IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6094 of 2004
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Bimal Kumar Sinha Petitioner
Versus
1. The Sate of Jharkhand
2. M/s Schenck Jenson & Nicholson Ltd, Kolkata
3. Managing Director, M/s Schenck Jenson & Nicholson, Ranchi
4. Sr. Personnel & I.R. Schenck Jenson & Nicholson, Ranchi
5. Labour Commissioner, Dept. of Labour and Employment
Govt. of Jharkhand, Ranchi Respondents
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CORAM: HON'BLE MR. JUSTICE D.G.R. PATNAIK
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For the Petitioner: Mr. Rajiv Ranjan and Sanjeev Kumar Mishra, Advocates
For the State: Mr. Vivek Kumar Singh, JC to GP-II
For the Respondents 2 to 4: Mr. S.J. Roy, Advocate
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CAV ORDER
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Reserved On: 27.08.2009 Pronounced On: 28.08.2009
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18. 28.08.2009
Challenge in this writ application is to the order dated 30.04.2004, passed
by the Labour Court, Ranchi in B.S. Case No. 22 of 1999, whereby the petitioner’s claim
under section 26(2) of the Bihar Shops and Establishment Act, 1953 read with Rule 21 of
the Bihar Shops and Establishment Rules 1953 against the respondent establishment for
his reinstatement and for his payment of monetary compensation for the termination of
his service was rejected.
2. Heard learned counsel for the petitioner and learned counsel for the respondents.
3. The petitioner’s case is that he was initially appointed on 24.12.1987 on the post
of Assistant Foreman (Production) under the respondent no. 2 Company which on that
date, was functioning in the name and style of Jenson & Nicholson (I) Ltd.
Subsequently, a new company was formed under the name and style of Schenck
Jenson & Nicholson Ltd on and from 1.4.1996.
4. After the formation of the new company, by a notification dated 4.3.1996 issued
by the previous company, the petitioner’s services was transferred to the new company
with effect from 1.4.1996 on the same terms and conditions as was made applicable to
him under the former company. The transfer and posting of the petitioner with effect
from 1.4.1996 was confirmed by the Managing Director of the new Company
(Respondent No. 3) vide letter of confirmation dated 30.3.1996.
The petitioner’s contention is that though, he was appointed on the post Assistant
Foreman (Production), but by the nature of the job entrusted to him, he was essentially a
Store man and his duties were not connected in any manner with the manufacturing
process or with any subject matter relating to the manufacturing process or with any kind
of work connected with the manufacturing process.
5. While, he was discharging his duties satisfactorily, the respondent no. 2
terminated his service with effect from 30.4.1999 by issuing a letter by invoking the
condition of Clause-10 of the appointment letter dated 24.12.1987.
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6. Being aggrieved with the order of his termination, the petitioner along with two
other co-employees, whose services were similarly terminated, had approached the
Assistant Labour Commissioner, Ranchi on 4.5.1999 with a request to intervene in the
matter.
7. The Assistant Labour Commissioner, after considering the petitioner’s case,
issued a letter to the respondent no. 2 to withdraw the letter of termination on the ground
that such termination amounted to retrenchment.
8. The respondent no. 2 had refused to comply with the instruction of the Assistant
Labour Commissioner by stating that the petitioner being not a workman within the
meaning of section 2(s) of the Industrial Disputes Act, 1947, therefore, the provisions of
section 25n(2) of the Act was not applicable to the Establishment.
9. The matter was referred by the Assistant Labour Commissioner to the Deputy
Labour Commissioner vide order dated 22.5.1999 to conduct an inquiry and submit a
detailed report.
10. When the matter was still pending before the Assistant Labour Commissioner, the
petitioner choose to file his complaint before the court below under the provisions of
section 26(2) of the Bihar Shops and Establishment Act, challenging the order of his
termination.
11. Before the court below, the respondent Establishment contested the claim of the
petitioner inter-alia on the following grounds:
i. That the claim of the petitioner before the court below was not
maintainable on the ground that the factory premises of the
respondent Establishment being located beyond the precincts of
Ranchi Municipal Area, and the B.S.E. Act being not applicable,
the Labour Court cannot exercise its jurisdiction to entertain any
complaint under the provisions of Bihar Shops and Establishment
Act.
ii. Even otherwise, the complaint petition is fit to be rejected as the
complainant was appointed as managerial staff on the post of
Senior Assistant Foreman (Mechanical Production) in the Grade-II
and was engaged in the manufacturing process under the
respondents, as defined under section 2(1) of the Factories Act
under which Act, the respondent is registered and was granted
licence.
iii. That the complainant, upon his termination of his service, had left
his job after having received the final payments without any
objection and therefore, he is stopped from challenging the order
of his termination from service.
12. The learned court below, framed issues for determination in the following terms:
I. Whether the complainant is an employee within the
meaning of section 2(4) of the Bihar Shops and
3Establishment Act and Schedule I Item no. 5 of section
4(2)?
II. Whether Bihar Shops and Establishment Act extend
within the territory of Tupudana Industrial Area where
the factory is located? Whether Tupudana Industrial Area
is under Ranchi Municipal Corporation or not?
III. Whether the termination of services of the complainant is
illegal or not? Any other relief or reliefs the complainant
is entitled to?
13. On the issue as to whether the Bihar Shops and Establishment Act extend within
the territory of Tupudana Industrial Area where the factory is located and whether
Tupudana Industrial Area falls under Ranchi Municipal Corporation or not, the learned
court below after considering the evidences adduced by the parties, recorded its findings
that Tupudana area within which the respondent factory is located, does not fall within
the jurisdiction of the Ranchi Municipal Corporation and The Bihar Shops and
Establishment Act does not extend to such area, consequently, the court below did not
have jurisdiction to entertain any complaint under the provisions of the Bihar Shops and
Establishment Act against the respondent Establishment.
14. Besides its findings on the issue relating on the point of jurisdiction, the learned
court below has also recorded its findings on the other issues, namely, whether the
complainant is an employee within the meaning of section 2(4) of the Bihar Shops and
Establishment Act and Schedule I Item No. 5 of section 4(2) of the Act and has held that
there was sufficient material on record to show that the complainant was connected with
the manufacturing process and therefore, the provisions of Bihar Shops and
Establishment Act, was not attracted and as such, the petitioner’s complaint does not
come under the purview of the Bihar Shops and Establishment Act.
15. The petitioner assailed the impugned order mainly on the ground that the learned
court below has committed serious error by proceeding to decide on both the above
mentioned issues simultaneously. Learned counsel for the petitioner would explain that
having decided on the issues, that it has no jurisdiction to entertain the complaint of the
petitioner under the provisions of the Bihar Shops and Establishment Act, on the ground
that the respondent factory premises is located beyond the jurisdiction of Ranchi
Municipal Corporation and the Act does not extend to the area where the factory is
located, the learned court below ought not to have proceeded further to decide on the
issue as to whether the petitioner is a workman and employee under the Bihar Shops and
Establishment Act or not. Such a decision, according to the learned counsel, is nonest and
therefore, the Award of the court below is bad on both issues.
16. Per Contra, the respondents in their counter-affidavit would want to offer support
to the impugned order of the court below. Counsel for the respondent, by referring to the
evidences on record, would explain that by virtue of the nature of job rendered by the
petitioner, his was exclusively a supervisory job in Grade-II of the managerial cadre of
the respondent factory and that the learned court below has rightly considered these
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aspects and recorded its findings that the petitioner cannot claim any relief under the
provisions of Bihar Shops and Establishment Act.
17. Learned counsel, in course of argument, would however, find fault with the
findings of the court below on the issue relating to jurisdiction and want to inform that
there appears some error of record in as much as, the respondent factory is not located in
the Tupudana Industrial Area. Rather, it is located in the Tupudana Industrial Estate
which certainly falls within the jurisdiction of the Ranchi Municipal Corporation.
18. Having heard learned counsel for the parties, and having gone through the
impugned Award of the court below, I find force in the argument advanced by the learned
counsel for the petitioner.
19. Having recorded its findings that the respondent factory premises being located in
the Tupudana Industrial Area, does not fall within the jurisdiction of Ranchi Municipal
Corporation and therefore, the Bihar Shops and Establishment Act has no territorial
jurisdiction over the respondent factory and consequently, the complaint filed by the
petitioner under the aforesaid Act, cannot be entertained as being beyond the court’s
jurisdiction, the learned court below has obviously declared that it lacks authority to
entertain the petitioner’s complaint under the Bihar Shops and Establishment Act or to
decide on the merits of the petitioner’s case under the Act. Having recorded such finding,
the learned court below ought not to have proceeded to decide on the merits of the case
and on the issue as to whether the petitioner is a workman and employee under the Bihar
Shops and Establishment Act. Such decision is totally uncalled for and is redundant. The
decision on merits is nonest and is bad. It may also be noted, as rightly pointed out by the
learned counsel for the petitioner, the effect of such decision on merits would deprive the
petitioner to avail his remedy under the other laws and before other forums to which he
may be legitimately entitled.
20. In the light of the above discussions, and finding merit in this application, the
same is allowed to the extent that the decision of the court below, as recorded in the
impugned Award, on the merits of the case relating to the issue whether the petitioner is a
workman and employee under the Bihar Shops and Establishment Act, is quashed. Since
admittedly, the petitioner was employed under the respondents and his service was
terminated, as such, without going into the merits of the case or propriety of the order of
termination, and in the interest of justice, I direct the respondent company to pay the
petitioner his terminal dues, if not already paid to him, within one month from the date of
this order.
With these observations, this writ application is disposed of.
(D.G.R. Patnaik, J)
Ranjeet/A.F.R.