C.W.P. No.11862 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.11862 of 2001 Date of Decision: 13.10.2009 H.C.Garg .....Petitioner Versus Presiding Officer, Industrial Tribunal-cum-Labour Court-1, Faridabad and another ...Respondents Present: Mr. C.M. Chopra, Advocate for the petitioner. Mr. Hemant Bassi, 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.(ORAL) 1. The site engineer, so called, was terminated from service by the management giving to him a salary for a month's notice, which was challenged by seeking a reference to a Labour Court. The objection at the threshold by the management was that the person, who sought the reference was not a workman and the entire focus of attention before the Labour Court was, therefore, whether the claimant conformed by his activities to the definition as prescribed under Section 2 (s) of the Industrial Disputes Act. The Labour Court found that by the activities enumerated and the responsibilities that he shouldered, he was not a workman and rejected the reference. The workman that felt defeated, is the C.W.P. No.11862 of 2001 -2- person coming on challenge against the reference before this Court through the writ petition. 2. Learned counsel appearing for the petitioner-workman would take me at length to the evidence which was adduced by the workman relating to the actual content of his duties as a Site Supervisor and later promoted as a Site Engineer. He has stated in his evidence: “..I was appointed on regular basis on 21.10.1985. I have passed 10th class. My duties involve repair of water taps, change of handles of windows, to slow down the speed of door closures fitted on the doors; a pipe line was fitted in the production plant wherein the workers used to fix the nuts and bolts in the machines, cleaning of and changing of air pipes and all plumbering work. Some time later I was promoted as Site Engineer but my duties remained the same as I was performing earlier. There was no employee working under me. On termination of my services no retrenchment compensation was given to me. My services were terminated on 04.07.1997. I did not have any supervisory power. The last pay drawn by me was Rs.3925/- as basic with 30 per cent HRA at the time of termination of services, I was given a cheque along with the letter which I had received by post...” According to him, the evidence relating to a purely manual job C.W.P. No.11862 of 2001 -3- that he was performing had not been impeached anywhere in the cross-examination. According to him, the mere high-sounding designations attributed to him would not disqualify him from urging for such a status as workman. 3. Adverting to the specific admissions elicited through the workman that he was actually verifying bills and passing the bills in relation to construction activities (M-14 to M-23), he supervised the construction work at the site (M-25 to M-30) and he was also sanctioning leave to some of the persons who had been working under him (M-14 to M-23), the learned counsel relied on judgment of the Hon'ble Supreme Cout in Ananda Bazar Patrika (Private) Ltd. Vs. Its Workmen 1969 II LLJ 670 that examined the status of a workman in the context of a designation assigned to a person as a Senior Clerk and when the Labour Court had rejected the contention of management that he was employed in a supervisory capacity. He placed reliance on observation of the Hon'ble Supreme Court as under: “...On these facts, we are unable to hold that the labour court committed any error in arriving at the decision that Gupta was employed on clerical work and not in supervisory capacity. The principal work that Gupta was doing was that of maintaining and writing the cash book and of preparing various returns. Being the seniormost clerk, he was put in charge of the provident fund section and was given a small amount of C.W.P. No.11862 of 2001 -4- control over the other clerks working in his section. The only powers he could exercise over them was to allocate work between them, to permit them to leave during office hours, and to recommend their leave applications. These few minor duties of a supervisory nature cannot, in our opinion, convert his office of senior clerk in charge into that of a supervisor. The labour court was, therefore, right in holding that Gupta was a workman on the date of his retirement and that an industrial dispute did, in fact, exist. The appeal fails and is dismissed with costs.” 4. Dilating further, learned counsel appearing for the workman would also contend that in order that a person could be treated to be in a supervisory job, he shall discharge such functions as would bind the management by his acts. The Hon'ble Supreme Court held in National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and others AIR 1988 SC 329 that held in para 7 that a supervisor was one who could take decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. The judgment also makes reference to the meaning of 'supervisor' in Black's dictionary which is as follows: “In a broad sense, one having authority over others to superintend and direct. The term 'supervisor' means any C.W.P. No.11862 of 2001 -5- individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” The Hon'ble Supreme Court in National Engineering Industries case had held that a checker on behalf of the management or the employer is not a supervisor. 5. Learned counsel appearing for the management made his submission about the general conduct of the workman that he was not even a witness for truth and also argued on how the content of job that he was performing as conforming only to a supervisory job as a site supervisor as well as in promotional job that he was doing under specific order of promotion/appointment, receipt of which the workman was, however, interested in denying. Learned counsel for the management would submit that the workman had stated in his evidence that he had been appointed as a Site Supervisor, which could be correlated to Ex.M-1 which was an application for the post of Site Supervisor. Initially, the workman had even denied that he had made any application for the site job, which was left to the management to prove through the document which showed that he had applied C.W.P. No.11862 of 2001 -6- for the job. The workman was again interested in contending that there was no order of appointment to the position as Site Supervisor and the documents was filed Ex.M-2, which was the letter of appointment that explained the nature of work for the workman as a Site Supervisor. Ex.M-4 was a latter of appointment/promotion of the petitioner as a Site Engineer. The document showed that he had been cast at the level of O-2, which was explained by the learned counsel appearing for the management as a level of an officer and Ex.M-6 when the management had promoted him to a level of O-1 which was explained as Officer's grade. 6. While adverting to the evidence of the workman elicited in the cross-examination, the workman had denied the suggestion that he was working as Site Supervisor on behalf of the company but in the sentence following, he also stated “I used to supervise the liaisoning in HUDA and MCF.” Learned counsel appearing for the workman however would explain this statement as following a denial of the suggestion which occurred in the previous sentence. The reference to this evidence was only to explain the office order issued under Ex.M-8 (receipt of which was again denied by the workman) which included, among other duties assigned to him, he was to do “liaisons, correspondence with company authorities in relation to his job.” Adverting again to the fact that the workman had admitted in his evidence that he used to look after the work of Muse Ram and Kamal Rai, C.W.P. No.11862 of 2001 -7- Gardeners. The learned counsel appearing for the management would refer to clause 5 of the Office Order (Ex.M-8) that horticulture and gardening (accordingly, the Gardeners will be reporting to him) were also his duties and that they would show that Muse Ram and Kamal Rai were Gardeners who was actually reporting to him. The workman had elsewhere also admitted that he was sanctioning leave to persons working under him and marked as Ex.M-14 to M-23 but this again was explained by the workman as having been done by pressure cast on him to sign the leave sanctioning letters. The activities of verifying bills and passing them with endorsement that amounts could be paid as per the bills was again explained as an activity which was only a clerical in nature. 7. For every one of the activities taken singly, the attempt was made by the learned counsel appearing for the workman to show that each one of the activities did not prove that it was supervisory and only meant that it was either manual or clerical. This approach of examining each one of the activities individually may lead, in my view, to no useful purpose and it shall be only the totality of circumstances of the activities which were assigned to him and were admittedly done by him that would give the solution that we are looking for. The Labour Court had brought on record on the basis of evidence that the workman had admitted in his evidence that he did not know of whether there was any agreement reached between the workers with reference to pay and C.W.P. No.11862 of 2001 -8- allowance for workers and it was distinct from the allowances from officers and supervisors. The difference in treatment by the management between workmen and persons, who were not, were also elicited through varying factors, such as payment of salary which in case of workmen was said to have been done through cash while for persons belonging to the other category of supervisors and officers, it was done through cheques; the increments for the workmen had been as per settlement while the increments for the other class of persons had not been rendered through any settlement but by different terms of employment; even as regards the number of days of leave, each one of the workmen was entitled to 15 days while the other class of persons were entitled to 20 days and according to the management, the petitioner was treated to the latter cateogry only. Apart from these distinctions, in the manner of even the nomenclature, he was treated to be in O-2 grade, later revised as O-1 grade on promotion and admittedly he was reporting to the Managing Director and the Junior Managing Director, which was according to the learned counsel appearing for the management would not have been possible if he were a workman. Even the manner of maintenance of attendance register for workmen and for persons of other categories were shown to be distinct and it was also elicited that the petitioner was not signing attendance register kept for the workmen. 8. It is not as if the Labour Court's award suffers from the C.W.P. No.11862 of 2001 -9- vice of non-application of mind or non-consideration of facts which were relevant. Each one of these facts have been considered and a view has been taken on the totality of the circumstances to hold that the person, who was claiming to a status of the workman did not answer to such a description. I have already observed that mere signing of bills or approving bills or sporadic acts of supervision over some workmen may not remove him from the status as a workman. The decisions of the Hon'ble Supreme Court cited by the learned counsel appearing for the workmen amply demonstrate the same but still if each one of these activities along with the other factors relating to how the different office orders had been passed granting him various positions in the establishment and how he was treated distinctly from the other class of workmen, not to leave out of reckoning the nomenclature employed for him, I have no hesitation to rule that the Labour Court has considered everything that was relevant. In exercising jurisdiction under Article 226, the Court does not act as a Court of appeal but examines only the illegality or impropriety of orders passed by the Labour Court. The Labour Court for all purposes is a final Court of fact. Unless it is shown that the relevant considerations have been left out of reckoning; it shall be impermissible for this Court to re-write the reasoning of the Labour Court. There may be number of instances either of the High Court or of the Hon'ble Supreme Court which it could have dealt with the definition of 'workman' but they were all only to C.W.P. No.11862 of 2001 -10- identify the point of law involved in the manner of interpretation. The appreciation of the issue whether the particular evidence given before the Labour Court falls within the definition of 'workman' shall invariably be decided only in a Court of fact and the Labour Court which has considered the activities of the workman in all facets and which has come to the conclusion that his functions do not come within the parameters of the definition, cannot be assailed lightly picking out one or two activities which could fit both for a workman or a person of a supervisory character. It may not be possible to say that signing of bills or verifying bills cannot be an activity of a supervisor at all, it may be reside in both. Same way, the power to grant leave may not be mearly a function of a person who is at a supervisory or managerial level. It could just still be a workman's job. These two activities alone as going to decide the question may mean over-simplifying the whole exercise. It is the totality of functions, as I have observed before, that find an answer to the issue. The reference has been correctly answered by the Labour Court and I find myself in total agreement with the same. 9. The writ petition, in my view, is therefore devoid of merit and dismissed. There shall be however no direction as to costs. 10. Learned counsel appearing for the workman submits, after I dictated the order in Court, that the management has issued some cheques which have not been encashed by the petitioner and C.W.P. No.11862 of 2001 -11- they may be directed to re-issue cheques, which have become stale by non-presentation within time. If cheques have been issued in consideration of a liability, the liability still would exist. As and when such request is made, the management shall, therefore, consider such a request and issue appropriate cheques to enable the workman to gain the benefit of the amounts covered through such cheques. It is expected that the management will not drag its feet and put the petitioner to any further hardship. Fighting a litigation in a Court is itself a major pain for any one to endure and it is only desired that as and when such a request is forthcoming from the petitioner, the management shall attend to the same with due compassion that the case merits. (K. KANNAN) JUDGE October 13, 2009 Pankaj*