ORDER
1. The petitioner has sought for issuance of writ of certiorari to quash the award of the first respondent, dated April 10, 1996, made in I.D. No. 391 of 1994.
2. The petitioner-company had two units at Tirupur, namely, 'A' Mill Spinning and 'B' Mill Weaving and the Company has been declared as a Sick Industrial Company. According to the petitioner, the second respondent was engaged as a building cooly in the building department depending on the availability of the work and the usual practice prevailing in the mill is that the building cooly will he deputed to do all miscellaneous jobs depending upon the exigencies of the work. The petitioner has further stated that the second respondent was deputed for doing security work in the co-operative stores of the mill on February 16, 1994 and February 17, 1994. It is further stated that on February 16, 1994, at about 12.35 P.M. in the night, when the Assistant Security Officer went on has usual round, he found the second respondent sleeping in the verandah without closing the gate and he warned the second respondent for sleeping while on duty and again on February 17, 1994, at about 1.25 A.M., the second respondent was found sleeping on duty and the Assistant Security Officer directed him to meet the General Manager next day and the second respondent did not report for work on February 18, 1994 and unauthorisedly remained absent till March 30, 1994. It is further stated by the petitioner that the second respondent sent a letter, dated March 30, 1994, falsely alleging that on February 17, 1994, when he was performing the duty as watchman, around 3.00 A.M., the security officer came and shouted at him to open the door and before he could open the gate, the security officer forcibly pushed the gate due to which he sustained bleeding injury on his nose. The second respondent is said to have falsely alleged that he had obtained certificate from E.S.I. Hospital and when he sought to submit the same at the mill gate, it was refused. The second respondent wrote to the petitioner for providing employment and the petitioner by letter, dated April 1, 1994, pointed out that he was unauthorisedly absent from February 18, 1994, without any prior intimation and the certificate produced by him for the period of his absence does not cover the entire period, but however, taking a sympathetic view, the petitioner directed the second respondent to report for work from April 2, 1994 and asked him to contact the maistry of the building department for allocation of work. The petitioner also wrote in letter, dated April 15, 1994, stating that as per the company records he was only employed in the building department and the management has the power to transfer him from one department to another.
It is further stated by the petitioner that the second respondent did not report for work but raised a dispute before the Assistant Commissioner of Labour (Conciliation), alleging that his services were terminated from April 2, 1994. The petitioner management pointed out before the Conciliation Officer that the second respondent was not terminated from service and reiterated to provide employment in the building department. On account of failure report, dated October 5, 1994, the second respondent filed a claim before the first respondent in I.D. No. 391 of 1994. The petitioner filed a detailed counter pointing out that there is no non employment as alleged by the second respondent and the dispute itself is not maintainable under Section 2-A(2) of the Industrial Disputes Act. However, the Labour Court, after enquiry, passed an award on April 10, 1996 and directed the petitioner/ management to reinstate the second respondent/ workman in service as watchman with 50 per cent of back-wages. Aggrieved by the same, the petitioner has preferred this petition by contending that the award suffers from error apparent on the face of the record and liable to be set aside.
3. The second respondent in his counter has stated that he was working as a regular and permanent night watchman in the co-operative stores of the petitioner mill continuously for a period of 35 years, without any interruption and no incident happened on February 16, 1994 as alleged by the petitioner and on February 17, 1994 when the Assistant Security Officer came, he went to open the gate and before opening, the Assistant Security Officer kicked the gate forcibly and the gate hit on the nose of the second respondent causing bleeding injury and the second respondent asked the officer to issue accident report certificate regarding the injury but it was refused and the second respondent took treatment in a private hospital and later on got medical leave certificate from E.S.I. Hospital and with medical records the second respondent reported for duty, but the management refused to receive the documents and the second respondent was forced to send the certificate by post. The second respondent has stated that he refused to work in the building department when it was offered by the petitioner, since he was a night watchman and he was orally terminated from service by the petitioner from April 2, 1994. According to the second respondent, the petitioner/ management, without any notice and without, following any procedure, terminated his services and caused non-employment without any valid reason and he raised a dispute before the Conciliation Officer and on the failure report, he raised an industrial dispute before the Labour Court.
According to the second respondent, the petitioner/management has admitted that on February 16, 1994 and February 17, 1994 he was working as night watchman in the, Co-operative stores of the mill and the Labour Court, on consideration of the relevant circumstances, passed the award directing the petitioner to reinstate the second respondent workman with 50 per cent of back-wages holding that the second respondent is a permanent night watchman and not a casual labourer. The second respondent has further stated that the industrial disputes raised under Section 2-A(2) of the Industrial Disputes Act is maintainable and there is no building repair department in the mill of the petitioner and the post of night watchman in the co-operative stores is a permanent post and there is no illegality or irregularity in the award passed.
4. Heard both sides.
5. The learned counsel for the petitioner/ management contended that in a dispute raised under Section 2-A(2) of the Industrial Disputes Act, the Labour Court will have jurisdiction only if the grievance of the workman pertains to discharge or dismissal or retrenchment or termination and the dispute regarding status and category of workman cannot be decided under Section 2-A(2) and the Labour Court having found that the management did not terminate the services of workman, has traversed beyond its jurisdiction and has given finding on other issue which is not within the scope of reference and the award is liable to be set aside as perverse. Per contra, the learned counsel for the second respondent/workman contended that the petitioner/management, without any notice and without following the procedure, terminated the second respondent workman from service and hence a dispute has been raised under Section 2-A(2) or the Industrial Disputes Act and the Labour Court, after analysing the evidence on record, has passed the award reinstating the second respondent.
6. To maintain a dispute under Section 2-A(2), the workman has to show that he comes under any one of the four categories mentioned therein. In the present case, the second respondent/workman alleges termination of his services, which is disputed by the petitioner/ management. The second respondent/ workman in his Section 2-A(1) petition before the Conciliation Officer has stated that when he was performing duty as Watchman in the petitioner mill on February 17, 1994, at 3.00 A.M. the security officer came and shouted at him to open the door and before he could open it, the security officer pushed the door forcibly due to which he sustained bleeding injury on the nose and the security officer refused to issue a certificate, pursuant to which, he obtained certificate from ESI Hospital and when he sought to submit the same at the mill gate, it was refused and he was forced to send it by registered post on March 30, 1994 and the petitioner/management directed him to report for duty and when he reported on April 2, 1994, he was allotted work in the building department and when he claimed the post of watchman it was declined and he was sent away. The petitioner/management in its counter before the Conciliation Officer has stated that the second respondent/workman was engaged as a building coolie and the usual practice is the building coolie would be deputed to do all kinds of jobs depending upon the exigencies of work and as per the practice, the second respondent/workman was deputed to do the security work in the mill's co-operative stores on February 16, 1994 and February 17, 1994 and on both days, the Assistant Security Officer, on his usual round, found the second respondent/workman sleeping while on duty and he was asked to meet the General Manager and the workman did not report for work on February 18, 1994 and remained unauthorisedly absent till March 30, 1994 and he sent a letter, dated March 30, 1994, falsely alleging that he was injured while performing duty as watchman on February 17, 1994 and he was directed to report for work on April 2, 1994 in the building department but he did not join and raised a dispute. No settlement was arrived at in the course of conciliation proceedings and the second respondent/ workman filed petition before the Labour Court raising the same contentions. The petitioner/management also filed counter on the same lines.
7. The second respondent/workman claims to be a permanent night watchman in the petitioner mill's co-operative stores continuously for 35 years, without any interruption and to substantiate his claim he has examined himself as a witness and marked documents. Exhibit W1 is the ticket given to the second respondent/workman by the petitioner/management for the period February 17, 1994 to February 23, 1994 and it is building repairs ticket in which it is marked that the second respondent/workman attended duty on February 17, 1994 only. Exhibit W2 is the ESI identity card issued to the second respondent/workman and Exhibit W3 is the letter, dated March 30, 1994, sent by the second respondent-workman to the petitioner/ management and W4 is the reply, dated April 1, 1994, sent by the petitioner/management. Exhibit W5 is the letter dated April 5, 1994, sent by the, second respondent to the petitioner and Exhibit W6 is the letter of the petitioner dated September 14, 1994, addressed to the second respondent and Exhibit W7 is the bonus chit, dated October 23, 1992, to the second respondent containing break-up particulars. Exhibit W8 is the wages bill of Managing Director's Office watchmen from July 21, 1985 to July 27, 1985. Exhibit W9 is the arrears of wages bill for the watchmen/sweeper of the Managing Director's office.
8. Exhibit W1 demonstrates that the second respondent/workman was given building repairs ticket on February 17, 1994 and he accepted the same and attended the work. In Exhibits W-7 to W-9, the second respondent/workman was shown as Managing Director's Office watchman and it is pertinent to note that in Exhibit W9 it is stated as watchman/sweeper. It is the case of the petitioner/management that as building cooly the second respondent/workman was given different jobs at different places depending upon exigencies of Work and he was asked to do security work on February 16, 1994 and February 17, 1994. The petitioner-management had examined two witnesses on their side and M.W.2 is the Assistant Engineer of the mill and according to him, the second respondent/workman was employed as worker in the building repairs department and as per usual practice, building coolie would be deputed to do different jobs depending upon exigencies. M.W.1 is the Assistant Security Officer and he has spoken about having found the second respondent/workman sleeping while on duty on February 16, 1994 and February 17, 1994 and according to him, he directed the second respondent to meet the General Manager but he absented himself.
9. The learned counsel for the petitioner/management contended that the reliance placed on Exhibits W 7 and W 8 by the Labour Court to come to the conclusion that the second respondent was employed only as watchman is erroneous and the very fact that the second respondent had accepted Exhibit W1 time card, issued by the management mentioning his place of employment as Building repairs, would conclusively establish the fact that he was a daily-rated cooly in the said department and would also perform other duties depending upon exigency of work. This contention cannot be easily brushed aside. First of all, the second respondent/workman did not substantiate his claim that he was working continuously as watchman for nearly three decades with the petitioner/management. No doubt it is true that the second respondent/workman was referred as watchman in the Managing Director's office, in Exhibits W 7 to W 9 and it is to be borne in mind that in Exhibit W9 the post is stated as watchman/sweeper. No conclusion that the second respondent was a watchman can be arrived at only on the basis of Exhibits W 7 to W 8. On the relevant date, i. e., February 17, 1994, the second respondent was employed only as worker in the building repairs department. Even according to the second respondent/workman, there was only oral termination of service. The fact remains that admittedly the petitioner/management directed the second respondent to report for duty evidenced by Exhibits W 4 and M 3, The second respondent/workman only insisted for the work of watchman and refused to join duty in the building department. In the above circumstances, it cannot be concluded that the petitioner/management terminated the services of the second respondent. If it is so, the second respondent/workman cannot maintain the dispute under Section 2-A(2) of the Act. The finding of the Labour Court that the second respondent/workman is a watchman and was terminated from service is based on surmises and conjectures and not based on material on record and the award is liable to be set aside.
10. The writ petition is allowed as prayed for. No costs. Connected W.M.P.No. 16137 of 1996 is closed.