Karnataka High Court
Sri P Subramanya Bhat vs M/S Bharat Beedi Works Limited on 11 October, 2012
Bench: N.Kumar, Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 11th day of October, 2012
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
Writ Appeal No. 558 of 2008 (L-TER)
BETWEEN:
Sri P. Subramanya Bhat
Son of late Sri P. Govinda Bhat
Aged about 55 years
Residing at "Panchajanya"
Vijayalaxmi Printers Lane
Pandeshwara
Mangalore - 575 001
Dakshina Kannada District ...Appellant
(By Sri M. Subramanya Bhat, Advocate for
M/s. Subbarao & Co., Advocates)
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AND:
M/s. Bharat Beedi Works Limited
Represented by the Chairman &
Managing Director
Having its Registered Office at
Kadri Road
Post Box No.730
Mangalore - 575 003
Dakshina Kannada District ...Respondent
(By Smt. K. Subha Ananthi, Advocate for
M/s. Kasturi Associates, Advocates)
This Writ Appeal filed Under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in the writ
petition No.48919 of 2003 dated 20-12-2007.
This Writ Appeal coming on for hearing this day,
N. KUMAR J., delivered the following:
JUDGMENT
This appeal is filed by the appellant challenging the order passed by the learned Single Judge as well as the Labour Court, which has rejected the claim of the appellant on the 3 ground that he is not a workman and therefore the provision of Industrial Disputes Act, 1947, is not applicable.
2. The facts in brief are as under:
The respondent is an establishment engaged in the manufacture of Beedies. According to the appellant, he joined as Clerk in the respondent establishment in the year 1975.
Subsequently, on 26.06.1995 he was appointed afresh as Manager. On 12.09.1997 the respondent transferred the appellant from Mangalore to Harihar. Since he failed to report to duty at Harihar, the respondent terminated his service with effect from 31.01.1998. Aggrieved by the said order of termination, the appellant raised a dispute before the Labour Court under Section 10(4-A) of the Industrial Disputes Act, for short, hereinafter referred to as I.D Act, in IDA No.4/1998. He also filed an application under Section 33 of the I.D. Act claiming certain amounts from the respondent and it was numbered as Application No.5/1998. The Labour Court 4 clubbed both these applications and framed the following issues:
1. Whether the petitioner is a " workman"
under the I.D. Act, under the respondent?
2. Whether the D.E. conducted against the petitioner is just & proper?
3. Whether the termination of the petitioner by the respondent is just & proper?
4. Whether the petitioner is entitled to benefits claimed in application 5/98.
5. What relief?
3. In support of his claim, the appellant examined himself as W.W-1 and produced 19 documents, which are marked as Ex.W-1 to Ex.W-19. On behalf of respondents, two witnesses were examined as M.W-1 and M.W-2 and got marked 282 documents as Ex.M-1 to Ex.M-282.
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4. The Labour Court on consideration of the aforesaid oral and documentary evidence on record held that the appellant is not a workman as defined under Section 2(s) of the Act. Aggrieved by the said order of the Labour Court, the appellant preferred writ petition before this Court.
5. The learned Single Judge after extracting the relevant clause in the order of appointment dated 22.06.1995 and on perusal of the oral evidence adduced, came to the conclusion that the Labour Court committed no illegality in recording a finding that appellant is not a workman. Therefore he dismissed the writ petition reserving liberty to the appellant to workout his remedy in appropriate forum. Aggrieved by the said order, the present appeal is filed.
6. The learned Counsel for the appellant assailing the impugned order of the learned Single Judge as well as the Labour Court contends that clauses 4, 6 and 8 of the order of appointment clearly establishes that though the designation of 6 the appellant was that of a Manager, he was carrying on the duties of workman and therefore the finding recorded by both the Labour Court and this Court is illegal and requires to be interfered with. He also relied on the Judgment of the Apex Court in the case of ANAND REGIONAL COOP.OIL SEEDSEGROWERS' UNION LTD., Vs. SHAILESHKUMAR HARSHADBHAI SHAH, reported in (2006) 6 SUPREME COURT CASES 548 and contends that the impugned order requires to be set aside.
7. Per contra, the learned Counsel appearing for the respondent supported the impugned order.
8. In the light of the aforesaid facts and rival contentions, the point that arise for consideration is:
" Whether the finding recorded by the Labour Court as well as the learned Single Judge that the appellant is not a workman 7 as defined under Section 2(s) of the I.D. Act, calls for interference ?"
9. In the aforesaid case of ANAND REGIONAL CO-OP.OIL SEEDSEGROWERS' UNION LTD., the Supreme Court dealing with the characteristic of a workman as defined under Section 2(s) of the Act, has held as under:
"13. The ingredients of the definition of 'workman' must be considered having regard to the following factors:
(i) Any person employed to do any skilled or unskilled work, but does not include any such person employed in any industry for hire or reward.
(ii) There must exist a relationship of employer and employee.
(iii) The persons inter alia excluded are those who are employed mainly in a managerial or administrative capacity.8
14. For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also terms of the appointment in the job performed are relevant considerations.
15. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the section alone and that too it being a small one and relating to quality control would not answer the test.
16. The precise question came up for consideration in Ananda Bazar Patrika (P) Ltd. v. Workmen, 1970 3 SCC 248, wherein it was held:
(SCC p 249 para 3) 9 "The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. 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"
17. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. The work involves exercise of tact and independence."
10. From the aforesaid judgment, it is clear that while determining the nature of the work performed by an employee, 10 undue importance need not be given for the designation of an employee or the name assigned to, the class to which he belongs. The essence of the matter should call for consideration. What is needed to be looked into is what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. A person undisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion etc., the work involves exercise of tact and independence.
11. In this background let us see the relevant clauses on which reliance is placed.
"4. You shall keep liaison and deal with different departments of the State and Government offices in connection with the smoother functioning of the Branch/Department. However, you shall take care to use this authorities only in 11 ordinary day-to-day routine matters and in matters of importance you shall function in consultation with and according to the guidance/direction sent to you from the Head office.
6. You are to manage and supervise the functioning of the sub-ordinates at the Branch/within the department and in this respect not only endeavour to secure their co-operation but also keep a strict control over the manner in which they function. In the matter of granting of the casual leave to your sub-ordinates, you shall have full discretion but in the matter of any other leave you will have to intimate and secure permission from higher authorities at Head Office.
8. Besides the above, you would also carry out such other and further functions and 12 discharge responsibilities as required of you by the management from time to time."
The said clauses have to be read along with primary duties as mentioned and extracted by the learned Single Judge in para 5 of the order:
1. As manager you would be entirely responsible for the day-to-day efficient management of the Branch/Department utilising the material as well as human resources placed under you to the maximum benefit of the company.
2. You shall also be responsible for safety of the cash and other assets lying at the Branch/Department.
3. You shall operate upon Bank accounts of the company as per directions and authority given to you from time to time.13
4. You shall keep liaison and deal with different departments of the State and Government offices in connection with the smoother functioning of the Branch/Department. However, you shall take care to use this authorities only in ordinary day-to-day routine matters and in matters of importance you shall function in consultation with and according to the guidance/direction sent to you from the Head office.
5. You shall be responsible for the maintenance of various statutory registers, accounts, display of notices, sending of returns etc. pertaining to the Branch/Department as required under various enactment applicable from time to time.
6. You are to manage and supervise the functioning of the sub-ordinates at the Branch/within the department and in this 14 respect not only endeavour to secure their co-operation but also keep a strict control over the manner in which they function. In the matter of granting of the casual leave to your sub-ordinates, you shall have full discretion but in the matter of any other leave you will have to intimate and secure permission from higher authorities at Head Office.
7. Any matter involving breach of conduct by your sub-ordinates in the discharge of their duties and responsibilities shall be immediately reported by you to your superiors at Head Office.
8. Besides the above, you would also carry out such other and further functions and discharge responsibilities as required of you by the management from time to time.15
12. As is clear from the aforesaid clauses, the appellant is responsible for day-to-day efficient management of the Branch/Department utilising the material as well as the human resources placed under him to the maximum benefit of the Company. He shall be responsible for safety of the cash and other assets lying at the Branch/Department. He shall operate upon Bank accounts of the Company as per the directions and authority given to him from time to time. He shall keep liaison and deal with different departments of the State and Government Offices. He is responsible for maintenance of various statutory registers, accounts, display of notices, sending of return, etc., He has to manage and supervise the functioning of the sub-ordinates at the Branch/within the department. Matters involving breach of conduct by his sub-ordinates in the discharge of their duties and responsibilities, he shall immediately report the same to the higher authorities.
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13. If we read these clauses, it is clear that the nature of work which the appellant was carrying on was purely supervisory and managerial in nature. In fact the learned Single Judge has taken trouble of referring to other material on record which shows that he was working as Manager at Talapadi, Mangalore, Moodibidri and Harihara. Wherever the appellant has worked as Manager, he has opened the Bank account and operating the Bank account. In the evidence, he admits that he was supervising and controlling all other employees who worked in the Branch where he worked as Manager. He was making payment on behalf of the Company. He was making payment towards Provident Fund, Central Excise, etc., He had full control of the day-to-day activities wherever he worked as Manager.
14. Therefore, on proper appreciation of the oral and documentary evidence on record, the Labour Court as well as the learned Single Judge rightly came to the conclusion that 17 the appellant was performing supervisory and managerial functions and he is not a workman as defined under Section 2(s) of the I.D. Act. We do not see any infirmity in the impugned order, which calls for interference. No merits. Dismissed.
Sd/-
JUDGE Sd/-
JUDGE ksp/-