Bombay High Court
German Remedies Limited vs Michael Gabriel Lopes & Another on 12 January, 1999
Equivalent citations: 1999(2)BOMCR274, [1999(81)FLR1003], 1999(2)MHLJ8
ORDER N.J. Pandya, J.
1. The petition has been filed by German Remedies Limited, the employer, hereinafter referred to as the employer against one of its employee one Mr. Michael Gabriel Lopes, who will hereinafter referred to as the employee.
2. The petition is directed against the Award given in Reference (IDA) No. 500 of 1987 by the 5th Labour Court at Bombay on 23-2-1995. On and from 7-11-1986, the employee came to be terminated from the services of the employer and answering the reference in the affirmative, the learned Presiding Officer was pleased to direct reinstatement of the employee with full back wages and continuity of service with effect from 7-11-1986. As on the date when the present petition is being disposed of, as per the factual position, the said employee stands retired with effect from 4-1-1997.
3. The action leading to the termination was hardly in dispute save and except the legality and correctness thereof. However, the main contention before the Labour Court was whether the employee is a workman within the meaning of Industrial Disputes Act, 1947. Obviously, in view of the aforesaid conclusion and final order, the trial Court did come to the conclusion that the employee is a workman under the said Act.
4. The matter has been argued on both sides mainly with a view to attack the said finding so far as the petitioner-employer is concerned and support the said finding so far as respondent-employee is concerned.
5. As the evidence was led before the trial Court I have been taken through the same. This was done by both the sides. However, this very exercise has prompted the learned Advocate for the respondent to draw the attention of the Court that this being the matter under Article 226 of the Constitution of India, the Court is not sitting in appeal over the judgment of the Labour Court and hence reappreciation of evidence is not possible.
6. I am fully aware of this position. At the same time while going through the evidence if certain parts thereof are overlooked or not taken into consideration at all or likewise if logical conclusion which is to be drawn on the basis of the record both oral and documentary, if not done, this Court will certainly interfere with the finding given by the trial Court in exercise of its power under Article 226 of the Constitution.
7. It is an admitted position that the employee started his career as a clerk with the employer on and from 4-5-1970. He came to be promoted as an officer in the personnel department. This is, from where the controversy starts. According to the employee there was no change in the nature of the work and responsibility save and except the designation. According to the employer there was considerable change in his duty as well as the responsibility for which reliance is placed by both the sides on oral and documentary sic evidence.
8. The first document relied on is in the nature of agreement which the employee had executed on being promoted to the said post. On behalf of the company it is signed by Mr. P.N. Naik, and the witness is the Personnel Manager who has been examined, one Mr. B.S. Hegde who at the time of his deposition was working as a Personnel Director of the employer. According to the employer, when a person is appointed as an officer this agreement is being signed otherwise there is a simple appointment letter.
9. The deposition of Mr. Hegde makes it clear that after the employee was promoted, as a part of his work as Personnel Officer, he had to do liaison work with the Government offices like E.S.I. department, Employees' Provident Fund Office, Factory Inspectors office and others. He was also authorised to certify the temporary advances made by different workers. He was authorised to sanction the leave applications of the workers. He was also authorised to issue gate passes to the workers. He was authorised to certify the over time done by the workers. From the persons working under the employee, one Mr. Tonny Rengal has been examined as company's witness.
10. In support of the aforesaid oral testimonies, there are documents bearing signature of the employee indicating the action in the nature stated by the said witness Mr. Hegde. However, so far as the employee's promotion is concerned, in the cross-examination of Mr. Hegde, in paragraph 5 it is stated by him that even prior to his promotion, Mr. Lopes, the employee was doing same work as has been enumerated in the examination-in-chief. Therefore, it is strongly urged that which work Mr. Lopes, the employee was doing, he continued to do so even after the so called promotion. This by itself therefore would not mean anything.
11. Even if one goes by this submission, the work that has been done and shown to have been done as per the documentary evidence produced, clearly indicates that it was not in the nature of mere mechanical or clerical work. Some discretion was definitely involved when persons were employed because it was the employer who was screening them by way of interview. But for clearance given by him, appointment would not have been given as a temporary workers to these employees. By way of example cases of one Mr. Sangare, Mr. Rajbhor, Mr. Ashok Tate, Mr. S.R. Bhosale and others can be considered.
12. It is true as admitted by the witnesses of the company and more particularly Mr. Hegde that the employee had no power to take a decision on behalf of the company when he is either a liaising with the Government offices or representing the company in Court. In my opinion his deciding sic decision is hardly necessary because decision with regard to the Court proceedings or with regard to the action involved in the Government offices would also have ramifications of different policies of the Government as well as the financial implication. A man who has been working as clerk though promoted can be relied upon but the final decision can always be taken by the persons who are at the helm of the company. If this is to be applied, in my opinion none on the establishment of any of the company having large work force can ever be classified managerial or supervisor etc. because final decision may vest with the proprietor or the Board of Directors of the company.
13. In my opinion, the test involved should be of the nature so as to indicate that the work done is confined to the worker himself and does not affect the future course of action to be taken by either his colleague or his subordinate. If it is only a matter of clerical or mechanical in nature, obviously it would not affect any. He would be assisting his immediate supervisor in arriving at a decision which would be taken by the supervisor, may be on the basis of the material produced by the clerk. I am taking the incident of a clerk because till promoted, the employee was working as a clerk.
14. The employee has been relying heavily on a decision of the Supreme Court given in Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., . In paragraph 6 of the judgment, the learned Judges have observed that where an employee has multifarious duties and a question is raised whether he is a workman or someone else other than a workman the Court must find out what are the primary and basic duties of the person concerned. On this basis in the case before them, the learned Judges of the Apex Court found that for group of three workers the appellant before them was designated as a group leader and was incidentally co-ordinating their work and if necessary was reporting to higher authorities as also collecting the requisition slip for supply of stationary and so on. Thus elaborating on this aspect in paragraphs 7, 8, 9 and 10 the decision of the Labour Court was upset in appeal. Even the nomenclature was entered upon in paragraph 12 of the judgment and that was held to be immaterial. Based on this, it has been urged in the instant case that when Mr. Hegde himself admits that the employee was doing the same work that has been done by clerk even after promotion, this exercise as sought to be done on behalf of the petitioner on the basis of the material on record will not carry the case any further. Obviously this is not the position in the instant case. The action that the employee could take on the basis of the work entrusted to him after being promoted, as stated above, clearly had a larger area of influence and could affect the course of action of other workman also and as such cannot be compared on the line done by the Hon'ble Supreme Court in the aforesaid Ciba Geigy case on the basis of his activities being confined only to three workmen being leader of the group.
15. The Employer is relying upon a decision of the learned Single Judge of this Court reported in 1992(II) L.L.J. 378 in the case of Shrikant Vishnu Palwankar v. Presiding Officer, First Labour Court. In the case before the learned Single Judge, the worker was to assign work to persons working under him, allocate jobs, make recommendations regarding grant of leave, make appraisal of workmen working under him and to supervise the work of all the employees. In the instant case except for the element of supervising the work by taking round virtually every other aspect is involved in the work of the said employee. In paragraph 8, the learned Single Judge observed that when a person is working as a Supervisor, he is required to oversee the working of the Department. As a part of his duty he has to efficiently manage the men, machines and material under his control. For this purpose, he alone is the best Judge as to which person is to be spared at any given time. It is for this reason that the supervisor, who is on the spot, is expected to make a recommendation as to whether leave could be granted to any workman working in his department. It is precisely for this reason that the authority competent to grant leave seeks his recommendation and does not pass an order without his recommendation. It is clearly in the nature of supervisory duty. I agree with the findings of the learned Single Judge.
16. Latest judgment in this regard is in the case of Union Carbide (India) Ltd. v. Ramesh Kumbala & others. There the workman was employed as a supervisor in Electrical Maintenance Department. He claims to be a workman. On evidence, the learned Single Judge came to the conclusion that the respondent-employee was an employee in supervisory capacity. The predominant nature of his work was supervisory and not technical. He had power to recommend leave and authorise overtime work and overtime free meal. He enjoyed certain special privileges and benefits under the Pension Scheme and the Gratuity Scheme framed by the Company.
17. In the instant case it has come on record that the employee was not getting the benefits of agreement that were entered into by the company through representation of the Union. Had he been the workman, as now being claimed, then certainly he would be aggrieved by this. Explanation is sought to be given to the effect that the employee not being a member of the union he is not covered by the agreement. This might be the factual position and legal implication under section 18(1) of the Industrial Disputes Act, 1947. Further if he has been claiming to be the workman inspite of the said event of promotion it has to be taken that he has suffered inequity. It would also be considered that even he has tried to take shelter under the scheme of workman though all through out he has disclosed that he was not a workman. Be that as it be, looking to the facts on record it is quite clear that the learned trial Judge should not have come to the conclusion in the manner stated above. The learned Judge seems to be under the impression that unless the employee has a power to dismiss the persons recruited by him or that he had power to settle the matter in the Court or to take decision on behalf of the company he cannot fall into the category of supervisor. As indicated above, going by this logic, everyone would be covered within the definition of workman irrespective of the post occupied and privileges enjoyed.
18. The net result, therefore, is that the petition succeeds. The trial Court having failed in appreciating the evidence, the Award cannot be sustained. It is set aside. The respondent-employee is held to be not a workman.
Rule is made absolute accordingly.
19. Petition succeed.