Triveni Engineering & Indust.Ltd vs Jaswant Singh & Anr

1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6523 OF 2010 [ Arising out of S.L.P. (C) No. 28588 of 2008 ]

TRIVENI ENGINEERING & INDUST. LTD. ...APPELLANT

VERSUS

JASWANT SINGH & ANR.

....

RESPONDENTS

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. By filing the present petition the appellant herein has challenged the legality of the 2 judgment and order dated 09.09.2008 passed by the Division Bench of the Allahabad High

Court allowing the Special Appeal filed by Respondent No.1 herein.

3. Respondent no. 1 - Jaswant Singh claims to be a workman of M/s Gangeshwar

Limited, Deoband, now known as Triveni Engineering Industries Limited, which was Respondent

No. 2 before the High Court and is the appellant herein. During the course of his employment, he

was transferred to Ram Kola Chini Mill but as he did not join the place where he was transferred

in pursuance of the said order, his services were terminated.

4.

Being

aggrieved by

the order of

termination of

his services,

he filed a writ

petition in the

Allahabad

High Court

contending inter alia that the Standing Orders contain no provision for the transfer of a workman

from one sugar factory to another, and therefore, his transfer was against the law. Consequently, he

contended that his services could not have been terminated for not joining at a place of transfer. In

the writ petition filed, he challenged the transfer order as also the termination order issued by the

appellant herein.

5. The said writ petition was registered as Writ Petition No. 8630 of 2008. Notice of the

writ petition having been served on the appellant herein, it took up a plea that the Respondent is 3 not a workman. The said writ petition was disposed of, leaving the respondent at liberty to move a

representation before the Labour Commissioner, Kanpur, U.P. in terms of Clause `W' of the

Standing Orders applicable. A representation in terms of the said order was filed by the respondent

no. 1 herein. During the pendency of the said representation, it was contended before the Labour

Commissioner by the appellant that the respondent no. 1 was not a workman, and therefore, the

Labour Commissioner had no jurisdiction to adjudicate the representation under the provisions of

U.P. Industrial Disputes Act, 1947 and particularly in terms of Clause `W' of the Standing Orders.

The Labour

Commission

disposed of

the petition,

concluding

that the

question at

hand related

to whether

respondent

no.1 was a

workman under the UP Industrial Disputes Act, 1947. Therefore, the Labour Commissioner held

that the same could not be decided under Clause `W' of the Standing Orders, but instead should be

determined by the Labour Court/ Industrial Tribunal.

6. Aggrieved by the order of the Labour Commissioner dated 14.05.2008, the respondent

no. 1 preferred a Writ Petition challenging the aforesaid conclusions. The learned Single Judge,

however, dismissed the said writ petition by judgment and order dated 25.07.2008, holding that the 4 representation of the respondent no. 1 under Clause `W' of the Standing Orders was not

maintainable and that the Labour Commissioner had rightly rejected the same.

7. Subsequently, the respondent no. 1 filed a Special Appeal before the Division Bench of

the Allahabad High Court, which was registered as Special Appeal No. 1085 of 2008. The

Division Bench of the High Court by the impugned judgment and order set aside the orders of the

Labour Commissioner as also of the learned Single Judge and remitted the matter back to the

Labour Commissioner to decide the nature of service of the respondent no. 1 in accordance with

law. The

Parties were

also placed at

liberty to

adduce

necessary

evidence in

support of

their

respective

contentions

before the Labour Commissioner.

8. Being aggrieved by the said judgment and order, the present Special Leave Petition was

filed in this Court on which notice was issued and an interim stay of the judgment and order of the

High Court was passed. Pleadings having been completed, the matter was listed for final argument

during the course of which we heard the counsel appearing for the parties who took us through the

documents on record in support of their submissions. 5

9. The counsel appearing for the appellant submitted before us that the effect of the High

Court's order would be that the Labour Commissioner who is permitted to receive evidence could

also be permitted to decide whether or not the respondent no. 1 is a workman. The Labour

Commissioner would also be able to decide whether the order of transfer transferring him to

another sugar factory was legal and valid and was justified within the parameters of the Standing

Orders with particular reference to Clause `W' thereof and also whether or not the termination

order passed against the workman is justified. The appellant's contention is that the said issues

cannot be

decided by the

Labour

Commissioner as power and jurisdiction is restricted and has been so settled by the Division

Bench of this Court in the case of U.P. State Road Transport Corporation vs. U.P. Rajya Sadad

Parivahan Karamchanri Union, reported in 2007(4) SCALE 302. It was further submitted that

under Clause `W' of the Standing Orders, only the power and jurisdiction to decide the question

with regard to the applicability and interpretation of the Standing Orders is vested with the Labour

Commissioner, and therefore he has no jurisdiction and power to decide as to whether the

respondent no. 1 falls within the purview of the expression `Workman'. According to the 6 appellant, the said issue could only be decided and adjudicated upon by the competent court and

not the Labour Commissioner. Counsel for the appellant also submitted that the Labour

Commissioner is only a "Conciliation Officer" under the Industrial Disputes Act and "Certifying

Officer" under the Standing Orders and therefore he cannot have the power and jurisdiction to

decide substantive questions as to whether or not respondent no. 1 is a workman and whether or

not the termination order is justified.

10. Counsel appearing for the respondent refuted the aforesaid submissions by relying upon

Clause `W' of

the Standing

Orders, which

according to

him gives

ample power

and

jurisdiction to

the Labour

Commissioner to decide the issues raised by the respondent no. 1. Respondent No.1 contended

that the only applicable provision, given the facts and circumstances of the case, is Clause `W' of

the Standing Orders. It was therefore submitted that since the service conditions of the workmen in

the sugar factory are being regulated through the aforesaid Standing Orders, the Labour

Commissioner would be competent to decide the issues raised as to whether or not respondent no.

1 is a workman and whether or not order of transfer was justified.

11. In order to appreciate the contentions raised by the counsel appearing for both parties, 7 we have carefully considered Clause `W' of the relevant Standing Orders, which reads as follows:

"If any question arises as to the application or interpretation of these standing orders, any employer/workmen may refer it to the Labour Commissioner of the State and the Labour Commissioner shall after giving the parties an opportunity of being heard, decide the question."

At this stage, it would also be relevant to relevant to extract a similar provision which finds place in

Section 11-C of the U.P. Industrial Disputes Act, 1947, which reads as follows:

"If any question as to the application or interpretation of a standing order certified under the Industrial Employment (Standing Orders) Act, 1946 arises,

any employer or workman may refer the question to any one of the Labour Courts specified for the disposal of such proceeding by the State Government by notification in the Official Gazette, and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties."

The aforesaid provision, namely Section 11-C, came to be interpreted and considered by this

Court in the case of U.P. State Road Transport Corporation (Supra). In the said decision, this

Court while setting aside the decision of the Labour Court in a case where it had declared a

contractual workman to be treated as regular workman has ruled held thus: 8

"In our opinion, the power of the Labour Court under Section 11-C of the U.P. Industrial Disputes Act or under Section 13A of the Industrial Employment (Standing Orders) Act, 1946 is much narrower than the power of the Labour Court on a reference under Section 10 of the Industrial Disputes Act which corresponds to Section 4-K of the U.P. Industrial Disputes Act."

A comparative perusal of the provisions of Section 11-C as also Clause `W' would establish that

the provisions are almost pari materia. Therefore, the conclusions arrived at by this Court for

interpretation of Section 11-C would also be applicable to the facts of the present case.

12. It

is established

from the

records that

the appellant

has raised an

issue

regarding the

applicability

of the

Standing Orders to the service condition of the respondent no. 1 contending inter alia that the

respondent no. 1 is not a workman within the meaning of U.P. Industrial Disputes Act, 1947 and

therefore the Standing Orders referred to and relied upon by respondent have no application in

the case before the Labour Commissioner. The Labour Commissioner as also the learned Single

Judge upheld the said contention, but the Division Bench of the High Court set aside the order,

holding that the said issue can be decided by the Labour Commissioner as it is ancillary to the

issue of applicability and interpretation of the Standing Orders. 9

13. We are faced by the question as to whether a person is a workman or not could be said

to be related to the applicability and interpretation of the Standing Orders along with the issue of

whether the orders of transfer and subsequent termination were justified or not. As far as the

Labour Commissioner is concerned, he is only a `Conciliation Officer' as envisaged under the

U.P. Industrial Disputes Act, 1947 and `Certifying Officer' under the Standing Orders. The

Standing Orders, particularly Clause `W', vests the Labour Commissioner with the jurisdiction

and power to decide on the applicability and interpretation of the Standing Orders. On the other

hand, Section

11-C of the

U.P.

Industrial

Disputes Act,

1947 and

Section 13A

of the

Industrial

Employment

(Standing

Orders) Act, 1946 grant the power and jurisdiction to render a decision on the issue of

interpretation and application of the Standing Orders to the Labour Court.

14. Without going into the issue as to whether such a power and jurisdiction could be

vested on the Labour Commissioner, we may decide the issued raised herein from another angle.

The issue of whether or not a person is a `workman' within the meaning of U.P. Industrial

Disputes Act, 1947 is a matter to be decided by a competent court, after allowing the parties to 10 lead evidence. Thereafter, on proper appreciation of the materials on record including the oral

evidence, a decision could be rendered and the issue could be determined. The enquiry before

the Labour Commissioner is of a summary nature and while exercising such a power of summary

nature, the Labour Commissioner cannot decide and examine factual matters relating to an issue

as to whether or not the person concerned is a workman or not.

15. In the case of Sharad Kumar v. Govt. of NCT of Delhi, reported at (2002) 4 SCC 490,

an issue regarding whether or not a person is a workman within the meaning of Section 2(s) of

the Industrial

Disputes Act,

1947 came for

consideration

before this

Court. This

Court held

that in such a

matter the

State

Government could not arrogate upon itself the power to adjudicate such an issue in as much as

the same could be determined by the Industrial Tribunal or the Labour Court on the basis of the

materials to be placed before it by the parties. In this instance, the Division Bench has

erroneously held that the aforesaid issue is an ancillary issue to the issue of applicability and

interpretation of the Standing Order.

16. Whether or not a person is a workman is a matter that relates primarily to facts and

circumstances of the case. The same has nothing to do with the application and interpretation of 11 the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue

is the nature of job performed by the concerned person, duties and responsibilities vested on him

and other such relevant material. In our considered opinion, the Division Bench of the High

Court committed a mistake in determining the said issue as an ancillary to that of the

applicability and interpretation of the Standing Order. A perusal of the earlier Writ Petition filed

by the respondent no. 1 numbered as Writ Petition No. 8630 of 2008 would indicate that what

was also challenged in the said writ petition was the order of termination passed against the

respondent.

The order of

termination

also could not

have been

examined and

scrutinized as

such power

and

jurisdiction is

not vested

with the Labour Commissioner.

17. Consequently, we set aside the judgment and order passed by the Division Bench of 12 Allahabad High Court dated 09.09.2008 and uphold and restore the orders passed by the learned

Single Judge as also by the Labour Commissioner. The present appeal is allowed to the aforesaid

extent. There will be no order as to costs.

............................................J. [Dr. Mukundakam Sharma]

....................

...................

J.

[Anil R. Dave]

New Delhi, August 11, 2010.