1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 654 OF 2000 IN WRIT PETITION NO. 300 OF 1997 Reliance Petrochemicals Ltd. .......Appellant (Ori.Respondent) versus Kulwant Singh ....... Respondant. (Ori. Petitioner) Mr. C.U. Singh Sr. adv. A/w Mr. S.K. Talsania Sr. adv. & Ms. J.M. Sidhwa i/b M/s. A.S. Dayal & Associates for the Appellant Mr. J.P. Cama, Sr. adv. A/w Mr. Arshad Shaikh i/b Mr. R.M. Pethe for the resposndent. CORAM: S. B. MHASE & R. V. MORE, JJ. DATED: 28th AUGUST, 2008. P.C.: 1. The appellant by filing this appeal, take exception to the judgment and order dated 26-11-1999 passed by the learned Single Judge in Writ Petition No.300/97. By the said judgment and order the Writ Petition filed by the respondent was allowed, thereby setting aside the order dated 10th May 1996 passed by 2 the Labour Court rejecting respondent's reference by recording negative finding on preliminary issue regarding maintainbility of the reference. The brief facts for the disposal of the present appeal are as follows: 2. The respondent is an Ex-naval Personnel and after serving Indian Navy as a Gunner, took employment with appellant as Security-cum-Administrative officer with effect from 14-7-1989. The appellant confirmed services of the respondent on satisfactory completion of probation period with effect from 9- 11-1990 and thereafter the respondent continued to render his services till same were terminated on 28-6-1991. The termination of services were effected without issuing any notice or charge sheet. The respondent thereafter approached the machinery provided under Industrial Disputes Act by raising a demand for reinstatement with full back wages and continuity of service. The matter was taken up in conciliation by Conciliation Officer and failure was recorded as no settlement took place. Hence the respondent's demands were referred for adjudication by State Government being Ref. (IDA) No.827 of 1992 to the Labour Court. 3. The appellant before the Labour Court raised the preliminary objection as to the maintainability of the said reference by contending that the respondent was not workman within the definition of section 2(s) of the Industrial Disputes Act 3 in as much as he was appointed as Administrative Officer and had been discharging the managerial, administrative and supervisory functions. 4. The Labour Court after considering the evidence led by the parties interalia held that the respondent was an employee mainly for administrative purposes, and any other work which he has termed as the work of clerical nature was only incidental in the employment in administrative capacity and therefore respondent clearly falls within the excluded category of definition of workman under section 2(s) of the Industrial Disputes Act. In view of the finding recorded in the preliminary issue, the Labour Court rejected the reference on 10-5-1996. 5. The legality and correctness of the award of the Labour Court was challenged before this court by filing Writ Petition No.300/97. The learned Single Judge, by his order which is impugned in the present appeal was pleased to allow the Writ Petition and consequently Labour Court' s order came to be set aside and the preliminary issue raised in the Labour Court was answered in favour of the respondent. The matter was remanded back to Labour Court to consider other issues raised in the dispute in accordance with the law. As stated earlier this order is under challenge in the present appeal. 6. Mr. C.U. Singh and Mr. S.K. Talsania, senior advocates, submitted that the respondent was appointed as supervisory- 4 cum-administrative officer. They further submitted that the Labour Court after referring the terms and conditions of the service of the respondent and actual duties performed by him, rightly came to the conclusion that the principle job of respondent was administrative in nature, however the learned Single Judge committed error in reversing this finding. They also submitted that though the designation of the employee may not itself be the determining factor, however, the designation is not irrelevant but same often gives clue as to the true nature of duties being performed by the concerned employee. They further submitted that in order to fall within the definition, a person must be employed to do any of the categories of work namely manual, clerical, skilled, technical or operational etc. and it is not enough to show that he is not covered by any of the four exceptions of the definition. It was further submitted that it is for the respondent to discharge the burden to prove that he is workman as contemplated under section 2(s) of the Industrial Disputes Act however the learned Single Judge wrongly shifted this burden on the petitioner. The learned counsel took us through the letter of appointment order of respondent to show that he was appointed to administrative post. They also invited our attention to the pleadings of the parties an d the list of documents produced before the Labour Court and submitted that the respondent was appointed to administrative post although occationaly he has 5 performed some supervisory functions. It was further submitted that the respondent was looking after various sections of the company like transit accommodation, furniture and also looking after house keeping, equipments and thus nature of duties performed by the respondent actually indicate that he was administratively managing the office work of the petitioner company. The learned counsel relied upon Apex Court's decision in: 1. H.R. Adyanthaya and others Vs. Sandoz (India) Ltd. And others reported in (1994) 6 S.C.C. 737, 2. Mukesh K. Tripathi Vs. Senior Divisional Manager, LIC and others reported in (2004) 8 S.C.C. 387, 3. Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh reported in (2005) 3 S.C.C. 232, 4. Electronics Corpn. Of India Ltd. Vs. Electronics Corpn. Of India Service Engineers Union reported in (2006) 7 S.C.C. 330 and 5. Decision of the learned Single Judge of this Court in Mukund Staff and Officer;s Association Vs. Mukund Ltd. Reported in 2008 (2) Mh.L.J. 416. 7. Per contra Mr. Cama learned senior counsel supported the impugned judgment and order. It was submitted that the designation of the respondent as security-cum-administrative officer was of little consequence. He submitted that the law is well settled that it is not the designation but nature of duties 6 being performed by the employees is the determining factor. He submitted that the respondent was only a workman being mainly doing clerical job though on occasions had to do even manual work. He also submitted that the respondent had no independent power to appoint, to dismiss an employee and to initiate disciplinary proceedings against him. He submitted that the labour court committed serious error in coming to the conclusion that the respondent is not a workman on the basis of duty list which was not even proved by it, and the learned Single Judge correctly appreciated the facts and reversed the finding of the Labour Court. He further submitted that there is presumption that reference is validly made and it is for the company to prove its case. He submitted that in the pleadings of the petitioner, no duties are given. He also submitted that the respondent' s evidence is sufficient to show that he was not appointed in managerial and administrative capacity. He relied upon a judgment of the Apex Court in Anand Regional Co-op Oil S. Union Ltd Vs. Shaileshkumar Harshadbhai Shah reported in 2006 III CLR 512 and the judgment of learned Single Judge of this Court in Manganese Ore (India) Limited Vs. Union of India & ors. Reported in 2001 III CLR 235. 8. Having considered the argument advanced by the senior counsel for the respective parties and having gone through the impugned judgment and orders along with the compilation of 7 the writ petition and annexures thereto as well as the decisions of the Apex Court and this court, we are of the considered opinion that there is no merit in the appeal and no interference is required. 9. There is no dispute about the proposition laid down by the Apex Court in 1. H.R. Adyanthaya and others Vs. Sandoz (India) Ltd. And others reported in (1994) 6 S.C.C. 737, 2. Mukesh K. Tripathi Vs. Senior Divisional Manager, LIC and others reported in (2004) 8 S.C.C. 387, 3. Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh reported in (2005) 3 S.C.C. 232, cases (supra). In all decisions the Hon'ble Apex Court held that a person to be a workman under Industrial Disputes Act must be employed to do the work of any of the categories namely manual, skilled, technical and objectional, clerical or supervisory and the same must be established even if a person is not performing managerial or supervisory duties. There is also no dispute about the settled proposition that for determining the question as to whether a person employed in an industry is a workman or not, not only the nature of work performed by him but also the terms of appointment in the job performed are also relevant for consideration and the mere designation of a person is not the 8 determining factor. The respondent in his pleadings has specifically stated that he was looking after the distribution of salary slip, stationary, mails etc. It is also pleaded that the respondent was looking after the repairs of vehicles, delivery of electricity and telephone bills and nothing more than that. On the contrary the written statement of the petitioner does not give any indication of duties and responsibilities of the respondent. The petitioner only contended that the respondent does not fall within the four corners of section 2(s) of the Industrial Disputes Act. However no particulars were disclosed. 10. The petitioner in order to substantiate its case relied upon two duty lists , one at Exh. C-3 and another one, which is not exhibited. The first duty list at Exh. C-3 was admittedly not issued to the respondent and there is nothing on record to show that the said duty list was actually given to the respondent. This said duty list was denied by the respondent. Therefore no reliance can be placed on this duty list. The another duty list which was relied upon by the petitioner was not even part of the record and the same was produced by the petitioner in Conciliation proceedings and it was not meant to be produced before Labour Court. The learned Single Judge had also refused to rely upon the duty list and in our opinion, rightly, in the above circumstances. Therefore, the petitioner cannot get support of this duty list in order to contend that the duties performed by the 9 respondent are managerial or administrative capacity. The petitioner also cannot rely upon the appointment letter under which the respondent though was appointed as security-cum- administrative officer, the same does not lay down any duties of the respondent. 11. The petitioner also relied upon the evidence of witness Venketesh to substantiate their contention that the respondent was not a workman. It was pointed out that the respondent was empowered to allot quarters to the officers, he was also authorised to allot transit accommodation and the respondent used to certify the bills from different parties who have supplied materials to the residential quarters etc. It was also pointed out that he was looking after the repairs of vehicles, delivery/payment of electricity and telephone bills. We have also perused the evidence in this regard. Witness of the petitioner Venkatesh in his cross examination admitted that the power of allotment of quarters is vested with the committee and the respondent had no such power. There is no evidence about the fact that the respondent used to allot transit accommodation. What the respondent used to do was to take back possession of the premises after concerned employee has vacated the quarters after satisfying himself that whether the quarters were properly cleaned or not. So far as the contention that the respondent used to certify the bills are concerned, after perusal of the evidence, we 10 find that the respondent was not given any power to sanction the same and he used to just check the bills. The job of payment of electricity and telephone bills and the repairs of vehicles also cannot be said to be in managerial or administrative capacity. Taking into consideration over all duties performed by the respondent, we are of the opinion that same are not in the capacity of either managerial or administrative. 12. The respondent in para 3 of his pleading, as stated above, has stated that he was looking after distribution of salary slip, stationary, mails etc. He has further stated that he was also looking after repairs of vehicles, delivery of electricity and telephone bills, and was doing nothing more than that. In his examination in chief, in para 1, he has repeated and re-iterated about the duties performed as stated above. Though the respondent was cross examined by the petitioner, nothing came out so as to support the petitioner' s contention that the respondent was discharging the managerial and administrative duties. On perusal of the evidence of the parties, we are satisfied that substantial part of the work of the respondent consists of clerical. The respondent was not empowered to appoint or dismiss any workman or initiate any departmental enquiry against workman. The evidence does not disclose that some other employees were working under respondent. In these facts and circumstances, in our opinion, the respondent has discharged the 11 burden to show that he is workman within the meaning of section 2(s) of the Industrial Disputes Act. 13. So far as the petitioner's contention that onus is on the workman to prove that he is workman within the meaning of section 2(s) of the Industrial Disputes Act is concerned, the Hon”ble Apex Court and the learned Single Judge held so in Electronics Corpn. Of India Ltd.' s case (supra) reported in (2006) 7 SCC 330, in Mukund S.& O.Asso.' s case (supra). There is no dispute about this proposition also. However, we have already held that the respondent has discharged this burden by leading evidence to the effect that his nature of duties were mainly of clerical nature. The learned Single Judge of this court in Manganese Ore (India) Limited's case reported in 2001 III CLR 235 (supra) relied upon the observations made by another Single Judge of this court in 2000 II CLR 649 to the effect that burden of proof that a person is workman must always be on the party who disputes the character of the person and the burden of proof never shifts unless the parties who so raises, produce evidence in support of the same. The respondent cannot rely on these observation in view of the Apex Court' s judgment in (2006) 7 SCC 330. 15. In the facts and circumstances mentioned above, we are of the clear view that Labour Court committed error in rejecting the Industrial Dispute giving negative finding on 12 preliminary issue that the respondent is not a workman of the petitioner within the meaning of section 2(s) of the Industrial Disputes Act. The learned Single Judge of this court rightly and set aside the order of the Labour Court. We do not find any error in the conclusion arrived at by the learned Single Judge. Consequently we find appeal devoid of any merit and the same is therefore dism issed. (R.V. MORE, J.) (S. B. MHASE, J.)