Afsar Jawed v. – 1. Secretary, Department of Labour, Employment and Training, Jharkhand, Nepal House, Ranchi 2
Case Details
IN THE HIGH COURT OF JHARKHAND, RANCHI W.P(L) No. 2784 of 2024 ---- Afsar Jawed .... Petitioner -- Versus – 1. Secretary, Department of Labour, Employment and Training, Jharkhand, Nepal House, Ranchi 2. Deputy Labour Commissioner, Govt. of Jharkhand, Sitaramdera, East Singhbhum, Jharkhand 3. Tata Motors Ltd. Jamshedpur, Plant represented by it Managing Director, Bombay House, 24 Homi Mody Street, Mumbai, Maharashtra, near Telco Colony Hans Stoehr Road, PO& PS Telco, .... Respondent(s) Jamshedpur, Dist. East Singbhum ---- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD --- For the Petitioners: - Mr. Akhilesh Srivastav, Advocate Mr. Rohit Sinha & Manoj Kumar Mishra, Advocates For the Resp. No.2 :- Mr. Manish Mishra, GP-V For the Resp. No.3 :- Mr. Navniti Prasad Singh, Sr. Advocate Mr. Rashmi Kumar, Vaibhav Niti, Indrajit Sinha, Anit Vishal & Anupam Sandilya, Advocates ORAL ORDER IN COURT 05/28.08.2024 ----
Legal Reasoning
Heard Mr. Akhilesh Srivastav, learned counsel for the petitioner assisted by Mr. Rohit Sinha through Video conferencing. The quality of audio and video is proper. There is no complain. 2. Mr. Navniti Prasad Singh, learned senior counsel appearing on behalf of respondent no.3 assisted by Ms. Rashmi Kumar, whereas Mr. Manish Mishra, learned counsel appearing on behalf of respondent no.2 are present in the court. 3. Learned counsel for the petitioner submitted that order dated 30.09.2023 passed by Deputy Labour Commissioner, East Singhbhum is illegal and arbitrary and not sustainable in law. It is submitted that Deputy Labour Commissioner has no authority to direct the Tata Motors to submit a package plan for regularizing the temporary workers. It is further submitted that the Workman- -1- petitioner has worked for more than ten years and he has worked for 240 days in every calendar year, however, he has not been regularized. It is submitted that the respondent no.3 has indulged in illegal Unfair Labour Practices and learned counsel for the petitioner has referred to Section 25(B) (M) (N) (T) (U) of Industrial Disputes Act and he also referred to Schedule 5 Item No.10 in course of his submission. It is further submitted that after having work for several years, the case of the petitioner has not been considered for regularization. It is submitted that the petitioner had earlier filed a writ petition bearing W.P(L) No. 1616 of 2023 for declaring him as a permanent workman and for other consequential benefits and he also prayed for implementing the judgment passed by Hon’ble Bombay High Court and Co-ordinate bench of this Court vide order dated 15.06.2023 by directing the petitioner to move before Respondent no.2- Deputy Labour Commissioner and filed a representation before him and also Respondent no.2 was also directed to pass a reasoned order within a period of three months. Thus, it is submitted that Respondent no.2 has committed illegality by rejecting the representation and has directed the company to submit a package
Decision
plan. Hence, the writ petition may be allowed and the order passed by the Hon’ble Bombay High Court dated 11.11.2022 may be implemented by the Respondent no.3 by regularizing the petitioner from his services. 4. Although, the learned counsel for the petitioner has prayed that he may be given time to file supplementary affidavit, as he will enclose those petitions. However, this Court is not inclined to allow the petitioner to file any supplementary affidavit to delay the matter. 5. Learned counsel for the State submits that writ petition is not maintainable. It is submitted that the petitioner is not a workman. It is submitted that in terms of order passed by this Court in W.P(L) No. -2- 1616 of 2023 the Deputy Labour Commissioner has passed the appropriate order. Hence, this writ petition may be dismissed and the petitioner has no locus to file this writ petition. 5. Mr. Navniti Prasad Singh, learned Senior Counsel appearing on behalf of Respondent no.3 has submitted that this writ petition is not maintainable. It is submitted that the petitioner is a practicing advocate in Civil Court, Jamshedpur and he has appeared on behalf of the several parties. It is further submitted that the judgment passed by Bombay High Court on 11.11.2022 cannot be implemented in this case by the Respondent no.3 as the matter relates to different issues. In that case, it is submitted that the concerned workmen was employed in Pune and their service condition were different. However, so far as the present writ petition is concerned, the petitioner is an employee of Respondent no.3 and the father of the petitioner was working in the Company. It is submitted that Respondent no.3 had framed the scheme for providing employment to the wards of the employees only by way of welfare measure. It is further submitted that Industrial Dispute Act has not been raised in the light of order dated 15.06.2023 passed by the co-ordinate Bench of this Court. 6. Having heard the learned counsel for both the sides, this Court finds that specific submission was raised on behalf of Respondent no.3 in earlier writ petition bearing W.P(L) No. 1616 of 2023 on 15.6.2023 by Co-ordinate bench of Hon’ble Justice Anubha Rawat Choudhary of this Court at para 10 as follows:- that “Para 10. Learned counsel appearing on behalf of the respondent no.3, on the other hand, has submitted is not the writ petition maintainable with regard to the relief as prayed for in this writ petition. He has also submitted that the petitioner is a practicing Advocate of this Court and is enrolled with the Bar Council and is also present in this court. The petitioner has remedy as per the itself -3- is seeking a mandamus upon provision of Industrial Disputes Act, 1947. The learned counsel has submitted that primarily the petitioner the respondent No.3 who does not fall within the meaning of State under Article 12 of the Constitution of India. The learned counsel has submitted that so far as the judgment passed by the Hon’ble Bombay High Court is concerned, the same was arising out of orders passed by Labour Court, who had scrutinized the facts and in the present case and there has been no adjudication by Labour Court or any other authority. The records indicate that the petitioner raised his grievance before the respondent No.2 to which, the respondent No.3 has been responding and the respondent No.2 has not taken a final call in connection with the grievance of the petitioner. He submits that before applying the judgement passed by the Hon’ble Bombay High Court to the case of the petitioner, the facts are required to be adjudicated by looking into the terms of employment etc. The learned counsel has also submitted that the Hon’ble Supreme Court while dismissing the special leave petition has kept the point of law open.” 7. It was pointed out in course of hearing that the writ petitioner was a practicing advocate. 8. It appears from the counter-affidavit filed by the Respondent no.3 that the petitioner was practicing in Civil Court, Jamshedpur as it reveals from Vakalatnama signed by the petitioner in Civil Court, Jamshedpur with regard to Mis. Civil Application No. 367/2019 filed in Chanchal Mandal @ Chanchal Kumar Mandal Vrs. Pintu Sardar and Anr., Complaint Case registration No. 1971 of 2024 (Sarita Gupta Vrs. J.Rajiv & Ors) & Complaint Case No. 157/2019 Parwati Karmakar and other cases have been filed which is a part of Annexure-B series and the name of the petitioner has been shown in those such cases. 9. Therefore, it is evident that the petitioner is not a Workman within the meaning of Section 2(s) of the Industrial Dispute Act. -4- 10. Section 2(s) of the Industrial Dispute Act reads as follows.:- “Section 2(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 whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) Who is subject to the Air force Act, 1950 (45 of 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 an officer or other capacity, or (ii) (iii) Iv) who, being employed in a supervisory [ten capacity, draws wages thousand 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.]” exceeding 11. It further reveals from the Annexure-4 of the writ petition filed by the petitioner that the petitioner has been given Registration by Jharkhand State Bar Council bearing Registration No. 268/2012 and the date of the Bar has been shown as 10/11/2012. Therefore, it is evident that on the one hand the petitioner has started practicing in Civil Courts, Jamshedpur and in State of Jharkhand and on the other hand he is claiming to have worked under Respondent no.3 as a workman. 12. The act of the petitioner does not appear proper, however this court refrains itself for giving any finding on the issue and conduct of this petitioner at this stage. However, this Court finds and come to a conclusion that the petitioner is not a workman within the meaning of Section 2(s) of the Act and as such no relief can be granted in this -5- writ petition to the petitioner. 13. The petitioner cannot act as a Workman at one time and practices as an Advocate on the other hand, it will be open to the parties to take suitable steps in accordance with law. 14. It also appears that pursuant to the direction passed in W.P (L) 1616 of 2023 the Deputy Labour Commissioner has directed the Respondent no.3 to prepare a package scheme for the welfare of the Workmen and the same has been prepared also by Respondent no.3 and tripartite agreement has also taken place. 15. Accordingly, the writ petition is hereby dismissed. Anjali/cp2 (Sanjay Prasad, J.) -6-