The Food Corporation of India, a statutory Corporation constituted v. Upendra Prasad

: Mr. Nipun Bakshi, Advocate Mr. Shubham Sinha, Advocate For the Respondent : Mr. Shailesh Kr. Singh, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.

2. This Writ Petition has been filed under Articles 226 and 227 of the Constitution of India with a prayer for:- (a) issuance of a writ of certiorari or any other appropriate writ/order/direction for quashing and/or setting aside the award dated

15.01.2018 passed by the learned Presiding Officer, Central Government Industrial Tribunal No.1, Dhanbad, in Complaint Case No.3/2013, whereby the punishment order against the respondent has been set aside with a direction that the respondent would be entitled to full back wages including gratuity after reduction of two increments, and (b) also for issuance of appropriate writ of certiorari for also quashing the order dated 03.02.2017 passed by the Presiding Officer, Central Government 1 W.P.(L) No.4527 of 2018 Industrial Tribunal No.1, Dhanbad in Complaint Case No.3/2013, whereby and where under the disciplinary enquiry conducted against the respondent has been held unfair and improper on the grounds of change of Enquiry Officer and perversity in the findings of the Enquiry Report, (c) For issuance of any other appropriate writ/order/direction for grant of such other reliefs as may be incidental or consequential to or connected with setting aside of the aforesaid impugned order and for doing conscionable justice to the petitioner, and for interim reliefs.

3. At the outset, learned counsel for the petitioner submits that the petitioner does not want to enter into the merits of the said award dated

15.01.2018 and order dated 03.02.2017 and confines his argument only to the ground that admittedly the sole respondent being Ex-Assistant Grade-I (Depot) as is evident from the cause-title of the impugned award and which has been elaborated in paragraph-4 of the said impugned award kept at Annexure-15 to this writ petition. It is then submitted that in view of the judgment passed by a Division Bench of this Court in L.P.A. No.446 of 2019 dated 04.08.2023 paragraphs-36 and 37 of which reads as under:- “36. Considering the totality of the facts and circumstances of this case and the work assigned to Assistant Grade-I (D), in which the respondent was working at the relevant point of time, through the circular dated 30.10.1996, this Court has no doubt that the appellant was working in the supervisory capacity and was assigned the work of supervision and control over the Assistant Grade-II (D) and Assistant Grade-III (D) while performing their duties. Accordingly, this court is of the considered view that the respondent cannot said to be a workman under Section 2(s) of the aforesaid Act.

37. In view of the finding of this Court that the respondent was not a workman within the meaning of Section 2(s) of the aforesaid Act at the relevant point of time, this Court is of the considered view that the order dated 20.09.2016 deciding the preliminary issue as well as the impugned final award cannot be sustained in the eyes of law and accordingly, they are set-aside.” Wherein it has been held by the Hon’ble Division Bench of this Court that as the Assistant Grade-I (D) works in supervisory capacity and was assigned 2 W.P.(L) No.4527 of 2018 the work of supervision and control over the Assistant Grade-II (D) and Assistant Grade-III (D) while performing their duties, hence, the Assistant Grade-I (D) cannot be said to be a workman under Section 2 (s) of the Industrial Disputes Act, 1947.

4. It is next submitted that in view of the same as the sole respondent was not a workman, the Complaint Case No.3/2013 filed under Section 33 A of the Industrial Disputes Act, 1947 is not maintainable. Hence, it is submitted that as the Central Government Industrial Tribunal-I, Dhanbad was not having jurisdiction to entertain the complaint, therefore the entire award be set aside as even though the said tribunal was lacking the jurisdiction to entertain the said complaint yet having passed the said award; without jurisdiction.

5. Mr. Shailesh Kumar Singh- learned counsel for the respondent fairly submits that the Hon’ble Division Bench of this Court in L.P.A. No.446 of 2019 has held that the Assistant Grade-I (D) of the petitioner- Food Corporation of India is not a workman under Section 2 (s) of the Industrial Disputes Act, 1947 but it is submitted that an S.L.P. has been filed before the Hon’ble Supreme Court of India but the Hon’ble Supreme Court of India has not granted any stay of that judgment passed by the Division Bench of this Court in L.P.A. No.446 of 2019. It is next submitted that since at present in view of the judgment of the Hon’ble Division Bench in L.P.A. No.446 of 2019, the Central Government Industrial Tribunal-I, Dhanbad is not having the jurisdiction to entertain the complaint filed under Section 33 A of the Industrial Disputes Act, 1947 in respect of the respondent; the respondent being not a workman, the respondent be given the liberty to prefer a statutory review before the Chairman, Food Corporation of India. It is next submitted that since the respondent was pursuing the matter diligently before the wrong forum, hence, 3 W.P.(L) No.4527 of 2018 Section 14 of the Limitation Act saves the period of limitation for the said period.

6. To this prayer, learned counsel for the petitioner submits that the petitioner who was the opposite party No.2 in Complaint Case No.3/2013 before the Central Government Industrial Tribunal-I, Dhanbad; in its written statement has taken the plea that the respondent ought to have taken the recourse of statutory review but even knowing pretty well the provision of statutory review which has also been mentioned in the order dated 01.05.2013 passed by the Managing Director, Food Corporation of India, the respondent having not availed the same the prayer for filing the statutory review is barred by limitation.

7. Having heard the rival submissions made at the Bar and after going through the materials available in the record, this Court; in view of the judgment of the Hon’ble Division Bench of this Court in L.P.A. No.446 of 2019 wherein the Hon’ble Division Bench in no uncertain manner has held that the Assistant Grade-I (D) of the petitioner- Food Corporation of India is not a workman under Section 2 (s) of the Industrial Disputes Act, 1947. Hence, this Court has no hesitation in holding that the Central Government Industrial Tribunal-I, Dhanbad has no jurisdiction to entertain the Complaint No.3/2013 filed under Section 33 (A) of the Industrial Dispute Act, 1947 as the complainant before it was not a workman in terms of Section 2 (s) of the Industrial Dispute Act, 1947. Hence, the impugned award dated 15.01.2018 passed in Complaint Case No.3/2013 by the Central Government Industrial Tribunal-I, Dhanbad is without jurisdiction. Hence, the same is set aside.

8. Keeping in view the facts of the case, the respondent is accorded liberty to file a statutory review subject to the limitation to be decided by a competent 4 W.P.(L) No.4527 of 2018 authority against the appellate order passed by the Managing Director, Food Corporation of India.

10. This writ petition is disposed of accordingly. In view of disposal of the instant writ petition, Interlocutory Application No.1294 of 2019 is disposed of being infructuous.

11. Let the copy of this judgment be sent to the learned tribunal concerned, forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 13th of September, 2023 AFR/ Animesh 5