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Judgment
Rameshwar Singh Malik, J.—Feeling aggrieved against the impugned award dated 28.10.2011 (Annexure P-6) passed by the learned Industrial Tribunal-cum-Labour Court-II, Gurgaon, petitioner Management has approached this Court by way of instant writ petition under Article 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari, for quashing the impugned award. Facts first.
As per the claim statement filed by the respondent workman vide Annexure P-1, he was appointed as Junior Engineer w.e.f. 7.12.1995. He was confirmed as such vide confirmation letter dated 1.10.1996. Thereafter, he was promoted as Junior Engineer Grade (J.1) vide letter dated 1.7.2000. However, his services came to be terminated w.e.f. 20.10.2001. He further alleged that mandatory provisions of law contained under Sections 25-F, 25-G and 25-N of the Industrial Disputes Act, 1947 (''Act'' for short) were violated by the petitioner Management. The respondent workman has further alleged that the petitioner Management assigned various jobs to him, such as measurement of finished materials, checking of reflectors in paint shop, checking of lights in Assembly Line, dismantling job of rejected material and preparing the inspection report for handing over to senior official of the Management. He used to do all these jobs with his own hands, thus, he was workman within the meaning of Section 2(s) of the Act. Petitioner submitted its written statement vide Annexure P-2 controverting the pleadings of the workman. It was pleaded that respondent workman was mainly engaged in supervisory work and any clerical work done by him was incidental to his supervisory duties. The respondent workman refused to accept the letter dated 19.10.2001, vide which he was offered one month pay in lieu of notice, besides full and final amount including gratuity. He was not a workman as he was mainly engaged in supervisory work. Evidence led by the respondent workman by way of affidavit is appended as Annexure P-3, including his cross examination as WW1. The petitioner Management had relied upon Annexure P-4- photocopies of finished items, which were taken by the respondent workman as samples from the clients/customers of the petitioner. He would also get back the complaints, if any. Evidence led by the petitioner Management by way of affidavit of Heera Lal an Officer H.R. was appended as Annexure P-5.
Based on the above said pleadings and evidence led by both the parties, the learned Labour Court decided the reference in favour of the respondent workman, directing his reinstatement with continuity in service with 50% back wages. Hence this writ petition.
Learned counsel for the petitioner submits that respondent No. 2 was not a workman because his dominant work was supervisory in nature. The manufacturing unit of the petitioner company wherein the respondent was working, came to be closed down in the month of February, 2005. Once the unit itself came to be closed, there was no question of reinstatement of respondent No. 2, nor he could have been awarded any back wages. He next contended that respondent No. 2 had taken a loan from the bank with whom the petitioner Management had a tie-up arrangement. At the time of his retrenchment, the outstanding amount of loan against respondent No. 2 was Rs. 45,000/-, which was deposited by the petitioner Management with the bank. The learned Labour Court did not take into consideration both these issues while passing the impugned award. In support of his arguments, learned counsel for the petitioner refers to para 4 of Annexure P-1 at page 12 of the paper book, para 4 of the written statement on merits at Annexure P- 2 and also para 4 of the evidence led by way of affidavit Annexure P- 3 at page 20 of the paper book. He also relies upon para 10 of the impugned award at page 42 of the paper book about the closure of the manufacturing unit and deposit of amount in the loan account of respondent No. 2, by the petitioner towards full and final payment to the respondent. Further, he relies upon the judgments of the Hon''ble Supreme Court in T.P. Srivastava Vs. National Tobacco Co. of India Limited, S.K. Maini Vs. M/s. Carona Sahu Company Limited and others, and H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc., Finally, he prays for setting aside of the impugned award by allowing the present writ petition.
Per contra, learned counsel for respondent No. 2 submits that in view of the observations made by the learned Labour Court in para 14 of the impugned award, at page 44 of the paper book, the manufacturing unit of the petitioner Management was closed down at Sohna because it was shifted to Pune, which will not amount to closure. She next contended that since respondent No. 2 was doing all the duties assigned to him by his own hands and he was not doing any supervisory work, he would be clearly covered under the definition of workman as provided u/s 2(s) of the Act. Regarding the third issue, learned counsel for respondent No. 2 workman, made a fair statement that if the amount of Rs. 45,000/-, as a matter of fact, has been deposited by the petitioner Management in the loan account of respondent workman, let the same be adjusted towards monetary claim of the workman. In support of her contentions, learned counsel for respondent No. 2 relied upon a judgment of Delhi High Court in LKP Merchant Financing Ltd. Vs. Govt. of NCT and Others, , a Division Bench judgment of Bombay High Court in V.L.T. Cargo Movers (P.) Ltd. Vs. Ajit Kumar S. Puri and Another, , judgment of the Hon''ble Supreme Court in Lloyds Bank Ltd., New Delhi Vs. Panna Lal Gupta and Others, and a judgment of Delhi High Court in Blue Star Limited Vs. N.R. Sharma and Others, . Learned counsel for respondent workman concluded by submitting that the writ petition was wholly misconceived and liable to be dismissed.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that present one is a case wherein no interference at the hands of this Court is warranted, while exercising its writ jurisdiction. To say so, reasons are more than one, which are being recorded hereinafter.
From the facts of the case, pleadings and arguments raised on behalf of the parties, discussed here-in-above, following three questions fall for consideration of this Court:--
i) Whether respondent No. 2 was a workman within the meaning of Section 2(s) of the Act;
ii) Whether shifting of manufacturing unit of the petitioner Management from Sohna to Pune, would amount to closure; and
iii) Whether the amount of Rs. 45,000/- deposited in the loan account of respondent workman by the petitioner Management, as claimed by it, was liable to be adjusted in favour of the petitioner Management, towards monetary benefits of respondent workman, arising out of the impugned award. Taking the first question first, it was specifically pleaded by the respondent workman, in para 4 of his claim statement that he was doing his job with his own hands. The averments taken in para 4 of the claim statement Annexure P-1, read as under:--
That the Management assigned various jobs to the applicant such as to measurement of finished materials, checking of reflectors in paint shop, checking of lights in Assemble Line, dismantling job of rejected material and preparing the Inspector Report and handing over to senior official of the respondent. These all the jobs used to be done with his own hand by the applicant. The applicant is having the qualification of 10+2 and ITI in Turner Trade. The application used to do all the entrusted jobs with his hands and as such the applicant falls within the meaning of Sec. 2(s) of the I.D. Act, 1947.
The reply of the petitioner Management given in the corresponding para 4 of its written statement Annexure P-2, reads as under-
Para No. 4 of claim statement as alleged is wrong and denied except the qualification mentioned under this Para. The applicant was mainly engaged in supervisory work and any clerical work done by him was incidental to his employment of supervisory duties. The applicant was handling the work entrusted to him independently in his duly shift.
A combined reading of the above said pleadings would make it clear that the petitioner Management did not deny the categoric averments taken by the workman. Further, it was not specified by the petitioner Management as to what kind of clerical and supervisory work was being done by the workman. The respondent workman in para 4 of his evidence by way of affidavit Annexure P-3, again specifically pointed out the nature of his job. The petitioner Management could not dislodge the credibility of the evidence of respondent workman, while cross examining him. Even Sh. Heera Lal, witness of the petitioner Management, could not specify as to what kind of job was being performed by the respondent workman, which was supervisory in nature.
Further, a combined reading of as many as 10 despatch advices of the petitioner Management, available on record in the form of Annexure P-4, would show that the respondent workman was not performing any duty, which was supervisory in nature. These despatch advices (Annexure P-4) would show that the respondent workman used to take the end products of the petitioner Management to its different clients/customers. The mode of transport of all these despatch advices is written as "by hand". This would clearly mean that the respondent workman was taking the end products of the petitioner Management, lifting the same manually wherein no job of supervisory nature was involved.
No material has been placed on record by the petitioner Management which may even remotely suggest that respondent No. 2 was not falling within the definition of workman as provided u/s 2(s) of the Act. On the other hand, the record speaks volumes in favour of the workman.
So far as the above said three judgments relied upon by the learned counsel for the petitioner are concerned, the same are of no help to the petitioner, being distinguishable on facts. There is not even an iota of evidence available on record of this case, which may suggest that respondent No. 2 was doing any kind of clerical job or any other job which was supervisory in nature. Since the petitioner management has miserably failed to lay down this factual foundation in its pleadings and also could not bring on record any evidence in this regard, this Court feels no hesitation to hold that in view of the peculiar facts of the present case, respondent No. 2 was a workman within the meaning of Section 2(s) of the Act and the learned Labour Court has rightly held respondent No. 2 as workman.
In the case of T.P. Srivastava (supra), the appellant was appointed as Section Salesman for four districts in Rajasthan, his headquarter being at Bikaner. There were seven other local salesmen and local travelling salesmen in his area. Based on these facts, the Hon''ble Supreme Court came to the conclusion that he was not doing any work by his own hands and he was performing the duties which was supervisory in nature. In the case of S.K. Maini (supra), the appellant was found working as shop Manager/in charge of the shop by discharging mainly managerial and administrative functions and supervising the work of subordinates for running the said shop. He was not held to be a workman within the definition of Section 2(s) of the Act. Similarly, in the case of H.R. Adyanthaya (supra), the Medical Representatives were not found covered within the definition of workman. However, in the present case, fact situation is entirely different, as noticed here-in-above.
It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Further, sometimes difference of one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, .
Keeping in view the fact situation of the present case, it is held that respondent No. 2 was not performing any duty which might be supervisory in nature. He specifically named the nature of works, he was performing and out of which, none was found to be supervisory in nature.
On the other hand, the petitioner Management, except making the statement that respondent No. 2 was pre-dominantly doing the job of clerical nature which was supervisory, has failed to point out as to what kind of job was being done by respondent No. 2. No document in the form of duty chart, showing the assignment of duty to respondent No. 2, has been produced by the petitioner Management. Thus, it is held that the learned Labour Court committed no error of law while holding respondent No. 2 as workman.
In view of the observations made here-in-above, the first question posed above, is hereby answered against the petitioner and in favour of respondent No. 2.
The view taken by this Court also finds support from the judgments of the Hon''ble Supreme Court in Lloyds Bank case (supra), VLT Cargo Movers (supra) and M/s. Blue Star (supra), besides the recent judgment of the Hon''ble Supreme Court in Mukesh K. Tripathi Vs. Sr. Divisional Manager, L.I.C. and Others,
Coming to the second question, this Court is of the considered opinion that mere shifting of the manufacturing unit from Sohna to Pune, will not amount to closure. The official communication dated 18.3.2005 (Ex. R-5), which was produced by the petitioner before the learned Labour Court, reads as under:--
The Chief Inspector of Factories (HR)
SCO 82-83, Sector-17C,
Chandigarh
Sub: Closure of Factory
Dear Sir,
It is to inform you that we have close down our factory due to shifting of business from Sohna to Pune. Please find enclosed herewith the closure report in prescribed annexure (RULE 113 (g) PUNJAB FACTORY RULES 1952).
Thanking you.
Yours faithfully, For LUMX INDUSTRIES LTD (K.N. GUPTA) VICE PRESIDENT
It is pertinent to note here that the above said document was not annexed by the petitioner with its writ petition, but the same was supplied to the Court by learned counsel for respondent No. 2, during the course of hearing.
A bare perusal of the above said official communication would show that the work of the petitioner company did not come to an end. The work was very much subsisting, however, only the workplace was shifted from Sohna to Pune. The view taken by this Court also finds support from the Division Bench judgment of Bombay High Court in Biddle Sawyer Ltd. Vs. Chemical Employees Union and Others, The relevant observations made by the Division Bench in para 38 and 39 of the judgment, which can be gainfully followed in the present case, read as under:--
Having considered extensively all the judgments placed before us by the learned Senior Counsel, the law relating to "closure" seems to be a well settled one. Closure is the closing down permanently of the source of employment of the workmen, i.e. the place where the employment is actively generated. It thus follows that closing down of a "place" of business would not amount to closure as that would be over simplification which would lead to various negative ramifications as they have been extensively dealt with in the earlier part of the judgment in various quotations from various judgments- It must be recalled that the object of labour legislation is social welfare legislation. It is an umbrella of protection provided to workmen to shield them from the employer exploiting their vulnerable position. But it cannot be said that merely because a place of manufacture has been closed down and restarted at another place or transferred to another employer that the undertaking has been closed down. The business itself is still alive, the source of employment is still present and there is no valid closure in law.
A conspectus of all the above judgments makes it clear that "closure" would really mean permanent closure of the "place of employment" or a part thereof and the same could never mean only "place" of employment. One has to read the above definition of Section 2(cc) of Industrial Disputes Act in a comprehensive manner and not in a disjointed manner. A "place of employment" means a place, which generates employment or where business is carried on, and the same should not be construed in a superficial manner to indicate only a building or factory. The above interpretation has been consistently adopted by the Hon''ble Supreme Court and our High Court, as can be seen from the following:
(a). The Hon''ble Supreme Court in the case of Tatanagar Foundry Co. Ltd. v. Their Workmen (supra), in paragraph No. 3 has observed as under:
...It was pointed out in that case that in the case of a closure, the employer does not merely close down the place of business but he closes the business itself finally and irrevocably. A lockout on the other hand indicates the closure of the place of business and not closure of the business itself. In the present case the totality of facts and circumstances would lead to the conclusion that the undertaking at Jamshedpur was closed down completely and was a final and irrevocable termination of the business itself.
(b). Our High Court in the case of Innovations Garment Limited v. S.K. Singe and Anr. (supra) has observed in paragraph No. 8 as follows:
The petitioners were directed to discontinue or stop the manufacturing activities under the law by the competent authority. It is, therefore, not possible for me to accept the contention of Ms. Gopal that the decision of the petitioners to stop or to discontinue the manufacturing activities suffer from lack of bonafides or an act of victimisation or it was a malafide decision to resort to closure in the guise of shifting. The bonafides of the petitioner can further be tested in the light of their restarting the factory at Mumbai after making alternative arrangement from 1st September, 1998. The petitioners had sufficient land and infrastructure at Mussoorie and their decision to shift their activities to Mussoorie cannot be questioned as unjustified or malafide. I do not find any fault with the decision of the petitioners to shift to Mussoorie their manufacturing unit from Mumbai. It is, therefore, not possible for me to accept the findings of the industrial Court that stopping of manufacturing activity at Mumbai and shifting to Mussoorie amounted to closure as defined under the provisions of the Industrial Disputes Act. Since there was no closure of the manufacturing activities at Mumbai and it was decided to relocate or shift the factory at Mussoorie, it cannot be said that it was a closure of the factory or company at Mumbai. In my opinion, therefore, Section 25(O) of the Industrial Act is not attracted.
Respectfully, following the law laid by the Division Bench in Biddle Sawyer (supra), which squarely covers the present case on the issue of closure, it is unhesitatingly held that shifting of its manufacturing unit by the petitioner Management from Sohna to Pune will not amount to closure. Further, service of the respondent workman came to be terminated on 20.10.2001 whereas the manufacturing unit of the petitioner Management was shifted much later, i.e. in March 2005, Thus, the second issue is also decided against the petitioner.
So far as third issue is concerned, the same is hardly in dispute. During the course of arguments, learned counsel for respondent workman has fairly stated that if, as a matter of fact, the amount of Rs. 45,000/- has been deposited by the petitioner Management in loan account of the respondent workman, which would be a matter of record, let such amount may be adjusted while releasing monetary benefits of the workman.
In view of the above fair statement made by learned counsel for the respondent workman, it is directed that the petitioner Management shall be entitled to adjust the amount of Rs. 45,000/- towards monetary benefits to be released in favour of the respondent workman, which are arising in his favour from the impugned award, but only after this amount is, as a matter of fact, found to have been deposited by the petitioner Management in the loan account of respondent workman. Ordered accordingly.
No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned award does not suffer from any illegality or perversity. The present writ petition is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition is ordered to be dismissed, however, with no order as to costs.