WP/7708/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7708 OF 2010 Municipal Corporation of Greater Mumbai & Anr. ... Petitioners V/s. Dr. Shivajirao T. Kawale ... Respondent Mr. Pakale h/f. Mr. R.A. Malandkar for the Petitioners. Mr. Prakash Devdas for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATE : 17 TH JANUARY, 2011. P.C. : 1. This Writ Petition has been preferred against the order of the Industrial Court, Mumbai dated 5th April, 2010 passed in Complaint (ULP) No.474 of 2004. By this order, the Complaint (ULP) No.474 of 2004 filed by the respondent has been allowed and it has been declared that the petitioner-Corporation has committed an unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”). 2. The allegation against the respondent was that he had tampered the muster roll while signing it. Therefore, disciplinary action was taken against him and his increment was stopped. The respondent was aggrieved by the order of the Corporation and, therefore, filed a complaint under Item 9 of Schedule IV of the MRTU & PULP Act. The Industrial Court on assessing the evidence led before it has found that the respondent is WP/7708/2010 2 a “workman”, as defined under Section 2(s) of the Industrial Disputes Act, 1947, (for short “the I.D. Act”), and therefore the complaint was maintainable. It has also found that the departmental enquiry conducted against the respondent was not in consonance with the Model Standing Orders which apply to the petitioner-Corporation. 3. It is submitted on behalf of the petitioner-Corporation that the respondent was working as a Doctor with the petitioner-Corporation and was performing work of an administrative or supervisory nature. He, therefore, could not be classified as a “workman”, as defined under Section 2(s) of the I.D. Act. Reliance is placed on the judgment of the Supreme Court in the case of Management of Heavy Engineering Corporation Ltd. vs. Presiding Officer, Labour Court & Ors., reported in 1997 I CLR 26. It is further submitted that the action was taken against the workman in accordance with the Municipal Rules, which govern the working conditions of the respondent. These Rules permit the petitioner-Corporation to impose the punishment of stoppage of increments. 4. As regards the first issue whether the respondent is a “workman”, the Industrial Court, on the basis of the evidence on record, has found that the duties performed by the respondent were not predominantly administrative and/or supervisory in nature. It is not well settled that even if a workman performs some duties which are either supervisory or administrative in nature, it is the predominant nature of his work which must be ascertained before concluding whether or not a person is a “workman”, as defined under Section 2(s) of the I.D. Act and consequently an “employee”, as defied WP/7708/2010 3 under Section 3(5) of the MRTU & PULP Act. The judgement of the Supreme Court in the case of Management of Heavy Engineering Corporation Ltd. (supra) does not in any manner depart from this rule. The Supreme Court has found that the employee in that case was the sole person in charge of the first aid post and that there were others working under him. He had control and supervision over those workmen. The facts in the present matter disclose that the respondent was merely assigning duties to the staff. However, he had no disciplinary control over those persons, nor could he grant leave. It is obvious that the respondent, being a Doctor, was performing work of a technical nature and, therefore, was a “workman”, as defined under Section 2(s) of the I.D. Act. 5. The other submission of Mr. Pakale, the learned Advocate for the petitioner- Corporation, is that the Municipal Rules permit the petitioner-Corporation to impose such a punishment, as is mentioned in the Municipal Rules. According to him stoppage of increments is one such punishment. In my view this submission is not available to him now. In the case of Shri Sitaram Tukaram Walunj vs. Municipal Corporation of Greater Mumbai in writ Petition No.8711 of 2007 dated 15th April, 2008, a learned Single Judge of this Court, (Chandrachud, J.), has already held that the Model Standing Orders govern the services of the employees of the Corporation and would prevail over the Municipal Rules. The Model Standing Orders do not have any provision entitling the Corporation to stop increments. Therefore, in my opinion, the submission of Mr. Pakale is unsustainable. 6. The Writ Petition is rejected.