- (1.) In this writ petition the petitioner No. 1, a company incorporated under the Companies Act, 1956 and the petitioner No: 2, its Director, have challenged the reference dated 7th March, 2002 holding that industrial dispute had arisen between the petitioner No. 1 and the respondent No. 2 and also the award dated 26th February, 2003 passed by the learned INdustrial Tribunal.
(2.) In short, the facts stated in the petition are that the respondent No. 2 at the time of the application for a job with the writ petitioner No. 1 had submitted a resume stating that he had the experience of a Sales Executive for the promotion of Water Treatment Chemicals and he was rendering technical services. Thereafter, by virtue of a formal appointment letter dated 24th June, 1997, from 2nd July, 1997 the respondent No.2 was hired for six months on probation in A-3 category. Since his work was unsatisfactory, in January, 1998 the probation period was extended by three months. IN April, 1998 the respondent No. 2 in "Probationer Self Appraisal" Form stated that as his assignment was promotion and sales and was rendering technical services to the customers, he needed business management training. According to the petitioner, this constituted an acknowledgement by the respondent No. 2 himself that his work was managerial/supervisory in nature and thus, he could not be a workman within the definition of the INdustrial Disputes Act, 1947 (for short "the Act"). It has been stated that in April, 1998, the service of the respondent No.2 was confirmed. With the passage of time, the respondent No.2 by a Special Board resolution passed by the petitioner No. 1 was authorised on behalf of the petitioner No. 1 to sign its bank accounts, cheques, bills of exchange and promissory notes. This indicated that the work of the respondent No. 2 was managerial/supervisory in nature. During the period-of service, the respondent No. 2 addressed letters to SAIL which also indicated that he was handling sales promotional activities independently and was supervising sales promotion. Moreover, A- 3 category where the respondent No. 2 was employed was purely a managerial post. It has been stated that the respondent No. 2 signed letters on behalf of the petitioner/ company and ensured regulation of expenses. However, as the work of the respondent No. 2 was found unsatisfactory, he . was notified about his termination of service and was offered compensation. Being aggrieved by the termination, the petitioner raised a dispute before the Labour Commissioner, West Bengal. The Assistant Labour Commissioner, West Bengal, by a letter dated 1st February, 2001 requested the petitioner No. 1 to submit its comments. IN reply, the petitioner No. 1 by letter dated 20th February, 2001, requested the Labour Commissioner, West Bengal to close the proceedings as the respondent No. 2 had not been illegally terminated since he was discharging managerial functions. During the month of September, 2001 the petitioner received the notice of hearing from the office of the Conciliation Officer and the Assistant Labour Commissioner, West Bengal. By a letter dated 9th/18th October, 2001, the petitioner No. 1 intimated the Conciliation Officer that by no stretch of imagination the respondent No. 2 fell under the category of workman as envisaged under the Act and before the proceeding further with the conciliation, the preliminary issue should be decided first. However, the State by letter dated 7th March, 2002 intimated that an industrial dispute had arisen between the petitioner No. 1 and the respondent No. 2 and the said dispute had been referred to the Tribunal. Thereafter, the petitioners received the summons dated 27th March, 2002 issued by the 7th INdustrial Tribunal, West Bengal requiring the petitioner No. 1 to depute a representative to attend the hearing relating to the reference arising out of the Government order. Being aggrieved by the order dated 7th March, 2002 and the summons dated 27th March, 2002 the petitioner instituted the proceedings under Article 226 of the Constitution of INdia being W.P.No.757 of 2002 which was disposed of, by an order dated 25th April, 2002 granting liberty to the petitioner/employer to raise the question whether the respondent No. 2 was a workman before the Tribunal and if such issue was raised, the Tribunal was directed to decide it as the first issue along with the other issues. Thereafter, by a letter dated 27th April, 2002 the order passed by the High Court was communicated to the Tribunal and request was made to treat the question whether the respondent No. 2 was a workman within the meaning of section 2(s) of the Act as the first issue. Before the Tribunal written submission was filed by the workman. The petitioner No. 1 filed its reply. Hearing was granted. Thereafter, award dated 26th February, 2003 was passed which is under challenge. Learned Advocate appearing on behalf of the petitioner has submitted that the Tribunal proceeded in total disregard of the order dated 25th April, 2002 passed by the High Court as it had refused to frame any issue whether as the first issue or otherwise regarding the status of the respondent No. 2. Submission is that the Tribunal proceeded on an erroneous basis in not considering the documents filed on behalf of the petitioner No. 1 and in refusing to exercise the jurisdiction vested in it by law and, therefore, acted in error of jurisdiction. Referring to the documents including the "Probationer Self Appraisal" Form submission is that it was a clear acknowledgment by the respondent No. 2 himself that his work was managerial/supervisory in nature. Moreover, that the work done by the respondent No. 2 was in the managerial/supervisory category is borne out by the fact that he was authorised to sign its bank accounts, cheques, bills of exchange and promissory notes. Besides, the letters addressed by the respondent No. 2 to SAIL demonstrate that he was handling independently sales promotional activities, which was not the Job of a workman. Submission is since it is an established proposition of law that in a proceeding before the Tribunal strict proof of a document in accordance with the provisions of the Evidence Act is not required and since the workman in his reply did not dispute the documents, the question of formally proving the documents did not arise. Moreover, A3 the category in which the respondent No. 2 was appointed was purely a managerial post. Submission is that ignoring the evidence on record and the deposition tendered by the respondent No. 2, the Tribunal had passed the impugned award holding the respondent No. 2 as a workman and, thus, it is perverse. Learned Advocate appearing on behalf of the respondent No. 2 relying on the affidavit-in-opposition has submitted that as he was subject to the standing orders and was directed to work under the directions of the superiors and might have been called upon to work at any time on piece rate as evident from the terms and conditions in the appointment letter, it is evident that the nature of job and status enjoyed was purely that of a workman. Submission is that during his service tenure he got the benefits and bonus at the rate applicable to all other clerical staff and workmen. He had rendered his service under the specific instruction from his superiors and had no subordinate staff to supervise. Moreover, in the letter of the termination, he was offered retrenchment compensation as offered to a workman in terms of section 2(a) of the Act. Therefore, according to him, the award passed by the Tribunal was proper.
(3.) The questions, which arise for consideration, are i) whether in the absence of formally framing the issue- "whether Shri Subrata Sengupta is a workman within the meaning of section 2(s) of the Industrial Disputes Act"- as the first issue, renders the award bad ? and if not, ii) whether on the basis of materials on record, the Tribunal was justified in holding that the said respondent was a 'Workman' under section 2(s) of the Act and the action of the petitioner No. 1 in terminating the services of the respondent No. 2 was bad and illegal. Admittedly, the High Court by its order dated 25th April, 2002 had granted liberty to the petitioner No. 1 to raise the issue before the learned Tribunal whether the respondent No. 2 was a workman. If the petitioner/ employer raised the said question, which it did by letter dated 27th April, 2002, it was directed that it should be decided as the first question. However, as evident from the award under challenge, two issues - A) "Whether the termination of Sri Subrata Sengupta w.e.f. 20.11.2000 is justified?" and B) "What relief, if any, he is entitled to ?," were considered for adjudication. Therefore, would the award be rendered nugatory since the issue "Whether Sri Subrata Sengupta is the workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947" which the Tribunal pursuant to the order of the High Court was requested to decide as first, issue, was not framed? Since perusing the award, I find that the issue whether the respondent No. 2 was a workman or not was considered, in my view, only because the said issue was not formally framed would not render the award nugatory,;