JUDGMENT
Bhaskar Bhattacharya, J.
1. These two mandamus appeals were heard together as points involved herein are almost similar.
2. We, however, propose to deliver separate judgment one after the other.
MAT No. 021 of 2005 in W. P. No. 008 of 2005
Sandhya Baul v. Director Panchayat and Anr.
3. This mandamus appeal is at the instance of the respondent No. 1 in a writ application filed by the Director of Panchayat and is directed against the order dated July 11, 2005 passed by a learned Judge of this Court thereby disposing of the said writ application under Article 226 of the Constitution of India against an award dated 25th March, 2004 in ID Case No. 11 of 2002.
4. The appellant herein was allegedly appointed and/or engaged with effect from 01st September, 1996 by the Pradhan of Basantipur Gram Panchayat to discharge the work of Gram Panchayat as a daily rated typist in the office of the Gram Panchayat, Basantipur, Middle Andaman. She continued there till 31st October, 2004. According to her, she along with two other daily rated workers were disengaged by the Pradhan without serving any notice and without making any payment in lieu of notice of termination as provided under Section 25F of the Industrial Disputes Act (hereinafter referred to as the Act). She moved before the Assistant Labour Commissioner, Rangat complaining the alleged illegal termination. The Assistant Labour Commissioner, Rangat initiated a conciliation proceeding and after hearing all the parties submitted a “failure report” to the Labour Secretary, Andaman & Nicobar Administration. On the basis of “such failure report”, the Lieutenant Governor, Andaman & Nicobar Islands, made a reference in terms of Sub-section (5) of Section 12 of the Act. The terms of reference are as follows:
“(i) Is a Gram Panchayat an Industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947?
(ii) Whether the Pradhan of Gram Panchayat who is an elected member for a fixed tenure can be termed to be an employer under Section 2(g) of Industrial Disputes Act, 1947?
(iii) Whether the appointments in question were made as per rule and proper and legal?
(iv) Whether the demand of Shri Mahadeb Bachar, Ex-daily rated peon Shri Smore Tutty ex-daily rated sweeper and Miss. Sandhya Baul ex-daily rated typist for their reinstatement in regular scale of pay with back wages against the termination of their service by the office of the Pradhan, Gram Panchayat, Basantipur is legal and justified? If so, what relief the aforesaid workmen are entitled to?
5. The Pradhan of the Gram Panchayat, Basantipur, though impleaded, did not appear in spite of service of summons and the Chief Secretary of the Andaman & Nicobar Administration was impleaded as the second party in the proceedings being the ID. Case No. 11 of 2002.
6. Ultimately, the learned Labour Court by the award dated 25th March, 2004 disposed of the proceeding by declaring that the termination of Miss. Sandhya Baul, the appellant herein, a former daily rated typist, was neither legal nor justified and that she was entitled to be reinstated in service with immediate effect without any back wages. It was further declared that Miss Baul should be given benefit of continuous service as if there had been no termination. The Lieutenant Governor published the said award vide notification dated 25th November, 2004.
7. Being dissatisfied, the respondent No. l filed a writ application before a learned Judge of this Court and by the order impugned herein, the learned Judge set aside the award and remanded the matter back to the Labour Court for fresh adjudication as per the terms of reference made before it.
8. It may not be out of place to mention here that before the learned Judge of this Court an application under Section 17B of the Act was filed by the appellant herein, but the learned Judge did not pass any order on such application before disposal of the matter.
9. Being dissatisfied, the appellant has come up with the present appeal.
10. Mr. Hemraj Bahadur, the learned Counsel appearing on behalf of the appellant, has, at the very outset, submitted before this Court that by the award impugned in the writ application, an order of reinstatement having been passed, without disposing of the application under Section 17B of the Act, the learned Judge could not allow the writ application.
11. Mr. Bahadur next contends that the writ application filed by the respondent No. l herein itself was not maintainable since the award had already been published in terms of Section 17 of the Act. According to Mr. Bahadur, once the Administration has decided to publish the award, such award cannot be challenged at the Instance of the employer before any forum.
12. Mr. Bahadur further criticized the order passed by the learned Single Judge on the ground that the question whether Gram Panchayat is an “industry” within the meaning of Section 2(j) of the Act having already been decided in a different writ application by this Court, there was no justification of remanding the matter back to the Labour Court for deciding that question. Mr. Bahadur further contends that in view of the provisions contained in the Act and the Andaman & Nicobar Islands (Panchayats) Regulations, 1994 vide Regulation 17, the Pradhan of the Gram Panchayat must be held to be employer and therefore, such question ought to have been answered by the learned Judge himself.
13. Mr. Bahadur further contends that there was no reason of setting aside the award on the question whether the appointment of the present appellant was in accordance with the rules. Mr. Bahadur points out that the learned Judge erroneously held that there was a definition of ’employed’ appearing in Section 2(s) of the Act or that the word ’employed’ used in the said section means a lawful employment. Mr. Bahadur contends that within the scope of the Act, once a person is found to be employed but has been terminated without giving notice, he is entitled to get an order of reinstatement. Mr. Bahadur, thus, prays for setting aside the order impugned.
14. Mr. S.K. Mandal, the learned Counsel appearing on behalf of the respondent No. l, has disputed the aforesaid contentions of Mr. Bahadur and has submitted that the learned Labour Court acted illegally in not answering the question No. 3, i.e, whether the appointment in question was made as per rules and was proper and legal. He further submits that it is the Director of Panchayat who should be held to be employer and not the Pradhan of the Gram Panchayat. Mr. Mandal further submits that the direction for reinstatement was improper in the absence of any answer to question No. 3 mentioned above. Mr. Mandal contends that the learned Labour Court wrongly refused to decide the issue No. 3 on the ground that such issue had become redundant as this Court in a different matter had found that a Gram Panchayat is an “Industry” and the Court itself adjudged the Pradhan to be “employer”. He, therefore, prays for dismissal of this appeal.
15. After hearing the learned Counsel for the parties and after going through the materials on record, we find substance in the preliminary objection raised by Mr. Bahadur that there being an order of reinstatement, the learned Single Judge ought to have passed an order under Section 17B of the Act before deciding the writ application on merit. It is now settled law that if an award of reinstatement is the subject-matter of challenge in any proceedings before it, this Court, before deciding such proceeding challenging the award, should pass an order in terms of Section 17B of the Act. In this case, the appellant has specifically mentioned before the learned Single Judge by affidavit that after the alleged termination, she was not employed elsewhere and the respondent herein did not dispute such fact. Therefore, this was a fit case where the learned Single Judge ought to have passed an order of subsistence allowance in terms of Section 17B of the Act at the rate last paid by the employer from the date of award till the disposal of the writ application. Since we are hearing an appeal against the order allowing the writ application which is in essence the continuation of the said proceeding, we propose to dispose of the said application by directing that the Pradhan of the Gram Panchayat should pay subsistence allowance to the appellant at the rate of wages last paid from the date of award till this day.
16. As regards the first issue referred to the learned Labour Court, we are of the opinion that in view of the decision of this Court in the case of Director of Panchayat v. Pankaj Banik and Ors., reported in ILR 2004 (8) A & N Series page 5, the Gram Panchayat should be held to be an “industry” within the meaning of Section 2(j) of the Act.
17. Similarly, as regards the other issue, whether the Pradhan is an employer, on a conjoint reading of Section 2(g) of the Act read with Regulation 17 of the A & N Islands (Panchayats) Regulation 1994, there is no other alternative but to conclude that the Pradhan is the employer of all lawful employees of the Panchayat. According to Regulation 17, the executive power of Gram Panchayat under the Regulation and the responsibility for due fulfilment of duties imposed on Gram Panchayat under the Regulation and for carrying out the resolution of Gram Panchayat shall vest in the Pradhan. Similarly, according to Section 2(g) of the Act, the term ’employer’ means in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the Department and in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority. It is however needless to mention that all the employees of the Panchayat should be appointed by the Panchayat through the Pradhan and not by the Pradhan in his personal capacity and such appointment should be made after complying with all other formalities required under law in accordance with the resolution of the Panchayat. Therefore, the Pradhan of the Gram Panchayat definitely comes with the purview of “employer” within the meaning of Section 2(g) of the Act in respect of all legally appointed employees. We therefore hold that the question No. 2, i.e. whether the Pradhan of a Gram Panchayat is an employer, should be answered in affirmative subject to the aforesaid observation.
18. So far as the question No. 3, i.e., whether the appointment of Miss. Baul was made as per rule and was proper and legal has not at all been answered by the learned Labour Court simply on the ground that as the Gram Panchayat is an industry and the Pradhan is an employer, such question is not required to be answered. We agree with the learned Single Judge that there has not been any adjudication on such question. Even though the Panchayat is an industry and Pradhan is the employer, if it appears that an appointment has been given not in compliance with the formalities required under law, such appointment cannot be said to be legal and in that event, the appellant cannot be said to be a workman so as to get the benefit of the reinstatement. Therefore, we are of the view that there has been no adjudication on the aforesaid question by the learned Labour Court and it was the duty of the learned Labour Court to specifically answer such issue referred to it on the basis of the materials placed before him. ,
19. As regards the question of reinstatement, we find substance in the contention of Mr. Mondal that the question of reinstatement in regular scale of pay with back wages against termination of service arises if the appointment of Miss. Baul is found to be legal. If the Pradhan without the authority of law permitted Miss. Baul to work, such appointment cannot confer any right upon Miss. Baul to get even back wages or other benefits under the Act. Therefore, the question of grant of benefit of reinstatement depends upon the answer on the issue No. 3, i.e. whether the appointment was proper and legal.
20. We find no substance in the contention of Mr. Bahadur that the award having been published in terms of Section 17 of the Act, the same cannot be challenged in a writ application. The embargo created under Section 17(2) of the Act does not stand in the way of invoking a writ jurisdiction and the word “Court” mentioned in that section does not include a High Court in exercise of power conferred under Articles 226/227 of the Constitution of India. The word “Court” according to the definition given in Section 2(f) of the Act means a Court of Inquiry constituted under the Act.
21. On consideration of entire materials on record, we are unable to agree with the learned Single Judge that all the four questions referred to the Labour Court are required to be decided afresh.
22. We, therefore, modify the order impugned by directing that there should be fresh adjudication on issues No. 3 and 4 mentioned above so far Miss Baul is concerned. The parties should be given liberty to adduce further evidence in support of their respective claim and the learned Labour Court will decide those questions afresh on the basis of the materials on record as well as the evidence that may be further adduced.
23. The Pradhan of the Panchayat, the respondent No. 2 herein, however, is directed to comply with our direction as regards payment of subsistence allowance in terms of Section 17B of the Act within one month from today. Such allowance should be equivalent to the wages last paid to Miss Baul from the date of award till today.
24. The appeal is disposed of with the above direction.
25. There will be, however, no order as to costs.
MAT No. 020 of 2005 in W. P. No. 050 of 2005
M. Anguswamy v. Panchayat Samiti, Rangat
26. This mandamus appeal is directed against an order dated July 11, 2005 passed by a learned Single Judge in W. P. No. 050 of 2005 thereby setting aside an award dated January 30,2004 passed by the Presiding Officer, Labour Court, Andaman and Nicobar Islands in ID. Case No 15 of 2004.
27. The points involved in this appeal are similar to those involved in the above matter with this exception that in this case, the respondent No. l was allegedly employed in the Panchayat Samiti, Rangat and not in the Gram Panchyat and was allegedly appointed not by the Pradhan of a Panchayat but by the Pramukh of the Panchayat Samity and he was allegedly appointed as daily rated clerk-cum-typist, The points of reference were as follows :
1. Whether the employment of Shri M. Anguswarny, as daily rated clerk-cum- typist in the office of the Executive Officer, Panchayat Samiti, Rangat is an employment in an industry as per the ID, Act, 1947?
2. If so, whether the demand of Shri M. Anguswamy, ex-daily rated clerk-cum-typist for his reinstatement in regular scale of pay with back wages against the termination of his service by the office of the Executive Officer, Pancyhayat Samiti, Rangat is legal and justified? If so, what relief the concerned workman is entitled to?
3. Whether Pramukh, Panchayat Samiti, Rangat is an employer as defined under Section 2(g) of the Act?
4. Whether before making employment, approval of the competent authority such as Secretary Panchayat or Director of Panchayat was obtained?
28. The learned Labour Court in this case also did not dispose of point No. 4 holding that the same was redundant after arriving at the conclusion that a Pramukh, Panchayat Samiti, is an “employer” as defined in Section 2(g) of the Act and that the Panchayat Samity is an “industry”.
29. The learned Single Judge disposed of the writ application against the order of the learned Labour Court in the same way he disposed of the other writ application being W. P.No. 008 of 2005.
30. After hearing the learned Counsel for the parties and after going through the definition of Panchayat Samiti appearing in Regulation 2(r) read with Regulation 113 thereof, we hold that the Pramukh of the Panchayat Samiti is the employer in respect of all the employees of the Panchayat Samiti, but employment should be given only after complying with the formalities required under law subject to the resolution of the Panchayat Samiti. We accordingly answer issue No. 3 above by holding that Pramukh, Panchayat Samiti, is the employer as defined in Section 2(g) of the Act subject to the aforesaid observation. Although Mr. Mondal placed before us a xerox copy of the notification dated January 31, 2001 issued by the Lieutenant Governor showing that a new department in the name of Panchayat Department has been established making the Director of Panchayat as the appointing authority, in our opinion, the same will not be applicable in these cases as appointments involved herein were allegedly given prior to coming into operation of this notification.
31. So far the issue No. 1 is concerned, we, for the same reason given in the above matter, hold that the Panchayat Samiti is an “industry”.
32. The answer to the issue No. 2, however, will depend upon answer on issue No. 4.
33. We, thus, dispose of this appeal by modifying the order passed by the learned Single Judge and directing the learned Labour Court to dispose of issue Nos. 2 and 4 on the basis of evidence already on record and further evidence as may be given by the parties. We, however, make it clear that while answering issue No. l above, we have not considered the legality of the employment of Shri M. Anguswamy as daily rated clerk-cum-typist. We have only held that the Panchayat Samiti, Rangat is an “industry” within the meaning of the Act.
34. In this case also, the Pramukh of the Panchayat Samiti will pay the subsistence allowance to the respondent No. 1 from the date of award till today at the rate of the wages last received by the respondent No. l within one month from today.
35. This mandamus appeal is also thus disposed of in terms of the aforesaid order.
36. No order as to costs.
Sankar Prasad Mitra, J.
37. I agree.