IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 4743 & 4744 OF 2007 WRIT PETITION NO : 4743 of 2007 Between: The Chairperson, the Krishna District Lorry Owners Mutually Aided Coop. Stores Ltd., Head office, Governorpet, Vijayawada, Krishna District. ... PETITIONER AND 1 Y. China Sambasiva Rao S/o. Pothurajua D.No. 61-9/4-6, Ramalayam Street, Cross Road, Poornachandra Nagar, Krishnalanka, Vijayawada. 2 The Presiding Officer, Labour Court, Guntur. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction particularly one in the nature of writ of Certiorari after calling for the Records relating to the Order in ID No. 235/2002 dt. 24-11-2006 on the file of the Labour Court, Guntur and quash the same and pass such other order or orders as may deem fit. Counsel for the Petitioner:MR.M.PANDURANGA RAO Counsel for the Respondent No.: GP FOR LABOUR WRIT PETITION NO : 4744 of 2007 Between: The Chairperson, the Krishna District Lorry Owners Mutually Aided Coop. Stores Ltd., Head Office, Governorpet, Vijayawada, Krishna District. ... PETITIONER AND 1 Balasubramanyam Chandra Kaladharan S/o.a.Balasubrahmanyam D.No.26-23-10, Sundaram Street, Near Jayaram Theatre, Gandhinagar, Vijayawada. 2 The Presiding Officer, Labour Court, Guntur. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction particularly one in the nature of writ of Certiorari after calling for the records relating to the Order in ID.No.234/2002 dt. 24.11.2006 on the file of the Labour Court, Guntur and quash the same and pass such other order or orders as may deem fit. Counsel for the Petitioner:MR.M.PANDURANGA RAO Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION Nos. 4743 & 4744 OF 2007 COMMON ORDER: The petitioner herein assails a common order, dated 24.11.2006, passed by the Labour Court, Guntur, in I.D.Nos.234 and 235 of 2002, by filing these two writ petitions. The Industrial Disputes were raised by one Sri Balasubrahmanyam Chandra Kaladharan and Sri Y.China Sambasiva Rao, challenging the orders of their removal, on disciplinary grounds. For the sake of convenience, these two employees are referred to as respondents 1 and 2, respectively. The petitioner is a Mutually Aided Co-Operative Society, having its branches at various places. The owners of the lorries in the area are the members of the petitioner Society, and it was established with an object of providing service to the vehicles owned by its members. The 1st respondent was initially appointed as a Sales Clerk, and thereafter promoted to the posts of Store Keeper, Assistant Branch Manager, and ultimately, as Branch Manager. By 22.4.2002, his salary was Rs.5,252/- per month. The 2nd respondent was initially appointed as Pump Operator, and thereafter earned promotions as Sales Clerk, Store Keeper and Assistant Manager. His emoluments till 22.4.2002 were Rs.4,394/- per month. Both of them were working by that date, at Gollapudi Branch. Charge sheets, dated 16.5.2002, were issued to both the respondents, alleging that on 18.4.2002, the Stores Director, by name Sri P.Naga Bhushanam, inspected the stores at Gollapudi Branch, and he found that the cleaner of the Diesel Tanker was pouring buckets of water into it, and when asked, he is said to have replied that respondents 1 and 2 are selling different quantities of diesel oil outside, and to replenish the same, water was being poured into tanker. Respondents submitted their explanations, and thereafter, domestic enquiry was conducted. The charges leveled against the respondents were held proved, and ultimately, vide separate orders, dated 16.10.2002, the respondents were dismissed from service. Aggrieved thereby, the respondents raised industrial disputes, under Section 2-A(2) of the Industrial Disputes Act (for short “the Act”). The petitioner filed separate counter affidavits, before the Labour Court, raising an objection as to the very maintainability of the industrial disputes. It was pleaded that both the respondents were performing managerial functions, and they do not answer the description of ‘workman’, as defined under Section 2(s) of the Act. The Labour Court took up the same as preliminary issue, and on consideration of the points urged by the parties, it passed the impugned order, overruling the objection and holding that the respondents are workmen, notwithstanding the designation of their posts and the emoluments drawn by them. Sri M. Pandu Ranga Rao, learned counsel for the petitioner, submits that the 1st respondent was a Manager, having direct supervisory and managerial control over 30 persons in the branch, and the 2nd respondent had almost equal powers in the same branch. He contends that both from the point of view of the nature of functions discharged by the respondents, as well as the salaries drawn by them, they cannot be treated as workmen. Learned counsel points out that though several precedents, which are nearer to the issue, were cited, the Labour Court disregarded the same, and rejected the contention of the petitioner. Sri M.Pitchaiah, learned counsel for the respondents, on the other hand, submits that the branch of the petitioner society did not have any functional independence, and even for minute transactions, a Branch Manager; not to speak of Assistant Branch Manager, had to depend upon the instructions from the Head Office. He contends that neither any powers of appointment, nor of dismissal of subordinate employees, was conferred upon the respondents. He raises an objection as to the very exercise of taking up the preliminary issue by the Tribunal. He places reliance upon the judgment of the Supreme Court in D.P. MAHESHWARI v. DELHI ADMINISTRATION. The strong objection raised on behalf of the respondents, as to the writ petitions, needs to be dealt with, first. According to them, the very exercise undertaken by the Labour Court, in deciding the preliminary issue is untenable. It is urged that even a question as to the maintainability of the I.D., ought to have been decided along with other contentious issues, and that there was no basis for the Labour Court, to separately deal with that issue. It is also contended that the petitioner cannot be said to have suffered any detriment, on account of the answer given by the Labour Court, about the maintainability of the I.D, and that it could have urged this point also, after the final award is passed by the Labour Court, instead of filing these writ petitions. In several proceedings, particularly those before the Specialized Tribunals, it is not uncommon that preliminary objections are raised, as to the maintainability. Such instances are more before the Tribunals, when compared to ordinary Civil Courts, in view of the fact that the relevant Statutes, under which the Tribunals are created, stipulate the jurisdictional facts, on existence of which alone, the proceedings can be initiated before the Tribunals. More often than not, the exercise to ascertain the existence of jurisdictional fact, assumes grater significance, than the adjudication of the matter, on merits. It is true that in D.P. MAHESHWARI’s case1, the Supreme Court observed that the Tribunals and Courts must concentrate more on comprehensive and complete adjudication of the lis before them, than upon ‘threshold part adjudication’. However, it cannot be said that any principle as such, in this regard, was laid down, in that case. Judicial Authority is not lacking, where it was indicated that it is better that the questions touching upon the jurisdiction of the Forum is decided first, so that the parties are spared up the ordeal of proving their case on merits, in case, the objection as to the jurisdiction is upheld. At any rate, the respondents did not raise any objection, when the Labour Court took up the question as to the maintainability of the industrial dispute, as a preliminary issue. It is a different matter that an aggrieved party can assail the correctness of the finding on preliminary issue in the appeal or other proceedings against the final adjudication also. It was held in SONEPAT COOPERATIVE SUGAR MILLS LTD., v. AJIT SINGH, that an answer rendered by a Tribunal on a preliminary question, does not operate as res judicata, in the event of its not having been challenged, before the final adjudication takes place. However, no exception can be taken, if a judicial review of the order dealing with the preliminary objection sought. In many cases, such a course would save the time of the forum and expenditure of the parties. Therefore, the objection raised by the respondents cannot be sustained. While the 1st respondent was a Manager, the 2nd respondent was an Assistant Manager, in the same branch, by the time they have been dismissed from service. Therefore, the parameters, with reference to which their cases are to be decided, cannot be the same. The definition of ‘workman’ under Section 2(s) of the Act is more illustrative, than exhaustive. The fixed parameters that can be discerned out of it, are that if an employee does not discharge any managerial functions, he answers the description of a ‘workman’. Even where an employee is discharging managerial functions, he would still be treated as a workman, in case, his wages are below those stipulated in the definition. It is not in dispute that the 1st respondent is drawing salary, in excess of what is stipulated under the Section. Therefore, the only controversy would be, as to whether the nature of functions discharged by him, are managerial and supervisory in nature, or otherwise. The plethora of authorities relied upon by the petitioner before the Labour Court were to the effect that the manager of the unit of a company would be exercising the managerial and administrative functions, and employees, such as, Site Engineers performing supervisory duties, Managers of a Retail unit of a Shoe Company, Development Officer of LIC, Paid Secretary of a Primary Agricultural Cooperative Society, are not workmen. In view of the description of the 1st respondent and the fact that he was having direct control over 30 employees in the branch, with the powers to grant leave etc, a further verification become necessary to clear the doubts, in this regard. The 1st respondent was examined as WW-1, even at the stage of preliminary enquiry. In the cross-examination of this witness, the following information was elicited: “… It is true that I was the Head of Gollapudi Branch. I used to recommend leaves of employees in Gollapudi Branch. I used to report about the absence of the employees in Gollapudi Branch. It is true that I was responsible for all the matters in Gollapudi Branch. I was responsible for cash and properties of the Gollapudi Branch. I used to check Stock Registers, Attendance Register and other registers maintained by the Store Keeper. It is true that I was entrusted to petty cash of Rs.2,500/- for incurring minor expenses in the Branch. I used to maintain petty cash register for the expenses. It is true that I used to collect cash from Sales Clerks and deposit the same in the Bank on the next day. It is true that I used to send daily statements of sales in the Branch. I used to check the statements prepared by the Store Keeper for the oils and lubricants and send it the same to the office. When the Store Keeper was on leave, I used to send the above statement and send the same to the Head Office. I used to send monthly returns to the MRO. It is true that I used to recommend increments of employees in Gollapudi Branch.” From this, it clearly emerges that the 1st respondent had all the attributes of a person, who is vested with the power to supervise, and to exercise managerial control over the concerned Branch. The submissions made before the Labour Court was that he was only a glorified clerk, and for everything, he has to depend upon the approval by the Head Office. It has to be kept in mind that in every Organization, the ultimate control will be of the Head Office. Notwithstanding the same, the heads of the units or Branches are granted freedom to take decisions up to certain limits. One cannot come across an instance, where a unit can function without any interference or control by a Head Office or Zonal Office. The reasons adopted by the Tribunal, for treating the respondents herein as workmen, are as under: “Here the petitioners are designated as Branch Manager and Assistant Branch Manager. In fact they have no independence to take independent decision at least to grant leave to certain employees, but they have to report every thing to the Head Office and they have to seek instructions from the Head Office. Hence mere incidental, supervisory and managerial functions do not make the petitioners as officers. But on the other hand, they have been discharging clerical duties such as maintaining accounts, stock registers sending weekly statements collection of cash from sales clerk and remit the same in the bank on the next day. It is nothing but clerical work. Hence, I hold that the petitioners are workmen within the meaning of Section 2(s) of the ID Act. The issue meaningful is found in favour of the petitioners and against the respondent.” The mere fact that an employee, who is working as a Manager, in its true sense, prepares statements, maintains accounts etc, cannot put the mantle of workman upon him. On the other hand, such functions only tell upon the managerial responsibility of the individual. Therefore, the finding recorded by the Labour Court, as regards 1st respondent, cannot be sustained in law. The 2nd respondent, however, stands on a different footing. He is only an Assistant Manager. He is not conferred with the powers that are exercised by the 1st respondent. His limited power surfaces only when the 1st respondent is absent. Here again, he is accountable to the 1st respondent. Barring this, his functions are purely clerical in nature. Occasional or remote possibility of the 2nd respondent functioning as a Manager, in the absence of the 1st respondent, cannot be treated as a factor to put him in the managerial category. Therefore, the answer given by the Labour Court in I.D.No.235 of 2002, filed by the 2nd respondent, though through a common order, does not warrant interference. For the foregoing reasons, W.P.No.4744 of 2007 is allowed, and I.D.No.234 of 2002, on the file of the Labour Court, Guntur, is held not maintainable, on the ground that the 1st respondent does not answer the description of “workman”. It is left open to the 1st respondent i.e. Balasubrahmanyam Chandra Kaladharan, to work out his remedies before any other Forum, in accordance with law. W.P.No.4743 of 2007 is dismissed, and the Labour Court shall proceed to decide I.D.No.235 of 2002, on merits. There shall be no order as to costs. ________________ 23rd April 2008 Note: L.R. copies to be marked. (B/o) PAN