W.P.No.3851.99 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3851 OF 1999 Shri Keshav Dadasaheb Jadhav ... Petitioner v/s TATA Engineering & Locomotive Co. Ltd. ... Respondent Mr.A.S.Rao for the petitioner. Mr.J.P.Cama with Mr.K.S.Bapat, Anupam Surve, A. Mehta i/by M/s.Haresh Mehta & Co. for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 24TH FEBRUARY, 2011 ORAL JUDGMENT: 1. The petition challenges the orders passed by the Labour Court in Complaint (ULP) No.128 of 1995 and by the Industrial Court in Revision Application No.64 of 1997. The Labour Court by its order held that the petitioner was not “an employee” as defined under Section 3(5) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (in short, the MRTU & PULP Act) and hence the complaint itself was not maintainable. The W.P.No.3851.99 2 Industrial Court has confirmed this decision of the Labour Court. 2. The petitioner was employed initially as a Fitter. He was promoted as a Chargeman in Grade S/III. It appears that the services of the petitioner were terminated by the simple discharge. The respondent Company paid retrenchment compensation to the petitioner by way of abundant precaution. 3. Aggrieved by the decision of the respondent Company to terminate his services, the petitioner filed a complaint under Item 1 of Schedule IV of the M.R.T.U. & P.U.L.P. Act contending that the respondent Company had committed unfair labour practices under Items 1(a), (b), (d) and (f) of the M.R.T.U. & P.U.L.P. Act. He contended that he was a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 (in short, the I. D. Act) though labelled as a supervisor. It was further pleaded that the action of the respondent Company was contrary to the Standing Orders applicable and the provisions of the I.D. Act. 4. A written statement was filed by the respondent Company in which it was contended that the complaint itself W.P.No.3851.99 3 was not maintainable because 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” as defined under Section 2(s) of the I. D. Act. On merits it was pleaded that the petitioner had taken money from the persons who are in need of a permanent employment with the respondent Company. 5. Evidence of the petitioner and two witnesses for the respondent Company was led. Documentary evidence was also produced by the respondent Company to establish its case that the petitioner was not a workman. 6. The Labour Court, on appreciating the evidence on record has found that the petitioner was a supervisor. He was responsible for the supervision over both men and machines. The petitioner was responsible for assessing the work of probationers as well as regular work. Besides this he was empowered to recommend leave and to sign production reports. The Labour Court, therefore, dismissed the complaint by concluding that the petitioner was not “a workman”. 7. Aggrieved by the decision, the petitioner approached W.P.No.3851.99 4 the Industrial Court in revision. The Industrial Court has confirmed the findings of the Labour Court after a detailed assessment of the evidence on record. Although the scope of the revision application is very limited under Section 44 of the M.R.T.U. & P.U.L.P. Act, and the Industrial Court was not required to assess the evidence afresh, it has done so. It is well settled that under Section 44 of the M.R.T.U. & P.U.L.P. Act, the powers of the Industrial Court are akin to the jurisdiction of this Court under Article 227 of the Constitution of India and, therefore, are limited to ascertain whether the findings of the Labour Court need to be interfered with because of some perversity. However, in the present case, the petitioner has not been caused any prejudice because the Industrial Court has considered the evidence afresh. The Industrial Court again has on the basis of the documentary evidence as well as the oral evidence on record concluded that the findings of the Labour Court are correct and that the petitioner was not “a workman” as defined under Section 2(s) of the I.D.Act and, therefore, “an employee” under Section 3(5) of the MRTU & PULP Act. 8. Mr.Rao, the learned advocate for the petitioner submits that the petitioner did not possess any independent powers to either appoint persons, sanction leave or take disciplinary W.P.No.3851.99 5 action against employees. According to him, merely because the petitioner signed the production reports or recommended leave and had general powers of supervision over men and machines, it cannot be said that the petitioner is not a workman. He submits that the evidence on record indicated that the powers vested in the petitioner were very limited as he had no authority to take any action independently but could only recommend action to be taken by the respondent Company. He relies on the judgments of this Court in the case of National Engineering Industries v/s Kishan Bhageria & ors., reported in 1988 I C.L.R. 290, and the judgment of a learned Single Judge of this Court (Rebello, J. as he then was) in the case of Cricket Club of ndia & anr. v/s Baljit Shyam (Mrs.) & anr., reported in 1998 I C.L.R. 570, in support of his submissions. 9. Mr.Cama, learned counsel for the respondent Company argues that the evidence on record indicates that though the petitioner was initially appointed as a Fitter, he was promoted to Chargeman Grade S/II in the year 1990 and Grade S/III in the year 1993. On both occasions his basic salary had been enhanced. When he was appointed as Chargeman Grade S/III, supervising allowance, house maintenance allowance and L.T.A. had been increased. W.P.No.3851.99 6 Mr.Cama draws my attention to the daily production reports which were filed before the Labour Court. All these production reports indicate that the petitioner had signed the same as “In-charge”. The learned counsel then points out the leave card of an employee. This leave card bears the signature of the petitioner as the recommending authority. Besides this, he points out the assessment records of individual workman, both probationers as well as regulars. These records bear the name of the petitioner as the immediate supervisor. My attention has also been drawn to the deposition of the petitioner. He was examined as a witness on behalf of the management in a domestic enquiry held against one Galtange. The petitioner has described his duties in the statement made before the enquiry officer. 10. In my view, since both the Courts below have found, as a matter of fact, that the petitioner is not a workman, there is no need for me to interfere with the findings recorded by the Courts below. The powers of this Court under Article 227 are limited and it would not be appropriate for me to assess the evidence as an appellate Court. However, in order to ascertain whether either of the Courts below have, by declaring that the petitioner is not a workman, committed any error, I have with the assistance of the learned advocates W.P.No.3851.99 7 appearing for the parties, perused the evidence on record as well as documents which were produced before the Labour Court. The petitioner in his evidence has not been able to sustain his contention that he was a workman. In his examination-in-chief he has said that he had no control over the working of about 30 to 35 employees working under him except for recommending leave. In his cross-examination he has admitted that the production reports and assessment reports were signed by him. The first witness examined on behalf of the Company has given a general description about the work expected from an employee who is in Grade S/III. However, he was candid enough to state that he had no direct supervision over the petitioner. The other witness examined on behalf of the respondent Company was the Deputy Manager. He has deposed that the petitioner was working under him along with five other supervisors of Grade S/III. He has described the powers vested in the petitioner by the management and the responsibilities conferred on the petitioner. 10. From the documents on record, it is obvious that the petitioner was not a workman. In fact, when he was examined before the enquiry officer in the enquiry conducted against Galtange, he has described the nature of his work, W.P.No.3851.99 8 thus - “My nature of work includes distribution of work to each workers, to see whether there is any shortage of material, to look into the problems of workers, to maintain discipline and cleanliness in the shop and to see whether the workers do their work properly or not.” He has stated that Galtange was working under him as a auto-mechanic. It is obvious that when he was examined before the Labour Court, the petitioner shied away from mentioning these details in his deposition. It is true that the nomenclature by itself does not indicate whether a person is a workman as defined under Section 2(s) of the I.D.Act or 3(5) of the MRTU & PULP Act. However, in the present case, besides being described as a supervisor Grade S/III, the petitioner has in fact worked to supervise men and not machines. Mr.Rao’s submission that he was supervising both men and machines, has not appeared to be correct. It is well settled that a person who supervises the men as opposed to supervising machines, would not be a workman as defined under Section 2(s) of the I.D.Act. Moreover, there is no material on record to indicate that the petitioner falls in any of the categories mentioned in Section 2(s). In the case of H.R. Adyanthaya etc. v/s. Sandoz (India) Ltd., reported in 1994 II CLR 552, the Supreme Court has held that the workman must describe the actual category that he falls in, W.P.No.3851.99 9 namely, manual, unskilled, skilled, technical, operational or clerical category. He cannot contend that because he does no managerial or supervisory or administrative work is a workman. The judgments in the case of National Engineering Industries (supra) and Cricket Club of India (supra), were delivered prior to the judgment in the case H.R. Adyanthaya etc. v/s. Sandoz (India) Ltd., (supra). In any event, in my opinion, there is no need to interfere with the concurrent findings of fact of both the Courts below in writ jurisdiction of this Court under Article 227 of the Constitution of India. 11. Hence, the writ petition is rejected. 12. Rule discharged. No order as to costs. ..... W.P.No.3851.99 10