JUDGMENT
D.K. Seth, J.
1. In this appeal three grounds have been taken. The first ground was that the Central Government is the appropriate Government and therefore, the reference made by the State Government was incompetent. The second ground was that the respondent was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and as such the learned Tribunal could not have assumed jurisdiction and therefore the award was a nullity and is of no effect. The third ground was that it was a discharge simpliciter without stigma in terms of the contract and as such it cannot be held to be an illegal termination without holding an enquiry.
2. Alternatively, it was argued that the fact finding body had undertaken an enquiry and the same should be equated with a full-fledged domestic enquiry.
3. The shares are held by the Union of India through the President. The policy decisions are taken in respect of the company by the Central Government, therefore, according to Mr. Chakraborty it comes within the definition of section 2(a)(1) of the Industrial Disputes Act, 1947 and as such the reference made by the State Government is incompetent.
4. The fact remains that though the company is registered under Section 617 of the Companies Act, yet it is a company, a distinct and separate juristic person from its shareholders. Therefore, it was rightly fond by the learned Single Judge that the holding of the shares by the Union of India would not make the company to be carried on by the Union of India or under the authority of Union of India. Taking policy decision of the Central Government or issuing instructions by the Ministry would not amount to carrying on an industry by or under the authority of the Central Government when it is registered as company, a separate and distinct juristic person from the Central Government and managed by its own management. Even if the management follows a policy decision of the Ministry even then it would not be an industry carrying on business under the authority of the Central Government in order to bring the company within the meaning of Sub-section 1(a) of Section 2 of the 1947 Act. We need not cite any decision to support the contention. The decision in Air India Statutory Corporation v. United Labour Union, , is wholly distinguishable in the circumstances of the case and the said principle would not apply having regard to the distinct features as are available from the materials placed before v. The decision dated 10th December, 1998 passed in W.P. 15379 (W) of 1998 passed by the learned Single Judge that in the case of the appellant herein would not be a binding precedent before us particularly in view of the fact the said decision did not decide the question having reference to the merits of the case. We are not in agreement with the said decision in view of distinguishable features that is being reflected before us from the materials on record. Therefore, this ground cannot be sustained. In our view, the decision of the learned Single Judge and that of the learned Tribunal are fully supported by the decision in which reliance was placed as is apparent from the judgment itself.
5. Admittedly, the workman was a pilot and he was asked to do some supervisory job. But no particulars have been produced before the learned Tribunal or before the learned Single Judge or before us to show that he was designated of job supervisory or managerial in nature. On the other hand the learned Tribunal had found that he used to do job in the Purchase Department in addition to the job of the pilot. Even if the workman performs some kind of supervisory job, even then the same cannot determine the character of the employment. It is the principal employment that would determine the characteristics. Admittedly, job of a pilot may be a skilled one but even then it is a job of a workman, which is his principal employment. Even if in addition he had performed some other job that would not be the determining factor. That too in the present case the learned Tribunal having found on fact that the workman had never discharged any work supervisory or managerial in nature. In the circumstances, as rightly pointed out by the learned Single Judge and held by the learned Tribunal, the employer had failed to prove that the workman was discharging any function in the nature of supervisory or managerial. In the circumstances, we do not find any reason on the basis of the materials on record, to pursue ourselves to hold that the conclusion arrived at by the learned Tribunal and the learned Single Judge to be perverse. Unless a finding of fact is held to be perverse, the Writ Court cannot interfere. In the circumstances, we do not find any merit on this point also.
6. So far as the question of termination is concerned, if the workman is a workman in that event a termination simpliciter would amount to a retrenchment under Section 25F which requires compliance of certain formalities. In the present case, nothing has been shown to us that these formalities were complied with. That apart, a fact finding enquiry was held in which the petitioner was alleged to have been found guilty. If it is taken that it was a termination simpliciter, in that event the termination is definitely a punishment in disguise. In case, fact finding body is held to be a domestic enquiry, in that event, there is nothing to show that a proper domestic enquiry was held against the workman giving him opportunity and finding that he was guilty of the charge. Such a decision cannot be taken in the absence of any averment that any chargesheet was issued against the workman and he was asked to show-cause. Therefore, the third point also cannot be sustained.
7. At this stage Mr. Chakraborty submits that the workman had occupied the quarter since 1989, namely, the year when he would have superannuated if his service was not terminated.
8. Therefore, the company is entitled to recover penal rent for the occupation of the house for the period of 121 months assessed at Rs. 4,71,900/- which the company should be allowed to deduct from the amount payable to the workman. Mr. Chakraborty further contends that a sum of Rs. 1 lakh was deposited with the learned Registrar of this Court since invested in Fixed Deposit scheme which matured into a sum of Rs. 4,39,739/-. This amount was allowed to be released by an order of this Court in favour of the workman on 21st of December, 1999 on condition that the workman shall furnish an undertaking that if he ultimately fails he would be liable to refund the amount with interest at the rate of 18% p.a. But the fact remains that this sum which matured at Rs. 4,39,739/- was fixed with interest payable on the sum of Rs. 1 lakh which the workman would have got by way of gratuity in 1989 at the time of superannuation, therefore, no allowance can be given on the accumulation of the interest of the said sum when it was released after a long time. It should represent the principal amount to satisfy the gratuity payable to the workman.
9. So far as the question of salary is concerned, Mr. Chakraborty submitted that the workman had made an application for salary for the period till superannuation after termination but when it was pointed out that he is gainfully employed, he did not press this application. But we are unable to look into this matter in the absence of any finding of this Court and the decision on this issue. Without any decision, we cannot hold simply because of the allegation made by the employer that the workman was gainfully employed after termination. Therefore, in our view, he would be entitled to the benefits in terms of the award.
10. Admittedly, the workman was not paid any amount despite award having been passed over a long period and that only in terms of an order of this Court passed on 21st December, 1999 he had got a sum of Rs. 4,39,739/- therefore, we cannot blame the workman if he had continued to occupy the quarter in the absence of any payment in terms of the award; but then, we also cannot hold so in view of the order dated 21st December, 1999 which did not make any provision with regard to the occupation of the quarter by the workman at which point of time the employer ought to have pressed over it. In the absence of anything provided in the said order dated 21st of December 1999, we cannot permit the employer to change penal rent from the workman for occupation of the quarter. However, the employer shall be entitled to charge normal rent for the entire period of occupation by the workman together with electricity charges which is assessed at Rs. 3,675/- in the calculation produced before us which is kept on record.
11. In the circumstances, the employer shall pay all the benefits arising out of the award within a period of three months from the date together with interest calculated from the date of superannuation till the date of payment at the rate of 6 per cent per annum simple. In default, the employer shall be liable to pay interest at the rate of 18% p.a. from the date of superannuation till the date of recovery through appropriate process. While making such payment the employer shall furnish a calculation to the workman.
12. In the circumstances, the order passed by the learned Single Judge and the award stands modified as indicated above.
13. The appeal is thus disposed of. There will be no order as to costs.
14. Xerox plain copy of the operative part of this order be given to the learned Counsel for the parties, duly countersigned by the Assistant Registrar (Court) on their usual undertaking.
Soumitra Pal, J.
I agree.
