Gujarat High Court
Akhil Gujarat Kamadar Vidyut Sangh ... vs Superintendent Engineer on 8 January, 2025
NEUTRAL CITATION
C/SCA/163/2025 JUDGMENT DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 163 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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AKHIL GUJARAT KAMADAR VIDYUT SANGH THROUGH JAYESH
VITHTHHALBHAI PATEL (WORKMEN)
Versus
SUPERINTENDENT ENGINEER
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
MR VIRAL J.DAVE(1232) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 08/01/2025
ORAL JUDGMENT
1. This petition is filed mainly by raising the grievance that the learned Tribunal has committed an error in deciding the Reference, being Reference IT No. 4 of 2020, by holding that the petitioner does not fall under the definition of section 2(S) of the Industrial Disputes Act, 1947 ('the I.D. Act', referred to hereinafter).
2. Heard the learned advocate Mr. Paresh Brahmbhatt for the petitioner and learned advocate Mr. Viral Dave for the respondent.
3. Learned advocate Mr. Brahmbhatt for the petitioner has submitted that merely raising the contention in the written statement regarding not falling under the umbrella of workman cannot be said to have proven that the petitioner does not fall under the definition of a workman. Learned advocate Mr. Brahmbhatt submits that pleadings cannot be replaced by proof, and therefore, the learned Tribunal has committed an error in relying upon Page 1 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025 NEUTRAL CITATION C/SCA/163/2025 JUDGMENT DATED: 08/01/2025 undefined the bare reading of the employer's contention regarding the status of the workman.
4. It is further submitted by learned advocate Mr.Brahmbhatt for the petitioner that, although the dispute referred was to decide whether the punishment imposed during the departmental proceeding was just and proper or not?, the learned Tribunal changed the track and concluded that the petitioner does not fall under the definition of a workman. Learned advocate Mr.Brahmbhatt submits that even if the learned Tribunal concludes that the petitioner does not fall under the definition of a workman, the main dispute, which was referred, should have been decided. Not doing so, the learned Tribunal has committed an error, and therefore, the impugned order deserves to be set aside.
4.1. Lastly it was submitted by learned advocate Mr. Brahmbhatt for the petitioner is that the learned Tribunal, while concluding that the petitioner cannot be said to be a workman, relied upon the duties assigned when the petitioner was in the post of Senior Assistant. Thereafter it was presumed that since the petitioner was promoted from the post of Senior Assistant to Deputy Superintendent, the duties assigned to the Senior Assistant, which were produced bfore the Conciliation Officer, indicate that the petitioner does not fall under the definition of section 2(S) of the Act. Learned advocate Mr. Brahmbhatt submits that by presuming the facts, without any evidence, the learned Tribunal concluded the Page 2 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025 NEUTRAL CITATION C/SCA/163/2025 JUDGMENT DATED: 08/01/2025 undefined Reference in favour of the employer. Therefore, the impugned judgment and award deserve to be set aside.
5. Per contra, learned advocate Mr. Viral Dave for the respondent submits that when the contention was raised regarding the jurisdictional aspect, the duty was cast upon the petitioner to prove that the petitioner is a workman. It is further submitted by learned advocate Mr. Dave for the respondent that neither the petitioner enter into the witness box to give oral evidence, nor adduced any documentary evidence to falsify the contention made by the respondent. Therefore, the learned Tribunal rightly concluded the Reference in favour of the respondent by holding that as the petitioner does not fall under the definition of a workman, the learned Tribunal does not have jurisdiction. Learned advocate Mr. Dave further submits that since the learned Tribunal concluded there was a lack of jurisdiction, there was no question of deciding the Reference on merits. Therefore, the impugned judgment and award should be confirmed, and the petition should be dismissed.
6. Considering the submissions made by the learned advocates for the respective parties and the reasons assigned by the learned Tribunal in the impugned award, it transpires that the primary contention regarding jurisdiction was raised by the respondent in his written statement. Therefore, the learned Tribunal, before deciding the matter on merits, decided the Reference concerning the jurisdictional aspect. The learned Page 3 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025 NEUTRAL CITATION C/SCA/163/2025 JUDGMENT DATED: 08/01/2025 undefined Tribunal, while assigning reasons, relied on the duties assigned when the petitioner was working as a Senior Assistant. These duties were produced under Mark-12/4, wherein the following duties were mentioned:
I. Cash collection of office, window, and other agencies, including the post office.
II. Change of name for 1ph connection.
III. Billing of Cy. 1 & 3 work of the agency.
IV. Monitoring of allotment of cycle, control, and refund adjustment of ED.
V. Time-bar arrears.
VI. Meter reader work of PMC.
VII. S/Dn control, assessment figure, and preparation of meeting proformas, as well as providing all types of details related to CR & DR work.
7. Subsequent to these posts, the petitioner was promoted to the post of Deputy Superintendent. Even if the duties assigned to the post of Senior Assistant are referred to, responsibility assigned to the petitioner was control, assessment of figures, preparation of meeting proformas, and providing all types of details related to CR and DR work. In addition to that, the duty mentioned in column No. 4 is to monitor the allotment cycle, control, and refund adjustment of ED. These duties suggest that the petitioner had control over the work of subordinate staff and was responsible for recording details related to CR and DR work. When the petitioner was promoted to the Page 4 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025 NEUTRAL CITATION C/SCA/163/2025 JUDGMENT DATED: 08/01/2025 undefined post of Deputy Superintendent, he would naturally have higher responsibilities compared to his previous role as Senior Assistant, with the work allotted to him being of a supervisory nature.
8. The decision rendered by the Apex Court in the case of Sonepat Coop Sugar Millsa Vs. Ajit Singh reported in 2005 3 SCC 232 is also required to be referred wherein the Apex Court has held as under:
"16.Thus, a person who performs one or the other jobs mentioned in the aforementioned provisions only would come within the purview of definition of workman. The job of a clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. The question as to whether the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regard the dominant nature thereof. With a view to give effect to the expression to do "any manual, unskilled, skilled, technical, operational, clerical or supervisory work", the job of the concerned employee must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not been performing any managerial or supervisory duties, ipso facto he would be a workman.
17.In Miss A. Sundarambal vs. Government of Goa, Daman and Dieu and Others [(1988) 4 SCC 42], teachers serving in an educational institution being not found to be performing any duty within the aforementioned category has been held not to be workmen. Similarly, an advertising manager, a chemist employed in a sugar mill, gate sergeant in charge of watch and ward staff in a tannery, a welfare officer in a commercial educational institution have also not been held to be workmen. The Respondent had not been performing any stereotype job. His job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the Appellant as also represent it before various courts/authorities. He would also discharge a quasi-judicial functions as an Enquiry Officer in departmental enquiries against the workmen. Such a job, in our considered opinion, Page 5 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025 NEUTRAL CITATION C/SCA/163/2025 JUDGMENT DATED: 08/01/2025 undefined would not make him a workman.
18.In S.K. Verma (supra), this Court without taking into consideration the earlier binding precedents and in particular the decision of May & Baker (India) Ltd. vs. Workmen [AIR 1967 SC 678] arrived at a conclusion that an employee who does not perform any supervisory or managerial nature of duties, would be a workman. S.K. Verma (supra) was held to have been rendered per incuriam by a Constitution Bench of this Court in H.R. Adyanthaya (supra).
19.The question came up for consideration recently before this Court in Mukesh K. Tripathi vs. Senior Divisional Manager, LIC and Others [(2004) 8 SCC 387], wherein it was held :
"21."Once the ratio of May and Baker (supra) and other decisions following the same had been reiterated despite observations made to the effect that S.K. Verma (supra) and other decisions following the same were rendered on the facts of that case, we are of the opinion that this Court had approved the reasonings of May and Baker (supra) and subsequent decisions in preference to S.K. Verma (supra).
22.The Constitution Bench further took notice of the subsequent amendment in the definition of 'workman' and held that even the Legislature impliedly did not accept the said interpretation of this Court in S.K. Verma (supra) and other decisions. 23.It may be true, as has been submitted by Ms. Jaisingh, that S.K. Verma (supra) has not been expressly overruled in H.R. Adyanthaya (supra) but once the said decision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law. This Court is bound by the decision of the Constitution Bench."
This court opined :
"34."The definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a 'workman' defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise
36.A 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprentices Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition.Page 6 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025
NEUTRAL CITATION C/SCA/163/2025 JUDGMENT DATED: 08/01/2025 undefined Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute."
20.The said decision has been followed by this Court in U.P. State Electricity Board vs. Shiv Mohan Singh.
21.It is now trite that the issue as to whether an employee answers the description of a workman or not has to be determined on the basis of a conclusive evidence. The said question, thus, would require full consideration of all aspects of the matter.
22.The jurisdiction of the Industrial Court to make an award in the dispute would depend upon a finding as to whether the concerned employee is a workman or not. When such an issue is raised, the same being a jurisdictional one, the findings of the Labour Court in that behalf would be subject to judicial review."
9. This Court has also considered the decision of Apex Court in Bharti Airtel Ltd. Vs A.S.Raghavendra reported in (2024) 6 SCC 418 wherein, Apex Court has held as under:
"26.A bare perusal of the above makes it crystal clear that absence of power to appoint, dismiss or conduct disciplinary enquiries against other employees was not the only reason for the Court to conclude in Ved Prakash Gupta (supra) that the appellant therein was a "workman". At this juncture, we may note that although Ved Prakash Gupta (supra) was decided by a 3-Judge Bench, in a later judgment by a 2-Judge Bench of this Court in S K Maini v M/s Carona Sahu Company Limited, (1994) 3 SCC 510, it was held that:
"11.It should be borne in mind that an employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level." The judgment in S K Maini (supra) is innocent of Ved Prakash Gupta (supra), but we do not find any inconsistency Page 7 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025 NEUTRAL CITATION C/SCA/163/2025 JUDGMENT DATED: 08/01/2025 undefined in the statement of law laid down in S K Maini (supra), given our reading of Ved Prakash Gupta (supra) as enunciated hereinabove.
27.That being said, in our considered view, mere absence of power to appoint, dismiss or hold disciplinary inquiries against other employees, would not and could not be the sole criterion to determine such an issue. Holding otherwise would lead to incongruous consequences, as the same would, illustratively, mean that, employees in high-ranking positions but without powers to appoint, dismiss or hold disciplinary enquiry would be included under the umbrella of "workman" under Section 2(s), ID Act. We cannot be oblivious of the impact of our decisions."
10. Learned advocate Mr.Brahmbhatt for the petitioner has submitted that no evidence was adduce to prove that the respondent was not workman. At this stage, if the decision rendered by the Apex Court in the case of Linen Kumar Ray; Managemenet, M/s Express Publication (Madurai) Ltd Vs M/s Express Publications (Madurai) Ltd; Lenin Kumar Rays is referred then it emerges that the onus proving the nature of employment rest on the person claiming to be workman within the definition of section 2(s) of the I.D.Act.
11. In absence of providing any evidence, learned labour Court does not commit any error in rejecting the Reference on the ground that the petitioner does not fall under the umbrella of workman. Hence, the petition is devoid of merit and requires dismissal.
4. Resultantly, this petition stands dismissed accordingly.
(M. K. THAKKER,J) M.M.MIRZA Page 8 of 8 Uploaded by M.M.MIRZA(HC01407) on Thu Jan 16 2025 Downloaded on : Fri Jan 17 22:49:06 IST 2025