The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 24351 of 2022 Arvind Kumar Sahu …. Petitioner -versus- Government of Odisha, Labour and E.S.I. Department and others …. Opposite Parties Advocates appeared in the case: For petitioner - Mr. Pramod Kishore Chand, Advocate For Opp. Parties - Mr. A.K. Sharma, Addl. Govt. Advocate Mr. S. Dash, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE M.S. SAHOO J U D G M E N T ---------------------------------------------------------------------------------------------- Dates of Hearing : 7th December, 2023 and 30th January, 2024 Date of Judgment : 30th January, 2024 ---------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1.
Legal Reasoning
Mr. Chand, learned advocate appears on behalf of petitioner and submits, his client cannot be said to be the management. Pointing out from cause title in the claim petition he submits, inspite of it brought to notice of the labour Court, no amendment was made for Page 1 of 9 // 2 // correctly describing the hotel, alleged to be the management. As such impugned award dated 16th April, 2022 be set aside on that ground alone. 2. Opposite party no.3 is not a workman. Again drawing attention to the claim petition he submits, said opposite party himself admitted that he was promoted to be receptionist manager. Without prejudice, his third point that said opposite party had not been in continuous service. His other point is, no industrial dispute was or could be raised without said opposite party first approaching the management. There was no industrial dispute since said opposite party never approached his employer. 3. Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of opposite party nos. 1 and 2. Mr. Dash, learned advocate appears on behalf of opposite party no.3. 4. Mr. Chand relies on letter dated 31st May, 2019 written by opposite party no.3 to the Assistant Labour Officer. Paragraph 6 from said letter is reproduced below. “6. It is quite strange if I had misbehaved my staff, how could I manage to work for long 14 years, and how could the M.D. engaged me for 14 years with all W.P.(C) no.24351 of 2022 Page 2 of 9 // 3 // confidence including giving me all the work and responsibility of Hotel Sai International like the correspondence of electrification, attend to disconnection disputes and thereafter the connection dealing with case matter under authorization, Fire safety work, billing and cash transactions including engaging me in deals of 18 lakhs 11 thousand for exchange of Black and old money to make it new through my hands at the time of demonetization Nov’2016.?” (emphasis supplied) In response Mr. Dash refers to letter dated 21st May, 2019 addressed by the hotel to the Assistant Labour Officer. A passage in relied upon paragraph is reproduced below. “The Hotel industry is not in a good financial condition. However the management tried its best to keep the Hotel running. To bring the Hotel into viable condition the management took a decision to bring down the manpower. So the complainant and one Accountant had to face termination at first instance. The service of the complainant was terminated on 22.04.2018 by giving one month salary i.e. for the month of May 2018 i.e. for one month notice period and he was asked to collect retrenchment benefit from the Accounts department. But the complainant refused to receive the termination order W.P.(C) no.24351 of 2022 Page 3 of 9 // 4 // and also did not turn up to receive the retrenchment compensation. … … …” Mr. Dash also relies on said letter dated 31st May, 2019, paragraph 5 reproduced below. “5. That I am a workman u/s 2(s) of the Industrial Disputes Act, 1947 as I have been appointed as Cashier in the year 2005, but no power control or supervision of any staff as a master and no workman below the staff position in the Hotel. I never attended any management meetings, I was not having any power to sanction leave to anybody in the hotel or supervising anybody.” 5. Mr. Dash relies on judgments of the Supreme Court. i) Syed Yakoob v. K. S. Radhakrishnan, reported in AIR 1964 SC 477, paragraphs 7 and 8 (Manupatra print). He submits, therein contained is declaration of law regarding limits of certiorari jurisdiction of the writ Court. ii) National Engineering Industries Ltd. v. Kishan Bhageria, reported in AIR 1988 SC 329 paragraph 7 (Manupatra print). Reliance on this decision is that when question whether a person was performing supervisory or managerial work is to be decided, the correct principle is to be born in mind. The principle is, W.P.(C) no.24351 of 2022 Page 4 of 9 // 5 // one must look into the main work and that must be found out on the main duties. A supervisor is one who could bind the company to take some kind of decision on behalf of it. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting is not a supervisor. 6. In the hearing on 7th December, 2023 Court had pointed out it had noticed from the claim petition cause title and paragraph 3, the management had been described as the hotel. True it is that in the cause title, first part, managing director of the hotel is mentioned but person holding the position is not only managing director but thereby also principal officer of the corporation and could have a proceeding initiated against the corporation through him as provided in order XXIX, Code of Civil Procedure, 1908. Secondly, the contention regarding opposite party no.3 not being a workman has to be examined in light of paragraph-10 in the claim petition and finding in impugned award. Lastly, contention of the dispute not being an industrial dispute to be examined in light of jurisdiction of the labour Court having been invoked under section 2-A(2) in Industrial Disputes Act, 1947. Such a dispute can only be made on a workman directly making application to, inter alia, the labour Court for adjudication after expiry of 45 days from the date he has made application to the conciliation officer. W.P.(C) no.24351 of 2022 Page 5 of 9 // 6 // Today no argument was made on behalf of petitioner regarding aforesaid last point. 7. In impugned order point taken by the management, of opposite party no.3 not being a workman, was dealt with simply from stand point of him having had been engaged in a supervisory capacity in drawing wages exceeding ₹10,000/- per month. The evidence relied upon by opposite party no.3 and acted upon is said letter dated 21st May, 2019 written by the management. A passage from the paragraph relied upon has been reproduced above. We reproduce the preceding paragraph from said letter. “The present management has taken over M/s. Hotel Sai International Pvt. Ltd from the previous management by way of sale. Mr. Srinivas Garadia being one of the employees of the old management approached us for engagement and the present management taking his past experience under previous management into consideration appointed him in the post of manager in the front office to supervise the work of front office assistances. Initially the complaint was very sincere but gradually his sincerity was deteriorated and he showed indifferent / rough behavior towards his subordinates.” W.P.(C) no.24351 of 2022 Page 6 of 9 (emphasis supplied) // 7 // 8. For purpose of answering the issue on whether or not opposite party no.3 is a workman, the labour Court misdirected itself in appreciating the issue to be whether opposite party no.3 was engaged in supervisory capacity, without looking into the main work done or responsibilities discharged. The exception relied upon by petitioner- management is that opposite party no.3 was employed mainly in a managerial or administrative capacity, to not be a workman under definitions section 2(s). We find opposite party no.3 himself said about his functions. Those functions were not supervisory in nature. Said letter dated 21st May, 2019, relied upon by him, cannot be treated to be evidence because it was by the purchaser management, who was relying upon what was held out by said opposite party. In the circumstances, description of functions discharged by opposite party no.3, as said by him in his letter dated 31st May, 2019 was the evidence to be relied upon. More so because said letter dated 31st May, 2019 was written by opposite party no.3 in response, wherein he had asserted his position in paragraph 5 and described his functions in paragraph 6. 9. In Syed Yakoob (supra) by relied upon paragraphs the Supreme Court said that in its opinion, in regard to a finding of fact recorded by the tribunal a writ of certiorari can be issued if it is shown W.P.(C) no.24351 of 2022 Page 7 of 9 // 8 // that in recording said finding the tribunal had erroneously refused to admit admissible and material evidence or had admitted inadmissible evidence, which influenced impugned finding. Similarly, if a finding of fact is based on no evidence that would be recorded as an error of law, which can be corrected by a writ of certiorari. The Court went on to express its opinion that it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors, which can be appropriately described as an error of law apparent on the face of the record. In this case we find omission to rely on best evidence. Relied upon evidence was evidence tendered by the new management. It could not have been relied upon at all because the new management or any person in it could not depose as a witness on what went before. Best evidence was before the tribunal in form of the workman’s own evidence by his said letter dated 31st May, 2019, which we have quoted above. In the circumstances, it amounts to an error of law apparent on face of impugned award. 10. The decision in National Engineering Industries Ltd. (supra) was where the Supreme Court said, to answer or decide the question of fact regarding whether a person was performing supervisory or managerial work, the correct principle is to be borne in mind. A supervisor is one who could bind the company to take some kind of W.P.(C) no.24351 of 2022 Page 8 of 9 // 9 // decision on behalf of the company. Perusal of our above quoted evidence of the workman would show that he had discharged responsibilities to, inter alia, attend disconnection disputes, billing and cash transactions. We have no doubt in our minds that discharge of such responsibilities bound the management to decisions taken by opposite party no.3, on its behalf. 11. In view of aforesaid, finding in impugned award regarding opposite party no.3 being a workman within meaning of definitions section 2(s) is perverse as not based on the evidence. Impugned award is set aside and quashed. 12.
Decision
The writ petition is allowed and disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 31-Jan-2024 19:25:04 W.P.(C) no.24351 of 2022 Page 9 of 9