IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION Nos 5797 to 5802 of 1988 with SPECIAL CIVIL APPLICATION Nos 331, 1595 & 6869 of 1989 with SPECIAL CIVIL APPLICATION Nos 350, 1013, 1015, 1074 and 2924 of 1990 with SPECIAL CIVIL APPLICATION No 733 of 1991 with SPECIAL CIVIL APPLICATION No 7644 of 1992 with SPECIAL CIVIL APPLICATION Nos 2590, 8144 & 12476 of 1993 with SPECIAL CIVIL APPLICATION Nos 8508, 9850 & 10661 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GUJ ELECTRICITY BOARD Versus BM SHAH -------------------------------------------------------------- Appearance: MR MD PANDYA for Gujarat Electricity Board MR DS VASAVADA, (MR HK RATHOD), MR RAMANANDAN SINGH AND MR KB PANDE for Accounts Officer -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 10/05/2000 CAV JUDGEMENT The controversy involved in these petitions is whether Accounts Officers under the Gujarat Electricity Board fall within the definition of "workman" as defined in Section 2(s) of the Industrial Disputes Act, 1947, (for brevity "I.D. Act") and whether they are entitlted to continue in service till they complete 60 years of age or whether the superannuation age for them is 58 years. 2. The petitions can be divided into three broad categories :- I The Industrial Tribunal, Ahmedabad had by its judgment and award dated 15.7.1988 decided that the Accounts Officers are workmen within the meaning of the I.D. Act and are, therefore, entitled to get the benefit of the Settlement under Section 2(p) of the I.D. Act under which the workmen employed by the Board are entitled to continue in service till they attain the age of 60 years. The said judgment came to be followed in some more references. The Board has, therefore, filed Special Civil Applications Nos. 5797 to 5802 of 1988, 6869 of 1989, 2924 of 1990, 8144 and 12476 of 1993 for challenging the said judgment and award and the awards following the said judgment. II In the meantime, the second group of petitions under Article 226 are filed by the Accounts Officers who had not approached the Industrial Tribunal, but who also contended that they were entitled to continue in service till the age of 60 years being Special Civil Application Nos. 331 and 1595 of 1989, 350, 1013, 1015 and 1074 of 1990, 733 of 1991, 7644 of 1992 and 2590 of 1993. III After the aforesaid judgment dated 15.7.1988 of the Industrial Tribunal, the Gujarat Electricity Board, apart from challenging the said judgment and the awards based thereon, in the aforesaid group of petitions, also amended the statutory regulations laying down that all officers in the Classe-I service including Accounts Officers shall retire at the age of 58 years and hence Accounts Officers who were to retire after coming into force of the said amendment filed the third group of petitions being Special Civil Application Nos. 8508, 9850 and 10661 of 1996. 3. Before enumerating the contentions raised by the learned counsel for the Accounts Officers and the submissions made by the learned Counsel for the Gujarat Electricity Board, it is necessary to set out the duties of the Accounts Officers and the staff pattern of the respondent-Board as set out in the common affidavit in reply dated 5.9.1997 filed on behalf of the Board by Shri B.J. Patel, Industrial Relations Officer. The Board operates through different offices as the Head Office at Baroda, zonal offices for different zones, each zone is divided into circles and there are circle offices. Since the function of the Board is to generate electricity and to distribute it to power stations at different places within the State of Gujarat the services of the Accounts Officers of the Board at all the above offices are inter-transferrable. [ The affidavit further states as under:- "5.1 I state that Gujarat Electricity Board is constituted under Section 5 of the Electricity (Supply) Act, 1948 and the powers, duties and obligations of the Board flows from the said Act. Under the said Act, State Government is empowered to nominate Chairman and other Members which includes one Member (Technical), one Member (Finance), one Member (Administration) and 2 to 3 ex-officio Members from various fields such as business, agriculture etc. The scheme of the Act is such that no member of the Board is exercising any independent power, but all powers are exercised jointly by them. In other words, it can be said that the constitution of the Board is based on joint decision making system. The said joint functioning is also adopted at different levels in the organizational set up of the Board i.e. at Head Office, Power Station, Zonal Office, Circle Office etc. 5.2 The Accounts Officers employed by the Board can be broadly divided into four categories: a) Accounts Officer (Revenue) b) Accounts Officer (Expenditure) c) Accounts Officer (Internal Audit) d) Accounts Officer (EDP) (A) Functions of Accounts Officers (Revenue) The functions and duties of the Accounts Officer (Revenue) is to supervise and control the functions of his subordinates and the functioning of Division and Sub-division offices working under him. This aspect can be explained as under:- The Board is functioning through its various Sub-division offices spread over the entire State of Gujarat. At each Sub-Division the particular staff is provided for meter reading for the purpose of raising bills to the consumers. The bills prepared thereafter are sent to the billing department, where junior clerks and senior clerks will enter the data in the Consumer General Ledger. Over these, Sub-divisions there is a division which is supervising and controlling the functions of Sub-Divisions. Accounts staff provided at division office carry out the accounting of consumer's account, payment position and the arrears. Over the division office there is a circle office which is supervising and controlling as well as monitoring the functioning of Division and Sub-Divisions working under the Circle office. Accounts Officer (Revenue) who is posted at the Circle Office has to supervise, monitor and control the working of the meter reader, billing clerks and ledger clerks working at Sub-Divisions level as well as Division Level. The Accounts Officers have to ensure whether the revenue is realized as per the assessment made by Sub-Division/Divisions Offices. A copy of Circular No. 90 dated 24.6.1968, vide which duties functions of the Accounts Officer (Revenue) are assigned is at Annexure A/1 to the affidavit. The Accounts Officer further has to periodically inspect the working of the Accounts Section at Sub-Divisions and Division Offices of the Board. The Accounts Officers have to give direction to the concerned officers for improvement of the functioning of Sub-Divisions and Division Offices. The said fact is evidence from the inspection report dated 16.12.1996 of the Board which is at Annexure A/2 to the affidavit. The Accounts Officer is also empowered to hold meeting of the Divisional Accountants and Assistant Accountants working under him and have to guide them for proper working. It would not be out of place to mention that the life blood of Board for survival is the Revenue earned from the various O&M Circles. These O&M Circles have Division Offices and the Accounts Officer (Revenue) monitor these Divisional Offices from Circle Offices. At the Circle Offices, generally the work bifurcation/allotment for the staff working under the control of Accounts Officer (Revenue) is done as per Annexure A-2-1 to the affidavit. Therefore, the nature of duties and the work performed by the Accounts Officer (Revenue) include managerial and administrative. B. Function of Accounts Officer (Expenditure) The Accounts Officers (Expenditure) are also delegated powers for purchase, execution of work, payment of bills, payment to the staff etc. vide different circulars and general standing orders. The powers for purchase of materials and award of contracts for works are delegated jointly to the Accounts Officers and the Superintending Engineer of the Circle. Copies of the general standing orders No. 310 dated 9.6.1987 and GSO No. 311 dated 18.3.1998 delegating such powers are at Annexure A/3. For the purchase of any material either Division Office or the Circle Office of the Board are required to issue tenders in the newspapers. The estimates for purchase of any items are prepared by the Technical Section in the Division/Circle Office. After the estimates is prepared by the Engineers, the Accounts Officer has to check and verify whether the estimates have been properly made. Once the tenders are issued and the offers are invited, the concerned Technical Section will prepare comparative statements of the various bidders. The Accounts Officer has to verify and scrutinise and ensure whether the tenders are as per the specification laid down. Thereafter, the decision is taken jointly by Accounts Officer and Superintending Engineer and the contract is awarded. The Accounts Officer has been delegated powers jointly with the Superintending Engineer of the Circle either to accept or reject the tenders. He also has the powers to to negotiate with various parties to bring down the rates or to make any changes in the terms and conditions already prescribed jointly with Superintending Engineer. The bills for payment are also scrutinized and passed for payments by the Accounts Officer jointly with the Superintending Engineer. If the Accounts Officer does not accord his sanction for payment, the bills cannot be passed for payment. The entire clerical work for preparation of statement, register, files and documentation is done by the clerical staff provided under the Accounts Officer. Thus the Accounts Officer has to get the work executed through the subordinate staff provided at the Circle as well as at the Division offices. C. Function of Accounts Officer (Internal Audit) The Internal Audit system of the Board has been reorganized vide Circular dated 27.2.1980 at Annexure A/4. According to this circular, four Regional Accounts Officer (Inter Audit) are functioning from regional head quarters at (i) Baroda, (ii) Anand, (iii) Sabarmati and (iv) Rajkot for supervision of Internal Audit work. Each Regional Office is headed by Accounts Officers (Internal Audit). The functions and duties of Divisional Accountants, Senior Clerks at Division and Sub-Division level as also Circle level has been prescribed by circular No. 244 dated 15.5.90 at Annexure A/5. The Divisional Accountants has to check Consumer General Ledger (CGL) recoveries on account of old meter or irregularities in connection with period of agreement, non issue of notices to avail supply, irregularities in connection with collection, deposit and custody of cash etc. The Accounts Officer (Internal Audit) has to supervise, control and monitor the working of Divisional Accountants and Seniors Clerks in the Internal Audit and Inspection Wing. The Accounts Officer has to ensure that (i) transaction conforms to prescribed rules and procedures as well as delegation of powers, (ii) misappropriation and frauds are nibbed in the bud, (iii) Revenue is properly assessed and collected and collections are promptly credited to the Board's fund, (iv) wasteful expenditure is avoided. The Accounts Officer has to detail tour programmes of the parties headed by the Divisional Accountant in each of the Circles. The Accounts Officer (Internal Audit) has also to ensure that internal audit work by different audit parties is done in time. He is also to ensure that the staff working in the various offices come in time and has to ensure punctuality in attendance and their leave record. (D) Functions of Account Officer (EDP) The post of Account Officer (EDP) is available only at Zonal Offices. This Account Officer has to supervise the working of the overall computer system right from the Sub-Division level to the Circle and Zonal Office. The Account Officer has six subordinates directly working under him. He has to visit all the Sub-Divisions where L.T. billing is computerised to study the difficulties of billing and suggest remedial measures. He has to check tenders/supply orders and also monthly bills submitted by various computer agencies for payment. He has to train the staff about the system of computerization. He has to also supervise and monitor billing system and report lacune/lapses in the system to the higher authorities. 5.4 Therefore, the nature of the duties and the work performed by the Accounts Officers of the Board, include managerial and administrative functions. The nature of work an duties performed by the Accounts Officer which are of managerial and administrative in nature can be briefly summarized as under: (a) The Accounts Officers are on the panel of selection committee for recruitment and also for promotion of staff, which goes to show that the function performed by them are not clerical, but are managerial and supervisory in nature. (b) The Accounts Officer are authorized to sign and make payment upto Rs.50,000/- singly and upto 5 lacs jointly with Additional Chief Engineer. The said powers are delegated to the Accounts Officer by GSO 272 dated 17.12.1977, which is annexed hereto and marked as Annexure A/6. It is submitted that even before signing the cheques and making payment, the Accounts Officers are required to supervise the work performed by the staff below them, who are submitting the bills, and only after their satisfaction, payment can be released. Thus, the function of the Accounts Officer cannot be termed ad clerical in nature. (c) The Accounts Officer are also delegated with powers for purchase execution of work, payment of bills, payments to the staff etc., vide different circulars and General Standing Orders issued by the Board. It will be appreciated by this Hon'ble Court that the Accounts Officers are also authorized to open and finalise the tender jointly with Chief Engineer and Additional Chief Engineers at the Power Stations, while in the case of Circle office, with Suptd. Engineer of the Circle, as per the system of joint functioning of the Board. It may be noted that the engineer may be more conversant with the nature of the articles required to be purchased but, so far as the marketability and the price is concerned, the experience of Accounts Officer has to play an important role. Therefore it cannot be said that the nature of duties of Accounts Officers are merely clerical in nature, but are of managerial and administrative over above supervisory in nature. (d) The Accounts Officers are working in transferable category of Class-I officers with the Board and therefore they could be posted and transferred in Circle office, Zonal office or Power Station. In Circle Office and Power Station, also the Accounts Officers are having managerial functions. At Circle Office, the Accounts Officers are working independently and there is no check or control over their work, as far as the financial matters are concerned and are directly responsible for the working of the entire circle. 5.5 It is further submitted that the Accounts Officers are also having supervisory functions, over and above managerial and administrative powers. The Accounts Officers are mainly discharging their duties in supervisory capacity at different levels and are drawing monthly wages of more than Rs.1600/-. Normally below the rant of Accounts Officers, there is a staff on one Supdt. (A/c)., two Dy.Supdt. (A/4), 4 to 5 Sr.Clerks and 4 to 5 Jr.Clerks at the Circle and Power Station level. A chart showing the staff set up of accounts with the Board is annexed as Annexure A/7. The Accounts Officers job is to assist the Supdt. Engineer in joint decision making and has to supervise and extract the work from the subordinate staff provide for financial matters and which is working under him. He has to further fill the confidential reports of the staff working below him and can also issue warning and recommend disciplinary actions against his subordinate staff. A copy of Establishment Circular No.454 dated 23.08.85 empowering Account Officer to fill Confidential Report of his subordinate is at A-8-1. He has also powers to depute the subordinate staff to other offices and recommend their payments for Transport Allowance Bills. As a head of the finance wing, at the circle level, he has to co-ordinate functioning of finance wing of the entire circle and has to supervise functioning of finance wings of divisions and sub-divisions functioning under the respective circles of which he is the head of Financial wing.] 4.0 A reference is now required to be made to the judgement of the Industrial Tribunal in Reference (IT) No.315 of 1998. 4.1 The Tribunal held that an employee doing any manual, unskilled, skilled, technical, operational, clerical or supervisory work would be a workman unless he is doing supervisory work and his functions are mainly of managerial nature. 4.2 The Tribunal referred to following functions of the Accounts Officers:- "Scrutinising the journal vouchers prepared by the staff, to scrutinise the local purchase orders / tenders, to scruitinise the T.A. Bills and final bills, to scrutinise the claims of C.P.F. Advance, etc., to scrutinise the settlement of C.P.F. Claims (final), to submit monthly returns to Head Office and to check reconciliation of trnasactions and to check quarterly/annual trial balances prepared by the staff, etc." 4.3 For coming to the conclusion that the Accounts Officer has no managerial or administrative power, the Tribunal noted that the Accounts Officer has no authority to discharge a person from service, to take any disciplinary action against the employee, has no authority to grant casual leave or other leave. The Accounts Officer has power to write the confidential reports but the Chief Accounts Officer and the Controller of Accounts have the right to make amendments in the said report. Although the Accounts Officer sits as a member in the Selection Panel in the circle so far as non-technical staff is concerned, the other members are Superintending Engineer and Non-Technical officer Class-I. After noting that the Accounts Officer is no doubt a highly paid officer, the Tribunal came to the conclusion that the Accounts Officer is required to discharge duties mainly relating to accounts section which are merely in the nature of scrutiny or checking of the returns with the help of his staff but, he is not clothed with managerial or administrative powers as he has no power to grant leave or power to appoint any member of the staff or to take any disciplinary action against any employee; therefore, since he does not have any managerial or administrative functions, the Accounts Officer is a workman. After noting that the Accounts Officer has power to sign cheques singly up to Rs.50,000 and jointly along with Superintending Engineer up to Rs.2 lakhs, the Tribunal observed that these powers could not be exercised by the Accounts Officer singly but such powers could be exercised only with the permission of the higher authorities. The Tribunal arrived at the conclusion that no doubt the Accounts Officer holds a high position but almost all the powers are vested with Superintending Engineer. 4.4 The Tribunal allowed the Reference and held that the concerned Accounts Officers were workmen and, therefore, entitled to be superannuated at the age of 60 years and were entitlted to get such benefit as if they had not been superannuated earlier. 5. Against such awards of the Tribunal in case of individual Accounts Officers, the Board filed the above numbered petitions in the first group. While admitting the said group of petitions which were filed till 1990, this Court passed the following order on 4.4.1990:- "Interim relief in terms of para 13(b) on the condition that the petitioner Board gives an undertaking to the effect that in case the petitioner (the Board) fails in this petition, the petitioner will pay to the concerned workman all the wages and all other benefits as if the respondent had not retired from service till he completed age of 60 years and such payment shall be made within two months from the date this petition is finally disposed of." Accordingly the undertaking was filed by the Gujarat Electricity Board on 18.4.1990. However, in case of Accounts Officers who had got the benefit of interim orders of the Tribunal during the pendency of the Reference, they continued till the age of 60 years. 6. After the award of the Industrial Tribunal holding that the Accounts Officers are workmen within the definition of `workman' under I.D. Act, and further that the Accounts Officers are, therefore, entitled to take benefit of the award fixing the retirement age at 60 years, the Board issued General Standing Order (GSO) No.320 dated 10.1.1994 (Annexure-A9) amending Service Regulations, 1972, of the Board relating to retirement age of the employees and the amended regulation no.72 now reads as under:- "(1) An employee serving under Class-II, III and IV categories is liable to compulsory retirement on the date of completion of 60 years of age unless specifically reemployed by the Board for a specific period. (2) An employee serving under Class-I category is liable to compulsory retirement on the date of his completion of 58 years of age unless specifically reemployed by the Board for a specific period." The aforesaid regulation no.72 before its amendment read as under:- "72. The employees of the Baord are liable to compulsorily retirement on the date of their completion of 55 years of age unless specifically remployed by the Board for the specific period. Such of the staff in whose cases retirement age is above 55 years provisionally to be continued till that date as personal to them." CONTENTIONS ON BEHALF OF ACCOUNTS OFFICERS 7. At the hearing of these petitions, the learned counsel for the Accounts Officers have made the following submissions :- 7.1 The question whether an employee is a workman within the meaning of I.D. Act is a question of fact to be decided on the facts and in the circumstances of each case - considering the nature of duties, powers, etc. The Industrial Tribunal having already decided this question in a number of cases, the Board was not entitled to challenge such a finding on a question of fact in petitions under Article 226/227 of the Constitution. 7.2 The recruitment to the post of Accounts Officer is made by promotion from the lower cadre. The incumbents of the post of Accounts Officer were initially appointed as Clerks and were performing the duties as Accounts Clerks and they were given promotion as Senior Clerks - Asst. Accountants, Divisional Accountants (now called Superintending Accountants) and thereafter finally they were promoted to the posts of Accounts Officer. A number of Accounts Officers had started their career with the qualification of Secondary School Certificate (SSC). The immediate lower post of Superintending Accountant (Divisional Accountant) is admittedly in the category of "workmen" and it is from the said post that promotions are made to the cadre of Accounts Officers. Hence, the Accounts Officers must also be considered to be workmen. 7.3 The Accounts Officers are doing only accounts work without any supervisory or managerial powers or duties. The very nature of the duties of the Accounts Officers is to check the working of the subordinates in the Accounts Branch such as checking of accounts, bills, etc. Hence such work is purely a technical-cum-clerical work. Therefore, as per the decision of the Honourable Supreme Court in National Engineering Industries Limited v/s Sri Krishna Bhageerath AIR 1988 SC 329, an internal auditor employed for doing checking and reporting is a workman as the work of checking up and reporting cannot be said to be supervisory work. 7.4 The incumbent of the post of Assistant Secretary is held to be workman as per the award of the Industrial Tribunal which award came to be confirmed by a Division Bench of this Court and also by the Honourable Supreme Court. The Accounts Officers are in the same pay scale and therefore also the Accounts Officers are required to be treated as workmen. 7.5 The amendment