He relies on judgment of the Supreme Court in H.R. Adyanthaya v. Sandoz
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11908 of 2016 Novartis India Ltd. …. Petitioner Bichimaya Mishra and another …. Opp. Parties -versus- Learned advocates appeared in the case: For Petitioner For Opp. Parties : : Mr. S.S. Das, Sr. Advocate Mr. D.P. Nanda, Sr. Advocate (for O.P. no.1) Mr. A.K. Pati, ASC (for O.P. no.2) CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- J U D G M E N T Dates of hearing: 10th November, 2023, 17th November, 2023, 24th June, Date of Judgment: 27th August, 2024 2024 and 27th August, 2024. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ARINDAM SINHA, J.
Legal Reasoning
1. Mr. Das, learned senior advocate appears on behalf of petitioner- management. He submits, impugned is award dated 8th April, 2016 made by the Labour Court directing reinstatement with 50% back wages. The Page 1 of 11 Labour Court directed reinstatement on purportedly finding retrenchment, without dealing with objection raised by his client and recorded in impugned order that opposite party no.1 is not „workman‟ within meaning of section 2(s) in Industrial Disputes Act, 1947. He demonstrates from impugned award, at the end of paragraph-3 there is clear record of the contention of his client that opposite party no.1 is not a workman. Without prejudice Mr. Das submits, otherwise the award is a nullity as passed by the Labour Court because retrenchment is a matter that must be dealt with by the Tribunal under entry-10 in the third schedule. 2. He relies on judgment of the Supreme Court in H.R. Adyanthaya v. Sandoz (India) Ltd., reported in (1994) 5 SCC 737, inter alia, paragraphs 29, 33 and 34. He submits, the Supreme Court made an analysis on interpreting applicability of Industrial Disputes Act, 1947 to sales promotion employees after enactment of Sales Promotion Employees (Conditions of Service) Act, 1976 and particularly after amendment thereto in year, 1987. Declaration of law in the judgment was that it is only the weaker section of sales promotion employees, who were covered by the Act of 1947. Opposite party no.1 was a medical representative getting remuneration of more than Rs.10,000/- per month. In the circumstances, he was offered ex-gratia package as suggested by the Union. Opposite party did not accept it and raised purported industrial dispute. It culminated in Page 2 of 11 W.P.(C) no.11908 of 2016 impugned award dated 8th April, 2016. He then relies on another judgment of the Supreme Court in Hussain Mithu Mhasvadkar v. Bombay Iron and Steel reported in AIR 2001 SC 3290, paragraph-5. By said judgment law declared was, issue of claiming to be workman is to be decided first. He seeks interference for impugned award to be set aside and quashed. 3. Mr. Nanda, learned senior advocate appears on behalf of opposite party no.1 (workman) and Mr. Pati, learned advocate, Additional Standing Counsel for opposite party no.2. 4. On query from Court Mr. Nanda draws attention to schedule in the reference. It is reproduced below. “SCHEDULE Whether the action of the management of M/s. Novartis India Ltd., Pharmaceutical Division, Sandoz House, 7th Floor, Shiv Sagar Estate, Dr. Annie Besant Road, Worli, Mumbai-400018 in terminating the services of Sri Bichimaya Mishra, w.e.f. 30.12.2013 is legal and/or justified ? If not, what relief Sri Mishra is entitled to?” 5. He relies on judgment of the Supreme Court in Secretary Tea Association v. Ajit Kumar Barat, reported in AIR 2000 SC 915. Paragraph-9 is reproduced below. “9. Before making a reference under Section 10 of the Act the appropriate Government has to form an opinion whether an W.P.(C) no.11908 of 2016 Page 3 of 11 employee is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended.” He submits, the appropriate government made the reference on duly forming opinion that his client is a workman. He also relies on view taken by Division Bench, in which one of us was party (Arindam Sinha, J.). It was on judgment dated 19th December, 2023 in W.P.(C) no. 40518 of 2023 (M/s. Sanofi India Ltd., Mumbai v Sanofi Employees and Allied Workers Union, Ludiana and others) for proposition that a medical representative is a workman. 6. Mr. Nanda further relies on Sultan Singh v. State of Haryana and another, reported in (1996) 2 SCC 66, paragraph-4 reproduced below. “4. A conjoint reading, therefore, would yield to the conclusion that on making an application for reference, it would be open to the State Government to form an opinion whether industrial dispute exists or is apprehended and then either to make a reference to the appropriate authorities or refuse to make the reference. Only on rejection thereof, the order needs to be communicated to the applicant. Nonetheless the order is only an administrative order and not a quasi- judicial order. When it rejects, it records reasons as indicated in sub-section (5) of Section 12 of the Act. The appropriate Government is entitled to go into the question whether an industrial dispute exists or is apprehended. It would be only a subjective satisfaction on the basis of the material on record. W.P.(C) no.11908 of 2016 Page 4 of 11 Being an administrative order no lis is involved. Thereby there is no need to issue any notice to the employer nor to hear the employer before making a reference or refusing to make a reference. Sub-section (5) of Section 12 of the Act does not enjoin the appropriate Government to record reasons for making reference under Section 10(1). It enjoins to record reasons only when it refuses to make a reference.” (emphasis supplied) 7. The Supreme Court said that an order of reference is an administrative order, not requiring, inter alia, hearing to be given. In the circumstances, schedule to a reference order made without opportunity of hearing, being in the realm of administration and said to be not even a quasi judicial order, cannot bind petitioner-management, as urged by opposite party (workman), who says that he is a workman as found so by the appropriate government. It cannot be said that subsequent judgment of the Supreme Court in Ajit Kumar Barat (supra) was in effect overruling Sultan Singh (supra). Ajit Kumar Barat (supra) does not say so and neither is it in conflict with Sultan Singh (supra). In the circumstances, the judgments are of no aid to opposite party-workman. 8. During course of hearing we had drawn attention of the parties to judgment dated 8th August, 2023 made by a Bench, in which one of us was party (Arindam Sinha, J.), dealing with W.P. (C) No.8797 of 2017 W.P.(C) no.11908 of 2016 Page 5 of 11 (Kallamudin Khan v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar and others). This is because schedule of reference in that case was similar inasmuch as it said, action of the management refusing employment instead of regularizing after more than 8 years of continuous service had been rendered, whether was legal and justified. Management in that case had earlier challenged the order of reference because it implied that opposite party was a workman. The earlier challenge was dealt with by coordinate Bench on judgment dated 20th April, 2011 in W.P.(C) No.8569 of 2006 (Indian Oil Corporation Ltd. v. Union of India and others). We reproduce below paragraph-8 from the judgment. “8. As could be seen from the pleadings and the failure report submitted by the Assistant Labour Commissioner, the termination of service was done without following the provision of Section 25-F and the conciliation having failed and considering the failure report the appropriate Government exercised its power under section 10 and made the reference to the Industrial Tribunal for adjudication of the existing industrial/Labour Court dispute between the parties. Therefore, the points of dispute formulated in the Schedule is perfectly legal and valid and the appropriate Government is competent to make the reference. Whether it is an industrial dispute or not is a fact to be ascertained by the W.P.(C) no.11908 of 2016 Page 6 of 11 Tribunal/Labour Court in the enquiry required to be conducted under the I.D. Act.” (emphasis supplied) 9. The Labour Court by last sentence in paragraph-3 in impugned award recorded a contention of petitioner-management that the second party (workman) is not coming under definition of „workman‟ as defined under section 2(s). Hence, he is not entitled to any relief. Having done that, neither issue was framed nor the contention dealt with. 10. We do see similarity in schedule of reference in Kallamudin Khan (supra) and this case. We respectfully agree with view taken by coordinate Bench in Indian Oil Corporation Ltd. (supra), wherein it was said that whether it is an industrial dispute or not is a fact to be ascertained by the Tribunal/Labour Court in the enquiry required to be conducted under the Act. In impugned award, contention on this question of fact was raised and recorded by the Labour Court. It was a contention relevant to the reference. However, as aforesaid, it was not dealt with. Mr. Nanda submits, the two issues framed were without objection from petitioner. It is estopped from now pressing the contention. 11. There is no operation of estoppel against the law. The law is that a relevant contention made in a proceeding must be adjudicated. Framing of issues is a procedural aspect in adjudication. Omission to urge framing of W.P.(C) no.11908 of 2016 Page 7 of 11 the issue, in context of record of the contention in the impugned award itself, points at omission of the Labour Court as well. Issues arise when pleadings are at variance. Here, the contention was specifically recorded by the Labour Court. Yet, omission to frame issue. It thus points towards non-application of mind by the Labour Court, irrespective of issues framed on suggestion of parties or by itself. 12. On our having found there were omissions by the Labour Court in
Decision
making impugned award, we set aside the same and restore the reference. In such view of things, other judgments relied upon need not be commented upon by us. Mr. Nanda submits, there be direction for up-to- date payment on the section 17-B application. Mr. Das opposes the submission on no consideration of his client‟s contention that opposite party no.1 is not a workman, to attract enforcement of the provision for relief. He points out further, the writ petition has been pending since year 2016 and substantial amount has already been paid. He reiterates his submission earlier made. We reproduce below a passage from paragraph-3 of order dated 10th November, 2023, made in recording the submission. “3… … … Opposite party no.1 was a medical representative getting remuneration of more than Rs.10,000/- per month. In the circumstances, he was offered ex-gratia package as suggested by the Union. Opposite party did not accept it and raised purported industrial dispute. It culminated in impugned W.P.(C) no.11908 of 2016 Page 8 of 11 award dated 8th April, 2016. His client presented the writ petition on 12th July, 2016, after which it remained pending for adjudication. Opposite party no.1 made successive applications under section 17-B and has thereby obtained substantial amount of money of his client.” In the circumstances, we direct that the Labour Court will expeditiously deal with the reference on restoration. Mr. Nanda submits, at least there be direction for the arrears on the relief to be deposited in the Labour Court pending adjudication on restoration. In event the adjudication goes against the management, there can then be direction for the relief to be disbursed to his client. 13. On behalf of petitioner reliance was placed on Hussain Mithu Mhasvadkar (supra). We reproduce below a passage from paragraph-5. “5. On careful consideration of the respective submissions of the learned counsel on either side, we are of the view that in a case of the nature where the Labour Court as well as the High Court entertained doubts the status of the appellant as a workman within the meaning of S.2(s) of the I.D. Act, instead of embarking upon an adjudication in the first instance as to whether the respondent Board is an industry or not so as to attract the provision if Industrial Dispute Act ought to have refrained from doing so and taken up the question about the status of the applicant for adjudication at the threshold and if only the finding recorded was against the appellant W.P.(C) no.11908 of 2016 Page 9 of 11 refrained from adjudicating on the larger issue affecting the various kinds of other employees, as to the character of the Board, as an industry or not. The larger issue should have been entertained for consideration only in a case where it is absolutely necessary and not when the claim before it could have been disposed of otherwise without going into the nature and character of the Undertaking itself. … … …” (emphasis supplied) The contention of opposite party no.1 not being a workman did not receive adjudication in the Labour Court though it should have been decided as the first issue. In the circumstances, we make no further order on the pending application under section 17-B. This will also be in line with order of the Supreme Court in Hindustan Zinc Ltd. v. Industrial Tribunal, reported in (2000) 10 SCC 211. 14. Before parting with the case we must deal with contention of petitioner that impugned award is a nullity as passed by the Labour Court because retrenchment is a matter that must be dealt with by the Tribunal under entry-10 in the 3rd schedule. Section 7-A empowers the appropriate Government to constitute one or more Industrial Tribunals for adjudication of industrial disputes including relating to any specified matter in the second schedule. The second schedule by entry-3 includes, inter alia, dismissal and reinstatement as matters within the jurisdiction of Labour Courts, duly constituted by the appropriate government under section 7. In Page 10 of 11 W.P.(C) no.11908 of 2016 the circumstances, the objection taken for the first time before us need not detain us any further. 15. The writ petition is disposed of. ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Radha/Gs Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: OHC Date: 29-Aug-2024 17:25:57 W.P.(C) no.11908 of 2016 Page 11 of 11