Kashmir Singh vs Nestle India Ltd.

Gurmeet Singh Sandhawalia, J.—The present writ petition has been filed challenging the award of Industrial Tribunal, Bathinda dated 2.6.2010 (Annexure P-6) whereby the claim of the petitioner for reinstatement with continuity of service and full back wages was rejected. The Tribunal came to the conclusion that the workman had admitted his signature on the original agreement and admission was more than sufficient to arrive at a conclusion that the claimant was given agency No. 215 for collecting milk as Commission Agent and he was not employed by the company in any capacity and no wages or salary was ever paid by the company to the claimant and only commission was paid for collecting the milk according to quantity of milk collected and supplied to the company. Thus, the finding recorded was that there was no relationship of the employer and employee between the parties and the authorities cited were not helpful. However, issue No. 1 on the ground of delay, was decided in favour of the workman and it was held that the claim could not be rejected on that account. Learned senior counsel appearing on behalf of the petitioner has submitted that the signature on the agreement was on a proforma and blanks were filled up and the workman was not aware since he had signed on blank proforma. It has thereafter been contended that the company has won over other workers who had given affidavits and there was an earlier decision in favour of the workman in which it has been held that there was a relationship of the employee and employer and thus, it has been submitted that the order passed by the Tribunal is a non speaking order and is liable to be set aside.

Learned senior" counsel for the Management on the other hand contended that it was clear from the agreement dated 17.9.1976 which was only for a period of one year and the same was further extended for another one year and thereafter terminated. The relationship between the parties was only of a company/agent and no wages or salary were paid or were to be paid. The agency could be terminated at any point of time. Further reference was made to bunch of cases decided on 21.4.2009 by a Single Bench of this Court in which lead case was Civil Writ Petition No. 3351 of 1989 Bhag Masih v. Labour Court, Bathinda, wherein similar question has been adjudicated upon between the workman and the same company, namely, Nestle India Ltd. Reference was also made to a Division Bench judgment of this Court regarding another workman and the company titled as Nestle India Limited Vs. Presiding Officer, Labour Court and Another, wherein it was held that the company had no control over the manner of functioning of the alleged employee and the award was set aside. It has further been contended that as per affidavit Annexure P-5, the workman Bhupinder Singh who was impleaded as respondent No. 5 before the Division Bench, thereafter entered into a compromise. Inspite of loosing the case, the company had settled the matter with him and it could not be said that the company had taken affidavit wrongly in order to scuttle the case of the petitioner and, accordingly, the award. in question was justified.

The case has a chequered history and the dispute has been flowing between the petitioner and the company for more than three decades. A perusal of Annexure R/1/3 which is dated 17.9.1976 goes on to show that the petitioner was willing to collect milk from approved/registered producers as Commission Agent and after collecting the same supply to the company. The company had discretion to accept the milk after testing the same for its quality and to reject the same. The Commission Agent was further free to take up any other assignment which was not inconsistent with the proper discharge of his obligation and was entitled for commission at the rate of Rs. 6/- per 100 Kgs. of fresh milk which was inclusive of all expenses and costs for collecting the milk from various places. The company had liberty to terminate the agreement without notice and/or without any compensation and make any other suitable arrangement if the milk was not supplied for two consecutive weeks due to any reason or if the agent did not supply a minimum of 3800 Kgs. in summer months and atleast 15000 Kgs. In winter months; The agency no. was also mentioned as 215 at Attari/Bathinda. As per the demand notice dated 16.2.1987, the workman had claimed that he was appointed on 7.9.1976 at Rs. 750/- per month and as his service had been terminated without any notice, charge sheet, enquiry or compensation on 25.2.1978 and newly appointed person had been given job against him and thus raised an industrial dispute. The claim statement dated 12.11.1987 was also on the similar grounds. On two occasions earlier the workman had to approach this Court as his application for additional evidence was dismissed by the Labour Court and on both the occasions the said orders were set aside in Civil Writ Petition No. 5166 of 2002 which was decided on 22.4.2003 and in Civil Writ Petition No. 6697 of 2004 decided on 4.4.2009 which thereafter led to the award being passed against him on 2.6.2010.;

The submission of the learned senior counsel that signatures on the agreement which was a blank proforma and blanks were filled up cannot be now accepted in exercise of powers under Articles 226 of the Constitution of India as no such plea was raised before the Labour Court which would be clear from the claim statement Annexure P/1 and now for the first time such a plea cannot be allowed to be raised. Even otherwise from a perusal of the agreement dated 17.9.1976 it would be clear that the rate of commission was filled up subsequently by hand Rs. 6/- per 100 Kgs. of fresh milk" and the workman has signed against that in Urdu. Nothing has been shown to this Court that the workman deposed that the said signatures were given under some misconception rather the Labour Court had categorically recorded that he had admitted his signatures on the agreement Ex. M1, Ex. M2 and Ex. M3 and, therefore, in such circumstances the submission made by the learned senior counsel for the petitioner is without any basis and cannot be accepted.

The submission that the affidavits of similarly situated persons Bhupinder Singh and Major Singh were taken to scuttle the relief to the petitioner is also without any basis. From the record, it would be clear that the Division Bench decided against the said workman on 24.8.2001 and the dispute was thereafter finalised interest the company and the workman by paying Rs. 1,35,000/- in full and final settlement and the affidavit was taken on 28.9.2001.

The last submission that the award is non speaking is also without any basis. The principle of law had already been settled regarding similarly situated agreements as noticed above by the Division Bench of this Court which had been subsequently followed in Bhag Masih''s case (supra) wherein it was held that there was no relationship of employee and the employer between the parties at the time of termination of the agreement and there was no industrial dispute which could have been referred to and accordingly the writ petition filed by the company was allowed and the petitions filed by the alleged workmen were, dismissed after noticing that the agreements in question were pari materia with the agreement discussed by the Division Bench in M/s. Nestle India Limited''s case (supra).

Accordingly, this Court is of the opinion that there is no scope for interference in the award passed by the Labour Court and the writ petition is accordingly dismissed. Lastly, it was submitted that the workman has been agitating his right for so long and the matter has been settled with other workmen and the petitioner may also be given similar relief. Though settlement with the other similarly situated workmen is not a ground to grant any similar relief but learned senior counsel appearing on behalf of the company has fairly stated that the company being a model employer in the State of Punjab, would take into consideration the plea of the petitioner and would consider his request to grant some relief subject to financial viability especially keeping in view the fact that the parties have been litigating since last several decades. Accordingly, this Court is hopeful that the respondent-company being a Multi-national Company would look into the matter sympathetically in view of the long litigation inter se the parties and give some financial relief so that at least, the litigation expenses which the petitioner has incurred for so long could be recovered. Accordingly, with this hope the issue is left open to the discretion of the company.