IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13741 of 2007 Date of decision:31.07.2009 M/s Avery India Limited ....Petitioner versus Presiding Officer, Labour Court-II, Faridabad ...Respondents and another 2. Civil Writ Petition No.13742 of 2007 M/s Avery India Limited ....Petitioner versus Presiding Officer, Labour Court-II, Faridabad ...Respondents and another 3. Civil Writ Petition No.13861 of 2007 M/s Avery India Limited ....Petitioner versus Presiding Officer, Labour Court-II, Faridabad ...Respondents and another 4. Civil Writ Petition No.4624 of 2009 M/s Avery India Limited ....Petitioner versus Presiding Officer, Industrial-cum Labour Court-II, Faridabad and another ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN ---- Civil Writ Petition No.13741 of 2007 - 2 - Present: Mr.P.K.Mutneja, Advocate, for the petitioner. Mr. Pankaj Jain, Advocate, for respondent No.2. ---- 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 above four writ petitions have been taken up together for common adjudication. 2. All the four writ petitions addresses the same issue namely the dismissal of the persons claiming to be workmen who were working as Assistant Engineer (Production) drawing wages of Rs.7,975/-. The preliminary objection for the management was that none of the persons who claimed to be workmen were entitled to be treated as such. They were used to supervisory work and got their work done from the subordinates. They had the authority to sanction leave, issue gate passes and also the authority to initiate disciplinary action against erring subordinates. Therefore, they were not entitled to seek any relief under the Industrial Disputes Act. 3. The other parameters shown by the management to discredit the contentions of persons claiming to be workmen were that the petitioners had not been members of the workers’ union nor was any settlement applicable to them. They had different attendance registers and organization charts. They had been given office room in the shop floor which contained tables and chairs along with telephone, a facility which had not been provided to any workman. The management Civil Writ Petition No.13741 of 2007 - 3- attempted no justification to the action of termination beyond contending that all the persons who had sought for references were not workmen to obtain any relief under the Industrial Disputes Act. 4. The crucial issue in this case is, therefore, only with reference to the nature of duties which had been assigned to them and to find whether they qualified for being treated as workmen. If they were, admittedly the termination made without reference to any enquiry or without complying of the terms of Section 25-F would be per se illegal and they would be entitled to reinstatement and for consideration of the claim for back wages. If they are not entitled to such status, the decision to terminate the services could not be susceptible to challenge before the Labour Court. The awards of the Labour Court held, in consideration of the documents and evidence placed before it, that the claimants had established their status as workmen and that the retrenchment was in violation of the provisions of the Industrial Disputes Act. It accordingly directed reinstatement with continuity of service and back wages to the extent of 50% from the date of demand and till reinstatement. 5. Referring to the claimant who was a party in Civil Writ Petition No.13741 of 2007, the learned counsel Shri Mutneja refers to Ex.M-4 to M-49 which were the gate passes containing the signatures of the claimant as an authorized signatory. Ex.M-50 to 55 were applications for leave which contained the claimant’s signatures as Section Incharge. The immediate response on behalf of the claimants by the counsel was that an authorized signatory cannot said to be person who held a supervisory role and again the signature in leave application form Civil Writ Petition No.13741 of 2007 - 4- was only in the nature of recommendation and the sanctioning authority was some other officer as revealed in the applications for leave themselves. The learned counsel appearing for the workmen made pointed reference to the evidence of Nand Kishore Sharma who said that “my work was to work on the shop floor, to manufacture machines, to carry and bring material from stores, do job work etc.” This evidence according to the learned counsel had never been impeached by the management and a mere fact that he was drawing a higher salary close to Rs.9,000/- was irrelevant. The learned counsel also pointed out to the evidence of MW-1 who admitted in his evidence that he had not brought the appraisal form relating to Shri Nand Kishore. The appraisal form was said to contain the educational qualifications of the workers and description of the work. The management, according to him had withheld the most crucial documents which could have established the job description of the workmen and adverse inference ought to be drawn by the non-production. As against this evidence, the evidence on the side of the management through MW-1 was “the claimants had been working in supervisory category on the post of Assistant Engineer. … ….. The attendance of the Supervisor is different from the attendance register for workers.” Responding to the charge that the appraisal form had not been produced, he referred to the register which had been produced through Milap Arora (WW-2) who was a Senior Executive HR, who said the appraisal form had been made applicable in the Company only two years back (evidence recorded in 2004) and there was no form at that time for the petitioner. MW-2, the Deputy Manager of the factory Civil Writ Petition No.13741 of 2007 - 5- gave evidence to the effect that the petitioner’s main work was to allocate work to the workmen, checking of the work of workmen or guide them and solve work related problems. Under Nand Kishore there were 8 to 10 workers working including semi skilled and specialized workmen. The Company workers had their own union and the supervisors were not members of any union. The supervisory staff attendance register had also been produced as Ex.M-3 through the Senior Manager Production (MW-3). 6. As regards the claimant who was a party in Civil Writ Petition No.13742 of 2007, the evidence was, he used to represent the management before quality control Government departments and he would also appear before the Weights and Measurement Department. He was also an Assistant Engineer (Production) drawing wages of Rs.7,500/-. The gate passes signed by him were marked as Ex.M-1 to M- 17, leave application forms Ex.M-18 to M-110. The learned counsel appearing for the claimant would argue, apart from maintaining the defence as he did for Nand Kishore, that the duty of the management before the appropriate authorities of the Quality Control and Weight and Measures were no more than to ascertain the stage of papers before the respective authorities and to check the components before delivering them to the authorities for their inspection. His work was merely mechanical and manual and had nothing to do with managerial functions. 7. As regards the claimant who was a party in Civil Writ Petition No.13861 of 2007, the attribute against him was that he was doing work in computers making industrial designs of components and Civil Writ Petition No.13741 of 2007 - 6- his work being innovative and creative, was not that of a workman. The response of the learned counsel for the claimant was that he was a draftsman who made designs which would be uploaded in the computer and again they did not detract from the essential function as purely skilled manual work. 8. As regards the claimant who was a party in Civil Writ Petition No.4624 of 2009, he held the position similar to the claimant in Civil Writ Petition No.13861 of 2007 who had been appointed as a trainee draftsman, and after being appointed as Junior Draftsman, he was promoted as Engineer (Designs). He was drawing wages of Rs.9,100/- per month at the time of termination of his services. His work was also innovative and creative and gave evidence to the effect that he did other work such as giving tuitions in English and Mathematics to students of 8th and 10th standard. The Labour Court, in the respective awards, maintained that neither the salary nor the nomenclature was essential to determine the status of a person as workman or not. He again referred to other decisions of the Hon’ble Supreme Court and of this Court to support its finding that the persons whose work was essentially manual and when the work had been on machines, the mere fact they assumed on certain occasions higher responsibilities of issuing gate passes or recommending for leave through letters, ought not to be treated as performing regularly managerial functions to deny to them their actual status as workman. 9. The learned counsel appearing for the management refers to the decision of the Hon’ble Supreme Court in S.K.Maini Versus M/s Civil Writ Petition No.13741 of 2007 - 7- Carona Sahu Company Limited and others-(1994) 3 Supreme Court Cases 510, that considered in extenso the definition of ‘workman’ under Section 2(s) of the Industrial Disputes Act and set down the law relating to tests to determine the nature of duties and the test for such determination. The Hon’ble the Supreme Court dealing with the case of some persons designated Shop managers, Incharge of shop held: “It has been held by this Court that the word ‘supervise’ and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory work. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of ‘workman’ as defined in Section 2(s) of the Industrial Disputes Act. 10. The learned counsel appearing for the workmen referred to decisions of this Court in answer to the contention of the counsel for the management that, the decision in Harish Kumar Gupta Versus Presiding Officer, Industrial Tribunal, Haryana, Faridabad and another-2004(3) RSJ 659, held that merely issuing of gate passes, recommending leave, detention of workman for overtime and short leave passes could not be said to be managerial and supervisory power in Civil Writ Petition No.13741 of 2007 - 8- nature and when he had no power to appoint any workman, merely doing function of leader and some secondary function would not disentitle the petitioner to come under the definition of ‘workman’. He also relied on the decision of M/s Roneo Vickers (India) Ltd. Versus Lt. Governor of Delhi and others-1994 II LLJ 1078, that the person who was not merely asked to solicit orders from customers, but also to design and to do installation work would come within the definition of ‘workman’ only. There would be no scope for the High Court to reappraise the evidence and arrive at a different conclusion under Article 226 of the Constitution. 11. The rival contentions of the respective parties and the reference to authorities signal to diverging paths and afford no room for a meeting point. It will be too simplistic to maintain the order of the Labour Court by taking a superficial view that the High Courts under Article 226 ought not to reappraise the evidence of the witnesses, but I cannot but prefer to take the overall picture that arrives by considering the admitted positions (i) all the claimants were either designated as Assistant Engineer or Engineer (Designs); (ii) they were in the shop floor each assigned a table and chair with telephone facility and not working along the assembly line. (iii) They had 8 to 10 persons working under each one of them and they had the power to guide and assist them in the work. (iv) recommended leave and issued gate passes; (v) they had their own independent attendance register different from what was meant for workers; (vi) they were not members of the workers’ union and the settlement with the workmen did not apply to them; (vii) they represented the management before public authorities such as quality Civil Writ Petition No.13741 of 2007 - 9- control and Weights and Measurement authorities. 12. While each one of the above acts may not be taken as giving to them exclusive attribute of a person in management and each one of the acts could still be seen as an act of a workman, what is necessary to examine would be the totality of circumstances and the effect of such consideration. It will be futile to look for a point by point comparison to the decisions which are available and see whether each one of them either fits with the duties of a mere workman or would qualify to be in the exclusive domain of the management. The judicial functions are not mechanical exercise of transplanting incidents of hard facts in the decisions cited to a case at hand. The meanings for the definition 'workman' ought to be understood in its ordinary sense as defined under Section 2(s) of the Industrial Disputes Act. A skilled or unskilled person that he could be; he may be do a technical or manual work; he may have supervisory functions as well, but only that if his work is merely supervisory and if his salary is more than Rs.1600/-, he cannot be still a workman. The workmen are by themselves not machines. They may have creative activities as well. It is not the creative functions that take them out of the definition of workman but if such functions are to be seen along with several other factors by a combined reasoning, it does not fit with the definition of what the workman is expected to do. A person that does more than the above such as when he assigns work to others, guides them and sets goal for them for their performances, recommending their leave or authorize them to go out with gate passes, taking part in intellectual activity of the management setting out designs, Civil Writ Petition No.13741 of 2007 - 10- can not all be duties as merely pertaining to the domain of the workman. The burden is always on the workman to show that he fits within the definition. If the management has shown several other activities which are beyond the activity of a workman than the workman cannot be said to have discharged the burden of proof of his character as such. 13. Having regard to the decision that I have taken regarding the fact that the claimants were not workmen, I deem it unnecessary to refer to several other judgments cited by the learned counsel for either sides regarding entitlement or otherwise to back wages. 14. The Labour Court had, in my view, committed an error in merely identifying each one of the acts with some decisions while holding that the claimants were not doing any managerial functions. It never attempted to take an overall view of all the functions which each one of persons was claiming to be doing. It leaves no doubt in my mind that the claimants are not “workmen”. The awards of the Labour Court are set aside and the writ petitions are allowed. No costs. (K.KANNAN) JUDGE 31.07.2009 sanjeev