Nagraj s/o Janardan Patil Vs Jalgaon Zilla Sahakari Dudh Utpadak Sangh Limited

Being aggrieved by the judgment and order dated 01.03.2003,

passed by the learned Member, Industrial Court, Jalgaon in Revision

Application (ULP) No. 177 of 2001, the original complainant has filed

the writ petition No. 1690 of 2003.

Brief facts giving rise to the said writ petition are as follows:-

a) The petitioner-original complainant was in the employment of

respondent Sangh as a Chief Security Officer since 1988. On

account of alleged misconduct on the part of petitioner-complainant,

respondent Sangh had issued a charge sheet against him,

conducted departmental enquiry and awarded punishment of

dismissal from service. Being aggrieved by the same, the petitioner

-complainant filed complaint (ULP) No. 42 of 1999 in the Labour

Court, Jalgaon. It has been contended in the said complaint that the

petitioner-complainant though serving as Chief Security Officer, he

was not having administrative or managerial powers and he used to

get the work done from the employees of security department as per

the instructions and directions of his superior. Thus, in the capacity

of employee, he has filed the said complaint. It has been also

contended that departmental enquiry held against him was not fair,

proper and in accordance with the principles of natural justice and

findings of the Enquiry Officer were not based on legal and

acceptable evidence. It has also been contended that though the

charges were not proved against him, the Enquiry Officer has held

that the same are proved and punishment imposed upon him is

highly disproportionate looking to the gravity of misconduct. Thus, he

has prayed for reinstatement in service with continuity in service and

payment of full back-wages from the date of termination.

b) The respondent Sangh has strongly resisted the complaint by

filing written statement at Exh.C-1. It has been contended that the

complainant was occupying the post of Chief Security Officer which

is managerial/supervisory and administrative in nature. The

appointment of the petitioner-complainant was made by the Board of

Directors to whom he was responsible. It has been also contended

that 15 to 20 persons were working under the control of petitioner-

complainant and he had power to decide their time table of work and

had full control over them. The petitioner-complainant had power to

sanction their leaves etc. and write confidential reports also. It has

been thus contended that the complainant was not employee under

Section 3(5) of Maharashtra Recognition of Trade Union and

Prevention of Unfair Labour Practice Act, 1971 (hereinafter for short

referred to as the "MRTU and PULP Act") and a workman under

Section 2(s) of the Industrial Dispute Act. It has also been

specifically contended that the Labour Court has no jurisdiction to try

and entertain the complaint. It has also been denied that the

respondent Sangh is engaged in unfair labour practice as alleged in

the complaint. It has also been contended that the enquiry held

against the petitioner-complainant was fair, proper and in accordance

with principles of natural justice. The findings of the Enquiry Officer

are based on legal and acceptable evidence. Further, the charges

levelled against the complainant were duly proved in the enquiry.

After considering the gravity and the misconduct, the complainant

was rightly punished.

c) Learned Judge of the Labour Court has decided issue No.1

and held that the enquiry conducted against the complainant is fair,

proper and in accordance with principles of natural justice vide order

dated 6.9.2000. However, by order dated 17.5.2001, the learned

Judge of the Labour Court has recorded a finding to issue No.3 as

proved and issue No.7 as not proved and passed the final order. The

learned Judge of the Labour Court declared that the petitioner

complainant is an employee within the meaning of Section 3(5) of the

MRTU and PULP Act and a workman within the meaning of Section

2(s) of the Industrial Dispute Act.

d) Being aggrieved by the judgment and order passed by the

Labour Court, Jalgaon, the respondent Sangh has preferred Revision

Application No. 177 of 2001 in the Industrial Court at Jalgaon. The

learned Member of the Industrial Court, by judgment and order dated

10.12.2001, partly allowed the revision application and set aside the

order dated 3.8.2001 of closing of evidence of the respondent Sangh

and further confirmed the judgment and order passed by the Labour

Court and directed the parties and the Labour Court to follow the time

schedule of (04) four months for deciding the complaint on merits.

e) Being aggrieved by the judgment and order dated 10.12.2001,

passed by the Industrial Court, the respondent Sangh had preferred

writ petition No. 453 of 2002 before this Court. This Court has set

aside the order passed by the Industrial Court in Revision Application

No. 177 of 2001 so far as it relates to rejection of the revision

application in respect of findings recorded by the Labour Court on

issue No.7. Accordingly, the order to that extent was set aside and

the revision was remitted to the Industrial Court, Jalgaon to decide it

in accordance with law. This Court directed the Industrial Court to

decide the said revision afresh in the light of judgment of this Court in

the case of Sadanand vs. Kirloskar reported in 2002 (4) Mh.L.J.

804 by giving an opportunity to both the parties to make their

submissions on the said issue.

f) After hearing both the parties, learned Member of the Industrial

Court, Jalgaon by impugned judgment and order dated 1.3.2003

allowed revision application (ULP) No. 177 of 2001, quashed and set

aside the order dated 17.5.2001 on issue No.7 and dismissed the

complaint (ULP) No. 42 of 1999 by holding that the petitioner

complainant does not fall under the category of an "employee/

workman". Being aggrieved by the same, the petitioner-complainant

has preferred this writ petition.

The petitioner, who appears in person, submits that the

learned Member of the Industrial Court did not apply its mind to the

facts and circumstances as well as the evidence that has come on

record. The petitioner submits that this court while disposing of writ

petition No. 453 of 2002, by order dated 12.12.2002, directed the

Industrial Court to decide the revision application afresh in the light of

the judgment of this Court in the case of Sadanand (supra), by

giving an opportunity to both the parties to make their submissions

on the said issue. This Court has directed that the Industrial Court

has to decide issue No.7 afresh on its own merits and on the basis of

submissions advanced by respective parties. In view of above

directions, the petitioner-complainant had submitted his written note

of arguments before the Industrial Court vide Annexure F page 80 to

86 of compilation of this writ petition. In the said written note of

arguments, the petitioner-complainant has referred various orders,

communications, instances and the duties assigned to the petitioner

-complainant from time to time by the respondent Sangh, which

indicative of the fact that the petitioner-complainant was continued

and consistently treated by respondent Sangh as workman/

employee. However, the learned Member of the Industrial court has

not considered the written note of arguments leave apart the

documents, as referred in the said written notes of arguments.

Learned Member of Industrial Court has acted illegally and

completely with disregard to the orders passed by this Court in writ

petition No. 453 of 2002. The learned Member of the Industrial Court

has failed to consider that Mr. B.V. Garg, the Managing Director of

the respondent Sangh admitted in no uncertain terms that the

petitioner-complainant had no power to appoint the employees but

was to work as per the appointment letter and his duties were

changed from time to time. It has also been admitted by him that

entire action was being taken against the petitioner-complainant

under the Model Standing Order. He has further admitted that it was

the Manager (Administration) who was to look after and supervise

everything about the security department as per Exh. U-35 and U-36.

The respondent Sangh has treated the petitioner-complainant as an

employees/workman and has from time to time taken action against

him under the Model Standing Orders as per its own admissions. The

respondent Sangh has continuously and consistently considered the

petitioner-complainant as an employee and this was not the case of

an isolated reference in the charge sheet to the Model Standing

Order. The Industrial Court has also failed to consider para 22 of the

written notes of arguments showing the previous conduct of the

respondent Sangh, which is also subject matter of complaint (ULP)

No. 1388 of 1999 in which the petitioner-complainant has challenged

the stopping of his increment by order of Shri Joseph, the

Administrator of the respondent Sangh. The petitioner party in

person submits that the learned Member of the Industrial court has

committed grave error in holding that the burden of proof that the

petitioner-complainant was employee/workman is on the petitioner-

complainant when in fact, issue No.7, as framed, cast burden on the

respondent Sangh.

Learned senior counsel for the respondent Sangh submits

that the petitioner-complainant was designated as Chief Security

Officer and he was placed in the rank of Assistant Manager

grade/level. The petitioner-complainant had authority and jurisdiction

to recommend disciplinary action against the misdemeanors

committed by or indulged into by the Security guards and the clerks,

who were exclusively under his supervision, control and direction. It

was only within his powers to recommend promotions, increments,

sanction of leave, indenting of material, attend the meetings of

departmental heads, accept joining reports and issue reliving letters,

writing of confidential reports, as departmental head of the security

guards and personnel etc. It was within his jurisdiction and powers to

decide shifts, allot duties and shifts to security guards, issue

necessary orders and instructions for day to day working of the

security guards and prepare duty charts. In all there were 20 security

guards and clerks working under him. Learned senior counsel

submits that though the nature of duties are elaborately discussed

and analyzed by the Industrial Court in not only the impugned

judgment dated 1.3.2003 but also in another judgment dated

10.4.2003 in complaint (ULP) No. 1388 of 1999 filed by the petitioner

complainant himself. The learned senior counsel submits that the

issue of levelling charges upon the petitioner-complainant and

serving upon him the charge sheet followed by the domestic enquiry,

a solitary incident, was the issue dealt with by this Court in writ

petition No.453 of 2002 filed by the respondent Sangh. This Court

while disposing of said writ petition has observed that the status of

an employee is not to be decided on the basis of case law but it

ought to be decided on the basis of oral and documentary evidence.

Learned senior counsel submits that the respondent Sangh has

examined four witnesses and the petitioner-complainant declined to

cross examine the two out of four witnesses. Further the petitioner

complainant has not entered into witness box to support his

contention being a workman, nor examined any witness in his

support. The learned Member of the Industrial Court has therefore,

rightly decided the issue No.7 in favour of the respondent Sangh.

The learned Member of the Industrial court has correctly followed the

order dated 12.12.2002 passed by this Court in writ petition No. 453

of 2002.

Learned senior counsel in order to substantiate his

submissions placed reliance on the following judgments:-

i) Shaukat Adam Malim vs. Kokan Mercantile Co-operative

Bank Ltd. and others, reported in 2002 (1) Mh.L.J. 760,

ii) Northcote Nursing Home Pvt. Ltd. and another vs. Zarine H .

Rahina (Dr. Ms) and another, reported 2001 (3) Mh.L.J. 476.

iii) Arvind Ramdas Valke vs. Ispat Industries Ltd. and others.

Reported in 2009 (3) Bom.C.R. 471

The learned senior counsel submits that there is no

substance in the writ petition and the writ petition is thus liable to be

dismissed.

The petitioner party in person has vehemently submitted that

even though the petitioner party in person has submitted his written

notes of arguments before the Industrial Court, vide annexure F,

Page 80 to 86 of the compilation of this writ petition and in the said

written notes of arguments, he has referred various orders,

communications, instances and the nature of duties assigned to the

petitioner from time to time by the respondent Sangh. However, the

learned Member of the Industrial court has not considered the written

notes of arguments and the documents as referred in the said written

notes of arguments. On the other hand, learned Member of the

Industrial Court has considered the issue of charge sheet as an

isolated incident and further erroneously held that the burden was on

the petitioner to prove his case.

On careful perusal of annexure F of the writ petition, it

appears that the petitioner herein has placed his written notes of

arguments before the Industrial Court and also referred as many as

20 documents in the written notes of arguments to substantiate his

contention that the petitioner is employee within the meaning of

Section 3(5) of the MRTU and PULP Act and a workman within the

meaning of Section 2(s) of the Industrial Dispute Act.

On further careful perusal of the impugned judgment and

order, most particularly para 13 of the judgment, I find that the

learned Member of the Industrial Court without referring written notes

of arguments and the documents referred therein observed that this

was the sole show cause notice and charge sheet issued to the

petitioner-complainant and nothing has been brought on record from

the side of the complainant to show that the respondent - Sangh has

continuously and consistently taken action as per the Model Standing

Orders. The learned Member has also observed that it is not

submitted during the course of arguments that there are other

instances also against the petitioner-complainant of issuing such

show cause notices and charge sheet and it is isolated incident of

charge-sheet in the present matter is very well distinguishable from a

continuous and consistent course of conduct of the employer treating

the employee as a "workman". Even though the burden of issue No.

7 was on the petitioner-complainant to prove his case but he has

failed therein. The learned Member has therefore, concluded the

issue by observing that on the facts as well as law, the findings on

issue No.7 given and recorded by the learned Judge of the Labour

Court in the impugned order therefore are not just, legal and

proper and it is to be set aside and the Doodh Sangh is thus

succeeded in making out the case causing interference with the

impugned order.

It appears from the judgment and order passed by the Labour

Court that the learned Judge of the Labour Court has elaborately

discussed the oral evidence adduced by the respondent Sangh and

also discussed the relevant documents such as Exh. U-35 and U-36.

It is well settled that if the Industrial court comes to the conclusion

that the Labour court has certainly ignored certain aspects of the

evidence, then in that eventuality, it is permissible for the Industrial

Court under Section 44 of the Act to appreciate that evidence and

come to its own conclusion and such appreciation of evidence will

not fall within the prohibited area of re-appreciation, re-assessment

or reappraisal of the evidence recorded by the Labour court and in

such appreciation of evidence, the Industrial Court certainly can

come to the conclusion. Though this Court while disposing of writ

petition No. 453 of 2002 in para 10 of the judgment and order has

prima facie observed that the Labour Court has lost sight of the

structure of the management and further that the conventional tests

cannot be applied in modern scientific management, however, further

observed that the facts and circumstances of each and every case

have to be considered and further to decide the duties whether they

fall within the main definition of the workman or whether they fall in

the exceptional portion of the definition of workman. Consequently,

this court has directed the Industrial Court to decide the revision

afresh by giving opportunity to both the parties to make their

submissions on the said issue.

In the instant case, without referring the written notes of

arguments, oral and documentary evidence, as discussed by the

learned Judge of the Labour Court in detail, the learned Member of

the Industrial Court has recorded the findings to issue No.7 in the

negative. In view of the same, this Court has left with no other choice

but to remand the matter to the Industrial court to decide it afresh on

its own merits and on the basis of submissions advanced by the

respective parties. It is made clear that this court has not touched to

the merits of the matter.

In view of above discussion, I proceed to pass the following

order:-

ORDER

I. Writ petition is hereby partly allowed.

II. The impugned judgment and order dated 01.03.2003, passed by

the learned Member, Industrial Court, Jalgaon in Revision

Application (ULP) No. 177 of 2001, is hereby quashed and set

aside and the matter is remitted back to the Industrial Court,

Jalgaon with following directions:-

a) Restore the Revision Application (ULP) No. 177 of 2001, at its original number and decide the same afresh on its own merits after giving an opportunity of being heard to both the parties.

b) The learned Member of the Industrial Court, Jalgaon shall dispose of the said revision application within three months from today.

c) The parties shall appear before the Industrial Court, Jalgaon on 15.02.2018.

III. Writ petition is disposed of accordingly. Rule made absolute in

the above terms.

IV. Pending civil applications are also disposed of.

In so far as the writ petition No. 4028 of 2003 is concerned, the

same is filed challenging the order dated 10.4.2003 passed by the

Member, Industrial Court, Jalgaon in complaint (ULP) No. 1388 of

1999, thereby holding that the respondent Sangh is not engaged in

unfair labour practice. Since, the writ petition No. 1690 of 2003,

challenging the main grievance of the petitioner-complainant is

disposed of and the matter is remanded back to the Industrial Court

for deciding the same afresh, this writ petition is disposed of with

liberty to the petitioner to raise his grievance again after the decision

of the Industrial Court, if needed. The writ petition No. 4028 of 2003

is accordingly disposed of. Rule discharged.

Pending civil applications are also disposed of.