Madras High Court
The Management Of vs A.M.Sekar (Died) on 25 September, 2014
Author: K.Ravichandrabaabu
Bench: N.Paul Vasanthakumar, K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.09.2014 Coram THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.A. Nos.126 to 135 of 2012 W.A.No.126 of 2012 The Management of Best & Crompton Engineering Ltd, Rep., by its Group General Manager (HR & ADMN) 39 Industrial Estate (North) Ambattur Chennai 600 096 ... Appellant Vs 1.A.M.Sekar (Died) 2.The Presiding Officer, I Addl Labour Court, Chennai. 3.Kala Sekar 4.S.Krithika 5.S.Mahadevan rep. By mother and natural guardian Kala sekar 6.Saraswathi ...Respondents Date of Reserving the Judgment Date of Pronouncing the Judgment 11 .09.2014 25.09.2014 Prayer:-Writ Appeals filed under Section 15 of the Letters patent against the common order dated 06.06.2011 in W.P.Nos.11080 to 11083, 11024, 11539, 11860, 12169, 11648 and 13068 of 2006. For Appellants : Mr.K.V.Ananthakrishnan in all W.As., For Respondents : Mr.V.Prakash Senior counsel for M/s.K.Sudalaikannu for R2 in all W.As., R1- Labour Court C O M M O N J U D G M E N T
K.RAVICHANDRABAABU, J These Writ Appeals are filed challenging the common order passed by the learned Single Judge made in W.P.Nos.11080 to 11083, 11024, 11539, 11860, 12169, 11648 and 13068 of 2006, dated 06.06.2011 in dismissing the Writ Petitions filed by the appellant Management herein challenging the individual awards of the Labour Court, dated 07.12.2005 made in I.D.Nos.739, 738, 737, 734, 632, 630, 633, 736, 735 and 631 of 2002.
2. The first respondents herein in each of the Writ Appeals claiming to be 'workmen' of the Appellant Management, raised those Industrial Disputes before the Labour Court seeking for reinstatement of their respective services with full backwages, continuity of service and all other attendant benefits.
3. The Appellant Management herein resisted the claim before the Labour Court by raising a preliminary objection that the first respondents in all these matters, who raised the industrial disputes, are not workmen within the meaning and definition of Section 2 (s) of the Industrial Disputes Act, 1947. According to the Appellant Management all the first respondents were working in the managerial capacity of different posts and therefore, they are not entitled to maintain the industrial dispute.
4. Before the Labour Court, the Workmen/first respondent in each cases let in evidence by examining two persons and marked Exhibits. Though the Appellant Management did not examine any one, however they marked Exhibits in individual cases as referred to therein either by consent or during the course of examination of witnesses on the employees side. After analysing the facts and circumstances of each case and also the pleadings of the respective parties and the case laws referred to therein, the Labour Court found that the first respondent herein in each case is the workman within the meaning and definition of Section 2(s) of the Industrial Disputes Act and they entitled to maintain the industrial dispute and consequently, passed award individually in each case directing the Appellant Management to reinstate the first respondent in each case into service.
5. Challenging the said awards, the above said Writ Petitions were filed by the Appellant Management. The learned Single Judge found that all the employees concerned are workmen and that there was no contra evidence let in on the side of the Management. Further by finding that there was no perversity or illegality in the awards warranting interference of this Court under Article 226 of the Constitution of India, the learned Single Judge dismissed all the Writ Petitions by a common order dated 06.06.2011. Against the said order, these Writ Appeals are filed.
6. The case of the Appellant Management as against the first respondent in each of the cases before the Writ court is as follows:-
(a) The first respondent in W.P.No.11080 of 2006 joined in the Appellant's company on 04.05.1981 as a Clerk and was given promotion to the higher cadre and was holding the post of Managerial Cadre-II level from 01.04.2000. He was paid managerial staff salary applicable to the said post and enjoying all the privileges attached to the said post;
(b) The first respondent in W.P.No.11081 of 2006, joined the Appellant's company on 01.06.1989 as Senior Officer and was enjoying all the privileges attached to the post.
(c) The first respondent in W.P.No.11082 of 2006, joined the Appellant's company on 01.08.1974 as Clerk and was given promotion to the higher cadre and was holding the post of Managerial Cadre-Dy.Manager from 03.07.2000. He was paid managerial staff salary and was enjoying all the privileges attached to the said post ;
(d) The first respondent in W.P.No.11083 of 2006, joined the appellant's company on 01.06.1989 as Senior Officer and was enjoying all the privileges attached to the post;
(e) The first respondent in W.P.No.11204 of 2006 joined the appellant's company on 14.06.1989 and was given promotion to the higher cadre and was holding the post of Managerial Cadre-M7 from 17.06.1998 and in April 2000 was promoted to M6 and was Officer-incharge of Accounts for Busducts and Power Line Accessories Departments. He was paid managerial staff salary and was enjoying all the privileges attached to the said post;
(f) The first respondent in W.P.No.11539 of 2006, was appointed as Junior Management Trainee on 27.03.1995 and on successful completion of such training, he was designated as Assistant Officer in Managerial Cadre-M8 from 17.06.1998 and in April 2000, he was promoted to M7 and was designated as Officer in the Secretarial and Legal Department. He was independently handling the work of co-ordination with TCS, NSDL & CDSL in respect of the shares in Electronic Mode and he was also handled all matters pertaining to the Fixed Deposits and debentures. He was paid managerial staff salary and was enjoying all the privileges attached to the said post;
(g) The first respondent in W.P.No.11860 of 2006, joined the Appellant's company on 31.05.1995 on probation as Managerial staff in the Secretarial Department. On successful completion of the probationary period, she was confirmed with effect from 02.06.1996 and was promoted in the cadre M8 from 17.06.1998 as Assistant Officer and in April 2001, she was promoted to M7 as Officer. She was independently handling the work of evolving and designing software programs/applications for the department. She was paid managerial staff salary and was enjoying all the privileges attached to the said post;
(h) The first respondent in W.P.No.12169 of 2006, joined the Appellant's Bangalore Pump Factory on 01.06.1984 as Clerk and was given promotion to the higher cadre and was holding the post of Managerial Cadre-M6 from 01.04.2000. He was paid managerial staff salary and was enjoying all the privileges attached to the said post;
(i) The first respondent in W.P.No.11648 of 2006, joined the Appellant's company on 01.07.1977 as Sales Representative in the Non-managerial cadre and was promoted to the Management Cadre with effect from 01.07.1985 and was holding the post of Managerial Cadre-M7 from 17.06.1998 and was promoted to M6 as Officer in the Sales Tax Department. He was paid managerial staff salary and was enjoying all the privileges attached to the said post;
(j) The first respondent in W.P.No.13068 of 2006, joined the Appellant's company on 01.12.1986 as Junior Manager-Trainee and on successful completion of training, he was confirmed as Assistant Officer in the Systems Department and was given promotion to the higher cadre and was holding the post of Officer in Managerial Cadre-M7 from 17.06.1998 and in April 2000, he was promoted to M6 as Senior Officer in the EDP Department and was independently handling the implementation of the package for finance and accounting systems. He was paid managerial staff salary and was enjoying all the privileges attached to the said post;
7. For the sake of convenience we shall call the appellant herein as Management and first respondent in all the appeals as employees, hereinafter.
8. All these employees, while they were working in their respective posts, were retrenched/terminated from service. Challenging the said orders of termination, they approached the Labour Court by raising the Industrial Dispute as stated supra. Since, the Management raised the preliminary objection and contended that these employees were not 'workmen' as defined under Section 2(s) of the Industrial Disputes Act, the Labour Court raised three issues for consideration:-
(i) Whether the employees are workmen under Section 2(s) of the Act?
(ii) Whether the Management is covered under Chapter VB of the Act: and
(iii) Whether the employees are entitled to reinstatement in service with full backwages, continuity of service and all other attendant benefits?
9. Taking note of the fact that no retrenchment compensation was paid under Section 25F of the Industrial Disputes Act, 1947 to these employees and by giving a finding that all of them are 'workmen' as defined under Section 2(s) of the Industrial Disputes Act, the Labour Court passed the awards of reinstatement in service with backwages etc as stated supra. The said awards were confirmed by the learned Single Judge.
10. Mr.K.V.Ananthakrishnan learned counsel appearing for the Management would submit as follows:-
(i) The terminated employees were not workmen as defined under Industrial Disputes Act, as they were working in supervisory and managerial capacity. Therefore, no industrial dispute is maintainable at their instance as they availed all the benefits available only to the supervisory/managerial cadre. The nature of major duties and responsibilities of these employees, if taken into consideration, would show that they were not workmen and will not come within the meaning and definition of Section 2(s) of the Industrial Disputes Act. Though the Appellant Management has not examined any witness on their side before the Labour Court, certain documents were filed and marked on their side either by consent of parties or during the cross examination of the workmen witnesses. The Labour Court totally failed to consider those documents in the awards passed and the learned Single Judge was not right in going into the factual aspects to find out the employees as workmen or not.
(iii) In support of his submission, the learned counsel placed reliance on the following decisions:-
(i) Subir Guha Thakurta vs. Johnson & Johnson Ltd., & Ors., reported in 2006 (3) L.L.N., 348;
(ii) Management of M/s.May & Baker (India) Ltd., vs. Workmen reported in AIR 1967 SC 678;
(iii) Miss A.Sundarambal vs. Govt., of Goa Daman & Diu & Ors., reported in (1988) 4 SCC 42;
(iv) C.Gupta vs. Glaxosmithklin Pharmaceutical Ltd., reported in (2007) 7 SCC 171;
(v) O.P., Bhandari vs. Indian Tourism Development Corpn., Ltd., & Ors., reported in (1986) 4 SCC 337;
(vi) Ashok Kumar Sharma vs. Oberoi Flight Services reported in AIR 2010 SC 502;
(vii) Talwara Co-operative Credit Service Society Ltd., vs. Sushil Kumar reported in 2008 (5) CTC 377; and
(viii) Rajasthan Lalit Kala Academy vs. Radhey Shyam reported in (2008) 7 MLJ 94 (SC);
11. Per contra, Mr.V.Prakash, the learned Senior counsel appearing for the first respondent in all the Writ Appeals submitted as follows:-
(i) Re-appreciation of evidence is not possible in Writ proceedings. Even in respect of jurisdictional issue, this Court cannot re-appreciate the evidence, if the impugned awards passed are not perverse. As the finding given by the Labour Court in each cases is on the basis of legal evidence, the interference of this Court is not at all warranted that too under Article 226 of Constitution of India. In the counter statement filed before the Labour Court, the Management did not raise any plea that anybody had worked under the respective employees. The Management did not mark any document through any witness to negative the contention of these employees. No document showing the duties and responsibilities are filed and no pleadings were made to that effect. Name or designation is not a determining factor. An occasional duty/act cannot be construed to be the main duty/act. When the Labour Court addressed the issue with regard to duties and responsibilities and has given a factual finding on that aspect, this Court cannot go into it. The Appellant Management is an industrial establishment covered under Chapter V-B of the Industrial Disputes Act, and hence retrenchment without application for permission or retrenchment made, when such permission was refused, is illegal. The Appellant is filing documents before this Court as if this Court is of the first instance. The Labour Court has to confine its examination and pass award only in respect of the documents filed before it.
(ii). In support of his submission, the learned Senior counsel placed reliance on the following decisions:-
(i) Workmen vs. India Forge and Drop Stampings Ltd., & Anr., reported in (1996) 2 LLN 813;
(ii) Sadhu Ram vs. Delhi Transport Corporation reported in 1983 LAB.I.C.1516;
(iii) Lloyds Bank Limited vs. Panna Lal Gupta & Ors., reported in AIR 1967 SC 428;
(iv) South Indian Bank Ltd., vs. A.R.Chacko reported in AIR 1964 SC 1522;
(v) Mysore Vegetable Oil Products Ltd., vs. Labour Court, Madras & Anr. reported in 1961 II LLJ (508);
(vi) Ananda Bazar Patrika (P) Ltd., vs. The Workmen reported in (1969) II LLJ 670 SC;
(vii) East Asiatic Company (India) Ltd., vs. J.E.Morries reported in 1955 (I) LLJ 418;
(viii) Delhi Cloth and General Mills Co., vs. Ludh Budh Singh reported in (1972) 1 SCC 595;
(ix) Management of Bata India Limited Hosur 635 126 & Anr., vs. Presiding Officer, Industrial Tribunal Tamil Nadu Chennai & Ors., reported in 2010-II-LLJ-175 (Mad);
12. In reply to the submissions made by the learned Senior counsel for the employees the learned counsel appearing for the Management submitted as follows:-
This Court has got power to decide the jurisdictional issue. It is for the employees to prove that they are workmen and not the Management. In H.R.Adyanthaya & Ors., vs. Santoz (India) Ltd., & Ors., reported in AIR 1994 SC 2608, the jurisdictional issue has been considered and decided by the Hon'ble Supreme Court by appreciating the evidence. Even though the Management has not let in any oral evidence, based on the evidence let in by the workmen, it cannot be concluded that they are workmen. Some of the documents which were not marked before the Labour Court, have been produced before this Court only to show that the company is running at loss.
13. We have considered the submissions made by the learned counsels appearing on either side and perused the materials placed on record.
14. The core issue in all these Writ Appeals is as to whether the employees in all these cases are workmen within the meaning and definition of Section 2(s) of the Industrial Dispute Act and whether the conclusion arrived by the Labour Court and confirmed by the learned Single Judge that they are workmen, is sustainable. In order to give a finding on the above said issues, it is better to consider the finding rendered by the Labour Court on that aspect first, in each of the cases.
15(i) In the case of employee A.M.Sekar, who is the first respondent in W.A.No.126 of 2012, the Labour Court found that the said employee is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, by observing that the said employee has no power to appoint, dismiss or commence disciplinary action or suspend another employee; does not have any control whatsoever over any other employee; he can only recommend leave and he does not have power to sanction any leave; the said employee required to sign the cheque along with the Departmental Manager and that his signature alone is not sufficient to have the cheque honoured. It was further observed that the Senior General Manager who was examined as W.W-2 has admitted that the employee will be required to be a co-signatory of cheque, when none of his superiors are available and that his signature alone would not be sufficient. It was further observed by the Labour Court that the Management has not filed any document to show what are the duties and responsibilities, powers etc and in the absence of any documentary evidence, the admission of the W.W-2 would clearly establish that the employee is a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act.
(ii) Apart from giving such a finding based on the evidence of W.W-2, the Labour Court has not discussed any of the document filed and marked as Exhibits M1 to M8 on the side of the Management. Exhibit M1 dated 17.06.1998 is copy of the letter addressed to the employee Mr.A.M.Sekar informing the re-designation of his post as Deputy Manager and categorising his management level as M-5 also by revising his salary package. Clause 7 of the said letter contemplates that Management has also modified the Service Rules wherever necessary and consolidated the same applicable to Management Staff; Exhibit M2 is the copy of the Service Rules of the Appellant Management; Exhibit M3 is the copy of the transfer order issued to the employee dated 31.12.1997; Exhibit M4 is the copy of the letter of the Management to the Centurion Bank Ltd., Chennai for opening of current account; Exhibits M5 & M6 dated 10.04.2001 are the copies of the self appraisal of one D.Vijayaraghavan and G.Venkatesan. Likewise Exhibits M7 and M8 are the copies of managerial performance appraisal of P.G.Ranganathan and N.Sukumaran.
16(i) In the case of P.G.Ranganathan, who is the first respondent in W.A.No.127 of 2012, the Labour Court found that the said employee is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, by observing that he does not have the power to appoint anybody or to suspend or take disciplinary action against employee and he does not have power to sanction leave or to enter into any contract on behalf of the company. It was further observed that he neither has any managerial duties and responsibilities nor any supervisory duties. Here again, the Labour Court relied on the evidence of W.W-2, the Senior General Manager, who was examined at the instance of the employee, who has deposed that the employee does not have any disciplinary powers and that he does not have power to sign on behalf of the company. In this case also, the Management has filed Exhibits M1 to M7, which are as follows:-
Ex.M.1/15.02.1973 -Copy of appointment order issued to the petitioner Ex.M.2/31.12.1997 -Copy of transfer under issued to the petitioner.
Ex.M.3/ -Copy of managerial performance appraisal of the petitioner.
Ex.M.4/ -Copy of self appraisal of the petitioner.
Ex.M.5 series -Copy of staff leave application forms.
Ex.M.6 -Staff leave application form of Prem Kumar.
Ex.M.7 -Cheque payment voucher.
(ii) Even though such documents were marked on the side of the Management, the Labour Court has not made any discussion about those documents.
17(i) In the case of M.Sukumaran, who is the first respondent in W.A.No.128 of 2012, the Labour Court came to the conclusion that the said employee was a workman by observing that the said employee has no power to appoint, dismiss or commence disciplinary action or suspend another employee; that he has the only power to recommend leave and does not sanction any leave and that he is required to sign along with the Departmental Manager and the employee's signature alone is not sufficient to have the cheque honoured. Apart from observing so, the Labour Court here again relied on the cross examination of the General Manager examined as WW-2, to come to such a conclusion. In this case also, the Management has filed Exhibits M1 to M9, which are as follows:-
Ex.M.1 - Copy of managerial performance appraisal of the petitioner.
Ex.M.2/12.10.2000 -Copy of letter to the Centurion Bank Ltd., Chennai for opening of current account.
Ex.M.3/ -Copy of cheque payment voucher.
Ex.M.4 - Copy of cheque payment voucher.
Ex.M.5 -Copy of staff leave application for of the staff.
Ex.M.6 -Copy of Service Rules of the respondent-
Management.
Ex.M.7/10.04.2001 -Copy of self appraisal of P.G.Ranganathan Ex.M.8/10.04.2001 -Copy of self appraisal of Subrata Roy.
Ex.M.9/10.04.2001 -Copy of self appraisal of the petitioner.
(ii) The Labour Court unfortunately has not discussed anything about those Exhibits marked on the side of the Management, however, came to the conclusion only based on the claim made by the employee as well as the deposition of the W.W-2.
18(i) In respect of the employee B.Subu Venkatraman, who is the first respondent in W.A.No.129 of 2012, the Labour Court came to the conclusion that the said employee was a 'workman' on the reason that he does not have the power to appoint anybody or to suspend or take disciplinary action against any employee, to sanction leave or to enter into any contract on behalf on the company. Here again, the Labour Court relied on the deposition of WW-2 to come to the above conclusion. In this case, the Management has filed Exhibits M1 to M4, which are as follows:-
Ex.M.1/26.07.2001 Copy of staff leave application forwarded by the petitioner.
Ex.M.2 - Copy of signature of the leave sanctioning authority in Ex.M.1 Ex.M.3/31.7.2001 - Copy of staff leave application forwarded by the petitioner. Ex.M.4 - Copy of Service Rules of the respondent management.
(ii) Even though such documents were marked on the side of the Management, the Labour Court has not made any discussion about those documents.
19(i). In the case of R.Srinivasan, who is the first respondent in W.A.No.130 of 2012, the Labour Court came to the conclusion by observing that the said employee was a 'workman' on the reason that he does not have the power to appoint anybody or to suspend or take disciplinary action against any employee, to sanction leave or to enter into any contract on behalf on the company. Apart from those observations, the Labour Court relied on the deposition of W.W-2 to come to such a conclusion. In this case, the Management has filed Exhibits M1 to M5, which are as follows:-
Ex.M.1/17.06.1998 Copy of order regarding recategorisation/ restructuring of salary package.
Ex.M.2 - Copy of Service Rules of the respondent-
Management Ex.M.3 - Copy of management performance appraisal.
Ex.M.4 - Copy of self appraisal form of the petitioner. Ex.M.5 - Copy of payment voucher.
(ii) The Labour Court unfortunately has not discussed anything about the Exhibits, however, came to the conclusion only based on the claim made by the employee as well as the deposition of the W.W-2.
20(i) In the case of K.U.Suresh Kumar, who is the first respondent in W.A.No.131 of 2012, the Labour Court has come to the conclusion by observing that the said employee was a 'workman' on the reason that he does not have the power to appoint anybody or to suspend or take disciplinary action against any employee, to sanction leave or to enter into any contract on behalf on the company. Here again, the Labour Court relied on the deposition of WW-2 to come to such a conclusion. In this case, the Management has filed Exhibits M1 and M2, which are as follows:-
Ex.M.1 Copy of Service Rules of the respondent- Management Ex.M.2 - Copy of the letter of the petitioner to the respondent regarding deduction of contribution from salary.
(ii) Even though such documents were marked on the side of the Management, the Labour Court has not made any discussion about those documents.
21(i) In the case of M.Sankaran, who is the first respondent in W.A.No.132 of 2012, the Labour Court has found that he is workman by observing that he does not have the power to appoint anybody or to suspend or take disciplinary action against any employee, to sanction leave or to enter into any contract on behalf on the company. Here again, the Labour Court relied on the deposition of WW-2 to come to such a conclusion. In this case, the Management has filed Exhibit M1 which reads as follows:-
Ex.M.1 Copy of Service Rules of the respondent- Management
(ii) The Labour Court unfortunately has not discussed anything about the Exhibit, however, came to the conclusion only based on the claim made by the employee as well as the deposition of the W.W-2.
22(i) In the case of G.Sumathi, who is the first respondent in W.A.No.133 of 2012, the Labour court has found that she is workman by observing that she does not have the power to appoint anybody or to suspend or take disciplinary action against any employee, to sanction leave or to enter into any contract on behalf on the company. Here again, the Labour Court relied on the deposition of WW-2 to come to such a conclusion. In this case, the Management has filed Exhibits M1 & M2 which are as follows:-
Ex.M.1 Copy of Service Rules of the respondent-
Management Ex.M2/02.06.95 - Copy of letter of the petitioner to the respondent regarding deduction of contribution from salary.
(ii) Even though such documents were marked on the side of the Management, the Labour Court has not made any discussion about those documents.
23(i) In the case of P.Lokesh, who is the first respondent in W.A.No.134 of 2012, the Labour Court has found that he is workman by observing that he does not have the power to appoint anybody or to suspend or take disciplinary action against any employee, to sanction leave or to enter into any contract on behalf on the company. Apart from those observations, the Labour Court relied on the deposition of WW-2 to come to such a conclusion. In this case, the Management has filed Exhibits M1 to M5, which are as follows:-
Ex.M.1 Copy of promotion order issued to the petitioner.
Ex.M.2 - Copy of endorsement made by the petitioner in Ex.M.1.
Ex.M.3 - Copy of letter of the petitioner regarding deduction of contribution from salary. Ex.M.4 - Copy of Managerial performance appraisal of the petitioner Ex.M.5 - Copy of Service Rules of the respondent management.
(ii) The Labour Court unfortunately has not discussed anything about the Exhibits, however, came to the conclusion only based on the claim made by the employee as well as the deposition of the W.W-2.
24(i) In the case of S.N.Shyam Sundar, who is the first respondent in W.A.No.135 of 2012, the Labour Court has given a finding that he is a 'workman' by observing that he does not have the power to appoint anybody or to suspend or take disciplinary action against any employee, to sanction leave or to enter into any contract on behalf on the company. Apart from those observations, the Labour Court also relied on the deposition of WW-2 to come to such a conclusion. In this case, the Management has filed Exhibits M1 and M2, which are as follows:-
Ex.M.1/17.06.98 Copy of order regarding recategorisation/ restructuring of salary package.
Ex.M2 - Copy of Service Rules of the respondent management.
(ii) Even though such documents were marked on the side of the Management, the Labour Court has not made any discussion about those documents.
25. According to the learned counsel appearing for the Appellant Management, those documents filed in individual cases, if properly and individually considered and appreciated, it would establish that the first respondent is only a Managerial Staff and consequently will not come within the definition of workman under Section 2(s) of the Industrial Disputes Act. We have gone through the award and found that the Labour Court failed to go into any of those documents and given a finding on the contents of those documents/Exhibits.
26.From a perusal of the findings rendered by the Labour Court in each case with regard to the status of the ' employee' as 'workman', it is evident that the Labour Court has been carried over only by the contention of the respective employees that they have no power to appoint, dismiss or commence disciplinary action or to recommend sanction leave or enter into the contract on behalf of the Company and the evidence of W.W.2. In our considered view, these general observations made uniformly in respect of all the employees, without discussing individually in respect of each and every duty and responsibility assigned to the respective employees, will not satisfy the required exercise to be made by the Labour Court for arriving at a conclusion with regard to the status of an employee, more particularly when such a claim made by the employee is denied and disputed by the Management at all stages. The Labour Court has to necessarily go into each and every duty and responsibility of the employee and to give a finding as to which of such duties and responsibilities are predominant in character.
27. It is stated that all those documents marked on behalf of the Management were either with the consent of parties or during the cross examination of the witnesses on the side of the workmen. The Labour Court has also indexed those documents in each of its award, as the documents marked on the side of the Management. However, it has not gone into the contents of those documents and given any finding as to whether such documents would help the stand of the Management or not.
28. Only by considering the claim made by the employees in the claim petitions and without analysing the nature of each and every duty and responsibility of the employees and without giving a finding as to whether such nature of duties and responsibilities are duties of a workman or of a person with managerial capacity, the Labour Court came to such a conclusion that these employees were workmen. When a jurisdictional issue is raised before the Labour Court by specifically contending that these employees are not the workmen within the meaning and definition of Section 2(s) of the Industrial Disputes Act, such issue has to be considered and decided by considering all the evidence available before the Labour Court. If the documentary evidence marked on the side of the Management were not at all considered or discussed by the Labour Court and however, a decision is arrived at to the effect that they are 'workmen', such decision can not be sustainable in the eye of law as the finding given are perverse.
29. Of course, the Labour Court, after considering those documents, may come to a definite conclusion that they are not either relevant or proving the case of the Management. Then this Court under Article 226 of the Constitution of India cannot go into the jurisdictional issue by re-appreciating the evidence, if such decision is otherwise not perverse. On the other hand, if there was no consideration at all in respect of the documents filed by the Management, certainly this Court can interfere and direct the Labour Court to reconsider the matter afresh by considering all the materials available before it including the documents filed by the Management.
30. A perusal of the order passed by the learned Single Judge also would indicate that the above aspects have not been considered, while dismissing the Writ Petitions. The learned Single Judge has found at paragraph No.42 to the effect that omission of the Labour Court to consider some of those points raised either as evidence or otherwise in respect of individual cases itself is not sufficient to come to a conclusion that the awards passed are perverse. We are not in agreement with the said finding of the learned Single Judge, since the Labour Court has omitted to consider all the documentary evidence filed by the Management and not some of them alone. In the absence of consideration of all the documentary evidence filed by the Management, we have no hesitation in holding that the awards were not passed by considering all the material evidence filed by both sides.
31. No doubt both sides cited several decisions in support of their contentions. It is specifically contended by the learned Senior counsel appearing for the employees that re-appreciation of evidence is not possible in the Writ Petition and even in respect of jurisdictional issue, if the impugned award passed the test of perversity. As we have already pointed out that the question of re-appreciation of evidence does not arise in this case, when there was no appreciation of all the evidence by the Labour Court, more particularly, in respect of the Exhibits marked on the side of the Management.
32. The learned Senior counsel appearing for the employees referred to the decision in the case of Workmen vs. India Forge and Drop Stampings Ltd., & Anr., (supra), in support of his submissions that even in jurisdictional issue, this Court cannot re-appreciate the evidence, if the impugned award passed the test of perversity. In the above said decision, the Division Bench of this Court has held at paragraph No.19 as follows:-
19.It is by now well settled that though the jurisdiction under Article 226 of the Constitution of India is truly wide, but, for that very reason it has to be exercised with great circumspection and it is not for the High Court to constitute itself into an Appellate Court over the Tribunals constituted under special legislations to resolve the disputes of a kind qualitatively different from ordinary civil disputes and to re-adjudicate upon questions of fact decided by those Tribunals. Be it that such questions decided pertain to jurisdictional fact since that by itself does not entitle the High Court to interfere with the findings on jurisdictional facts, which the Tribunal is well competent to decide the same manner as an Appellate Court can interfere.
33. Sadhu Ram vs. Delhi Transport Corporation, (supra), is also relied on by the learned Senior counsel appearing for the employees in support of the same submission.
34. There is no dispute about the above said proposition. We have already pointed out that there was no discussion by the Tribunal with regard to the documentary evidence let in by the Management, more particularly, with regard to the nature of each and every duties and responsibilities assigned to the employees. Therefore, in the absence of such consideration, we are of the view that the Labour Court has not decided the jurisdictional issue after considering all the materials before it. In fact the Labour Court made similar and stereotype observations in respect of all the employees, which, in our considered view, does not reflect the real application of mind. Thus, when the finding was not based on all the materials placed before the Tribunal, this Court can very well set aside such finding and direct the Tribunal to consider the jurisdictional issue afresh.
35. The learned Senior counsel further submitted that the finding in each cases is on the basis of legal evidence and that the Management did not mark any document through any witness to negative the contentions of the employees. We are unable to appreciate the said contention for the simple reason that the finding rendered by the Labour Court was based on appreciation of evidence let in by one side and not by both sides. It is stated that those Exhibits were marked by the Management either with the consent of the parties or during the cross examination of the workmen witnesses. If such documents were permitted to be marked through the above said process, certainly the Labour Court has to look into those documents and consider the same before coming to the conclusion. When those documents were totally ignored and no finding was given in respect of those documents, we are unable to hold that the finding of the Labour Court was based on legal evidence.
36. The learned Senior counsel for the employees further contended that the name of the designation is not the determining factor and an occasional act cannot be construed to be the main act. He further contended that certain acts are essentially temporary in nature and therefore, they cannot be taken to mean that they are all managerial staff based on such temporary act.
37. The learned Senior counsel in this aspect relied on the decisions in the cases of Lloyds Bank Limited vs. Panna Lal Gupta & Ors., (supra) and South Indian Bank Ltd., vs. A.R.Chacko (supra). Certainly, the above said contention of the learned Senior counsel is a matter of factual aspect which has to be gone into and decided only by analysing all the material evidence let in by both parties. We have already found that such consideration is absent in this case.
38. Likewise, the learned Senior counsel relied on the decision in the case of Ananda Bazar Patrika (P) Ltd., vs. The Workmen, (supra), to contend that if the Tribunal addressed the issue with regard to duties and responsibilities and gave a finding, this Court cannot go into it. Here again, we would like to reiterate that the Tribunal, though addressed the issue with regard to duties and responsibilities, however, has not given a finding on the independent duties and responsibilities of each employees and as to whether such duties and responsibilities are occasional or predominant in character. The learned Senior counsel relied on the decision in the case of Delhi Cloth and General Mills Co., vs. Ludh Budh Singh, (supra), to say what is perversity. In view of the earlier discussion made, we find no assistance from the aforesaid decision as well.
39. An employee may be given several duties and responsibilities. However which of those duties and responsibilities are predominant in character is crucial for the determination of the status of the employee. Such determination can be done only by analysing all the duties and responsibilities individually in detail by appreciating evidence let in by both sides.
40. Though the learned counsel appearing for the Appellant Management cited several decisions in support of his submissions, we are not referring to all those decisions in order to avoid multiplicity of the same proposition. In the case of Management of M/s.May & Baker (India) Ltd., (supra), the Hon'ble Supreme Court observed at paragraph No.9 as follows:-
It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that word as it existed before the amendment of 1965. The nature of the duties of Mukerjee is not in dispute in this case and the only question, therefore, is whether looking to the nature of the duties it can be said that Mukerjee was a workman within the meaniong of S.2(s) as it stood at the relevant time. We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work. In the circumstances the tribunal's conclusion that Mukerjee was a workman is incorrect. The tribunal seems to have been led away by the fact that Mukherjee had no supervisory duties and had to work under the directions of his superior officers. That, however, would not necessarily mean that Mukerjee's duties were mainly manual or clerical. From what the tribunal itself has found it is clear that Mukerjee's duties weremainly neither clerical nor manual. Therefore, as Mukerjee was not a workman his case would not be covered by the Industrial disputes Act and the tribunal would have no jurisdiction to order his reinstatement. We, therefore, set aside the order of the tribunal directing reinstatement of Mukerjee along with other reliefs.
41. The above said decision was subsequently followed by the Hon'ble Supreme Court in the case of Miss A.Sundarambal, (supra), while considering the issue as to whether a Teacher in a school falls under the category of workman or not. In that decision, the Apex Court has observed as follows:-
10...Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view the view that teachers cannot be treated as 'workmen' as defined under the Act. It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in section 2(s) of the Act should be treated as workmen. The acceptance of this argument will render the words' to do any skilled or unskilled manual, supervisory, technical or clerical work' meaningless. A liberal construction as suggested would have been possible only in the absence of these words. The decision in May and Baker (India) Ltd., vs. Their Workmen (AIR 1967 SC 678) (supra) precludes us from taking such a view. We, therefore, hold that the High Court was right in holding that the appellant was not a 'workman' though the school was an industry in view of the definition of 'workman' as it now stands.
42. The Hon'ble Supreme Court in the case of C.Gupta vs. Glaxosmithklin Pharmaceutical Ltd., (supra), by referring to the case of Burmah Shell Oil Storage and Distribution Company of India Ltd., vs. The Burma shell Management Staff Association & Ors., reported in (1970) 3 SCC 378, observed as follows:-
24... There is a clear distinction between technical work and manual work. Similarly there is a distinction between employments which are substantially for manual duties, and employments where the Principal duties are supervisory or other type, though incidentally involving some manual work.
43. The learned counsel appearing for the Appellant Management placed reliance on the decisions in the cases of O.P., Bhandari, (supra), Talwara Co-operative Credit Service Society Ltd.,(supra), Ashok Kumar Sharma, (supra), and Rajasthan Lalit Kala Academy,(supra) in support of his alternative submission that in case this Court comes to a conclusion that these employees are workmen, the sickness of the company should be taken into consideration while determining compensation to be paid to the employees. We find that the above submission of the learned counsel need not be considered at this stage, as we are of the view that very status of the employees have to be decided afresh by the Tribunal by considering all the evidence placed before it.
44. Since, we are proposing to remit back the matter to the Tribunal, all other decisions relied on by the learned Senior counsel are not referred to and it is open to the parties to place those materials before the Tribunal, when the matter is taken for fresh consideration.
45. Accordingly, all these Writ Appeals are allowed and the awards of the Labour Court as well the common order of the learned Single Judge are set aside and the matter is remitted back to the Labour Court for fresh consideration including the jurisdictional issue by considering all the material facts and evidence let in by both parties and pass award on merits and in accordance with law. Such exercise shall be done by the Labour Court, within a period of four months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
(N.P.V.,J) (K.R.C.B.,J) 25.09.2014 pbn Index :Yes Internet:Yes W.A.Nos.126 to 135 of 2012 N.PAUL VASANTHAKUMAR,J AND K.RAVICHANDRABAABU,J
After pronouncing the judgment, it is represented by Mr.V.Prakash, learned Senior Counsel appearing for the second respondent in all W.As., that since the awards were upheld by the learned Single Judge, Claim Petitions were filed and the same are pending and in view of the order passed in these Writ Appeals, those Claim Petitions may be ordered to be kept pending.
2. As we have set aside the awards as well as the order of the learned Single Judge and the matters are remitted back to the Labour Court for fresh consideration, the said Claim Petitions may be adjourned, till the disposal of the Industrial Disputes, as directed above.
(N.P.V.,J.) (K.R.C.B.,J.) 25.09.2014 paa Note: Issue on 26.09.2014 To The Presiding Officer, I Addl. Labour Court, Chennai.
N.PAUL VASANTHAKUMAR,J.
AND K.RAVICHANDRABAABU,J. Pbn Judgment in W.A. Nos.126 to 135 of 2012 25.09.2014