Bombay High Court
Gwalior Investment Co. Pvt. Ltd. vs K.M. Desai, Member, Industrial Court ... on 23 July, 1992
Equivalent citations: [1992(65)FLR489], (1993)ILLJ127BOM
JUDGMENT
1. By the present petition, under Article 226 of the Constitution of India petitioner company has challenged the judgment and order passed by the Industrial Court on October 29, 1986 in a revision application preferred by the 2nd respondent. By the impugned judgment, the Industrial Court reversed the decision arrived at by the Labour Court to the effect that the 2nd respondent was not a 'workman'. Being aggrieved by the impugned judgment, the present petition is preferred by the employer.
2. Briefly stated, the facts giving rise to the present petition are as under :
The 2nd respondent, who was appointed as "Technician-cum-Designer" in the Knitting Department of the petitioner company in the year 1970, was removed from service by a letter of termination dated April 10, 1981. The 2nd respondent, thereafter, filed a complaint being Complaint (ULP) No. 55 of 1981 under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, alleging that the petitioner company had indulged in unfair labour practices by terminating his service (i) by way of victimisation; (ii) not in good faith, but in colourable exercise of the employer's rights; (iii) for patently false reasons; and (iv) on untrue or trumped up allegations. The petitioner company filed its written statement wherein, inter alia, it took a plea that the 2nd respondent was not a workman as required in law and, therefore, the remedy was not available to him and on such pleadings a preliminary issue was raised by the Labour Court and, by its decision dated October 31, 1985, the Labour Court held that the 2nd respondent was not a workman. Thus, the preliminary issue was decided in favour of the petitioner company. From this decision, the 2nd respondent preferred a revision application, being Revision Application (ULP) No. 72 of 1985, before the Industrial Court, Maharashtra, Bombay. The Industrial Court, by its Judgment and order impugned herein, came to the conclusion that the 2nd respondent was a workman and, thus, reversed the finding arrived at by the Labour Court. From the said Judgment and order of the Industrial Court, the present petition has been preferred.
3. Mr. Shah, the learned counsel appearing for the petitioner company, submitted that there were errors apparent to show that the Industrial Court was in error in substituting its own judgment for the view taken by the Labour Court on appreciation of the evidence. It was secondly submitted that the Industrial Court totally ignored the evidence admitted by the 2nd respondent himself to the effect that he was exercising supervisory position. On the other hand, Mr. Bapat, the learned counsel appearing for the 2nd respondent, supported the impugned Judgment.
4. In view of the submission set out above, a very narrow question requires to be determined in this writ petition. This is not a Court of appeal where the evidence could be reappreciated. Under Article 226 of the Constitution, while exercising writ jurisdiction the Court has to see whether there are any findings which are perverse and whether there are any errors apparent as alleged.
5. So for as the evidence is concerned, on this preliminary issue both oral and documentary evidence was led. As regards the oral evidence, one Rama Shankar Singh was examined by the petitioner and the 2nd respondent examined himself. Neither any director nor any other person from the managerial cadre was examined by the petitioner company to show as to on what position the 2nd respondent was appointed and/or to show as to what type of work he was really doing. The evidence of Rama Shankar Singh does not throw any light, whatsoever, on this aspect of the matter. However, the evidence of 2nd respondent throws sufficient light. The 2nd respondent, in his examination-in-chief, stated -
"I was not empowered to sanction the leave to these 6 workmen. I was also not empowered to give them promotion or increment. I was also not empowered to punish any of these workmen if they committed any mistake. In that case I was to intimate about them to Ravi Jalan".
This evidence goes uncontroverted, with the result the admitted position is that the 2nd respondent had none of the powers which are normally exercised by a person who is in supervisory category and not 'workman' simpliciter. Irrespective of the wages paid, the test to determine whether a person is a workman or not is laid down by the Supreme Court in A. G. Raj Rao v. Ciba Giegy of India Ltd., Bombay, reported in 87 Bom. L.R. at page 344. The Supreme Court has held -
"Whether a particular employee is a workman within the meaning of the expression as defined in S. 2(s) of the Industrial Disputes Act, 1947 or a person employed in a supervisory capacity the test that one must employ is what was the primary, basis or dominant nature of duties for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth. The definition of the expression workman clearly shows that the person concerned would not cease to be a workman if he performs some supervisory duties but he must be a person who must be engaged in a supervisory capacity."
Examining the evidence, it is very clear that on the application of the above test one can without any hesitation come to the conclusion that the 2nd respondent is a workman. However, on behalf of the petitioner company, it was argued that in his cross-examination the 2nd respondent had admitted to having signed several notices and several documents as incharge of the Knitting Department of the petitioner company which evidence was conclusive to show that the 2nd respondent was not a workman. I am not ready to accept this submission for the reason that it still falls short of the test which is laid down by the Supreme Court in the above decision. The Industrial Court has rightly observed -
"But for the reason best known to the respondent company, no documentary evidence was produced, clearly indicating the designation of Shri T. Prabhakaran as Chief Executive, in the company. On the contrary, when Shri Rama Shankar Singh was cross-examined on this point, he vaguely stated that such an aversion in the written statement meant he (i.e., Shri T. Prabhakaran) was whole and sole of the factory department. This is another vague statement of Shri Rama Shankar Singh, which cannot have any evidentary value upto the crucial aspects of the matter. Suffice it to say that Shri T. Prabhakaran was a Designer and Technician in the company, getting Rs. 2,000/- per month and then there were working 6 workmen under him."
In the background of this state of affairs so far as evidence is concerned, the Industrial Court rightly relied on the test laid down by the Supreme Court in the above decision and held that it was not controverted that the 2nd respondent had no power either to sanction leave or to recommend promotion or increment or to take any disciplinary action against any workman working under him. It is further rightly observed that though six workmen were working under the 2nd respondent, the fundamental nature of his job was to work as a designer and a technician in the company and that in that capacity he was getting Rs. 2,000/- per month, but he had no powers of chief executive or the manager of the company.
6. In these circumstances, I do not see any error in the decision of the Industrial Court and, in my opinion, the Judgment and order does not suffer from any infirmity. In the result, the petition requires to be dismissed with costs.
7. Petition dismissed with costs. Rule discharged.