Tata Steel Limited, Jamshedpur v. The Concerned Workman through their legal heirs, Mrs. Sarita Srivastava & Ors.

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO ........... .. ... ... Respondents ......... For the Petitioner(s) For the respondent(s) …... 12/ 08.03.2022. : Mr. Manish Mishra, Advocate : Ms. Pinky Tiwary, Advocate Heard, learned counsel for the parties. Learned counsel for the petitioner, Mr. Manish Mishra has submitted that writ petition has been preferred against the Judgment dated 05.06.2009 passed by learned Presiding Officer, Labour Court, Jamshedpur in B.S. Case No.1 of 1999, whereby the TISCO Limited and others have been directed to pay back wages and another consequential benefits in terms of money to Smt. Sarita Srivastava, for which complainant, B.K. Srivastava was entitled i.e. back wages from the period

01.07.1998 to 15.08.2005 and other benefits. Learned counsel for the petitioner, Mr. Manish Mishra has further submitted that B.K. Srivastava husband of Sarita Srivastava was employed in the factory premises of the Opp. Party No.1 (Tisco Limited) in the work connected with and/ or incidental to manufacturing process and/or subject of manufacturing process. He was therefore a worker within the meaning of Factories Act, 1948 and is excluded from the definition of an employee under the Bihar Shops and Establishment Act, 1953, but the case has been instituted under Bihar Shops and Establishment Act, which was itself not maintainable. Learned counsel for the petitioner, Mr. Manish Mishra has placed Section 2(4) of Bihar Shops and Establishment Act, 1953, which reads as follows:- “2(4). Employee” means a person wholly or partially employed for hire, wages including salary, reward, or commission in and in connection with any establishment and includes 'apprentice' but does not include member of the employer's family.

It also includes person employed in a factory who are not worker within the meaning of the Factories Act, 1948 (63 of 1948), and for the purpose of proceeding under this Act, include an employee, who has been dismissed, discharged or retrenched for any reason whatsoever;” Learned counsel for the petitioner, Mr. Manish Mishra has further submitted that as per the pleading of the complainant itself, he was closely connected with the work/subject of manufacturing process. Research and Control Laboratory is a wing of Research and Development. The complainant, B. K. Srivastava was -2- employed at the relevant time in Research and Control Laboratory where work connected with or incidental to Scientific testing and analysis of raw materials are carried out before raw materials are put to use in manufacture. Learned counsel for the petitioner, Mr. Manish Mishra has further submitted that as per the Factories Act, 1948, the worker has been defined under Section 2(l), which may be profitably be quoted hereunder:- “2.

(l) “worker” means a person [employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not], in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process [but does not include any member of the armed forces of the Union]”. Learned counsel for the petitioner, Mr. Manish Mishra has thus submitted that as per the pleading of the complainant, B.K. Srivastava does not fall under the preview of Bihar Shops and Establishment Act, 1953 and cannot be considered as employee, but the petitioner can be considered as worker under the Factories Act, 1948 as he was also related to the work of Chemical analysis. Further, in view of the judgment passed by the Apex Court in the case of M/s Rohtas Industries Limited vs. Shri Ramlakhan Singh and Ors. reported in (1978) 2 SCC 140, the case of the complainant (herein respondent), B.K. Srivastava is not an employee under Bihar Shops and Establishment Act, as such, the judgment dated

05.06.2009, passed in B.S. Case No.1 of 1999 has been wrongly passed and the authority under the Act has committed gross error in passing such judgment. Learned counsel for the respondents, Ms. Pinky Tiwary has submitted that the authority vide judgment dated 05.06.2009 in B.S. Case No.1 of 1999 has rightly passed the judgment considering all the materials available, as such, the same may not be set aside. Considering the rival submissions of the parties, looking into the facts and circumstances of the case, since the plea with regard to the maintainability i.e. complainant being an employee under Bihar Shops and Establishment Act, 1953, has been raised before the authority below, but the same has remained unanswered. It is settled proposition that the question of law can be raised at any stage and the petitioner has right to raise all the issues before this Court under the writ jurisdiction. From the perusal of the materials brought on record and in view of M/s Rohtas Industries Limited (supra), it appears to this Court that the judgment dated

05.06.2009 in B.S. Case No.1 of 1999 has been passed without jurisdiction as the -3- complainant (herein respondent), B.K. Srivastava was not an employee under the Bihar Shops and Establishment Act, 1953. Accordingly, the impugned judgment is hereby set aside and the instant Writ Petition is hereby allowed. However, the respondents are at liberty to seek relief in accordance with law. R.S. (Kailash Prasad Deo, J.)