Kerala High Court
Philip C.Abraham vs Sahara Airlines Limited on 26 September, 2008
Author: H.L.Dattu
Bench: H.L.Dattu, A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1282 of 2006()
1. PHILIP C.ABRAHAM,
... Petitioner
Vs
1. SAHARA AIRLINES LIMITED,
... Respondent
2. LABOUR COURT,
3. SECRETARY, MINISTRY OF LABOUR,
4. REGIONAL LABOUR COMMISSIONER (CENTRAL),
5. THE REGIONAL LABOUR COMMISSIONER
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :SRI.KKM.SHERIF
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :26/09/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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W.A.No.1282 of 2008
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Dated, this the 26th day of September, 2008
JUDGMENT
H.L.Dattu, C.J.
This writ appeal arises out of an order passed by the learned Single Judge in W.P.(C) No.12019/2004 dated 20.12.2005. By the impugned order, the learned Single Judge has set aside the award passed by the Labour Court in I.D.No.18/2002 (Central) dated 23.7.2003.
2. The brief facts of the case for the disposal of this writ appeal are as under: The appellant before us was appointed as Aircraft Maintenance Engineer by the Ist respondent on probation for a period of one year, after he retired from service as Aircraft Maintenance Engineer from the Air Force. At the time of his appointment he had already completed the age of 58 years. He was put on probation for a period of one year and his probationary period was declared as satisfactory on 1.2.2000. His services came to be terminated by the Ist respondent on 7.12.2000 (Ext.P2).
3. After a lapse of 8 months, the appellant had approached Conciliation Officer at New Delhi for the purpose of Conciliation of the W.A.No.1282/2006 -2- dispute. Thereafter, since he was residing in Kerala, he had made a request with the authorities at New Delhi to refer the matter for Conciliation at Ernakulam. The request of the appellant was conceded by the authorities at New Delhi.
4. On receipt of failure of conciliation proceedings, the Central Government had referred the dispute before the Central Government Labour Court, Ernakulam for consideration and decision. The point of dispute is as under:
"Whether the action of the management of Sahara Airlines in terminating the services of Sri.Philip C.Abraham, Aircraft Maintenance Engineer (Electrical) w.e.f. 7.12.2002 is fair, legal and justified. If not, to what relief is the concerned workman entitled?"
5. After registering the dispute in I.D.No.18/2002, the Labour Court had issued notice to both the parties. Claim statement and counter claim came to be filed. In the claim statement, the appellant had stated that he is a workman, though he is appointed as Aircraft Maintenance Engineer in the Ist respondent establishment. His further case was that, though he was drawing a salary of Rs.37,500/-, still he is a workman, since he is assigned the work of maintaining the aircrafts belonging to the 1st respondent establishment.
W.A.No.1282/2006 -3-
6. In the counter claim that was filed by the Ist respondent herein, it is specifically contended that the appellant is not a workman since he was working in the respondent establishment in the supervisory capacity and was drawing a salary of Rs.37,500/-.
7. Before the Labour Court, the appellant had examined himself. On behalf of the management, an Assistant Manager who was working in the Ist respondent establishment at New Delhi had examined himself by filing a proof affidavit in lieu of Examination-in-Chief. In the proof affidavit filed, he has stated the duties of the Aircraft Maintenance Engineer.
8. In our opinion, it is apropos to refer to the duty of the Aircraft Maintenance Engineer which is not disputed by the appellant herein. The same is as under:
"The duty of the Aircraft Maintenance Engineer is to control, supervise and verify the work done by the Technicians, who are under his control. The hierarchy in the petitioner's category at the relevant time is as follows:
The workman herein was working
exclusively only on B-737-200 and he had no
technicians detailed to work with him.
W.A.No.1282/2006 -4-
Sl.No. Name of the post Total Number of Persons
(Approximately)
---------------------------------------------------------------------------------- 1. Maintenance Manager 1 2. Assistant Maintenance Manager 1 3. Aircraft Maintenance Engineer 17 4. Foreman 14 5. Senior Technician 13 6. Technician 10 7. Helpers 10
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The above chart is presumably shown to reflect the entire Sahara Fleet Maintenance. This workman is one of the four cut 'E' Electircal Engineers.
Further it is important to note that, it is evident from the Ext.W2 that he is drawing a salary of Rs.36,000/- per month. Hence, being a person employed in supervisory capacity he is not a workman as defined under Industrial Disputes Act."
9. MW1 was cross examined at length by the appellant. In the cross examination nothing is elicited by the appellant which would come to his aid or benefit.
10. The Labour Court, while considering the evidence on record has come to the conclusion that the Assistant Manager working at W.A.No.1282/2006 -5- New Delhi Branch who has been examined as Mw1 joined duty in the management establishment in February, 2003 and so he has no direct knowledge about the nature of work undertaken by the employee during his tenure of office. Since he is working in the administrative side he was not able to depose exactly the categories of Aircraft Maintenance Engineers. Thus considering the clear pleadings and evidence by the employee and in the absence of any documentary evidence to prove that the employee was discharging supervisory duties under the management it can be found that the employee was not working in a supervisory capacity under the management but he was attending maintenance work as per the directions of the officials of the management thereby he is a workman coming under the purview of section 2 (s) of the Industrial Disputes Act.
11. After coming to the aforesaid conclusion, the Labour Court further proceeded to state, that, the termination of the workman is illegal and contrary to the provisions of the Industrial Disputes Act, and, accordingly has directed the Ist respondent management to reinstate the appellant into service with monetary benefits. It is the correctness or otherwise of the award passed by the Labour Court was the subject matter of W.P.(C) No.12019/2004.
W.A.No.1282/2006 -6-
12. Time and again the Courts have observed that a Writ Court can interfere with the findings recorded by the Labour Court only if the said findings are perverse findings. Since the law on the point is well settled, it may not be necessary to quote in extenso the decisions on the aforesaid line of thinking.
13. In the evidence it has come on record that the appellant was appointed as Aircraft Maintenance Engineer. It has also come on record that there is Maintenance Manger who would supervise his work. Immediately after Aircraft Maintenance Engineer there are Foreman, Senior Technician, Technician and Helpers. In the evidence of Mw1, it has also come on record that the work of the appellant is to control, supervise and verify the work done by the Senior Technicians, Technicians and Helpers.
14. Ext.P1 which is produced along with the writ petition papers would give an indication about the nature of the work that an Aircraft Maintenance Engineer is supposed to perform when he is appointed as such by the Ist respondent establishment. A perusal of Ext.P1 would clearly indicate the duties and responsibilities of Aircraft Maintenance Engineer. In our opinion, for the purpose of disposal of this writ appeal, a reference to the duties and responsibilities of the W.A.No.1282/2006 -7- Aircraft Maintenance Engineer is also necessary. Therefore, it is extracted hereunder:
DUTIES AND RESPONSIBILITIES OF AME/APPROVED PERSONS:
01. To carry out the inspection and certification of work pertaining to the Maintenance of Aircraft, Engines, Instruments, Electrical, Radio communication/navigation equipments and components within the scope of their license or approval.
02. To ensure that all work performed in connection with Maintenance or Overhaul are in accordance with the requirements/recommendations of the Manufacturer/Director General of Civil Aviation. While carrying out the maintenance work wherever applicable, approved schedule should be followed. It should also be ensured that approved methods, procedures and materials are used in carrying out the said work.
03. To ensure all worksheets, inspection schedules, log books Maintenance records are properly completed and certified as per C.A.R. section 2.
04. To ensure that snags observed during inspections and those reported by the flight crew during the flight are rectified in an approved method. Major defects/rectifications W.A.No.1282/2006 -8- will be promptly reported and dealt with.
05. To ensure that tools and equipments used during maintenance are in serviceable condition and are tagged as serviceable. Those not serviceable are to be tagged as unserviceable and dispatched for servicing.
06. To ensure that only approved materials and parts are used and the approved spares have necessary documentation and certification before fitment on the aircraft.
07. To ensure that while handling equipment(s), tools and carrying out any servicing of aircraft or components etc. necessary caution and safety procedures are to be followed.
08. To certify the Certificate of Maintenance, Certificate of Flight Release, and certify in the log book entires, normal inspection schedules, special inspection schedules etc., and complete relevant papers on time.
09. To supervise all technical work performed by technical staff on the aircraft and to ensure that Standard Airworthiness procedures and requirements, safety measures are adhered to and any defect or incident are to be reported to the shift in charge, with the rectification action.
10. All AMEs/Approved persons will exercise the privileges W.A.No.1282/2006 -9- as per his license/approval scope and validity/rating.
11. All AMEs/Approved Persons will be responsible to maintain their license valid.
12. AME/Approved persons at outstations shall report on regular basis about the base technical activity.
15. Keeping in view the evidence on record and Ext.P1 that was produced along with the writ petition papers, the learned Single Judge has come to the conclusion that the appellant cannot call himself as a workman, and, further, the Labour Court should not have come to the conclusion with the available evidence on record that the appellant is a workman and therefore, the dispute would lie before the Labour Court.
16. Section 2 (s) of the Industrial Disputes Act is 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, W.A.No.1282/2006 -10- 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 one thousand six hundred 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}.
17. The question whether a particular workman was working only in the supervisory capacity is a question of fact and at best one of mixed fact and law. It will really depend upon the nature of the industry, the type of work in which he is engaged and the organisational set up of the particular industry and like factors. An officer whose duties involve the display of qualities of initiation and independence cannot be treated as a workman so as to attract the provisions of the Act. The functions, duties and responsibilities set out in Ext.P1 are of supervisory W.A.No.1282/2006 -11- nature and therefore, by no stretch of imagination, the Aircraft Maintenance Engineer has any of the attributes of a workman. The learned Single Judge in fact has elaborately discussed this issue and has come to the conclusion that the appellant is not a workman. We are in agreement with the reasoning and conclusion reached by the learned Single Judge.
18. Sri.Pathrose Mathai, learned senior counsel appearing for the appellant would submit that, the learned Single Judge was not justified in coming to the conclusion that the appellant is not a workman, and therefore, the Labour Court has no jurisdiction to decide the dispute that was referred by the Central Government. In support of his contention, the learned senior counsel has placed reliance on the observations made by the Apex Court in the case of Andhra Scientific Company, Ltd Vs. Seshagiri Rao (A) and another (1961 (II) LLJ 117). In the aforesaid decision, the Supreme Court has observed that the findings and conclusions reached by the Labour Court that Sri.Seshagiri Rao is a workman as defined under Section 2 (s) of the Industrial Disputes Act, unless the finding is shown to have been vitiated by an error on the face of the record, High Court is not expected to interfere with such fact finding.
W.A.No.1282/2006 -12-
19. In the instant case, we have already stated that in the evidence of the Assistant Manager he has clearly brought out the nature and responsibilities of the work that was entrusted to an Aircraft Maintenance Engineer. That evidence has not been controverted by the appellant in cross-examination of Mw1 and he has also not adduced any further evidence to demonstrate that though he was appointed as Aircraft Maintenance Engineer, his work was that of performing the duties of a Senior Technician, Technician, Helper etc. In that view of the matter, we are of the opinion that the findings and the conclusions reached by the Labour Court is vitiated by an error apparent on the face of record. Secondly, the question as to whether an employee comes within the definition of the term workman or not as defined in the Act is a jurisdictional issue which though fall within the competence of the Labour Court to decide, is still open to examination in proceedings under Article 226 and 227 of the Constitution of India. In our view, therefore, the learned Single Judge was fully justified in interfering with the findings of the Labour Court.
20. Sri.Pathrose Mathai, learned senior counsel for the appellant would also submit that, during the pendency of the writ petition, the appellant had filed an application under Section 17B of the W.A.No.1282/2006 -13- Industrial Disputes Act for payment of wages and without considering that application, according to the learned senior counsel, the learned Single Judge ought not to have disposed of the writ petition. In aid of his submission, the learned senior counsel relies on the observations made by the Apex Court in the case of Workmen of Hindustan Vegetable Oils Corporation Ltd. Vs. Hindustan Vegetable Oils Corporation Ltd. and Others (2000 (II LLJ 792). In the aforesaid decision, the order passed by the Division Bench of Calcutta High Court had been questioned on the ground that the Division Bench ought not have observed in its order that the application filed under Section 17B of the Act would be considered along with the main petition. In the said decision, the Apex Court was pleased to direct the High Court to consider expeditiously Sec.17B application filed by the workman and pass appropriate orders in accordance with law. In our opinion, the said decision of the Apex Court would not assist the learned senior counsel for the appellant in any manner whatsoever.
21. In the instant case, an application was filed by the workman and since there was delay in disposing of that application, the learned Single Judge, in fact, while posting the writ petition for hearing, had directed the management to pay one month's salary to the appellant. W.A.No.1282/2006 -14- Without any demur that salary was accepted by the appellant. When the matter was posted again, this was again repeated on the direction issued by the learned Single Judge.
22. Since both sides had agreed for hearing of the matter out of turn, the learned Single Judge had not considered the application filed under Section 17B of the Industrial Disputes Act. In our opinion, if, for any reason, the learned Single Judge, without considering the said application had posted the writ petition for hearing, the appellant ought to have approached a superior Forum for a direction to the learned Single Judge to dispose of the petition filed under Section 17B of the Industrial Disputes Act. In the present case, the appellant participated in the hearing of the writ petition, since the learned Single Judge was prepared to give an out of turn hearing in the matter without insisting on payment of wages under Section 17B of the Act. In that view of the matter, we are of the opinion that, the learned senior counsel may not be justified in contending that without disposing of Section 17B petition, learned Judge should not have disposed of the writ petition. While saying so, we intend to add that this observation of ours is made in the facts and circumstances of the instant case.
23. In our opinion, the learned Single Judge was fully W.A.No.1282/2006 -15- justified in coming to the conclusion, keeping in view the nature of duties and responsibilities of Aircraft Maintenance Engineer, that the appellant is not a workman, and, therefore, we cannot take exception to the order passed by the learned Single Judge. In that view of the matter, the appeal filed by the appellant, requires to be rejected and it is rejected. In the facts and circumstances of the case, the parties are directed to bear their own costs.
Ordered accordingly.
(H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS/dk.