Gujarat High Court
Kewalram Manghirmal Tarwani vs Gujarat Urja Vikas Nigam Ltd. (Formerly ... on 31 July, 2024
NEUTRAL CITATION
C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12074 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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KEWALRAM MANGHIRMAL TARWANI
Versus
GUJARAT URJA VIKAS NIGAM LTD. (FORMERLY KNOWN AS GUJARAT
& ORS.
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Appearance:
MR HARSHAD K PATEL(2844) for the Petitioner(s) No. 1
MR MD PANDYA(548) for the Respondent(s) No. 1
MR PARITOSH CALLA(2972) for the Respondent(s) No. 3
MS MAYA S DESAI(285) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
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NEUTRAL CITATION
C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024
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Date : 31/07/2024
ORAL JUDGMENT
1. Present petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner with the following reliefs.
(A) YOUR LORDSHIPS be pleased to issue an appropriate writ, direction or order, quash and set aside the impugned order dtd. 07.02.2006 passed by Ld. Presiding Officer, Labour Court, Surat in Reference (LCS) No. 447/96 and further be pleased to declare that the petitioner was entitled to be continued in services till he actually attended the age of superannuation (i.e. at the age of 60 years on 28.02.1998 and thereafter, pay all the benefits including arrears of salary and consequential benefits till 28.02.1998 along with appropriate interest,in the interest of justice;
(B) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned order dated 07.02.2006 passed by Ld. Presiding Officer, Labour Court, Surat in Reference (LCS) No. 447/96 and further be pleased to direct the respondents to give the arrears of salary and other consequential benefits from the date of termination i.e. 29.02.1996 till the actual date of superannuation i.e. 28.02.1998 along with all appropriate interest, in view of facts and circumstances of the present case, pending the admission, hearing and final disposal of this petition;
(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon'ble Court in the interest of justice;
2. Fact leading to the present petition are in nutshell as under:-
Page 2 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined 2.1 It is the case of the petitioner that he was appointed as Junior Assistant - Cum - Typist with respondent - Board and at that relevant time, he was possessing qualification of SSC and after completing stenography, he came to be promoted as Stenographer. It is the case of the petitioner that he was promoted on the post of Legal Assistant and again promoted to the post of Superintendent and lastly he came to be promoted on the post of Personal Officer. It is also the case of the petitioner that he had served with the Board for more than 38 years and he was class - II employee and he did not have the qualification of employee falling under the category of class - I. It is further the case of the petitioner that he has no authority to (i) take any independent decision on behalf of the board
(ii) approve casual leave of any employee (iii) promote / terminate any employee (iv) sanction / appoint any new employee (v) pass medi-claim of any employee etc. That as and when the petitioner required leave, he had to take sanction / prior approval from the Higher Authorities i.e. IRO, DGM, Additional CE and Chief Engineer under Class I Page 3 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined category of respondent Board and he was not falling under Class I category, in fact, he is Class II officer.
2.2 It is the case of the petitioner that he was not given the benefits as available to Class I Officers and in his absence, the work done by him was handled by Assistant Secretary and not by any Class I Officers. Thus, the petitioner is not Class I Officer and he is working as defined under Section 2(s) of the Industrial Disputes Act (hereinafter be referred to as "the Act"). In fact, the work done by the petitioner on the post of Assistant Secretary, Superintendent and Personal Officer are similar and both the posts are considered in Class II Grade. The persons appointed on these posts are included in the definition of "workman" as defined under Section 2(s) of the Act and, therefore, he is required to be treated as workman under class II Grade. It is the case of the petitioner that there is no clause in the Rules of respondent Board wherein Personal Officer is shown under Class I Grade and moreover, at the time of promotion of the petitioner, he was not was informed that Page 4 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined his services will be treated as Class I Grade. It is also the case of the petitioner that he came to be retired at the age of 58 years, even though he was actually to be retired at the age of 60 years. Therefore, the petitioner filed Reference (L.C.S.) No. 447 of 1996 before the Labour Court, Surat inter alia praying to reinstate him in service with full back wages and pay the consequential benefits. It is the case of the petitioner that when the petitioner was given promotion to the post of Personal Officer, the age limit of retirement of Personal Officer and Assistant Secretary was 58 years, whereas, after 4 years, the retirement age of the Assistant Secretary has been extended to 60 years, and the retirement age of the Personal Officer has not been extended upto 60 years and, therefore, there is clear discrimination by the Board. It is the case of the petitioner that the respondent Board ought to have retired the petitioner only in February 1998 instead of February 1996, however, the Board has retired the petitioner w.e.f. February 1996 which is in violation of its own Rules and breach of settled position of law.
Page 5 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined 2.3 In view of the aforesaid facts, the petitioner had preferred the abovementioned Reference before the Labour Court, which came to be rejected and hence, this petition.
3. Heard Mr.Harshad Patel, learned counsel appearing for the petitioner and Ms.Maya Desai, learned counsel appearing for the respondent - Board at length.
4. Mr.Patel, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that the impugned award passed by the Labour Court is illegal, unjust and arbitrary and without appreciating the evidence and settled position of law. He has submitted that since the petitioner was working as Class II officer and was not holding any post in the managerial cadre, he has no power to transfer, dismiss, remove or promotion to any persons. He has submitted that the Labour Court has committed an error while coming to the conclusion that the petitioner is not Page 6 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined falling within the purview of Section 2(s) of the Act. He has submitted that the finding recorded by the Labour Court is illegal, unjust and, therefore, the same deserves to be quashed and set aside. He has submitted that because of illegal action on the part of the Board, the petitioner has been retired two years earlier than the date of his actual superannuation and, therefore, he is entitled to get arrears of salary and other consequential benefits for two years. He has submitted that the present petition may be allowed and the impugned award passed by the Labour Court may be quashed and set aside.
5. Per contra, Ms.Desai, learned counsel appearing for the respondent - Board has submitted that the Labour Court has rightly passed the impugned award considering the oral as well as documentary evidence and the duty and the nature of the work performed by the petitioner and, thereafter, came to the conclusion that the petitioner is not fallen under the category of workman as provided under Section 2(s) of the Act. It is submitted by Ms. Desai, Page 7 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined learned counsel that the petitioner is having no power with regard to any financial activities or he is not signing the cheque on behalf of the respondent - Board, which does not mean that he is working as workman and fall under the provisions of Section 2(s) of the Act. She has submitted that the Labour Court has rightly come to the conclusion that the nature of work and the duty performed by the petitioner is not fallen under the category of the workman as provided under Section 2(s) of the Act and, therefore, the Labour Court has not committed any error while passing the impugned award. She has submitted that there is no any illegality or infirmity in the impugned award passed by the Labour Court and hence, the petition being meritless deserves to be dismissed. In support of her submissions, Ms.Desai, learned counsel has relied upon the decision Geb Engineers Association Versus Gujarat Energy Transmission Corporation Limited reported in 2015 (0) LabIC 1962.
6. Before parting, this Court may also refer to the provisions Page 8 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined of Section 2(s) of the Industrial Disputes Act, which reads as under:-
2(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.].
7. Considering the said provisions, now the question is whether an employee is a workman or not and he / she falls within the purview of Section 2(s) of the Act or not.
For that, the Labour Court has rightly considered such fact by relying upon the decision of this Court in the case of Umakant S. Deshpande Versus Gujarat Electricity Page 9 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined Board reported in 2001 (3) GLH 36, wherein the Division Bench has discussed the very issue and observed identical facts in paras - 10, 11 and 16 as under:-
"10. Reference was made before the learned single Judge about the categories of employees serving as "Assistant Secretary", who were held to be 'workmen' by this Court as well as by the Apex Court. However, we are in complete agreement with the learned single Judge that the duties of the Accounts Officer are entirely different from the duties of the Assistant Secretary. The Accounts Officers are always in the Class I Service and Assistant Secretaries are placed in Class II Service by the Board from its inception.
11. Considering the evidence which was led before the Industrial Court and considering the nature of the duty of the Accounts Officer and considering the salary drawn by him, we are of the opinion that the Accounts Officer cannot be equated with 'workman' and in view of the definition of the term 'workman', the Accounts Officer cannot be said to be a 'workman', especially when the nature of the duty which is prescribed for the Accounts Officer is of supervisory nature and their salary exceeds Rs. 1,600/-- per month. What is important is that the duty prescribed for the post of Accounts Officer is of supervisory nature and, therefore, such Accounts Officer cannot be branded as 'workman'. Similarly, so far as the challenge to Regulation 72 of the Service Regulations framed by the Board is concerned, it is a part of Statutory Regulation framed by the Board under the Electricity Supply Act, 1948.
16. The learned single Judge, after considering the evidence on record and after considering the affidavit-in-reply and after hearing both the sides, has given a decision that the Accounts Officers are performing supervisory type of work. In our opinion, the view taken by the learned single Judge is absolutely correct and the said decision is reached on the basis of the evidence on record and on the basis of the duties prescribed for the post of Accounts Officer."
8. In the case of Geb Engineers Association (supra), the Hon'ble Supreme Court has held and observed in para - 4, Page 10 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined 5 and 6 as under:-
"4.1 On the other hand, learned advocates for the Management of the then Gujarat Electricity Board, which is by this time bifurcated in five different companies, have jointly made the following submissions.
4.2 It is submitted that, in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, the then Gujarat Electricity Board had made the service regulations. As per clause 6 thereof, Class-I Engineer's service has been shown in Appendix-E. As per the said Appendix-E, the cadres of the Executive Engineer and the Deputy Engineer are treated to be Class-I Engineering Service. It is submitted that the said service regulations are in force since 12.05.1960 and even after the bifurcation of the then Gujarat Electricity Board in five companies, the said service regulations are in force till date.
4.3 It is further submitted that the minimum of the pay-scale of both these cadres have always been much higher than what is prescribed in exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947, i.e. wages of Rs.1,600/- per month, as revised to Rs.10,000/- per month, vide Amending Act, 24 of 2010. It is submitted that, the officers in both these cadres are employed in supervisory capacity. It is further submitted that, their functions are mainly of managerial nature, by the very nature of duties attached to the office they hold. It is submitted that, thus none of the officers of these cadres can be termed as a workman.
4.4 It is further submitted that identical question had cropped up before this Court. Attention of this Court is invited to the decision of this Court in the case of Krishnakant Janmejay Bhatt vs. G.E.B. [Special Civil Application No.13751 of 2004 dated 01.12.2004], wherein the challenge to the award passed by the Labour Court holding that the Deputy Engineer was not to be treated as a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 , is negated by this Court. It is submitted that, there is no reason for this Court to take a different view. It is further submitted that, if a Deputy Engineer is not a workman, his higher officer i.e. the Executive Engineer cannot be treated to be a workman.
4.5 It is further submitted that identical question had cropped up before this Court even in the case of Accounts Officers of the Gujarat Electricity Board and that issue has also been concluded by Page 11 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined this Court on this very line. Attention of this Court is invited to the decision of learned Single Judge of this Court in the case of Gujarat Electricity Board vs. B.M.Shah [Special Civil Application No.5802 of 1988 and cognate matters, dated 10.05.2000]. It is submitted that, the said decision is confirmed by the Division Bench of this Court vide its decision in the case of Umakant S. Deshpande vs. G.E.B. reported in 2001 (3) G.L.H. 36 [Letters Patent Appeal No.346 of 2001, 03.08.2001].
4.6 It is further submitted that, in view of above, neither the officers working in the cadre of Deputy Engineer nor in the cadre of Executive Engineer, can be called workmen irrespective of their posting at a particular point of time. It is submitted that, these officers are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and the awards of the Industrial Tribunal, which take the contrary view, be quashed and set aside and one which is on the line of this submission, be upheld.
4.7 Additionally, reliance is placed on the following decisions by learned advocates for the Management in support of their submissions.
(i) All india Reserve Bank, Employees' Association. Vs. Reserve Bank of India - AIR 1966 SC 305 = 1969 II LLJ 175
(ii) The Burmah Shell Oil Storage & Distributing Co. of India Ltd. Vs. The Burmah Shell Management Staff Association and ors. - AIR 1971 SC 922 = 1970 (2) LLJ 590 = 1971 (2) SCR 758
(iii) H.R. Adyanthaya and Others Vs. Sandoz (India) Limited and Others - 1994 (2) GLH 162
(iv) Mcleod and Co. Vs. Sixth Industrial Tribunal West Bengal and others- AIR 1958 Calcutta 273
(v) National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and others- AIR 1988 SC 329
(vi) SK Maini Vs. M/s. Carona Sahu Company Limited & Ors. - AIR 1994 SC 1824
(vii) Lloyds Bank Ltd., New Delhi Vs. Panna Lal Gupta and Others -
AIR 1967 SC 428 Trichy Srirangam Transort Co. Ltd.,
(viii) A.R.Nataraja Ayyar and others Vs. Trichy - Srirangam Transport Company, Ltd. - 1955 (1) LLJ 608 Page 12 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined
(viii) A. Sundarambal Versus Government of Goa, Daman and Diu - 1988 (0) GLHEL - SC 237
(ix) Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd., - AIR 1985 SC 985
(x) Standard Vacuum Oil Company Vs. Commissioner of Labour and another - 1959 (2) LLJ 771 [Special Original Jurisdiction - Writ petitions Nos.521 and 573 of 1959, dated 1 September 1959] (Madras High Court)
(xi) Bombay Dyeing and Manufacturing Company Ltd.V. R.A.Bidoo & Anr- 1990 (1) LLJ 98 [Writ Petition No.6026 of 1987, dated 19th June 1989] (Bombay High Court)
5. Having heard learned advocates for the respective parties and having gone through the material on record, so also keeping in view the authorities cited by both the sides, this Court finds as under.
5.2 It is not in dispute that in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, the then Gujarat Electricity Board had made the service regulations. As per clause 6 thereof, Class-I Engineer's service has been shown in Appendix-E. As per the said Appendix-E, the cadres of the Executive Engineer and the Deputy Engineer are treated to be Class-I Engineering Service. The said service regulations are in force since 12.05.1960 and even after the bifurcation of the then Gujarat Electricity Board in five companies, the said service regulations are in force till date.
5.3 It is also not in dispute that the minimum of the pay-scale of both these cadres have always been much higher than what is prescribed in the exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947, i.e. wages of Rs.1,600/- per month, as revised to Rs.10,000/- per month, vide Amending Act, 24 of 2010.
5.4 The Gujarat Electricity Board caters the public the service of electricity supply. The hierarchy of Engineers is this. Assistant Engineer, Deputy Engineer, Executive Engineer, Superintending Engineer, Additional Chief Engineer and the Chief Engineer. Deputy Engineer would be in-charge of one sub-division which would cater the needs of many villages of a Taluka. Under the administrative control of one Deputy Engineer, in the sub-division, there would be more than one Assistant Engineer and other technical staff. This would be over and above other administrative staff in the office like administration, account etc. Under the administrative control of one Executive Engineer in the Division, there would be more than one Sub - Division i.e. more than one Deputy Engineer, Assistant Page 13 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined Engineers and other technical staff. This would also be over and above other administrative staff in the office like administration, account etc. It is not in dispute that all the posts of Deputy Engineer and Executive Engineer are spread over the entire State of Gujarat and all the officers are transferable from one place to another place, one office to another. It may happen that on the transfer of an officer of one sub-division to some other office or from one division to some other office, he may have less persons to be supervised, or in a given case there may not be any other person who would report to him, but even then, the concerned officer continues to be in the cadre of Deputy Engineer or Executive Engineer. What should be the age of retirement of an officer, more particularly in a public sector organisation, cannot be dependent on the place of posting of that officer at the time of his retirement. It has to be for the cadre on the whole. Therefore, the test can be, what is the retirement age of the officers of a particular cadre, and it cannot be different from person to person in one cadre.
5.5.1 Further, the above stated undisputed facts need to be considered keeping in view the provisions contained in Section 2(s) of the Industrial Disputes Act, 1947 . The said sub-section reads as under.
"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context, - (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 Page 14 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined powers vested in him, functions mainly of a managerial nature."
5.5.2 The conjoint reading of the undisputed facts and above statutory provision makes it clear that the Officers working in the cadre of Deputy Engineer and Executive Engineer are employed in a supervisory capacity, and they have always drawn wages exceeding what is prescribed in the statute i.e. Rs.1,600/- per month or Rs.10,000/- per month. For this reason, the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947 , and therefore can not claim to be workmen. In view of this finding, though further inquiry may not be necessary, it also transpires that, they also exercise the functions mainly of a managerial nature, either by the nature of the duties attached to the office or by the reason of the powers vested in them. Thus, though it is not in dispute that, these officers are covered by Section 2(s) of the Act, equally true it is that they are excluded by exception- (iv) of that sub-section, for more than one reasons, and that is how they are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 .
5.6.1 Further, this Court has already concluded this issue by more than one decisions. So far the cadre of Deputy Engineer is concerned, the said point is specifically answered by this Court in Special Civil Application No.13751 of 2004, in order dated 01.12.2004, the relevant part of which reads as under.
"5. Having considered the submissions made by the learned counsel for the petitioner and having examined the award of the Labour Court, it is not possible to interfere with the findings of the Labour Court. As noted above, admittedly, the petitioner was engaged as Deputy Engineer by the respondent. Admittedly, his pay was more than Rs.1600/- per month. The finding of the Labour Court that the evidence on record establishes that the petitioner was discharging duties of supervisory character also cannot be interfered with. I am in agreement with the view of the Labour Court and I find that there is substantial evidence on record to suggest that the petitioner was enjoying control over several subordinates who are working under him. The attempt on the part of the counsel for the petitioner to show that the powers of the petitioner were withdrawn on the basis of communication dated 23rd June 1999 also cannot be of any avail to the petitioner. The said communication only suggests that some other officer was asked to take over the charge of ongoing works from the petitioner. The background in which the said decision was taken is not clear. However, the said communication can only mean that for some internal reasons, the charge of the works otherwise being carried on by the petitioner was handed over to some other Page 15 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined officer. That by itself would not divest the petitioner of his character of an officer of the respondent who is otherwise vested with supervisory powers." [emphasis supplied] 5.6.2 This Court not only does not find any reason to take a different view in the matter, independently also this Court has already arrived at the finding in this regard, as recorded in para:5.5.2 above. Further, if a Deputy Engineer is not a workman, Executive Engineer, who is higher in rank, is certainly not a workman. The point for consideration before this Court thus stands answered accordingly.
5.7 Additionally, under almost identical circumstances, in the case of Accounts Officers of the Gujarat Electricity Board, this Court has taken the same view, in the case of Gujarat Electricity Board vs. B.M.Shah in Special Civil Application No.5802 of 1988 and the same is even confirmed by the Division Bench in Letters Patent Appeal No.346 of 2001. I see no distinction in the cases on hand, except that it was the case of Accounts Officers, while the present cases are of the Deputy Engineers and Executive Engineers. Thus, the view of learned Single Judge of this Court, as confirmed by the Division Bench in case of an Accounts Officer applies with full force in the case of Deputy Engineer and Executive Engineer as well. The applicability of Section 2(s) of the Industrial Disputes Act, 1947 is not in dispute, but the argument of learned advocates for the officers is that, they are covered by Section 2(s) of the Act and further that, they are not excluded through any of the four exceptions under that sub-section. It is this later part of the argument, which is rejected. In view of the undisputed facts recorded above, it is held that the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception-
(iv) of Section 2(s) of the Act and thereby they stand excluded from the ambit of the definition of the workman under Section 2(s) of the Act.
5.8 In view of the above reasonings and findings, it is held that, the officers working in the cadre of Executive Engineer and Deputy Engineer with the Gujarat Electricity Board are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. For this reason, the impugned awards passed by the Industrial Tribunal wherein it is held that they are workmen, cannot be sustained and they need to be quashed and set aside. The impugned award passed by the Industrial Tribunal wherein it is held that they are not workmen, need not be interfered with and needs to be upheld.
5.9 Though both the sides have cited number of authorities, it is recorded that, they are only guiding principles to arrive at a Page 16 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined conclusion with regard to the point at issue, and since in the present case, the said point at issue is already a concluded issue, by the binding precedents cited above, and further that since those precedents are in no way in conflict with either the statutory provision or with any other binding precedent, the other judgments relied upon by both the sides do not alter the legal position and therefore those judgments will not take the case of the officers any further and therefore they are not discussed.
5.10 Though the principle contention pressed into service on behalf of the Officers' Association is not accepted, even while interfering in the impugned awards passed by the Industrial Tribunal wherein it is held that, the concerned officer was a workman, this Court deems it proper to protect the concerned officer to the extent that, no recovery be made from them of the wages which are already paid to them for the period during which they have continued in service even beyond the age of 58 years, because of some interim order either of the Industrial Tribunal or of this Court. It is recorded that, all these officers have retired before years, in some cases before decades, and in some case they have died also, and therefore it is the widow or the legal heir from whom the said recovery could be effected even if it was to be done. Considering all these aspects, it is held that, though the concerned officer could not have been continued in service beyond the age of 58 years, this would not entitle the authorities of the Gujarat Electricity Board (now the Electricity Companies) to recover any amount from the concerned officer.
6. For the reasons recorded above, this Court arrives at the following judgment and passes order as under.
(A) The officers working in the cadre of the Deputy Engineer and the Executive Engineer of the then Gujarat Electricity Board, now the Electricity Companies, are not the workmen within the meaning of Section 2(s ) of the Industrial Disputes Act, 1947. Consequently, they are not entitled to be governed by the service conditions as are applicable to the workmen of the then Gujarat Electricity Board, with the further consequence that, they cannot claim their superannuation retirement age to be sixty years, and it would be fifty eight years.
(B) The Industrial Tribunal, Surat has not committed any error in holding as (A) above, vide its award dated 16.05.1994 in Reference (IT) No.7 of 1989, which is the subject matter of Special Civil Application No.2239 of 1995. The said petition is therefore dismissed. Rule is discharged. No order as to costs.
Page 17 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined (C) In all other petitions, challenge is made by the Electricity Companies to the award passed by the Industrial Tribunal wherein it was held that, the concerned Deputy Engineer / Executive Engineer was a workman. Those awards are quashed and set aside.
(D) In the result, the following petitions are allowed.
( i ) Special Civil Applications No. 16684 of 2013
(ii) Special Civil Application No.6558 of 1988
(iii) Special Civil Application No.5563 of 1999
(iv) Special Civil Application No.13898 of 2004
(v) Special Civil Application No.1335 of 2011
(vi) Special Civil Application No.1359 of 2011
(vii) Special Civil Application No.9695 of 2011
(viii) Special Civil Application No.9696 of 2011
(ix) Special Civil Application No.9697 of 2011
(x) Special Civil Application No.9859 of 2011
(xi) Special Civil Application No.10132 of 2011
(xii) Special Civil Application No.10133 of 2011
(xiii) Special Civil Application No.10134 of 2011
(xiv) Special Civil Application No.10135 of 2011
(xv) Special Civil Application No.7308 of 2012 (xvi) Special Civil Application No.17115 of 2012 (xvii) Special Civil Application No.631 of 2013.
(E) It is ordered that, in the cases where the concerned Deputy Engineer and / or Executive Engineer were continued in service beyond their superannuation age of 58 years, pursuant to the order of the Industrial Tribunal and subsequent refusal of any interim relief by this Court in favour of the employer, and are paid wages for the said extended period, no recovery shall be effected by the Page 18 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined employer - the Electricity Companies, in that regard, from the concerned officer, or the legal heirs of the concerned officer.
(F) Registry is directed to send a copy of this judgment and order to the learned President of the Industrial Tribunal at Ahmedabad, who in turn shall circulate it to the Industrial Tribunals / Labour Courts.
(G) Subject to above protection and direction, Rule in each of above petitions (except Special Civil Application No.2239 of 1995) is made absolute. No order as to costs."
9. It is beneficiary to refer to the decision of the Hon'ble Supreme Court in the case of Bharati Airtel Limited Vs. A. S. Raghavendra reported in 2024 (6) SCC 418 :
2024 (4) SCR 100, wherein the Hon'ble Supreme Court has held and observed in para - 20, 25, 26 and 29 as under:-
"20. Having carefully considered the facts and circumstances and submissions of the parties, the Court finds that the Impugned Judgment as also the judgment passed by the learned Single Judge cannot be sustained. The moot issue is whether the respondent would or would not come within the definitional stipulation of a "workman" as laid out under Section 2(s), ID Act. The same reads as under:
"2(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-Page 19 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024
NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined
(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."
25. The records also show that the respondent, in fact, performed a supervisory role over the managers and was the Assessing Manager of his team, which consisted of Managers in the B-1 & B-2 Levels. Moreover, after adducing the evidence led by both sides, the Labour Court vide a detailed order and discussion, has held the respondent not to be covered under "workman" as per Section 2(s), ID Act. The learned Single Judge has not appreciated the discussion by the Labour Court and the available evidence in their true perspective, relying mainly upon the judgment in Ved Prakash Gupta (supra). In Paragraph 12 of Ved Prakash Gupta (supra), it was held . It must also be remembered that the evidence of both WW1 and MW1 shows that the appellant could never appoint or dismiss any workman or order any enquiry against any workman. In these circumstances we hold that the substantial duty of the appellant was only that of a Security Inspector at the gate of the factory premises and that it was neither managerial nor supervisory in nature in the sense in which those terms are understood in industrial law. In the light of the evidence and the legal position referred to above we are of the opinion that the finding of the Labour Court that the appellant is not a workman within the meaning of Section 2(s) of the Act is perverse and could not be supported."
26. A bare perusal of the above makes it crystal clear that absence of power to appoint, dismiss or conduct disciplinary enquiries against other employees was not the only reason for the Court to conclude in Ved Prakash Gupta (supra) that the appellant therein was a "workman". At this juncture, we may note that although Ved Prakash Gupta (supra) was decided by a 3-Judge Bench, in a later judgment by a 2-Judge Bench of this Court in S K Maini v M/s Carona Sahu Company Limited, (1994) 3 SCC 510 , it was held that "...It should be borne in mind that an Page 20 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. ..." The judgment in S K Maini (supra) is innocent of Ved Prakash Gupta (supra), but we do not find any inconsistency in the statement of law laid down in S K Maini (supra), given our reading of Ved Prakash Gupta (supra) as enunciated hereinabove.
29. As regards the power of the High Court to re-appraise the facts, it cannot be said that the same is completely impermissible under Articles 226 and 227 of the Constitution. However, there must be a level of infirmity greater than ordinary in a Tribunals order, which is facing judicial scrutiny before the High Court, to justify interference. We do not think such a situation prevailed in the present facts. Further, the ratio of the judgments relied upon by the respondent in support of his contentions, would not apply in the facts at hand.
10. It is also beneficiary to refer to the decision of the Hon'ble Supreme Court in the case of R. M. Yellatti Vs. Asstt. Executive Engineer reported in (2006) 1 SCC 106 (supra), wherein after referring to the decisions in the case of State of U. P Vs. Jai Bir Singh, (2005) 5 SCC 1; Range Forest Officer Vs. S.T. Hadimani, (2002) 3 SCC 25; Rajasthan State Ganganagar S. Mills Ltd Vs. State of Rajasthan, (2004) 8 SCC 161; M. P. Electricity Board Vs. Hariram, (2004) 8 SCC 246; Manager, Reserve Bank Page 21 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined of India Vs. S. Mani, (2005) 5 SCC 100; Municipal Corporation, Faridabad Vs. Siri Niwas, (2004) 8 SCC 195; the Hon'ble Supreme Court has observed in paras-17, 18 and 19 as under:-
"17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box.........
19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of Page 22 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government." (emphasis supplied) 2(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.]."
11. It is worthwhile to refer to the decisions of this Court in the Page 23 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined case of Paschim Gujarat Vij Company Limited Versus Jayeshkumar Kanaksinh Jadeja reported in 2019 (1) GLH(UJ) 2 : 2018 (4) SCT 42, in the case of Gujarat Electricity Board Vs. B. M. Shah reported in 2000 LawSuit (Guj.) 423 more particularly paras 9, 10, 16 and 17 and in the case of Gujarat State Electricity Corporation Limited and another Vs. Laxmanbhai Jaymal Rabari and another reported in 2016 LawSuit (Guj) 2238 more particularly paras - 9, 13, 16, 26 and 27.
12. Having considered the submissions canvassed by the learned counsel appearing for the respective parties and the material available on record and the decisions cited at the Bar and also perused the impugned award, it is not possible to interfere with the findings recorded by the Labour Court. The Labour Court, considering the evidence on record having bearing on the nature of the work to be discharged by the petitioner found that the petitioner had worked in supervisory capacity. I do not find any valid reason for taking a different view in the matter. This is not Page 24 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024 NEUTRAL CITATION C/SCA/12074/2007 JUDGMENT DATED: 31/07/2024 undefined a case, where any inadmissible evidence is taken into consideration or any admissible evidence is rejected. The Labour Court has not committed any error, much less any error apparent on the face of the record in passing the impugned award. I, therefore, do not find any reason to interfere with the impugned decision.
13. In view of the above facts and for the foregoing reasons, the present petition deserves to be dismissed and accordingly, the petition stands dismissed. Rule is discharged. Interim relief, if any, granted earlier shall stands vacated forthwith. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 25 of 25 Downloaded on : Fri Aug 16 21:44:19 IST 2024