LIC 3688 Mukesh Tripathi v. LIC 2005 Lab.I.C. 1537 A.K. Patel v. India Hotels (Bombay H.C.) & 2008(H) LLJ-221, 2201(1) LBSER-737 (SO The Range Forest Officer v. S.T. Hadimani.
The award passed by the Labour Court is perverse in as much as that there were ample proof on record before the Court below to come to the conclusion that respondent No. 2 has shirked in performance of his duties for which he had been warned thrice and as such the employer had no option but to terminate him. The employer had proved its case from evidence on record that the order of termination was proper and legal and not in violation of Industrial Disputes Act and that the Labour Court''s finding that the order of termination is in violation of principle of natural justice it totally perverse in as much as respondent No. 2 had the opportunity below the Labour Court to defend himself and to prove that the order of dismissal was bad. Labour Court has not exercised its jurisdiction u/s 11A of the Industrial Disputes Act and thus has committed error of law.
It is submitted that respondent No. 2 is not entitled to the relief of back wages as well as he has neither pleaded nor stated in oath that he was not gainfully employed as it would be apparent from the written statement filed by respondent No. 2 before the Labour Court and the impugned award suffers on this account as well as the Labou Court has mechanically allowed the relief of back wages without any application of mind.
The petitioner has relied upon the judgment in 2005 LLR 275, Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma (SC). The employee has to show that he was not gainfully employed. The initial burden is oh him. He has neither pleaded nor placed any material in that regard would not be entitled to back wages.
He has also relied upon the judgment reported in U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, Entitlement to full back wages is not automatic 1 or mechanical or mechanical on grant on reinstatement. While granting relief application of mind on part of Industrial Court is imperative. Plea to be raised by the workman was not gainfully employed during the period back wages claimed. Onus to plead and prove is on the workman. In the instant case, respondent No. 2 has all throughout remained gainfully employed and is not entitled to back wages.
The employer has also relied upon the judgment of Chetanbhai Babubhai Gohil v. Union of India reported in 2006 LLR 665 in support of its aforesaid submissions wherein it has been observed that the appropriate Government while referring the dispute cannot adjudicate upon the merits of the dispute and it is only within the realm of the adjudicating authority.
It is urged that in view of the submissions made above the impugned award passed by the Labour Court is liable to be quashed.
Learned Counsel for respondent No. 2 submits that the workman was employed as Taqadgir and he is not covered under the definition of workman; that the Head office of the petitioner is at Delhi and though the respondent No. 2 was at all times posted in State of U.P. and there being no condition in his terms of service that he will raise the dispute within the territory of State where his Head office is situate, the appropriate government in the case would be were his services were terminated giving rise to cause of action which has made the reference, therefore, the order of reference is legal and correct; that the termination order was passed without holding any enquiry or notice for alleged misconduct that he was unpunctual and negligent in his duties hence termination of his services is an individual dispute; that all the letters pertaining to alleged misconducts were issued to him after his transfer to Bulandshahar with malafide intention, hence termination of his services without following the procedure of law is illegal, unjustified and as a measure of victimization.
At the time of admission the following ad-interim order was passed by his Lordship S.K. Dhaon, J. on 25.4.1984.
Issue notice.
Meanwhile the operation of the impugned award dated 12.12.83 shall remain stayed provided the petitioner pays to respondent No. 2 Chandra Shekhar the entire amount of wages with effect from 23.12.83 within a period of two months from today. It shall be open to the petitioner to either take work from respondent No. 2 or continue to pay him wages month by month on or before the 10th of each month. Wages for the month of August 1984 shall be paid on or before the 10th of September 1984. Wages for the subsequent months shall be paid on or before the 10th of each succeeding month. In the event of default the stay order shall stand vacated.
Sd. S.K. Dhaon, J. 25.4.1984
From the material on record it is apparent that the petitioner has admitted respondent No. 2 to be the workman in the category of poen at Bulandshahar, therefore, the objection that respondent No. 2 is not a workman has no merit. Petitioner on the report of the Labour Inspector which described respondent No. 2 as Salesman was paid the difference of salary without disputing the same is also a pointer to the fact that respondent No. 2 was a workman in the petitioner establishment.
In view of the undisputed position that respondent No. 2 was employed and worked in Bulandshahar and his services were terminated in Bulandshahar State of U.P. is the appropriate Government to make the reference. In view of the provisions of Section 2A of the U.P. Industrial Disputes Act an individual dispute shall be deemed to be an industrial dispute.
No illegality or infirmity could be shown in the findings of the Labour Court by the Counsel for the petitioner. The award is concluded by findings of fact and the only legal objection raised by the Counsel for the petitioner is regarding territorial jurisdiction of the Labour Court which has been decided by this Court against the petitioner for the reasons stated above.
In the facts and circumstances of the case, no interference is required under Article 226 of the Constitution of India. The writ petition is accordingly, dismissed. As a consequence that the writ petition is very old of the year 1984 it is directed that all arrears of back wages shall be paid to the workman concerned by the employer within two months from today otherwise they may be recovered as arrears of land revenue and paid to him. No order as to costs.