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HIGH COURT OF JUDICATURE AT MADRAS
SATISH K. AGNIHOTRI & M. VENUGOPAL, JJ.
The Management of Tata Consultancy Services Limited, represented by the Vice President-Human Resources – Appellant
Versus
Selvinth Gnanesh Joshua & Another – Respondents
W.A. No. 99 of 2015 & M.P. No. 1 of 2015
Decided On : 03-03-2015
Industrial Disputes Act, 1947 - Section 2-A - Air Force Act, 1950 - Tamil Nadu Industrial Disputes Rules, 1958 - Rule 39 - Constitution of India, 1950 - Article 226 - Termination from service – Employment and service - Post of Assistant Consultant - Case of first respondent before Writ Court was that he joined appellant management as Assistant Systems Engineer - He was promoted as IT Analyst – Thereafter further promotion was given to post of Assistant Consultant - Job of first respondent was technical in nature involving maintenance of large databases – Thus first respondent is a workman as defined under Section 2(s) of I.D. Act - It was further averred that appellant had decided to terminate service workers and to engage Assistant Consultants - Appellant comes within definition of industry within meaning of Section 2(j) of I.D. Act - Services of first respondent have been removed in violation of provisions of Section 25 of I.D. Act without following principles of last come first go - It was further submitted that salary of first respondent was protected under Section 33 of I.D. Act - There was no grievance of non-action or wrong action by Conciliation Officer in writ petition - Writ Court ought to have restrained itself from considering issue and passing an order - In such view of matter court are of considered opinion that Single Judge has over-stepped in passing order to maintain status quo without referring matter back to authority wherein dispute was pending consideration - Last issue that arises for court consideration is whether writ petition was maintainable as pleaded by Senior Counsel appearing for appellant firstly at stage when first respondent without waiting for statutory period of two weeks or further time extended with consent of parties has approached this Court under Article 226 of Constitution of India and secondly relief sought by first respondent seeking a direction is against appellant a private party - On a perusal of relief sought in the writ petition, it appears that the relief is in two-fold. Firstly, a mandamus is sought to the Conciliation Officer to conciliate and decide question with regard to status of first respondent and secondly a direction to allow him to continue in employment with appellant - First respondent has made a reference for conciliation and on same day has come up with instant writ petition – Thus writ petition ought not to have been entertained without knowing steps taken by Conciliation Officer - At that stage there was no cause or cause of action which impelled first respondent to take recourse to writ jurisdiction under Article 226 of Constitution of India - Contention of appellant with regard to maintainability of writ petition against appellant a private party predicated on ground that appellant was not performing a public function and as such no writ petition is maintainable is not necessary to be decided in facts of case at this juncture leaving question of law open to be decided in an appropriate case - Writ petition is dismissed
Satish K. Agnihotri, J.
1. The instant intra-court appeal arises from the order dated 21.01.2015 passed in W.P.No.1336 of 2015, whereunder, the second respondent herein / Labour Officer-III (Conciliation Officer) was directed to conciliate and decide the question with regard to the status of the writ petitioner /first respondent herein as to whether the writ petitioner is a workman as per the Industrial Disputes Act, 1947 (for short “the I.D. Act”) and also whether the second respondent / appellant herein is an industry as per the Act, within a period of two weeks. It was further directed that until then, the writ petitioner can be allowed to continue in employment with the second respondent /appellant herein.
2. For the sake of brevity and convenience, the parties are referred to as per their rank in the writ appeal.
3. The facts in nutshell leading to filing of the writ petition are that the first respondent/employee, while working as Project Manager, claiming to be a workman within the definition of Section 2(s) of the I.D. Act, preferred a dispute under Section 2-A of the I.D. Act before the Labour Officer-III (Conciliation Officer), stating therein that a dispute has arisen on account of the order of termination from service dated 22.12.2014. It was also stated in the application that the first respondent's last drawn monthly wage was Rs.73,011/-, on 19.01.2015. On the same day, the first respondent came up with the instant writ petition under Article 226 of the Constitution of India, seeking an order / direction or writ directing the Labour Officer-III (Conciliation Officer) to commence the conciliation proceedings forthwith and also a direction to the appellant / management not to give affect to the order of termination during the pendency of the conciliation proceedings.
4. The learned Single Judge disposed of the writ petition as aforestated.
5. The case of the first respondent before the Writ Court was that he joined the appellant/management on 15.09.2005 as Assistant Systems Engineer. In the year 2007, he was promoted as IT Analyst. Thereafter, in 2011, further promotion was given to the post of Assistant Consultant. The job of the first respondent was technical in nature involving maintenance of large databases. Thus, the first respondent is a workman as defined under Section 2(s) of the I.D. Act. It was further averred that the appellant had decided to terminate the service of 25,000 workers and to engage 55,000 Assistant Consultants. The appellant comes within the definition of “industry” within the meaning of Section 2(j) of the I.D. Act. The services of the first respondent have been removed in violation of the provisions of Section 25 of the I.D. Act without following the principles of last come first go. It was further submitted that the salary of the first respondent was protected under Section 33 of the I.D. Act.
6. On the other hand, the appellant, being the second respondent therein, adverted to the pleadings of the employee stating therein that the first respondent employee was in managerial cadre and as such, he was not a workman within the definition of the I.D. Act. A copy of the alleged dispute raised before the Conciliation Officer was not served on the management. The writ petition was not maintainable against the private party and also the Writ Court ought to have dismissed the writ petition on the ground that without waiting for the statutory period available to the Conciliation Officer for completion of the conciliation proceedings, the writ petition has been filed.
7. The learned Writ Court held that the dispute with regard to the status of the employee as to whether he was a workman under the provisions of the I.D. Act may be decided by the Conciliation Officer and also, it was directed to maintain status quo as on date of filing of the writ petition. Further direction was issued to continue the employment of the first respondent employee with the appellant. Being aggrieved, the ins
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