(Prayer: W.P. No.874 of 2020: This Writ Petition is filed under Articles 226 & 227 of Constitution of India praying to quash the Award, dated 25.11.2019 (Annexure-A) passed by the II Additional Labour Court, Bengaluru in I.D. No.21 of 2013 insofar as the finding recorded on Issue No.3 is concerned, etc.
W.P. No.10902 of 2020: This Writ Petition is filed under Articles 226 & 227 of Constitution of India praying to set aside the Award, dated 25.11.2019 (Annexure-A) passed by the Presiding Officer, II Additional Labour Court, Bengaluru against the findings on Issue No.1, etc.)
1. Aggrieved by the Award, dated 25.11.2019 in Industrial Dispute No.21 of 2013 passed by the Second Additional Labour Court, Bengaluru the Workman has preferred Writ Petition No.874 of 2020 and the Management has preferred Writ Petition No.10902 of 2020.
2. For the purpose of convenience the parties will be referred to henceforth as Management and Workman respectively. So also for clarity the documents produced in W.P. No.10902 of 2020 will be referred to.
3. M/s. Intuit Technology Private Limited is a Company incorporated under the Companies Act. The said Company is engaged in development of Software and financial accounting under the tax preparation software. The Management appointed the Workman on 1.3.2011 under the letter Annexure-B as Staff Software Engineer. He reported to work on 23.3.2011. The annual pay package was Rs. 28 lakhs. Annexure-B(1) was the employment agreement. As per Clause-II of the Employment agreement, the employment was terminable by either parties with one month notice and in case of termination by the Management one month notice with one month wages.
4. On 2.8.2012 the Management sent Separation Terms and General Release Agreement as per Annexure-C to the Workman. As per the said document the Management was proposing to terminate his service with payment of Rs. 2,33,324 in lieu of one month's wages and notice period and called upon him to return the Company's properties.
5. On 30.8.2012 the Workman filed O.S. No.5885 of 2012 against the Management before the XXIV Additional City Civil Court, Bengaluru City (C.C.H-6) seeking Permanent Injunction to restrain the Management from terminating his employment and forcing him to tender his resignation. He claimed that the Management is illegally forcing him to tender his resignation.
6. On 16.8.2012 the Management appeared in the said Suit. On 29.9.2012 the Management filed Memo as per Annexure-E in the said Suit claiming that the parties have entered into Settlement and according to the said Settlement the Management will issue a letter of termination of the employment to the Workman with effect from 16.8.2012. It was further stated in the Memo that on thSe Workman returning the Company's laptop it is agreeable to pay Rs. 4,24,355, which included 30 days Salary in lieu of notice period, the Salary upto 16th August 2012 and leave encashment amount. The Management also requested to record the said Memo. On 3.10.2012 the Workman delivered the laptop to the Management.
7. The order sheet in O.S. No.5885 of 2012, which is produced at Annexure-E shows that on 29.9.2012 the Workman offered to return the laptop. However, the Management's Counsel submitted that the Management will collect the same on 3.10.2012 on one of its Employees verifying the same. The said order sheet bears the signature of both Counsels for the Workman and the Management. The order sheet in the said Suit further reveals that on 3.10.2012 the Workman returned the laptop to the Management.
8. In the said Suit on 8.10.2012 the Workman filed Memo reporting the receipt of Demand Draft for a sum of Rs. 4,24,315 and the matter was adjourned to 18.10.2012 for Plaintiff furnishing filled up P.F. form. The order Sheet, dated 3.10.2012 as well as 8.10.2012 both bear the signatures of Counsel for both parties. The order Sheet, dated 8.10.2012 even bears signature of Workman having received demand draft.
9. On 18.10.2012 the Workman apart from furnishing the P.F. form submitted Affidavit as per Annexure-J resiling from Settlement. In the affidavit he claimed that his Memo before the Court was involuntary and forced one and therefore that cannot be called as acceptance of Settlement. Though he admitted his signature, he claimed that, that was passive and involuntary acknowledgment of his advocate and he reserves his right to seek remedy before appropriate forum.
10. Before that the Management had filed I.A. No.2 on 18.8.2012 itself under Order 7, Rule 11 of CPC for rejection of Plaint on the ground that the dispute being Industrial Dispute the Civil Court has no jurisdiction. The Court heard that application. On hearing by order Annexure-L, dated 10.1.2013 the Court rejected the Plaint in O.S. No.5885 of 2012 on the ground of bar of jurisdiction.
11. On rejection of Plaint the Workman raised a dispute before the Labour Court in I.D. No.21 of 2013. He filed claim Settlement as per Annexure-M claiming that his termination was illegal. He sought relief of reinstatement with full back wages, continuity of service, Compensation etc. By way of amendment he introduced another prayer for declaration that the Management has violated the provisions of Section 25, 25-F, 25-N & Chapter 5-P of the Industrial Dispute Act and he was entitled to three months' notice and wages in lieu of such notice.
12. The Management filed its statement of objection as per Annexure-N disputing the illegal termination. The Management claimed that the Workman was not able to satisfactorily perform his work and on 8.3.2012 @ 12.15 p.m. he indulged in violence against the staff of Management in the premises of the Management. Under the circumstances and in terms of employment Contract the Management terminated his service. The Management claimed that the Workman on entering into the Settlement accepting sum of Rs. 4,24,355 before the Court has resiled from the terms of settlement. Therefore he is unfair and not entitled to any relief.
13. The Management filed I.A. No.1 before the Labour Court for rejection of I.D. No.21 of 2013 on the ground that the Claim Petition was not maintainable as the Workman was terminated by way of Settlement before the Civil Court. The Labour Court by Order, dated 30.10.2013 rejected the said application. The Management challenged that order before this Court in W.P. No.55007/2013(L-TER). This Court by order Annexure-T, dated 27.1.2013 dismissed the Writ Petition holding that the Management can urge the said question during the hearing of the main matter itself, that cannot be decided as a preliminary issue. This Court reserved the liberty to the Management to question that order if aggrieved after disposal of the I.D. No.21 of 2013.
14. The Labour Court by Order Annexure-P, dated 16.9.2016 rejected the Claim Petition on the ground that the Workman was terminated in terms of Settlement before the competent Civil Court. The Workman challenged that award before this Court in W.P. No.62442 of 2016(L-TER). This Court by the order Annexure-Q, dated 1.7.2019 allowed the Petition on the ground that the Labour Court ought to have framed issue whether there was termination by way of Settlement and payment of dues to the Workman in terms of the such Settlement and then proceeded to pass an award deciding that issue. Ultimately this Court directed the Labour Court to hear the matter afresh in the light of the observation made therein.
15. Then the Management filed application before the Labour Court to frame the issue on maintainability of Industrial Dispute in the context of the alleged Settlement. The Labour Court by Order, dated 1.10.2019 rejected the said application. During the course of such order the Labour Court considered the merits of the contention with regard to the Settlement before the Civil Court.
16. The Management challenged that order before this Court in W.P. No.49830 of 2019. This Court by order Annexure-S, dated 18.10.2019 allowed the Writ Petition, set aside the order of the Labour Court and conclusion recorded by the Labour Court in Para-9 of the said order with regard to the Settlement between the Workman and Management. This Court further directed the Labour Court to hear the parties and dispose of the main matter uninfluenced by its observation with reference to the Settlement. Thereafter the Labour Court on hearing the parties, by the impugned Award Annexure-A, dated 25.11.2019 dismissed the Claim Petition.
17. The Labour Court raised the following issues for consideration:
1. Whether the I party proves that he is a Workman as defined under Section 2(s) of I.D. Act ?
2. Whether the Second party is justified in terminating the first party from the service in pursuance of the impugned Order dated 2.8.2012 ?
3. Whether the First party is entitled to the relief, which he has claimed ?
18. Though the Labour Court rejected the Claim Petition, answered issue No.2 regarding the justification or legality of termination order against the Management. The Labour Court rejected the Claim Petition on technical ground namely the Workman has not pleaded specific particulars of termination Order sought to be set aside. Aggrieved by the rejection of Claim Petition, the Workman has filed Writ Petition No.874 of 2020. Aggrieved by the finding on Issue No.2 the Management has filed Writ Petition No.10902 of 2020.
19. Learned Counsel for the Workman seeks to assail the impugned Award on the ground that the finding that there was no termination Order is perverse and contrary to the Judgment of this Court in W.P. No.62442 of 2016. He further submits that on holding that the termination Order was not justifiable, the Labour Court ought to have allowed the Claim Petition of the Workman. He justifies the finding of the Labour Court on the jural relationship.
20. Per contra learned Counsel for the Management assails the finding of the Labour court on the jural relationship and on the justification of the termination Order on the ground that they are contrary to the evidence, law and the precedents.
Regarding jural relationship and nature of dispute:
21. Both Counsel relied on innumerable Judgments of Hon'ble Supreme Court and this Court to advance their submissions on this point. At one breath in O.S. No.5885 of 2012 the Management contended that the Suit is not maintainable in view of the Plaintiff's claim that he is Workman. The Management claimed that the Workman's remedy lies before Industrial Tribunal/Labour Court and succeeded in its application for rejection of the Plaint on that ground. Taking a U-turn in this case Management is claiming that the parties and dispute are not covered under the I.D. Act. Thereby the Management is approbating and reprobating simultaneously, which is not permissible.
22. Further admittedly parties have agitated the matter before this Court on several rounds. In those cases the contention of the Management was that there was termination by way of the settlement before the Civil Court and therefore the claim statement was not maintainable and not on the ground that there was no jural relationship.
23. At the first instance the Labour Court on 16.9.2016 had rejected the Claim Petition answering all the issues against the Workman, which culminated in the Workman filing W.P. No.62442 of 2016. Annexure-Q the Judgment in W.P. No.62442 of 2016 shows that this Court did not set aside the finding on jural relationship, but remanded the matter only to frame an issue regarding the termination under the Settlement and dispose of the matter. Thereby the findings on the issue of Management being the industry and the jural relationship between the parties is concluded.
24. Further admittedly the Workman was not working in the supervisory capacity and he was carrying on technical work. Therefore the wages drawn by him alone was not relevant. To invoke Section 2(s)(iv) the Workman must be employed in the supervisory capacity and drawing wages exceeding Rs. 10,000 per month. Unless the said Section is amended the rate of wage alone does not exclude from the definition of the Workman. Under such circumstance this Court does not find it necessary to refer to innumerable Judgments relied by both Counsel on the point. There are no grounds to interfere with the finding in the award with regard to the jural relationship.
Regarding the legality of rejection of Claim Petition:
25. The Labour Court has rejected the Claim Petition on the technical ground that there was no termination order and the Workman has not stated, which termination order is challenged in the dispute. While saying so the Labour Court overlooked the finding of this Court in Para 3 of Judgment in W.P. No.62442 of 2016(L-TER), which reads as follows:
“3. From the records it is evident that Petitioner has been terminated from serviced on 16.8.2012 as is evident from the order Sheet, dated 29.9.2012 in original Suit......”.
26. In the light of the above conclusion the Labour Court fell in serious error in rejecting the Claim Petition on such technical ground. But still the Workman was required to show that his termination from employment was unjustifiable/illegal. At the first instance the Workman was terminated by order Annexure-C. Admittedly before Annexure-C he was put under Performance Improvement Program (for short 'PIP') for 30 days. According to the Management he was subjected to PIP as he was underperforming. He filed O.S. No.5885 of 2012 claiming that he was forced to sign the PIP. He himself stated in that Suit that though he is issued with termination Notice, dated 2.8.2012 as the wages in lieu of notice period were not paid and he has not signed the separation agreement he is deemed to be in service.
27. Admittedly pending that Suit the Management proposed to terminate the service of the Workman with effect from 16.8.2012 paying Rs. 4,24,335 in terms of Settlement agreement. Admittedly the Workman received the said amount. The Memo Annexure-E was filed on 29.9.2012 reporting the said Settlement.
28. In terms of the said Memo on 3.10.2012 the Workman returned the laptop to the Management. On 8.10.2012 he filed a Memo acknowledging the receipt of the D.D. From 29.9.2012 till 18.10.2012 the Workman, who is a qualified Software Engineer without any demur went on complying the terms of the Memo, dated 29.9.2012 in returning the laptop and accepting the D.D. After 20 days for the first time on 18.10.2012 he filed affidavit alleging that the termination was forced one and he was a passive recipient of such decision and communication of the Management. He even went to the extent of saying that his Advocate became a passive acknowledger to the order of the Court, dated 29.9.2012, which recorded the settlement. That sounds as an imputation against
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the Court. 29. A sanctity is attached to the proceedings of the Court. The Advocate is an Officer of the Court. There is a statutory presumption under Section 114 of the Evidence Act that the judicial acts are regularly performed. Though the Labour Court did not frame the issue with regard to the validity of the termination under Settlement recorded on 29.9.2012 by the Court, the burden of proving the fact that the Settlement before the Court was forced one was on the Workman. 30. Except his self serving testimony the Workman did not adduce any evidence to show that the Settlement before the Court was forced one. Further his conduct of raising such contention after receiving the amount militates against him that too when he himself is a qualified engineer and was assisted by an Advocate. He did not choose to examine his advocate to substantiate such contention. Therefore it can be held without hesitation that the Workman was terminated on 16.8.2012 under a Settlement. 31. When there is termination by mutual Settlement, which is evident from the proceedings in O.S. No.5885 of 2012, it is not open to the Workman to question the same. He cannot be permitted to approbate and reprobate. Therefore W.P. No.874 of 2020 shall fail. 32. So far as W.P. No.10902 of 2020 the challenge against the finding on jural relationship is unsustainable. So far as the justification of termination Order, dated 2.8.2012 that does not survive in view of subsequent Termination, dated 16.8.2012 under the Settlement. W.P. No.874 of 2020 is dismissed with costs. W.P. No.10902 of 2020 is disposed of in terms of the reasons recorded above.