Bombay High Court
Sadanand Ramesh Samsi vs Kirloskar Cummins Ltd. And Ors. on 30 August, 2002
Equivalent citations: 2003(2)BOMCR166, (2003)2BOMLR171, 2002(4)MHLJ804
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. The petitioner is aggrieved by the Judgment and Order dated 14th July, 1995 passed by the learned Member of the Industrial Court, Pune in Revision Application (ULP) No. 58 of 1995 which was filed by the respondent company against the Judgment and order passed by the learned 2nd Labour Court, Pune on 31-5-1995 in the Complaint (ULP) NO. 77 of 1995 filed by the petitioner under Section 28 read with Section 30 and Item 1 (a), (b), (d) and (0 of Schedule IV of the Maharashtra Recognition of Trade Unions and prevention of Unfair Labour Practices Act, 1971 (for short MRTU and PULP Act). The petitioner complained that his services were terminated by a letter dated 20-3-1995 w.e.f. 22-3-1995 in violation of the provisions of law and that it amounted to an unfair labour practice as aforesaid. He prayed for reinstatement with full backwages and continuity of service.
2. The respondent company appeared in the complaint and contested by filing its written statement denying all the allegations of unfair labour practice made by the petitioner. It was submitted by the Company that the complaint itself was not maintainable as the petitioner was not an employee under Section 3(5) of the Act as he was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The respondent company seriously contested that the Labour Court had no jurisdiction to entertain and try the said complaint as the petitioner was employed in the managerial and administrative category. Both the parties adduced their respective oral and documentary evidence before the Labour Court. On the basis of the said material before him the learned Judge held that the petitioner's complaint was maintainable as he was held to be a workman under Section 2(s) of the Industrial Disputes Act and consequently he was an employee under the provisions of the MRTU and PULP Act, and therefore his complaint was maintainable. On the merits of the complaint the learned Labour Judge held that the petitioner had proved that the respondent Company had engaged in an unfair labour practice as alleged by terminating him from employment. The learned Judge granted the relief of reinstatement with full backwages and continuity of service with effect from 22-2-1995.
3. The respondent company was aggrieved by the said order and therefore, approached the Industrial Court by filing Revision Application under Section 44 of the Act. The Industrial Court reversed the order of the Labour Court and held that the petitioner was not a workman and not an employee entitled to file a complaint of unfair labour practice under the provisions of MRTU and PULP Act. The Industrial Court dismissed the complaint by the impugned order.
4. Shri Dharap, the learned Advocate for the petitioner assailed the Judgment and Order of the Industrial Court on the ground that the Industrial Court had crossed the restricted and limited jurisdiction under Section 44 of the Act. Shri Dharap submitted that the Industrial Court has reappreciated, reassessed and reappraised the entire evidence on record on the basis of which the Labour Court had correctly concluded that the petitioner was covered by the definition of workman under Section 2(s) of the Industrial Disputes Act. Shri Dharap further contended that the nature of the work performed by the petitioner was predominantly technical and that the managerial duties which the petitioner was required to perform were marginal and incidental. Shri Dharap took me through the evidence to stress the point that the petitioner was designated as maintenance manager and was required to carry out the work of repairs of machines, repairs of translit, installation of machines by his own hands with the help of three/four helpers under him. Shri Dharap further submitted that the petitioner was not employed mainly to perform the managerial or administrative duties but he was performing the duties of technical nature. Shri Dharap submitted that even the Industrial Court has recorded a finding that the petitioner was a technical supervisor and that he was not a manager. Shri Dharap submitted that the case of the company through out was that the petitioner was performing the managerial and administrative duties to throw him out of the jurisdiction of the Labour Court and the definition of workman. Shri Dharap submitted that it was never the case of the respondent company that the petitioner was performing the work of supervisory nature. The finding of the Industrial Court therefore, could not be upheld as it was not the case of the respondent company that the petitioner was performing the duties of supervisory nature.
5. On the other hand Shri C. U. Singh, the learned counsel appearing for the respondent company has strongly supported the Judgment of the Industrial Court. According to Shri Singh, the Industrial Court had not in fact reappreciated, reappraised or reassessed the evidence. Shri Singh submitted that in fact the Labour Court had not applied its mind to the entire evidence on record and had applied wrong tests to decide the question whether the petitioner was covered by the definition of workman under Section 2(s) of the Industrial Disputes Act. Shri Singh further submitted that the Industrial Court had proper jurisdiction under Section 44 of the MRTU and PULP Act to consider and apply its own mind to the evidence which was totally overlooked by the Labour Court and was not considered by the Labour Court. In such circumstances the power of Superintendence under Section 44 of the MRTU and PULP Act permits the Industrial Court to record its own findings as the findings recorded by the Labour Court can be called perverse for non application of mind. Shri Singh has taken me through the entire evidence and the findings recorded by both the Courts to support the conclusions of the Industrial Court that the petitioner did not fall in the main definition of the workman and that he was properly covered by the exceptions in the definition. Shri Singh further pointed out from the evidence that in the large factory of the respondent company employing about 2500 workmen there were a large number of managerial ranks in the working of the factory. The managerial functions were divided for efficient working of the factory amongst different layers. The petitioner was designated as Manager Maintenance or Manager-8. He was not covered by any settlements of the staff or the workers. His duties were to supervise the working of the contractors' workers. He was required to allot duties, he was authorized to recommend leave and was empowered to deal with the various departments and outside parties. Shri Singh pointed out that there were nine to ten workers who were working under him. The petitioner was looking after the work of installation and erection of machineries with the help of the helpers under him. Shri Singh gave great emphasis on the fact that the important part of the evidence on record was totally ignored by the Labour Court and that there was absence of application of mind to the facts on record, and therefore, the Industrial Court under its supervisory jurisdiction had rightly looked into the evidence and to record its own conclusions therefrom instead of remanding the matter back for fresh consideration by the Labour Court.
6. Shri Dharap the learned Advocate for the petitioner has relied on the following Judgments :
1. 1990 I CLR 330, U. P. State Sugar Corporation Ltd. v. The Dy. Labour Commissioner, Meerut and Ors. 2. 1991 II CLR 574, Janata Sahakari Bank Ltd. Sangh v. Dilipkumar Hiralal Chhatbar and Ors. 3. 1994 I CLR 230, Pest Control (India) Pvt. Ltd. v. Pest Control (India) Pvt. Ltd., Employees All India Union and Ors. 4. 1995 I CLR 854, Vithal Gatlu Marathe v. Maharashtra State Road Transport Corporation and Ors. 5. 2000(3) Mh.L.J. 404 = 2000 II CLR 649, Aloysius Nunes v. Thomas Cook India Ltd.
7. Shri Singh, the learned counsel for the respondent-company has relied on the following Judgments:--
1. , Management of the Northern Railway Co-op. Credit Society Ltd. Jodhpur v. Industrial Tribunal, Rajashtan, Jaipur and Anr. 2. 1985 I CLR, 318, Vinayak Baburao Shinde v. S. R. Shinde, Member Industrial Court and Ors. 3. 1991 Mh.L.J. 1565 = 1992 I CLR 184, Shrikant Vishnu Palwankar v. Presiding Officer of First Labour Court and Ors. 4. (1992) 7 SCC 435, Ravinder Kumar Sharma v. State of Assam and Ors.
8. As far as the question of jurisdiction of the Industrial Court under Section 44 of the Act is concerned the law is very well settled that the supervisory jurisdiction of the Industrial Court is not an appellate jurisdiction. Under this jurisdiction the Industrial Court can interfere only when it finds an error of law apparent on the face of the record and if the findings recorded by the Labour Court are perverse and no reasonable man would come to the conclusion to which the Labour Court had come. No reappreciation, reappraisal or reassessment of the evidence is permissible for the Industrial Court under Section 44 of the Act. There is however, no total prohibition or a complete bar for the Industrial Court to look into the evidence and find out whether the Labour Court has considered the evidence reasonably as observed by the Bench of this Court headed by Justice S. P. Bharucha, as then he was, in the case of Vikas Textile v. Sarva Shramik Sangh, 1991 I LLJ 451 Bom., as under :
"The position in law is clear. The power conferred by Section 44 upon the Industrial Court empowers it, insofar as evidence is concerned, to set aside the order under revision when the evidence on record, reasonably read, is incapable of supporting the order. In other words, the Industrial Court may, in exercise of powers under Section 44, overrule the order under revision when its conclusion on evidence is perverse."
I have followed the ratio laid down by the Division Bench, in the case of Hotel Oberai Towers v. Gopal Naidu - 2002 I CLR.
9. Applying the above tests it is certainly permissible for the Industrial Court to read the evidence to find out whether the Labour Courts findings are based on that evidence and whether the Labour Court has reasonably read and considered the said evidence. It therefore would be permissible for the Industrial Court to come to a conclusion that the Labour Court had not reasonably read and considered the evidence and had come to a perverse or baseless findings which do not flow from the evidence on record, it would further be logical to carry the tests of reasonable consideration of the evidence to find out whether the Labour Court has omitted to consider or has ignored to consider certain evidence having important bearing on the outcome of the lis. If the Industrial Court comes to the conclusion that the Labour Court has certainly ignored certain portion or certain aspect of the evidence in that case it is permissible for the Industrial Court under Section 44 of the Act to appreciate that evidence and come to its own conclusions. Such appreciation of the evidence will not fall within the prohibited area of reappreciation, reassessment or reappraisal of the evidence undertaken by the Labour Court. On such fresh appreciation of the evidence the Industrial Court can certainly come to a different conclusion. It is therefore not possible for me to agree with the contention of Shri Dharap that the Industrial Court had crossed the supervisory limits under Section 44 of the Act. It is certainly open under the supervisory jurisdiction to consider the evidence which is not considered by the Labour Court and come to its own conclusions.
10. The Labour Court has dealt with the evidence on the point of workman superficially and has not applied its mind to the important aspects of the duties of the petitioner. The Labour Court has also lost the sight of the structure of the management in the modern factories where the management or the managerial or the administrative function is divided and sub-divided vertically down below. The total management function gets sub-divided amongst the several layers working at various levels. There is a division of functions like division of labour and by such method the managerial role of each individual does not cease to be managerial or administrative merely because the acts or the functions of each individual incumbent are restricted. The conventional tests cannot be applied in the modern scientific management that there is only one General Manager who controls the entire factory and all the managerial administrative functions are concentrated at one point. He may be one head of the organization but at the same time his powers and duties are scattered and spread over by percolation down below. We therefore have to consider the facts and circumstances of each and every case and decide the duties whether they fall within the main definition of the workman or they fall in the exceptional portion of the definition of workman. It is not always that he should have powers to appoint and dismiss the employees. That function might be assigned to a particular specialized department.
11. As occupying the post of Manager-8 the petitioner was certainly performing the responsible work of allotment of duties, supervision of contractors' works, installation and erection of machines, recommending leave and dealing with outside parties directly with the help of 9/10 helpers or assistance. His duties were no doubt within a limited sphere but merely because the sphere is limited and merely because he did not enjoy larger and higher duties it cannot be said that the petitioner was not performing the managerial or administrative duties. Within his own sphere his duties did partake the character of managerial functions of technical nature. As a technical personnel he had to take the decisions of technical nature. If he had himself sometimes handled the tools to correct the working of the subordinates it cannot be said that he himself was doing the work with his own hands. Such work is definitely of marginal and incidental nature. If we consider the evidence and the entire material on record it cannot be said that the Labour Court has done justice to the matter. The treatment given by the Labour Court was of superficial nature. On the other hand the Industrial Court has minutely and elaborately considered the entire evidence which was not considered by the Labour Court. The Industrial Court has applied its mind to each and every aspect of the duties said to be performed by not only the petitioner but his colleagues, who were similarly placed. The Industrial Court, however, has come to a conclusion that the petitioner's duties were not of managerial or administrative nature. The Industrial Court has given extensive reasons for the same. According to the Industrial Court, the duties performed by the petitioner were of the supervisory nature. The learned Member of the Industrial Court has extensively dealt with the evidence particularly in paragraphs 11, 12, 13 and 14 of his judgment. He has also considered the case law cited before me. Though it is a fact that the Industrial Court has come to a different but positive conclusion that from the duties performed by the petitioner it could not be said that he was performing the managerial or administrative duties but the Industrial Court has come to a positive finding that the petitioner was carrying out the duties of supervisory nature. If we consider the entire evidence and discussion of the Industrial Court we find that there is hardly any substantial difference between the nature of the two duties particularly when there is division of managerial function vertically. Sometime some duties can be properly called managerial or administrative and sometimes they also can be called as supervisory in nature. There is a thin line between the two duties. One thing however is certain that the petitioner's duties have taken him out from the main definition of the workman. He certainly falls under the exceptions given in the definition. Some duties pertain to the managerial or administrative nature and some duties can be said to be of supervisory nature. As a technical personnel he was also required to supervise and guide his subordinates while performing the work of maintenance and erection of the machineries. While dealing with the outsiders he can be said to be performing the managerial or administrative duties.
12. I am therefore in agreement with the conclusions drawn by the Industrial Court that the findings of the Labour Court that the petitioner was a workman within the meaning of Section 2(s) of the Act were perverse and cannot be sustained. The Industrial Court was fully justified in looking into the evidence which was not considered by the Labour Court. The Industrial Court under Section 44 of the Act is certainly permitted to read and consider reasonably the evidence on record to come to its own conclusions if the Labour Court has recorded a finding which can be termed as perverse and baseless and if the Labour Court has totally ignored certain important evidence on record. To consider the ignored evidence cannot be said to be reappreciation of evidence. In my opinion therefore the Industrial Court was right in appreciating the evidence and was further right in coming to a conclusion based on the evidence on record that the petitioner was not a workman within the definition of Section 2(s) of the Industrial Disputes Act. I do not find any illegality, infirmity or impropriety in the impugned judgment of the Industrial Court to warrant any interference under Article 226 of the Constitution of India. The petition therefore deserves to be dismissed and the same is dismissed. Rule is discharged. No order as to costs.