Citation Codes

Equivalent Citations

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Case Number

Original Jurisdiction Case No. 231 of 1996

Advocates

Sri Biswanath Rath, Sri B. Senapati, Sri S.N Mohapatra, Sri K.R Mohapatra, Sri S. Ghose, Sri J.N Rath, Sri S.K Jethy and Sri S. Mohanty.
For Opposite Parties.— Sri S.J Pradhan and Sri B.M Guru.

Judges

Sri S. Chatterji
A.C.J
Sri R.K Dash, J.

Acts

Force Act, 1950, or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or(ii)
S. 33-C(2) of the Industrial Disputes Act (in short the Act)
Section 2(s)

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Smart Summary

Summary of Legal Opinion — Dash, J.

Factual and Procedural Background

Opposite Party 2 (the workman) was employed as a technician (Service Engineer, later promoted to Senior Service Engineer) with Kores India Ltd., Rourkela. He was placed under suspension in February 1993 (the opinion contains slightly varying dates: para. 2 states suspension from 15 February 1993; subsequent paragraphs state he worked till 10 February 1993 and was suspended from 11 February 1993). Because his employer did not pay subsistence allowance during suspension, he raised an industrial dispute before the District Labour Officer, Rourkela. A conciliation proceeding resulted in an apology from the workman and an agreement by the employer to reinstate him with back wages, but reinstatement and back wages were not effected. Opposite Party 2 filed a petition under S.33-C(2) of the Industrial Disputes Act before the Labour Court seeking payment of subsistence allowance and other monetary benefits. The Labour Court granted relief in his favour (the impugned order), and the functionaries of Kores India Ltd. (petitioners before this Court) filed the present writ petition challenging the Labour Court's order.

Legal Issues Presented

Whether opposite party 2 is a "workman" within the meaning of S.2(s) of the Industrial Disputes Act.
Whether a proceeding under S.33-C(2) (a summary/expeditious remedy to compute monetary benefits) is maintainable where the employer disputes entitlement to monetary benefits.
Whether the suspension of opposite party 2 was effectively withdrawn by the employer's letter (Annexure 6/8) and, if so, from what date subsistence allowance ceased.
Whether the Labour Court's computation/determination of the monetary claim (award of Rs.86,750 as determined; claim numbers vary in the record) was supported by evidence or was based on no evidence and hence liable to be quashed.

Arguments of the Parties

Petitioners' Arguments (Kores India Ltd. / functionaries)

Opposite Party 2 was not a "workman" as defined under S.2(s) of the Act (contention he worked in a managerial/supervisory capacity and drew salary of Rs.3,400 per month), hence the S.33-C(2) petition was not maintainable.
Because the petitioners disputed entitlement to the subsistence allowance and other monetary benefits, a summary proceeding under S.33-C(2) should not have been entertained.
The employer had given opposite party 2 an opportunity to work (by letter dated 31 May/June 1993, Annexure 6), which should be treated as withdrawal of suspension; since he did not join at the new posting, he was not entitled to subsistence allowance after receipt of that letter.
The Labour Court's determination of opposite party 2’s claim was based on no evidence and therefore the impugned order should be quashed.

Opposite Party 2's Arguments

The Labour Court had thoroughly scrutinised the evidence and correctly computed the subsistence allowance and other allowances; there was no illegality in the impugned order and this Court should be reluctant to disturb it on writ jurisdiction.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court addressed the issues seriatim and applied statutory definitions and the statutory purpose of S.33-C(2) to the facts before it. The analysis followed these main steps:

Definition of "workman" under S.2(s): The Court reproduced the statutory definition (including the managerial/supervisory exclusions and the wage threshold) and examined whether opposite party 2 fell outside the definition. Although opposite party 2 drew Rs.3,400 per month, the material before the Labour Court showed his duties related to installation, servicing and repair of xerox machines (manual/technical work). The petitioners produced no evidence to establish that his duties were managerial or supervisory in nature. In the absence of such evidence and without any successful challenge at this stage, the Court upheld the Labour Court's finding that opposite party 2 is a "workman" under the Act.
Maintainability of S.33-C(2) proceeding despite contested monetary entitlement: The Court explained that S.33-C(2) is designed to provide a speedy and effective remedy to a workman to receive money or benefits that can be computed in monetary terms. The jurisdiction of the Labour Court to compute such claims is not ousted merely because the employer disputes entitlement. The exception is where the very status of the claimant as a workman (on which entitlement depends) is genuinely in dispute—then S.33-C(2) may not be appropriate. Here, that threshold issue (workman status) was resolved in favour of the workman; therefore, the Labour Court properly proceeded to compute the monetary claims. The Court also observed that proceedings under S.33-C(2) are analogous to execution proceedings and that the Labour Court can compute benefits on the basis of evidence on record.
Whether suspension was revoked by Annexure 6 and the period of entitlement to subsistence allowance: The Court focused on the employer's letter (Annexure 6) which offered opposite party 2 an opportunity to work at the Ernakulam Branch under a Branch Manager, and the workman's reply (Annexure 7) insisting on reinstatement at Rourkela. The Court found that Annexure 6 did not specifically state that the suspension order was revoked. The letter offered an opportunity to work under supervision at another branch; it did not amount to clear revocation of suspension. Given the reply and the surrounding facts, the Court concluded that opposite party 2 did not accept the transfer/order and therefore the suspension continued until service of the later letter (referred to in the judgment as the date of service of Annexure 8). The Court expressly refrained from further adjudicating the separate pending issue of discharge for not reporting at Ernakulam, leaving that question to the Labour Court to decide on evidence.
Computation of monetary entitlement: The Court reviewed the record of claims (initial claim figures and later amended figures are noted in the opinion) and the Labour Court's acceptance of the workman's claim largely in toto (except travelling dues). The Court then computed entitlement in light of admitted facts: opposite party 2 worked until 10 February 1993 and was suspended thereafter until the date the employer's letter was served. On the basis of the admitted monthly salary of Rs.3,400 and the claimed rates of subsistence (50% initially, presumably rising later as claimed), the Court computed the amount payable for salary from 1 February to 10 February 1993 and subsistence allowance for the suspension period until May 1993 as Rs.7,365. The Court ruled that bonus, being linked to work, was not payable for the suspension period; although bonus for the short working period (1–10 February 1993) might have been calculable, there was no evidence of the quantum of bonus paid to similarly situated employees and the Court therefore did not award any bonus.

Holding and Implications

Holding: The writ petition is disposed of. The Court held that opposite party 2 is a "workman" within the meaning of S.2(s) of the Industrial Disputes Act and is entitled to subsistence allowance from the date of suspension until 31 June, 1993 (the date of service of the employer's letter referred to in the opinion), and not thereafter. The Court computed the payable amount for salary and subsistence (for the periods described in the opinion) at Rs.7,365 and held that bonus is not payable for the suspension period.

Implications:

The direct effect is that the Labour Court's order awarding subsistence allowance and related monetary relief largely stands as computed by this Court (subject to the precise computation the Labour Court may or may not adjust in line with the opinion). The writ petition challenging the Labour Court's order has been dismissed/ disposed of, and no costs were imposed.
The Court made no pronouncement of a new legal precedent; its conclusions rest on statutory interpretation of S.2(s) and the statutory purpose and scope of S.33-C(2), and on the particular facts and documentary correspondence (Annexures) in the case. The Court specifically left open separate contested issues (such as the legality of any discharge for not reporting at Ernakulam) for determination by the Labour Court on evidence.

Additional note from the opinion: A.C.J. Chatterji agreed with the judgment.

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General Manager, Kores (India), Ltd., And Others v. Presiding Officer, Labour Court, Sambalpur, And Another

Dash, J.:— Order of the learned Presiding Officer, Labour Court, Sambalpur, passed in Industrial Miscellaneous Case No. 28 of 1994, computing the entitlement of subsistence allowance of opposite party 2 has been assailed in this writ petition.

2. For better appreciation of the question involved, a few facts giving rise to the initiation of the aforesaid miscellaneous case may briefly be stated thus:

“Opposite party 2, while working as a technician in Kores India, Ltd., Rourkela office, was placed under suspension with effect from 15 February, 1993, and till the filing of the case before the Labour Court he was still under suspension. Since his employer did not pay his subsistence allowance he raised an industrial dispute before the District Labour Officer, Rourkela, whereupon a conciliation proceeding was initiated where he begged apology and consequently his employer agreed to reinstate him in service with all back-wages. But he was neither reinstated nor paid back-wages. This led opposite party 2 to approach the Labour Court by filing a petition under S. 33-C(2) of the Industrial Disputes Act (in short the Act) seeking a direction of his employer to pay subsistence allowance and other allowances as admissible to him”.

3. Kores India, Ltd, through its functionaries, petitioners herein, refuted the claim of opposite party 2 contending, inter alia, that opposite party 2 was not a workman as defined under S. 2(s) of the Act, therefore, the proceeding as laid was not maintainable. They also challenged the claim of subsistence allowance and bonus as detailed in the petition which are at Annexures 2 and 3 of the present writ petition. Their further case was that opposite party 2 during course of employment had committed serious acts of irregularities detrimental to the interest of his employer for which he was transferred to Ernakulam Branch to work under a new Manager by order, dated 31 June, 1993. Though he received the said order, but he did not join at his new place of posting and, therefore, he was not entitled to subsistence allowance as claimed.

4. Both parties in support of their respective case led oral evidence, besides documentary evidence and the learned Labour Court on appreciation of the evidence, passed the impugned order at Annexure 1 determining the claim of opposite party 2 as aforesaid. Aggrieved by the said order the functionaries of the Kores India, Ltd., have approached this Court by filing the present writ petition.

5. The petitioners in the writ petition as well as in course of argument have raised the following contentions challenging the impugned order:

(1) That opposite party 2 being not a workman as defined in S. 2(s) of the Act, the petition under S. 33-C(2) of the Act was not maintainable.

(2) That entitlement of opposite party 2 of subsistence allowance and other monetary benefits as claimed having been disputed by the petitioners, proceeding under S. 33-C(2) being summary in nature should not have been entertained.

(3) That since opposite party 2 had been given an opportunity to work as per the order, dated 31 May, 1993. Annexure 6 it would be presumed that suspension under had been withdrawn and, therefore, he was not more entitled subsistence allowance from that date; and

(4) That determination of the claim of opposite party 2 by the leaned Tribunal being based on no evidence, the impugned order is liable to be quashed.

6. Controverting the aforesaid submission, opposite parry 2 would contend that the learned Tribunal on a thorough scrutiny of the evidence computed the subsistence allowance and other allowances and there being no illegality in the impugned order, this Court should be loathe to exercise the writ jurisdiction and upset the same;

7. To appreciate the contentions we would like to deal with all the issues seriatim. Since a workman is entitled to initiate a proceeding under S. 33-C(2) of the Act by making an application to the Labour Court, the first and foremost question arises for consideration is as to whether opposite party 2, is a workman. Section 2(s) which defines workman reads as under—

(s) ‘workman’ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 where dismissal, discharge or retrenchment has led to that dispute, out does not include any such person—

(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as officer or other employee of a prison or

(iii) who is employed mainly in a managerial or administrative capacity;

(iv) who, being employed in a supervisory capacity draws wages exceeding one thousand six 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 appear from the impugned order that a contention was raised that me work of opposite party 2 was of a managerial and supervisory in nature and his monthly salary being Rs. 3,400 at the relevant time, he was not a workman. It was, however, admitted that while working as Service Engineer he was promoted to the post of Senior Service Engineer and the job entrusted to him was installation, servicing and repair of xerox machines. No evidence whatsoever was led by the petitioners to support the contention that his work was managerial or supervisory in nature, although admittedly he was drawing salary of Rs. 3,400 per month. In course of hearing, nothing could be brought to our notice to assail the aforesaid finding of the learned Labour Court and in absence thereof we would hold that opposite party 3 is a “workman” as defined in the Act.

8. Coming to the next submission of the petitioners that since the monetary benefits as claimed by opposite party 2 was disputed by them, proceeding under S. 33-C(2) should not have been entertained, at the outset we would like to say that the purpose of S. 33-C(2) is to provide speedy and effective remedy to a workman to receive any money or any benefit which can be computed in terms of money. The jurisdiction of the Labour Court, therefore, would not be ousted merely because the employer disputed such right. However, if the status of the workman is disputed, the monetary claim or the right as claimed is dependent on the determination of the said status, then in that case it is not permissible for the Labour Court to entertain the application under the aforesaid section. True it is, a proceeding under S 33-C(2) is analogous to execution proceeding, yet it would be within the competence of the Labour Court to compute the benefit as claimed by a workman in terms of money even though the right to the said benefit on which the claim is based is disputed by his employer. In the instant case, it was not disputed or denied by the petitioners that opposite party 2 being a suspended workman was not entitled to subsistence allowance during the suspension period. As regards the other claims, such as, salary for the entire month of February 1993, bonus, etc., though the petitioners have challenged the same, but that could not be a ground to hold the entire proceeding to be not maintainable. The Labour Court dealing with such matter being the executing Court can compute the claim of the workman in terms of money on the basis of the evidence available on record. In that view of the matter, the contention of the petitioners that the Labour Court ought not to have entertained the application under S. 33-C(2) does not merit consideration.

9. The next question which is pivotal issue in the present proceeding is as to whether opposite party 2 would be treated as a suspended workman till the initiation of the present proceeding under S. 33-C(2). The determination of this question centres round the letter at Annexure 6 addressed to opposite party 2. Admittedly opposite party 2 worked till 10 February, 1993, and he was put under suspension on the next day, i.e, 11 February, 1993. There is, therefore, no dispute that he is entitled to the salary till the last working day and from the next day onwards he is entitled to subsistence allowance since he was placed under suspension. In the present proceeding we are not concerned with the grounds or reasons of suspension, since the limited question in issue is whether as a suspended workman he is entitled to monetary benefits or not. The main contention of the petitioner is that a reading of the louder Annexure 6 would show that suspension order had been withdrawn and the workman was given an opportunity to work at another branch, but he did not join the new place of posting and, therefore, from the date of receipt of the said letter, he was not entitled to any subsistence allowance. This has, however, been strongly refuted by opposite party 2. To appreciate the contention, that part of Annexure 6, relevant for the purpose, is extracted hereunder:

As in the normal practice in Kores, we always, a fair chance give our employees in carrying out their responsibilities. We have now understood that you are not responsible enough to operate independently you had been doing from Rourkela, and you are also not following instructions given to you by Sri D.P Tripathy. We, therefore, like to give you on more chance to correct your attitude towards work. For this purpose, we wish to give you an opportunity to work at our Ernakulam Branch under a new Branch Manager.

You should report to our Ernakulam Branch immediately by definitely not later than 15 June, 1993. You will be eligible for actual first class train fare for you and your family from Rourkela to Ernakulam. We now await your decision’”

(emphasis supplied).

On receipt of the said letter, opposite party 2 through his advocate gave a lengthy reply at Annexure 7. We quote the last paragraph of the reply, relevant for the purpose, as under:

“… my client may be reinstated and reported in Rourkela Service Station (under Cuttack Branch) with immediate effect and the present illegal transfer order be withdrawn failing which he shall have to resort to the door step of the competent Court by 15.7 …

From a reading of Annexure 6 we find that though there is no specific mention about revocation of the suspension order, but it is apparent that the employer in order to correct opposite party 2 had given him opportunity to work at Ernakulam branch, not independently but under the guidance of the Branch Manager. But as would appear from the reply. Annexure 2 be insisted that he should not be removed from Rourkela Branch, his previous place of posting, and he should be allowed to work there only. In that view of the matter, the contention of the opposite party 2 that so it was not indicated in Annexure 6 that suspension order was revoked and he was reinstated in service he did not proceed to Ernakulam Branch; as directed is not acceptable.

9-A. We refrain from making any more observation and whatever we have said on a reading of Annexures 6 and 7 is for the limited purpose of determining the question of entitlement of subsistence allowance as claimed by opposite party 2, as because we are told at the Bar that for not joining at Ernakulam Branch, opposite party 2 has been discharged from service and the legality and justifiability of the order of discharge is now pending for adjudication in the Labour Court, Sambalpur, before which the question may arise as to whether opposite party 2 believed bona fide that there being no revocation of the order of suspension, he did not join at Ernakulam Branch and that he had no intention to disobey his employer's direction. The’ decision on the said question would be one of the guiding factors to determine the dispute. So uninfluenced by any observation made in this judgment, the learned Labour Court would be free to decide the dispute on the basis of evidence to be adduced by the parties.

9-B. For the foregoing discussion, we would hold that opposite party 2 is entitled to subsistence allowance from the date of suspension till 31 June, 1993, the date of service of letter at Annexure 8 and not thereafter.

10. The last question is whether determination of the claim of opposite party 2 at Rs. 86,750 is correct and based on evidence. We find from the record that initially claim was made to the extent of Rs. 64,651 towards salary for the whole month of February 1993, suspension allowance at 50 per cent of the salary till May 1993 and 75 per cent from June 1993 to July 1994, arrear travelling dues terms and commission, but by amending the petitioner it was enhanced to Rs. 94,001. From the impugned order it appears that the learned Tribunal without referring to any evidence whatsoever accepted the claim of opposite party 2 intoto, except the travelling dues, i.e, Rs. 7,251. It is admitted fact of the parties that opposite party 2 worked till 10 February, 1993 and from the next day he was put under suspension till 31 June, 1993, that is the date of service of letter, Annexure 6. In that view of the matter, opposite party 2 is entitled to salary from 1 February, 1993 to 10 February, 1993, and subsistence allowance from 11 August, 1993, to May 1993. Admittedly opposite party 2 was drawing salary of Rs. 3,400 per month. He was claimed suspension allowance at 50 per cent till May 1993. We accordingly compute his salary from 1 February, 1993 to 10 February, 1993 and subsistence allowance for the rest period till May 1993 at Rs. 7,365. So far as bonus is concerned, it may be stated since bonus is linked with work, opposite party 2 being a suspended employee was not entitled to bonus for the suspension period. We would, however, have calculated the bonus or the period from 1 February, 1993 to 10 February, 1993, but in absence of any evidence as to quantum of bonus paid to similarly stated other employees for the month of February 1993, we are unable to calculate the same.

11. The writ application is accordingly disposed of. No costs.

12. Chatterji, A.C.J:— I agree.

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