C.W.P No.2290 of 2008 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.2290 of 2008 Date of Decision: 14.07.2009 S.N. Goswami .....Petitioner Versus Presiding Officer, Labour Court-II and another ....Respondents Present: Mr. C.M. Chopra, Advocate for the petitioner. Mr. P.K. Mutneja, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ?Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K. KANNAN J. 1. The award rejecting the reference that the claimant had raised through an industrial dispute is the subject of challenge in the writ petition. The twin contentions raised on behalf of the workman are on the points that were held against him namely: (i) he did not qualify for the definition 'workman' under the Industrial Disputes Act to resort to any relief under the Act; (ii) the finding of voluntary abandonment of service by the Labour Court was unjustified, while the termination of service without an enquiry was clearly against law. 2. The contention on behalf of the petitioner was that he was working as Senior Engineer with M/s Tecumseh Product India Pvt. Ltd. since 29.04.1998. He had formed a trade union and on 17.06.1998 moved an application for its registration before the C.W.P No.2290 of 2008 -2- Registrar of Trade Unions, Haryana. The management had pressurized the petitioner not to form the Union, and being peeved at not being heeded to deliberately served on him an order of transfer from Faridabad to Hyderabad on 11.11.1998. Then the Union had made a complained to Registrar of Trade Unions about victimisation practised, which directed the management not to victimize the office bearers of the Union. According to the petitioner, he had been served with an order of termination on 06.01.1999 without conducting any enquiry. 3. A demand notice served on 19.01.1999 was the starting point that set the tussle to the next stage and after the Government made a reference on 09.07.1999, the Labour Court undertook the adjudication and ultimately found that the petitioner was not a workman and denied the reliefs as sought for by him. 4. The first contention raised on behalf of the workman was that the mere designation that he was a Senior Engineer or the fact that he was drawing a salary of more than Rs.9,000/- was irrelevant to consider that he was not a workman. According to him, neither the nomenclature nor the salary was relevant and while he had placed evidence to the effect that he had not been doing any supervisory or managerial functions as Senior Engineer, the management had not let in any oral evidence at all in support of the contention that the duties of a Senior Engineer were either supervisory or managerial and not merely manual work to disentitle him to the claim to the status as a workman. According to the learned counsel, Sh. Chopra appearing on behalf of the workman, the petitioner had been merely working on the C.W.P No.2290 of 2008 -3- machines and the lofty designation assigned to him did not detract from the fact that he was only a workman. The Labour Court in its award referred to a decision in Young Women's Christian Association of India Vs. Smt. Jyotsna Paul 2005 (2) SCT 6 (Delhi H.C.) and Karnataka Bank Ltd. Vs. Sunita B. Vatsaraj (Smt.) 2007, LLR, 923 (Bombay H.C.) to hold that he was not doing any manual work and was not a workman. Adverting to the evidence of the workman himself, the Labour Court observed that he started his job as a Diploma Trainee on 08.11.1986 in Kelvinator of India and promoted as Senior Engineer in Kelvinator which was later on taken over by Whirpool of India Ltd. Thereafter, his services were again transferred to M/s Tecumseh India Pvt. Ltd. in the year 1997 from Whirpool of India Ltd. and continued his services uninterruptedly. A settlement had been effected between workmen and the management at the time when the take over by M/s Tecumseh India Pvt. Ltd. was made under Ex.M-15 and settlement did not make any reference to him. The Labour Court made reference also to his career progress from a Trainee later appointed as a Supervisor before finally being promoted as a Senior Engineer at the time of his transfer. On the admission made by him in the cross-examination, that whatever grade was given to him, it was separate from the settlement that took place between the company and the workmen, the Labour Court found that he could not have been a workman. It also observed that no documentary evidence had been produced by the claimant that he was working on a manual job at the time of his transfer to Hyderabad. Drawing strength from the conclusion made in Young Women's Christian Assocaition of C.W.P No.2290 of 2008 -4- India's case referred to above that a catering supervisor who had worked as a store keeper or a cook, could not be a workman as well as the judgment in Karnataka Bank's case (supra) where the employment of the Branch Manager of a bank may not be holding supervisory capacity, having managerial capacity, the Labour Court found that such a person could not be a workman. 5. The main thrust of the arguments on behalf of learned counsel for the petitioner was as against the evidence of the claimant, there was no evidence at all which was placed by the management to show that he was performing supervisory or managerial functions to be disqualified for the applicability of the term workman to his status. He referred to a decision of the Hon'ble Supreme Court in S.K. Verma Vs. Mahesh Chandra and another 1983(4) SCC 214 that held that even a Development Officer, who had not shown to have any participation in administrative or managerial functions is a workman. He also referred to the decision in Anand Bazar Patrika Vs. Its workmen 1959 II LLJ 13 that held that an employee doing manual, clerical work and occasionally discharging some duties of a supervisory nature to be only a workman with the definition of Section 2-S of the Industrial Disputes Act. General Manager, Kores (India) Ltd. and others Vs. Presiding Labour Court, Sambalpur and another 1999 LIC 2569 dealt with a case of an employee working as a Service Engineer and drawing salary of Rs.3,400/- per month where a Division Bench of the Orissa High Court held that in the absence of any material to show that his work was managerial or supervisory in nature, he should also be treated as a workman. According to the C.W.P No.2290 of 2008 -5- learned counsel, this judgment was a clear answer to the case at hand and referred to evidence in the case and the reasoning which went as "it was, however, admitted that while working as Service Engineer he was promoted to the post of Senior Service Engineer and the job entrusted to him was installation, servicing and repair of xerox machines. No evidence whatsoever was let in by the petitioner to support the contention that his work was managerial or supervisory in nature although admittedly he was drawing salary of Rs.3,400/- per month." 6. In reply, to the contentions raised by learned counsel for the petitioner, Sh. Mutneja, learned counsel appearing for the management would refer to Ex.M-8 under the terms of which the petitioner had been appointed as a Supervisor whose functions as per the letter of appointment included as per Clause 6 that: "Your services may be utilized in any of the offices or branches or any department of the Company in India and for this purpose you are liable to be transferred for duty anywhere in India, in the existing branches/establishments and also to new branches/establishments that we started by the Company at a later date. You may be required to come in shifts." 7. Ex.M-7 that was issued subsequent to the merger of operations of Whirpool with M/s Tecumseh India Prvt. Ltd. made reference in the letter addressed to the petitioner that "...The market conditions evisages intense competition and each one would have to contribute to his best to gain competitive advantage. The proposed C.W.P No.2290 of 2008 -6- earning scheme incorporates the potential to earn variabale earnings based on your individual and team contribution on the following factors" Marketing Works Meeting contribution target Meeting Production/quality targets Meeting collection target Meeting consumable/cost reduction targets Meeting stock limits Meeting inventory norms 5S Performance 5S Performance Raising NCR's Raising NCR's Quality in own area Quality in own area 8. The same letter also states as follows:- "....Since it would be a new earning scheme we would be providing for the following adjustments during the first six months. The variable earnings wouldbe disbursed @20% of your cash emoluments even if your actual variable earning fall short of that and the remaining would be debited to your suspense account. However, if the variable earning is higher than 20% of the cash emoluments, it would be disbursed straight away after adjusting any previous debit balances. The details of the scheme would be announced shortly but not later than June 15, 1998....." 9. Ex.M-7 making reference to the challenges of competition and the areas of working that the petitioner would be expected to be engaged in, may seem like, it cannot be decisive to say that he was in the managerial cadre. Looking at it from another angle, if he was merely a workman, it would be inconceivable that the management could have informed to him about their market conditions, meeting contribution targets and several other factors which had been dealt C.W.P No.2290 of 2008 -7- with in that letter. It is inconceivable again that an ordinary workman doing manual or clerical job will be addressed with the communication that talks about the management goals. 10. Assuming that in the modern days of management, the workers are given primacy in participation in the management and they are apprised of the goals of production and management, their reference must definitely be considered weightily for determining whether he was a workman or not. A factor of some importance, which will have a definite bearing that the petitioner was expected to answer again, would be the fact that the settlement between the workmen and the new management did not have any relevance to him. He had lot of explanation to give as to why the settlement was not applicable to him. It is only in this context that the recent trend in law as laid down by the Hon'ble Supreme Court assumes significance. 11. The question is not always whether the management is able to show that a particular person who claims to be workman was full- fledged incharge of supervisory or managerial functions or was associated in administrative decisions. The question to be raised at all times in such types of cases is whether the person is associated only with, what is assigned to the workman namely of manual work, skilled or unskilled, technical or operational, clerical or supervisory jobs and if his jobs are confined only to the above class of work, it could be said that the person had established that he was a workman. There shall be, however, a shift of emphasis from what the workman needs to show that he was doing managerial and administrative functions to what the workman is bound to show that he was not C.W.P No.2290 of 2008 -8- doing only manual, clerical or supervisory functions. This approach is brought out through a Constitution Bench of the Hon'ble Supreme Court in H.R. Adyanthaya and others Vs. Sandoz (India) Ltd. 1994 (5) SCC 737 where the Hon'ble Supreme Court said that even a person who does not perform manual or supervisory duties, with a view to hold that he was a workman, it must be established that he performs skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward. The decision of the Constitution Bench was particularly noted as significant in Mukesh K. Tripathi Vs. Senior Divisional Manager, LIC and others 2004 (4) RSJ 465 which examined a question whether an Apprentice Development Officer in LIC did not perform any skilled, unskilled, manual, technical or operational job of a workman. It held that the decision in S.K. Verma Vs. Mahesh Chandra (supra) did not consider or refer to the decision in M/s May and Baker (India) Ltd. Vs. Workmen AIR 1967 SC 678 that held a sales representative to be not a workman and to other decisions in Western India Match Co. Ltd. Vs. Workmen (1964) 3 SCR 560 and Burmah Shell Oil Storage & Distribution Co. of India Vs. Burma Shell Management Staff Association (1970) 3 SCC 378. The Three-Bench of the Hon'ble Supreme Court held in Mukesh K. Tripathi's case that S.K. Verma Vs. Mahesh Chandra did not notice the earlier decisions and the decision must be taken as per incuriam. 12. Learned counsel for the petitioner, however, refers to the decision of the Hon'ble Supreme Court by Two-Member Bench in LIC of India Vs. R. Suresh 2008(3) RSJ 232 where the Hon'ble C.W.P No.2290 of 2008 -9- Supreme Court referred to S.K. Verma and Mahesh K. Tripathi and still held that the Development Officer in LIC was a workman. According to the learned counsel for the petitioner, S.K. Verma's case still holds the field and it was not expressly over-ruled in any decision. While LIC of India Vs. R. Suresh has not expressly over- ruled S.K. Verma, it can be noticed that it distinguished Mahesh K. Tripathi only on the ground that it dealt with the case of an apprentice and hence was not applicable to the case in LIC of India Vs. R. Suresh. Even the Constitution Bench did not go as far as to say that S.K. Verma was wrong though the Five-Member Bench clearly laid down that decision in S.K. Verma must be understood as being confined to the facts of the said case only. 13. On a consideration of all the decisions, I am of the view that the most decisive fact of whether a particular person was a workman or not, shall depend on the evidence that he has adduced. It shall not rest on either the designation or the salary. The burden shall be only on the person claiming that status to establish that he did not do anything more than what the definition of workman found under Section 2-S of the Industrial Disputes Act stipulates. The status cannot be shown from what the management failed to prove. In this case, the tenor of the communication under Ex.M-7, the non- applicability of the settlement between the workmen and the management to the petitioner and the heavy burden that was on the petitioner to establish that he was a workman doing only the functions as stipulated under the Section shall be taken to be facts against him to find that he is not a workman. C.W.P No.2290 of 2008 -10- 14. The issue of whether he was validly terminated from service does not obtain importance but it requires to be considered for the sake of completion as regards the contention raised. Learned counsel appearing for the respondent, Sh. Mutneja admits that there was no enquiry that preceded the order of termination. However, he would point out that the petitioner had never joined at Hyderabad as was required of him in respect of two or three communications that had been sent to him, directing him to join at Hyderabad, there was no response at all and the order of termination in such case was perfectly justified since the law did not require any detailed procedure for enquiry. According to him, if the workman had not responded to notices and did not join work, it should only be taken that there was a voluntary abandonment of service. He referred to a decision in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. and others (2005) 5 SCC 337, which dealt with the case of a bipartite settlement of workmen with the bank that provided under Clause 2 that voluntary cessation of employment as a justification for termination of service was approved by the Hon'ble Supreme Court. That was a case where the leave period had expired and in spite of repeated opportunities given to the workman, the workman, except for asking for grant of medical leave, did not submit any explanation for his absence to satisfy the management that he had not taken up any other employment or avocation or that he had no intention to not joining duties as required under Clause 2 of the settlement. The Hon'ble Supreme Court found that even the application for grant of medical leave had not been annexed with any medical certificate and even C.W.P No.2290 of 2008 -11- such a leave was sought for only much after the period when the leave was over and found the request to be not bona fide. The Hon'ble Supreme Court held in that case that Clause 2 of the Bipartite Settlement could be used to compulsorily retire the workman as voluntary abandonment of the services of the workman. Learned counsel makes particular reference to para 20 of the judgment that holds: "It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice." It must be noticed that the Hon'ble Supreme Court upheld the decision to compulsorily retire in terms of what is provided under the Bipartite Settlement that a voluntary abandonment of service could be a ground for such compulsory retirement. We are not dealing with the case of any specific clause that provides for such termination of service, as was available in the decision of Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. and others referred to supra. In a still later judgment also, the Hon'ble Supreme Court had held that even a provision in the standing order providing for automatic termination of service must be so construed as to read the principles of natural justice into such a provision. M/s Lakshmi Precision Screws Ltd. Vs. Ram Bhagat AIR 2002 SC 2914 was a case where the management's reliance was on the C.W.P No.2290 of 2008 -12- Industrial Employment (Standing Orders) Act providing for automatic termination to be still available if the action of the employer terminating the service of the employee neither depicted acceptability of doctrine of natural justice nor the concept of fairness and a mere letter issued to an employee after 10 days of absence intimating that the employee's name had been struck off was disapproved by the Hon'ble Supreme Court. The termination of service for a failure of the petitioner to respond to the notices directing him to join at Hyderabad on a stand-alone basis cannot amount to a valid termination order but still I am of the view that the petitioner may not have any remedy since he does not fulfill the character as a workman to claim any benefit under the provisions of the Industrial Disputes Act. 15. The decision of the Labour Court finding that the petitioner was not a workman is upheld for the reasons stated in the order as well as for the additional reasons given in this judgment through reference of the decisions of the Hon'ble Supreme Court. The writ petition, therefore, fails and accordingly dismissed. No costs. (K. KANNAN) JUDGE July 14, 2009 Pankaj*