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PUNJAB & HARYANA HIGH COURT
R.S.Narula, J.
Goodlass Nerolac Paints Private Ltd
Versus
Chief Commissioner
Decided On : MAY 27, 1966
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 10(1)(D) - SECTION 2(OO) - SECTION 25F - DELHI SHOPS AND ESTABLISHMENTS ACT, 1954 - SECTION 30 - WORKMAN - RETRENCHMENT - TERMINATION OF SERVICE - JURISDICTION OF INDUSTRIAL TRIBUNAL - SCOPE OF REFERENCE - MALA FIDES - BURDEN OF PROOF - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - SECTION 2(OO) - DEFINITION OF RETRENCHMENT - SURPLUS STAFF OR ESTABLISHMENT.
Fact of the Case:
The management of Goodlass Nerolao Paints (Private), Ltd. (hereinafter referred to as the employer), filed a petition under Article 226 of the Constitution to quash the order of reference dated 3/9 August 1963, made by the Chief Commissioner, Delhi (respondent 1), under Sec.10 (1) (d) of the Industrial Disputes Act, 1947 (hereinafter called the Act), and to set aside by a writ in the nature of certiorari or by other appropriate direction the award of the industrial tribunal, Delhi (respondent 2), dated 30 August 1965, published in Delhi Gazette, dated 14 October 1965, directing reinstatement of Bansi Lal, respondent 3.
Finding of the Court:
1. The industrial tribunal had no jurisdiction to give findings about the rights of the contesting respondent as a salesman without first putting into issue, trying and deciding the question whether considering the duties and responsibilities of the contesting respondent in that capacity he was a "workman" within the meaning of the Act or not. 2. The termination of the service of the contesting respondent, in whatever capacity it may be treated, was bona fide and was in terms of, and in compliance with the conditions laid down in, Sub-section (1) of Sec.30 of the Delhi Act and could not consequently be interfered with by the industrial tribunal. 3. The termination of the services of the contesting respondent did not amount to retrenchment and no question of his claiming any compensation under Sec.25f of the Act can arise.
Issues: 1. Whether the industrial tribunal had jurisdiction to give findings about the rights of the contesting respondent as a salesman without first putting into issue, trying and deciding the question whether considering the duties and responsibilities of the contesting respondent in that capacity he was a "workman" within the meaning of the Act or not? 2. Whether the termination of the service of the contesting respondent, in whatever capacity it may be treated, was bona fide and was in terms of, and in compliance with the conditions laid down in, Sub-section (1) of Sec.30 of the Delhi Act and could not consequently be interfered with by the industrial tribunal? 3. Whether the termination of the services of the contesting respondent amounted to retrenchment and no question of his claiming any compensation under Sec.25f of the Act can arise?
Ratio Decidendi: 1. The industrial tribunal has no jurisdiction to give findings about the rights of the contesting respondent as a salesman without first putting into issue, trying and deciding the question whether considering the duties and responsibilities of the contesting respondent in that capacity he was a "workman" within the meaning of the Act or not. 2. The termination of the service of the contesting respondent, in whatever capacity it may be treated, was bona fide and was in terms of, and in compliance with the conditions laid down in, Sub-section (1) of Sec.30 of the Delhi Act and could not consequently be interfered with by the industrial tribunal. 3. The termination of the services of the contesting respondent did not amount to retrenchment and no question of his claiming any compensation under Sec.25f of the Act can arise.
Final Decision: Writ petition allowed. Impugned award of the industrial tribunal set aside.
R. S. Narula, J.
1. The management of Goodlass Nerolao Paints (Private), Ltd. (hereinafter referred to as the employer), has filed this petition under Article 226 of the Constitution to quash the order of reference dated 3/9 August 1963, made by the Chief Commissioner, Delhi (respondent 1), under Sec.10 (1) (d) of the Industrial Disputes Act, 1947 (hereinafter called the Act), and to set aside by a writ in the nature of certiorari or by other appropriate direction the award of the industrial tribunal, Delhi (respondent 2), dated 30 August 1965, published in Delhi Gazette, dated 14 October 1965, directing reinstatement of Bansi Lal, respondent 3.
2. The facts giving rise to the filing of the petition are these. Bansi Lal, respondent 3 (hereinafter called the contesting respondent), was employed as a salesman by the employer in April 1953. He was confirmed as such on 20 July 1953. It is claimed by the employer that in his capacity as a salesman the contesting respondent was not a workman within the meaning of that expression in the Act. According to the employer the services of the contesting respondent as a salesman were brought to an end with his consent in July 1961, and the employer decided to try him as a godown-keeper with effect from 20 July 1981. The employer has placed on record as Annexure I to the writ petition a copy of its letter of that date addressed to the contesting respondent reading as follows:
We refer to the discussions you have had with Sri Tirodkar and as mutually exchanged, we are prepared to allow you to work as a godown-keeper for a trial period of one year with effect from 20 July 1961, on a salary of Rs.145 per month plus current dearness allowance in relation to your salary. Should these arrangements be confirmed you will be placed in the grade of Rs.80-7-115-10-165 -E. B.-10-225. We wish to record that these alternative arrangements have been made only because your work as salesman was most unsatisfactory. As a godown-keeper you will be required to look after the work of the existing godowns.
3. According to the employer the arrangement was confirmed by the contesting respondent and he started working as a probationer godown-keepar on the basis of the abovesaid letter of appointment. This was followed by the employers letter, dated 26 July 1961 (Annexure J), wherein the contesting respondent was informed that his salary bad been fixed at Rs.155 per month and not Rs.145 per month with effect from 20 July 1961, the other terms and conditions of service remaining unaltered. After the receipt of this communication, the contesting respondent appears to have sent some letter, dated 21 August 1961, of which no copy has been produced before me by either party. But from its reply it appears that the contesting respondent protested against his being on probation as a godown-keeper and not being appointed as a permanent godown-keeper. A copy of the reply to that letter which was sent by the employer to the contesting respondent on 23 August 1961, has been produced with the writ petition (Annexure K ). In that letter it is reiterated that the contesting respondent had not come up to the employers requirements as a salesman and that instead of dispensing with his services altogether it was decided to consider the alternative proposition of offering him a job as the employers Delhi godown-keeper. Then follow the following paragraphs in the employers letter (Annexure K):
As the position now being offered to you is work to which you have not previously been accustomed and as you were unsuitable in your previous assignment as junior salesman, I think, we have every right to engage you on a years probation in a new appointment as a godown-keeper. The fact that you are a permanent employee of the company does not debar us from ascertaining your suitability in other sections of our organization after it has been found that your usefulness to the company has been wanting. This being so, you are fortunate in bein
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