Punjab-Haryana High Court
M/S Kalamkari Designs Ltd vs The Presiding Officer on 22 March, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No. 5332 of 2012 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION : 22.3.2012
M/s Kalamkari Designs Ltd.
...Petitioner
Versus
The Presiding Officer, Industrial Tribunal-cum-Labour Court-II and another
...Respondents
CORAM: HON'BLE MR.JUSTICE RAJIV NARAIN RAINA
PRESENT: Mr.J.S.Bedi, Advocate for the petitioner
....
Notes: 1.Whether to be referred to the reporters or not?
2.Whether the judgment should be reported in the Digest?
....
RAJIV NARAIN RAINA, J.
This petition filed by the Management under Articles 226 and 227 of the Constitution is directed against the impugned award dated 14.12.2011 (Annexure P-1) passed by the Presiding Officer, Industrial Tribunal-cum- Labour Court-II, Gurgaon directing reinstatement of the workman with continuity of service and 50% back-wages at the rate last drawn.
The undisputed facts are that the workman was appointed as an Executive Secretary on 20.4.1998 on a salary of Rs.12,000/- which included basic pay Rs.8000+HRA Rs.2000 and conveyance allowance Rs.2000/-. He was a confirmed employee after probation. It is the case of the workman CWP No. 5332 of 2012 2 that though he was called Executive Secretary, he was not a member of the managerial staff nor were there any managerial or administrative functions entrusted to him. The nature of duties performed were of purely clerical nature. When he was not given his annual increment, he made a written request for grant of it on 20.10.2000 after putting in 2 ½ years of service. He pleads that for this reason the Management became allergic to him and terminated his services on 27.10.2000.
Before the Labour Court, the seriously contested issue was whether the petitioner was a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short "the Act") or not. Evidence was led by both the parties. The documents exhibited before the Labour Court were of such nature as would not demonstrate that the workman performed managerial functions. For instance, Ex.WW1/5 is a copy of letter issued to the General Manager (South), Mahanagar Telephone Nigam Ltd., Nehru Place, New Delhi written by the workman in his official capacity complaining about the fault in the telephone number of the Company. To my mind, the making of a complaint of this kind is not a managerial act and would not make him part of management. There are other documents such as Service Call Report signed by the Executive Secretary requesting rectification of a problem in Systems under service contract. This document also does not per se make him part of management. Ex.WW1/8 is a letter signed by the Executive Secretary addressed to Piramal Enterprises Ltd. Bombay forwarding a draft agreement indicating corrections as discussed with one Mr. Kumar. This document is no more than a letter signed by the respondent-Executive Secretary ostensibly on the dictates of his superior to CWP No. 5332 of 2012 3 an outside Company. It does not show that he had any authority to enter into a binding contract on behalf of the Company with Piramal Enterprises Ltd. So is the case with Ex.WW1/9 to WW1/14. These letters have been signed by the claimant/respondent Mathew Thomas as Secretary and one of them as authorized signatory. These documents do not inspire any confidence in the mind of this Court to hold that the claimant was discharging duties of a supervisory or managerial nature. Designation of an employee is of no great importance. What is important is the nature of duties performed. The test is in the nature of main duties and not incidental duties. The question to be asked in such cases is what are the duties performed and what is in substance a person employed to do. The mere description of a person is not conclusive. It is the main or predominant work that is done is to be seen even though it may be that incidentally a person is made to do some other type of work which may be sporadic or desultory or regular. The distinction would have to be drawn between the principal work and the ancillary duties involved in doing the principal work. These are matters purely in the realm of evidence. The many facets of the issue involved in a case of this type have been exhaustively dealt with by the Supreme Court in the case of Burmah Shell Oil Storage and Distribution Company of India Limited vs. Burmah Shell Management Staff Association, (1970) 3 SCC 378 where several tests have been laid down to determine when and how a person can be called workman with rights under the Industrial Disputes Act, 1947.
The testimony of S.K.Sharma, Sr.Manager as RW1 in his cross- examination is tell-tale. He admitted that the workman used to do typing CWP No. 5332 of 2012 4 and stenography work, and used to type execution orders. Giving a grandiose designation would not make a person member of the Supervisory or managerial cadre. The veil would have to be lifted and the truth unearthed as to the actual nature of duties performed. The suggestion put to witness S.K.Sharma summoned by the workman that the applicant was called an Executive Secretary only for name sake, but in fact he was doing dictation or stenographic work, was denied as being wrong, but the witness spontaneously volunteered before the Labour Court that the applicant used to do clerical work. The Labour Court has relied on the judgments in the cases of Kulwant Singh vs. M/s Reliance Petrochemicals Ltd. Etc., 2000 LLR 895, V.J.Patki vs. Prabhakar G. Kohlatkar etc., 2006 LLR 119 and Exhibition Society, Exhibition Grounds Nampally, Hyderabad vs. Labour Court-II, Nampally Hyderabad etc., 2011 LLR 532.
There is obviously no evidence on record on behalf of the Management to support its plea that the workman was performing managerial or supervisory functions. The onus was on them to prove what was asserted in pleadings. I am not impressed by the submission of learned counsel for the petitioner that a person drawing Rs.12,000/- per month as salary can never be a workman. This submission is only worth noticing and rejecting. I have no doubt in my mind that though called an Executive Secretary, the 2nd respondent was at best a glorified clerk performing no managerial or supervisory functions.
On having come to the conclusion that the 2nd respondent was a workman as defined under the Industrial Disputes Act, it follows that termination was in violation of the mandatory provisions of Section 25-F of the Act. However, the over-arching claim before the Labour Court and CWP No. 5332 of 2012 5 before this Court was that it was not a case of reinstatement as the workman had lost the confidence of the Managing Director of the Company. The plea of loss of confidence is primarily based on two letters written by the 2nd respondent to the Managing Director dated 20.10.2000 and 27.10.2000 (Annexures P-2 and P-3) duly exhibited on record of the Labour Court. The language used by the workman in these letters was found offensive by the Management. On 27.10.2000 itself, a confidential letter was issued to the workman by the Manager Administration on behalf of the Director informing the workman that Managing Director of the Company had not only lost the confidence, but was also dissatisfied with his work. He was found negligent and performance of duty was found as poor. It was informed that the Management was unable to reassign other duties to the workman, in view of his limitations. The subject of the letter is misleading since it mentions "annual increment". It is in fact a termination order. This termination order also appears to act as a decision on the representation of the workman claiming increments during the last two years. The Management assumed that the 2nd respondent was not a workman, but was managerial staff and that he was governed by a contract providing consolidated salary and not on incremental scale. Therefore, grant of increment remained in the discretion of the Management based on merit and could be given only when considered justified and that too depending upon a host of considerations such as market conditions, profitability of the Company, contribution of the managerial employee etc. Though I cannot give any credit to the 2nd respondent for the intemperate language used in the letters (Annexures P-2 and P-3), yet I would prefer to accept the view of CWP No. 5332 of 2012 6 the Labour Court given that the 2nd respondent was a workman and that he was clamouring for increments as given to other workman. Without going into justification, I find that the termination order (Annexure P-4) is clearly stigmatic. If the workman looks for another job with the termination order dated 27.10.2000 in hand, it would be an impeneterable barrier in seeking fresh employment. The Labour Court has held that such an order should have been passed, after holding a domestic enquiry. The termination was brought about on serious allegations of misconduct, inefficiency and ineptitude, without issuing charge-sheet. The Management witness admitted that no charge-sheet was issued. Still further the termination order was passed on an incorrect assumption that the 2nd respondent was not a workman, and therefore, certain mandatory compliance were not necessary such as Section 25-F of the Act. The Labour Court has returned a finding of victimization. The plea of victimization is a mixed question of law and fact to be determined in the totality of circumstances presented through oral and documentary evidence. The view of the Labour Court is both possible, plausible and sufficient, in the opinion of this Court to nullify the order of termination. It is not disputed that the 2nd respondent was a permanent employee. The effect of stigmatic order of termination has been dealt with in a catena of judgments of the Supreme Court and this Court. In the case of Anoop Jaiswal vs. Govt of India, (1984) 2 SCC 369, the Supreme Court held that a Court can go behind the formal order of discharge in the case of termination of a probationer to find the real cause of action. If the underlying reason indicates alleged misconduct, the order would be punitive in nature in absence of proper enquiry and that would amount to CWP No. 5332 of 2012 7 violation of Article 311(2) of the Constitution of India. In the present case, Article 311(2) of the Constitution of India would not apply. The 2nd respondent is on a better footing than a probationer. The order, on the face of it, is punitive in nature, and therefore, enquiry ought to have been held. By upholding the order of the Labour Court, which in turn nullifies the order of termination, ought not to put an end to this matter. The plea of loss of confidence in the contxt of letters (Annexures P-2 and P-3) is not a matter which can be lightly brushed under the carpet. The Management would remain at liberty to act, in accordance with law.
No other issue was pressed by the learned counsel for the petitioner. I find no merit in this petition. The award of the Labour Court is upheld. This petition, therefore, stands dismissed in limini.
(RAJIV NARAIN RAINA) JUDGE 22.3.2012 MFK