right in holding that Respondent No 1 was a workman  and in granting relief on that basis
996E  CIVIL APPELLATE JURISDICTION Civil Appeal Nos3521 3523 of 1987
From the Judgment and order dated 1710
1986 of the Rajasthan High Court in DB Civil Special Writ Appeals Nos
2728 of 1983 and 224 of 1982
Dr Shankar Ghosh NC Shah and Praveen Kumar for the Appellant
Tapas Ray SK Jain Mrs PJain and section Atreya for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
After hearing parties and after considering the relevant documents additional as well as original we grant leave to appeal in these matters
The appeals are disposed of by the judgment herein
989 Since prior to Ist of January 1978 the respondent No 1 Shri Kishan Bhageria was working under the appellant company as an Internal Auditor on a monthly salary of Rs118660 per month
The appellant alleged that the respondent started absenting himself from 28178 and as such was not entitled to any salary for any period beyond 28178 The said respondent was thereafter placed under suspension on 30th of March 1978
The respondent on 4th of May 1978 filed an application under section 33C2 of the hereinafter called the Act  claiming the total sum of Rs474640 on account of salary from Ist of January 1978 to 30th of April 1978 at the rate of Rs118660 per month
The appellant company objected
The main ground of objections was that the respondent was not a workman
On or about 9th of November 1978 there was an order dismissing the respondent from service
The respondent thereafter on 2nd of January 1979 filed an application under section 28A of the Rajasthan Shops  Establishments Act 1958 hereinafter called the Rajasthan Act 
The said application was dismissed on 31st of July 1979 on the ground of limitation
The Labour Court on 2nd of August 1979 held that the respondent was doing clerical duties and as such was a workman under the Act and he was entitled to Rs2060 as salary from 1178 to 9378
The appellant filed Writ Petition No 765 of 1979 in the Rajasthan High Court against the order of the Labour Court allowing the said salary
The respondent also filed another writ petition being writ petition No 1091 of 1979 for declaration that he was entitled to receive Rs206698 as salary from 9378 to 30478
There was thereafter a reference under section 10 of the Act on 8880 arising out of the dismissal of the respondent
The appellant filed another writ petition being Writ Petition No 1623 of 1980 challenging the order of reference
All these aforesaid writ petitions were disposed of by the learned Single Judge of the Rajasthan High Court on 16382 holding that the respondent was not a workman
The other contentions urged before the leaned Single Judge were not considered by the Division Bench in the view it took later on
On 17th of October 1986 the Division Bench reversed the judgment of the learned Single Judge and held that the respondent was a workman
Two writ petitions of the appellant were dismissed and the writ petition of the respondent was allowed
Aggrieved by the aforesaid orders the appellant has come up in these appeals before this Court
The main question which requires consideration in these appeals is whether the respondent was a workman or not
For the determination of this question it is necessary to refer to section 2s of the Act which defines workman and states that it means any person emp 990 loyed 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 includes any such person who has been dismissed discharged or retrenched in connection with or as a consequence of any dispute
But sub clause iii does not include any person who is employed mainly in a managerial or administrative capacity and sub clause iv does not include any person who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per month or duties attached to the office or by reason of the powers vested in him discharges functions mainly of a managerial nature
In view of the said definition we are concerned here with the question whether the respondent was a workman as not being employed in any supervisory capacity
There is no controversy that the said respondent is not employed in any managerial or administrative capacity
In this case before we deal with the facts and the relevant authorities of this Court it may be appropriate to refer to a decision of PB Mukharji J Of the Calcutta High Court as the learned Chief Justice then was in Mcleod and Co vs Sixth Industrial Tribunal West Bengal and others AIR 1958 Calcutta 273
There the learned Judge observed that whether a person was a workman within the definition of the was the very foundation of the jurisdiction of the Industrial Tribunal
The Court further observed that in order to determine the categories of service indicated by the use of different words like supervisory managerial administrative it was necessary not to import the notions of one into the interpretation of the other
The words such as supervisory managerial and administrative are advisedly loose expressions with no rigid frontiers and too much subtlety should not be used in trying to precisely define where supervision ends and management begins or administration starts
For that would be theoretical and not practical
It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application
The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge functions mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him
In that case the learned Judge further held that a person in charge of a Department could not ordinarily be a clerk even though he may not have power to take disciplinary action or even though he may have another superior 991 officer above him
It was further observed that distribution of work may easily be the work of a manager or an administrator but checking the work so distributed or keeping an eye over it is certainly supervision
It is reiterated that a manager or administrator s work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator
Bearing in mind the aforesaid indication it would be necessary to discuss some decisions of this Court
In All India Reserve Bank Employees Association vs Reserve Bank of India   this Court dealing with certain types of employees observed These employees distribute work detect faults report for penalty make arrangements for filling vacancies to mention only a few of the duties which are supervisory and not merely clerical At page 46 of the report Hidayatullah J as the learned Chief Justice then was observed that the work in a Bank involved layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision emphasis supplied
There the Court referred to a previous decision in Llyods Bank Ltd vs Pannalal Gupta  where the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn and it was reiterated that before a clerk could claim a special allowance payable to a supervisor he must prove that he supervises the work of some others who are in a sense below him
It was pointed out by Hidayatullah J that mere checking of the work of others is not enough because this checking was a part of accounting and not of supervision and the work done in the audit department of a bank was not supervision
emphasis supplied
In Burmah Shell Oil Storage  Distribution Co Of India
vs Burmah Shell Management Staff Association  Ors   this Court observed that a workman must be held to be employed to do that work which is the main work he is required to do even though he may be incidentally doing other types of work
Therefore in determining which of the employees in the various categories are covered by the definition of workman  one has to see what is the main or substantial work which he is employed to do
In The Punjab Co operative Bank Ltd vs RS Bhatia dead through Lrs it was held that the accountant was supposed to sign the salary bills of the staff even while performing the duties of a clerk
That did not make the respondent employed in a managerial or administrative capacity
The workman was therefore in that context rightly held as a clerk 992 In P Maheshwari vs Delhi Administration  Ors  the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle
The principle therefore is one must look into the main work and that must be found out from the main duties
A supervisor was one who could bind the company to take some kind of decision on behalf of the company
One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor
See in this connection Black s Law Dictionary Special Deluxe Fifth Edition
At page 1290 Supervisor has been described inter alia as follows In a broad sense one having authority over others to superintend and direct
The term supervisor  means any individual having authority in the interest of the employer to hire transfer suspend lay off recall promote discharge assign reward or discipline other employees or responsibility to direct them or to adjust their grievances or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment
 Reference may be made to the observations of this Court in Ved Prakash Gupta vs Ms Delton Cable India P Ltd  There on facts a Security Inspector was held to be a workman
At page 575 of the report this Court referred to the decision in Llyods Bank Ltd vs Panna Lal Gupta supra and also the observations of this Court in Hind Construction and Engineering Company Ltd vs Their Workmen In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch towers or around the factory or to accompany visitors to the factory and making entries in the visitors  register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory
There it was found that he had no power to appoint
In the instant case the evidence have been summarised by the Division Bench
Reference may be made to pages 65 73 80 84 to 94 993 95 96 and 97 of the Paper Book which indicate the nature of duties performed by the respondent No 1 herein
His duties were mainly reporting and checking up on behalf of the management
A reporter or a checking clerk is not a supervisor
The respondent herein does not appear to us doing any kind of supervisory work
He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company
In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor
That conclusion arrived at in the manner indicated above cannot in our opinion be interfered with under Article 136 of the Constitution
It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench
Our attention was however drawn by the counsel for the respondent to certain correspondence for instance the letter at page 65 of the paper book bearing the date 14th of May 1976 where the respondent reported that certain materials were lying in stores deptt
in absence of any decision
It was further reiterated that on inspection of the pieces that those pieces were found cracked
Similarly our attention was drawn to several other letters and we have perused these letters
We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent
A checker on behalf of the management or employer is not a supervisor
In the aforesaid view of the matter the conclusion of the Division Bench that respondent No 1 is a workman has to be sustained
We do so accordingly
The next question that arises in this case is whether Act would apply or the Rajasthan Act would apply
In this connection section 28A of the Rajasthan Act is material
It enjoins that no employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee at least one month s prior notice or on paying him one month s wages in lieu of such notice
Sub section 2 of section 28A gives every employee so dismissed or discharged right to make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge
Sub section 3 of section 28A provides that the prescribed authority shall cause a notice to be served on the employer relating to the said complaint record 994 briefly the evidence produced by the parties hear them and make such enquiry as it might consider necessary and thereafter pass orders in writing giving reasons therefor
Section 37 of the Rajasthan Act reads as follows 37
Saving of certain rights and privileges
Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to on the date this Act comes into force under any other law contract custom or usage applicable to such establishment or any award settlement or agreement binding on the employer and the employee in such establishment if such rights or privileges are more favourable to him than those to which he would be entitled under this Act
 It has to be borne in mind that section 2A of the Act was amended to permit individual workman to ask for a reference in the case of individual dispute
This amendment was assented to by the President on 1st of December 1965
The Rajasthan Act received the assent of the President on 14th of July 1958
On 8th March 1972 Chapter 6A including section 28A was inserted in the Rajasthan Act
Therefore the material provision of the Rajasthan Act is the subsequent law
Under Article 2542 of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List
It appears that both of these Acts tread the same field and if there was any conflict with each other then section 28A of Rajasthan Act would apply being a later law
We find however that there is no conflict
The learned Single Judge of the Rajasthan High Court in Poonam Talkies Dausa vs The Presiding Officer Labour Court Jaipur SB Civil Writ Petition No 120685 decided on 961986 so
That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No 23186
The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy
It appears to us that it cannot be said that these two Acts do not tread the same field
Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge but there is no repugnancy because there is no conflict between these two Acts in pith and substance
There is no inconsistency between these two acts
These two Acts in our opinion are supplemental to each other
995 In Deep Chand vs The State of Uttar Pradesh and others 1959 Suppl
2 SCR 8 Subba Rao J as the learned Chief Justice then was observed that the result of the authorities indicated was as follows Nicholas in his Australian Constitution 2nd Edition p 303 refers to three tests of inconsistency or repugnancy 1
There may be inconsistency in the actual terms of the competing statutes 2
Though there may be no direct conflict a State law may be inoperative because the Commonwealth Code is intended to be a complete exhaustive code and 3
Even in the absence of intention a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter
 Quoting the aforesaid observations this Court in Ms Hoechst Pharmaceuticals Ltd and others vs State of Bihar and others  at page 87 where AP Sen J exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter one law would be repugnant to the other
Therefore in order to raise a question of repugnancy two conditions must be fulfilled
The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other
These are two conditions which are required to be fulfilled
These are cumulative conditions
Therefore these laws must tread on the same field and these must be repugnant or inconsistent with each other
In our opinion in this case there is a good deal of justification to hold that these laws the and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee
But these two laws are not inconsistent or repugnant to each other
The basic test of repugnancy is that if one prevails the other cannot prevail
That is not the position in this case
Learned counsel on behalf of the appellant however contended that in this case there had been an application as indicated above under section 28A of the Rajasthan Act and which was dismissed on ground of limitation
Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions one given on limitation and the other if any 996 relief is given under the Act
We are unable to accept this position because the application under Section 28A of the Rajasthan Act was dismissed not on merit but on limitation
There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause
But there is no period of limitation provided under the 
Therefore that will be curtailment of the rights of the workmen or employees under the 
In the situation section 37 declares that law should not be construed to curtail any of the rights of the workmen
As Poet Tennyson observed freedom broadens from precedent to precedent so also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India
It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed
Therefore in no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for an adjudication in case of the termination of the employment
If that is the position in view of the provisions 6 months  time in section 28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the and that Act must prevail
In the premises there is no conflict between the two Acts and there is no question of repugnancy
The High Court was therefore right in holding that the respondent was workman and in granting relief on that basis
Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice
Reference was made to certain observations in P Maheshwari vs Delhi Admn
 Ors supra
But as mentioned hereinbefore in this case the interference was made by the High Court not at the initial stage
In the premises we are of the opinion that the High Court was right in the view it took
These appeals therefore fail and are accordingly dismissed
There will however be no order as to costs
The reference before the Tribunal should proceed as expeditiously as possible
NVK Appeals dismissed


Summary:
Reasonable opportunity to show cause  in article 3112 Of the Constitution contemplates not merely the opportunity to do so at the enquiry stage but also when the competent authority as a result of the enquiry proposes to inflict one of the three punishments mentioned in the Article on the delinquent servant
Such reasonable opportunity must therefore include 1 opportunity to deny his guilt and establish his innocence which means that he must be told what the charges against him 1081 are and the allegations on which such charges are based  2opportunity to cross examine the witnesses produced against him and examine himself or other witnesses on his behalf and 3opportunity to show that the proposed punishment would not be the proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him
High Commissioner for India vs IM Lall LR 1948 75 IA 225 explained and relied on
Secretary of State for India vs I M Lall 1945 FCR I03 not followed
Parshotam Lal Dhingra vs The Union of India and Venkata Rao vs Secretary of State for India LR 1936 64 IA 55 referred to
The procedure followed in such cases must therefore include the giving of two notices to the servant one at the enquiry Stage and the other when the competent authority as a result of the enquiry tentatively determines to inflict a particular punishment on him
Consequently in a case where the Government Servant sought to be proceeded against for misconduct was served with a charge sheet and appeared before two officers conducting the enquiry one after the other but no notice was served upon him when the competent authority accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on him and no cause could therefore be shown by him the provision of article 3112 had not been fully complied with and the order of dismissal passed against him must be declared void and inoperative