Bombay High Court
Inter Globe Air Transport vs Mrs. Leela Deshpande And Anr. on 12 October, 1993
Equivalent citations: 1994(2)BOMCR596
JUDGMENT A.V. Savant, J.
1. Heard both the learned Counsel, Dr. Chandrachud for the petitioner employer and Mr. Puri for respondent No.1 - original complainant employee.
2. The petition seeks to challenge the interim order dated 28th July, 1993 passed by the Industrial Court, Bombay, granting interim reliefs in terms of para 4(a), (b) and (c) of the complaint filed by the respondent workman. In para 4(a), prayer is for an injunction restraining the petitioner employer from dismissing, discharging or terminating the services of the complainant. In para 4(b), prayer is for a direction not to adversely change the service conditions of the complainant and in para 4(c), prayer is for a direction to the petitioner to withdraw the illegal change permanently and pay the amount lost by the complainant by virtue of illegal change. Since the matter has been argued at length, and since the question of interim relief assumes importance in the peculiar nature of the controversy, it has become necessary to record some reasons for this order.
3. The petitioner is a travel agency. It handles several Airlines. From the letter dated August 19, 1992 submitted by the employees to the petitioner, it appears that there are more than 20 employees in the petitioner Company. The first respondent was apparently designated as the Regional Sales Manager at the Bombay Office. The Head-Office is at Delhi. Her salary was initially fixed at Rs. 4800 per month. This is clear from the appointment order at Exhibit "A" dated August 28, 1990. On December 11, 1990 under Exhibit "B", her salary was increased to Rs. 5500/- per month, plus some perquisites, with effect from 1st September, 1990. Under Exhibit "C" dated 30th May, 1991, her salary was increased to Rs. 5600/- per month with effect from 1st April, 1991, plus some perquisites. Under Exhibit "D" dated January 22, 1992 her basic salary was increased to Rs.7100/- with effect from January 1, 1992, plus some perquisites. It is the case of the complainant that by letter dated 22nd May, 1992 the petitioner Company brought about an illegal change in her service conditions by reducing her salary from Rs.7100/- to Rs. 5100/- and putting the remaining allowance under the head of House Rent Allowance whereby she is likely to lose on the other benefits which are dependant upon the basic salary. The letter - Exh."D" dated January 22, 1992 specifically stated that the basic salary had been increased to Rs.7100/- per month. Needless to say that the other benefits would be dependant on the basic salary. The further grievance of the complainant is that the Company also brought about similar illegal changes in the service conditions of the other employees. The employees, therefore, organised themselves and made a representation on 19th August, 1992. The complainant is a signatory to this representation. She is one out of the 21 employees - almost all - who have signed the representation. It reads as under:
"From 1st April, 1992 our salary structure has been changed. This has resulted in a drastic drop in our basic salary. As Provident Fund, EPF Bonus, Gratuity, Annual increments etc. are invariably based on Basic salary, we stand to lose a substantial amount on a recurring basis. We the undersigned would therefore be very grateful if we could be paid our salaries as earlier."
It appears that the complainant took lead in organising the workmen to express their grievances that as a result of the drastic drop in the basic salary they were bound to lose under different Heads such as P.P./Employees Provident Fund, Bonus, gratuity, annual increments etc. on a recurring basis.
4. Prompt came the order dated 5th October, 1992 (Exhibit "F" page 33) under which the complainant was directed to hand over the responsibilities of the United Airlines to Ms. Seema Luthra effective from 6th October, 1992. She was asked to spend two weeks to brief Ms. Luthra on all important matters pertaining to the United Airlines. The letter makes it clear that the first respondent was summarily relieved of her responsibilities and an outsider from Delhi was assigned the job and the first respondent was asked to brief the said Ms. Luthra. The letter dated 5th October, 1992 further states that the first respondent was to be advised of her next assignment shortly. There are no reasons mentioned leading to the sudden change of assignment of duties, from the one who was familiar with the work of the United Airlines to some one new who had come from Delhi.
5. Be that as it may, the first respondent filed a complaint soon thereafter. In the complaint she alleged that though she was given a glorified designation, she was predominantly doing clerical work of a booking clerk, booking air-tickets and doing incidental jobs. She alleged that as a result of the letter dated 22nd May, 1992 the employees of the petitioner company were agitated and hence, they submitted the representation on 19th August, 1992. Since she had organised the workmen, she had become an eyesore to the petitioner company. She specifically alleged that she was victimised for trying to raise her voice against the illegal and unjustified changes in the service conditions of the workmen. The complaint, therefore, alleges that the petitioner is guilty of unfair labour practices within the meaning of Item 1(a), 4(a) of Schedule II and Items 3, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
6. The petitioner company filed its affidavit-in-reply and denied the allegations in the complaint. It was contended that the complainant was employed in a managerial capacity and was, therefore, not a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947. On merits, it was contended that transfer was an incidence of service and the appointment order specifically stated that the services were liable to be transferred. The grievance made in the representation dated 19th August, 1992 was termed as baseless. The allegation of victimisation as a result of the first respondent having organised the workmen was also denied.
7. The learned trial Judge framed the necessary issues for the purpose of deciding the question of interim relief. Relying upon the material that was placed before him, he came to the conclusion that the complainant's duties predominently consisted of booking of air-tickets and doing incidental jobs such as maintaining mailing lists, typing on computers, production and designing, visiting travel agents, distributing time-tables, fare sheets, delivering tickets, dispatching greeting cards etc. Relying upon the observations of the Supreme Court in some of the cases which were cited before him, the learned Judge took the view that one has to look to the predominant and substantial nature of the duties and not go by the mere nomenclature or the subsidiary part of the duties. He, therefore, held that the respondent complainant was a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act. These findings are to be found in para 31 of the judgment, after discussing the relevant cases. On merits, the Court has taken the view that, prima facie, there was an illegal change by which the basic salary payable to the employees was suddenly reduced drastically and almost all the employees had protested against this change, as is evident from the representation dated 19th August, 1992. The learned Judge, therefore, recorded a finding in para 33 of the order that, prima facie, the petitioner company was guilty of some unfair labour practices.
8. On the question of interim relief, the learned Judge held that though the appointment letter contained a transfer clause, there was an oral understanding, which is usual in many cases, that she would not be transferred. Considering the balance of convenience, the learned Judge took the view that the respondent workman was entitled to interim relief in terms of para 4(a), (b) and (c) which was granted. It is against this purely interim order that the present petition has been filed.
9. Pursuant to the adjournment obtained last time, some further affidavits have been filed by both the parties setting out the precise nature of duties of the respondent workman. However, I must mention that there is some controversy at the bar regarding the scope of the duties and evidence would have to be led at the trial to come to a final conclusion, one way or the other.
10. Dr. Chandrachud has invited my attention to a Supreme Court Judgment which was cited before the Industrial Court viz. T.P. Srivastava v. M/s. National Tobacco Co. of India Limited, reported in 1991(63), I.F.L.R. page 672. This was a case of a salesman looking after the sales promotion, publicity and advertisement of the company's product and in the facts of the case it was held that he could not be termed as a workmen. As against this, Mr. Puri invited my attention to the three decisions which were cited before the Industrial Court-
(i) Ananda Bazar Patrika (Private) Ltd. v. Its Workmen, reported in 1969(2) L.L.J. 670. It has been held in this case that the principle which should be followed in deciding the question whether a person is employed in a supervisory capacity or on clerical work is that 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. The facts in Ananda Bazar Patrika's case before the Supreme Court show that the employee's principal work was maintaining and writing cash book and preparing various returns. Being the senior most Clerk he was put in charge of the provident fund section and was given some small amount of control over the other Clerks working in the section. The only power he could exercise over them was to allocate the work between them, to permit them to leave during office hours and to recommend their leave applications. It was held that in these facts and circumstances of the case, the few minor duties of a supervisory nature cannot convert his office of senior clerk in-charge into that of a supervisor and the order of the Labour Court rejecting the plea of the management and holding that the employee was a workman was upheld by the Supreme Court.
(ii) S.K. Verma v. Mahesh Chandra and another, reported in 1983(47) F.L.R. 313. This was a case of a Development Officer of the Life Insurance Corporation. It was held that his principal duty was to organise and develop the business of the Corporation in the area allotted to him and for that purpose to recruit active and reliable agents, to train them to canvass new business and to render post sale services to policy-holders. It was, therefore, held that the Development Officer could not, by any stretch of imagination, be said to be engagad in any administrative or managerial work. He was, therefore, held to be a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act.
(iii) Ved Prakesh Gupta v. Messrs Delton Cable India (P.) Ltd., reported in 1984(1) L.L.J. p. 546. This was a case of the Chargeman Security equivalent to a Security Inspector and it was held by the Supreme Court in the facts of the case that the substantial duty of the workman was only that of a Security Inspector which was neither managerial nor supervisory in nature, in the sense in which these terms are understood in the Industrial Law. Hence, it was held that he was a workman within the meaning of section 2(s) of the Industrial Disputes Act.
11. In view of the above three Supreme Court decisions, at this prima facie stage, I am inclined to agree with the view taken by the Industrial Court. It does appear that the predominant duties of the respondent workman consisted of booking of air-tickets and other incidental jobs such as maintenance of lists, typing on computers, visiting travel agents, distributing time-tables and fare-sheets, taking on reservations, making reservations, delivering tickets, getting visas, dispatching greeting cards etc. Just because there are three employees, who were supposed to report to her, it cannot be said that her duty is essentially of a managerial or supervisory in nature. As held by the Supreme Court, in Ananda Bazar Patrika's case, one has to look to the main nature of the work and not to the incidental work, which may be done in the infraction of the time. The mere fact that some control over other clerks is given would not change the position of a Clerk to that of a supervisor or a Manager, observed the Supreme Court in Ananda Bazar Patrika's case. The mere power of allocation of work between the three employees, who were answerable to the respondent workman, cannot lead one to the conclusion that she is not a workman within the meaning of section 2(s) of the Industrial Disputes Act. In my view, the ratio of the three Supreme Court decisions, which were cited by Mr. Puri, clearly supports the finding of the Industrial Court at this stage. There is nothing in the ratio of the Supreme Court decision in Srivastava's case which can persuade one to take a view different from the view taken by the Supreme Court in the three earlier cases mentioned above.
12. The least that can be said is that, at this stage, the evidence on record, prima facie, shows that the predominant nature of duties of the respondent workman were clerical. It is no doubt true that Dr. Chandrachud sought to rely upon the affidavit filed in this Court by Frank Arauje on 6th October, 1993. However, Mr. Puri for the respondent workman has disputed the contents of the said affidavit and since I am hearing the petition against the interim order, it would not be proper for me to enlarge the scope of the controversy. I would rather leave the matter to be adjudicated finally at the trial. Once it is held that, prima facie, the respondent is a workman, it does appear to me that the impugned action of the issuance of the letter dated 5th October, 1992 is entirely arbitrary and is the result of the representation made by the workman on 19th August, 1992. If the basic salaries of the workman are reduced substantially, it was but natural that they would be agitated. The amount of employee's P.F. bonus, gratuity, annual increments etc. were dependant upon the basic salary. Almost all the employees protested by sending their representation dated 19th August, 1992. The action under the impugned letter dated 5th October, 1992, prima facie, appears to be a counterblast to the representation made by the workmen. The complainant alleges that the company believes that she had organised the workman and she was responsible for the representation dated 19th August, 1992 being submitted. That apart, there is no reason assigned whatsoever for suddenly effecting a change in the assignment of the respondent workman by withdrawing the work in which she was specialised and assigning the same to an outsider from Delhi and further, asking the respondent workman to brief her about the nature of duties. It is obvious that Ms. Luthra, who came from Delhi, was not familiar with the work and the order itself says that the respondent workman was to brief Ms. Luthra on all important matters pertaining to the United Airlines. It is further clear that the petitioner company had not reads decided as to what exactly was next assignment of the respondent workman. This is clear from the impugned letter which says that "You will be advised of the next assignment shortly". It is difficult to understand the sudden change of the attitude of the petitioner company. Prima facie, therefore, it does appear that the impugned letter/order has been issued mala fide and is the result of the representation received by the petitioner Company on 19th August, 1992. It is true that the petitioner Company wants to rely upon a subsequent writing obtained on 3rd December, 1992 from some of the workmen. The Industrial Court has observed in para 35 of its order that prima facie the said letter was got written from the employees under some coercion. One can well imagine the plight of ordinary employees in the present times of large scale unemployment. Some of them, though aggrieved, may be forced to accept whatever they get. However, this in only my prima facie view and needles to say these issues will be gone into at the trial. Suffice it to say that the balance of convenience, clearly lies in favour of the respondent workman. I, therefore, do not find any reason to interfere with the interlocutory order in the limited jurisdiction under Article 226 of the Constitution.
13. I may incidentally mention that pursuant to the adjournment obtained on the last occasion, Dr. Chandrachud mentioned that the petitioner Company was willing to transfer the respondent workman to either Delhi, Ahmedabad or to Pune. However, Mr. Puri states that the workman is a married women and has children whose education would be adversely effected and she was, therefore, not willing to be transferred in the facts and circumstances of the case.
14. In view of the above, writ petition is rejected. However, in view of the peculiar facts and circumstances of the case, the Industrial Court is directed to hear and dispose of the complaint as early as possible and preferably, before the end of March, 1994.
15. I wish to make it clear that the observations recorded by me are my tentative observations and the parties are yet to lead their evidence, after which the Industrial Court is free to come to its own conclusions.
16. Certified Copy, if applied for, to be issued expeditiously.