Bombay High Court
Vilas Dumale vs Siporex India Ltd. And Anr. on 3 July, 1997
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. This petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner for issuance of a Writ of certiorari or a writ in the nature of certiorari or any other appropriate Writ, directions or orders quashing and setting aside the Award in Reference No. IDA-206 of 1982 dated 22nd February, 1985.
2. The petitioner was working as a clerk since 23rd April, 1974 with the respondent No. 1. His last drawn salary was Rs. 1,055/- p.m. His services were abruptly terminated on 20th January, 1982 without disclosing any reasons for termination. The petitioner took the issue regarding termination before appropriate officer of the Commissioner of Labour Department and after following the procedure, the Conciliation Officer submitted his failure report to the Deputy Commissioner of Labour, Pune, by his letter dated 26th October, 1982. On the basis of the failure report, the Deputy Commissioner of Labour, referred the matter for adjudication by his order dated 21st December, 1982. In the second Labour Court, Pune, the petitioner claimed that his services were wrongly terminated from 20th January, 1982 and claimed reinstatement and the full back wages with continuity in service. The respondent No. 2 directed the parties to file their written statement in support of their contentions. The petitioner filed statement of claim on 8th February, 1983 contending that the termination was bad in law, as no opportunity whatsoever was given to the petitioner to answer the claims and contentions of the Respondent No. 1. The company respondent No. 1 filed their written statement and denied the claim of the petitioner. One of the contentions raised by the respondent No. 1 was that the petitioner was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. It was stated that at the time of termination of his services, the petitioner was working in a supervisory capacity and was drawing wages to the extent of Rs. 1,055/- which exceeds Rs. 500/-. The petitioner was vested with the powers of supervisor. Thus, he did not fall within the definition of a workman. The Presiding Officer of the Labour Court recorded the evidence of the parties and also took on record various documents in support of the contentions. Having considered the evidence and the documentary evidence, the Respondent No. 2 came to the conclusion that the petitioner is not a workman as defined under Section 2(s) of the Industrial Disputes Act. The reference having been decided against the petitioner, he has been constrained to file the present petition.
3. I have heard the counsel for the parties and have perused the Award given by the Respondent No. 2. A perusal of the said Award shows that the Labour Court has discussed the evidence given by the parties. It has been found as a fact that the petitioner was initially appointed as a Clerk. Subsequently, from time to time, he was given promotion. Ultimately, at the time of his removal, he was working as a Senior Personnel Assistant Officer. His wages were also above Rs. 500/- p.m. The evidence given by the petitioner in support of his claim was examined. The petitioner himself stated that on 5th March, 1981, he was upgraded to the post of Senior Personnel Assistant. It is further stated that all along he was performing only the duties of clerk. He was preparing pay bills of the staff, completing ESI reports, production reports, workers leave records and attendance record. He also stated that he was working alone and no hand was given for either his help or for his assistance. He was required to attend all his work personally. He was not invested with any authority. He was not permitted to sanction the leave of any employee. He was sometime required to sign the leave application only for sectional head. Mr. Mandhare used to give instruction to him and he was simply doing compliance thereof. He was not given any power to take any independent decision. Thus, it is submitted that he was not working in a supervisory capacity. On the other hand, number of witnesses appeared on behalf of the company. One of the witnesses, deposed that he is working as a time-keeper in the company since 1st August, 1977. The petitioner was also working in the same department. He was their supervisor in the Personnel Department. According to this witness, 4 persons were working under the petitioner and the witness himself was one of them and they were reporting their duties to the petitioner. It was further stated by this witness that the petitioner was supervising their duties and he was also taking care of payments of ESI and Provident Fund. It was further stated that the petitioner was incharge of watch and ward department, where 12 to 13 watchmen are there. The petitioner used to sanction their leave and used to arrange their shifts. It is further stated that three clerks were working under the petitioner. The petitioner also worked as an enquiry officer and also represented the company in conciliation proceedings. He was helping the personnel officer in discharging his duties. The second witness also spoke in the same manner about the duties of the petitioner. He stated that the last wages drawn by the petitioner were Rs. 1,055/- p.m. He especially added that conveyance allowance was also granted and paid to the petitioner. It was stated that this conveyance allowance was not paid to any of the workmen. He reiterated the earlier statement of the first witness to the effect that the petitioner supervised the duties of the time-keepers and he was also giving them instructions, if required. He was also supervising the work of watch and ward department. The petitioner was also giving instructions to the watch and ward staff about their shifts. Other statements made by the earlier witness have been reiterated.
4. After considering all this evidence, the respondent No. 2 has come to a conclusion that all these witnesses were bitterly cross-examined, but their evidence could not be shattered. The Labour Court has also come to a conclusion that at the time of termination of services of the petitioner, his cadre was above time-keeper and below the Personnel Officer. The petitioner has claimed that although he had been taken up on the post of Senior Supervisory, he was allotted the duties of an ordinary workman. However, thereafter the Labour Court has come to a conclusion that the petitioner has failed to substantiate that he was maintaining the register of leave record of the workers and their pay register etc. No documentary evidence was produced by the petitioner to substantiate this claim. The Labour Court has also noticed that the petitioner was being paid conveyance allowance, which is not paid to the workmen. Thereafter the second respondent has also examined the documentary evidence placed on record. It is noted that on most of the leave applications, particularly at E. 14, the petitioner signed independently with some recommendary endorsements. At Exs. 17 and 18, he was also required to sign for the departmental head. It is also noted that the admitted position is that in many departmental enquiries, the petitioner worked as an enquiry officer and also represented the company in conciliation proceedings. Admittedly, his pay was above Rs. 500/-.
5. Taking all these facts and circumstances into consideration, the Labour Court has come to the conclusion that the petitioner cannot be described as a workman as defined under Section 2(s) of the Industrial Disputes Act. The counsel for the petitioner has referred to a judgment given in the case of Ved Prakash Gupta v. M/s. Delton Cable India (P) Ltd. . Looking at the evidence perused in that case, the Supreme Court has come to the conclusion that the findings of the Labour Court that the appellant therein is not a workman is perverse and could not be supported. It was held that in the circumstances, the substantial duty of the concerned employee was only that of a security inspector at the gate of the factory premises and it was neither managerial nor supervisory in nature, so as to exclude him from the definition of workman under Section 2(s) of the Act. The facts and circumstances of that case are wholly distinguishable from the duties which have been stated to be performed by the petitioner in this case. Therefore, the finding given in that case cannot be of much assistance to the petitioner. The Labour Court has given the findings of fact after appreciating all the evidence. The evidence of the witnesses produced by the management has not been shaken, although they have been cross-examined. It has been clearly narrated by the witnesses that the petitioner has been working in a supervisory capacity. It has also been stated that conveyance allowance is not given to workman, but is only given to category other than workman. The counsel for the petitioner has, however, relied on a judgment given in case of National Engineering Industries Ltd. v. Shri Kishan Bhageria & Ors. reported in 1988 I CLR 290 S.C. In this case also, it has been held that whether a person is a supervisor or workman has to be decided on the facts and circumstances of the case. The decision has to be taken on the evidence available before the Court. The Supreme Court noted some of the observations made by the Division Bench of Calcutta High Court in . In para 4 of the judgment, the observations of the Division Bench of Calcutta High Court are noticed. The Division Bench has observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge functions mainly of managerial nature by reason of the duties attached to his office or of the powers vested in him. It was further observed that a person in charge of a Department could not ordinarily be a clerk even though he may not have power to take disciplinary action or even though he may have another superior officer above him. It was further observed that distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision. It is reiterated that a manager or administrator's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator. Looking to the facts and circumstances of that particular case, the Supreme Court came to the conclusion that the respondent No. 1 therein is a workman.
6. The counsel for the petitioner has also relied on a judgment given in case of S. K. Maini v. M/s. Carona Sahu Company Ltd. & Ors. reported in 1994 II CLR S.C. 359. In this case, the Supreme Court has laid down the principles for the determination of the question as to whether a particular employee falls within the definition of workman. In the said case it has been observed as under :
"Whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the concerned employee and not some works incidentally done. In other words, that is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as defined in Section 2(s) of the Industrial Disputes Act".
Keeping the above observations in view, I am of the considered view, that the petitioner cannot be held to be a workman.
7. I have given due consideration to the rival contentions of both the parties. In my view, the findings of facts arrived at by the Labour Court cannot be said to be perverse. They cannot be said to be based on no evidence. The view taken by the Labour Court is possible view, which could be taken. Therefore, this Court exercising its jurisdiction under Articles 226/227 of the Constitution of India may hardly be justified in substituting its own view in place of the view of the Labour Court. Even otherwise, I am of the considered view that there is sufficient evidence to indicate that the petitioner was indeed working in a supervisory capacity and not a workman. The evidence led by the management has not been disbelieved by the Labour Court. That being so, the well reasoned finding of the fact given by the Labour Court cannot be interfered with.
8. At the outset, before proceeding to argue the matter, the counsel for the petitioner had very fairly stated that in the meantime, the petitioner had, in fact, become a qualified and licensed advocate. It is also stated that the petitioner, in fact, is now a practising advocate in Pune since the year 1991. Thus, it was submitted that the petitioner in any case, would not be interested in reinstatement. The question only remains about the payment of back wages between the period when his services were terminated till the time he started making a living as an advocate. These facts have been noticed only to indicate the fairness of the counsel for the petitioner. Otherwise no further comments are necessary on his point.
9. In view of this, I find no merit in the Writ Petition. The same is dismissed with no order as to costs.
10. Petition dismissed.