AI Structured Summary
Not yet generated for this judgment
Judgment
Sharad Kumar Sharma, J
Before venturing into the intricacies of the matter, a brief narration of the few facts as involved in the instant writ petition, wherein, the petitioner/employer has questioned the impugned award dated 05.12.2014 as rendered by the Labour Court, Kashipur, Udham Singh Nagar, in Reference Case No. 1 of 2013, which was published in the gazette on 10.02.2015, has been put to challenge becomes necessary. The brief facts as involved in the instant writ petition is that the petitioner in the capacity of being an employer as a registered company under the Companies Act, has got different units and plants situated at various places, which requires the services of certain workman in order to discharge the industrial work, which the unit has to undertake and in order to get the work performed in an efficient manner, they require the services of, Tool Room Trainee.
In accordance with the facts, which are involved in the present case, it is not in dispute that as far as the sole respondent is concerned, he was inducted with the petitioner's company on 27.09.2010 as "Tool Room Trainee' at the plant situated at Pant Nagar, District Udham Singh Nagar. What is to be referred herein is that the appointment made of the respondent on the post of Tool Room Trainee was governed by the terms and conditions of letter of appointment as it was provided in the letter of appointment itself issued in favour of the respondent. Obviously on its simplicitor decipher, the conditions of appointment letter projected that the nature of appointment of the respondent was that of a trainee based upon a certain stipend specified, which was payable by the employer to him in terms stipulated in the letter of appointment as Tool Room Trainee.
In the said letter of appointment dated 21.09.2010, and in particular the condition as contained in its clause-11, apparently the management employer reserved its rights to terminate the services of the trainee, who has been thus appointed, at any point of time, whenever their services are not required, without assigning any reason, whatsoever and even without giving a prior notice. However, inclusion of this condition may not be taken as to be applied stringently reserving the rights of the employer to act arbitrarily in contravention to the provisions of the standing order or in violation to the basic adherence to the basic principles of natural justice, wherever there happens to be a dispensation of a civil right, which is being created in favour of a trainee or a workman, by virtue of the terms of appointment. This Court is of the considered view that any such stipulation will not override basic stipulations of compliance of principles of natural justice, when it effects the right of continuance of a person in the service, irrespective of the nature of appointment, or reservation as protected by clause-11 by the employer. Clause 11 of the letter of appointment is quoted hereunder:
"11. The Management reserves its right to terminate your training at any time without giving any notice and without assigning any specific reason whatsoever."
It is not in dispute that the services of the petitioner as a workman was sought to be put to an end by the petitioner's company and consequently they had resolved, by virtue of a decision taken on 16.05.2012, wherein, the petitioner's company had dispensed the services of the petitioner as a trainee by the order dated 16.05.2012. The clause-11 of the terms of appointment would not come into play at this stage, more particularly, when had its been a simplicitor dispensation of service without attaching any stigma, than the employer could exercise its power to dispense the services, but as soon as the employer attaches a stigma and makes any observation affecting the credibility or is stigmatic in nature with regards to the manner in which the work was performed by the trainee, it would amount to be a stigmatic order and in that eventuality, the adherence to the principles contemplated under the Industrial Disputes Act or under the principles of natural justice was required to be adhere to prior to terminating the services of the workmen. As the dispensation of services as done by the order dated 16.05.2012, since it was observed that the work and performance of the petitioner as a trainee was not found satisfactory, despite of giving him an opportunity to improve himself, hence, the respondent being faced with the order of dispensing his services dated 16.05.2012, has sought to raise an industrial dispute and consequently a proceeding was drawn before the Conciliation Officer and on the culmination of the said proceedings before the Conciliation Officer under Section 2A of the U.P. Industrial Disputes Act, reference was sought to be made with regards to an adjudication of the controversy as raised by the workman. Though here at this stage before proceeding further the letter of appointment or the offer of appointment, which was extended to the respondent, i.e. an appointment was that of in the capacity of a trainee, but in view of the definition of the workman as given under Section 2(Z) of the U.P. Industrial Disputes Act, which is quoted hereunder:
"(z) 'Workman' means any person (including apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to any Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
It would include within itself the trainees also, who are appointed by the employer under the terms and conditions as made applicable to them in their respective letters of appointments. In this regard a reference may be had that the trainee as it has been included in the definition of the workman as contained under Section 2(Z) of the U.P. Industrial Disputes Act and in view of the subsequent legislation, it altogether deals with the concept that the term of apprentice and the ratio which has been propounded in the Hon'ble Apex Court's judgment obviously has rightly been laid down with terms of appointment of the apprentices whose service are covered by the Apprentices Act of 1961, will have an overriding effect on an apprentice/trainee as defined under Section 2(Z) of the U.P. Industrial Disputes Act, 1947. Provided their appointment is made under the central legislation. As it is settled law that under Constitution of India, central legislation will have an overriding effect over State law.
On raising of an industrial dispute a question was referred for adjudication under Section 4K of U.P. Industrial Disputes Act, 1947 for adjudication before the Labour Court, it was to the effect made by virtue of the Government Order No. 726-31 के0आर0सन्दर्भ/सी0पी0 11(के)/2012 दिनांक 7-2-2013 to the following effect:
"क्या सेवायोजकों द्वारा अपने श्रमिक श्री वीरेन्द्र सिंह पुत्र श्री खुशाल सिंह बिष्ट, राजीव नगर-1 बिन्दुखत्ता पो0 लालकुंआ, जिला-नैनीताल उत्तराखण्ड टूल रूम ट्रेनी (मैन्टनेन्स) की सेवायें दिनांक 16.05.2012 से पृथक किया जाना उचित तथा/अथवा वैधानिक है? यदि नहीं, तो सम्बन्धित श्रमिक किन-किन विवरणों सहित हितलाभ प्राप्त करने का अधिकारी है?"
Consequently, a reference was made to the effect that as to whether and the act of the employer of dispensing the services of the petitioner as a tool room trainee (maintenance) w.e.f. 16.05.2012 was just and valid and to what benefit the trainee would be entitled to receive. On the said reference which was made to the Labour Court the Labour Court ultimately by the impugned award dated 06.12.2012 has held that the act of the employer of dispensing the services of the respondent by an order dated 16.05.2012 was illegal and the workman was directed to be reinstated into the services. A slight distinction which has been sought to be carved out by the counsel for the petitioner for the purposes of present writ petition at the behest of the employer is to the effect that the conclusion drawn by the Labour Court while holding the termination as to be illegal may not be treated as to be that it was a reference which was made for defining the status of the workmen, as that of the respondent being of a regular employee.
The said argument as extended by the learned counsel for the petitioner would be tenable for the reason that it has been consistent and a settled law, that the reference court before whom a question is formulated by the State Government and sought to be referred to be adjudicated, the reference court cannot and under no circumstances magnify or widen the question which has been sought to be referred to be adjudicated, hence, since the reference itself was only contemplating the consideration of the letter dated 16.05.2012 of dispensing the services of the respondent as a "Tool Room Trainee (maintenance)", it is quite oblivious that as soon as it is held by the Labour Court that the order of termination dated 16.05.2012 was illegal, its consequential effect would be that at the most as a resultant action, which was required to be taken by the employer, would be to reinstate the respondent into the services under the same status from where his services was dispensed with.
An adjudication was made by the Labour Court by the impugned award dated 06.12.2012, the argument is that it cannot in any manner be interpreted as if it was providing a regular status to the respondent as the effect of the award would be that as soon as the order dated 06.05.2012 dispensing the service of respondent is held to be bad in the eyes of the law, it will only give the respondent the same status of that being of a Tool Room Trainee from where he was removed, the post which he acquired prior to his removal on 6.05.2012 and thus he would be acquiring back the status of that of a Tool Room Trainee only, and the said award cannot be read as if it was giving him the status as that of a regular employee.
Petitioner has expressed his apprehension in view of the ultimate direction which has been given by the impugned award, while setting aside the dispensation order dated 16.05.2012, to the effect 'श्रमिक सेवा में वापस लिये जाने का अधिकारी है।', this may not be treated as if he was required to be reinstated into service as a regular workman. The argument of the learned counsel for the petitioner is that the effect of the impugned award would be that the respondent would only reacquire the same status of "Tool Room Trainee" under the same terms as contained of his letter of appointment dated 21.09.2010.
The petitioner has expressed a bonafide apprehension that the finding which has been recorded by the Labour Court, with regards to the effect of payment of Provident Fund, ESI bonus, house rent allowance, medical, the respondent based on these findings may not take advantage of claiming himself as be a regular workmen, because this court in acceptance of the argument of the learned counsel of the petitioner that at the most the effect of grant of service benefits, will not provide the status of regular employee to the respondents.
Even otherwise at the time when the conciliation proceedings or reference was made it has never been the case of respondent after completion of his one year as Tool Room Trainee, on which he was appointed by the order dated 27.09.2010, which was for one year his status was ever changed and given a regular status of a workman.
Learned counsel for the petitioner had made reference to a judgment reported in AIR 1967 S.C. 469 'Delhi Cloth and General Mills Co. Ltd. vs. The Workmen', wherein, the power of the Tribunal to enlarge the scope of reference was put to challenge and it was held thereto that the Labour Court/Tribunal while dealing with the issue, which has been referred to for its adjudication by the Labour Court is not free to widened the scope of the reference made to it and, in particular, while rendering an award, it cannot while setting aside the impugned action enlarge its scope by determining the post on which the employer is to be reinstated as a consequence of setting aside of the order of termination of services. Paragraph 9 of the said judgment is quoted hereunder:
"From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary:
"happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated:"
"Something incidental to a dispute" must therefore mean something happening as a result of or; in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct. In the light of the above, it would appear that the third issue was framed on the basis that there was a strike and there was a lock-out 'and it was for the Industrial Tribunal to examine the facts and circumstances leading to the strike and the lockout and to come to a decision as to whether one or the other or both were justified. On the issue as framed it would not be open to the workmen to question the existence of the strike, or, to the Management to deny the declaration of a lock-out. The parties were to be allowed to lead evidence to show that the strike was not justified or that the lock-out was improper. The third issue has also a sub-issue, namely, if the lock-out was not legal, whether the workmen were entitled to wages for the period of the lock-out. Similarly, the fourth issue proceeds on the basis that there was a sit-down-strike in the Swatantra Bharat Mills on 23-2-1966 and the question referred was as to the propriety or legality of the same. It was not for any of the Unions to contend on the issues as framed that there was no sit-down strike. On their success on the plea of justification of the sit-down strike depended their claim to wages for the period of the strike."
He further makes a reference to a judgment reported in (2010) 124 FLR 475 'UPSRTC vs. State of U.P. & Others', wherein, this Court has held in its paragraph 5 & 7 that the Labour Court has got no authority to widen the scope of reference, which has been sought by the workman, against an action taken against him by the employer and if at all if the action of the employer is held to be bad as a consequence of the adjudication done by the Labour Court, at the most the workman would be reacquired the same status from where he was removed, and the Labour Court could not have redetermined his status as to be that of a regular employee, as it would fall to be beyond the ambit of question, which was being sought to be referred for adjudication to the Labour Court. Paragraph 5 & 7 are quoted hereunder:
"5. I have considered the submission of learned Counsel for the petitioner and also perused the records inasmuch as have gone through the aforesaid decision of Hon'ble Apex Court. From mere reading of para 5 of the aforesaid decision of Apex Court, it appears that in the aforesaid case, the reference made by the Government to the labour court was straightway challenged before High Court under Article 226 of the Constitution, therefore, in the aforesaid factual backdrop of the case, in para 8 of the aforesaid decision the Hon'ble Apex Court has observed as under:
It was submitted by the respondent that once a reference has been made under Section 10 of the Act a labour court has to decide the same and High Court in writ jurisdiction cannot interfere in the proceedings of the labour court. That is not a correct proposition to state. An administrative order which does . not take into consideration statutory requirements or travels outside that it is certainly subject to judicial review limited though it might be. High Court can exercise its powers under Article 226 of the Constitution to consider the question of very jurisdiction of the labour court. In National Engineering Industries Ltd. v. State of Rajasthan, this Court observed:
It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the industrial dispute, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate Government lacks power to make any reference.
In Ambica Quarry Works v. State of Gujarat and Ors., in para 18 Hon'ble Apex Court observed as under:
The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
Considering the aforesaid facts and considering the impact of other judgments, which have been relied by the learned counsel for the petitioner pertaining to the manner in which the Court of law has to consider the status of a trainee as compared to the status of workmen, who has been employed by the employer and its consequences of termination of services, in most of the judgments, it has been held out that no doubt that the trainee who is being appointed by the employer will since is included in the definition of the workman under Section 2(Z) of the U.P. Industrial Disputes Act, any right or liability accruing in favour of or against the workman, which also includes the trainee, has had to be determined in the same manner as it has been sought to be referred to be adjudicated by the Labour Court in relation to the workmen working as an employee of the organization.
Consequently, the apprehension which has been expressed by employer/petitioner, that as a resultant effect of the impugned award dated 06.12.2014, it may not be treated to have an effect of providing the status of a regular employee to that of the respondent is absolutely a misconception which is being drawn, because logically even otherwise also, if the order of termination is set aside, it goes without saying that the effect of setting aside of the termination order would only be revival of the status of the workmen, which was existing or he was enjoying in relation to the trainee which was prevailing at the time when the services were dispensed with on 16.05.2012.
Hence, the effect of the impugned award would be that when the respondent is directed to be reinstated as a consequence of the award dated 06.12.2014, he would be only acquiring the status of being that of a Tool Room Trainee only and not a regular workman working with the petitioner's organization.
In view of the aforesaid clarification, which has been made above, the effect of the impugned award so far it relates to setting aside the termination order dated 16.05.2012 is not disturbed by this Court and the same is maintained, but with a clarification that the effect of the said setting aside of the order the effect would be that the respondent would only be reinstated into the status of a Tool Room Trainee only.
Subject, to the above observation, the writ petition stands disposed of.