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Judgment
Pradeep Nandrajog, J.—Manju Saxena: the protagonist, was employed by the Hongkong and Shanghai Bank, the antagonist, as a Secretary, on a temporary basis on March 10, 1986 with effect from February 14, 1986 and vide letter of appointment dated April 08, 1986 she was appointed as a Confidential Secretary on probation with effect from April 01, 1986, and as per the bank she was a part of the management staff. On December 27, 1986 a contract of employment was executed laying bare the duties, responsibilities and functions which were required to be performed and discharged by Manju Saxena. With effect from October 01, 2004, new terms and conditions of service were introduced by the bank which were offered to Manju Saxena vide letter dated September 01, 2004, which were accepted by Manju Saxena vide her letter dated October 01, 2004 and thus she became a management staff in Staff Officers Bank-2. In April, 2005 the bank was of the opinion that the job entrusted to Manju Saxena had become redundant and hence in April, 2005 itself an offer was made to Manju Saxena for three alternate jobs; all being in the management staff category. Manju Saxena considered the offer made and simultaneously discussed with the bank a severance package. Consensus eluded. Her services were terminated on October 01, 2005, and the order dated October 01, 2005 records the reasons for the termination: non-acceptance by Manju Saxena to any of the three alternative jobs offered to her or the severance package offered by the bank. Manju Saxena raised an industrial dispute, claiming to be a workman. As per her, the termination of her services were in violation of the applicable provisions of the ID Act, 1947.
The appropriate government made a reference to the Industrial Tribunal as under:-
"Whether the action of the Chief Executive Officer, HSBC, India Area Management Officer 52/60, Mahatma Gandhi Road, PO Box-128, Mumbai-400001, in terminating the services of Mrs. Manju Saxena, Staff Officer w.e.f. 01.10.2005 without giving her full terminal benefits is just, valid and legal? If not, to what benefits the workman is entitled for and what directions are necessary in the matter?"
Manju Saxena filed a statement of claim before the Industrial Tribunal, to which the bank filed a response. The principal bone of contention between Manju Saxena and the bank which emerged from their respective pleadings was to the status of Manju Saxena. Whereas as per her she was a workman. As per the bank she held a managerial position. It is apparent that a finding of fact concerning the nature of duties assigned to and performed by Manju Saxena were determinative of the said dispute and for which evidence had to be led. Before the stage reached for the bank to file the documents in support of its defence, Manju Saxena filed an application praying for an interim award which claim of hers i.e. for being paid, as an interim measure, the sum demanded by her, was decided by the Industrial Tribunal vide an interim award dated June 30, 2006. It was directed that the bank shall pay to Manju Saxena Rs. 30,000/- per month till disposal of the reference made; the payment to be made from the month of June, 2006.
Notwithstanding the law being that an Industrial Tribunal/Labour Court has the power to grant interim relief during the pendency of a reference of an industrial dispute made under Section 10(1) of the ID Act, 1947, provided the interim relief sought for was incidental to any point of dispute and not independent thereof, and was a step in aid to the main relief sought for, and that issues decided were akin to a tentative prima-facie opinion, in the interim award, the Industrial Tribunal used a language which was indicative of the fact that the Tribunal had conclusively returned a finding that services of Manju Saxena were terminated illegally. The language used by the Tribunal in the interim award shows as if the Tribunal conclusively held Manju Saxena to be a workman, and for which the Tribunal observed that the bank has not filed any document to justify its stand in rebuttal.
Aggrieved by the determinative findings returned on matters of issues between the parties, which findings had to be postponed, as per the claim of the bank, after parties led their evidence, by and under W.P. (C) No. 12602/2006 the bank challenged the interim award dated June 30, 2006. The writ petition was dismissed by a learned Single Judge of this Court upholding the direction that with effect from June, 2006 Manju Saxena shall be paid Rs. 30,000/- per month as an interim measure. Challenge to the decision of the learned Single Judge by the bank in an intra Court appeal vide LPA No. 684/2008 resulted in no benefit to the bank. The Division Bench took the view that the findings returned by the Industrial Tribunal were, as per law to be treated as tentative and not determinative (though not so expressly stated in these words in the order dated November 11, 2008), but evidenced by paragraph 5 of the order passed by the Division Bench in which it was specifically noted that the Tribunal shall pronounce the final verdict uninfluenced by any observation on merits that may have been made either in the order dated June 30, 2006 passed by the Industrial Tribunal or in the order dated September 24, 2008 made by the learned Single Judge.
Luck did not favour the bank before the Supreme Court inasmuch as on being granted leave to appeal against the decision of the Division Bench of this Court, CA No. 1718/2009 filed by the bank was dismissed by the Supreme Court on March 18, 2009, directing, in paragraph 14 that the Tribunal shall dispose of the proceedings within two months. The Supreme Court made it clear that it had not expressed anything in respect of the merit of the award or the status of Manju Saxena. It was clearly observed that ''the Tribunal shall decide the question regarding status on merits without being influenced'' by the judgment of the Supreme Court ''or for that matter any other judgment including the interim award''.
Manju Saxena and the bank filed the documents before the Industrial Tribunal on which they intended to rest their respective case. Evidence was led to prove the documents. The witnesses were cross examined, and relevant would it be to note that the bank proved 70 exhibits. Besides the said 70 documents, some documents were otherwise admitted by Manju Saxena during her cross-examination which were exhibited WW-1/M1 to WW-1/M6, and in this manner the number of documents on which the bank relied became 76 in number. Put in a tabular form, with the exhibit mark and a brief description of the contents of the documents, the documents exhibited by the bank would be as under:-
We are ignoring the listing of such documents which were exhibited upon Manju Saxena admitting the same during her cross-examination because the relevance thereof would be to challenge parts of her oral testimony in relation to her working with the bank and duties performed by her.
The Industrial Tribunal pronounced an award on June 01, 2009, in which one finds a reference being made by the Tribunal to only one document exhibited by the bank being Ex. MW-1/3, and four documents proved by Manju Saxena Ex. WW-25, Ex. WW-26, Ex. WW-29 and Ex. WW-30. With reference to the line of cross examination adopted by Manju Saxena of the witnesses of the management: Neeti Chopra MW-1, the Tribunal observed: ''that the bank could not file even a scrap of paper to establish that Ms. Manju Saxena was assigned managerial, supervisory or administrative duties''.
Holding the termination vide order dated October 01, 2005 to be illegal, direction was issued that Manju Saxena shall be reinstated in service with full back wages, continuity of service and other consequential benefits, for which the Tribunal was inspired by the fact that assertion of Manju Saxena that she remained unemployed was not rebutted by the bank.
The award dated June 01, 2009 was challenged by the bank vide W.P. (C) No. 11344/2009 and needless to state, at the forefront of the attack to the award passed by the Tribunal was that the Tribunal had closed its eyes to the documents duly proved and exhibited before the Tribunal; only one of which was briefly and cursorily noted by the Tribunal. Dovetailed to this principal grievance was the approach of the Tribunal, evidenced from the contents of paras 29 to 33 of the award. As per the bank the same evinced that the Tribunal simply considered the story as narrated by Manju Saxena, and accepted the same, without checking veracity thereof with reference to the testimony of the witness of the bank and without even appraising, much less digesting and thereafter reflecting on the legal position which would flow from the documents in question on the vexed question: whether Manju Saxena was performing managerial, supervisory or administrative functions.
Manju Saxena filed an application under Section 17(b) of the ID Act, 1947 praying to the learned Single Judge that pending adjudication of the writ petition filed by the bank she should be paid the last drawn wages. On its own, the bank started paying Manju Saxena Rs. 58,330/- per month, and the basis thereof was the claim of the bank that this was the amount which Manju Saxena was receiving when her services were terminated. Vide order dated July 27, 2012, the application filed by Manju Saxena under Section 17(b) of the ID Act, 1947 was disposed of directing that till the writ petition filed by the bank was decided, the bank would pay to Manju Saxena Rs. 75,000/- per month, and for which the learned Single Judge took note of the fact that there was an increase in the cost of living. The learned Single Judge also took into account the law declared by the Supreme Court in the decision reported as Sh. Narendra Kumar Vs. The Regional Manager Punjab National Bank and Others,
The bank filed an intra Court appeal registered as LPA No. 550/2012 against the order dated July 27, 2012 passed by the learned Single Judge. The same was disposed of by a Division Bench of this Court on August 24, 2012, setting aside the order passed by the learned Single Judge and directing that Manju Saxena shall receive per month Rs. 58,330/- from the bank, which the bank was paying to her.
The said order dated August 24, 2012 has rested inasmuch as Manju Saxena has not challenged the same before the Supreme Court.
Retaining the writ petition for adjudication, probably for the reason various interim applications filed by Manju Saxena are still pending, vide order dated March 22, 2013, passed by the learned Single Judge which has been impugned by Manju Saxena in LPA No. 227/2013, the award dated June 01, 2009 has been set aside with a direction that the writ petition would be kept pending till the Tribunal decides afresh; the Tribunal has been directed to re-determine the issue and pass a fresh award and transmit the same to the Court. Needless to state the Tribunal has been directed to appraise the documents proved by the bank keeping in view the testimony of the witness of the bank, and during which process the Tribunal would obviously has to juxtapose the stand of Manju Saxena and the documents proved by her. Meaning thereby, the unfinished task found by the learned Single Judge is required to be completed by the Tribunal. The decision of the learned Single Judge takes note on the well-recognized principle of law that it is the duty of every fact finding adjudicatory body to appraise the documentary and oral evidence led by the parties and thereafter decide the issues of law or fact at which the parties are at variance with each other, a principle of law which was succinctly stated by the Supreme Court with reference to industrial adjudicators in the decision reported J.K. Iron and Steel Co. Ltd., Kanpur Vs. The Iron and Steel Mazdoor Union, Kanpur, . The learned Single Judge has not disposed of the writ petition for the direction to the Industrial Tribunal is to pass a fresh award.
In the writ petition No. 11344/2009 CM No. 879/2010, CM No. 880/2010, CM No. 2758/2010, CM No. 4821/2010, CM No. 6934/2010, Crl. M.A. No. 13996/2010, CM No. 11140/2010 and CM No. 13164/2011 are pending.
Aggrieved by the order dated March 22, 2013 passed by the learned Single Judge passed in W.P. (C) No. 11344/2009 filed by the bank and remanding the matter to the Tribunal to adjudicate afresh the claim of Manju Saxena of being a workman, Manju Saxena has filed LPA No. 227/2013.
Since Manju Saxena is prosecuting the appeal filed by her in person, there has to be, as should be expected, prolix pleadings by her, and we find that the brief synopsis themselves span 21 pages. The sweep of the appeal is 53 pages. The concentrate of the distillate of her appeal could be pithily stated: the issue of her status being a workman is conclusively decided by the interim award dated June 30, 2006, which has been upheld as per her by a learned Single Judge of this Court vide order dated September 24, 2008 as also the Division Bench of this Court vide order dated November 11, 2008 and finally accorded the seal of approval by the Supreme Court vide order dated March 18, 2009. Manju Saxena heavily picked upon the determinative findings returned by the Tribunal in the interim award dated June 30, 2006.
Our narratives must branch of at this stage to weave in a sub-story in the plot, for the reason narration of the said sub-story is necessary to decide various applications filed by Manju Saxena in LPA No. 227/2013 filed by her, and two applications filed by her in LPA No. 550/2012 filed by the bank, which appeal, as noted above has been disposed of by the Division Bench of this Court on August 24, 2012.
Manju Saxena had availed a housing loan from the bank and for which an immovable property, being a flat, bearing Municipal No. D-601 UNESCO Apartments, 55, I.P. Extension, Delhi-110092 has been mortgaged by Manju Saxena by deposit of title deeds with the bank. Claiming an outstanding due in the loan account, the bank proceeded to enforce its rights under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Manju Saxena challenged the action of the bank by and under W.P. (C) No. 19451/2006. The same was disposed of by a Division Bench, recording a settlement, on March 18, 2010. The settlement records that the outstanding amount as of the date of the order, as per the claim of the bank was Rs. 22,16,702.65. The bank had deposited in this Court Rs. 25,19,095/- towards back wages and that without prejudice to the contention of Manju Saxena that the amount claimed by the bank was incorrect, the bank could take back Rs. 22,16,702.65 and the title deed of the flat in the name of Manju Saxena shall be deposited in a sealed cover with the Joint Registrar of this Court. The Division Bench has noted that it was a term of the settlement that the adjustments vis-a-vis the dues payable by Manju Saxena to the bank and the liability of the bank if any would be subject to the final outcome of W.P. (C) No. 11344/2009. The reason being obvious, Manju Saxena''s entitlement to back wages, if at all, and its quantification if at all, had to await a decision in the writ petition filed by the bank being W.P. (C) No. 11344/2009, and only then can the sum payable to her by the bank can be crystallized.
A word of clarification needs to be penned with respect to the consent order. As a matter of fact the bank had deposited with the Registrar of this Court a sum of Rs. 33,19,096/- pursuant to the order passed by the learned Single Judge on September 03, 2009 in W.P. (C) No. 11344/2009, in which writ petition the bank had laid a challenge to the final award dated June 01, 2009 passed by the Industrial Tribunal.
With respect to the two pending civil miscellaneous applications in the disposed of LPA No. 550/2012, CM No. 10514/2014 has been filed by Manju Saxena praying that while releasing payment in sum of Rs. 58,330/- to her, as directed by the Division Bench by its order dated August 24, 2012, tax at source should not be deducted. She prays that the sum equal to the tax deducted at source in the past should be directed to be paid to her by the bank. Vide CM No. 11642/2014 filed by the bank, the prayer made is that it be declared that Manju Saxena is not entitled to any amount in view of the decision dated March 22, 2013 passed by the learned Single Judge which has been challenged by Manju Saxena in LPA No. 227/2013.
The pending civil miscellaneous applications in LPA No. 227/2013 are CM No. 6214/2013 in which Manju Saxena has prayed that in terms of the final award she should be reinstated in paid current salary or in the alternative wages payable to her with effect from June 01, 2009 should be directed to be deposited in this Court by the bank. Title documents of her flat should be directed to be released in terms of the consent order passed by the Division Bench on March 18, 2010 in W.P. (C) No. 19451/2006 filed by her. Vide CM No. 7395/2013 she has prayed that the impugned order dated March 22, 2013 should be stayed till disposal of the appeal filed by her. Vide CM No. 8690/2013 she prays that for the 20 odd jobs handled by her when she was serving in the months of January to May 2005 the bank should be directed to pay her extra money. Vide CM No. 10681/2013 she has prayed that the appeal filed by her should be decided expeditiously and that the title deeds of her property with necessary no objection certificates evincing that the bank has no lien thereon should be directed to be issued to her. Vide CM No. 2024/2014 Manju Saxena seeks a restraint order to prevent legal practitioners from appearing against her. Vide CM No. 9600/2014, the bank seeks a restraint order against Manju Saxena not to take steps to prosecute the officers of the bank. Vide CM No. 12578/2014, Manju Saxena seeks early hearing of her appeal. Vide CM No. 19192/2014, Manju Saxena seeks modification of the order dated October 14, 2014 in which reference has been made to the order dated March 18, 2010 as being passed by a Single Judge, pointing out that the said order was passed by the Division Bench. Reference to ''written submissions'' in the said order is sought to be got corrected by substituting the two words with ''brief synopsis''. Vide CM No. 20214/2014, Manju Saxena seeks a direction to be issued to the bank to provide to her such documents which she has indicated, duly executed by the bank concerning title deeds of her property while releasing the title deeds to her.
As regards the prayers made by the bank in CM No. 9600/2014, we note that the application was filed because vide order dated May 23, 2014, the parties were referred to mediation and the bank had wanted a congenial atmosphere to be created for the mediation process to take off. Since the mediation has failed as reported to this Court and as recorded in the order dated August 22, 2014, the said application filed by the bank is dismissed as infructuous.
Since we have heard arguments in the appeal filed by Manju Saxena, we dismiss CM No. 12578/2014 in which Manju Saxena seeks an early hearing in the appeal. We dispose of CM No. 19192/2014 observing that reference to the order dated March 18, 2010 as being passed by a learned Single Judge of this Court in the order dated October 14, 2014 shall be treated as the order dated March 18, 2010 being passed by the Division Bench, for indeed no such order has been passed by any learned Single Judge and as noted above the order dated March 18, 2010 was passed by the Division Bench disposing of W.P. (C) No. 19451/2006 filed by Manju Saxena. We dismiss CM No. 7395/2013 filed by Manju Saxena as infructuous since by the present order we are deciding the appeal filed by her and the prayer made by her in the application is to stay the operation of the impugned order dated March 22, 2013. Prayer made by her in CM No. 10681/2013 for early disposal of the appeal filed by her is dismissed as infructuous since we are deciding the appeal by this order. Manju Saxena''s second prayer in CM No. 10681/2013 that title deeds to her property with the necessary no objection certificates be given to her and prayer made in CM No. 20214/2014 by her that the bank be directed to issue such documents as concerned her title deeds while releasing the title deeds to her are declined for the reason issue of satisfaction of the loan obtained by her has yet to attain finality in terms of the order dated March 18, 2010 passed by the Division Bench of this Court in W.P. (C) No. 19451/2006, and needless to state said issue has to await the final decision in W.P. (C) No. 11344/2009 which is still pending adjudication before the learned Single Judge. Her prayer in CM No. 8690/2013 for her to be paid extra money for the alleged 20 odd jobs handled by her during January to May 2005, being extraneous to the scope of the present proceedings requires the prayers to be rejected and hence we dismiss CM No. 8690/2013 as not maintainable. We dismiss CM No. 2024/2014 for the reason the embargo as per Section 36 of the ID Act, 1947 concerning representation from the side of the management is restricted to Industrial Foras'' and not this Court. We dismiss CM No. 6214/2013 filed by Manju Saxena in which she prays that she should be reinstated and paid current salary or in the alternative wages payable to her with effect from June 01, 2009 be deposited in this Court, for the reason we are deciding the appeal itself and needless to state the final direction issued in the appeal would obviously subsume said issue.
We dismiss CM No. 11642/2014 filed by the bank in LPA No. 550/2012 in view of the fact that till the writ petition filed by the bank being W.P. (C) No. 11344/2009 is pending, Manju Saxena has to be paid Rs. 58,330/- in terms of the order passed by the Division Bench of this Court on August 24, 2012 disposing of LPA No. 550/2012.
As regards CM No. 10514/2014 filed by Manju Saxena that while releasing Rs. 58,330/- per month to her as directed by the Division Bench of this Court vide order dated August 24, 2012, tax at source should not be deducted, and for which she placed reliance upon an order dated July 25, 2006 passed by a learned Single Judge of this Court in W.P. (C) No. 1371/2006 Jagminder Singh Vs. Executive Engineer, we dismiss the prayer made for the reason any obligation cast on the bank under the applicable Income Tax Laws for deduction of tax at source cannot be interdicted by a judicial order, and as regards the decision of the learned Single Judge it dealt with whether tax at source has to be deducted when back wages are paid, and the learned Single Judge held that the wages could be spread across the years to which they related, and if done so there would be no liability to pay tax. The Court had also noted the law relating to income tax concerning payments received by way of compensation.
Having jumped over the small hurdles i.e. the pending civil miscellaneous applications, we grapple with the main issue concerning Manju Saxena''s challenge to the order dated March 22, 2013 passed by the learned Single Judge in W.P. (C) No. 11344/2009 filed by the bank challenging the award dated June 01, 2009. As noted above the learned Single Judge has retained the writ petition after setting aside the award noting that the Tribunal has not discussed the evidence led by the bank and has proceeded to decide the issue in a very cavalier manner.
As noted above in paragraph 18 above, the concentrate of the distillate of her prolix submissions is that once the interim award dated June 30, 2006 was upheld by the learned Single Judge of this Court vide order dated September 24, 2008, which order in turn was upheld by the Division Bench of this Court vide order dated November 11, 2008 and the final seal of approval was accorded to by the Supreme Court vide its order dated March 18, 2009 wherein order dated November 11, 2008 passed by the Division Bench was affirmed, since in the interim award determinative findings in her favour were rendered of her status being that of a workman under the bank, the final award passed by the Tribunal on June 01, 2009 could not have been set aside by the learned Single Judge and hence the Tribunal being directed to re-decide her status as a workman was liable to be set aside.
From the conspectus of the facts noted hereinabove in paragraphs 3 to 7, it emerges that when the Industrial Tribunal pronounced the interim award on June 30, 2006, the stage for the bank to file its documents had not reached, and as a matter of fact the documents on which the bank rely were not filed. Further, parties had yet to lead their evidence. The Industrial Tribunal was to form a tentative view for the purposes of the interim award, and regretfully the language used by the Tribunal in the interim award indicates as if the Tribunal was returning conclusive findings. The said finding of the learned Industrial Tribunal was affirmed by the learned Single Judge as also the Division Bench of this Court as also the Supreme Court, but with a caveat. The caveat was that nothing stated by the Tribunal, the learned Single Judge, the Division Bench of this Court or the Supreme Court would be treated as findings on merits. The Division Bench as also the Supreme Court clearly observed that the final verdict by the Industrial Tribunal would be uninfluenced by any observations made in the orders passed by either the High Court or the Supreme Court. It had to be so. Till then the parties had not led any evidence. It is trite that to form a prima-facie view, if a Judicial Fora takes note of a fact, the same has to be understood with reference to the weight of the fact in relation to the formation of a prima-facie opinion and subject to the fact being proved. After evidence is led, when a final verdict is pronounced, it has to be with reference to the evidence led. Thus, the plea of Manju Saxena that the issue concerning her status as that of a workman had attained finality and thus the learned Single Judge could not remit the matter calling upon the Tribunal to re-decide the same is incorrect, both in law as well as on facts.
As regards the merits of the impugned order, the learned Single Judge has noted that in the final award the Tribunal has not captured, much less discussed the documentary as well as the oral evidence of the witnesses of the bank, and we find this to be correct.
As noted in paragraph 8 above, of the 70 documents proved and exhibited by the bank, only one: Ex. MW-1/3 has been noted and briefly touched upon. Four documents proved by Manju Saxena have been referred to, and the observation of the Tribunal ''that the bank could not file even a scrap of paper to establish that Ms. Manju Saxena was assigned managerial, supervisory or administrative duties'' are completely wrong inasmuch as far from the bank not even filing a scrap of paper, has filed and proved as many as 70 exhibits, the weight of which, if put in a weighing scale, would be more than 2 kg. The job of the Tribunal was to find the weight of the exhibits as per law to find whether the management of the bank had crossed the incline wherefrom it could be inferred that status of Manju Saxena was not that of a workman and likewise whether Manju Saxena led such evidence which crossed the incline wherefrom it could be inferred that she was a workman. Further, such documents which Manju Saxena admitted during cross-examination have not been considered by the Tribunal.
Indeed, the Industrial Tribunal has short-circuited the process of law which enjoined upon the Tribunal to appraise all relevant evidence. We have, in paragraph 7 above, captured a hue of the 70 exhibits proved by the bank, and lest the bank or Manju Saxena are prejudiced, we would only highlight that their contents are relevant and need to be noted and discussed while deciding what was the nature of duties assigned to and performed by Manju Saxena keeping in view the definition of the word ''workman'' in Section 2(s) of the Industrial Disputes Act, 1947. Further, such documents which Manju Saxena admitted during cross-examination and which were exhibited also need to be considered.
We accordingly dismiss LPA No. 227/2013 filed by Manju Saxena and uphold the impugned order dated March 22, 2013 passed by the learned Single Judge and would direct the Industrial Tribunal to decide the reference made within 3 months from receipt of the present decision and while doing so to consider and discuss the inferences which the bank projects from the 70 documents proved by the bank as also the inferences which are required to be drawn from the documents proved by Manju Saxena. Such documents which Manju Saxena admitted during cross-examination and were exhibited would also be considered. Testimony of witness of the bank and the cross-examination would also be kept in mind and relevant aspects emerging therefrom shall be discussed.
No costs.