Bombay High Court
Dhruba Kumar Changkokoti vs Travel Corporation Of India Ltd. And ... on 16 March, 2000
Equivalent citations: (2001)IIILLJ751BOM
Author: F.I. Rebello
Bench: F.I. Rebello
JUDGMENT F.I. Rebello, J.
1. The Petitioner being aggrieved by Order and Judgment dated April 24, 1995 passed in Complaint (ULP) No. 261 of 1991 by the Labour Court and the Judgment and Order dated July 28, 1997 passed in Revision (ULP) No. 68 of 1995 by the Industrial Court has preferred the present Petition under Article 226 of the Constitution of India.
2. The Petitioner was employed with the 1st respondent. His services came to be terminated on December 7, 1991. Aggrieved by the said Order, the petitioner preferred a Complaint which was numbered as Complaint (ULP) No. 261 of 1991. In answer to the said Complaint the respondents had filed their reply. In reply they pleaded that the Petitioner was not a workman coming within the purview of Section 2(s) of the Industrial Disputes Act, 1947 and consequently the provisions of MRTU & PULP Act would not apply. It was more specifically set out that the petitioner at the time of termination of his contract was employed in the Senior Category of Management and he has never been a workman in the Respondent company.
This issue was framed as a preliminary issue. The Labour Court based on the evidence before it, held that on a perusal of the documentary evidence the same supported the evidence of the witness on behalf of the Company that the petitioner was working in the senior category of the management. The Labour Court referred to various Judgments and the tests that have to be considered. After applying those tests and evidence, the issue was answered in the affirmative against the petitioner and consequently the complaint came to be dismissed. In the revision application, the Industrial Court held that the Petitioner had failed to prove that the 2nd Labour Court had committed any patent error on the face of the record. The Industrial Court further noted that the Labour Court had considered the entire oral as well as documentary evidence placed on record and had decided the Complaint by detailed reasons. In those circumstances it held that no case was made out for exercising the revisional jurisdiction under Section 44 of the MRTU & PULP Act. For the foregoing reasons the revision was dismissed.
3. At the hearing of the petition, on behalf of the Petitioner, learned counsel contends that the finding of the Labour Court that the Petitioner was workman is perverse based on misreading of the documents and oral evidence as also on non-consideration of the vital tests that had to be gone into to determine as to who is a workman. In these circumstances it is submitted that the Order of the Labour Court is liable to be set aside. The order of the Industrial Court was mere acceptance of the Labour Court without disclosing any reason and consequently is liable to be also set aside. On the other hand on behalf of the Respondents Company it is contended that the Labour Court has applied the correct tests. The evidence on record that could have led only to one test in coming to the conclusion that the Petitioner was working as Manager within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Learned counsels have taken me through both the documentary evidence on record as also the oral evidence.
4. With the above background the issue can now be decided as to whether there is any material on record for the purpose of interfering with the impugned order, It is true that as contended on behalf of the Petitioner that the Court while considering the issue whether a person is a workman or not, must not merely go by the designation but consider the principal duties being performed by the employee for the purpose of determining his real status. In this process the Court has to find out whether such employee has been discharging administrative, managerial or supervisory work. At this stage I may for the purpose of better appreciation of the issues involved, straightaway refer to the Judgment of the Apex Court in the case of H. R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. . The Constitution Bench of the Apex Court, held that the judgment in the case of S.K. Verma v. Mahesh Chandra did not lay down the correct law and reiterated the proposition as first laid down in the case of May & Baker (India) Ltd. v. Their Workmen, by observing as under:
"Hence the position in law as it obtains today is that a person to be a workman under the Industrial Disputes Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation."
In Aloysius Nunes v. Thomas Cook India Limited, Writ Petition No. 1544 of 1998, decided today, I have considered the expressions 'managerial' or 'administrative' as found in Section 2(s) of the Industrial Disputes Act.
5. In the instant case, what has to be considered is whether the findings by the Courts below that the Petitioner was working as a Manager need to be interfered with. The Petitioner was earlier working with the Respondent as Senior Executive from December, 1974. He subsequently resigned and joined some other organisation. He thereafter again applied to the Respondent company. In the column 'Nature of work attended during the last employment', he has set out that he was overall incharge for administration and operation. By letter dated September 15, 1983 in reply to the application dated June 22, 1983 the Petitioner was informed that he had been appointed as "Incharge- USSR". In the terms of the employment, apart from salary and other allowances, he was informed that he would be paid maximum of 1% on business introduced by him to USSR which would not exceed a sum of Rs. 12,000/- per annum. The Petitioner would be paid actual entertainment on production of documentary evidence and since the Petitioner had a car, the Respondent would reimburse him upto 100 litres of petrol per month when his car used for the purpose of office and Rs. 4,000/- for repairs. Certain targets were given to him. He was liable to be transferred. In the matter of termination he was informed as under:
"After confirmation your services are liable to termination with one month's notice on either side."
The Petitioner was confirmed with effect from July 2, 1984. He was so informed by letter of July 4, 1984. In the course of employment the Petitioner as in-charge of Soviet Union/Eastern Europe was called upon to visit various foreign countries for the purpose of promoting tourism i.e. the Respondent's business. He used to submit his tour report from the various destinations. The other correspondence on record disclose that he used to correspond with various other organisations on behalf of the company or they were in correspondence with him. Various documentary evidence have been placed on record to that effect. The Petitioner himself was designated as Assistant Manager in various correspondence exchanged between the Governmental organisations and other companies.
6. With the above background can it be said that the Labour Court misdirected itself in law or its findings are perverse inasmuch as it has arrived at a conclusion that the petitioner was engaged in a managerial capacity. The fact remains that the Petitioner was given by the Company the charge to promote tourism in Eastern Europe. In their words though he had no power of hire or fire and7or control over the employee, he was discharging a part of the function on behalf of his employer namely looking after the business and promoting the same in Eastern Europe. Once this evidence has come on record which has been considered elaborately by the Labour Court, I find no reason to interfere with the said findings on the ground that the test regarding who is a workman and/or manager has not been considered and/or that the order discloses any error apparent on the face of the record.
7. On the facts of the present case, I do not find that this would be a fit case where this Court should interfere with the findings of the Labour Court as confirmed by the Industrial Court. Considering the above, petition dismissed. Rule discharged.
8. In the circumstances of the case, there shall be no order as to costs.