Karnataka High Court
Sri P Ramachandra Sharma S/O Sri P ... vs The Central Arecanut And Cocoa ... on 28 February, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 28TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.17051 OF 2007(L-TER)
BETWEEN:
Sri P.Ramachandra Sharma
S/o Sri P.Mahalinga Bhat,
Aged about 65 years,
Formerly working as Mechanical Engineer,
(illegally dismissed from service),
The Central Areca nut & Cocoa Marketing
& Processing Co-Operative Limited
(CAMPCO), Varanasi Towers,
Mangalore,
Dakshina Kannada District,
Residing at No.189, 'D' Road II Phase,
Ideal Homes Township
Rajeshwari Nagar,
Bangalore - 560 098. ...PETITIONER
(By Sri K.Subba Rao, Senior Counsel, for
M/s. Subba Rao & Co.)
AND:
The Central Arecanut and Cocoa
Marketing and Processing
Co-Operative Limited
(A registered Co-Operative Society)
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Represented by the Managing Director,
Varanasi Towers,
Mangalore,
Dakshina Kannada District. ...RESPONDENT
(By Sri K.Ramachandran, Advocate for Sri M.R.C.Ravi,
Advocate)
*****
This Writ Petition filed under Articles 226 and 227 of
the Constitution of India praying to quash the award dated
11.7.2007 passed by the Labour Court, Dakshina Kannada,
Mangalore a certified copy of which is produced as
Annexure-T to the extent the Labour Court has recorded
findings against the petitioner on the preliminary issue
regarding the status of the petitioner, as the said findings
suffer from errors which are apparent on the face of
record.
This Writ Petition coming on for hearing this day,
the Court made the following:-
ORDER
The case of the petitioner is that he is a Graduate in Mechanical Engineering. He has served in several leading concerns. He joined the respondent Company on 9-1-1984. He was asked to work in CAMPCO Ltd., which was the Project envisaged to manufacture chocolates. That he was a technical person and was appointed because of his technical knowhow. He was allotted residential 3 quarters. The project was in the process of construction and installation. The trial production started during September, 1986 and the commercial production in January, 1987. The probationary period of the petitioner was extended by the proceedings dated 22-7-1985. Thereafter he was confirmed on 23-7-1986 as a Mechanical Engineer. He was issued with a memo of charges dated 27-4-1987 and was kept under suspension. Three charges were framed against him. The first charge was that while working as a Mechanical Engineer, he was found guilty of misconduct and indiscipline by committing acts prejudicial to the interests of the respondent and caused considerable loss by negligence in the discharge of his official duties by inducing the other staff not to discharge their work allotted to them. The second charge was that he left the office premises before office hours without permission and committed dereliction of duty which amounts to misconduct. The third charge was that he was found to have addressed a letter directly to the 4 board of Directors representing his grievance before them which also amounts to misconduct. They were considered to be grave in nature. The petitioner submitted his representation denying the said charges and explaining his conduct. Dissatisfied with his reply an enquiry was held. The petitioner was dismissed from service with effect from 27-4-1987. Aggrieved by the same, he submitted a representation to the respondent and requested that the order of dismissal be withdrawn. The petitioner however raised an industrial dispute before the Labour Court. The Labour Court raised a preliminary issue with regard to the validity of the domestic enquiry. It held that the enquiry was not in accordance with the principles of natural justice. Thereafter, evidence was recorded on the merits of the charges.
Five witnesses were examined by the management. In terms of the award dated 5-11-1999 the reference was allowed in-part. The Labour Court held that the petitioner was guilty of the charges levelled against him. However, it 5 found that the penalty of dismissal was shockingly disproportionate to the charges. Accordingly, the order of dismissal was set aside directing reinstatement without back wages. The said order was challenged by the management by filing Writ Petition no.36407/2000. The petitioner also filed writ petition No.3997/2001 seeking grant of full back wages. Both the writ petitions were heard together and by the order dated 11-1-2005, the Petition filed by the management was allowed. The Labour Court was directed to decide the issue regarding the status of the petitioner as to whether he is a workman. After remand, the petitioner examined himself and the respondent produced additional witnesses.
2. The Labour Court by the impugned order held that the petitioner is not a workman and upheld the order of dismissal. On merits the Labour Court held that the first two charges were not proved and held that charge No.3 is held to be proved. Therefore it amounts to a minor 6 offence. Dismissing him from service is not proper or adequate. The Labour Court while considering the contention in its award at para-6 has noted that nothing worthwhile was pointed out on behalf of the workman to show that the findings of the Enquiry Officer suffers from perversity. That there was no argument on his behalf to show that the Enquiry Officer did not appreciate the evidence brought on record or that his appreciation of evidence was not backed by cogent and valid reasons. Therefore it held that the finding of the Enquiry Officer did not suffer from any perversity. Having held that there is no perversity in the order of the Enquiring Officer, the Labour Court proceeded to set aside the order of dismissal. The approach of the Labour Court is erroneous. When it does not record any perversity in the order of the Enquiring Officer it could in no way reverse the finding of Enquiring Officer. Therefore the reversal of the order of dismissal in the face of the tribunal holding that the order of the Enquiring Officer is not perverse is therefore 7 unsustainable. Aggrieved by the same, the present petition is filed.
3. Sri Subba Rao, the learned Senior counsel appearing on behalf of the petitioner's counsel contends that the impugned order is bad in law and liable to be set aside. That the Labour court committed an error in holding that the petitioner is not a workman. By placing reliance on the definition in terms of Section 2(s) of the Industrial Disputes Act 1947 he contends that the petitioner should be construed as a workman. The finding recorded by the tribunal to the contrary, is opposed to the facts as well as the evidence let-in. He placed reliance on the order of appointment, the nature of the duties as well as the evidence to contend that by reading all these materials would lead to the only conclusion that the petitioner is a workman. Any other finding runs contrary to the facts of the case. It is further contended that admittedly the factory in question had not started any 8 commercial production at that point of time. The factory was in the process of establishment. The machineries were sought to be installed. The buildings were sought to be constructed. At this stage these events have occurred. Therefore there cannot be any managerial or administrative functions performed by the petitioner in order that he would not come under the definition of workman as defined under the Act. What is sought to be contended is that the petitioner stands attracted by the definition of a workman.
In support of his case he placed reliance on the Judgment in the case of S.K.VERMA Vs. MAHESH CHANDRA reported in AIR 1984 SC 1462 with reference to para-5 to contend that therein the Hon'ble Supreme Court while extracting the Judgment in the case of WORKMAN OF INDIAN STANDARDS INSTITUTION vs. MANAGEMENT OF INDIAN STANDARDS INSTITUTION reported in AIR 1976 SC 145 held at para 5 as follows:-
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"It is necessary to remember that the Industrial Disputes Act, 1947 is a legislation intended to bring about peace and harmony between management and labour in an 'industry' so that production does not suffer and at the same time, labour is not exploited and discontented and, therefore, the tests must be so applied as to give the wide possible connotation to the terms 'industry'. Whenever a question arises whether a particular concern is an 'industry' the approach must be broad and liberal and not rigid or doctrinaire. We cannot forget that it is a special welfare legislation we are interpreting and we must place such an interpretation as would advance the object and purpose of the legislation and give full meaning and effect to it in the achievement of its avowed social objective."
The Hon'ble Supreme Court held that what is required to be adopted is a broad and liberal approach and not a rigid or doctrinaire approach.
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4. Reliance is also placed on the Judgment in the case of ARKAL GOVIND RAJ RAO vs. CIBA GEIGY OF INDIA LTD., BOMBAY, reported in AIR 1985 SC 985. By placing reliance on the Judgment, he contends that when an employee has multifarious duties, some of which are that of a workman and some which are not, if he was asked to do some other work which are not in tune with the basic duties, these additional duties cannot change the character and status of the concerned. Therefore the dominant purpose of the employment must alone form the criteria as to whether the workman is attracted by the definition of workman or not.
5. In sum and substance the contention of the learned counsel for the petitioner is that the entire evidence would have to be considered especially with regard to the nature of the work, to determine whether his work is that of a workman, or in a managerial or a supervisory capacity. He contends that the material 11 evidence on record clearly shows that the petitioner is a workman. Though he has discharged his initial burden that he is a workman, the finding of the Labour Court is perverse and interference is called for. Under these circumstances it is pleaded that the Petition be allowed and the order passed by the Labour Court holding that the petitioner is not a workman be set aside and relief be granted to him.
6. On the other hand, Sri Ramachandran K., the learned counsel appearing for the respondent, defends the impugned order. He contends that there is no error committed by the Labour Court that calls for any interference. By referring to the letter of appointment, he contends that the same would show the high degree of the personnel who conducted the enquiry which itself is a indication with regard to the nature of the employment of the petitioner. It is only because a high level officer was being appointed, that these officers conducted the 12 interview. He refers to the cross-examination of the petitioner with regard to his employment. He contends that the past employment would show the nature of the position held by the petitioner. That this itself was an indicator to show that the petitioner held managerial posts. Therefore to stoop from a managerial position to a workman would therefore be hard to accept. Reference is also made to the concerned Service Rules applicable to the respondents, in pursuance whereof, it is contended that the highest scale of pay therein is that of a pay scale of Rs.1,300 and above. This was of an appointment in the year 1984. That by the letter of appointment the petitioner was appointed in the scale of Rs.1,725 with allowances etc as applicable to the employees of Government of Karnataka. Consequently, the Managing Director has fixed his initial pay at Rs.1,875 in the same scale. Therefore he pleads that this is an indicator to show that the petitioner is not a workman but belongs to the highest cadre of management. Reference is also made to 13 the work allotment made to the petitioner to contend that the same would show that he is not a workman. It is further contended that in the claim petition the petitioner has not stated that he is a workman. On the contrary it is the respondent who has taken up the defence alleging that he is not a workman and therefore is not entitled to any benefit or protection under the Industrial Disputes Act. Therefore it is pleaded that the impugned orders are bad in law and on facts and liable to be set aside.
7. Heard learned counsels.
8. On an earlier occasion the Labour Court passed an order on the preliminary issue as well as on merits directing reinstatement of the petitioner herein along with 25% back wages. The petitioner filed writ petition No.3397/2001 seeking 100% back wages. The respondent herein filed writ petition No.36407/2000 assailing the order directing reinstatement and payment of back wages. Both the petitions were heard together and by the order dated 14 11th November, 2005, the learned Single Judge allowed both the writ petitions. The order of the Labour Court in so far as the preliminary issue with regard to the status of the petitioner workman was quashed. The award passed by the Labour Court on merits was also quashed. The matter was remitted back to the Labour Court with a direction to hear the preliminary issue as well as the merits together after affording an opportunity to both the parties to adduce evidence etc. As a result whereof an opportunity was accorded to both the parties to lead evidence. By the impugned order the Tribunal firstly held that the petitioner herein is not a workman. Consequently, the order of dismissal was sustained. A finding was also recorded so far as the merits of the petition was concerned namely, as to whether the management proves that the departmental enquiry held against the petitioner is valid and proper and also a finding was recorded on the three charges that were levelled against the petitioner. Consequently, the present Petition assailing the order of the Labour court. 15
9. The finding of the Labour Court was that the petitioner cannot be considered as a workman. In arriving at such a conclusion the evidence on record was scrutinized right from his appointment in terms of Ex.M-1. The nature of duties assigned was scrupulously examined by the Labour Court in terms of the definition of the workman as defined under section 2(s) of the Industrial Disputes Act. The tribunal was of the view that the petitioner was engaged in a supervisory capacity and it cannot be said that his supervisory duties were casual in nature. That based on the nature of the work of the petitioner and in view of the fact that he is a Mechanical Engineer the Labour Court was of the view that the petitioner was not a workman. Accordingly, the issue was answered.
10. Therefore, the primary adjudication by this Court would be as to whether the petitioner would come 16 under the definition of workman. Therefore all the material that is available on record either to substantiate or otherwise as to whether the petitioner is a workman or not would require to be considered. On such a finding the subsequent finding on merits would be gone into, if necessary.
11. Sri Subba Rao, the learned Senior counsel appearing for the petitioner's counsel contends that at the time when the petitioner was appointed, the factory was not operational but was at a stage of being set up. The respondent was in the process of establishing the factory. That civil works were under progress and so were activities with regard to the installation of the factory. It is for this purpose that the petitioner was appointed in order to ensure that the work of establishing a factory is properly done. Therefore it cannot be said, that at a stage when the factory itself had not commenced, that there could be any managerial or supervisory functions that has been 17 assigned to the petitioner. The contention of the respondent on the other hand, is that even though he was appointed when the factory was in the process of being set up, the misconduct committed by the petitioner is on a date after commercial production has commenced. Therefore the contention of the petitioner relatable to the status of the factory premises is of no consequence. Admittedly, the incident of misconduct have taken place during the commercial production and not at the initial stage as contended.
12. A Workman is defined under Section 2(s) of the Act which reads as follows:
"(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, 18 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(46 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 person; 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."
The dispute is as to whether the definition is applicable to the petitioner.
13. From these contentions it is necessary to examine the nature of the appointment. The appointment order dated 2-1-1984 has been marked as Ex.W.1. The same reads as follows:-
"The CAMPCO Cocoa Products Manufacturing Unit is in need of the services of a Mechanical Engineer for the project coming up at Puttur, Dakshina Kannada. The candidates who have 19 applied in response to the advertisement were interviewed by the Executive committee assisted by Prof.Nijaguna, Head of the Department of Mechanical Engineering, K.R.E.C., and Dr.C.S.Pant, Factory Manager.
The Committee found Sri P.Ramachandra Sharma suitable for the post. Hence the order.
ORDER The Managing Director is pleased to appoint P.Ramachandra Sharma, Padiadpu House, Post Bela, via Kumble Kasaragod as Mechanical Engineer in the CAMPCO Cocoa Products manufacturing unit of CAMPCO at Puttur on a pay scale of Rs.1725-75-2250-100-2350 with allowances, H.R.A. and C.C.A. as applicable to the employees of Government of Karnataka.
The Managing Director is also pleased to fix initial pay at Rs.1875/- in the scale of Rs. 1725-75-2250-100-2350. Sri P.Ramachandra Sharma will execute a bond in favour of the Institution that he will serve the Institution for a minimum period of five years. He will also furnish a cash security deposit of Rs.5,000/- and fidality guarantee of Rs.25,000/-. 50% of the cash security deposit to be paid at the time 20 of joining the service and balance 50% will be recovered from the pay. He will be on probation for a period of one year which is extendable. His services will be regularized as per the provisions of the Service Rules as approved by the Registrar of Co op. Societies in Karnataka, Bangalore."
Various facts emanate from the said order. Firstly fact that there is a necessity of the respondent for a Mechanical Engineer. Secondly that the candidates who have applied pursuant to the advertisement had to undergo an interview and so far as the petitioner is concerned, the Executive Committee assisted by Prof.Nijaguna, Head of the Department of Mechanical Engineering, K.R.E.C.,and Dr.G.S.Pant, the Factory Manager were part of the Committee that conducted the interview. This is an indication to show the magnitude of the position as sought for by the respondent. It is the position of no less than that of a Mechanical Engineer. Therefore the status and the importance of the post is reflected from the 21 appointment order. It is further to be seen that the scale of pay on which he was appointed was Rs.1725-75-2250- 100-2350 and the Managing Director fixed his initial pay at Rs.1,875/- in the same scale. The appointment was in the year 1984 to the post of Mechanical Engineer. As on the date of appointment, in terms of the Central Arecanut Co- operative Societies Limited (Service) Rules the highest category of employees is one whose pay is Rs.1,300/- and above. The last category-6 consists of those employees whose pay is below 280/-. It is therefore apparent that the scale of pay of the petitioner at Rs.1725/-, far exceeds the category of the first employee as stated in the Service Rules at Rs.1,300/- and above. This too is an indicator to show the high responsibility and the status of the post of the Mechanical Engineering at that point of time.
14. By a mere designation or by a mere selection by a high Committee or the extent of the salary would not by itself determine the nature of the work of the employee. 22 He may be interviewed with the highest standards and may be drawing the highest scale of pay. That by itself would not lead to the conclusion that such a person is not a workman or a person who has managerial scale. It is an indicator. It is an important indicator. Necessarily the nature of the work assigned to the petitioner would have to be considered in the light of this background. M.W.1 is the memo dated 19-8-1985 issued by the respondent with regard to the distribution of work among the technical officials for fixing their duties and responsibilities. The duties and responsibilities of the technical manager, the Production Executive, Maintenance Engineer, (Production) the Assistant Engineer (Mechanical), the Assistant Engineer (Electrical) and the petitioner namely, the Mechanical Engineer as well as the consultants M/s.Chandrravarkar and Thacker and M/s.Semad(P)Ltd., and Junior Engineer (Civil) has been inculcated therein. In order to rightly appreciate the nature of the work of the petitioner, it would not be out of place to take into 23 consideration the duties and responsibilities as assigned to other officers also. So far as the technical manager is concerned he was assigned with the responsibility of the overall charge of the factory until further orders which was in addition to the Research work on product-mix, quality control and connected work with respect to semi finished and finished products. The learned counsel appearing for the respondent submits that the nature of the duties of the technical Manager was so far as the production and its related activities with regard to the finished products and semi finished products are concerned. So far as the Production Executive is concerned he had to ensure implementation of necessary action to complete the project at the earliest. This work included getting and collecting information including literatures and quotations for the materials required for the project and production line in consultation with the technical Manager and to collect the materials connected to the project from the Head Office and to get the information from the concerned 24 parties/agencies, to study the project and assure the requirements of all the items pertaining to all sections etc. The work assigned to the maintenance Engineer and the Assistant Engineer (Mechanical) were considered together. These officials had to supervise and assist the erection of machineries pipe lines etc under the guidance of the production Executive and other related functions. The Assistant Engineer Electrical had to supervise and assist the installation of air conditioning, connected electrical installation which include the distribution of power etc. Different agencies work on the site under the guidance of the production Executive.
15. So far as the petitioner is concerned the work assigned to him was as follows:-
Sri P.R.Sharma(Mech.Engineer):- The official will continue to arrange making payments whenever necessary by getting the required funds from Head Office. He is responsible for 25 maintaining Receipts and payments Account to CCM Unit. He will be also in charge in initiating all communications to the different agencies. However, while communicating with or in respect of the different agencies he will get the concurrence of his other colleagues who have been entrusted with different works. In order to ensure systematic and uniform mode of communication and correspondence with Internal/outside agencies, all such communications be sent to Technical Manager for issue and dispatch.
The last is the Junior Engineer (Civil) who was duty bound to look after civil work and would be specifically responsible to look after the civil works not entrusted through M/s.Chandavarkar and Thackar. He was authorized to issue any work order without the permission of the Managing Director. He was to check the bills of M/s.Technoart Constructions (P) Ltd., and he was assigned with the responsibility of keeping the records for materials received and issued to different agencies.26
16. The reading of the work assigned to the petitioner would show that nature of his work was that he should continue to arrange making payments wherever necessary. That he is responsible for maintaining the receipts and payments accounts at CCM Unit. That he is also in charge of initiating all communications to different agencies. With regard to the Consultants, urgent matters would be discussed and decided on the spot after consulting the technical staff at CCM, Unit. Only if any additional financial commitments are required it was the Head office that would take proper decision. It would therefore show that the functions of the petitioner cannot be termed as that of a workman. It would indicate that the petitioner had managerial and administrative powers. The powers would be referable so far as making payments in those cases which the petitioner found necessary. It was his responsibility to maintain the accounts for such purposes. He also had the authority to take decisions on 27 the spot with regard to the consultants who were engaged for the purpose of establishing the unit. Therefore this activity of taking decisions on the spot without any reference to any higher authority, cannot be held to be the responsibility of that of a workman. It is necessarily the managerial and administrative powers that has been vested with the petitioner. This would constitute the nature of the work assigned to the petitioner. Therefore based on these functions assigned to the petitioner, it would be incorrect to hold that he is a workman and not coming under any managerial or administrative capacity. The duties assigned to the petitioner, even in relation to the other persons as mentioned in the said memo, would lead to the only conclusion that his duties are managerial, administrative including exercising of financial powers also. He cannot be said to be a workman.
17. The petitioner's further contention is that based on the job requirement since he was an Engineer 28 the work assigned to him comes under the definition of workman. That he has been appointed in view of the technical activities that require to be performed. That such an employment cannot be said to be either managerial or administrative. With relation to Clause(iv) of sub-Section (s) of Section 2 of the Industrial Disputes Act narrates that the workman does not include any person being employed in a supervisory capacity draws wages exceeding Rs.10,000/-, which at the relevant point of time was Rs.1,600 per month or exercises either by nature of the duties attached to the office or by reason of the powers vested in it the functions mainly of a managerial nature. The contention of the respondent is that since admittedly his pay was more than Rs.1,600/- per month this sub-Clause is attracted, consequently he is not workman cannot be accepted. That based on the material available it cannot be said that the petitioner performs the supervisory function.
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18. On considering the contentions advanced I'am of the considered view that sub-Clause(iv) would not be applicable to the case of the petitioner. That based on the nature of the duties he performs, he cannot be said to be drawing wages. The material would show otherwise. That he has been assigned with supervisory capacity and consequently Clause(iv) could not be applicable.
19. In the evidence of the petitioner he has narrated the entire history of his appointment and the nature of his duties. In the cross-examination at para-10 recorded on 27-4-1984, this is what the petitioner had to say.
"Before joining Campco, I was working in Associated Hydraulics Durgapur. My designation there was technical Director. Prior to that I was working in Alloys Steel Plant, Durgapur as Assistant Design Engineer. Prior to that I was working in the workshop at Quillon(Kerala) as Works Engineer."30
He states that he was firstly working as Works Engineer in Kerala. Thereafter as Assistant Designs Engineer in Alloys Steel Plant, Durgapur and thereafter as Technical Director in Associates Hydraulics Private Ltd., Durgapur. It is from this position that he was appointed as a Mechanical Engineer by the respondent. The position that he held prior to this appointment was that of a Technical Director. By no stretch of imagination can it be said that the position of Technical Director is that of a workman as defined in Section 2(s). The petitioner being a technical Director in his last employment, cannot be said to be accepting any position lower than that of technical Director or its equivalent status in the respondent Company. Even though the designations may vary from Company to Company, so far as the status and the workload of the person is concerned, it cannot be accepted that he would accept a status much lower than what he already possess. The previous employment was that of a Technical Director. It cannot be acceptable that a person who has chosen to 31 go upto the position of a Technical Director in a Company and would accept the position as that of a workman. The same defeats logic. It cannot be accepted for the court and the plea of the petitioner if any that even though he was holding a high position of Technical Director in a previously held employment or the reasons that has been placed before the court he has accepted the position far lower, there is no averment that a lower position could be accepted. Therefore in terms of the cross-examination of the petitioner himself it would be appropriate to hold that on the basis of his last employment, the position as held by him herein cannot be considered to be that of a workman falling under Section 2(s) of the Act. Therefore in terms of the evidence of the petitioner himself, it could be concluded that his work is managerial and cannot be said to be that of a workman.
20. The management relies on the evidence of Sri Subramanya Bhat. He has stated that he 32 was a Deputy General Manager I/C of the CAMPCO. That he was a holder of Diploma in Mechanical Engineering and he was appointed in 1985. That he has worked under the petitioner as Assistant Engineer. That the petitioner was appointed as a Mechanical Engineer on the scale as referred to above and that he was in sole charge of the Mechanical section of the factory. That he was in the sole charge for the maintenance and supervision of the machineries of the Factory and all the workers of the maintenance section were under him. That the decision regarding machinery section as taken by the petitioner was final and ultimate. That all the decisions were being taken by the petitioner. He had complete control of the works of the chocolate factory. That he was extracting work as found from the documents and papers. That if there is any mechanical problem the same had to be reported to him alone to sort it out. If the employees were to go home early they had to take the petitioner's permission. That it was also his 33 bounden duty to guide the respondent with respect to the machinery. That he had to make payments wherever necessary while maintaining receipts and payments for the same.
21. It is this piece of evidence that is strongly relied upon by the respondent in support of the nature of the work assigned to the petitioner. Even though the witness was cross-examined at length nothing worthwhile is elicited to disbelieve the evidence. Therefore there is nothing to disbelieve the evidence of this witness. The evidence of other witness of the management are also on the same lines. More or less they speak of the nature of the work of the petitioner. The evidence therefore as led- in by the management would show that the nature of the work as conducted by the petitioner cannot be considered as that of a workman.
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22. The Tribunal while considering the said plea took into consideration the evidence of the petitioner as well as the management witnesses. Reliance was placed on various Judgments of the Hon'ble Supreme court. On considering the nature of the work and interpreting the work order issued to the petitioner, as well his cross- examination the reply to the charge sheet issued to him Labour Court was of the view that the work of the petitioner cannot be considered as that of a workman. The Labour Court also took note of the fact that there was no pleading in the claim petition that he was a workman and what is the nature of the work. Much has been argued by the respondents to show that the primary burden is on the petitioner to show that he is a workman. It is therefore for him to plead and establish the same. He has failed to do so. However, in the objections filed by the respondent it is they who have pleaded that the petitioner is not a workman. They have led-in evidence to show the same in order to support their contention. Therefore when the 35 respondent have taken up a plea that the petitioner is not a workman necessarily the burden is on them to show it as such. The burden has since been discharged by the respondents by placing evidence which is cogent and acceptable. Under these circumstances, the Labour Court was of the view that without any pleading the mere oral evidence of a denial cannot be considered.
23. The learned counsel for the petitioner places reliance on the Judgment in the case of BANK OF INDIA vs. INDUSTRIAL TRIBUNAL reported in 1996 LLR 621, a Judgment of the Punjab & Haryana High Court. He contends that the Division Bench therein was of the view that a mere nomenclature of a post is not enough for the purpose of holding whether a particular person falls within the definition of workman or not. The Judgment relied upon would necessarily require to be applied by this Court. The status of the workman cannot be decided on a mere nomenclature. The status of the workman would 36 necessarily be based on the nature of the work, as assigned. The same has been elaborately dealt with hereinabove. The finding of this Court is based not on the nomenclature given to the petitioner but on the nature of duties and responsibilities assigned.
The next decision is in the case of S.K.VERMA v. MAHESH CHANDRA AND ANOTHER reported in AIR 1984 SC 1462. Reliance is placed on para-5 of the Judgment wherein the Supreme Court held that the words "any skilled or unskilled manual, supervisory, technical or clerical work" in Section 2(s) of the Act are not intended to limit or narrow the amplitude of the definition of the workman. On the other hand they indicate and emphasise the broad sweep of the definition which is designed to cover all manner of persons employed in the industry, irrespective of whether they are engaged in skilled work or unskilled work, manual work, supervisory work, technical work or clerical work, etc., Obviously, this too is a Judgment that would squarely apply while interpreting the 37 nature of the duties of the workman. It would necessarily have to be considered whether the petitioner is to be considered as a Labour or in the management. It would have to be considered based on the nature of the work. Therefore applying the said Judgment, adequate reasons have been assigned hereinabove. It is not confined to the definition as made in Section 2(s) but purely and simply in terms of the nature of the work assigned to the petitioner.
Reliance is also placed on the Judgment in the case of ARKAL GOVIND RAJ RAO vs. CIBA GEIGY OF INDIA LTD., reported in AIR 1985 SC 985 to contend that only because the workman discharges some supervisory duties he cannot be considered as a non-workman but as a person who does only supervisory duties. That the dominant purpose of employment must be first taken into consideration. Some of the additional functions and duties assigned, cannot form the basis to hold with regard to the nature of the employment since it is not a subsidiary 38 function or a subsidiary duty. The incidental duties of the petitioner whether supervisory or otherwise has no bearing while determining the dominant nature of the functions of the petitioner in interpreting and applying the nature of duties as assigned to the petitioner. This principle too has been applied while determining the nature of the petitioners work. As has held herein above, he does not come under the definition of workman. Therefore the judgment of the Hon'ble Supreme Court has also been taken note of by this Court.
Reliance is placed on a Judgment of the Hon'ble Supreme Court in the case of VED PRAKASH GUPTA vs. DELTON CABLE reported in 1984(2)SCC 569 in particular reference to para-12 wherein the evidence of WW1 and MW1 were taken into account. The nature of the work of the petitioner therein was considered on the evidence available thereof. It was held that the petitioner shall fall under the definition of workman and therefore reference of the dispute under Section 10(1)(c) was valid. The 39 workman thereof was entrusted with the work of Security Inspector. It was therefore contended that these are only statutory functions of the workman and therefore would constitute the reasonings to hold that he was not a workman since his dominant work is that of a security guard. Under these circumstances he was held to be a workman. The decision has been rendered on the facts and circumstances of the case. The definition of workman was applicable to the case therein based on the facts and circumstances involved. He was a security guard who was also assigned with the additional duties which were supervisory. Only because the additional duties were supervisory, it cannot be said that he was not a workman especially since his primary function was that of a workman.
Reliance was also placed on the Judgment of the High Court of Madras in the case of M/s.ASHOK LEYLAND vs. A.VIJAYAKUMAR AND ANOTHER reported in 1981(2) LLJ 9. The workman was an Engineering Graduate working 40 as a Development Officer. Whether the same would amount to administrative or a managerial cadre in terms of Section 2(s). The underlying principle of the Judgment relied upon, is that a mere nomenclature of the post is not sufficient to hold that he is a workman attracted by Section 2(s). What is to be considered is as to the work that is being done by the workman. Whether his work is supervisory or incidental? If the work being done comes outside the purview of the definition of the workman, it cannot be said that he is a workman as defined under the Act.
24. By applying the Judgment to the case on hand and while considering the evidence as well as the dominant nature of the work performed by the petitioner, I have no hesitation to hold that the petitioner would not come under the definition of workman as defined under Section 2(s) of the Act.
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25. On the other hand, the learned counsel for the respondent relies on the unreported Judgment of the Division Bench of the High Court of Kerala dated 26-9-2009 passed in writ appeal No.1282/2006, in the case of PHILIP C.ABRAHAM vs. SAHARA AIRLINES LIMITED., & OTHERS wherein it was held that the functions, duties and responsibilities of a Maintenance Manager does not have any of the attributes of a workman. Therefore it was held that he is not a workman. The said Judgment was confirmed by the Hon'ble Supreme Court. Therefore it is contended that the same Judgment stands applicable to the facts of this case. The decision relied upon is purely based on facts so is the facts. The facts of this case would have to be considered to determine whether the petitioner comes under the definition of workman or not Only because the employee is held to be a workman in one case, it cannot be said that in another case also, he is a workman.
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26. The Labour Court therefore while considering all these issues has rightly held that the petitioner cannot be considered to be a workman. The reasoning assigned by the Tribunal are just and proper. This Court does not find any good ground to interfere.
27. The learned counsel for the respondent further contends that the position is so important, that the employment to such a post has to be approved by the Registrar of Co-operative Societies in Karnataka. Such an approval was sought for which has been granted. This fact is not disputed by the petitioner. Therefore it is pleaded that the importance of this post is yet another indicator to the fact that the petitioner cannot be stated to be a workman. The learned counsel for the petitioner contends that only because the post requires to be approved by the Registrar of Co-operative Societies does not make it a post that cannot be held by a workman. On considering the contentions, this Court is of the considered view that what 43 emerges from the contentions advanced is that the post under question is necessarily an important post which requires to be approved by the Registrar of Co-operative Societies. Therefore, it is also yet another indicator to determine the nature of the work of the petitioner.
28. Keeping in view all the indications, the contentions advanced by the respondent so far as the nature of the appointment the scale of pay and more importantly the nature of the duties assigned to the petitioner the admission of the petitioner, so far as his previous employment and the status of his previous employment is concerned, the approval by the Registrar of Co-operative Societies etc., considered as a whole, would show that the nature of the work assigned to the petitioner, was a managerial function. On considering the material placed by both the learned counsels, it is evident that the petitioner cannot be considered as a workman as defined under Section 2(s) of the Act. Under these 44 circumstances, this Court is of the considered view that there is no error committed by the Tribunal that calls for interference. In view of upholding the finding of the Tribunal that the petitioner is not a workman, the finding recorded so far as the remaining charges are concerned, would not arise for consideration.
29. For the aforesaid reasons, this Court is of the considered view that there is no merit in this Petition. Consequently, the Petition being devoid of merits, is dismissed.
Rule discharged.
30. At this stage Sri Subba Rao, the learned senior counsel appearing for the petitioner pleads that the respondent being a Managing Director representing two State Governments should consider the case of the petitioner on compassion and not by strictly following the rules, regulations etc. That in view of the advanced age 45 and the considerable time that has elapsed, he fervently pleads that a compensation may be granted to him. On considering the said contention Sri Ramachandran, the learned counsel appearing for the respondent, on instructions submits that notwithstanding the fact that the writ petition has been dismissed, a sum of Rs.1,50,000/- would be paid to the petitioner. That such an amount is being paid to him purely on humanitarian considerations and on compassion. That such amount would be paid to the petitioner within a period of one week from the date of receipt of copy of this order. His submissions are noted.
Sd/-
JUDGE Rsk/-