Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.2008 of 2007 Dwarkaprasad S. Mishra, Mulund, Mumbai. ...Petitioner V/s. M/s. Bayer India Ltd. Kolshet Road Thane. ...Respondents Mr.P.M.Pradhan with Ms. Leena Patil, Advocate for the Petitioner Mr.K.M.Naik with Mr. M.V.Gaonkar and R.N.Salgaonkar iby M/s. Salgaonkar & Co., Advocate for the Respondent CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 14th February , 2008 : 14th February , 2008 : 14th February , 2008 P.C. Heard Mr.Pradhan with Ms. Leena Patil, the learned counsel for the Petitioner and Mr. Naik instructed by M/s. Salgaonkar & Co. for the Respondent. The Petitioner is aggrieved by the order dated 26-4-2000 passed by the IIIrd Labour Court thereby holding that the petitioner is not an employee within the meaning of Section 3(5) of the MRTU & PULP Act, 1971 as he is not a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 (I.D.Act for short) and confirmed by the Industrial Court at Thane as per the Judgement and order dated 23-1-2007. 2 2. As per the Complainant he was terminated from service by order dated 31-1-1994 w.e.f. 1-2-1994 without giving any chargesheet. He claimed that he was working as a Record Clerk in the Personnel Department of the respondent company from 1972 onwards and though at the relevant time he was holding the post of senior supervisor, he continued to carry out the clerical duties whereas as per the Respondent company the petitioner was holding the post of a supervisor and drawing a monthly salary of Rs.10,000/- and, therefore, he could not be called a workman as defined under Section 2(s) of the I.D. Act and consequently he was not an employee within the meaning of Section 3(5) of the MRTU & PULP Act, 1971. To decide this preliminary issue regarding the status of the petitioner, he had himself stepped in the witness box whereas the company examined three witnesses i.e.S.B.Hindurao-CW1 who was the Head of the Personnel Department, Vasant Watve-CW2 Personnel Manager and Sanjeev Shankar Patil clerk in the Welfare Department and an Assistant of the Complainant as CW3. Number of documents were also brought on record through all these witnesses and after considering the rival submissions made at the bar and the evidence adduced by both the parties, the learned Judge of the Labour Court concluded his findings in the following words regarding the status of the petitioner: 3 "Evidence on record shows that the Complainant was working as independent supervisor having supervisory control over a group of workers in the Welfare Section. Evidence on record shows that the Complainant was not doing manual, skilled,unskilled, technical, operational, clerical work. Casually doing clerical work is not a decisive factor. Facts and circumstances of the case, evidence on record, observations of Their Lordships in the above cited cases led me to hold that the complainant do not fall within the category of workman as contemplated under Section 2(s) of the I.D. Act." 3. Insupport of the above finding the Labour Court relied upon the following decisions of this Court. (i) John Joseph Khokar v/s. B.S.Bhadange & two others (1997 II CLR 921) (ii) Reserve Bank of India V/s. Waman Baburao Shinde & ors. (1994 II CLR page 440). (iii) 1998 I CLR 281 4 In the first case this court stated as under. "When a person is working as a Supervisor he is required to oversee the working of the Department. Since he is put in charge of the out-turn of the Department. He has to efficiently manage the men, machines and material under his control. For this purpose he alone is the best judge as to which person is to be spared at any given time. It is for this reason that the Supervisor who is on the spot is expected to make a recommendation as to whether leave could be granted to any workman working in his Department. It is precisely for this reason that the authority competent to grant leave seeks his recommendation and does not pass an order without his recommendation. In my view, recommendation of leave is one index of supervisory function." 4. Mr.Pradhan the learned counsel for the petitioner submitted that the Court below committed an error apparent on the face of the record in holding that the petitioner is not a workman as defined under Section 2(s) of the I.D. Act and the evidence placed on record does not support this finding. As per Mr.Pradhan though the petitioner was promoted from time to time, he continued to do the work of clerical in nature and the 5 major part of his duties remained the same though his designation was changed from time to time. As per Mr.Pradhan the petitioner did not have any authority to fix the prices, sanction leave, appoint subordinates and infact there was overwhelming evidence to show that he was doing clerical work and at no time he was also doing supervisory work. . Insupport of these submissioins Mr.Pradhan has relied upon the decisions of the Supreme Court in the case of Anand Bazar (Patrika) Limited V/s. Workmen Anand Bazar (Patrika) Limited V/s. Workmen Anand Bazar (Patrika) Limited V/s. Workmen (1969 (1969 (1969 II LLJ 670) and Anand Regional Cooperative Oil II LLJ 670) and Anand Regional Cooperative Oil II LLJ 670) and Anand Regional Cooperative Oil Seedsgrowers Seedsgrowers Seedsgrowers Union Union Union Ltd. v/s. Shaileshkumar Harshadbhai Ltd. v/s. Shaileshkumar Harshadbhai Ltd. v/s. Shaileshkumar Harshadbhai Shah Shah Shah ((2006) 6 SCC 548). ((2006) 6 SCC 548). ((2006) 6 SCC 548). He has also relied upon the decision of this Court in the case of Inter Globe Air Inter Globe Air Inter Globe Air Transport, Transport, Transport, A Division of Inter Globe Enterprise A Division of Inter Globe Enterprise A Division of Inter Globe Enterprise (Private)Ltd. (Private)Ltd. (Private)Ltd. v/s. Smt. Leela Deshpande & anr. 1994 v/s. Smt. Leela Deshpande & anr. 1994 v/s. Smt. Leela Deshpande & anr. 1994 IIIIII LLN page 559. LLN page 559. LLN page 559. This Court Single Bench (SB) in Leela Deshpande’s case (supra) after referring to the judgements of the Apex Court in the case of Anand Bazar Anand Bazar Anand Bazar Partikar Partikar Partikar (supra), S.K.Verma v/s. Mahesh Chandra (1983 (supra), S.K.Verma v/s. Mahesh Chandra (1983 (supra), S.K.Verma v/s. Mahesh Chandra (1983 IIIIII LLN 637) & Ved Prakash Gupta v/s. Delton Cable India LLN 637) & Ved Prakash Gupta v/s. Delton Cable India LLN 637) & Ved Prakash Gupta v/s. Delton Cable India (Private) (Private) (Private) Ltd. (1984 II LLN 27) Ltd. (1984 II LLN 27) Ltd. (1984 II LLN 27) observed as under; " In view of the above three Supreme Court decisions, at this prima-facie stage, I am inclined to agree with the view taken by the Industrial 6 Court. It does not appear that the predominant duties of the respondent workman consisted of booking of air tickets and other incidental job such as maintenance of lists, typing on computers, visiting travel agents, distributing time-tables and faresheets, taking on reservations, making reservations, delivering tickets, getting visas, dispatching greeting cards etc. Just because there are three employees who were supposed to report to her, it cannot be said that her duty is essentially of a managerial or supervisory in nature." 5. In the case of Anand Bazar Patrika (supra) their Lordships have held " The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of supervisory character or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of time, also does some clerical work, it would have to be held that he is employed in supervisory capacity and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out 7 incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity." . In the case of Shaileshbhai shah (supra) the Supreme Court stated as under:- "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 terms of appointment in the job performed are relevant considerations. Supervision contemplates direction and control. While determining the nature of work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the section alone and that too it being a small one and relating to quality control would not answer the test. 8 In the case of Burmah Shell Oil Storage and Distributing Burmah Shell Oil Storage and Distributing Burmah Shell Oil Storage and Distributing Co. Co. Co. of India Ltd. (AIR 1971 SC 922) of India Ltd. (AIR 1971 SC 922) of India Ltd. (AIR 1971 SC 922) the Supreme Court considered whether the employees in the following posts/categories could be held to be workman under section 2(s) of the Industrial Disputes Act i.e. (a) Blending Supervisor (b) foreman (c) Depot Superintendents and (d) District Sales Representatives. So far as the employees holding the post of foreman are concerned the Supreme Court held that those who were drawing a salary in excess of Rs.500/- per month were holding the post of supervisor and not the workman. A similar issue was again considered by the Constitution Bench in the case of H.R.Adyanthaya etc. v/s. Sandoz H.R.Adyanthaya etc. v/s. Sandoz H.R.Adyanthaya etc. v/s. Sandoz (I) (I) (I) Ltd. (1994 II CLR 552 SC). Ltd. (1994 II CLR 552 SC). Ltd. (1994 II CLR 552 SC). The relevant observations made by the Constitution Bench are reproduced as under, "We thus have three-Judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories; viz. manual, clerical, supervisory or technical and two -Judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three-judge Bench decisions which have without referring to the decisions in May & Baker, WIMCO 9 and Burmah Shell (supra) have taken the other view which was expressly negatived, viz. if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the I.D. Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the I.D. Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation." 6. As per Section 2(s) of the I.D.Act, "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection 10 with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950(46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundered rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. 7. In the instant case the Respondent is a pharmaceutical company and its personnel department is divided in three different sections namely (a) Industrial Relations (b) Salary section and (c) Welfare 11 Department and every Section was held by a Manager and the head of the Welfare Section was designated as Service Manager. Under the Service Manager there were supervisors. The petitioner came to be appointed as a clerk on temporary basis w.e.f. 7-12-1972 and was taken on regular rolls by an order dated 1-6-1973. He was confirmed on 5-12-1973 and was given the promotion of clerical grade-A on 20-6-1977. He was further promoted to clerical grade-D from 25-6-1984. As per the order dated 23-12-1985 he was promoted to the post of Supervisor-Welfare Section and his pay was increased. At the relevant time when the impugned termination order was passed, he was drawing a monthly salary of Rs. 10,000/- and was holding the post of Senior Supervisor w.e.f. 25-6-1986. . While in the witness box though the petitioner stated that despite these promotions from time to time he continued to perform the work of issuing uniforms, towels, lockers, canteen coupons, shoes and socks etc. to the workers and he was maintaining record in relation to issuance of these materials and it was his case that the nature of his duties predominantely of clerical in nature remained the same even though he was promoted from time to time, the company evidence brought on record and through the depositions of three witnesses as well as on the basis of the documents went to show that 12 the Welfare Section was divided into three sections (a) house-keeping (b) laundry and (c) canteen. The Petitioner was the supervisor in the welfare section and under him there were 20 to 22 workmen. Two of them were clerks, 3 skilled workmen and rest of the workers were semi skilled and unskilled workers. All these 20-22 persons were reporting to him and he was allotting work amongst them on day to day basis. He was recommending their leave, the work allocation sheets were typed by the clerk and it used to be signed by the petitioner as he was responsible for allocation of work (allocation of work sheets exh.17). The petitioner was also responsible to assign overtime work on Saturday off and weekly off and on what rate overtime wages would be paid. The materials taken out from the factory and from the welfare section would be allowed to go out from the gate only on the basis of the challans or gate pass which the petitioner would sign. Mr.S.B.Hindurao-CW1 specifically denied in his cross examination that there was no change in the nature of the duties of the petitioner on being promoted to the post of supervisor. He stated that as the petitioner had no authority to fix the rate of materials and he has no authority to sign the leave application as well as to fix the prices of goods which were put for sale to the staff on concessional rates. Mr.Pradhan emphasised on these admissions and submitted that the company itself 13 admitted that the petitioner was a workman within the meaning of Section 2(s) of the I.D. Act. However, these admissions in no way weaken the case of the company to hold that the petitioner was a supervisor because these are the duties which go with the managerial posts and not a supervisory post. It would be appropriate to consider the evidence of CW3 Sanjeev Patil who stated that he was a clerk working under the petitioner and doing the work of issuing canteen coupons, distribution of uniforms and other accessories and issuing staff sale products and also doing the work of typing. In his examination in chief he stated as under; "There were 20-22 staff members. They were working as helpers, clerks and sweepers. Laundrymen working in welfare section were reporting to Mr. Mishra. Supervisor was doing the work of allotting work to staff members. He was to decide as to what work would be done by the staff and accordingly shift schedule and duty chart were typed (exh.69). ........ Mishra was deciding as to which of the workmen to do the work in the shift and accordingly shift schedules were prepared. After the same were signed by Mr. Mishra, shift schedules were being submitted to the concerned Manager of Personnel Department for information of time office." 14 During his cross-examination this evidence remained intact. 8. Thus, the evidence of the Company went to prove that the tests laid down by the Supreme Court in the case of Anand Bazar (Patrika) Ltd. (Supra), Burmah Shell (Supra) and Shaileshkumar Shah (Supra) were satisfied to hold that petitioner was holding the post of Supervisor and that he wasn ot employed to do the manual, unskilled, skilled or clerical work in his capacity as Senior Supervisor-Welfare Section. The Labour Court has rightly considered the evidence adduced before it and held that the petitioner-complainant was not a workman. The Industrial Court re-affirmed these findings of the Labour Court and the reasonings in support thereof. Hence, I have no doubt in my mind that the concurrent findings recorded by both the courts below do not suffer from any error apparent on the face of the record, either on the point of law or facts and, therefore, there is no case made out to cause interference under Article 227 of the Constitution. Resultantly, the petition is hereby rejected summarily. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]