Bombay High Court
The Premier Automobiles Limited vs The Premier Automobiles Employees' ... on 1 July, 1988
Equivalent citations: (1994)IIILLJ1048BOM
Author: Sujata Manohar
Bench: Sujata Manohar
JUDGMENT Sujata Manohar, J.
1. Second Respondent M.S. Phatate joined the service of the petitioner - The Premier Automobiles Ltd. in the year 1957 as a daily rated workman in the capacity of a Number Taker. In 1958 he was transferred to the Internal Audit department as a clerk. In 1974 he was transferred to the Traffic department as an intermediate clerk. While the 2nd respondent was working as an intermediate clerk in the Traffic department he claimed additional allowance on the ground that he had carried out duties as in charge of the Traffic department when the Officer-in-charge had gone on leave. This demand was not accepted by the petitioner.
2. On 1st August 1974 the 2nd respondent was promoted as a Supervisor in the Paint Shop of the petitioner by an order of promotion and transfer of that date (1.8.1974). The order stated that "effective today" (1.8.1974) he was promoted as Supervisor and transferred to Paint Shop. There is an office memo addressed to the 2nd respondent dated 3rd May 1978 by the Deputy Works Manager to the following effect:
".....you have to look after and be responsible for day to day production of Sound Deadlier and Wet Sanding Sections of Paint Shop in First Shift with immediate effect. You shall report to Shri Athale, Paint Tech., first shift Incharge Paint Shop."
There is another office memo of 29th July 1979 informing the 2nd respondent that he will have to supervise the sound deadner and wet sanding section and will be responsible for the production and quality and shall report to Mr. Karnik, Officer In-charge Paint Shop. Both these memos were addressed to the petitioner as Supervisor in the Paint Shop.
3. The 2nd respondent was throughout an office-bearer of the Premier Automobiles Employees' Union. He was the Vice-Presi-dent of this Union at the material time.
4. On 8th July 1981 the 2nd respondent addressed a confidential letter to the Managing Director of the petitioner. In the letter he has stated that he had been sent to the Paint Shop division so that he may gain financially and he was thankful to the Managing Director. But he was a non-technical man. He was isolated doing nothing and therefore requested that he should be transferred to his original department or to the security department, Administration department, Publicity, Sales department where he could keep himself busy. He also expressed his willingness to be transferred outside Bombay - to Hyderabad, Bangalore or Madras. He pointed out that he had still 16 years more and he will have to carry on a heavy burden in future. He therefore requested that looking to his loyal and unstinted devotion to his entrusted duties, if he is given due compensation at the rate of 25% for premature retirement, he would be willing to retire. He left the matter to the final decision of the Managing Director.
5. In the meanwhile apparently the petitioner came across certain irregularities in connection with the work of the 2nd respondent. A charge-sheet dated 21.7.1981 was prepared against the 2nd respondent setting out in detail various charges against the 2nd respondent. Under an order of the same date the 2nd respondent was suspended forthwith pending enquiry and final decision. The charge-sheet and order of suspension were directed to be served on the 2nd respondent on 22.7.1981 when he came to work.
6. It is the case of the petitioner that at about 8.30 a.m. on 22nd July 1981 the 2nd respondent was entering the premises through the main inner gate. He was stopped by the Assistant Security Officer and was asked to go to the Office of the Chief Security Officer. The 2nd respondent was then told that a charge-sheet and an order of suspension were to be served on him and he was offered a copy of the charge-sheet. It is the case of the petitioner that the 2nd respondent refused to accept the charge-sheet. He also said that he would not accept the charge-sheet but instead of accepting it he would submit a letter of resignation from the service of the petitioner Company. He submitted his letter of resignation and left the premises at about 8.45 a.m.
7. According to the 2nd respondent on the other hand, he was taken to the cabin of the Chief Security Officer where Deputy General Manager (Personnel) R.G. Kaulgi as well as Asst. Personnel Manager, J.G. Desai were also present along with the Chief Security Officer. According to the 2nd respondent, he was intimidated by these officers into giving a letter of resignation and he was told that he would not be allowed to go unless he submitted his resignation.
8. The petitioner accepted the resignation of the 2nd respondent by their letter dated 23rd July 1981, which was sent to the 2nd respondent by post both under a certificate of Posting as well as by registered post. The petitioner received on 30th July 1981 a letter from the General Secretary of the 1st respondent-Union withdrawing the resignation of the 2nd respondent and alleging that the resignation was taken by force. The petitioner also received on 1st August 1981 a letter dated 23rd July 1981 from the 2nd respondent withdrawing his resignation.
9. The petitioners contend that the 2nd respondent has resigned and have refused to reinstate the 2nd respondent.
10. The dispute between the parties was referred to the Labour Court under Reference (IDA) No. 1120 of 1981. The Labour Court by its Award dated 25th February 1986 has ordered reinstatement of the 2nd respondent with full back wages and continuity of service with effect from 22nd July 1981. The Award is challenged in the present petition.
11. The petitioners contend that the 2nd respondent was not a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 and hence the Labour Court had no jurisdiction over the dispute. They also contend that the resignation of the 2nd respondent was entirely voluntary and unconditional. They have accepted it before the 2nd respondent's attempt to withdraw it. Hence the 2nd respondent has resigned from service in accordance with law.
12. The petitioners have also challenged the validity of Section 17-B of the Industrial Disputes Act. The last contention relating to the vires of Section 17-B of the Industrial Disputes Act is not pressed in view of the fact that Section 17-B of the Industrial Disputes Act has been upheld as valid by a judgment of a Division Bench of this Court in the case of Elpro International Ltd. v. K.B. Joshi reported in 1987 Mah.L.J. 376.
13. Under Section 2(s)(iv) of the Industrial Disputes Act, 1947 a workman is defined, inter alia, as a person who, being employed in a supervisory capacity draws wages exceeding Rs. 500/- per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. (This was the provision at the relevant time). The petitioners contend that the 2nd respondent at the relevant time was employed in a supervisory capacity and he drew a salary exceeding Rs.500/- per month. In fact his salary was around Rs.2,000/- p.m. Oddly the 2nd respondent in his statement of claim as also in his earlier correspondence in the year 1974 insisted that he had to work in a supervisory capacity in the Traffic department where he worked prior to his posting in the Paint Shop. The petitioners had vehemently denied this and it was their case that the 2nd respondent was merely an intermediate clerk. After 1st August 1974, when the 2nd respondent was transferred to the Paint Shop as a supervisor, both sides have reversed their stand. According to the petitioners, the 2nd respondent was working as a supervisor in the Paint Shop while according to the 2nd respondent he was a non-technical man and he did not do any work in the Paint Shop, much less the work of a supervisor.
14. Letter of 1st August 1974 which promotes and transfers the 2nd respondent as Supervisor in the Paint Shop does not set out the nature of his duty. His designation however was of a Supervisor. The Office memo of May 1978 states that the 2nd respondent was responsible for the day to day production of Sound Deadner and Wet Sanding in the first shift. This memo does not indicate that duties of the 2nd respondent were of a supervisory nature. The second memo of July 1979 states that the 2nd respondent would be supervising the Sound Deadner and Wet Sanding section and will be responsible for the production and quality and snail report to the Officer in-charge Paint Shop. This memo clearly indicates that the duties of the 2nd respondent were supervisory in nature and he was supervising a section of the Paint Shop. My attention is drawn to the fact that the 2nd respondent was required to report to the Officer in-charge Paint Shop. This, it is argued, would indicate that he was not acting in a supervisory capacity. It is difficult to see why this should be so. The 2nd respondent was required to supervise the sound deadner and wet sanding section of the Paint Shop. He was also responsible for production and quality. As a supervisor of one section he was required to report to the Officer in-charge of the entire Paint Shop. Memo of July 1979 therefore does indicate that the duties of the 2nd respondent were supervisory in nature.
15. The Labour Court in its award has strongly relied upon the pleadings of the petitioners relating to the employment of the 2nd respondent prior to 1st August 1974. As per these pleadings when the 2nd respondent was working in the Traffic Department his work was not of a supervisory nature. From this, the Labour Court concludes that the petitioner was not doing supervisory work. This conclusion is totally unwarranted and is a result of a total misunderstanding of the case of both the parties.
16. The duties of the 2nd respondent prior to 1st August 1974 are not relevant. What is relevant is the period subsequent to 1st of August 1974 when the 2nd respondent was occupying the post of supervisor of the Paint Shop. It was from this post that he is said to have resigned and the dispute relates to his resignation from this post. Since, he was occupying this post in a supervisory capacity and his salary was above the prescribed limit, the 2nd respondent was not a workman within the definition of Section 2(s) of the Industrial Disputes Act, 1947.
17. My attention has been drawn to a decision of the Supreme Court in the case of Arkal Govind Raj Rao v. Ciba Geigy of India Ltd reported in 1985-II-L.L.J 401. In that case an employee was working as an Assistant. He was designated as group leader and was looking after the work of two other members of the group. He also had to ensure that work attached to the group was completed in time. The employee was preparing bank reconciliation statements and doing other administrative work. The Court held that the predominant nature of duties was not supervisory. Primarily the employee continued to work and perform clerical duties but he also incidentally looked after the work of other members of the group who were only two in number. It, therefore, felt that clerical work which is distributed amongst three persons does not cease to be clerical because one of the three is to oversee the work of the other two. It held that the duties of the workman were not supervisory.
18. This judgment does not assist the 2nd respondent. The second respondent's duties were predominantly to supervise the work in Sound Deadner and Wet Sanding section of the Paint Shop. He was also responsible for the production and quality of work in that section. That would indicate that his duties were predominantly supervisory. Secondly he was promoted in August 1974 from clerk to supervisor. Designation by itself is undoubtedly not conclusive, but read with the two office memos it leads to a conclusion that the duties of the 2nd respondent were supervisory in nature.
19. The case of National Engineering Industries v. Shri Kishan Bhageria reported in (1988)1 LLJ 363 SC was also cited before me. In that case the Supreme Court said that a person whose duty it was to check up and report to the management was not a supervisor. He had no independent right or authority to take decision and his decision did not bind the company. On the facts the Supreme Court said that a checker on behalf of the management or employer is not a supervisor The 2nd respondent has urged that since he was required to report to the officer in-charge of the Paint Shop, he had no independent right of taking any decision and therefore he should not be classified as a supervisor. In the present case however, the 2nd respondent was in independent charge of a section of the Paint Shop. He was required to supervise the production and quality of work in that section. He was required to report to a higher authority who was in charge of the entire section. This does not change the character of his duties which are supervisory in nature the decision of the Supreme Court also, therefore, does not apply in the circumstances of the present case.
20. It was pointed out by Mr. Menon that the charge-sheet which was served on the 2nd respondent was on the basis that he was a workman because the charge-sheet refers to the Standing Orders. These are Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, which apply only to workmen as defined under the Industrial Disputes Act, 1947.
21. It is true that the charge-sheet is on the basis that the Standing Orders apply to the 2nd respondent. But what one has to examine in the present case is whether in fact the 2nd respondent was discharging duties of a supervisory nature or not. Hence reference to Standing Orders in the charge-sheet is not directly relevant in deciding this issue.
22. It was also submitted that the onus of proof to establish that the 2nd respondent was not a workman was on the petitioner. The question of onus of proof is not relevant when evidence has been led by both the sides and the finding is based on an appreciation of evidence before the Labour Court. Hence I am not examining this aspect.
23. Even assuming that the 2nd respondent was a workman within the meaning of the Industrial Disputes Act, 1947, he submitted a letter of resignation on 22nd July 1981. Was this resignation obtained by force or undue pressure? Secondly, was it a conditional resignation?
24. The 2nd respondent had originally alleged that on the morning of 22nd July 1981, when he came to the premises of the Company, a number of armed security guards were present and he was intimidated into giving a letter of resignation. In his evidence before the Labour Court, however, he did not say anything about the armed security guards. He stated instead, that when he came for duty at 8.30 a.m. the security officer asked him to accompany him to the Chamber of the Chief Security Officer. In the chamber Deputy Manger (Personnel) R.G. Kaulgi and J.G. Desai his assistant, as also the Chief Security Officer were present. He was told that unless he accepted the letter of suspension he will not be allowed to go out of the cabin and that Kaulgi told him that he will have to submit his resignation and only then he will be allowed to go. He wrote a letter of resignation out of fear. In his cross-examination he has stated that he did not file any complaint in writing to the police station of this criminal intimidation. He stated that he went to the police station to complain but his complaint was not recorded.
25. J.G. Desai who has given evidence, has denied that he was present in the cabin of the Chief Security Officer. He has stated that he came to the Company between 9 and 9.30 a.m. He also stated that Kaulgi had come to the Company after 9.30 a.m. on that day. Since Desai was not present, he naturally did not have any personal knowledge whether Kaulgi was present or not. Kaulgi has since expired. The Asst. Chief Security Officer has given evidence to the effect that there was no extra ban-dobast on that day nor were the security watchmen present in large numbers. He has deposed that nobody was having any arms and neither Kauigi nor Desai were present.
26. What is more important, there is a memo written by the Chief Security Officer on that very day to the Personal Manager in which he has set out what transpired. This contemporaneous record shows that the 2nd respondent was brought by the Asst. Security officer to the Office of the Chief Security Officer where the Chief Security Officer attempted to serve on him a charge-sheet and suspension order. The 2nd respondent refused to accept the same and instead of taking it he submitted a letter of resignation. The memo states that this incident was witnessed by the Asst. Security Officer. The Asst. Security Officer also signed this memo along with the Chief Security Officer.
27. Letter of resignation is written on the letter-head of the 1st respondent-Union. It bears Reference No. PAEU/MSP/8/326. This indicates that the letter was written with some care. In the first paragraph it is stated as follows:
"I was fully aware one day or other you will victimise me therefore instead of accepting your suspension pending enquiry I have now decided to go back to my native place. I have done my duties to this Industries."
He then states, "Please accept my resignation with immediately (sic) and give me the extra compensation which I have requested to M.D. on 6th July 81 letter." He has made a reference to the earlier letter written by him to the Managing Director in which he had asked for extra compensation for premature retirement. There seems to be some mistake about the date of that letter because the letter to the Managing Director was of 8th July 1981 and not 6th July 1981. This letter appears to be written with deliberation and care. It does not appear to be a letter which could have been written by a person who was in fear or was threatened.
28. In the earlier letter of 8th July 1981 also the 2nd respondent had indicated that he was willing to retire or to accept transfer. He had requested that he should be paid an additional 25% compensation. The same wish is also expressed in the resignation letter. In this context the letter of resignation appears to be voluntary-an alternative that the 2nd respondent preferred to facing an enquiry.
29. It is submitted by the 2nd respondent that this resignation was conditional on his getting 25% additional compensation. But the language of the letter of resignation does not indicate that it was conditional. The earlier part of the paragraph sets out some grievance and instead of accepting suspension pending enquiry the 2nd respondent had decided to go back to his native place. In the next paragraph he therefore tenders his resignation immediately, He has added thereafter that he should be given extra compensation which he had requested the Managing Director to give him in his letter of 8th July 1981. The resignation letter refers to this extra compensation demand as a request. The earlier letter dated 8th July 1981 clearly is a request for such extra compensation. The resignation letter also makes such a request at the end. But the resignation is an immediate resignation. It is not made conditional on his getting extra compensation.
30. This resignation was accepted by the Company on 23.7.1981. The letters retracting resignation were received only on 30.7.1981 and 1.8.1981 after the resignation was accepted. Hence they do not have any legal effect.
31. The finding of the Labour Court on this point seems to be perverse. Looking to the evidence on record this finding cannot be sustained at all.
32. My attention was drawn to a decision in the case of Coromandal Fertilizers L'td. v. P. Venugopal reported in 1986-I. L.L.J. 417 where the Andhra Pradesh High Court has observed that the resignation submitted by the employee is in the form of an offer, and it is open to the management to accept the same or reject it. But it was not open to the Management to accept the resignation from some date other than what was offered because such an acceptance would amount to a counter-offer which again requires acceptance from the workman. This decision has no application to the present case.
33. In the case of Nagarpalika v. The Commissioner reported in 1985 (51) F.L.R. 35 the employee had stated that if some subordinate officials were aggrieved by his request for payment of arrears or there is some secret motive behind the non-payment, he is not prepared to work further in the Corporation and consequently his resignation may be accepted. It was held that this was a conditional resignation because he was not prepared to work only if some subordinate officials were aggrieved or there was some secret motive behind non-payment. Such is not the present case. The resignation is unconditional. It has been accepted by the petitioners. Withdrawal of resignation is only after its acceptance. Such a withdrawal is ineffective in law.
34. In the premises, rule is made absolute in terms of prayer (a).
35. In the circumstances of the case there will be no order as to costs.