Bombay High Court
Shrikant Vishnu Palwankar vs Presiding Officer, First Labour Court ... on 29 October, 1991
Equivalent citations: (1992)IILLJ378BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT
1. This writ petition, under Article 227 of the Constitution of India, impugns an Award dated August 31, 1984, made by the First Labour Court, Bombay, in Reference (IDA) No. 156 of 1980. The reference was made under the provisions of the Industrial Disputes Act. 1947 (hereinafter referred to as the Act').
2. The second Respondent is an Establishment which publishes newspapers and runs a Department known as Job Department for carrying out its printing work. The Petitioner was appointed in the Establishment of the second Respondent pursuant to an application made by him in response to an advertisement notifying a vacancy of a Foreman in the Department known as Job Department. The Petitioner was served with two charge-sheets dated November 1, 1977 and November 28, 1977. In the first chargesheet, dated November 1, 1977, it was alleged against him that on October 28, 1977 he had worked overtime from 5-00 P.M. to 11-00 P.M. but that he had sent the overtime slip to the Time Officer indicating that he had worked from 5-00 P.M. to 1-00 A.M. and that he had also recorded in the overtime muster that he left the Establishment at 1-00 A.M., though actually he had left it at 11-00 P.M. A further charge levelled against him by the said charge-sheet was that he was not attending duty in time and that during the period September 14, 1977 to October 29, 1977, he had attended duty late on 32 occasions. It was stated in the charge-sheet that the charges, if proved, would constitute misconduct under Standing Orders 27(b) and (f). By the second chargesheet, dated November 28, 1977, the details of late attendance on duty the month of November 1977 were indicated and the Petitioner was called upon to give his explanation thereto. The petitioner, by his explanation dated December 19, 1977, denied the charges alleged against him. With regard to the charge of late coming, he contended that because of domestic problem regarding water supply at his house, he was unable to come at 9-30 A.M. though duty commenced from 9-00 A.M. everyday. He had, therefore, requested his superior, Mr. Chandrahas, Assistant Manager, to permit him to report for work at 9-30 A.M. instead of 9-00 A.M., the loss of half an hour to be compensated by the Petitioner by taking only lunch recess of half an hour instead of the usual one hour every day. It was this arrangement which enabled him to come late half an hour every day, according to the petitioner. With regard to the charge of making false entries of overtime on October 28, 1977, the petitioner by his reply dated November 4, 1977, pointed out that this had been done with the permission of Mr. Chandrahas, Assistant Manager, who had directed that because of the pressing nature of work of Diwali Loksatta to be done, the Petitioner should run the offset machine during his day time lunch hour as well as in the night lunch hours sand the two periods of lunch recess would be treated as overtime. Therefore, while writing the exit time, he was permitted to add two hours to the actual time of exit.
3. An enquiry was held against the charges alleged against the Petitioner. The Petitioner's explanation as to the circumstances under which he remained absent half an hour every day under the oral understanding with the Assistant Manager, Chandrahas, was categorically denied by Chandrahas. Chandrahas also denied any such arrangement permitting the Petitioner to work the offset machine during the lunch recess and add two hours to the time of his exit, so that it may amount to an overtime of two hours. The fact that the muster roll showed the Petitioner as having attended late by half an hour every day during the relevant period, was not disputed by the Petitioner. It was also not disputed that on October 28, 1977, he had entered in the overtime muster, time of exit as 1-00 A.M. though he had finished duty at 11-00 P.M. Similarly it was not disputed that he had shown the same timing in the overtime slip sent to the concerned Department. The Enquiry Officer, after scrutinizing the evidence on record, disbelieved the petitioner and found the charges to have been proved. The petitioner was consequently dismissed by an order dated February 11, 1978, on payment of one month's salary in lieu of the notice. The petitioner made a demand for reinstatement in service and having failed in getting a settlement, raised an industrial dispute with regard to his demand for reinstatement with continuity in service and full back wages. This demand came to be referred to the Labour Court, Bombay, and marked as Reference (IDA) No. 156 of 1980.
4. Before the Labour Court the second Respondent entered appearance and contested the reference on several grounds including, inter alia, the ground that the reference was incompetent. The second Respondent contended that at the time of his discharge, the Petitioner was mainly employed in a supervisory capacity and was drawing wages in excess of Rs. 500/- per month and as such was not a 'workman' within the meaning of Section 2(s) of the Act. The second Respondent also denied adverse allegations with regard to the conduct of the enquiry and maintained that the Petitioner had been found guilty of serious misconduct at a properly conducted domestic enquiry, after service of a detailed charge-sheet, and that there was no perversity in the findings of the Enquiry Officer. The second Respondent, therefore, maintained that the order of discharge passed against the Petitioner was perfectly legal and proper and therefore prayed that the demand referred for adjudication be rejected. The Labour Court recorded evidence on all aspects of the matter and finally found against the Petitioner on all aspects of the matter. It held that the Petitioner was not a workman within the meaning of Section 2(s) of the Act as he was discharging duties mainly in the capacity of supervisor at the relevant time and was drawing monthly wages in excess of Rs. 500/-. It also held that the enquiry was legal and proper and that the findings of the Enquiry Officer therein were not perverse. It examined the contention as to disproportionate punishment and rejected it by holding that the punishment imposed upon the Petitioner was not disproportionate or excessive. Having answered all contentions against the Petitioner, the Labour Court rejected the demand made in the reference. The Petitioner, being aggrieved, is before this Court to impugn the said award.
5. Mrs. Menon, learned Advocate appearing for the Petitioner, attacked the order of the Labour Court on all issues. First, she contended that the finding of the Labour Court that the Petitioner was not 'workman' was perverse as there was overwhelming evidence before the Labour Court to show that the Petitioner's main duty was that of a technical workman. Next, she contended that the finding that the enquiry was legal and proper, was erroneous and that the finding as to proportionality of the punishment was also erroneous. In her submission, the only order which the Labour Court could have made is an order directing reinstatement of the Petitioner in service with full backwages. With the help of the Advocates on both sides, I have gone through the evidence on record in order to examine the contentions as to findings of the Labour Court being perverse.
6. To start with, the Petitioner responded to an application advertising the vacancy of Foreman and was appointed as Foreman in the Job Department. The two witnesses examined by the second Respondent have given clear cut evidence that, as Foreman, the Petitioner was incharge of the Job Department and that he was required to supervise the work of about 6 to 8 employees working in the Job Department viz., two Machinemen, one Binder, two Assistant Printers, two Ballors and two Offset Printers. They have also stated that the Petitioner's job was to assign work to these persons, allocate jobs, make recommendations as to whether the workmen could be spared or granted leave and to supervise the work of all the employees in the Department by taking rounds. It has also come in their evidence that as a Foreman the Petitioner was required to indent the material required by different Operators working under him in the Job Department. Finally, their evidence also shows that the Petitioner was invested with the power of making work appraisal of the workmen working under him for determining their suitability for promotion. Though the second Respondent had examined the witness Chandrahas Radhakrishna, the learned Judge of the Labour Court seems to have Completely overlooked the evidence of Chandrahas. In fact, the Labour Court has merely considered the evidence of Hamid and some other witnesses. The Labour Court took the view that the Petitioner was employed mainly in the capacity of supervisor. Had the Labour Court considered the evidence of Chandrahas, its findings would have become further strengthened.
7. Mrs. Menon criticised the findings of the Labour Court by pointing out that the Petitioner in his evidence has stated that the allocation of job, assignment of work, etc. was done by the Petitioner in accordance with the instructions received from his superiors. The evidence on record does not show that every day the Petitioner was given instructions with regard to the allocation of work in the Department. It merely shows that every day, in the morning, the official superiors of the Petitioner, including the Assistant Manager, Chandrahas, indicated the nature of the work to be carried out during the day. Thereafter, it was the Petitioner who used to assign different works to Operators working in the Job Department, presumably keeping in mind the priority of work to be done and the quality and quantity of the job to be turned out. The petitioner admitted candidly that it was his job to take rounds in the Department and supervise the working of the Operators and other workmen.
8. Mrs. Menon then contended that recommending of leave was not indicative of supervisory duty as the evidence nowhere showed that the Petitioner was empowered to grant leave, In my view, this contention is misconceived. When as person is working as a Supervisor, he is required to oversee the working of the Department. Since he is put incharge of the outturn of the Department, 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. In my view, recommendation of leave is one index of supervisory function.
9. The next argument of Mrs. Menon is that though the petitioner used to make work appraisal of the workmen, the petitioner was not the final authority to grant promotion. Here again the argument is misconceived. A person who is authorised or empowered to grant promotion would obviously be a person of managerial cadre. Exercise of promotional power is managerial, but appraisal of the employee is required to be called from the immediate superior who oversees the working of the workmen, as the managerial authority may not have knowledge of the day to day working of the employee. Hence, the appraisal of a workman is another index of supervisory power.
10. Mrs. Menon then criticised the reasoning of the Labour Court in emphasising the power of indenting for material in the Department. It is true that, depending upon the system adopted in any particular industrial establishment, indenting of materials required for running of Department may be made by an Operator or a Clerk specifically employed for that purpose or even buy the man in charge of the Department. In the present case, the Operators do not appear to be invested with this power. It is not the Petitioner's case that he was a Clerk employed in the Department to do work of indenting material. In the background of the evidence before the Labour Court, the fact that the Petitioner was indenting material required by various Operators in the Department is an additional pointer to the fact that he was holding a supervisory post. This was obviously so for the simple reason that he was in charge of the Department and had to ensure that the requisite material was available immediately. In my view, therefore, the Labour Court was justified in taking into consideration these diverse factors and holding that the Petitioner was employed in a supervisory capacity.
11. Mrs. Menon lastly contended that even if it could be conceded for a moment that the Petitioner exercised some supervisory functions, the evidence showed that his main function was that of qualified Printing Technologist. He had to examine the composed material or the blocks received from the respective Departments for correctness and, if any mistake was found, they had to be returned to the respective Departments for necessary correction. She submitted that this was the predominant nature of the Petitioner's job and supervision, if any, was only an incidental part thereof. Consequently, the Petitioner ought to have been held to be carrying out mainly technical work and therefore he ought to have been held to be a 'workman' in the submission of the learned Advocate. She amplified her submission and urged that if this submission is accepted, then the other duties carried on by the Petitioner, namely, allocation of jobs, assignment of work, indenting of materials, recommending of leave, etc. would become incidental to his main duty as a technical workman. In my view, this submission has no merit and needs to be rejected. If we assume, for a moment, that the Petitioner was really employed as a technical workman and his main duty was checking of blocks and material received from other Department and sending them back for rectification of defects found therein, it is difficult to understand how duties like allocation of jobs, assignment of work, recommendation of leave, carrying out of promotional appraisal could be incidental to his main work. The expression 'incidental' necessarily means that it is an appendage or a part of something which is larger and substantial. If the argument of Mrs. Menon is correct, then it would not be possible to hold that the other duties carried out by the Petitioner were incidental duties. On the other hand, if we look at the collocation facts in their proper perspective, it would be clear that the substantial part of the Petitioner's duty was supervision. He happened to be a graduate with technical qualification and, therefore, incidentally he was required to carry out the duty of verification of blocks and materials and taking action for rectification thereof. In carrying out his main duty as supervisor, he was required to do various jobs like assignment of work, allocation of jobs, indenting of materials required for his Department, recommendation of leave and work appraisal of the workmen working under him. It is only on this basis that the facts are capable of satisfactory logical explanation. I am, therefore, unable to accept the argument of the learned Advocate that the Petitioner was employed mainly in the capacity of a technical workman and incidentally was doing supervisory duties.
12. Mrs. Menon then urged, what I think is an argument of desperation. She urged that the Petitioner was not employed as a supervisor but more in the nature of a group-leader, as primus inter-pares, so to say. I am afraid, there is no factual basis for accepting this argument. In the first place, one cannot conceive of a group leader who does not himself work along with the persons or the group which he is expected to lead. Here, the Petitioner was not carrying out work on any machine or along with any group. Secondly, it was neither the contention of the Petitioner that he was a group leader, nor is there any evidence on record to show that there was a system of group working in the Job Department or that the Petitioner had been appointed group leader of any group therein. This contention therefore deserves to be rejected.
13. It in not disputed that the Petitioner's monthly wages were in excess of Rs. 500/- per month (which was the cut-off figure at the relevant time). The Labour Court, in my opinion, has rightly held that the Petitioner was employed in the main capacity of a supervisor, though he might incidentally be discharging other works. The Labour Court, in my view, was therefore perfectly justified in coming to the conclusion that the Petitioner was not a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act. The reference was, therefore, incompetent and the Labour Court rightly rejected the same.
14. Though the Labour Court's findings on the preliminary issue, which I am confirming, should put an end to the matter, since the Labour Court has also discussed the merits of the case and they were canvassed before me, I shall deal with them.
15. On merits, though she did not concede in so many words, Mrs. Menon was hard put to show any ground on which the Labour Court could have held that the enquiry was bad in law. The Labour Court, after carefully appreciating the evidence on record, has come to the conclusion that the enquiry held against the Petitioner complied with the principles of natural justice and was in conformity with the applicable Standing Orders. This is a finding of fact recorded by the Court of competent jurisdiction and I fail to perceive any element of perversity therein. I see no reason to interfere with this finding of fact recorded by the Labour Court as to the legality and propriety of the enquiry.
16. Mrs. Menon then made a fervent argument that even if the enquiry was fairly held in conformity with the principles of natural justice and the applicable Standing Orders, the findings recorded by the Enquiry Officer in the two enquiries were perverse. Here again I am unable to accede to the submission of the learned Advocate. I have been taken through the enquiry record and the evidence led at the enquiry. I have also been taken through the findings of the Enquiry Officer. In my judgment, the evidence at the enquiry did support the view taken by the Enquiry Officer in both the enquiries. Particularly referring to the incident of October 28, 1977, Mrs. Menon contended that the witnesses examined by the Petitioner, namely his employees, had given evidence that they had also been given the facility of working during the lunch recess on the assurance that they could add the two hours to their duty hours and make such entries in the muster roll as well as in the overtime slips. The Officer who is alleged to have granted this facility to the Petitioner and his co-employees, Assistant Manager Chandrahas, was examined at the enquiry. He has point blank denied having issued any such instructions. In the face of this oral evidence, word against word, the Enquiry Officer, for reasons given by him, has accepted the version of Chandrahas. There is no perversity in his findings. I am afraid that it is not possible for me to accept the argument of Mrs. Menon that no reasonable person could have arrived at the findings recorded by the Enquiry Officer. Here again I am of the view that the Labour Court has rightly rejected the contention based on perversity of findings.
17. I find no reason to interfere with the award of the Labour Court. The Labour Court has considered the material before it and has drawn conclusions which were perfectly permissible and within its jurisdiction. There is neither perversity non misdirection in the findings arrived at by the Labour Court, nor is there any other reason for interference therewith.
18. The result is that the petition fails and is hereby dismissed. Rule is discharged. However, there shall be no order as to costs.
19. Petition dismissed.