The Management of Holy FaithInternational Pvt.Ltd. v. The Presiding Officer, I Addl.Labour Court, Chennai.1.S.Sankaran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.13107 of 1999The Management of Holy FaithInternational Pvt.Ltd.25, Motilal Street, T.Nagar,Chennai-600 017. .. Petitioner-vs-The Presiding Officer,I Addl.Labour Court,Chennai.1.S.Sankaran .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorari calling for the recordsof the first respondent in ID.No.922/93 and quash his Award dated22.10.1998. For petitioner: Mr.Ravindran for M/s.T.S.Gopalan & Co. For respondents: Mr.K.M.Ramesh (R2) R-1-Labour CourtO R D E R This writ petition is filed by the Management against the Awarddated 22.10.1998 passed by the first respondent Labour Court and made inI.D. No.922 of 1993 inasmuch as it had granted relief of reinstatementwith backwages and continuity of service to the second respondent.2. The claim of the petitioner was that the Award suffers frommaterial irregularity and manifest error.3. The second respondent has filed a counter affidavit dated 'nil'(May 2003) refuting the stand of the petitioner. By an order dated29.8.2003, this Court while admitting the writ petition had granted thestay of the Award in so far as it relates to payment of backwages. https://hcservices.ecourts.gov.in/hcservices/

4. The facts of the case are as follows:-The second respondent was appointed as a sales representative in thepetitioner book publishing house right from the year 1988 and thepetitioner started the office in Chennai. It is claimed by the secondrespondent that though the nomenclature was that of a salesrepresentative, his substantial work was clerical and manual. Only fourto five days in a month, he was deputed for outstation tour for salespromotion. He was doing the duties of checking the stock received fromDelhi office, opening the parcels and verifying the correctness of thestocks of the invoice. He had to arrange them in the rack meant forthat. He was also making bills for the customers.5. It is claimed by the second respondent that the problem startedfor him in the year 1992 when his annual increment was not paid and theSales Manager instructed the Branch Manager at Chennai not to grantincrements. The second respondent complained to the Head Office,consequent to which, from 22.8.1992 he was asked to attend work in theoffice and not to attend any work regarding sales. Once again the secondrespondent made a complaint to the Head Office. However, on 15.2.1993 hewas served with an order of transfer to Ernakulam Branch in KeralaState. When the second respondent workman protested that it was not partof the conditions of his service and that he will not comply with theorder. He started reporting to the office at Chennai but he was notallowed to affix his signature.6. On 04.3.1993, the workman received a telegram from the managementinforming that he was not reporting duty at Ernakulam Branch, and as hisservices were required at Jalandhar office (Punjab), he was asked toreport for work at Jalandhar. The workman protested against the illegaltransfer and did not comply with the same. But he was not allowed toreport for duty at Chennai. Despite several letters written to themanagement, they did not reply to those letters. Therefore, he wasforced to raise an industrial dispute regarding his non-employment undersection 2A of the Industrial Disputes Act, 1947 (for short, 'ID Act').The dispute finally reached the first respondent Labour Court which tookup the dispute as I.D.No.922 of 1993. The second respondent filed aclaim statement to which the petitioner filed a counter statement.7. Before the Labour Court, the second respondent workman examinedhimself as W.W.1. On the side of the petitioner management, oneS.M.Alphones was examined as M.W.1. While the workman had filed 12documents, which were marked as Exs. W.1 to W.12, on the side of themanagement, 6 documents were filed and were marked as Exs. M1 to M.6. 8. In their counter statement dated 01.6.1994, the managementquestioned the maintainability of the industrial dispute both on theground that the second respondent was not a ''workman'' within themeaning of section 2(s) of the ID Act and that there was no terminationso as to bring the dispute within the meaning of Section 2A of the IDAct. https://hcservices.ecourts.gov.in/hcservices/

9. The Labour Court on an analysis of the evidence, both oral anddocumentary, came to the conclusion that the non-employment of thesecond respondent was illegal and that he was liable to be reinstatedwith backwages and service continuity. The Labour Court also held thathe was a ''workman'' within the meaning of Section 2(s) of the ID Act.The mere nomenclature of the workman as a 'sales representative' willnot determine his status. It also held that the petitioner managementhad not proved that they have power to transfer a workman from oneoffice to other office outside the State and they have notsatisfactorily proved that in the past any such workman had ever beentransferred. When the workman had protested, he was denied employmentwhen he went to report for work on 16.3.1993, and the management did notgive any reply to the workman thereby proving that he was physicallyprevented from working, and that it will amount to a non-employment.10. The writ petition was admitted on 03.8.1999. Pending the writpetition by an order dated 29.8.2003, this Court had granted only stayagainst the claim for backwages. But there was no stay regardingreinstatement.11. Mr.S.Ravindran, learned counsel representing M/s.T.S.Gopalan &Co. and appearing for the petitioner management submitted that thefinding of the Labour Court that it was an industrial dispute regardingnon-employment was not justified. Under Section 2A of the ID Act, aworkman can only raise a dispute regarding his termination and in suchdispute he cannot attack the order of transfer and, therefore, thedispute is not maintainable. He further submitted that the secondrespondent being a sales representative is not a 'workman' within themeaning of Section 2(s) of the ID Act. Further, he did not report forwork even after the Award and he was gainfully employed. For thatpurpose, the learned counsel for the petitioner produced a visitingcard showing the workman being the representative of some other bookpublisher.12. The second respondent has filed a counter affidavit dated29.6.2003 refuting the allegations made by the petitioner management. Itwas submitted that there was no power of transfer. When the office wasstarted at Chennai, the second respondent was the employee and there wasno office worth its name. There were no terms and conditions enablingthe person to be transferred from one place to other place and in theabsence of any contract, the order of termination passed by thepetitioner was illegal and it is non est in law. When the secondrespondent wanted to report at Chennai, it was the management whichprevented the second respondent from reporting to work at Chennai. Healso submitted that the visiting card of East West Book Company producedby the management was not legally acceptable and it was refused to betaken into account by the Labour Court. He also submitted that the orderof transfer to Ernakulam was not given effect at all. At the relevanttime, he had filed a claim petition being C.P.No.195/94 seeking bonusfor the year 1992-93 at the rate of 20% and also earned wages totalling https://hcservices.ecourts.gov.in/hcservices/ a sum of Rs.4850/-. The Labour Court computed the amount and by itsorder dated 02.8.1994 directed the petitioner to pay the sum ofRs.4850/-, which is due to the workman and that order has become final.13. The learned counsel also relied upon a judgment of the DivisionBench of this Court in The Management of Hindustan Motors Ltd. -vsLakshmiah and another reported in 2002 (2) L.L.N.725. This is for thepurpose of showing that when the management takes a stand that aparticular person is not coming within the meaning of Section 2(s) ofthe ID Act, it is for the management to establish the same by leadingappropriate evidence and the burden of proof cannot be shifted on theworkman. That judgment also supports the proposition that even in casesof transfer not being obeyed and if it results in a non-employment andwhen rival contentions are raised, it is the bounden duty of the LabourCourt to adjudicate upon the dispute between the parties. 14. In the present case, the Labour Court had come to the conclusionthat the second respondent is a 'workman' within the meaning of Section2(s) of ID Act and that is the finding of fact, which cannot beinterfered with in a petition filed under Article 226 of theConstitution. The finding of the Labour Court that there was no term ofemployment for transferring the second respondent to a far away placeat Punjab is also well founded. His job being clerical as well as salespromotion and he being unfamiliar with the local language, would havehardly helped him to have done any work. 15. But, when the second respondent was directed to be reinstated bythe impugned Award in I.D.No.922 of 1993 dated 22.10.1998, the secondrespondent had not sent any letter expressing his readiness to reportfor work. Even this Court by an interim order dated 03.8.1999 onlyordered notice in the stay application and subsequently by an orderdated 29.8.2003 granted stay regarding backwages thereby allowing thatportion relating to reinstatement to remain without being disturbed. Theallegation that he was gainfully employed was not proved by themanagement either before the Labour Court or before this Court with anysatisfactory evidence.16. In the light of the rival contentions, this Court is of the viewthat the second respondent is entitled for backwages from 16.3.1993 to29.8.2003. If the 'non-employment' is treated as 'retrenchment' he waseligible for notice pay and retrenchment compensation with gratuity. Ifthese amounts are calculated on the basis of the last pay drawn, itapproximately comes to Rs.2,00,000/- and without giving any increment orwage revision. 17. On the facts and circumstances of the case, this Court is of theview that the petitioner management should be directed to pay a sum ofRs.3,00,000/- to the second respondent. Hence, the Award will standmodified to the effect that the second respondent is entitled to getRs.3,00,000/- from the petitioner management as full and final https://hcservices.ecourts.gov.in/hcservices/ settlement of all his claims towards his reinstatement. 18. The writ petition is disposed of accordingly. The petitionermanagement is directed to make the payment within a period of eightweeks from the date of receipt of a copy of this order. There will be noorder as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. JsToThe Presiding Officer,I Addl.Labour Court,Chennai-104.+ 1 cc to M/s.T.S.Gopalan & Co,Advocates,SR.1197+ 1 cc to Mr.K.M.Ramesh,Advocate, SR.1351 W.P.No.13107 of 1999 DM(CO)EM/21.1.09