TARACHEM LABORATORIES Vs. PRESIDING OFFICER LABOUR COURT

JUDGEMENT

(1.) Dispute involved in these three writ petitions is between common parties, namely, management of M/s Tarachem Laboratories, Jaipur and workman S.K. Nagesh and, therefore, they were all clubbed and heard together and are being decided by this common order.

(2.) Genesis of dispute lies in the initiation of proceedings before Labour Court, Jaipur by Notification dated 28.02.1979 making thereby reference of an industrial dispute as to validity of removal of workman S.K. Nagesh. M/s Tarachem Laboratories (for short, 'the management') in Writ Petition No.605/1996 has challenged order of Labour Court, Jaipur, dated 13.08.1984 by which Shri S.K. Nagesh was held to be 'workman' within meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, 'the ID Act'). Also under challenge in this writ petition is final award passed by Labour Court, Jaipur, dated 24.01.1995 declaring retrenchment of workman S.K. Nagesh to be illegal and holding him entitled to reinstatement with continuity of service, however, restricting payment of back wages to lump-sum amount of Rs.1.5 lac. Other two Writ Petitions are off-suit of the said award. Writ Petition No.4495/2003 was filed by the management challenging order dated 18.12.2001 passed by Prescribed Authority under Payment of Wages Act, 1936, Jaipur City, Jaipur, directing payment of consequential benefits to workman S.K. Nagesh. Writ Petition No.1100/2005 has been filed by workman S.K. Nagesh challenging order dated 04.03.2004 passed by Additional Civil Judge (Junior Division) No.8, Jaipur City, Jaipur, rejecting thereby his application seeking issuance of warrant of attachment and recovery of fine and, subsequent order dated 19.06.2004 of Judge, Special Court, (Fake Currency Note Cases) Jaipur City, Jaipur, dismissing revision petition filed thereSBCW605/ 1996 against. Since order passed by Payment of Wages Authority, which is under challenge in writ petition No.4495/2003, sought to implement award of Labour Court and when operation and implementation of award was stayed in first and second writ petitions, application of workman for issuing warrant of attachment and imposition of fine was rejected, therefore decision in first of these writ petitions on merits would obviate necessity of dealing with other two writ petitions on merits. Shri S.K. Nagesh was appointed as a chemist with establishment of management on 06.08.1972. On request of management, Drug Controller of State Government, vide order dated 17.05.1973, approved his name as manufacturing chemist competent to supervise manufacturing of pharmaceutical products. Management however suddenly terminated his services by order dated 23.05.1977 making it effective from 22.05.1977. An industrial dispute was thereafter raised at the instance of workman, which was later on referred by appropriate Government for adjudication to Labour Court, vide notification dated 28.02.1979. Management raised objection about maintainability of proceedings before Labour Court asserting that S.K. Nagesh, being chief chemist, was not a workman in the meaning of Section 2(s) of the ID Act. Labour Court decided this as preliminary issue and, by impugned order dated 13.08.1984, held that S.K. Nagesh was a workman. Management filed writ petition against said order before this Court. A Division Bench of this Court, while deciding Writ Petition No.987/1985, observed that correctness of findings of Labour Court that S.K. Nagesh is workman, can be questioned by the management while challenging final award, if eventually passed against it. It was observed that decision in said writ petition would not create any bar for management to raise this issue subsequently. Labour Court, after evidence was adduced by both parties and arguments were made, ultimately passed award dated 24.01.1995 declaring removal of workman as illegal in the terms indicated above.

(3.) Shri R.K. Kala, learned counsel for the management, has argued that main function of Shri S.K. Nagesh was to discharge his duties as per rules framed under the Drugs and Cosmetics Act, 1940, viz., to supervise manufacturing of pharmaceutical products. No factory product was allowed to go out without his permission. He was the only authorized chief chemist of factory and it was his duty to issue gate passes. He being a qualified chemist was approved as such by Drug Controller because manufacturing license was granted and renewed to authorized chemist on that basis inasmuch as his name was indicated in the license itself issued by Drug Controller. He was empowered to act as production manager, whose work was almost administrative and supervisory in nature. He never did any manual, skilled or clerical work. In fact, he was overall in-charge of manufacturing unit of the management. No other employee with the management was senior or superior to him in the sphere of his duties, rather they were all working under his control and supervision. It was he who used to prescribe various drug components for manufacturing of parental medicines according to standardization approved by Drug Controller. If any manufactured item was found substandard, he could, at his own level, get the same destroyed without permission of the management. It was he who used to get the analytical report from approved laboratories and thereafter sent the products to various customers. In fact, he was negligent in discharge of his duties and allowed defective and substandard products to go out of factory. Management received number of complaints from customers regarding vitamin-B complex injunction leading to losses of Rs.65,000/- to the management. Since S.K. Nagesh was not workman within meaning of Section 2(s) of the ID Act, the management decided to remove him from service by a simple order and therefore his services were terminated by order dated 22.05.1977. Shri R.K. Kala, learned counsel for management, further argued that termination of S.K. Nagesh did not attach any stigma and, since he was not a workman, compliance of Section 25-F of the ID Act was not necessary. Learned Labour Court has erred in law in holding that S.K. Nagesh was a workman. It has not correctly evaluated the evidence produced on behalf of management. As per affidavits and statements of management witnesses, S.K. Nagesh was the only approved chemist. Another Assistant Chemist working under him was not approved. Shri S.K. Nagesh was also empowered to act as production manager whose work was administrative and supervisory in nature. He never did any manual, skilled, unskilled, technical or clerical work. It was he who used to issue gate pass for allowing exit of manufactured drugs out of factory. Learned counsel also referred to affidavit/statement of another witness Bhanwar Lal, an employee of the management, who stated that S.K. Nagesh never did any manual, clerical or technical work. He did not himself make any components for making medicines but was rather helped by assistant chemist. He was getting highest monthly salary of Rs.1400/- from management. Shri S.K. Nagesh was supervisor under whom this witness was working.