Delhi District Court
Labour Court No. Vii vs Sh. Pritam John Raised An Industrial on 10 August, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 82/2000
BETWEEN
The workman Sh. Pritam John,
8/607, Block - 'A', Amar Colony,
Gokulpuri, Delhi.
AND
The management of M/s Owens Brockway (India) Ltd.,
Thapar House, Ist floor, Western Wing,
124, Janpath, New Delhi-1.
Ref.: F.24(5178)/99-Lab./3463-67 dated 28.1.2000.
AWARD
1. Workman Sh. Pritam John raised an industrial
dispute against his illegal removal from the services, which
was referred to this court for adjudication by the Secretary
(Labour), Government of NCT of Delhi, in the following
terms of reference :
"Whether the services of Sh. Pritam John
have been terminated illegally and /or
unjustifiably by the management, and if so,
to what relief is he entitled and what
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directions are necessary in this respect?"
2. Brief facts of the case as made out from the record
are that workman was working with the management M/s
Arizone Printers and Packers Limited, B-93 Greater Kailash
part-I, New Delhi since 01.3.1992. He used to discharge his
duties as supervisor efficiently and never gave any cause of
complaint to the superior officer. This firm was taken over by
management no. 1 and he became an employee of
management no. 1. He used to perform his duties as an officer
and his performance was appreciated and his salary was
increased from time to time. However, in April 1999
management started scheming to remove the claimant from
duty and instructed the security staff not to allow the
workman to enter the office/premises of the management.
When the workman was not allowed to enter the office he
served a notice dated 22.4.1999 on the management and was
informed that his services were terminated with effect from
27.4.1999. It is further claimed that termination of the
workman is illegal and unjustified as neither any notice was
issued to him nor any enquiry was conducted. It is claimed
that no compensation was paid to him at the time of his
2
termination. He raised an industrial dispute which could not
be settled due to adamant attitude of the management and
ultimately came to be referred to this court in the above terms
of reference. The workman is unemployed since the date of
his termination and despite his best efforts he could not
secure alternative employment. It is prayed that since the
termination of the workman is illegal and unjustified, the
management may be directed to reinstate him with all
consequential benefits including continuity of service and full
back wages.
3. Management contested the claim and filed its written
statement contending that claimant was employed with it but
the claimant was not a "workman" as he himself admitted that
he was appointed as supervisor and he was later on promoted
as an officer and was working as Administrative Incharge-
Officer Level-I and was drawing salary of Rs.5296/- p.m. It
is claimed that his duties were purely supervisory and
administrative in nature and, as such, he is not a "workman"
as defined under Industrial Disputes Act 1947 (hereinafter to
be referred as the "Act") . It is further claimed that he was
terminated after payment of three months notice as per the
3
terms and conditions of the service. It is repeatedly claimed
that neither claimant is workman nor his termination is illegal
as he was an officer and has been terminated as per terms and
conditions of appointment. It is prayed that since the claimant
is neither a workman nor his termination is illegal, he is not
entitled to any relief and the claim may be dismissed.
4. Workman filed rejoinder to the written statement
denying the averments made therein and reiterating the
averments made in the claim petition.
5. On the pleadings of the parties, following issues were
settled for trial by my learned predecessor vide order dated
23.8.2001:-
(i) Whether the claimant was not a
workman as per Section 2(s) of the I.D.
Act?
(ii) As per terms of reference.
6. In support of his case, workman examined himself as
WW-1 and placed on record his affidavit EX.WW1/A
4
7. On the other hand, management has examined MW-1
Sh. Shammi Thusu, who has placed on record his affidavit
EX.MW1/A alongwith documents EX.MW1/1 to 3.
8. I have heard the arguments at the bar and have
carefully gone through the file.
9. My findings on the issues are as under:-
ISSUE NO. 1:
10. It is submitted by the learned Authorized
Representative (AR) for the management that the claimant is
not a workman as defined under the Act. It is submitted that
claimant himself submits in his claim that he was appointed as
supervisor and was later on promoted as an "officer". It is
submitted that he was working as Officer Administration. It is
further submitted that claimant is not entitled to any relief as
he is not a workman. My attention has been invited to an
authority reported as M/s Sagari Leathers (P) Ltd. Vs.
Presiding Officer, Industrial Tribunal (4), Agra and
others, 2006 (110) FLR 1043.
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11. On the other hand, learned AR for the workman
submitted that he is a "workman" as defined under the Act
and he has no administrative or supervisory powers. It is
submitted that he was working only in clerical capacity.
12. Section 2(s) of the Act, defines "workman" as
under :-
"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 that dispute, but
does not include any such person :-
(i) who is subject to the Air Force
Act, 1950, or the Army Act, 1950, or the
Navy Act, 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 capacity, draws wages
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exceeding one thousand six 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"
13. In an authority reported as G.M. Pillai Vs. A.P.
Lakhanikar & Ors. 1998 I CLR 281, Hon'ble Bombay High
Court while dealing with the question whether a person is a
"workman" or not, observed as under :-
".................................................................
..................................................................
In determining the question whether a person employed by the employer is workman under Section 2(s) of the Industrial Disputes Act or not, the Court has principally to see main or substantial work for which the employee has been employed and engaged to do. Neither the designation of the employee is decisive nor any incidental work that may be done or required to be done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employees over the employees of lower ladder without any control may not by itself be sufficient to bring that employee in the category of supervisor, yet if the principal job of that employee is to oversee the work of employees who are in the lower ladder 7 of the hierarchy and he has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. Each case would depend on the nature of the duties predominantly or primarily performed by such employee and whether such function was supervisory or not would have to be decided on facts keeping in mind correct principles. In John Joseph Khokar V. B.S. Bhadange & two others, 1997 II CLR 921. I observed, "where the employee possess the power of assigning duties and distribution of work such authority of employee may be indicative of his being supervisor doing supervision. In a broad sense supervisor is one who has authority over others : someone who superintends and direct others. An employee who in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it correctly in accordance with norms shall certainly be a supervisor. A supervisory work may be contradistinguished from managerial and administrative work, and so also a supervisor from manager and administrator. Supervisor's predominant function is to see that work is done by workers under him in accordance with the norms laid down by the management : he has no power to take any disciplinary action......................................................... ................................................................."
14. Similarly, in another authority reported as Union Carbide India Ltd. Vs. D. Samuel & Ors. 1998 II CLR 8 736, Hon'ble Bombay High Court observed in paragraphs 8 & 9 as under:-
"8. From a consideration of the aforesaid judgments a supervisor other than one who is not exercising either by nature of duties attached to the office or by reasons of powers vested in him functions mainly of a managerial nature must exercise supervisory functions and draw wages exceeding Rs.1,600/- per mensem. The laws as laid down, thus can be summarised as under :-
(1) Designation is not material but what is important is the nature of work.
(2) Find out the dominant purpose of employment and not any additional duties the employee may be performing.
(3) Can he bind that Company/ employer to some kind of decisions on behalf of the Company/employer.
(4) Has the employee power to direct or oversee the work of his subordinates.
(5) Has he power to sanction leave or recommend it; and (6) Has he the power to appoint, terminate or take disciplinary action against workmen.
From the judgments of this Court and the 9 other High Court some of the tests apart from what the Apex Court has stated are :-
(a) Whether the employee can examine the quality of work and whether such work is performed in satisfactory manner or not;
(b) Does the employee have powers of assigning duties and distribution of work;
(c) Can he indent material and distribute the same amongst the workmen;
(d) Even though he has no authority to grant leave does he have power to recommend leave;
(e) Are there persons working under him;
(f) Has he the power to supervise the work of men and not merely machines
(g) Does he mark the attendance of other employees;
(h) Does he write the confidential reports of his subordinates
9. These tests are not the only tests. There can be a situation where there may be other tests to indicate whether the person is doing supervisory work or not. However, what is material is to note is that a supervisor must be in a position to bind his employer in respect of the decisions that he has taken or in exercise of such power have 10 control on them. It is true that this test to some extent may indicate functions which are managerial or administrative in nature. However, this was the test applied by a learned Single Judge of the Calcutta High Court in Mcleod & Co.
(Supra) and approved by the Apex Court in National Engineering Industries Ltd. V. Shri Kishan Bhageria & Ors. AIR 1988 SC 329. The Apex Court therein noticed the distinction between expression 'supervisory', 'managerial' and 'administrative'. The Apex Court has also noted that these terms or expression cannot be put in a water tight compartment. However, the Apex Court has observed that on must always look into the main work and that must be found out from the main duties. A supervisor is one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. The Court therefore will have to bear in mind these tests while examining, as to what is the main work of an employee."
15. Similarly, in an authority reported as Anand Regional Co-op. Oil Seedsgrowers Union Ltd. Vs. Shaileshkumar Harshadbhai Shah 2006 III LLJ 767, Hon'ble Supreme Court while dealing with the case of an employee working as Assistant Executive in the Quality Control Department of the management, in which the issue 11 was whether the claimant was "workman" or not observed in paragraphs 11 to 17 as under:-
"11. In the disciplinary proceeding while asserting that he did not take part, the Respondent in his evidence stated that he was the Head of the Department and there was no officer superior to him except the Managing Director. To a query made, whether the employees named by him were under his control; he, however, stated that as a senior he gives guidance. He, however, did not state that he was authorized to initiate any departmental proceedings against his subordinates.
12. Section 2(s) of the Act, defines "workman" as under :-
"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 that dispute, but does not include any such person :-
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or
(ii) who is employed in the police service or as an officer or other employee of 12 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 one thousand six 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"
13. The ingredients of the definition of 'workman' must be considered having regard to the following factors:
(i) Any person employed to do any skilled or unskilled work, but does not include any such person employed in any industry for hire or reward.
(ii) There must exist a relationship of employer and employee.
(iii) The persons inter alia excluded are those who are employed mainly in a managerial or administrative capacity.
14. For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also terms of the appointment in the job performed are relevant considerations.
15. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class 13 to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the Section alone and that too it being a small one and relating to quality control would not answer the test.
16. The precise question came up for consideration in Ananda Bazar Patrika (P) Ltd. vs. Workmen 1970 (3) SCC 248 :
1969-II-LLJ-670 wherein it was held at p.671 of LLJ:
"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."
17. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. The work involves exercise of tact and independence."
1416. In Tata Sons Ltd. Vs. S. Bandyopadhyay & Anr.
2004 LLR 506. Hon'ble Delhi High Court dealt with the case of Deputy Manager (Engineering) and observed in paragraphs 7,9,10,18 and 19 as under :-
"7. The question that arose in T.P. Srivastava vs. M/s National Tobacco Co. of India Ltd., 1991 LLR 813 (SC) : AIR 1991 SC 2294 was whether a Section Salesman was a workman or not. The Supreme Court discussed the nature of work of a Section Salesman and concluded that since his duties require an imaginative and creative mind, his duties could not be termed as either manual, skilled, unskilled or clerical in nature. Consequently, it was held that such an employee cannot be termed as a workman. This is what the Supreme Court said in paragraph 3 of the Report :
"It is seen from the facts found that the appellant was employed to do canvassing and promoting sales for the company. The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition. He was also required to suggest about the publicity in markets and melas, advertisements including the need for posters, holders and cinema sides. These duties do require the imaginative and creative mind which could not be termed as either manual, 15 skilled, unskilled or clerical in nature. The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation. Such a person cannot be termed as a workman is also the ratio of the decision of this Court in Nurmah Shell Oil Storage and Distribution Company Vs. Burmah Shell Management and Staff, AIR 1971 SC 922, D.S. Nagraj Vs. Labour Officer Karnal (1972) 42 FLR 440 (AP), J.J. Dechane Distributor Vs. State of kerla (1974) 2 Lab LJ 9 : (1974 Lab IC 379) (Kerala)."
9. Tata Risk Management Services is said to be a division of Tata Sons Ltd. and performs consultancy service in the field of risk management. While the exact nature of duties of the Respondent employee is not specifically available on record various documents filed before the learned Labour Court indicate the nature of work done by him and these document show that his work required imagination and creativity, as one would expect of a consultant.
10. What does the employee say about the nature of work done by him? He says in paragraph 3 of his statement of claim that he was employed with the Petitioner since 15th January, 1985 as a highly skilled workman. He was doing work with his own hands and he had no power to appoint or charge sheet any worker. He had no power to grant leave and could not take independent decisions. He was working on 16 instructions from the management. He repeats this in his affidavit by way of evidence and adds that he was performing duties like checking with his own hands machines, buildings, electrical installations and fire fighting equipments. In other words, his case was that he was a skilled manual worker.
18. None of these documents have been controverted by the employee and these really from the basis for determining the nature of duties performed by him. Even a cursory reading of these documents suggests that the employee was highly educated (as per his visiting card, he is a chartered engineer) and was certainly not doing any manual work as claimed by him. Manual work (or inspection) may have been incidental to his primary duties as a consultant in risk management, but that will not make him a workman for the purposes of the Act. The nature of work clearly involved a considerable amount of mental inputs related to creativity and imagination. It can hardly be said that the employee was someone doing manual work.
The word "skilled" as in Section 2(s) of the Act has to be construed ejusdem generis, as held in Adyanthava. So construed, it means skilled work, whether manual or non- manual, which is of a genre of the other types of work mentioned in the definition. The documentary evidence on record clearly shows that the work of the employee was that of a highly qualified and specialized consultant, in the field of risk management. By no stretch of imagination can he be called a skilled workman doing manual or non-manual work.
171. Similarly, in Narsinha Anand Joshi Vs. Century Shipping & Ors. 1994 LLR 440 Hon'ble Bombay High Court dealt with the case of a technical officer and observed in paragraphs 7 to 9 as under :-
"7. I have carefully considered the evidence of the Technical Manager as well as the petitioner-employee. On careful consideration of the same it is clear that the petitioner-employee was not workman or a clerk. In fact, he was working in an administrative capacity. His job was not to do the filing of the papers himself but "he was responsible for ensuring proper filing of papers and maintenance of filing papers" as is evident from the show-cause notice given to him (which is Exh.'E' to the Writ Petition No. 3047 of 1988). It appears that the Labour Court has carefully scanned the entire evidence on record and only on a careful appraisal of the same, arrived at a conclusion that the dominant nature of the duties of the petitioner-employee was administrative. I do not find any infirmity in the said finding which might justify interference by this Court in exercise of powers under Article 226 of the Constitution.
8. I have carefully perused the decision of the Supreme Court in S.K. Verma vs. Mahesh Chandra & Anr. AIR 1958 SC 130. In this case the Supreme Court while interpreting the definition of workman in Section 2(s) of the Act, has observed in no less clear terms that :
"Quite obviously the broad 18 intention is to take in the entire "labour force" and exclude the "managerial force". That, of course, is as it should be."
9. The sole question for determination, in the present case, therefore is whether the petitioner-employee can be called a workman employed to do the clerical work or employed mainly in administrative capacity. The nature of work of the petitioner-employee, the various duties performed by him, his status and position in the company, his ranking-all clearly go to show that he was employed mainly in the administrative capacity and any work which can be termed as work of clerical nature done by him was only incidental to his employment in the administrative capacity. In that view of the matter, in my opinion, the Labour Court was justified in holding that the petitioner was not a workman and, hence, the reference was not maintainable. Writ petition No. 3047 of 1988 has, therefore, no merit and is dismissed."
17. In his claim the claimant himself stated that he was appointed as supervisor and he further claims that his work was much appreciated as an officer because of hard work. As such, as per his own version he was an officer and not a workman.
18. MW-1 Sh. Shammi Thusu has deposed in his 19 affidavit EX.MW1/A in paragraph two as under:-
"That the applicant was working in Head Office at 124, Janpath Thaper House, New Delhi in the year 1996 when I came there. At that time about 60 persons were working on head office rolls. The head office consist of Finance Deptt., Quality Control Deptt., Design Deptt., P & A Deptt. & Commercial Deptt. About 8 persons were working as contractor's employees doing security & house keeping work. The applicant was working in the head office in the Administrative wing as Officer Administration. I have seen him working that the applicant being the officer in the administration department of the company, was having all privileges and authority of the said post. He was administrating and controlling the affairs of the company pertaining to administration and all liaison work of the head office for purchases, security, guest house maintenance, vehicle maintenance with full control on drivers & other staff of house keeping and associated thereto, banking assignments, etc. The applicant was the controlling person for dealing with ESI authorities for the respondent management and was signing on behalf of the management as competent person."
19. MW-1 Sh. Shammi Thusu has been cross-examined by learned AR for the workman but his assertion that claimant was an officer has gone unchallenged and has not been challenged in a very strong manner.
2020. In his cross-examination claimant himself admitted that he was promoted from supervisor to the post of junior officer. He also admits that he had filled up application form in his own handwriting and signed the same, that is, EX.M-3 in the capacity and designation as an officer (P & A). He also admits that he used to get maintenance work done through the staff. He also admits that he was initially working as supervisor. In his affidavit he has nowhere mentioned as to what type of clerical work was he doing.
21. Only an employee doing manual, unskilled, skilled, technical, operational, clerical or supervisory work happens to be workman within the meaning of the Act. Workman has not specified as to which of the aforesaid duties he used to perform. Further more, though he claims that he was appointed as supervisor but was later on promoted as an officer, yet he does not claim that he was performing only manual or clerical duties. An employee who is not a workman within the meaning of the Act cannot be allowed to avail the benefits of the Act. The claimant started his career as a supervisor and was later on promoted as officer and signed several papers in that capacity. As such, claimant has failed to 21 prove that he was a workman with the management. The issue is accordingly decided in favour of the management and against the workman.
ISSUE NO. 2 :
22. In view of the fact that claimant is not a workman, he is not entitled to any relief from this court. The issue is accordingly decided in favour of the management and against the workman.
23. In view of above discussion, reference is answered in above terms and award is passed accordingly. Six copies of the award be sent to the appropriate Govt. for publication. File be consigned to record room.
Announced in open court. ( O.P. SAINI ) DATED : 10.8.2007 PRESIDING OFFICER :
LABOUR COURT NO.VII : DELHI 22 ID No. 82/2000 10.8.07 Present: Workman in person.
None for management.
Vide my separate order award is passed in favour of the management and against the workman. Six copies of the award be sent to the appropriate Government for publication. File be consigned to record room.
POLC-VII/ 10.8.07 23