Case: Uday Shantikumar Dixit Vs. Larsen &amp; Toubro Limited &amp; Others

a letter to one Mr.V.K. Arora, his superior, essentially complaining that he works hard and his work was acknowledged yet he had not been promoted. He complained that the failure to promote him is de-motivating even after 28 years of service. He specified various work undertaken by him in commissioning department and support activities such as identifying materials, major site co-ordination for dispatch of materials to various premises and setting up guest house for bigger sites at Jamnagar, Hyderabad and Chittorgarh. He had introduced new courier services at Jamnagar reducing courier expenses. Thus, he submitted that despite numerous such activities undertaken by him he did not receive promotion. Furthermore, in his complaint in paragraph 16-G the petitioner has contended that despite being designated as a supervisor the work assigned is in nature of that performed by workman. I am unable to find any substance in this contention in the complaint, since the nature of work clearly indicates the work of supervisory cadre was indeed supervisory in nature and in my view there is no substance in the contention that he continued as workman but with designation of a supervisor.24. In Sonepat Cooperative Sugar Mills Ltd. (supra), the Supreme Court held that a person performing any manual, unskilled, skilled, technical, operational, clerical or supervisory work in any industry would be covered by Section 2(s). Persons employed in a supervisory capacity, draws wages exceeding Rs.1600/- or doing a managerial or administrative work were excluded. It was further observed that the job of a clerk implies stereo typed work without power of control or initiative or creativeness. To ascertain whether a person has been performing a clerical work or not, is required to be determined based on the dominant nature of work. It was not enough and it would not be correct to say that merely because an employee has not been performing managerial or supervisory work, it would make him a workman. Various other examples are also alluded to in case of Sundarambal vs. Govt. of Goa, Daman and Diu (1988) 4 SCC 42. Applying the test in Sonepat Cooperative Sugar Mills Ltd. (supra) it is evident that in the present case the petitioner could not have been described as a workman in the capacity in which he was working at the time of his transfer. It must be borne in mind that the petitioner has worked in said capacity for several years and was office bearer of LTOSA and had complained that the transfer would deprive him of the protection of the said association. The findings that the petitioner was not doing clerical work in the impugned order cannot be faulted in the facts of the present case.25. In Mukesh Tripathi (supra) the Supreme Court had yet another occasion to hold that the workman must not only establish that he is employed in establishment for the purpose of doing any work contemplated in the definition and that in case where a person raises a contention that his status has changed, he must plead and prove the fact. The Court already held that the definition of workman under Section 2(s) of the Industrial Disputes Act was exhaustive. In the present case none of the pleadings of the petitioner is to the effect that the transfer was malafide. The challenge is not on the basis of change of nature of employment and that he was been deprived of the benefits available to workmen.26. In Vandana Joshi (supra) the Division Bench while following the decision in Mukesh Tripathi (supra) reiterated the decision of the Supreme Court in Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh 2007(III) CLR 840 to the effect that the burden of proof to establish nature of appointment was not on the employer. The ratio that flows from the decision in Mukesh Tripathi (supra) and Ganga Kisan Sahakari Chini Mills Ltd. (supra) was that the appellant had to prove that he or she was a workman with reference to dominant nature of duties. In the present case, I have no hesitation in holding that the petitioner has failed to discharge this burden.27. There is no doubt that petitioner held a transferable job and did initially agreed to report to Mysore. Mr. Cama in the course of submission invited my attention to schedule of amendment proposed by the petitioner in the complaint. In paragraph 5.3(w), the petitioner complained that he had been denied protection and backup of fellow members of LTOSA and he had been deliberately transferred out of purview of LTOSA and therefore would not have protection at Mysore. This he submitted was one more indication of the fact that the petitioner was never keen to join at Mysore. Although Mr. Singhvi pointed out that the amendment had not been permitted that by itself would not make the proposed amendments irrelevant. To my mind, the contents of the proposed amendment are useful in order to evaluate the argument on behalf of the petitioner that he was at all times workman and continue to do the job of workman although he had been granted designation of a supervisor.28. Furthermore, Mr. Singhvi has contended that the petitioner has never claimed to be doing work of clerical nature but of a workman. He further submitted that the respondent did not deny that the petitioner is not doing clerical work and that all documents relied upon by the petitioner only indicate that he was executing certain jobs on instructions of superior including that of setting up guest house etc. In conclusion, I am satisfied that the transfer was not malafide. There is also no substance in the contention that the petitioner was victimised. The petitioner simply refused to report for work based on his own judgment of the reason for the transfer. Nothing shown to me justifies the petitioner allegations in his complaint. The impugned order is in my view well reasoned and fair I am of the view that the petitioner has failed to make out a case for interference by this Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. Having heard learned counsel for the parties, their submissions and having perused the impugned order, I find the order of the transfer set out the terms and conditions wherein clause (4) deals with the Provident Fund which require him to be enrolled to LarsenOn 19th November, 2012 the petitioner replied, reiterating that he has been suffering from Asthma and hypertension and relied upon medical certificate. He expressed unwillingness to travel to Andheri for medical check up. He stated that he was unable to report to Mysore and sought reconsideration of the decision. The complaint is seen to be filed on the same date i.e. 19th November, 2012. Thus, it is not a case that the petitioner was so unwell that he could not have attended medical check up at Andheri. The petitioner thereafter moved an application Exhibitseeking reliefs against the transfer. The application for injunction came to be rejected on 15th January, 2013 and on 28th January, 2013 the petitioner wrote to the H.R. department wanting to continue good relations with the company, protesting promotion from draughtsman to Supervisory cadre and once again requesting that he be permitted continue to work in Mumbai. On 11th March, 2013 the company called upon the petitioner to report at the Mysore establishment. Meanwhile the petitioner challenged the order of the Industrial Court dismissing the application for grant ofrelief in the complaint. This Court rejected the petition directing the Industrial Court to expedite decision on the complaint. Aggrieved by that, the petitioner challenged the order of the High Court in SLP No.29306 of 2013. The SLP was dismissed on 30th September, 2013 and the trial proceeded.17. It appears that the Union was formed in 2006 and therefore the petitioner cannot contend that he was victimised. The allegation of malafides if at all proceeds on the basis of victimisation and not on the basis that he was indulging in union activities. It is further observed that into promotion advice dated 26th November, 2001, the petitioner was paid Special Compensatory Allowance and all other allowances such as dearness allowance, Additional Conveyance allowance, HRA, etc. which were effectively changed to that applicable to the supervisory cadre. Thus different service conditions applied to him from the date of change in cadre.18. Vide letter dated 2nd March, 2013 addressed by to the HR department. LTOSA complained of financial loss to unionised workers, who were promoted to supervisory cadre. The petitioner is signatory to the said communication in his capacity as Vice President of the Union. If indeed he was aggrieved by the promotion to the supervisory cadre he would have raised the issue in his own case through the LTOSA which he actively represented as Vice President. Furthermore, it is obvious that most employees have been in supervisory cadre would not have complete and absolute control over the affairs of department they were employed in.19. Reliance placed by Mr. Singhvi on the fact that the petitioner was acting under advice of the superior will not help the petitioner to establish that he was in fact a workman and at all times continue to do task assign to a workman. It is clear that most supervisory jobs will have a reporting hierarchy and save and except for the Managing Director or such other highly placed officials most of others would have to act in accordance with a reporting hierarchy.20. In Bombay Dyeing (supra) the Division Bench of this Court dealt with the role of a supervisor finding that it contemplated a certain number of persons working under a supervisor. If a person is doing any work which does not require him to look after or inspect or examine the work of persons who are subordinate to him or working under him, such person cannot be said to be a supervisor. Supervision necessarily requires reference to persons working under a supervisor as against machines. Supervising a machine does not make him a supervisor. Mr. Singhvi, therefore, submitted that in the facts of the case, it is more than evident that the petitioner was not a supervisor in real sense of the word. In National Engineering Industries Ltd. (supra) the Supreme Court had made a reference to its previous judgment in Burmah Shell Storage and Distribution of India Vs. Burmah Shell Management Staff Association AIR 1971 SC 922   and D.P. Maheshwari Vs. Delhi Administration AIR 1984 SC 153   observing that one should consider the main work that the person is required to do even though there may be other types of work carried out incidentally. That an Accountant is supposed to sign the salary bills of the staff even while performing the duties of a clerk and that did not make him an employee in a managerial or administrative capacity and person concerned was held to be clerk. In D.P. Maheshwari (supra) it was found that the main work should be such that a supervisor could bind the company to take some kind of decision on behalf of the company. Merely referring to the affairs of the company do not make him a supervisor.21. Aloysius Nunes (supra) quotes Mcleod and Co. Vs. Sixth Industrial Tribunal AIR 1958 Calcutta 273 wherein a Single Judge of the Calcutta High Court considered the expressions managerial. administrative and supervisor holding that the word supervisory was advisedly a loose expression with no rigid frontiers and would discourage too much sublety in trying to precisely define where supervision ends, and management begins. The Apex Court had upheld this view of the Calcutta High Court in National Engineering (supra) holding that the test is whether while discharging managerial or administrative duties any supervisory work was performed. Similarly, Aloysius Nunes (supra) also relied upon the decision of the Supreme Court in D.P. Maheshwari (supra) and Bombay Dyeing (supra).22. In Pushpakaran (supra) the Kerala High Court observed that the right to transfer an employee is a powerful weapon in the hands of the employer and sometimes more dangerous than other punishment. That the Court must tear the veil of deceptive innocuousness and see what exactly motivated the transfer. If the Court is satisfied that the real object of transfer is not what is apparent, the Court must examine what exactly was behind the transfer.23. I do not see any of these cited judgments coming to the assistance of Mr. Singhvi. In the facts of the case, I find that the petitioner was certainly not carrying out functions of a workman at the material time. The petitioner admits to have carrying out responsible activities on behalf of the employer some of which bind the employer qua third parties. Obligations were being incurred by the company as a result of tasks carried out by the petitioner. Various other documents were referred on behalf of the respondents to contend that the petitioner had undertaken more than clerical job inasmuch as he approved travel expenses of other employees and even executives. On 20th July, 2007 on behalf of the company entered into an agreement of lease in respect of premises at Jamnagar. This is an admitted fact and according to the respondents a clear indication of the fact that he was not merely a workman. I am unable to accept the contention of the petitioner that these are clerical duties. It is pertinent to note that the petitioner had on 18th July, 2008 written a letter to one Mr.V.K. Arora, his superior, essentially complaining that he works hard and his work was acknowledged yet he had not been promoted. He complained that the failure to promote him iseven after 28 years of service. He specified various work undertaken by him in commissioning department and support activities such as identifying materials, major sitefor dispatch of materials to various premises and setting up guest house for bigger sites at Jamnagar, Hyderabad and Chittorgarh. He had introduced new courier services at Jamnagar reducing courier expenses. Thus, he submitted that despite numerous such activities undertaken by him he did not receive promotion. Furthermore, in his complaint in paragraphthe petitioner has contended that despite being designated as a supervisor the work assigned is in nature of that performed by workman. I am unable to find any substance in this contention in the complaint, since the nature of work clearly indicates the work of supervisory cadre was indeed supervisory in nature and in my view there is no substance in the contention that he continued as workman but with designation of a supervisor.24. In Sonepat Cooperative Sugar Mills Ltd. (supra), the Supreme Court held that a person performing any manual, unskilled, skilled, technical, operational, clerical or supervisory work in any industry would be covered by Section 2(s). Persons employed in a supervisory capacity, draws wages exceeding Rs.1600/or doing a managerial or administrative work were excluded. It was further observed that the job of a clerk implies stereo typed work without power of control or initiative or creativeness. To ascertain whether a person has been performing a clerical work or not, is required to be determined based on the dominant nature of work. It was not enough and it would not be correct to say that merely because an employee has not been performing managerial or supervisory work, it would make him a workman. Various other examples are also alluded to in case of Sundarambal vs. Govt. of Goa, Daman and Diu (1988) 4 SCC 42.   Applying the test in Sonepat Cooperative Sugar Mills Ltd. (supra) it is evident that in the present case the petitioner could not have been described as a workman in the capacity in which he was working at the time of his transfer. It must be borne in mind that the petitioner has worked in said capacity for several years and was office bearer of LTOSA and had complained that the transfer would deprive him of the protection of the said association. The findings that the petitioner was not doing clerical work in the impugned order cannot be faulted in the facts of the present case.25. In Mukesh Tripathi (supra) the Supreme Court had yet another occasion to hold that the workman must not only establish that he is employed in establishment for the purpose of doing any work contemplated in the definition and that in case where a person raises a contention that his status has changed, he must plead and prove the fact. The Court already held that the definition of workman under Section 2(s) of the Industrial Disputes Act was exhaustive. In the present case none of the pleadings of the petitioner is to the effect that the transfer was malafide. The challenge is not on the basis of change of nature of employment and that he was been deprived of the benefits available to workmen.26. In Vandana Joshi (supra) the Division Bench while following the decision in Mukesh Tripathi (supra) reiterated the decision of the Supreme Court in Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh 2007(III) CLR 840 to the effect that the burden of proof to establish nature of appointment was not on the employer. The ratio that flows from the decision in Mukesh Tripathi (supra) and Ganga Kisan Sahakari Chini Mills Ltd. (supra) was that the appellant had to prove that he or she was a workman with reference to dominant nature of duties. In the present case, I have no hesitation in holding that the petitioner has failed to discharge this burden.27. There is no doubt that petitioner held a transferable job and did initially agreed to report to Mysore. Mr. Cama in the course of submission invited my attention to schedule of amendment proposed by the petitioner in the complaint. In paragraph 5.3(w), the petitioner complained that he had been denied protection and backup of fellow members of LTOSA and he had been deliberately transferred out of purview of LTOSA and therefore would not have protection at Mysore. This he submitted was one more indication of the fact that the petitioner was never keen to join at Mysore. Although Mr. Singhvi pointed out that the amendment had not been permitted that by itself would not make the proposed amendments irrelevant. To my mind, the contents of the proposed amendment are useful in order to evaluate the argument on behalf of the petitioner that he was at all times workman and continue to do the job of workman although he had been granted designation of a supervisor.28. Furthermore, Mr. Singhvi has contended that the petitioner has never claimed to be doing work of clerical nature but of a workman. He further submitted that the respondent did not deny that the petitioner is not doing clerical work and that all documents relied upon by the petitioner only indicate that he was executing certain jobs on instructions of superior including that of setting up guest house etc. In conclusion, I am satisfied that the transfer was not malafide. There is also no substance in the contention that the petitioner was victimised. The petitioner simply refused to report for work based on his own judgment of the reason for the transfer. Nothing shown to me justifies the petitioner allegations in his complaint. The impugned order is in my view well reasoned and fair I am of the view that the petitioner has failed to make out a case for interference by this Court.