Back
HIGH COURT OF CALCUTTA
D.K. Seth, J.
Life Insurance Corp. of India
vs.
Central Govt. Industrial Tribunal & Ors.
W.P. No. 2241 of 1999
Decided On : September 4, 2001
INDUSTRIAL DISPUTE - JURISDICTION - WORKMAN - APPOINTMENT - REGULARISATION - COMPROMISE - STAFF REGULATION - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(K) - SECTION 2(S) - LIFE INSURANCE CORPORATION OF INDIA (STAFF) REGULATION, 1960 - REGULATION 2 - REGULATION 7 - REGULATION 8.
Fact of the Case:
The petitioner, LIC, challenged an award passed by the Central Government Industrial Tribunal, Calcutta, in a reference under Section 2(k) of the Industrial Disputes Act, 1947. The workman, respondent No. 4, claimed to have been appointed as a peon but failed to prove it. The Tribunal found that he was employed as a 'coolie' or 'thelawala' on no working-no-pay basis, initially on the quantum of work done and then on daily rate. A dispute between the Union and the petitioner Corporation was compromised and a scheme for recruitment of badli and casual workers was implemented. The workman never applied for the same and had applied for enhancement of his rates even after the compromise. He was not a salaried employee and was not recruited through the Staff Regulation. The Tribunal found that he was a workman and granted him relief despite the finding that he was appointed as a 'coolie' or 'thelawala'.
Finding of the Court:
The Court held that the Tribunal erred in assuming jurisdiction in the absence of an industrial dispute within the meaning of Section 2(k) of the Act. The workman failed to establish his appointment or working as a peon and thus could not be considered a workman. The relationship of employer and employee, which is the foundation of an industrial dispute, was absent. The Tribunal's finding that the workman was employed as a 'coolie' or 'thelawala' was wholly perverse as there was no such post sanctioned in LIC and the workman had denied being appointed as such. The Court also held that the Tribunal could not make out an alternative or third case for the workman when it had never been pleaded or hinted at, and that the workman's case was not sponsored by the Union was immaterial since the finding of sponsorship could not advance his case.
Issues: 1. Whether the Tribunal had jurisdiction to entertain the reference in the absence of an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947? 2. Whether the workman was a workman within the meaning of Section 2(s) of the Act? 3. Whether the Tribunal could make out an alternative or third case for the workman when it had never been pleaded or hinted at? 4. Whether the workman's case was sponsored by the Union was material in determining the jurisdiction of the Tribunal?
Ratio Decidendi: 1. The existence of an industrial dispute is the basis upon which the jurisdiction of the Tribunal can be invoked or exercised. The absence of the relationship of employer and employee, which is the foundation of an industrial dispute, takes away the jurisdiction of the Tribunal to grant any relief. 2. A person claiming to be a workman must satisfy the condition of Section 2(s) of the Act. The dispute is limited to the persons mentioned in the definition of Section 2(k) of the Act. 3. The Tribunal cannot make out an alternative or third case for a party when it had never pleaded any alternative case nor had ever attempted to make out or even hinted at any alternative case. Neither, it can be so made out when the suggestion of the alternative case is categorically denied by the other party in the absence of any attempt on the part of the latter to hint at any such alternative case. 4. Sponsorship of a workman's case by a Union is immaterial in determining the jurisdiction of the Tribunal.
Final Decision: The Court quashed the award passed by the Tribunal and allowed the writ petition. The Court held that the petitioner, LIC, shall not be entitled to recover the amount paid to the workman as stay.
D.K. Seth, J.: The Award dated 27th of August, 1998 passed in Reference No.1 of 1992 by the learned Central Government Industrial Tribunal at Calcutta, has since been challenged. The learned counsel for the petitioner points out that in the facts and circumstances of this case, the Reference could not be maintained since the case of the workman was not espoused by an Union and as such it was not a dispute within the meaning of section 2(k) of the Industrial Disputes Act. Secondly, he contends that the respondent No.4 was not a workman and as such there cannot be said to be any dispute existing between the parties. At the same time, it was no a case under section 2(a) and thus no dispute can be raised. It was also contended that the ld. Tribunal having found that the workman had failed to prove that he was a peon which the workman had all throughout been claiming to be, still then the ld. Tribunal had granted the reliefs despite the finding that the workman had been appointed as 'Coolie' (porter) or 'Thelawala' (cart-pullar). Therefore, the reliefs could not have been granted. He also relied on several decisions in support of his contention. According to him, the finding is wholly perverse. Since the question goes to the root of jurisdiction, therefore, it is the jurisdictional fact which this court should examine as to whether the ld. Tribunal had jurisdiction to entertain the question. The learned counsel for the petitioner further points out that there was a settlement in a dispute between the workmen and the petitioner pursuant to which there was a scheme for recruitment of badli and casual workers, but the workman had never applied for the same. On the other hand, the workman himself had applied for enhancement of his rates even after the said dispute stood compromised. The compromise was also implemented but the workman had never applied thereunder. Therefore, he cannot come within the purview of the said provisions. That apart, there is a Recruitment Rules or Staff Regulation. The workman had never come through the staff regulation and therefore be cannot be absorbed.
2. Mr. Dasan, learned counsel appearing for the workman, on the other hand, has contended that this court sitting in writ jurisdiction cannot re-appreciate the finding of facts. According to him, there are materials to come to a decision or conclusion one way or the other and the ld. Tribunal having reached one conclusion, the same cannot be interfered with by this court. He then contends that this objection as to the maintainability of the reference was never taken either in the writ petition or any where else, neither there was any prayer for deciding this question as a preliminary issue. Therefore, this objection could not be raised at the hearing. He also points out that the petitioner's case is sponsored at least upto the conciliation proceedings and till the reference is made by the Union, therefore, the ground that was taken by the petitioner cannot be sustained. He also contends that since the workman was a casual labourer, therefore, there was a relation of employer and employee and as such the reference was maintainable. He has also pointed out that on the facts there are materials to show that the workman was working with the petitioner-Corporation for a long time and continuously which is of a perennial nature and as such workman should be absorbed and therefore non-absorption has given rise to the dispute which has been rightly allowed by the Tribunal.
3. Mr. Dasan further contends that since all these questions were raised before the Tribunal and the Tribunal had found on fact that respondent No.4 is a workman, therefore this Court cannot interfere with the finding of the ld.
Tribunal Mr. Dasan also relied on various decisions in support of his contention.
4. I have heard the submissions of the respective counsel at length. In order to appreciate the situation it would be beneficial to refer to the facts. It appears that the workman
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
