Allahabad High Court
Shri Krishna Kant Pandey (At: 02:00 ... vs Presiding Officer Industrial Tribunal ... on 23 May, 2013
Author: Narayan Shukla
Bench: Narayan Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved/AFR Writ Petition No.102 (MS) of 2008 Shri Krishna Kant Pandey ....Petitioner Versus Presiding Officer, Industrial Tribunal II, Lucknow and another .....Opposite parties *** Hon'ble Shri Narayan Shukla,J.
Heard Mr.Vivek Raj Singh, learned counsel for the petitioner as well as Mr.Vikash Singh, learned counsel for the respondents.
In the instant case the sole question for determination is whether the petitioner is a "workman"?
By means of order impugned dated 24th of August, 2007, passed by the Industrial Tribunal II, State of U.P., Lucknow, the petitioner's status as "workman", as claimed by the petitioner, has been denied.
Briefly, the facts of the case are that the Deputy Labour Commissioner, Lucknow vide office order dated 24.6.2004 referred the dispute for its adjudication before the Industrial Tribunal as under:-
"Whether the action of the employer to terminate the petitioner's services from the post of Fleet Executive is lawful and valid."
Initially the petitioner was appointed on the post of Operator/Technician Grade III for six months on probation basis w.e.f. 13th of March, 1995 against the salary of Rs.2600/- per month. Having been found his services satisfactory, he was confirmed w.e.f. 13th of September, 1995. Moreover, he was also awarded one increment w.e.f. 1st of February, 1996 for his good work. Earlier he was appointed in the Plant Jainpur (Kanpur Dehat), where from he was transferred to Sathariya Plant, district Jaunpur on 30th of August, 1996 on the revised pay scale i.e. Rs.5450/-. Pursuant to the subsequent transfer order, he was posted at Lucknow in the month of June, 1997 and till 2000 he was awarded annual increments each and every year @ Rs.490/-. Subsequently he was promoted to the post of Line Supervisor in the pay scale of Rs.7716/- and thereafter on the post of Fleet Executive.
The learned counsel for the petitioner submits that being posted as Fleet Executive, the petitioner was supposed to discharge the mechanical work. That being so, he was called as skilled workman. It is also stated that no other staff was posted in his subordination.
The petitioner also pointed out some conduct of the employer transferring the petitioner from one place to another and also compelling him to resign from the post or to be on long leave. He remained on leave w.e.f. 9th of October, 2003 to 17th of October, 2003. When he turned up, he was not permitted to join for want of instructions of the superior authorities. Then he wrote a letter on 8th of November, 2003 seeking guidance for further action. It is stated by the learned counsel for the petitioner that the employer became unhappy with the said letter and terminated his services on 14th of November, 2003 by giving one month's salary in lieu of notice prior to termination. It is also stated that the petitioner was retrenched without providing any retrenchment allowance. Thus, the order of termination is claimed in violation of Section 6-N of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act').
In reply the respondents have submitted that the order of termination is in accordance with the provisions of U.P. Industrial Disputes Act, 1947, therefore, it is valid and lawful.
Before the Tribunal the respondents raised objection on the petitioner's status submitting therein that the petitioner is not covered under the definition of "workman" as is defined under Section 2(z) of the Act, therefore, the reference itself is bad.
In order to examine the petitioner's status, it is worth to look in to the nature of duties assigned to the petitioner as well as the provisions of the Act, which cover the employee under the definition of "workman".
The works assigned to the petitioner are described below:-
1)Ensure 100% vehicle availability.
2)Reduction in fleet repairing cost.
3)Reduction in diesel consumption.
4)Check the accuracy and performance of fleet.
5)Sending the vehicles for regular maintenance/ Checkup to ensure smooth functioning of the vehicle.
6)All statutory compliances of Road Tax.
7)All statutory compliances of Additional Tax.
8)All statutory compliances of vehicle fitness as norms.
9)All statutory compliances of insurance of vehicles within time.
10)All statutory compliances of permits of vehicles within time.
11) All statutory compliances of pollution certificate of vehicles within time.
12)All statutory compliances of City Pass of Vehicles within time.
13)All statutory compliances of Cantt. Board Pass of vehicles within time.
14)All statutory compliances of Nagar Nigam of vehicles within time.
15)Visit all URCs regularly to ensure smooth relation with URDs.
The learned counsel for the petitioner Mr.Vivek Raj Singh, submitted that works assigned to the petitioner as are mentioned from Sl.No.1 to 5 are purely mechanical in nature, therefore, his posting on the post of Fleet Executive in the higher pay scale does not make any difference as still he is discharging the duties of mechanical in nature. He drew the attention of this court towards the definition of "workman" as is defined under Section 2(z) of the Act, which is extracted below:-
"2.(z) 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i)who is subject to the Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or
(ii)who is employed in the police service or as an officer or other employee of a prison; or
(iii)who is employed mainly in a managerial or administrative capacity; or
(iv)who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature."
In light of the definition, as above, it is submitted that any person who is employed to do any skilled or unskilled manual, supervisory, technical or clerical work, shall be called as "workman". Therefore, the petitioner's work even to some extent being supervisory does not change his status, rather he is covered under the definition of "workman".
On the other hand without disputing the definition as is provided under Section 2(z) of the Act, the learned counsel for the respondents Mr.Vikash Singh submitted that in the clause of definition itself some kind of employees have been excluded from the definition of "workman", out of whom one is, who is employed mainly in a managerial or administrative capacity. It is further stated that since the nature of petitioner's work as has been discussed by the Tribunal is purely managerial and administrative, therefore, the petitioner is covered under the exclusion clause. More so, under one another clause those employees have also been excluded from the definition of "workman", who being employed in a supervisory capacity draws wages exceeding Rs.500/- per mensem. Since admittedly the petitioner was drawing the wages more than Rs.500/- per month, therefore, the said clause also comes in the way of petitioner to treat him as "workman".
The learned counsels for the parties also cited some decisions of the Hon'ble Supreme Court, in which the definition of "workman" has been interpreted.
Cases cited by the learned counsel for the petitioner:-
(1) H.R.Adyanthaya and others versus Sandoz ((India) Ltd.and others, reported in (1994) 5 SCC 737. In this case the Hon'ble Supreme Court has discussed the definition of "workman" as is given in Section 2(z) of the Industrial Disputes Act, which is an analogous provision of Section 2(z) of the U.P. Industrial Disputes Act. After discussion of several judgments the Hon'ble Supreme Court expressed the following opinion on the point:-
"24. We thus have three three-Judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories, viz., manual, clerical, supervisory or technical and two two-Judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three three-Judge Bench decisions which have without referring to the decisions in May & Bakerl, WIMCO2 and Burmah SheIl3 cases have taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation."
(2)Mukesh K.Tripathi versus Senior Divisional Manager, LIC and others, reported in (2004) 8 SCC 387. In this case also before the Tribunal a contention was raised by the respondents that the appellant is not a "workman" within the meaning of Section 2(z) of the Industrial Disputes Act. The appellant was appointed as Apprentice Development Officer in the office of LIC of India. However, he was retrenched from service. He challenged his retrenchment being in contravention of Section 25-F of the Industrial Disputes Act. The Hon'ble Supreme Court expressed the following opinion on the point:-
"The definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a 'workman' defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise. We may further notice that before the Tribunal a contention was raised by the Appellant that upon expiry of the period of one year he was appointed as a probationary officer but the said plea was categorically rejected by the Tribunal holding :
"34. The definition of "workman" as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a "workman" defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise."
36.A 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprenticeship Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute."
The cases cited by the learned counsel for the respondents:-
(1) Burmah Shell Oil Storage and Distribution Company of Indua Ltd. Versus The Burma Shell Management Staff Association and others, reported in 1970 (3) SCC 378. In this case there was a dispute with respect to the revision of pay scales, grades of pay, Dearness Allowance, Overtime payment, duty allowance and other allowances as well as the bonus between the employer and a set of employees who were designated as junior management staff. They claimed that they were workman as defined in the Industrial Disputes Act and on that basis raised the Industrial Dispute relating to salary etc., as mentioned above. The government referred the dispute to the Industrial Tribunal. The Tribunal Classified the several categories of the employees to be 'workman'. The matter reached the Hon'ble Supreme Court in the appeals. The Hon'ble Supreme Court in the light of the definition provided under Section 2(s) of the Industrial Disputes Act considered the nature of work of each and every category of the employees. In this case dealing with the category of transport engineer, the Tribunal held the transport engineer to be a "workman" on the ground that he was employed because of his technical knowledge and even in supervising the work of the workman, he is required to make use of his technical knowledge and consequently rejected the plea of the Company that the transport engineer cannot be said to be employed to do supervisory work. The Hon'ble Supreme Court held that it appears to us that in giving its decision the Tribunal misdirected itself. It further held that even if the transport engineer uses his technical knowledge, which is used primarily for the purpose of supervising the work done by the skilled manual labourer, who carried out actual repairs to do the supervisory or maintenance or complete the fabrication, it was supervisor in nature.
The Hon'ble Supreme Court further observed that the work of a person employed to do technical work, depends upon special mental training or scientific or technical knowledge. If the man is employed because he possesses such faculties and they enable him to produce something as a creation of his own, he will have to be held to be employed for technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervisory work into technical work, the work of giving advice and guidance cannot be held to be an employment to do technical work.
(2) Miss A.Sundarambal versus Government of Goa, Daman and Diu and others, reported in (1988) 4 SCC 42. In this case the Hon'ble Supreme Court considered the question "whether a teacher employed in a school falls under any of the four categories, namely, a person to do any skilled or unskilled manual, supervisory, technical or clerical work. If he does not satisfy any of the above, he would not be "workman" even though he is an employee of the industry.
In this case the question for consideration was whether even after the inclusion of the two classes of employees, namely, skilled or unskilled, manual labour or clerical, falls in the definition of the expression "workman" in the Act, a teacher in a school can be called a workman, the Hon'ble Supreme Court expressed the opinion as under:-
"We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as 'workmen' within the meaning of Section 2(s) of the Act.
(3) S.K.Maini versus M/s. Carona Sahu Company Limited and others, reported in (1994) 3 SCC 510. In this case before the Labour Court a preliminary objection was raised by the respondent-company as to the maintainability of the reference by contending that Shri S.K.Maini was not a workman within the definition of Section 2(s) of the Industrial Disputes Act, 1947 because being a Shop Manager/Incharge of the shop, he had been discharging mainly managerial and administrative functions and had been supervising the works of other employees subordinate to him for running the said shop and was drawing the salary of more than Rs.500/- per month. The Hon'ble Supreme Court held that by virtue of his being incharge of the shop, he was the principal officer-in-charge of the management of the shop, we, therefore, find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being incharge of the management of the shop had been principally discharging the administrative and managerial work.
After going through the aforesaid decisions, I arrive at conclusion that the nature of work prevalent on the date of termination shall be the basis of classification of "workman". The petitioner entered into service being appointed on the post of Operator/Technician Grade III, which was a technical post. While he was in service he was promoted to the different posts like Line Supervisor and Fleet Executive. On the date of retrenchment he was posted as Fleet Supervisor.
The works described, as above, were assigned to him. The learned counsel for the petitioner submits that out of those the works described from Sl.No.1 to 5 are purely mechanical/ technical in nature, therefore, the petitioner's work comes under the category of skilled supervisory work, which is one of the ingredients to cover the employee under the definition of "workman". Section 2(z) of the U.P. Industrial Disputes Act has provided different categories of "workman", who have been excluded from the definition of "workman", even if they are skilled or unskilled worker. One of the said categories is that, who is employed mainly in a managerial or administrative capacity. There may be fine distinction between the supervisory and managerial or administrative work. A bare perusal of the nature of works assigned to the petitioner, I find that he was not assigned the duty to manage or administer the office or employees or even the vehicles, but to supervise their availability, reduction in the repairing costs, reduction in diesel consumption, the required maintenance/check up for the purpose of smooth functioning of the vehicles etc. Besides it, he was also assigned the work to check the accuracy and performance of Fleet, which is purely technical in nature. Therefore, I am of the view that being skilled supervisor, the petitioner was covered under the definition of "workman" on the date of his retrenchment.
There is one more exclusion clause in Section 2(z) of the Act i.e. Clause (iv) which excludes the employee who being employed in Supervisory capacity draws wages exceeding Rs.500/- per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial in nature. It is very much obvious that by nature of duties assigned to the petitioner, it cannot be said that he was attached to the office or mainly managerial function was vested with him.
So far as another condition for exclusion from the definition of "workman" viz. drawing wages exceeding Rs.500/- per mensem is concerned, it is not in dispute that the petitioner on the date of retrenchment had been getting more Rs.500/- per mensem. This clause is a part of original form of the definition of "workman" as is provided under Section 2(z) of the Act. The U.P. Industrial Disputes Act was enacted in 1947. The petitioner was retrenched from service in 2003. The date of his initial appointment is on 13th of March, 1995. By passage of time the GDP growth had been increased in number of times from 1947 to 2003. Therefore, the enhancement of income was a natural corollary, in the light of which, I am of the view that this clause has become unworkable and redundant. Now every workman working in the Industry definitely would have been getting more than Rs.500/- per mensem and if this clause is permitted to be prevailed no workman shall be governed under the definition of "workman". Therefore, I am of the view that this clause has lost its significance and if the employee is covered under the definition of "workman" as is defined under Section 2(z) of the U.P. Industrial Disputes Act and further is not covered under the exclusion clause except clause (iv), he shall be classified as "workman". The clause (iv) of Section 2(z) shall not come in the way of his categorization as "workman".
It is advisable to the State Government to consider to make an amendment in Section 2(z) of the U.P. Industrial Disputes Act, 1947 in general and to exclude the class (iv) from the exclusion clause in particular.
Since the present petitioner has been classified by this court, as above, under the definition of "workman" the order impugned dated 24th of August, 2007 passed by the Industrial Tribunal II, State of U.P., Lucknow is hereby quashed with the direction to the Tribunal to proceed with the adjudication case No.82/2004 to adjudicate upon it on merit.
In the result the writ petition is allowed.
Let a copy of this order be sent to the Chief Secretary of the State Government to consider as advised.
Order Dated:23rd of May, 2013.
Banswar