High Court · 2011

Heard Mr. P.C. Deka, learned Sr. Counsel assisted by Mr. M. Chet ia, learned counsel for the petitioner. None has appeared for the respondent No. 2 i.e. the workman inspite of service of notice. Ms. R. Chakraborty, learned Ad ditional Sr. Govt. Advocate, represents the State of Assam. This writ petition is directed against the judgment and award da 2. ted 20.7.2002 passed by the Industrial Tribunal, Dibrugarh, Assam in Reference N o. 1/2000. For a ready reference, the reference in question is quoted below: (cid:28)1. Whether the Management of Kakajan Tea Estate is justified in keeping the wor kman as a learner from 1991 to 1998 with a lumpsum pay of Rs. 650.00 only?

2. If not, whether the workman is entitled for permanent employment in the said Tea Estate or any other relief in lieu thereof? (cid:29)

3. On receipt of the aforesaid reference, learned presiding Officer of the Tribunal issued notices to the respective parties to file their written statement. In due course of time, written statements were filed and evidences we re adduced. Thereafter, the Tribunal by its impugned award dated 20.7.2002 havin g answered the reference in favour of the workman i.e. the respondent No. 2, the management of the Tea Estate i.e. the petitioner has approached this Court. Mr. Deka, learned Sr. Counsel for the petitioner upon a referenc 4. e to the reference quoted above has placed reliance on two decisions of the Apex Court reported in (1970) 1 SCC 225 (M/s Western India Match Co. Ltd. Vs. The We stern India Match Co. Workers Union and Ors.) and (1995) 5 SCC 75 (Rajasthan Sta te Road Transport Corporation & Anr. Vs. Krishna Kant & Ors.) has contended that the reference that was sent for adjudication is not a reference as envisaged in the Industrial Disputes Act, 1947. He submits that the dispute being raised by the respondent No. 2 in his individual capacity, in view of the aforesaid decisi ons coupled with the provisions of Section 2-A of the Industrial Disputes Act, 1 947, the reference could not have given rise to the situation requiring the Trib unal to adjudicate the same.

5. Mr. Deka, learned Sr. Counsel for the petitioner has further sub mits that even otherwise also the Tribunal while answering the above reference c ould not have directed the management to give permanent employment to the respon dent No. 2 deeming his tenure of learning from 1990 to 1998 as regular employee. As noted above, inspite of service of notice on the respondent N 6. o. 2 there is no response from him. Mr. Deka, learned Sr. Counsel for the petiti oner has produced the certificate dated 17.11.2011 issued by the Deputy General Manager, Kakajan Tea Estate (petitioner), which indicates that the respondent No . 2 is presently engaged in his own business by way of running a shop in Village -Boloma closed to the Tea Estate. The certificate further reveals that the respo ndent No. 2 never approached the Tea Estate for his engagement and/or any benefi t.

7. In the proceeding before the Tribunal, the management had adduce d evidences to show that the respondent No. 2 was engaged as a learner with the specific condition that such learning would not lead to any permanent employment . Exhibit-A and B exhibited and proved on behalf of the management/petitioner we re the applications of the workman seeking to work as learner in the Tea Estate. Exhibit-C is his engagement letter as learner. In the said letter, it was categ orically stated that the same does not guarantee any future employment. There is also reference to application of provisions of Apprentices Act, 1961 under whic h the respondent No. 2 was engaged as learner.

8. The learned Tribunal referring to certain decisions of this Cour t emphasising the need for regularisation of temporary/adhoc services formed an opinion that the respondent No. 2 being in the employment of the management as l earner, had attained the status of permanent employee and consequently the manag ement was duty bound to give him permanent employment.

9. Mr. Deka, learned Sr. Counsel for the petitioner has submitted t hat the concept of regularisation of service dehorse the recruitment process cou ld not have been made applicable towards issuance of a direction to the manageme nt to absorb the workman as permanent employee. He submits that since the respon dent No. 2 was engaged as learner with no guarantee of future employment, the re lationship between the Tea Estate and the respondent No. 2 was akin to engagemen t of apprentices under the provisions of Apprentices Act, 1961. As in the case o f apprentices in the instant case also the respondent No. 2 could not have praye d for permanent absorption. There is no dispute that the respondent No. 2 was engaged as a l 10. earner in the Tea Estate. While was continuing as such, the respondent No. 2 pra yed for his permanent absorption and thereafter raised the dispute on the basis of which the aforesaid reference was made.

11. Apart from the fact that the learned Tribunal in the given facts and circumstances could not have issued direction for permanent employment of t he respondent No. 2 as pointed out by Mr. Deka, learned Sr. Counsel for the peti tioner, the particular reference being not within the provision of the Industria l Disputes Act was not a reference in the eye of law.

12. In M/s Western India Match (supra), the Apex Court referring to its earlier decision in Dimakuchi Tea Estate reported in 1958 SCR 1156 held that the only condition for an individual dispute turning into an industrial dispute is the necessity of a community of interest. It was observed that the parties t o the reference being employer under the employees, the test must necessarily be whether the dispute referred to adjudication is one in which the workmen or a s ubstantial section of them have a direct and substantial interest even though su ch a dispute relates to a single workman.

13. In Rajasthan State Road Transport Corporation (supra) referring to the expression (cid:28)Industrial Dispute (cid:29) as defined in Section 2 (k) and also the Provisions of Section 2-A of the Industrial Disputes Act, 1947, the Apex Court h eld that a dispute between an employer and an individual workman does not consti tute an industrial dispute unless cause of the workman is espoused by a body of workmen.

14. In the instant case, the dispute was raised by the respondent No . 2 all by himself so as to contend that his status as a learner in the Tea Esta te was required to be converted to that of permanent employment. In the said con tention, there was no backing of the Union. The dispute was also not concerning any Section of the workmen. Leaving aside the aforesaid plea of lack of jurisdiction to try 15. the reference, I have considered the matter on its own merit as discussed above. The respondent No. 2 being merely a learner cannot claim permanent absorption i n the Tea Estate dehorse the recruitment process. The learned Tribunal committed manifest error of law in answering the reference in favour of the workman i.e. the respondent No. 2.

16. In view of the above, this writ petition is allowed setting asid e the judgment and award dated 20.7.2002 passed by the Industrial Tribunal, Dibr ugarh in reference No. 1/2000. There shall be no order as to costs.