Karnataka High Court
Kum. Rajashree Alwandi vs Jda Software Private Limited on 7 June, 2023
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NC: 2023:KHC:19381
WP No. 56633 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.56633 OF 2018 (L-RES)
BETWEEN:
KUM. RAJASHREE ALWANDI
AGED ABOUT 46 YEARS,
NO.172, 11TH CROSS,
3RD MAIN, PRASHANTH NAGAR,
BANGALORE - 560 079. ... PETITIONER
(BY SMT. R. RADHA, ADVOCATE)
AND:
1. JDA SOFTWARE PRIVATE LIMITED
TOWER 'A' MANTRI COMMERCIO,
NEAR SAKARA WORLD HOSPITAL,
OUTER RING ROAD, BELLANDUR,
BENGALURU - 560 103,
REPRESENTED BY ITS
MANAGING DIRECTOR.
Digitally signed by
MAHALAKSHMI B M
2. JDA SOFTWARE PRIVATE LIMITED
Location: HIGH
COURT OF 9TH FLOOR, MEENAKSHI TECH PARK,
KARNATAKA SY. NO.39P, GACHIBOLLI,
NEAR RAHEJA CIRCLE,
HYDERABAD 04066961000
REPRESENTED BY ITS
ASSOCIATE DIRECTOR. ... RESPONDENTS
(BY SRI VASUKI K.N., ADVOCATE FOR
SRI B.C. PRABHAKAR, ADVOCATE FOR R-1; R-2 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS; SET ASIDE THE AWARD DATED 9TH OCTOBER, 2018
PASSED IN REFERENCE NO.26 OF 2016 ON FILE OF THE PRESIDING
OFFICER, SECOND ADDITIONAL LABOUR COURT AT BANGALORE
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WP No. 56633 of 2018
PRODUCED UNDER ANNEXURE-A, AND DECLARE THAT THE
PETITIONER IS A WORKMAN WITHIN THE MEANING OF THE
INDUSTRIAL DISPUTE ACT IN-TURN ALLOW THE REFERENCE
PRODUCED UNDER ANNEXURE-B, THEREBY; DIRECT THE
RESPONDENT TO REINSTATE THE PETITIONER WITH BACK WAGES
AND ALL OTHER CONSEQUENTIAL BENEFITS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is assailing the order dated 09.10.2018 in Ref. No.26/2016 on the file of the Second Additional Labour Court at Bengaluru ('the Tribunal' for short) whereby, the Tribunal has rejected the dispute raised by the petitioner under Section 10 (1) (c) of the Industrial Disputes Act, 1947 ('the ID Act' for short).
2. Brief facts of the case are that the petitioner was appointed as a Senior Assistant Administrator in respondent-company and was promoted as Associate Manger (HR). After ten years of service, the respondent- company has terminated the contract of employment in the guise of the petitioner has herself voluntarily resigned the service. It is stated in the petition that respondent with an intention to terminate the employment of the -3- NC: 2023:KHC:19381 WP No. 56633 of 2018 petitioner had made it appear that she had voluntarily tendered her resignation. It is further stated that the petitioner had initiated conciliation proceedings before the Labour Court, Bangalore and since the proceedings ended in failure, the matter was referred to adjudication in Reference No.26/2016. The Labour Court has dismissed the reference petition on the ground that the petitioner is not a workman within the meaning of 2 (s) of the ID Act and accordingly, rejected the reference.
3. Learned counsel for the respondents has filed statement of objections inter alia contending that the petitioner submitted her resume to the respondent- company for suitable job considering her eight years of experience, she was called for interview and in the process of interview, taking into consideration her experience, she was appointed as Senior Assistant Administrator and letter of appointment was accorded to the petitioner and terms of the appointment has been appended and having been accepted the terms, the petitioner joined the respondent- -4-
NC: 2023:KHC:19381 WP No. 56633 of 2018 company on 14.07.2003 and a separate document containing the terms and conditions of the contract was also executed and the same was revised from time to time. That the petitioner was promoted as Associate Manager (HR) with effect from 01.04.2012 and after promotion, the petitioner was given revision in the salary and the salary was again revised with effect from 01.04.2013. It is stated in the statement of objections that the duties and responsibilities of the petitioner were those of an Associate Manager (HR) and has specified duties which has been undertaken by the petitioner was that of an non-clerical work and supervisory work. It is further stated that the petitioner was performing managerial functions and she is not the workman as defined under section 2 (s) of the ID Act. The Tribunal taking into consideration of all these aspects has rightly rejected the reference petition made by the petitioner. -5-
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4. Heard Smt. R. Radha, learned counsel for the petitioner and Sri. Vasuki K.N. learned counsel for Sri. B.C. Prabhakar, learned counsel for the respondents.
5. Learned counsel for the petitioner would vehemently contend that the Tribunal was not justified in only answering issue No.1 holding that the petitioner is not a workman as contemplated under Section 2(s) of the ID Act and in not answering point No.2, which led the order unsustainable and sought to set-aside the order. Learned counsel would further contend that the petitioner was not doing managerial work as contended by the respondent- company but infact was doing the clerical work and would be termed as a workman as envisaged under Section 2 (s) of the ID Act. According to the learned counsel, the said contention was not considered by the Tribunal and the reasoning accorded by the Tribunal to come to the conclusion that the petitioner is not a workman under Section 2(s) of the ID Act is unsustainable. Learned counsel for the petitioner has relied upon the dictum of the -6- NC: 2023:KHC:19381 WP No. 56633 of 2018 Apex Court in the case of M/s Cipla Ltd. & Ors vs Ripu Daman Bhanot & Anr reported in AIR 1999 SC 1635 [Cipla Ltd.] and sought to allow the petition.
6. Per contra, learned counsel appearing for the respondent in addition to the grounds urged in the statement objections would contend that the Tribunal has rightly come to the conclusion that the petitioner is not a workman as contemplated under Section 2(s) of the ID Act. Learned counsel for the respondent has taken this Court to the cross-examination of the petitioner, wherein she has categorically admitted that she was working as Associate Manager (HR) and she was entitled to the salary to the post of Associate Manager. Taking into consideration all these aspects, the Tribunal has rightly held that the petitioner is not a workman and the same does not call for any interference in the hands of this Court. Learned counsel would also contend that in the absence of the petitioner being workman, the question of answering issue No.2 would not arise and the reasoning of -7- NC: 2023:KHC:19381 WP No. 56633 of 2018 the Tribunal is just and proper and sought to dismiss the petition.
7. Having heard the learned counsel for the parties, the point that arise for consideration is:
"Whether the Tribunal was justified in holding that the petitioner is not a workman under Section 2 (s) of the ID Act?"
8. The facts are not in dispute that the petitioner was appointed as a Senior Assistant Administrator and was promoted as an Associate Manager (HR) and was drawing salary as that of Associate Manager (HR) and the petitioner was promoted based on the merit and performance. The case of the petitioner are in two folds:
1) That the appointment of the petitioner was that of a Senior Assistant Administrator and she was discharging the duties of a clerical work and though the designation was that of Associate Manager (HR), she was not given the supervisory powers or the managerial powers and she was exclusively discharging the duties of -8- NC: 2023:KHC:19381 WP No. 56633 of 2018 the clerical staff and she was a workman as defined under Section 2(s) of the ID Act.
2) That the letter of resignation is created by the Management and that she has neither signed the resignation nor submitted the resignation to the Management, that the act on the part of the Management in relieving the services of the petitioner is a clear case of victimization and unfair labour practice.
9. The material on record would reveal that the duties and responsibilities of the petitioner were that of processing the visa of the employees documentation required for applying for the country specific visas, supervising the day-to-day process in visa processing and ensure error fee and timely delivery, etc., This managerial functions performed by the petitioner has been categorically admitted in her cross-examination and the relevant portion of the cross-examination reads as under:
"Further Cross-examination: by Sri. KGNP Advocate for II party.-9-
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27. It is true to suggest that after my appointment I was given revision in salary from time to time. It is true to suggest that in the year 2012 I have been promoted as Associated Manager, HR. Now I see my promotion order dtd: 14.04.2012 and same is marked as Ext.M-4. It is true to suggest that from 1st April 2013 I was given revision in salary to the post of Associate Manager, HR. Now I see document to that effect and same is marked as Ext-M-5. It is true to suggest that during my employment my work has been appreciated by the II Party.
x x x
35. It is true to suggest that I was looking after immigration function in the Il party. It is true to suggest that I was authorized signatory of the II party to immigration documents. Witness volunteers she was authorized signatory to certain documents and not all. It is true to suggest that I was responsible for processing Visa of Indian Employees to all countries. It is not true to suggest that I was complying the process of border immigration laws. Witness volunteers that she was doing the part of the said work. It is true to suggest that I was doing follow up of Visa's of employees. It is true to suggest that it is my responsible to error free visa and timely and delivery of visa's to the employees in India. Witness volunteers that there are other around 6 to
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NC: 2023:KHC:19381 WP No. 56633 of 2018 7 team members. It is true to suggest that other team members are working in USA, Europe and Asia.
36. It is true to suggest that as a member of II party company I was attending consulate meetings and conferences. It is true to suggest that in India I was single point of contact for immigration vendors. It is true to suggest that it is my duty to identify global changes in immigration law and to up date the II party management. Witness volunteers that she should up date to her manager and then her manager used to up date the II party management. It is true to suggest that whenever employees appeared for Visa I used to give input to them as to how they should face the interview.
37. It is not true to suggest that I was front line approver of the immigration vendors in passing the bill. Witness volunteers that she used to check for the correct amount. It is not true to suggest that after my approval only Bills/Invoices would be passed. Now I see letters written to Embassy of India, Australia High Commission and USA by me and said letters are marked as Ext.M-12 to Ext.M-14. Now I see 21 sheets of Invoice referred by me after checking its correctness and said invoices together are marked as Ext.M-15. It is not true to suggest that I was not only checking the correctness of invoices but also approving the same."
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10. At this stage to consider whether the petitioner would come under the purview of 2(s) of the ID Act, Section 2(s) of the ID Act defines 'the workman' as under:
"Section 2. Definitions xxx xxx xxx
(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
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(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. The wordings envisages under Section 2(s) of the ID Act would mean any person, who is doing skilled, manual or clerical work. The duties of an Assistant Manager (HR) was found to have been functioning the functions of managerial and supervisory work and the duties and the responsibilities of Assistant Manager (HR) stated by the respondent, which is as under:
• "Design, implement and oversee the process for immigration function in COE India.
• Represent Company in consular forums for strengthening consular relationship.
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NC: 2023:KHC:19381 WP No. 56633 of 2018 • Authorized representative / signatory of the Company on Immigration documents. The letter written by the First party to Embassy of India, Consular Wing, U.S.A., to the Australian High Commission and to POE, U.S.A. clearly indicate about the authorization given by the Second party to carry out immigration functions.
• Responsible as a first line approver for immigration costs/ invoices.
• Responsible for processing visas for all CoE India employees for all countries based on the business requirements.
• Administer compliance in mobility with regards to Cross Border Immigration Laws.
• Supervise day to day operations (external/ internal) in visa processing & ensure error free and timely delivery.
• Single point of contact for all external stakeholders (Immigration vendors, Consulates and US Immigration team).
• Detect & identify the Global changes in Immigration laws and update the business & senior management accordingly with adequate measures.
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NC: 2023:KHC:19381 WP No. 56633 of 2018 • Work with the JDA global immigration team to process all visa requirements for India.
• Understand the nature of work to be performed and guide the management on the appropriate visa category to be filed for the employee.
• Brief the employees on the visa process, do's and don'ts during visa interviews and documentation required for applying for the country specific visa's.
• Responsible for auditing the immigration documentation & SLA adherence by the vendors to ensure compliance.
• Collaborate with the business to understand the upcoming project requirements, provide updates on the visa process and address issues.
• Enable business & financial growth via improved mobility processes & services.
• Responsible for process enhancements in the immigration function to bring in efficiencies.
• As a part of her duties, she was sending request for issuing appropriate Visa to the employees deputed to the different countries.
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NC: 2023:KHC:19381 WP No. 56633 of 2018 • The Petitioner herself was processing the bills pertaining to Immigration and she was the first level approving authority for the bills submitted by the vendors. After it is approved by her, she used to forward the same to the finance department for payment.
• The Petitioner herself used to guide the officials who have been identified for deputation to overseas assignment to face the interview before the VISA Authorities. She herself used to prepare the guidelines for the candidates who were to attend VISA interview. The chain of emails would clearly show that the entire work of obtaining VISA including passing of the bills submitted by the vendors for visa processing was the responsibility of the Petitioner as Associate Manager HR.
• The Petitioner was participating in all the important meeting with the managerial colleagues for deciding the HR related issues including deputation of employees overseas for working at the site of the clients in different countries.
• The Petitioner was making presentations to the top management on the process, challenges
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NC: 2023:KHC:19381 WP No. 56633 of 2018 faced, industry update and strategy for the immigration function."
12. Considering the nature of work performed by the petitioner, it is clear that she was performing the managerial work and she is not a workman as defined under Section 2(s) of the ID Act.
13. A plain reading of cross-examination of the petitioner would evidence that she was authorized signatory of the respondent-company to immigration of the documents and was responsible for processing Visa of Indian Employees to all countries. The nature of work which has been conducted by the petitioner having not been rebutted cannot be termed as a clerical work and the Tribunal has rightly come to the conclusion that the post accorded to the petitioner to that of Assistant Manager (HR) was that of managerial work and has come to the conclusion that she would come under the purview of Section 2(s) of the ID Act. Perusal of the order of the Tribunal and the manner in which, the order is passed, this
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NC: 2023:KHC:19381 WP No. 56633 of 2018 Court is of the considered view that the same does not call for any interference at the hands of this Court and the point framed for consideration is answered against the petitioner and since it is held that petitioner is not a workman as defined under Section 2(s) of the Act, this Court need not answer whether there was any resignation submitted by the petitioner or not.
14. The Tribunal taking into consideration the nature of work performed by the petitioner has come to the conclusion that the petitioner was performing the managerial functions and therefore, she would not come under the definition of a workman.
15. The judgment relied by the learned counsel for the petitioner in the case of Cipla Ltd. was pertaining to departmental enquiry and where service were violated, it is not the case of the petitioner that the service rules were violated and order is one without opportunity and thus, has no application to the facts and circumstances of the present case.
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16. Accordingly, this Court pass the following:
ORDER i. The writ petition is dismissed.
ii. The impugned order dated 09.10.2018 in Reference No.26/2016 on the file of the II Additional Labour Court, Bengaluru stands confirmed.
Sd/-
JUDGE MBM