Management of Centaur vs State of J&K and others

The petitioner terminated the services of respondent No.3. The conciliation officer failed to bring the parties to a mutual agreement and

submitted his failure report to the respondent No. 1 and in consequence to the said report the respondent No. 1 vide SRO 181 dated 05.08.1992

referred the dispute to the Industrial Tribunal Labour court (hereinafter called Tribunal) for adjudication on the following issues:

(i) Whether the termination of services of employee, Shri Showkat AH S/o Late Mohd Ibrahim by the management of centaur Lake view Hotel.

Srinagar is justified? (ii) If not, to what relief the employee is entitled to.

The tribunal being seized of the dispute, put the parties on notice and respondent (3) appeared through his counsel on 4/7/1994 whereas the

petitioner was represented by Shri K.Parshad, personnel officer. The respondent No.3 filed his claim petition on 25/10/ 1994 wherein he slated

that he was appointed as Captain by the petitioner and continues till his services were illegally terminated vide order No. GM/PF/954 dated

01/09/1988 which order was served on him on 14/09/1998. He submitted that the order of dismissal was passed against him on the allegation of

unauthorised absence which absence was treated as misconduct in terms of clause 59and60 (7)(2) of Hotel Corporation of India Ltd.. Employees

Service Regulation. The respondent No.3 further submitted in his claim petition that he was suffering from an ailment which rendered him unable to

attend the duties. It was further submitted that no opportunity of hearing was provided to him and was not allowed to deny the charges. It was

further contended that after having recovered from the ailment, he was not allowed to join the duties. Respondent No.3 has also submitted that his

service have not been terminated on allegation of dishonesty or dereliction of duty but on the basis of absence alone and his integrity is undisputed.

It is also submitted by the respondent No.3 that the medical certificate produced by him substantiating the fact of his ailment was not considered.

During the course of proceedings before the tribunal, the petitioner participated but subsequently absented and the tribunal chose to issue fresh

notices to the management, but he failed to cause appearance in compliance to the notices so issued, consequent upon such absence, the petitioner

was set exparte.

The tribunal considered the matter and came to a conclusion that respondent No.3 had absented neither deliberately nor intentionally, but his

failure to discharge the duties was because of his ailment the basic charge sheet served on the respondent No.3 was held to be malafice and

unwarranted and the tribunal returned a finding that the termination of respondent No.3 is illegal, therefore, set aside the same and passed an

award in favour of respondent No.3 and against the petitioner.

The LC for the petitioner has impugned the notification and award on manifold grounds which shall be dwelt upon hereinafter:

i) One of the main grounds of challenge thrown to the impugned orders is that the respondent No.3 is not a workman within the definition of

Section 2(S) Industrial Disputes Act and in support of this contention it is submitted that respondent No.3 held the post of Senior Captain hi the

pay scale of 675 1270 and was drawing a sum of rupees 1717.20 per month at the time of his termination and was entrusted supervisory and

managerial responsibilities which included allotment of duties, handling of complaints filed by the guests, inspection of table equipments. To drive

home this point the learned counsel for the petitioner relies at job chart which forms annexure D to his writ petition and the definition of the job

which is entrusted to respondent No.3 has been defined under the heading job definition:

to organise, supervise and train all service personnel in his department with a view to providing fast and courteous service to guests"".

The job chart also defines the authority with which petitioner is invested and is reproduced hereunder:

Authority none. Only advising capacity but initiates all performance appraisals for final approval of Manager.

ii) In view of the argument of learned counsel for the petitioner reference to the definition of work man becomes necessary which is reproduced

hereunder:

Workman means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled^ technical, operational,

clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding

under this Act in relation to an industrial disputes, includes any such person who has been dismissed, discharged or retrenchment in connection

with, or as a consequence or, that dispute, or whose dismissal , discharge or retrenchment that led to the dispute, but does not include any such

person

i) Who is subject to the Air Force Act of 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), or

ii) Who is employed in the police service or as an officer or other employee of a prison; or

iii) Who is employed mainly in a managerial or administrative capacity; or

iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees mensem or exercise, either by the

nature of the duties attached to the office or by reason of the powers vested him, functions mainly of a managerial nature.

iii) A plain reading of the section reveals that provisions iii and iv exclude all such persons who are employed mainly in managerial or administrative

capacity or who are employed in a supervisory capacity and draw wages exceeding 1,600'' per mensem or discharge functions mainly of

managerial nature. Pith and substance of argument of learned counsel for the petitioner is that the nature of job which is assigned to respondent No.

3 in terms of the job chart excludes him from the definition of workman and in order to appreciate the argument of learned counsel, the court is

required to look info the duties which are assigned to respondent No.3, coupled with the powers conferred on him reproduced herein above and

examining the responsibilities and powers of respondent No.3 in the light of the job chart it is manifestly clear that the said respondent has neither

the power to take action against any employee of the petitioner nor can he redress the grievance nor can his decision bind the petitioner. The main

and substantial work which the respondent NO.3 was employed to do was simply to serve the guests effectively, thus the job assigned to

respondent NO.3 cannot be termed as managerial, administrative or supervisory and the Tribunal has conic lo a correct conclusion that respondent

No3 is a workman and such conclusion arrived at in my opinion cannot be interfered with under article 226 of the Constitution.

iv) The petitioner management assails both notification as also the award on the ground that the management is one of the units of Hotel

Corporation of India Limited which is fully owned by Government of India and the unit is functioning under the authority of Central Government,

therefore, appropriate Government in terms of Industrial Disputes Act is the Government of India alone, as such reference of dispute by the

respondent No. 1 is not competent,

This contention is controverted by L.C for respondent No.3 on the reason that the petitioner unit is registered with the J and K Government under

Shops and Establishment Act of 1966 through Assistant Commissioner Labour under registration NO:299/C and has been allowed lo conduct

Hotel business at Srinagar by the State, and the petitioner is subservant to the laws applicable to the State, therefore respondent No. 1 has

exercised that power of reference validly and award is within jurisdiction. It is relevant to mention here that neither the L.C for the petitioner nor the

L.C for respondent 1 and 2 have disputed the fact that the petitioner as registered under J and K Shops and Establishment Act 1966. This Act

provides for regulation of conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses,

theatres, other places of public amusement or entertainments and other establishments. There is also no dispute on the count that the petitioner is

covered under the provisions of said Act, therefore petitioner stands registered under section 6 of the said Act vide No.299/C. Thus the admitted

position is that the petitioner is governed by the laws of the state which create both obligations as also duties on it, Since the petitioner functions

under the statute of the state, a duty is cast on the state to allow the petitioner to function peacefully which duty is being discharged by the state as

on date and has to do so till the petitioner functions in accordance with the provisions of law. Moreso it is relevant to notice that the dispute has

arisen in respect of the employment provided to respondent No.3 by the petitioner at Srinagar

In this view of the matter. I hold that appropriate Government for this case is the State Government, obviously, notification dated 15/ 08/1992 has

been issued by the competent authority and the award impugned is held to have been passed by the tribunal of competent jurisdiction.

(v) It is also contended by the LC for the petitioner that the tribunal has failed to take into consideration past conduct of respondent No.3 and has

drawn my attention to a case titled Lassa Koul Brian versus Labour Court and others reported in All India Service Law Journal, vol. II1981 (2nd)

page No54 to show that the tribunal was required to take into consideration the past conduct of respondent No.3 while determining the validity of

the order of termination or otherwise. No doubt, the tribunal has made an observation that past conduct in general is not to be viewed while

deciding the claim, but fact to the matter is that the tribunal has attempted to examine the past conduct as well and such examination has brought

the tribunal to a conclusion that nothing adverse against respondent No.3 is reflected in the record, therefore, contention of the LC for the

petitioner is irrelevant, moreso, the tribunal has set aside the order of termination on several grounds which are not dependent on each other.

Obviously, the argument advanced is not tenable.

(vi) Yet another argument advanced by the L.C for the petitioner is in respect of challenge to the recording of evidence by the tribunal and in this

behalf, he relies on section 11 (A), this argument need not detain me because the Apex court has subscribed to the availability of power to the

tribunal in the judgment titled United Planters Association of Southern India versus K.G. Sanganeswaran and another, reported in 1997 Labour

and Industrial cases and in view of the judicial pronouncement handed down, the argument is untenable.

(vii) The learned counsel fir the petitioner has also argued that the findings of fact returned by the Tribunal are not well founded but the perusal of

the impugned award and the pleadings do nor provide any reason to cause interference into the findings of fact returned by the Tribunal, moreso,

reappraisal of the evidence in the given circumstances is beyond the jurisdiction of the writ court.

Examining the matter on the strength of pleadings of the parties I am satisfied that impugned orders do not suffer from error of jurisdiction and

there being no manifest or apparent error of law, the writ petition fails.

6.The writ petition is dismissed alongwith the CMPs.

No order as to costs.