Gujarat High Court
Geb Engineers' Association & Others vs Gujarat Energy Transmission ... on 25 April, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/2239/1995 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2239 of 1995
With
SPECIAL CIVIL APPLICATION NO. 16684 of 2013
With
SPECIAL CIVIL APPLICATION NO. 6558 of 1988
With
SPECIAL CIVIL APPLICATION NO. 5563 of 1999
With
SPECIAL CIVIL APPLICATION NO. 13898 of 2004
With
SPECIAL CIVIL APPLICATION NO. 1335 of 2011
With
SPECIAL CIVIL APPLICATION NO. 1359 of 2011
With
SPECIAL CIVIL APPLICATION NO. 9695 of 2011
With
SPECIAL CIVIL APPLICATION NO. 9696 of 2011
With
SPECIAL CIVIL APPLICATION NO. 9697 of 2011
With
SPECIAL CIVIL APPLICATION NO. 9859 of 2011
With
SPECIAL CIVIL APPLICATION NO. 10132 of 2011
With
Page 1 of 24
C/SCA/2239/1995 JUDGMENT
SPECIAL CIVIL APPLICATION NO. 10133 of 2011
With
SPECIAL CIVIL APPLICATION NO. 10134 of 2011
With
SPECIAL CIVIL APPLICATION NO. 10135 of 2011
With
SPECIAL CIVIL APPLICATION NO. 7308 of 2012
With
SPECIAL CIVIL APPLICATION NO. 17115 of 2012
With
SPECIAL CIVIL APPLICATION NO. 631 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
===============================================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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GEB ENGINEERS' ASSOCIATION & OTHERS ...Petitioners
Page 2 of 24
C/SCA/2239/1995 JUDGMENT
Versus
GUJARAT ENERGY TRANSMISSION CORPORATION
LTD. & OTHERS ....Respondents
==========================================================
APPEARANCE:
MR.D.S.VASAVADA, MR.D.G.SHUKLA, MS.NISHA M. PARIKH &
MR.CHETAN PANDYA for MR. S.V.RAJU, ADVOCATES for the
Association and concerned officer, (IN RESPECTIVE PETITION)
MR. M.D.PANDYA & MR. DIPAK R. DAVE, ADVOCATES for the
Employer - the Electricity Companies
===============================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 25/04/2014
COMMON ORAL JUDGMENT
1. The point for adjudication before this Court, in this group of petitions is, as to whether the officers working in the cadre of Executive Engineer and/or Deputy Engineer with the Gujarat Electricity Board are workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The consequence of this determination is that, in the event, they are treated to be workmen, their age of superannuation retirement would be 60 years, and if not, then 58 years. In individual cases, the concerned Industrial Tribunals have decided the matters and there are conflicting orders. In the cases, where the Industrial Tribunal has decided that the concerned officer was a workman, it is challenged by the Management and it is being contested by the concerned officer through GEB Engineers' Association, and in the cases where it is held by the Industrial Tribunal that the concerned officer was not a workman, it is Page 3 of 24 C/SCA/2239/1995 JUDGMENT challenged by the GEB Engineers' Association. It is this group of petitions, which is considered and decided by this Court, by this common judgment.
2. The point for consideration before this Court, in this group of petitions, as noted above is, as to whether the officers working in the cadre of Executive Engineer and / or Deputy Engineer with the Gujarat Electricity Board are 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The brief facts of each petition is as under.
2.1 SPECIAL CIVIL APPLICATION NO. 2239 of 1995 Challenge in this petition is made to the award passed by the Industrial Tribunal, Surat in Reference (IT) No.7 of 1989 dated 16.05.1994 whereby it was held that the concerned officer (Shri K.J.Pandya, Deputy Engineer) was not a workman.
2.2 SPECIAL CIVIL APPLICATION NO. 16684 of 2013 Challenge in this petition is made to the award passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No.10 of 1998 dated 15.09.2011, whereby it was held that the concerned officer (Mr.J.M.Patel, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.3 SPECIAL CIVIL APPLICATION NO. 6558 of 1988 Challenge in this petition is made to the award passed by the Page 4 of 24 C/SCA/2239/1995 JUDGMENT Industrial Tribunal, Ahmedabad in Reference (IT) No. 167 of 1987 dated 14.07.1988, whereby it was held that the concerned officer (Mr.M.J.Trivedi, Deputy Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.4 SPECIAL CIVIL APPLICATION NO. 5563 of 1999 Challenge in this petition is made to the award passed by the Industrial Tribunal, Bhavnagar in Reference (IT) No.140 of 1991 dated 16.06.1998, whereby it was held that the concerned officer (Mr.R.D.Gandhi, Deputy Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.5 SPECIAL CIVIL APPLICATION NO. 13898 of 2004 Challenge in this petition is made to the award passed by the Industrial Tribunal, Bhavnagar in Reference (ITR) (old) No.114 of 1987- New Number- (ITB) No.159 of 1991 dated 21.04.2003, whereby it was held that the concerned officer (Mr.G.H.Trivedi, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.6 & 2.7 SPECIAL CIVIL APPLICATION NO. 1335 of 2011 AND SPECIAL CIVIL APPLICATION NO. 1359 of 2011 Challenge in these petitions is made to the common award Page 5 of 24 C/SCA/2239/1995 JUDGMENT passed by the Industrial Tribunal, Nadiad dated 29.01.2009 whereby it was held that the concerned officers (Mr.M.R.Tharwala and Mr.V.M.Shah, both Executive Engineers) were workmen and were therefore entitled to be continued in service until they attain the age of 60 years. The Reference Numbers are as under:-
Mr.Tharwala -Reference (IT) No. 388 of 1999- Old Number 138 of 1993, and Mr.V.M. Shah- Reference (IT) No. 68 of 1999- Old Number 409 of 1994.
2.8 SPECIAL CIVIL APPLICATION NO. 9695 of 2011 Challenge in this petition is made to the award passed by the Industrial Tribunal, Nadiad in Reference (IT) No.525 of 1998 (Old No.269 of 1995) dated 22.09.2009, whereby it was held that the concerned officer (Mr.J.B.Vajani, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.9 SPECIAL CIVIL APPLICATION NO. 9696 of 2011 Challenge in this petition is made to the award passed by the Industrial Tribunal, Nadiad in Reference (IT) No.653 of 1998 dated 12.03.2009, whereby it was held that the concerned officer (Mr.R.P.Patel, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.10 SPECIAL CIVIL APPLICATION NO. 9697 of 2011 Challenge in this petition is made to the award passed by the Page 6 of 24 C/SCA/2239/1995 JUDGMENT Industrial Tribunal, Nadiad in Reference (IT) No.526 of 1998 (Old No.270 of 1995) dated 19.09.2009, whereby it was held that the concerned officer (Mr.C.G.Patel, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.11 SPECIAL CIVIL APPLICATION NO. 9859 of 2011 Challenge in this petition is made to the award passed by the Industrial Tribunal, Nadiad in Reference (IT) No.522 of 1998 (Old No.259 of 1995) dated 19.09.2009, whereby it was held that the concerned officer (Mr.N.N.Raval, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.12 SPECIAL CIVIL APPLICATION NO. 10132 of 2011 Challenge in this petition is made to the award passed by the Industrial Tribunal, Nadiad in Reference (IT) No.359 of 1998 (Old No.313 of 1992) dated 20.08.2009, whereby it was held that the concerned officer (Mr.N.M.Shah, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.13 SPECIAL CIVIL APPLICATION NO. 10133 of 2011 Challenge in this petition is made to the award passed by the Industrial Tribunal, Nadiad in Reference (IT) No.39 of 1999 (Old No.81 of 1991) dated 28.08.2009, whereby it was held that the concerned officer (Mr.J.T.Jadeja, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.Page 7 of 24
C/SCA/2239/1995 JUDGMENT 2.14 SPECIAL CIVIL APPLICATION NO. 10134 of 2011
Challenge in this petition is made to the award passed by the Industrial Tribunal, Nadiad in Reference (IT) No.44 of 1999 (old No. 172 of 1995) dated 05.10.2009, whereby it was held that the concerned officer (Mr.P.M.Pancholi, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.15 SPECIAL CIVIL APPLICATION NO. 10135 of 2011 Challenge in this petition is made to the award passed by the Industrial Tribunal, Nadiad in Reference (IT) No.45 of 1999 (Old No.257 of 1995) dated 11.09.2009, whereby it was held that the concerned officer (Mr.B.S.Chauhan, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.16 SPECIAL CIVIL APPLICATION NO. 7308 of 2012 Challenge in this petition is made to the award passed by the Industrial Tribunal, Rajkot in Reference (IT) No.189 of 2001 dated 08.12.2011, whereby it was held that the concerned officer (Mr.N.N.Madia, Deputy Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.17 SPECIAL CIVIL APPLICATION NO. 17115 of 2012 Challenge in this petition is made to the award passed by the Industrial Tribunal, Rajkot in Reference (IT) No.106 of 1995 dated 25.09.2012, whereby it was held that the concerned Page 8 of 24 C/SCA/2239/1995 JUDGMENT officer (Mr.M.K.Sapovadia, Executive Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
2.18 SPECIAL CIVIL APPLICATION NO. 631 of 2013 Challenge in this petition is made to the award passed by the Industrial Tribunal, Bhavnagar in Reference (IT) No.25 of 2003 dated 04.12.2012, whereby it was held that the concerned officer (Mr.M.L.Vyas, Deputy Engineer) was a workman and was therefore entitled to be continued in service until he attains the age of 60 years.
3.1 Learned advocates for the GEB Engineers' Association and the concerned officers have supported the awards of the Industrial Tribunal to the extent they hold that the officers working in the cadre of Executive Engineer and Deputy Engineer with the Gujarat Electricity Board are 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. They have assailed the decision of the Industrial Tribunal in the cases where it is held otherwise.
3.2 It is submitted that, the nature of the duty of each officer was different and considering that the Tribunal has found that they were covered by the definition under Section 2(s) of the Industrial Disputes Act, 1947 and further that they were not excluded through any of the four exceptions as mentioned in the said definition. It is further submitted that, evidence was led on behalf of the concerned officer before the Industrial Tribunal that what type of duties the concerned Deputy Engineer/ Executive Engineer was performing at the relevant Page 9 of 24 C/SCA/2239/1995 JUDGMENT time considering his posting, and whether the concerned officer can be said to be a workman or not is a question of fact, which the fact finding machinery has gone into and therefore no interference be made by this Court, when it is found that the concerned officer was workman. It is further submitted that, in the cases where it is held otherwise, the Industrial Tribunal has committed error and the same be interfered with by this Court.
3.3 Without prejudice to the above contentions, it is further submitted that, there are certain cases where the concerned Deputy Engineer or Executive Engineer were continued in service beyond their superannuation age of 58 years, pursuant to the order of the Industrial Tribunal and subsequent refusal of any interim relief by this Court in favour of the employer, and are paid wages for the said extended period, and under these circumstances, even if the say of the employer is accepted, and in the event this Court comes to the conclusion that the concerned officer was not entitled for any such relief of being continued in the service beyond the age of 58 years, the wages which are paid to the concerned officer be not recovered from him. It is submitted that, in some cases the concerned officer has even died, and therefore it is the widow / legal heir who will have to refund that amount, which would be too harsh and therefore at least that protection be granted.
3.4 In support of their submissions, learned advocates for the Association and the concerned officers have relied on the following decisions.
(i) Anand Regional Cooperative Oil Seedsgrowers Page 10 of 24 C/SCA/2239/1995 JUDGMENT Union Ltd. Vs. Shaileshkumar Harshadbhai Shah reported in 2006 III LLJ SC 223
(ii) S.K. Maini Vs. M/S. Carona Sahu Company Limited and others reported in 1994 (3) SCC 510
(iii) E.S.I.C. Medical Officer's Association Vs. E.S.I.C. and another reported in 2014 AIR SCW 1047
(iv) Mayank Desai Vs. Sayaji Iron and Engineering Company Ltd. and another reported in 2011 (5) GLR 4330
(v) U.P. State Sugar Corporation Ltd. Vs. The Deputy Labour Commissioner, Meerut and others reported in 1991 (1) CLR 330
(vi) Gwalior Investment Company Pvt. Ltd. Vs. K.M. Desai, Member Industrial Court and others reported in 1992 (2) CLR 406
(vii) Mathur Aviation Vs. Lt. Governor, Delhi and others reported in 1997 II LLJ 255
(viii) Gujarat Electricity Board Vs. Gujarat Electricity Employees Union reported in 1993 (I) GLH 686
4.1 On the other hand, learned advocates for the Management of the then Gujarat Electricity Board, which is by this time bifurcated in five different companies, have jointly made the following submissions.
4.2 It is submitted that, in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, the then Gujarat Page 11 of 24 C/SCA/2239/1995 JUDGMENT Electricity Board had made the service regulations. As per clause 6 thereof, Class-I Engineer's service has been shown in Appendix-E. As per the said Appendix-E, the cadres of the Executive Engineer and the Deputy Engineer are treated to be Class-I Engineering Service. It is submitted that the said service regulations are in force since 12.05.1960 and even after the bifurcation of the then Gujarat Electricity Board in five companies, the said service regulations are in force till date.
4.3 It is further submitted that the minimum of the pay-scale of both these cadres have always been much higher than what is prescribed in exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947, i.e. wages of Rs.1,600/- per month, as revised to Rs.10,000/- per month, vide Amending Act, 24 of 2010. It is submitted that, the officers in both these cadres are employed in supervisory capacity. It is further submitted that, their functions are mainly of managerial nature, by the very nature of duties attached to the office they hold. It is submitted that, thus none of the officers of these cadres can be termed as a workman.
4.4 It is further submitted that identical question had cropped up before this Court. Attention of this Court is invited to the decision of this Court in the case of Krishnakant Janmejay Bhatt vs. G.E.B. [Special Civil Application No.13751 of 2004 dated 01.12.2004], wherein the challenge to the award passed by the Labour Court holding that the Deputy Engineer was not to be treated as a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, is negated by this Court. It is submitted that, there is no reason for this Court to take a different view. It is further submitted that, if a Deputy Engineer is not a workman, his higher officer i.e. the Executive Engineer Page 12 of 24 C/SCA/2239/1995 JUDGMENT cannot be treated to be a workman.
4.5 It is further submitted that identical question had cropped up before this Court even in the case of Accounts Officers of the Gujarat Electricity Board and that issue has also been concluded by this Court on this very line. Attention of this Court is invited to the decision of learned Single Judge of this Court in the case of Gujarat Electricity Board vs. B.M.Shah [Special Civil Application No.5802 of 1988 and cognate matters, dated 10.05.2000]. It is submitted that, the said decision is confirmed by the Division Bench of this Court vide its decision in the case of Umakant S. Deshpande vs. G.E.B. reported in 2001 (3) G.L.H. 36 [Letters Patent Appeal No.346 of 2001, 03.08.2001].
4.6 It is further submitted that, in view of above, neither the officers working in the cadre of Deputy Engineer nor in the cadre of Executive Engineer, can be called workmen irrespective of their posting at a particular point of time. It is submitted that, these officers are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and the awards of the Industrial Tribunal, which take the contrary view, be quashed and set aside and one which is on the line of this submission, be upheld.
4.7 Additionally, reliance is placed on the following decisions by learned advocates for the Management in support of their submissions.
(i) All india Reserve Bank, Employees' Association. Vs. Reserve Bank of India - AIR 1966 SC 305 = 1969 II LLJ 175 Page 13 of 24 C/SCA/2239/1995 JUDGMENT
(ii) The Burmah Shell Oil Storage & Distributing Co. of India Ltd. Vs. The Burmah Shell Management Staff Association and ors. - AIR 1971 SC 922 = 1970 (2) LLJ 590 = 1971 (2) SCR 758
(iii) H.R. Adyanthaya and Others Vs. Sandoz (India) Limited and Others - 1994 (2) GLH 162
(iv) Mcleod and Co. Vs. Sixth Industrial Tribunal West Bengal and others- AIR 1958 Calcutta 273
(v) National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and others- AIR 1988 SC 329
(vi) SK Maini Vs. M/s. Carona Sahu Company Limited & Ors. - AIR 1994 SC 1824
(vii) Lloyds Bank Ltd., New Delhi Vs. Panna Lal Gupta and Others - AIR 1967 SC 428 Trichy Srirangam Transort Co. Ltd.,
(viii) A.R.Nataraja Ayyar and others Vs. Trichy - Srirangam Transport Company, Ltd. - 1955 (1) LLJ 608
(viii) A. Sundarambal Versus Government of Goa, Daman and Diu - 1988 (0) GLHEL - SC 237
(ix) Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd., - AIR 1985 SC 985
(x) Standard Vacuum Oil Company Vs. Commissioner of Labour and another - 1959 (2) LLJ Page 14 of 24 C/SCA/2239/1995 JUDGMENT 771 [Special Original Jurisdiction - Writ petitions Nos.521 and 573 of 1959, dated 1 September 1959] (Madras High Court)
(xi) Bombay Dyeing and Manufacturing Company Ltd.V. R.A.Bidoo & Anr- 1990 (1) LLJ 98 [Writ Petition No.6026 of 1987, dated 19th June 1989] (Bombay High Court) 5.1 Having heard learned advocates for the respective parties and having gone through the material on record, so also keeping in view the authorities cited by both the sides, this Court finds as under.
5.2 It is not in dispute that in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, the then Gujarat Electricity Board had made the service regulations. As per clause 6 thereof, Class-I Engineer's service has been shown in Appendix-E. As per the said Appendix-E, the cadres of the Executive Engineer and the Deputy Engineer are treated to be Class-I Engineering Service. The said service regulations are in force since 12.05.1960 and even after the bifurcation of the then Gujarat Electricity Board in five companies, the said service regulations are in force till date.
5.3 It is also not in dispute that the minimum of the pay-scale of both these cadres have always been much higher than what is prescribed in the exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947, i.e. wages of Rs.1,600/- per month, as revised to Rs.10,000/- per month, vide Amending Act, 24 of 2010.
Page 15 of 24C/SCA/2239/1995 JUDGMENT 5.4 The Gujarat Electricity Board caters the public the service of electricity supply. The hierarchy of Engineers is this. Assistant Engineer, Deputy Engineer, Executive Engineer, Superintending Engineer, Additional Chief Engineer and the Chief Engineer. Deputy Engineer would be in-charge of one sub-division which would cater the needs of many villages of a Taluka. Under the administrative control of one Deputy Engineer, in the sub-division, there would be more than one Assistant Engineer and other technical staff. This would be over and above other administrative staff in the office like administration, account etc. Under the administrative control of one Executive Engineer in the Division, there would be more than one Sub - Division i.e. more than one Deputy Engineer, Assistant Engineers and other technical staff. This would also be over and above other administrative staff in the office like administration, account etc. It is not in dispute that all the posts of Deputy Engineer and Executive Engineer are spread over the entire State of Gujarat and all the officers are transferable from one place to another place, one office to another. It may happen that on the transfer of an officer of one sub-division to some other office or from one division to some other office, he may have less persons to be supervised, or in a given case there may not be any other person who would report to him, but even then, the concerned officer continues to be in the cadre of Deputy Engineer or Executive Engineer. What should be the age of retirement of an officer, more particularly in a public sector organisation, cannot be dependent on the place of posting of that officer at the time of his retirement. It has to be for the cadre on the whole. Therefore, the test can be, what is the retirement age of the officers of a particular cadre, and it cannot be different from Page 16 of 24 C/SCA/2239/1995 JUDGMENT person to person in one cadre.
5.5.1 Further, the above stated undisputed facts need to be considered keeping in view the provisions contained in Section 2(s) of the Industrial Disputes Act, 1947. The said sub-section reads as under.
"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context, -
(s ) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 ( 62 of 1957); 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 Page 17 of 24 C/SCA/2239/1995 JUDGMENT capacity, draws wages exceeding [ten thousand 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."
5.5.2 The conjoint reading of the undisputed facts and above statutory provision makes it clear that the Officers working in the cadre of Deputy Engineer and Executive Engineer are employed in a supervisory capacity, and they have always drawn wages exceeding what is prescribed in the statute i.e. Rs.1,600/- per month or Rs.10,000/- per month. For this reason, the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947, and therefore can not claim to be workmen. In view of this finding, though further inquiry may not be necessary, it also transpires that, they also exercise the functions mainly of a managerial nature, either by the nature of the duties attached to the office or by the reason of the powers vested in them. Thus, though it is not in dispute that, these officers are covered by Section 2(s) of the Act, equally true it is that they are excluded by exception-
(iv) of that sub-section, for more than one reasons, and that is how they are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
5.6.1 Further, this Court has already concluded this issue by more than one decisions. So far the cadre of Deputy Engineer is concerned, the said point is specifically answered by this Court in Special Civil Application No.13751 of 2004, in order dated 01.12.2004, the relevant part of which reads as under.
Page 18 of 24C/SCA/2239/1995 JUDGMENT "5. Having considered the submissions made by the learned counsel for the petitioner and having examined the award of the Labour Court, it is not possible to interfere with the findings of the Labour Court. As noted above, admittedly, the petitioner was engaged as Deputy Engineer by the respondent. Admittedly, his pay was more than Rs.1600/- per month. The finding of the Labour Court that the evidence on record establishes that the petitioner was discharging duties of supervisory character also cannot be interfered with. I am in agreement with the view of the Labour Court and I find that there is substantial evidence on record to suggest that the petitioner was enjoying control over several subordinates who are working under him. The attempt on the part of the counsel for the petitioner to show that the powers of the petitioner were withdrawn on the basis of communication dated 23rd June 1999 also cannot be of any avail to the petitioner. The said communication only suggests that some other officer was asked to take over the charge of ongoing works from the petitioner. The background in which the said decision was taken is not clear. However, the said communication can only mean that for some internal reasons, the charge of the works otherwise being carried on by the petitioner was handed over to some other officer. That by itself would not divest the petitioner of his character of an officer of the respondent who is otherwise vested with supervisory powers."
Page 19 of 24 C/SCA/2239/1995 JUDGMENT
[emphasis supplied]
5.6.2 This Court not only does not find any reason to take a
different view in the matter, independently also this Court has already arrived at the finding in this regard, as recorded in para:5.5.2 above. Further, if a Deputy Engineer is not a workman, Executive Engineer, who is higher in rank, is certainly not a workman. The point for consideration before this Court thus stands answered accordingly.
5.7 Additionally, under almost identical circumstances, in the case of Accounts Officers of the Gujarat Electricity Board, this Court has taken the same view, in the case of Gujarat Electricity Board vs. B.M.Shah in Special Civil Application No.5802 of 1988 and the same is even confirmed by the Division Bench in Letters Patent Appeal No.346 of 2001. I see no distinction in the cases on hand, except that it was the case of Accounts Officers, while the present cases are of the Deputy Engineers and Executive Engineers. Thus, the view of learned Single Judge of this Court, as confirmed by the Division Bench in case of an Accounts Officer applies with full force in the case of Deputy Engineer and Executive Engineer as well. The applicability of Section 2(s) of the Industrial Disputes Act, 1947 is not in dispute, but the argument of learned advocates for the officers is that, they are covered by Section 2(s) of the Act and further that, they are not excluded through any of the four exceptions under that sub-section. It is this later part of the argument, which is rejected. In view of the undisputed facts recorded above, it is held that the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception-(iv) of Section 2(s) of the Act and thereby they stand excluded from the ambit of the definition of the workman Page 20 of 24 C/SCA/2239/1995 JUDGMENT under Section 2(s) of the Act.
5.8 In view of the above reasonings and findings, it is held that, the officers working in the cadre of Executive Engineer and Deputy Engineer with the Gujarat Electricity Board are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. For this reason, the impugned awards passed by the Industrial Tribunal wherein it is held that they are workmen, cannot be sustained and they need to be quashed and set aside. The impugned award passed by the Industrial Tribunal wherein it is held that they are not workmen, need not be interfered with and needs to be upheld.
5.9 Though both the sides have cited number of authorities, it is recorded that, they are only guiding principles to arrive at a conclusion with regard to the point at issue, and since in the present case, the said point at issue is already a concluded issue, by the binding precedents cited above, and further that since those precedents are in no way in conflict with either the statutory provision or with any other binding precedent, the other judgments relied upon by both the sides do not alter the legal position and therefore those judgments will not take the case of the officers any further and therefore they are not discussed.
5.10 Though the principle contention pressed into service on behalf of the Officers' Association is not accepted, even while interfering in the impugned awards passed by the Industrial Tribunal wherein it is held that, the concerned officer was a workman, this Court deems it proper to protect the concerned officer to the extent that, no recovery be made from them of the wages which are already paid to them for the period during Page 21 of 24 C/SCA/2239/1995 JUDGMENT which they have continued in service even beyond the age of 58 years, because of some interim order either of the Industrial Tribunal or of this Court. It is recorded that, all these officers have retired before years, in some cases before decades, and in some case they have died also, and therefore it is the widow or the legal heir from whom the said recovery could be effected even if it was to be done. Considering all these aspects, it is held that, though the concerned officer could not have been continued in service beyond the age of 58 years, this would not entitle the authorities of the Gujarat Electricity Board (now the Electricity Companies) to recover any amount from the concerned officer.
6. For the reasons recorded above, this Court arrives at the following judgment and passes order as under.
(A) The officers working in the cadre of the Deputy Engineer and the Executive Engineer of the then Gujarat Electricity Board, now the Electricity Companies, are not the workmen within the meaning of Section 2(s ) of the Industrial Disputes Act, 1947. Consequently, they are not entitled to be governed by the service conditions as are applicable to the workmen of the then Gujarat Electricity Board, with the further consequence that, they cannot claim their superannuation retirement age to be sixty years, and it would be fifty eight years.
(B) The Industrial Tribunal, Surat has not committed any error in holding as (A) above, vide its award dated 16.05.1994 in Reference (IT) No.7 of 1989, which is the subject matter of Special Civil Application No.2239 of 1995. The said petition is therefore dismissed. Rule is discharged. No order as to costs.
Page 22 of 24C/SCA/2239/1995 JUDGMENT (C) In all other petitions, challenge is made by the Electricity Companies to the award passed by the Industrial Tribunal wherein it was held that, the concerned Deputy Engineer / Executive Engineer was a workman. Those awards are quashed and set aside.
(D) In the result, the following petitions are allowed.
(i) Special Civil Applications No. 16684 of 2013
(ii) Special Civil Application No.6558 of 1988
(iii) Special Civil Application No.5563 of 1999
(iv) Special Civil Application No.13898 of 2004
(v) Special Civil Application No.1335 of 2011
(vi) Special Civil Application No.1359 of 2011
(vii) Special Civil Application No.9695 of 2011
(viii) Special Civil Application No.9696 of 2011
(ix) Special Civil Application No.9697 of 2011
(x) Special Civil Application No.9859 of 2011
(xi) Special Civil Application No.10132 of 2011
(xii) Special Civil Application No.10133 of 2011
(xiii) Special Civil Application No.10134 of 2011
(xiv) Special Civil Application No.10135 of 2011
(xv) Special Civil Application No.7308 of 2012 (xvi) Special Civil Application No.17115 of 2012 (xvii) Special Civil Application No.631 of 2013.
(E) It is ordered that, in the cases where the concerned Deputy Engineer and / or Executive Engineer were continued in service beyond their superannuation age of 58 years, pursuant to the order of the Industrial Tribunal and subsequent refusal of any interim relief by this Court in favour of the employer, Page 23 of 24 C/SCA/2239/1995 JUDGMENT and are paid wages for the said extended period, no recovery shall be effected by the employer - the Electricity Companies, in that regard, from the concerned officer, or the legal heirs of the concerned officer.
(F) Registry is directed to send a copy of this judgment and order to the learned President of the Industrial Tribunal at Ahmedabad, who in turn shall circulate it to the Industrial Tribunals / Labour Courts.
(G) Subject to above protection and direction, Rule in each of above petitions (except Special Civil Application No.2239 of 1995) is made absolute. No order as to costs.
(PARESH UPADHYAY, J.) Amit/1 Page 24 of 24