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IN THE HIGH COURT OF BOMBAY
F.I. REBELLO, J.
Cricket Club of India and Another – Appellants
Versus
Baljit Shyam and Another – Respondents
O.O.C.J.W.P. No. 1758 of 1997
Decided On : 13-02-1998
UNFAIR LABOUR PRACTICE - TERMINATION OF EMPLOYMENT - WORKMAN STATUS - SUPERVISORY DUTIES - ESTOPPEL - MODEL STANDING ORDERS - REINSTATEMENT WITH BACK WAGES. 1. The termination of employment of an employee without holding an inquiry or complying with the provisions of the Industrial Disputes Act, 1947, constitutes an unfair labour practice under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act). 2. The determination of whether an employee is a workman within the meaning of the Industrial Disputes Act, 1947, depends on the nature of the duties performed by the employee, and not merely on the designation or salary. 3. An employer who treats an employee as a workman by making the Standing Orders and Service Conditions applicable to the employee is estopped from denying the workman status of the employee. 4. The Model Standing Orders framed under the Bombay Rules for Clerical and Technical Staff apply to an establishment that does not have certified Standing Orders. 5. A permanent workman cannot be terminated without complying with the provisions of the Standing Orders or the statutory provisions of Section 25-F of the Industrial Disputes Act, 1947. 6. If an employer commits an unfair labour practice by terminating the employment of an employee without following the due process, the Industrial Court can direct the employer to reinstate the employee with back wages and other consequential benefits.
Fact of the Case:
The petitioner, a club, terminated the services of the respondent, a housekeeper, without holding an inquiry or complying with the provisions of the Industrial Disputes Act, 1947. The respondent filed a complaint with the Labour Court alleging an unfair labour practice under the MRTU and PULP Act. The Labour Court dismissed the complaint, holding that the respondent was not a workman within the meaning of the Industrial Disputes Act. The respondent challenged the order in the Industrial Court, which set aside the Labour Court's order and held that the respondent was a workman and that the termination of her services was an unfair labour practice.
Finding of the Court:
The Industrial Court was correct in holding that the respondent was a workman and that the termination of her services was an unfair labour practice. The Labour Court erred in not considering the letter of appointment, the Service Regulations, and the Model Standing Orders, which all indicated that the respondent was a workman. The employer was estopped from denying the workman status of the respondent because it had treated her as a workman by making the Standing Orders and Service Conditions applicable to her.
Issues: 1. Whether the respondent was a workman within the meaning of the Industrial Disputes Act, 1947. 2. Whether the termination of the respondent's services was an unfair labour practice under the MRTU and PULP Act.
Ratio Decidendi: 1. The determination of whether an employee is a workman within the meaning of the Industrial Disputes Act, 1947, depends on the nature of the duties performed by the employee, and not merely on the designation or salary. 2. An employer who treats an employee as a workman by making the Standing Orders and Service Conditions applicable to the employee is estopped from denying the workman status of the employee. 3. The Model Standing Orders framed under the Bombay Rules for Clerical and Technical Staff apply to an establishment that does not have certified Standing Orders. 4. A permanent workman cannot be terminated without complying with the provisions of the Standing Orders or the statutory provisions of Section 25-F of the Industrial Disputes Act, 1947.
Final Decision: The petition was dismissed. The order of the Industrial Court was upheld.
JUDGMENT :
F.I. REBELLO, J.
1. Rule. Respondents waive service. Petition heard forthwith.
The petitioners herein have approached this Court in exercise or its jurisdiction under Article 226 of the Constitution of India, to impugn the order dated September 25, 1997 passed by the Industrial Court, Mumbai in Revision Application (ULP) No. 28 of 1997 in Complaint (ULP) No.205 of 1995. By the impugned order the Industrial Court, Mumbai, was pleased to set aside the order of the Labour Court dated November 30, 1996 dismissing the complaint tiled by the Respondent No. 1 against the petitioners under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act for the sake of brevity). The Respondent No. 1 approached the Labour Court alleging an act of unfair labour practice on the part of the petitioners herein, in terminating the services without holding an enquiry or complying with the other provisions of the Industrial Disputes Act, 1947. It is therefore, alleged that the petitioners had committed unfair labour practice under Items 1 (a), (b), (d) and (f) of Schedule IV of MRTU and PULP Act, 1971. It is an admitted position that no inquiry has been conducted against the Respondent No. 1 who initially joined the services of the petitioners on 3 May 19, 1993 as a House Keeper. She was thereafter confirmed with effect from August 20, 1993 and her services were terminated on May 8, 1995. It is also an admitted position that no statutory dues u/s 25-F of the Industrial Disputes Act was paid to the Respondent No, 1 at the time of termination of her services.
2. The petitioners raised a preliminary issue; contending that the Respondent No. 1 was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act and as such the complaint was not maintainable.
3. In the written statement the petitioners contended that the duties of the Respondent No. 1 was entirely of a Supervisory nature as she was responsible for looking after the up-keep and maintenance of Club House; to take all necessary steps required to be taken to avoid complaints on that score, to train the hamals working under the House Keeper for the upkeep and maintenance of the rooms and various other duties as of a Supervisor. The petitioners thereafter denied that the services of the Respondent No. 1 were illegally terminated. It is pointed out that the termination was simple termination and the reasons were spelt out by the petitioners in the letter itself. It is pointed out that the termination was without any aspersion and/or allegation of whatsoever nature.
4. Evidence was led, both on behalf of the petitioner and the respondent. Documentary evidence was also produced including the letter of appointment as House Keeper and the list showing the duties of House Keeper.
5. On the material before it, the Labour Court was pleased to dismiss the complaint on the ground that the Respondent No. 1 was not a workman within the meaning of Section 2(s) of the I.D. Act. While so holding the Labour Court in para 26 arrived at a conclusion that the Respondent No. 1 was acting as supervisor. The Labour Court further held that the Respondent No. 1 had no power to take decisions and to look into the Managerial aspects of the C.C.I. The Labour Court thereafter proceeded to conclude that the Respondent No. 1 had no administrative and managerial powers, her main duties were supervisory house keeper as she was drawing more than Rs.1,600/- and as such not a workman within the meaning of Section 2(s) of the I.D. Act. After referring to various cases the Labour Court thereafter again in para 29 proceeded to hold that the respondent was mainly discharging administrative power of recommending leave of the employees working under her. Though she had no power to take decisions she was mainly employed to do supervisory and administrative duties and as such the complainant was doing mainly supervisory work and for that reaso
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