Letters Patent Appeal No.294 of 2007,Writ Petition No.7300 of 2003

31st January, 2008

Petitioner Counsel: Mr. S. T. GALANDE
Respondent Counsel: Mr. P. K. RELE,Mr. V. A. TAYADE

Cases Cited:
All India Reserve Bank Employees' Association Vs. Reserve Bank of India, AIR 1966 SC 305 [Para 8]
Ford Motor Co. of India Ltd. Vs. Ford Motors Staff Union, (1953)2 Lab LJ 444 [Para 8]
Anand Bazar Patrika(P) Ltd. Vs. The workmen, (1970)8 SCC 248 [Para 9]
S. K. Maini Vs. M/s. Carona Sahu Co. Ltd., (1994)3 SCC 510 [Para 10]

JUDGMENT

SWATANTER KUMAR, C.J.:- Challenge in this appeal is to the order of the learned single Judge dated 13th August, 2007, passed in Writ Petition No.7300 of 2003, whereby the learned single Judge, while dismissing the petition, has observed that the decision of the Labour Court need not be interfered with under writ jurisdiction as there is no perversity in the conclusions drawn by the Labour Court. The Labour Court has held the appellant not to be a workman.

2. The necessary facts are that according to the appellant he was appointed as Quality Assurance In-charge vide letter of appointment dated 25th April, 1994, in furtherance to which the appellant joined the post in the pay scale of Rs.1850-170-2700-200-3700-250-4950. According to the appellant, he was working in the Quality Control Department and was doing inspecting job and related technical and clerical work. However, the services of the appellant were terminated by the management vide its letter dated 8th September, 1995. This action of the respondent-management was challenged by the appellant who claimed to be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, hereinafter referred to as "the Act", and, inter alia, pleaded that the services of the appellant were terminated in violation of the provisions of Section 25-F of the Act.

3. The appellant raised an industrial dispute which was referred to the Second Labour Court for adjudication. The respondent company raised an issue that the appellant was not a workman under Section 2(s) of the Act and the duties of the appellant were managerial and supervisory in nature. The Labour Court after hearing both the parties and the evidence adduced before it came to the conclusion that the appellant was not a workman within the meaning of Section 2(s) of the Act and neither did he prove that his termination was illegal, by its award dated 29th August, 2002.

4. Dissatisfied by the above award, the appellant filed writ petition which came to be dismissed by the learned single Judge vide order dated 19th April, 2006. The said order reads as under :

"Heard learned Senior Counsel for the petitioner. No case made out to interfere with the impugned order. Petition is, therefore, dismissed in limine with no order as to costs. The view taken by the court below is reasonable and possible view."

5. Aggrieved from the above order of the learned single Judge, the appellant preferred an appeal being being LPA No.175 of 2006. The Letters Patent Bench vide its order dated 6th July, 2007, set aside the order of the learned single Judge dated 19th April, 2006 and remanded the matter to that Court for fresh hearing and for determination of the issues on merit. After the order of remand, the matter was heard by the learned single Judge and again vide order dated 13th August, 2007 the writ petition filed by the appellant was dismissed. The learned single Judge returned a finding affirming the order of the Labour court that the award of the Labour Court was not perverse in fact and in law. It affirmed the finding that the appellant was not a workman. Again aggrieved from the order of the learned single Judge dated 13th August, 2007, the appellant filed the present appeal.

6. In the impugned order, the learned single Judge referred paragraph 7 of the Award of the Labour Court where admission of the workman itself was relied upon. In that statement, the appellant had stated that he was given appointment letter dated 25th April, 1994, original of which was exhibited at Exhibit-29. Once the workman had admitted the document, he could hardly argue contrary to the contents of the said document. Clause (2) of Exh.29 reads as under :

"2. Being overall responsible for Quality Assurance of the company's products, you are required to set/modify parameters of quality in respect of each product from time to time in terms of customer's needs and ensure that these are followed by all concerned subordinates and colleagues. You are also required to maintain various data for immediate and/or future reference within the organization or for our customers when needed.

You will be reporting to Works Manager when he joins. Till that time you will report to Mr. Sunilji and Mr. Jaiprakashji."

It may be noticed that in the said letter, the management had clearly stated that the appellant may join the post only if the terms and conditions were acceptable to him and he would return the duplicate of the letter duly signed by him as a token of acceptance. Exhibit-42 is the statement of one Sureshchandra Deohal. This witness, who appeared on behalf of the Company, stated that he joined the Company in the year 1994 and appointment letter Exhibit-29 was issued at the time of appointment of the appellant. In his statement he specifically stated that as a Works Manager there were different departments under him and the appellant was working as Quality Assurance in-charge. His work was to ensure the quality of the products for which he first designs the process plant for the products or components, supervise the work of others and ensure the quality of the products. Various documents have been produced by the Company including Exhibits-32, 33 and 34 which showed that the appellant had the power to take decision on behalf of the Company. The management in the reply filed before the Labour Court had clearly stated that as Quality Assurance in-charge, the appellant used to supervise the work of the Quality Control Supervisor directly and the line inspectors working in shift indirectly through the Quality Control Supervisor, take decisions, decide the parameters for the quality check up and analyse the drawings received from the customers.

7. This was the documentary and oral evidence relied upon by the labour Court to arrive at a finding that the appellant did not satisfy the ingredients of being a 'workman' and thus was incapacitated from raising an industrial dispute. It is a settled principle of law that the onus lies upon the workman to prove that he satisfies the essential ingredients of being a workman and, therefore, could raise an industrial dispute. This is a mixed question of fact and law and unless the finding arrived at by the Labour Court was patently perverse or contrary to law, this Court could hardly disturb the findings of facts in a letters patent appeal.

8. In the case of All India Reserve Bank Employees' Association and another Vs. Reserve Bank of India and another, AIR 1966 SC 305, the Supreme Court while approving the findings recorded by the Labour Appellate Tribunal in Ford Motor Co. of India Ltd. Vs. Ford Motors Staff Union, (1953)2 Lab LJ 444, held thus :

"... the question whether a particular workman is a supervisor within or without the definition of 'workman' is "ultimately a question of fact, at best one of mixed fact and law..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organisational set up of the particular unit of industry and like factor."

9. The definition of 'workman' under Section 2(s) is very wide in its terms and specifically excludes the person who works in a supervisory capacity, draws wages exceeding Rs.1600/- per month and exercises either the nature of duties attached to the Officer or by reason of the power vested in him functions mainly in a managerial capacity. The Supreme Court in the case of Anand Bazar Patrika(P) Ltd. Vs. The workmen, (1970)8 SCC 248 held as under :

"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."

10. Similarly, in S. K. Maini Vs. M/s. Carona Sahu Co. Ltd., (1994)3 SCC 510, the Supreme Court in paragraph 9 held as under:

"After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it"

"... the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as Section 2(s) of the Industrial Disputes Act."

11. The appellant in the present case had multifarious duties and most of his duties were supervisory and managerial. He had the power and capacity to take decisions, supervise work of others and was also responsible for quality control of the products being manufactured. The character and nature of his duties while seen in the light of the documentary and oral evidence led by the parties, it can be concluded that the appellant was not a 'workman' within the definition of Section 2(s) of the Act. Looking into the admission of the workman and specific language of Exhibit-29 and the terms and conditions of his appointment, it is difficult to arrive at any conclusion other than the one arrived at by the Labour Court and the learned single Judge in the impugned order.

12. We see no reason to interfere with the impugned order. The appeal is dismissed while leaving the parties to bear their own costs.

Appeal dismissed.