Uttarakhand High Court
WPMS/2927/2015 on 24 May, 2023
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 24TH DAY OF MAY, 2023
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 2927 of 2015
BETWEEN:
M/s Birla Tyres Pvt. Ltd. ...Petitioner
(By Mr. Siddhartha Bankoti, Advocate, holding brief of Mr. Vipul
Sharma, Advocate)
AND:
State of Uttarakhand & others. ...Respondents
(By Mr. V.S. Rawat, Brief Holder for the State of Uttarakhand and Mr.
M.C. Pant, Advocate for respondent no. 2)
JUDGMENT
1. This is employer's petition under Article 227 of the Constitution of India, challenging the award dated 27.08.2015 rendered in favour of second respondent by learned Labour Court, Haridwar in Adjudication Case No. 03 of 2014.
2. By the said award, learned Labour Court has held that termination of services of second respondent is illegal and violative of provisions contained in Industrial Disputes Act, 1947 and it is provided that second respondent shall be entitled to reinstatement with continuity of service, but without back wages.
3. It is not in dispute that second respondent was appointed as trainee in Laksar (Haridwar) Unit of M/s Birla Tyres Pvt. Ltd. vide order dated 22.08.2008. Upon completion of training, he was given regular 2 appointment. The appointment order is silent regarding his designation and there is no mention of designation of second respondent in the writ petition.
4. Services of second respondent were terminated w.e.f. 15.03.2013 against which he raised industrial dispute, which was referred for adjudication to Labour Court, Haridwar vide order dated 10.01.2014. In the order of reference, his designation is mentioned as 'Assistant'. English translation of dispute, which was referred for adjudication to Labour Court, is as follows:-
"Whether termination of service of the workman Sri Brijpal S/o Sri Khadak Singh as 'Assistant' by the employer w.e.f. 15.03.2013 is proper or legal? If not, what benefit/reliefs, he is entitled to."
5. Before learned Labour Court, written statements were filed by second respondent & the petitioner and evidence was also led by both the parties. Learned Labour Court answered the reference in favour of second respondent vide award dated 27.08.2015, which is under challenge in this petition.
6. The sole contention raised on behalf of petitioner is that respondent no. 2 was serving in Supervisory capacity as 'In-charge Canteen' and his salary was more than the ceiling fixed in Section 2(s)(iv) of Industrial Disputes Act, 1947, therefore, he does not qualify to be a 'workman', as defined under Section 2(s)(iv) of the Act, yet learned Labour Court answered the reference in favour of respondent no. 2 by overlooking the stand taken by petitioner in his written statement.
7. Learned counsel drew attention of this Court to pleadings made in para no. 4 of the written 3 statement, filed by the petitioner before learned Labour Court, which is extracted below:-
"4. That at the time of termination of services vide letter dated 14-03-2013, the applicant working in administrative capacity and serving as Incharge of canteen in Opposite Party's Factory. His responsibilities were to manage the affairs of canteen and the staff. The staff appointed in the canteen was reporting to the applicant for day to day affairs and he was solely responsible for efficient running of canteen. All the material including utensils were under his control and he was responsible for making indents for the same and also to sanction leave of the staff working under him. The staff working under him was reporting to him on daily basis and he was day to day control of the running of canteen and its staff. Further he was drawing monthly wages approximately 10,000/- which were more than Rs. 500/-.
8. Perusal of the award reveals that Labour Court had formulated two issues, based on pleadings made by the parties. English translation whereof is as follows:-
(i) Whether second respondent does not fall in the category of workman on account of his being employed in Managerial/ Supervisory capacity.
(ii) Whether service of second respondent was terminated illegally.
9. Learned Labour Court has considered the entire material on record, including the appointment letter, for arriving at the conclusion that second respondent was not serving in Supervisory capacity. Second respondent entered the witness-box and deposed that he was appointed as 'Assistant' and he was assigned the duties which are ministerial in nature including checking food in the canteen, counting the coupons and maintaining cleanliness in the canteen and he never served in Managerial or Supervisory capacity. In cross-examination, he further stated that there was no one serving under him in the canteen, although there were 6-7 other employees, who all were designated as 'Assistant' and he was not competent to 4 recommend leave to any canteen employee nor he could change their shift.
10. Learned Labour Court has also relied upon the testimony of employer witness, namely, Mr. Manoj (EW-1) and Mr. Naveen Chand Joshi (EW-2) for returning the finding that second respondent was not serving in Managerial or Supervisory capacity. Manoj (EW-1) stated in cross-examination that his leave application was sanctioned by the Time Office and not by the second respondent. Similarly, Naveen Chand Joshi (EW-2) also stated during examination-in-chief that second respondent used to forward the leave application of canteen employees and further that all canteen employees, including second respondent, had to work in the canteen, unless transferred to other departments by the employer.
11. The stand taken in para 4 of petitioner's written statement that second respondent used to sanction leave to the canteen employees under him is belied by the testimony of employer's witnesses, who deposed that second respondent simply forwarded the leave application to the authority competent to sanction leave.
12. Even otherwise also, there is evidence to show that that all canteen employees, including second respondent, were designated as 'Assistant', therefore, the defence taken by petitioner that second respondent was serving in Managerial/Supervisory capacity over other employees was rightly not accepted by learned Labour court, Haridwar.
513. Based on the testimony of the witnesses, learned Labour Court has returned a finding that second respondent was not serving in Managerial or Supervisory capacity. The said finding cannot be said to be perverse, so as to warrant interference under Article 227 of the Constitution.
14. On the second issue, learned Labour Court has returned the finding that neither notice nor retrenchment compensation was given to second respondent while terminating his service. This finding is supported by statement made by Mr. Naveen Chand Joshi (EW-2) during cross-examination that neither any show cause notice was given to second respondent nor any domestic enquiry was held before terminating him. In para 6 of the written statement filed by petitioner, it is stated that second respondent was discharged from service, as the employer had lost confidence upon him. Thus viewed, termination of service of second respondent becomes stigmatic, but no enquiry was held against him.
15. It is not in dispute that second respondent was appointed in the establishment of petitioner in the year 2008, where he continuously served till 14.03.2013, therefore, finding recorded by learned Labour Court that second respondent served for more than 240 days in a calendar year cannot be faulted. Thus, learned Labour Court is justified in holding that the procedure prescribed in Industrial Disputes Act, 1947 for retrenchment was required to be followed, but not followed, therefore, termination of service of second respondent is illegal.
616. Learned counsel for the petitioner submitted that initially second respondent was getting ` 7,884/- as wages, however, at the time of his termination, he was paid ` 10,269/- as wages, therefore, in view of provision contained in Section 2 (s) of the Industrial Disputes Act, 1947, he is not a 'workman', therefore, learned Labour Court had no jurisdiction to decide the reference.
17. Section 2 (s) of the Industrial Disputes Act, 1947 is reproduced below for ready reference:
[(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem 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.]"
18. A plain reading of Section 2(s) of Industrial Disputes Act, 1947 would reveal that ceiling regarding wages prescribed under clause (iv) would be relevant only when a person is employed in supervisory capacity. In the present case, petitioner could not produce any evidence before the learned Labour Court to substantiate his stand that second respondent was employed in supervisory capacity. The plea taken in 7 paragraph no. 4 of the Written Statement filed by petitioner is belied by testimony of his own witness, who stated that second respondent merely forwarded the leave application of canteen employee to the Competent Authority, which proves that second respondent was not competent to sanction leave to them.
19. Hon'ble Calcutta High Court in the case of Mcleod and Co. Vs. Sixth Industrial Tribunal, West Bengal & others, reported in AIR 1958 Calcutta 273, has held as under:
"35. In order that an employee doing supervisory work for hire or reward and yet not be a workman, he has to come within one of the exceptions provided in sub-cls. (i), (ii), (iii) and (iv) of S. 2(s) of the Act. The first exclusion is in favour of a person subject to the Army Act or the Air Force Act, 1950 or the Navy Discipline Act, 1934. A person who is subject to these special Statutes of the Army, Navy and the Air Force, is not a workman within the meaning of the Industrial Disputes Act. The second exclusion is in favour of a person who is employed in the police service or in the prison. That means that a police or a prison employee is not a workman within the definition of the Statute. The third exclusion is in favour of a person who is employed mainly in a managerial or administrative capacity. In order to be an excluded person from the definition of workman under this exception, the person has to be employed "mainly" in manage or administrative capacity, but not wholly. In other words, his main work must be managerial or administrative. Such a person is also not a workman within the definition of the Statute. The fourth exception with which we are more directly concerned in this application is in favour of 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."
Now this sub-cl. (iv) of Section 2(s) of the Industrial Disputes Act deals with two classes of exceptions. One is the person who is employed in a supervisory capacity and draws wages exceeding Rs. 500/- per month. For him two tests are to be applied. First is 8 the test of his employment which has to be of a "supervisory capacity", and the second is the pecuniary limit of his wages which have to be over Rs. 500/- per month. Now in this case one test of the pecuniary limit is satisfied because Sanyal draws more than Rs. 500/- per month. In order to exclude him from being a workman, it has therefore to be shown that he is employed in a supervisory capacity. Whether a person's employment is in a "supervisory capacity" or not in a particular case must not be judged by any hair splitting analysis whether it is "mainly" or subsidiarily supervisory but broadly by a total consideration of the essential nature of his work, office, designation and the entire context of his employment. Supervisory capacity may involve much clerical and routine or mechanical work and nevertheless remain supervisory. The test must be broadly conceived and broadly applied to the facts of each case. A doctrinaire attitude to mark rigid frontiers of supervisions should be eschewed. The Statute does not use the word "mainly" in the case of a person who is drawing wages more than Rs. 500/- a month. It is only with the other class of exceptions that this question of the "main" nature of the function is put forward as a test. This second class of exception provided by sub-cl. (iv) of S. 2(s) of the Act says that a person is not a workman if he being employed in a supervisory capacity exercises, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature. Mark first the difference here that no pecuniary limit for wages is provided as a test. A person who is employed in a supervisory capacity and exercises functions of a managerial nature either by the nature of the duties attached to the office or by reason of the powers vested in him, is not a workman within the definition of the Statute, even though he may be earning wages less than Rs. 500/- per month. Secondly, a supervisor by mere supervision does not come under this exception. In addition to being a supervisor he has to exercise functions mainly of a managerial nature in order to be within the exception. Therefore, supervisory work is not necessarily managerial work. In this second class of exception the predominant test and, in fact, the only test is that he must be employed in a supervisory capacity and his functions must be mainly of a managerial nature. If he is employed mainly in managerial or administrative capacity, then of course he is already an excluded person under sub-cl. (iii). He can also be an excluded person even if he, though not employed mainly in a managerial or administrative capacity, exercises functions mainly of a managerial nature."
20. In the case of National Engineering Industries Ltd. Vs. Shri Kishan Bhageria & others, reported in 9 1988 (Supp) SCC 82, Hon'ble Supreme Court was considering attributes of employment in supervisory capacity with reference to Section 2 (s) of Industrial Disputes Act, 1947 and has held as under:
"5. Bearing in mind the aforesaid indication, it would be necessary to discuss some decisions of this Court.
In All India Reserve Bank Employees Association v. Reserve Bank of India [AIR 1966 SC 305 : (1966) 1 SCR 25 : 36 Com Cas 165] this Court dealing with certain types of employees observed:
"These employees distribute work, detect faults, report for penalty, make arrangement for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical." At p. 46 of the report Hidayatullah, J. as the learned Chief Justice then was observed that the work in a bank involved layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision (emphasis supplied). There the court referred to a previous decision in Llyods Bank Ltd. v Pannalal Gupta [AIR 1967 SC 428 : (1961) 1 Lab LJ 18] where the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn and it was reiterated that before a clerk could claim a special allowance payable to a supervisor, he must prove that he supervises the work of some others who are in a sense below him. It was pointed out by Hidayatullah, J. that mere checking of the work of others is not enough because this checking was a part of accounting and not of supervision and the work done in the audit department of a bank was not supervision.
(emphasis supplied)
6. In Burmah Shell Storage & Distribution Co. of India v. Burmah Shell Management Staff Association [(1970) 3 SCC 378 : AIR 1971 SC 922 : (1971) 2 SCR 758] this Court observed that a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. Therefore, in determining which of the employees in the various categories are covered by the definition of "workman" one has to see what is the main or substantial work which he is employed to do. In Punjab Cooperative Bank Ltd. v. R.S. Bhatia [(1975) 4 SCC 696 : 1975 SCC (L&S) 394 :
AIR 1975 SC 1898] it was held that the accountant was supposed to sign the salary bills of the staff even while performing the duties of a clerk. That did not make the respondent employed in a managerial or administrative capacity. The workman was, therefore, in that context rightly held as a clerk.10
7. In D.P. Maheshwari v. Delhi Administration [(1983) 4 SCC 293 : 1983 SCC (L&S) 527; AIR 1984 SC 153 : (1983) 3 SCR 949] the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision of behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. See in this connection Black's Law Dictionary, Special Deluxe, Fifth Edition. At Page 1290, "Supervisor" has been described, inter alia, as follows:
"In a broad sense, one having authority over others, to superintend and direct.
The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."
8. Reference may be made to the observations of this Court in Ved Prakash Gupta v. Delton Cable India (P) Ltd. [(1984) 2 SCC 569 : 1984 SCC (L&S) 281] There on facts a Security Inspector was held to be a workman. At page 575 of the report this Court referred to the decision in Llyods Bank Ltd. v. Panna Lal Gupta [AIR 1967 SC 428 : (1961) 1 Lab LJ 18] and also the observations of this Court in Hind Construction and Engineering Co.
Ltd. v. Workmen [AIR 1965 SC 917 : (1965) 1 Lab LJ 462] . In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors to the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory. There it was found that he had no power to appoint.
9. In the instant case the evidence has been summarised by the Division Bench. Reference may be made to pp. 65, 73, 80, 84 to 94, 95,96 and 97 of the paper book which indicate the nature of duties performed by respondent 1, herein. His duties were 11 mainly, reporting and checking up on behalf of the management. A reporter or a checking clerk is not a supervisor. The respondent herein does not appear to us to be doing any kind of supervisory work. He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company. In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor. That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Article 136 of the Constitution. It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench. Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date May 14, 1976 where the respondent reported that certain materials were lying in stores department in absence of any decision. It was further reiterated that on inspection of the pieces those pieces were found cracked. Similarly, our attention was drawn to several other letters and we have perused these letters. We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent. A checker on behalf of the management or employer is not a supervisor."
21. Thus, the finding on issue no.1, viewed in the light of aforesaid judicial pronouncements, do not call for any interference. Thus, there is no scope for interference with the impugned award.
22. Accordingly, writ petition fails and is dismissed.
(MANOJ KUMAR TIWARI, J.) Arpan