1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4365 OF 1998 M.D.Khanapur ... Petitioner v/s 1. National Rayon Corpn. Ltd. & ors. ... Respondents Ms.Gauri Godse for the petitioner. Mr.P.K.Rele with Mr.Vinod N. Tayade i/by Piyush Shah for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 23RD SEPTEMBER, 2010 ORAL JUDGMENT: 1. The petitioner is aggrieved by the order of the Labour Court dismissing his complaint since it has been held that he is not a “workman”. The Industrial Court in a revision application filed by the petitioner has confirmed the order and dismissed the revision application. 2. The petitioner joined service with respondent Nos.1, 2 and 3 (hereinafter referred as the respondents) on 11.1.1988 2 as a Resident Civil Engineer. He was placed on probation initially for a period of six months. Thereafter he was confirmed in service on 10.5.1990 as an Assistant Services Engineer. He was informed by his appointment letter that he would be assigned work in the Civil Engineering Department and could be transferred later to any other department in the factory at Mohane or to any of its establishments around the country depending on the exigencies of work. The appointment order also mentions that he would be governed by the service conditions applicable to the officers of the Company. Another clause of the appointment letter provides that his services could be terminated by either side, by giving notice of three months or salary in lieu of the notice period. 3. The services of the petitioner were terminated by an order of dismissal on 29.11.1991 by the respondents. The dismissal order mentions that he had indulged in various acts of corruption and as a consequence he had betrayed the trust and confidence of the management. He was offered three months’ salary in lieu of notice in accordance with the terms of employment. As the petitioner was allotted staff quarters for his residence, he was directed to hand over the vacant possession of the same immediately after the dismissal order 3 was served on him. 4. The petitioner approached the respondents requesting them to reconsider the dismissal order. However, his pleas were not heeded and, therefore, the petitioner filed Complaint (ULP) No.88 of 1992 before the Labour Court, Thane. This complaint was filed under Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (in short, M.R.T.U. & P.U.L.P. Act). The respondents resisted the complaint by filing a written statement. A preliminary issue regarding the maintainability of the complaint was raised by the respondents. It was contended that the petitioner was not an “employee” as defined under Section 3(5) of the M.R.T.U. & P.U.L.P. Act as he was not a “workman” under Section 2(s) of the Industrial Disputes Act (in short, I.D.Act). The Labour Court, therefore, directed the parties to lead evidence on the preliminary issue as to whether the petitioner was a “workman”. 5. The petitioner led evidence before the Labour Court by examining himself. The evidence on record indicated that the work assigned to the petitioner consisted of (i) preparation of estimates and proposals for the sanction by 4 the departmental head; (ii) checking of work done by the site supervisor; (iii) preparation of quotations; (iv) checking of contractors’ bills which were to be submitted to the departmental head for sanction; (v) looking after the day-to- day civil maintenance work. Besides this, he was required to open sealed tenders along with the persons from the accounts department and stores department. He used to check the technical veracity of these tenders. He was engaged in the maintenance of the factory building, school, staff quarters, and all work of installations and modifications of the machineries. He was also expected to inspect the sites where the civil engineering work of the respondents was in progress. Besides this, he had to scrutinize the quotations received from third parties for carrying out any civil engineering work. In his cross-examination, the petitioner has admitted that he checked the contract form written out by the foreman and the assistant foreman so as to ensure that the technical aspects were satisfactorily filled in. The progress report was admittedly written by some other person on the instructions of the petitioner. Besides this, the petitioner admitted that he had signed the casual leave and sick leave applications of the assistant foreman and senior clerk. However, according to him, he had done so on instructions from one Shri Padvekar who was his superior. 5 6. Respondents led evidence of one Shri Kanade who was working as a foreman in the Civil Engineering Department and of one Shri Govind Jeurkar, who was the assistant foreman. Both these witnesses have stated that the petitioner was in-charge of the Civil Engineering Department and was in over all control and supervision over the staff and workmen in the Civil Engineering Department. Shri Kanade has conceded in his cross-examination that Padvekar and Murti who were working in the Engineering Department were senior to the petitioner. This witness has further stated in his cross-examination that the petitioner being a technical person, was expected to look after the technical aspects of the work undertaken by the respondents. This witness has agreed that analyzing quotation receipts from contractors was the technical work which was performed by the petitioner. The witness has further conceded that Padvekar was in over all charge in the Engineering Department including the Civil Engineering Department where the petitioner was employed. All financial decisions were taken by Padvekar and matters relating to administrative and technical issues in respect of the Civil Engineering Department were undertaken by the petitioner. 7. Several documents were also produced before the 6 Court by the respondents which had been signed by the petitioner. According to the respondents, these documents demonstrated that the petitioner was not a “workman”. 8. The Labour Court, after considering the pleadings and evidence on record, accepted the contention of the respondents that the petitioner was not a “workman” as defined under Section 2(s) of the I.D. Act and was consequently not an “employee” as defined under Section 3(5) of the M.R.T.U. & P.U.L.P. Act. 9. Aggrieved by the order of the Labour Court, the petitioner approached the Industrial Court in revision. Although it was not required to do so under Section 44 of the M.R.T.U. & P.U.L.P. Act, the Industrial Court has considered the documents on record as well as the evidence led by the parties as a Court of Appeal and has confirmed the order of the Labour Court. 10. Ms.Godse appearing for the petitioner submitted that both the Courts below have failed to consider the fact that the predominant nature of work carried out by the petitioner was technical. She conceded that on some occasions the petitioner had signed the leave applications and that his 7 signature was found on certain documents which could have been signed only by officers. She submitted that this cannot lead to an inference that the petitioner was not a “workman”. According to her, signing of these documents was incidental to the main nature of work for which the petitioner was engaged in, i.e. the work of a technical nature. Ms.Godse submitted that both the Courts below have failed to consider the judgments of the Supreme Court in several cases where the Supreme Court has held that the predominant nature of the work performed by a person claiming to be a workman must be considered. She relied on the judgment in the case of H.R.Adyanthaya & ors. v/s Sandoz (India) Ltd. & ors., reported in (1994) 5 SCC 737, to submit if a workman is performing work of a technical nature he must be considered to be a workman as defined under Section 2(s) of the I.D.Act. Besides this, Ms.Godse has also relied on certain others judgments, which I will advert to presently. 11. The learned advocate for the respondents has submitted that when two Courts below have considered the evidence on record and have concluded that the petitioner is not a workman, this Court in its writ jurisdiction should not interfere with that finding. The learned advocate then submitted that the petitioner’s work was of supervisory or 8 administrative in nature although he had to do the work of a technical nature as well. According to the learned advocate, there is evidence on record to establish that the petitioner had sanctioned leave of some of the workmen who were working under him, had issued a charge-sheet to one of them and had taken several administrative decisions. He, therefore, submits that the petition be dismissed. 12. In the case of Anand Bazar Patrika (Pvt.) Ltd. v/s Its workmen, reported in 1969 (2) L.L.J. 670 SC, the Supreme Court has held that whether a workman is employed in a supervisory capacity or for clerical work depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a clerical nature. If the main work done is clerical in nature, the mere fact that some supervisory duties are also performed by him incidentally or as a small fraction of the work done by him, he cannot be said to be appointed in supervisory capacity. 13. Later, in H.R.Adyanthaya’s case (supra), the Supreme Court has held, after considering the judgments in the case of Western India Match Co. Ltd. v/s Workmen, reported in A.I.R. 1964 SC 472 and in the case of Burma Shell Oil 9 Storage & Distribution Co. of India Ltd. v/s Burmah Shell Management Staff Association, reported in A.I.R. 1971 SC 922, that the position in law was that the person can be considered a “workman” under the I.D.Act if he is employed to do any of the categories of work, namely, manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by any of the four exceptions to the definition. He must fall positively within the aforesaid categories. 14. Similarly, in the case of Sudhirkumar s/o Sourindrakumar Roy v/s M/s.Ferro Alloys Corporation Ltd., reported in 1992 Lab.I.C. 657, a learned Single Judge of this Court, on the basis of the evidence on record has held that whatever supervisory work was done by the petitioner in that case was ancillary and that he was not employed as supervisor. In the case of Chandrashekhar Chintaman Vaidya v/s National Organic Chemical Industries Ltd., Akola, reported in 2010 (3) Mh.L.J. 434, the Division Bench of this Court sitting at Nagpur has held that the predominant nature of the duties performed by a person are decisive for determining whether a person is a “workman” and not the nomenclature of the post. 10 15. The other judgments referred to by Ms.Godse need not be considered since all of them have been noticed by the Supreme Court in H.R.Adyanthaya’s case (supra). Taking a conspectus of the judgments cited by Ms.Godse, the principles enunciated in all these judgments are that, while assessing whether a person is a workman, the Labour Court is expected to consider the predominant nature of his work. Any work which is ancillary or incidental to the work that he performs cannot be considered as a true test for determining the status of the employee. Besides this, the person must fall within one or the other categories mentioned in the inclusive part of the definition of a “workman” under Section 2(s) of the I.D.Act. Bearing these principles in mind, it would be necessary to consider whether the Labour Court and the Industrial Court have committed any error of law apparent on the face of the record requiring interference from this Court. 16. Considering the body of the evidence on record, in my opinion, the work performed by the petitioner was technical in nature. He was appointed as an Assistant Civil Engineer. His appointment order did mention that he would be governed by the Rules applicable to the officers of the Company. He has also issued one charge-sheet. However, 11 he has stated that this was done at the instance of one Shri Desai. He has also signed the leave applications of workmen. According to the petitioner, he has done so on the instructions of Padvekar. All technical aspects of the quotations and tenders were checked by the petitioner. Leave has been sanctioned by the petitioner for various other employees who were working with him. The petitioner has stated that, he did so on the directions of Padvekar. I have perused the evidence of Kanade in which he has admitted that the main work of the petitioner was looking after the engineering work of the Company. The witness has further admitted that Padvekar was in over all in-charge of the Engineering Department including the Civil Engineering Department. All financial aspects of the work were decided by Padvekar, whereas the administrative and technical matters of the Civil Engineering Department were taken care of by the petitioner. Padvekar was the only person appointed as the Manager In-charge of the Engineering Department. Considering this evidence on record, in my opinion, both the Courts below have committed an error in holding that the petitioner is not a workman. The evidence of the respondents’ own witness, in my opinion, amply indicates that the predominant work carried out by the petitioner was technical in nature. The Labour Court and the Industrial 12 Court, instead of considering this fact, have been persuaded to hold that he was not a workman only because he had signed leave applications and one charge-sheet. Applying the tests laid down by the Supreme Court in H.R.Adyanthaya’s case (supra) and the other judgments cited before me, in my opinion, there can be no any manner of doubt that the petitioner is a “workman”. 17. Accordingly, the petition is allowed. Rule made absolute. 18. The complaint is remanded to the Labour Court for a decision on merits. The Labour Court shall endeavour to decide the complaint as expeditiously as possible and in any case within one year from today. ..... 13