IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 7327 of 2004(V) ------------------------- PETITIONER: ---------------- THE GENERAL SECRETARY, MAR THOMA YUVAJANA SAKHYAM, THIRUVALLA. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: ------------------ 1. STATE OF KER5ALA, REPRESENTED BY SECRETARY , DEPARTMENT OF LABOUR, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. SYRIAC ABRAHAM, KULATHUNGAL HOUSE, CHELLAKKADU, PAZHAVANGADI KARA VILLAGE, RANNI. BY ADV. SRI.M.P.KRISHNAN NAIR FOR R2 SRI.T.N.SUKUMARAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7327 of 2004 EXT.P1: COPY OF THE ORDER OF REFERENCE DATED 2.6.1992 NUMBERED AS G.O.(Rt) NO.1365/1992/LBR ALONG WITH THE CLAIMS STATEMENT OF THE 2ND RESPONDENT. EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 24.3.1993 SUBMITTED BY THE PETITIONER. EXT.P3: COPY OF THE ORDER DATED 6.10.2003 IN I.D.NO.78/1992 ON THE FILES OF THE LABOUR COURT, KOLLAM. R2' S EXHIBITS: EXT.R2(a): COPY OF CONSTITUTION OF THE MARTHOMA YUVAJANA SAKHYAM AS MODIFIED IN 1984 EXCEPT PAGES 23 AND 24. EXT.R2(b): COPY OF NOTIFICATION PUBLISHED BY THE GENERAL SECRETARY IN “YUVADEEPAM” PUBLICATION OF THE MARTHOMA YUVAJANA SAKHYAM. EXT.R2(c): COPY O RECEIPT NO.2380/91-92 DATED 25.6.1991 ISSUED TO THE 2ND RESPONDENT EVIDENCING THE CONTRIBUTION UNDER THE P.F. SCHEME. EXT.R2(d): COPY OF LETTER DATED 13.5.1985 ADDRESSED TO THE 2ND RESPONDENT INVITING TO APPEAR FOR INTERVIEW. EXT.R2(e): COPY OF MEMORANDUM OF SETTLEMENT NO.(2) 3101/90 DATED 10.1.1990 BETWEEN THE PETITIONER AND THE 2ND RESPONDENT IN THE PRESENCE OF THE DEPUTY LABOUR OFFICER, PATHANAMTHITTA. EXT.R2(f): COPY OF DISCHARGE ORDER DATED 10-7-1990 ISSUED TO THE 2ND RESPONDENT BY THE PETITIONER. EXT.R2(g): COPY OF STATEMETN OF ACCOUNT REGARDING THE RECEIPTS AN PAYMENTS MADE BY THE MAR THOMA YUVAJANA SAKHYAM FOR THE YEAR ENDED 1986 AND BUDGET FOR THE YEAR 1987. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.7327 OF 2004 ---------------------------------------- Dated this the 26th day of August, 2008 JUDGMENT The management in I.D. No.78/1992 before the Labur Court, Kollam is the petitioner herein. They are challenging Ext.P3 award of the Labour Court in that I.D. The issue referred for adjudication was: “Termination of service of Sri. Syriac Abraham Project Superintendent, Marthoma Youth Centre, Adoor with effect from 10.7.1990”. Four issues were raised by the Labour Court as follows: “1. Whether the management is an Industry as defined in Section 2(J) of the Industrial Disputes Act? 2. Whether Sri. Syriac Abraham is a workman coming within the definition of Section 2(s) of the Industrial Disputes Act? 3. Whether the discharge of the workman from the service of the management is correct and legally sustainable? 4. To what relief, if any, the workman is entitled?” All the issues were decided in favour of the workman namely, the 2nd respondent herein. On the basis of the findings the W.P.(c)No.7327/04 2 management was directed to reinstate the workman in service with 75% backwages in respect of the period in which he was kept out of employment. The petitioner management challenges the findings of the Tribunal on the first two issues, ie. as to whether the management is an Industry as defined in Section 2(j) of the Industrial Disputes and as to whether the workman is a workman coming within the definition of Section 2(s) of the Industrial Disputes Act. 2. The management would contend that since the correctness of the decision of the Supreme Court in Bangalore Water Supply & Sewerage Board V. A. Rajappa and others [(1978) 2 Supreme Court Cases 213] was doubted by five Judge bench of the Supreme Court in State of U.P. V. Jai Bir Singh [(2005) 5 Supreme Court Cases 1], and the correctness of that decision has been referred for consideration by a larger bench, the question as to whether the petitioner management is an industry should be considered in the light of the decision of the Supreme Court in The Management of Safdarjung Hospital, New Delhi V. Kuldip Singh Sethi [1970(1) SCC 735], in which case the petitioner's W.P.(c)No.7327/04 3 establishment would be outside the purview of the definition of 'industry' in Section 2(j) of the Industrial Disputes Act. The management would further contend that the Labour Court did not deal with the real contention of the petitioner management in respect of the second issue. What was considered, was only the issue as to whether the 2nd respondent is outside the purview of the definition of workman in Section 2(s) of the Industrial Disputes Act on the ground that he is employed in a supervisory capacity. The contention is that the real issue raised by the petitioner management was as to whether the 2nd respondent is a workman as defined in Section 2(s) of the Industrial Disputes Act, in view of the fact that he was employed mainly in managerial or administrative capacity. According to the petitioner management, the pleadings and the evidence in the case would go to support their case to the effect that the 2nd respondent workman was actually employed in an administrative and managerial capacity. According to the petitioner - management, this crucial question was not considered by the Labour Court. W.P.(c)No.7327/04 4 3. On the other hand, the learned counsel for the 2nd respondent workman would contend that although the Supreme Court has, in Jai Bir Singh's case, doubted the correctness of the decision of the Bangalore Water Supply & Sewerage Board's case, that decision still holds good on the question of scope of definition of the 'industry' in the Industrial Disputes Act and therefore, the Labour Court was correct in deciding the question relying on that decision. Regarding the second question, the learned counsel for the 2nd respondent would contend that the evidence in the case is sufficient to prove that the 2nd respondent workman was merely a supervisor drawing less than Rs.1,600/- per month as salary and therefore, he does not fall out of the definition of workman as defined in Section 2(s) of the Industrial Disputes Act. He would further submit that although the workman occasionally was required to do some managerial and supervisory work, predominantly his duties were merely of a supervisory nature and therefore, there is no merit in the contentions raised by the petitioner. He also relies on the decision of the Supreme Court in D.P. MAHESHWARI V. DELHI W.P.(c)No.7327/04 5 ADMINISTRATION AND OTHERS [(1983) Supreme Court Cases 293] which held that occasional entrustment of supervisory, managerial or administrative work will not take a person, mainly discharging clerical duties, out of the purview of Section 2(s). The contention is that this decision is authority also for the proposition occasional entrustment of supervisory, managerial or administrative work will not take a person mainly discharging supervisory duties, but with salary of less than Rs.1,600/- per month, out of the purview of Section 2(s)of the Act. 4. I have considered the rival contentions in detail. In Ext.P1 claim statement of the workman in paragraph 2, he stated that the Youth Centre Project was in ownership of rubber plantation, coconut plantation, camp shed which were let out for marriage parties, camps, mess hall and printing press and the administration of all those were vested with the 2nd respondent as its Superintendent. In paragraph 7, the 2nd respondent workman would further state that the records etc of the Youth Centre Project, which were under the absolute control and supervision of the 2nd respondent, were forcibly W.P.(c)No.7327/04 6 taken possession of by the management by forcing open the lock of the room, where they were kept by the petitioner. The petitioner would contend that these would go to show that the 2nd respondent was in absolute control of the entire assets of the Youth Centre and that he was in absolute administrative control of the administration of the Youth Centre. In his evidence, the 2nd respondent would categorically admit that he has done supervisory and managerial function and also clerical function equally. He also admitted that he was in absolute control of the maintenance of accounts. 5. The learned counsel for the petitioner would also point out that in the deposition of the 2nd respondent, he categorically admitted that all the assets of the Youth Centre were vested absolutely with the 2nd respondent. He would submit that these are sufficient to come to the conclusion that the 2nd respondent was actually in absolute administrative and managerial control of the entire assets and affairs of the Youth Centre and therefore, the Labour Court ought to have held that the 2nd respondent is outside the purview of the definition of 'workman' in Section 2(s ) of the I.D. Act. W.P.(c)No.7327/04 7 6. On the other hand, the learned counsel for the workman would point out that what the workman has stated is only that he was also doing some administrative and managerial function in addition to his main work which was at least of a supervisory nature. According to him, he was under the direct control of a General Secretary under whose directions only he was functioning. Apart from occasional administrative and managerial function, his main function was purely of supervisory nature and therefore, it cannot be held that the 2nd respondent was discharging duties of administrative or managerial capacity. He further points out that as held in Ext.P3 award itself, the management had treated the 2nd respondent as a workman while entering into Ext.W1 settlement before the Deputy Labour Officer, Pathanamthitta, which would estop the management from now contending that the 2nd respondent is not a workman. 7. In answer to this, the learned counsel for the petitioner management would contend that Ext.W1 settlement cannot be regarded as an adjudicatory decision on the question as to whether the 2nd respondent is a workman or W.P.(c)No.7327/04 8 not. The management entered into that settlement not because they accepted the 2nd respondent as a workman, but merely as a conciliatory measure, which would not estop them from contending in an industrial dispute that the 2nd respondent is not a workman. 8. After considering these contentions, I am of opinion that prima facie the claim statement and the evidence given by the workman himself would tend to force the conclusion that he was actually discharging duties of a managerial or administrative nature. However, I think that since the Labour Court had not specifically dealt with that question in the right perspective, the matter should go back to the Labour Court for fresh adjudication after giving opportunity to both sides to adduce additional evidence on the point particularly on the aspects as to whether the 2nd respondent had administrative control over his subordinates, such as, whether he was the leave sanctioning authority and whether he had disciplinary control over the subordinates, staff etc. The 2nd respondent is also entitled to an opportunity to adduce evidence to the contrary. For this purpose, I quash Ext.P3 award and remand W.P.(c)No.7327/04 9 the matter to the Labour court, Kollam for fresh adjudication of the dispute on the above questions, after affording fresh opportunity to the parties to adduce evidence. The Labour Court shall pass fresh award within a period of four months from the date of receipt of a copy of this judgment. I make it clear that my prima facie conclusion as above would not stand in the way of the Labour Court in considering the matter on its own independently on the basis of the evidence already on record, which I have referred to and the further evidence to be adduced by the parties. I also make it clear that the question as to whether the petitioner's establishment is an industry can also be agitated by the 2nd respondent workman, if occasion arises, again in these proceedings itself. The records of the Labour Court shall be retransmitted to the Labour Court along with a certified copy of this judgment forthwith. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.7327/04 10