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2017 Supreme(Chh) 631
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
P. SAM KOSHY, J.
Mohan Jute Mill Limited, Raigarh, through the Managing Director, Mohan Jute Mill Limited - Petitioner
Versus
Ram Pratap Tiwari, S/o Shri Vishveshwar Tiwari - Respondent
WRIT PETITION (L) NO. 143 OF 2012
Decided On : 03-08-2017
For the Petitioner:Mr. Amrito Das, Advocate.
For the Respondent:Mr. S.P. Kale, Advocate.
Headnote:
C.G.I.R. Act - Section 31(3) - Assailing Order - Denies jurisdiction - Workman to discharge burden - Respondent in instant case was an employee of petitioner-establishment and that petitioner-establishment in between went into lock out and subsequently after a considerable period of time said establishment restarted and it is alleged that a notice was issued to respondent-employee by petitioner to rejoin establishment but respondent did not join and after some time when the respondent did go to join he was informed that the post on which he was working is no longer vacant and therefore he could not be given joining - petitioner-establishment holding that that since the designation on which the respondent was working was that of a supervisor and that the wages of respondent was also more than a month therefore he would not fall within the definition of an employee as is defined - Held, Basis of which existence or non-existence of a fact should be regarded as in existence or not in existence. If he succeeds qualitatively in leading to formation of opinion about existence of fact propounded and in reversing burden and letting the opponent to disprove what was proved by the party pleading a particular story - In view of aforesaid legal position coupled with fact that petitioner-establishment has not led any evidence to establish that nature of duties performed by respondent was such which was purely supervisory and he had a position of command in establishment with administrative functions only then he could have gone out of purview of definition of an employee - Designation given to a person by itself cannot be a guiding factor to decide whether he/she is an employee supervisor or a manager - It is ultimately nature of duties which would decide these aspects - Writ Petition Dismissed.
1. The present is a writ petition filed by the Petitioner assailing the order dated 11.5.2012 of the State Industrial Court, Chhattisgarh, Bilaspur Bench, in Civil Appeal No. 1/C.G.I.R.Act/A/II/2012.
2. Facts in nutshell are that the Respondent in the instant case was an employee of the petitioner-establishment and that the petitioner-establishment in between went into lock out and subsequently after a considerable period of time the said establishment restarted and it is alleged that a notice was issued to the respondent-employee by the petitioner to rejoin the establishment, but the respondent did not join and after some time when the respondent did go to join he was informed that the post on which he was working is no longer vacant and therefore he could not be given joining.
3. Assailing the said action on the part of the management in not granting joining to the respondent, he filed a case before the Labour Court, Raigarh, under Section 31(3) of the C.G.I.R. Act, where the case was registered as Civil Case No. 3/C.G.I.R./2010. The Labour Court vide its order dated 19.1.2012 went on to decide the case in favour of the petitioner-establishment holding that that since the designation on which the respondent was working was that of a supervisor and that the wages of the respondent was also more than Rs.1600/- a month therefore he would not fall within the definition of an employee as is defined under Section 2(13) of the C.G.I.R. Act. The Labour Court accordingly rejected the case of the respondent-employee holding that first he does not fall within the definition of an employee and the Labour Court went on to decide the case on merits and further reached to the conclusion that the respondent is not entitled for any relief.
4. This order dated 19.1.2012 of the Labour Court was subjected to appeal before the State Industrial Court, where the case was registered as Civil Appeal No. 1/C.G.I.R.Act/A/II/2012. The Industrial Court vide the impugned order has set aside the order of the Labour Court and has held that the action of the management in not permitting joining to the respondent was bad in law and illegal and thus stetting aside the order of the Labour Court, passed a direction against the petitioner-establishment for reinstating the respondent within 60 days with full back wages. It is this order of the Industrial Court which is under challenge in the instant petition.
5. According to Shri Amrito Das, learned Counsel appearing for the Petitioner, the order of the Industrial Court is bad inasmuch as at the first instance though it holds that the respondent does not fall within the definition of an employee under Section 2(13) of the C.G.I.R. Act, yet the Industrial Court has gone into the merits of the case and set aside the order of the Labour Court by granting the relief of reinstatement with back wages. According to Shri Das, once when the Industrial Court reaches to the conclusion that the respondent is not an employee under the provisions of the C.G.I.R. Act then for all practical purposes the Industrial Court could not have travelled beyond and decided the case on merits. According to him, the effect of holding that the respondent does not come within the purview of an employee under the definition of Section 2(13) of the C.G.I.R. Act means the provisions of the Act itself are not applicable upon the respondent and thus the Industrial Court is denuded of his powers under the said Act and therefore any direction given by the Court after holding that the respondent does not fall within the ambit of an employee is bad in law. He thus prayed for stetting aside of the order of the Industrial Court.
6. Opposing the petition, Shri S.P. Kale, learned Counsel appearing for the Respondent, submits that the allegations made by the learned Counsel for the Petitioner are totally misconceived and baseless for the reason that the Industrial Court does not at any place hold that the respondent does not fall within the purview of an
