Sahara Airlines Ltd. vs Capt. R. Khosla

S.N. Aggarwal, J.—Sahara Airlines Limited (hereinafter to be referred as the Petitioner) has filed this writ petition seeking to challenge the impugned award dated 13.2.2006 in I.D. No. 24/2000 passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-II, New Delhi. Vide impugned award the Respondent is directed to be reinstated with full back-wages w.e.f. 16.7.1998 and in case of default the Respondent was held entitled to 10% of interest per annum over the entire back-wages.

The brief facts giving rise to this petition are as follows:

The Respondent was appointed as a Pilot in Sahara Airlines w.e.f. 1.11.1994. He was terminated from service w.e.f. 16.7.1998 after holding of a domestic enquiry against him into the charges for which he was charge-sheeted firstly on 5.6.1998 and again on 20.6.1998. Aggrieved by his termination the Respondent raised an industrial dispute which was referred (by the Central Government) for adjudication by CGIT vide reference No. L-11012/119/99-IR(C-l): Central Government dated 27.1.2000. The terms of reference were as under:

Whether the action of the Chief Controller, Sahara Airlines Ltd. 7th Floor, Amba Deep Building, 14, Kasturba Gandhi Marg, Connaught Place, New Delhi-110001 in terminating the services of Capt. R. Khosla, Ex. Pilot, Resident of A-160, jalvayu Vihar, Sector: 21, Noida (UP)? 201301 w.e.f. 16.7.1998 is justified, valid and legal? If not to what relief and benefit he is entitled.

The Central Government Industrial Tribunal vide its impugned award found that the domestic enquiry held against the Respondent was vitiated on account of perversity and therefore directed his reinstatement with full back wages with effect from the date of his impugned termination.

The Petitioner/management had taken an objection of jurisdiction before the Central Government Industrial Tribunal to the effect that the Tribunal lacks inherent jurisdiction to try and adjudicate upon the dispute referred before him as the Respondent was not a workman within the meaning of section 2 (s) of the Industrial Disputes Act, 1947. It was contended that the Respondent was Working in supervisory and managerial capacity and his last drawn salary inclusive of all perks and benefits was Rs. 1,01,217 per month. It was stated that the Respondent was also granted various other fringe benefits like free air travel, medical facilities for health and family members. As per the case of the Petitioner the Respondent was to take an independent decision, control and supervision over co-pilots and other crew members of the aircraft and by nature of his employment he was working in administrative capacity. It was stated that the Respondent does not fall within the ambit of workman.

The Central Government Industrial Tribunal at page 47-48 of the impugned award has recorded a finding in favour of the Respondent that he comes within the purview of definition of workman as provided in section 2(s) of the Industrial Disputes Act, 1947 and based its said decision on some earlier adjudication inter-parties which, according to him, has the effect of res-judicata or at least constructive res-judicata. In this regard it would be relevant to refer to the findings of the Court below which are at internal page 21 of the impugned award and the same are extracted below:

This point was raised earlier and the P.O. has held that the duty of the workman was operational. His duty in truth and circumstance was operative. In the amended definition of section 2(s). Operational duty has been taken under the purview of workman''s duty for the purpose of the definition of workman in the I.D. Act. This point cannot be raised as this point has been adjudicated upon after hearing both the parties in the interim proceedings and it has the effect of res-judicata or at least constructive res-judicata.?

Ms. Raavi Birbal, learned Counsel appearing on behalf of the Petitioner has referred and relied upon the judgment of the Supreme Court in Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, and another judgment in Mukesh K. Tripathi Vs. Sr. Divisional Manager, L.I.C. and Others, and on the strength of these two judgments she has contended that the real test for determining whether a person is workman or not is to find out what is the dominating character of his service. It is held by the Hon''ble Supreme Court in the aforementioned judgment that if the job to be performed by the aggrieved employee is one of control, dignity and it requires initiativeness and creativity, then the person doing such job is certainly not a workman. It was further held by the Hon''ble Supreme Court in Ajit Singh''s case (supra) that the Tribunal being a quasi judicial body must address to itself the jurisdictional question and only after answering this question and deciding that it has the jurisdiction to try the dispute, should it proceed further in the matter.

In the present case the Court below has proceeded on a wrong premise for holding that the Respondent comes within the definition of workman as provided in section 2(s) of the Industrial Disputes Act, 1947. The findings to that effect have been given by the Court below on the basis of some earlier adjudication inter-parties which were treated as res-judicata/constructive res-judicata Ms. Raavi Birbal, learned Counsel appearing on behalf of the Petitioner has vehemently argued that there was absolutely no earlier adjudication inter-parties on the point as to whether the Respondent was a workman or not and according to her, the learned Tribunal who has passed the impugned award has committed a jurisdictional error by not deciding the preliminary objection taken by the Petitioner that the Respondent is not a workman because he was performing supervisory duties during his employment with the Petitioner. The Petitioner contends that the Respondent is not a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947, whereas the Respondent has strongly refuted the said contention. The Respondent has argued his case personally. He has contended that he was employed as a co-pilot with the Petitioner and according to him he was not performing any duty which may be termed as duties of supervisory nature. The contentions raised by the parties on this point relate to disputed questions of fact and this Court in exercise of its writ jurisdiction under Article 226 of the Constitution would not go into the disputed questions of fact. Despite opportunity given to the Respondent, the Respondent could not show any earlier adjudication inter-parties wherein it might have been held that he is a workman which alone could have conferred jurisdiction on the Court below to decide the reference pertaining to his impugned termination. Unless the Court below records an independent finding that the Respondent is a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947, the Court below would have no jurisdiction to proceed further in the matter. Hence, this Court is of the view that the impugned award passed by the Court below cannot be sustained in law because it is based on erroneous assumption of some earlier adjudication, which in fact is not there.

Before parting with this order, I would like to note the other submission made by the Counsel for the parties before me. Ms. Raavi Birbal, learned Counsel appearing on behalf of the Petitioner has contended that in case the Court below arrives at a conclusion that the Respondent is a workman and maintain its conclusion that the inquiry proceedings are vitiated for perversity then opportunity should be given to the Petitioner/management to adduce evidence to prove the misconduct of the Petitioner. The Respondent says that no such opportunity can be given to the Petitioner to prove his misconduct in the event inquiry proceedings are held to be vitiated for perversity. I do not agree with this contention of the Respondent, in case the Court below reaches to a conclusion at the time of fresh decision that the inquiry proceedings are vitiated for perversity then the Court below shall consider the request of the Petitioner/management for adducing evidence to prove the misconduct of the Respondent in accordance with law on this point and should pass necessary speaking order with regard to the same after giving hearing to both the parties.

In view of the above and having regard to the facts and circumstances of the case the impugned award dated 13.2.2006 passed by CGIT is hereby set aside. The case is remanded back to the Court below for fresh decision in accordance with law after affording an opportunity of hearing to both the parties. The Court below is directed to decide the case afresh as expeditiously as possible, preferably within six months from today. The parties are directed to appear before the Court below/successor Court for further directions at 2.00 P.M. on 17.9.2008. A copy of this order be sent to the concerned Court below for information and necessary compliance forthwith. This writ petition is disposed of accordingly with no order as to costs.