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2006 Supreme(Cal) 192
High Court Of Calcutta
PINAKI CHANDRA GHOSH, TAPAN KUMAR DUTT
SUBIR GUHATHAKURTA - Appellant
Versus
JOHNSON AND JOHNSON LTD. - Respondent
A. P. O. 197 Of 2005
Decided On : 03/29/2006
AMARESH RAY, ARIJIT BANERJI, ARUNAVA GHOSH, PARTHA SARATHI SENGUPTA
The onus lies on the employer to prove that an employee is not a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947.
Headnote:
WORKMAN - MANAGERIAL CADRE - JURISDICTION - JUDICIAL REVIEW - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(S) - Whether the appellant, a former employee of the respondent company, was a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947, and thus entitled to the protection of the Act.
Fact of the Case:
Appellant, initially appointed as a Medical Service Representative (MSR), was promoted to various positions, including Zonal Manager, within the respondent company. Following allegations of fictitious expense claims, his services were terminated. He challenged the termination before the Labour Tribunal, which held that he was a 'workman' and entitled to reinstatement. The company challenged this order before the High Court, which set aside the Tribunal's order on the ground of perversity.
Finding of the Court:
The High Court erred in setting aside the Tribunal's order without providing specific reasons for finding it perverse. The Tribunal's conclusion that the appellant was a 'workman' was based on the evidence and did not suffer from any perversity.
Issues: 1. Whether the appellant was a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947. 2. Whether the Tribunal erred in holding that the appellant was a 'workman'. 3. Whether the High Court erred in setting aside the Tribunal's order without providing specific reasons.
Ratio Decidendi: 1. The onus lies on the employer to prove that an employee is not a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947. 2. The Tribunal's finding that the appellant was a 'workman' was based on the evidence on record and did not suffer from any perversity. 3. The High Court erred in setting aside the Tribunal's order without providing specific reasons for finding it perverse.
Final Decision: The appeal is allowed. The High Court's order setting aside the Tribunal's award is set aside, and the Tribunal's award is restored.
( 1 ) THIS appeal is arising out of an order dated 6th january. 2005 whereby the Hon'ble First Court was pleased to set aside the order and/or Judgment passed by the learned Tribunal.
( 2 ) FACTS of the case briefly are as follows: appellant was appointed by the respondent company as a Medical service Representative (hereinafter referred to as MSR) on probation at a monthly salary of Rs. 250/ -. On 27th June, 1973 such appointment was confirmed by the company (respondent No. 1) and subsequent thereto appellant was promoted as Field Sales Officers on or about 24th december, 1981 and thereafter on 1st January, 1986 promoted to the post of Sales Trainee Officer. On or about January 1, 1988 he was promoted to the post of District Manager in the Junior Management staff Cadre. Subsequent thereto, he was promoted to the post of Zonal manager with effect from 1st October, 1990. It further appears that on 1st April, 1994 respondent by virtue of a Scheme of Amalgamation sanctioned by the Bombay High Court amalgamated with a company, which is a subsidiary company Ethinor Limited and the appellant became the employee of the respondent company with effect from 1st april, 1994 and thereafter he was acting as the District Manager and zonal Manager of the respondent company.
( 3 ) IN or about June. 1996 appellant had submitted reports of working with certain MSRs and on that account claimed re-imbursement of fictitious expenses. On 9th July, 1996 a letter was issued by the then sales Manager of the respondent A. K. Sikdar and the appellant did not reply to the same. Thereafter on 23rd August, 1996 the then Corporate employees' Relation Manager wrote a letter to the appellant asking him to appear before him on 30th August, 1996 at Bombay Office for his explanation to the charge made against him. On 30th August, 1996 appellant duly appeared and did not make any attempt to refute the charge against him. On 19th September, 1996 service of the appellant was terminated with effect from 19th September, 1996 after paying him three months salary in lieu of notice as per terms of Contract of employment.
( 4 ) APPELLANT took recourse to the provisions of the Industrial Disputes act, 1947 (hereinafter referred to as the said Act) and finally by an order no. 1627-I. R. dated 24th November, 1997 Labour Department, government of West Bengal referred dispute to the Third Industrial tribunal for adjudication. Appellant duly filed its statement before the learned Tribunal claiming an award directing the respondent company to reinstate him in service with full back wages and other benefits. The Company (respondent) duly filed its written statement and thereafter, evidences were adduced by the parties before the learned tribunal and learned Tribunal on 29th August, 2003 published the award.
( 5 ) THE Learned Tribunal came to conclusion that Sri Subir guhathakurta, appellant herein, falls within the definition of the workman under section 2 (s) of the said Act and also held that the reference is maintainable in law issues referred before the learned tribunal are that (a) whether the termination of service of Sri Subir guhathakurta with effect from 19th September, 1996 is justified? and (b) to what relief, if any, is he entitled?
( 6 ) IT appears that the learned Tribunal after hearing the parties came to the conclusion that the appellant was illegally terminated from service compliance with the provisions of the said Act. Learned Tribunal also held that the order of termination is unjustified. Learned Tribunal further came to the conclusion that Sri Guhathakurta, appellant herein, had been able to establish his case and on the other hand the employer, respondent herein, had failed to discharge its onus that Subir guhathakurta was working in managerial or supervisory capacity n the company. It is also held that Sri Guhathakurta is entitled to all reliefs claimed and is entitled to be reinstated in service with full back wages and other consequ
