Case: United India Insurance Company Limited Vs. H.K. Khatau &amp; Others

was restricted only to the claim that the work performed was either supervisory or technical. In view of the concession made before the Division Bench, the only question which fell for determination was whether as contended by the management, the employee was covered by the expression in Clause (iii), as a person employed mainly in the managerial or administrative capacity. The Division Bench, on the material before it, came to the conclusion that Variava was not a workman as he was not employed to do supervisory or technical work. We fail to appreciate how this decision would be of any assistance to the petitioners in the present case as the decision in Variavas case does not lay down any principle to the effect that the Field Workers are not performing manual or clerical work. The decision in Cariavas case centred round only as to whether the employee was performing supervisory or technical work and on the material produced in that case, the finding was recorded against the employee. In our judgment, the decision in Variavas case is of no assistance in the present case.11. Reliance was also placed on the decision of the Single Judge of the Madras High Court in Writ Petition No. 184 of 1977 (The Oriental Fire and General Insurance Co. v. Shrinivas and others)4, to claim that the Field Workers are not employees within the definition of section 2(e), of the Act. It is true that the learned Single Judge of the Madras High Court, on the material produced in that case, came to the conclusion that the main or substantive work performed by the employee being one of canvassing the insurance business and developing and promoting the business of the Company, the employee would not fall within the meaning of section 2(e), of the Act. With respect to the learned Single Judge, we are unable to find any reasons in the judgment which led to the conclusion that the employee was incidentally doing clerical work. It must be stated that it was not urged before the learned Single Judge that the work performed by the Field Worker as really manual work. The submission before the Single Judge seems to have been restricted to the claim that the work done by the Field Worker was of a clerical nature. The learned Judge on the material produced felt that main or substantial work being of canvassing, some incidental clerical work done by the Field Worker would not enable him to be designated as employee under the Act. On the material produced in the present case we are satisfied that the work performed by respondent No. 1, was manual as well as clerical and, therefore, he is entitled to claim advantage of the provisions of Payment of Gratuity Act which is a beneficial legislation enacted to give assistance to the lowly paid employees.12. Shri Kothari submitted that in the two petitions in which he is appearing the employees had not specifically claimed in their application that they were doing manual or clerical work and, therefore, in case we are inclined to take that view we must remit the matters back to the authorities for giving a fresh opportunity to the petitioners to lead evidence to establish that the work carried out by the employees was neither manual nor clerical. We are unable to appreciate the submission that a fresh opportunity should be given to the petitioners to lead further evidence. It must be remembered that the application filled by an employee section section 4, of the Act cannot be considered as a pleading in the suit and the claim of an employee cannot be defeated on technical grounds. Apart from this, we find that in a detailed written statement filed on behalf of the petitioners, it was specifically denied that the employee was not engaged to do any manual or clerical work. The petitioner company had ample opportunity to lead evidence before the authorities and in fact did so. On the material produced before the authorities, if it becomes evident that the work performed by the employee was of a manual or clerical nature, then it is futile for the petitioners now to claim that they should be given a fresh opportunity to establish the contrary. The material was produced by the parties before the authorities and it is for the Court to ascertain what was the nature of work from the duties performed by the employee. In our judgment, the claim advanced by Shri Kothari for remission of the matter for a fresh opportunity is without any merit and deserves to be repelled.13. A faint submission was also advanced by Shri Kothari that the application was not maintainable as it was barred by limitation and the Act had no application to the Insurance Companies. We find no merit in this contention advanced on behalf of the company which is a nationalised one and which is fighting against the lowly paid employees for a small amount of gratuity awarded by the two authorities below. The authorities below very rightly condoned the delay, if any, on the part of the employee in filling the application and the discretion exercised by the authorities below, and which we think very rightly exercised, cannot be disturbed in these proceedings under Articles 226 and 227 of the Constitution of India. The submission that Insurance Companies are not covered by the provisions of the Act is also without any substance as the Act specifically provides under section 1(3)(b) that it shall apply to every establishment within the meaning of any law for the time being in force, in relation to the establishment employing ten or more persons. Shri Kothari could not deny that the petitioner Company is an establishment employing more than ten persons. In our judgment, the defence raised by the petitioner Company to the application made by the employee is without any substance and the authorities below were justified in granting the applications and awarding the amount of gratuity to the employees.

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

Explanation:
0[ds]It is not possible to accept this submission. Respondent No. 1, filed the application claiming gratuity under the Act and the action was not for enforcing the contractual liability but for enforcing the statutory right conferred under the Act. Respondent No. 1, was not claiming that under the conditions of service he was entitled to the gratuity, but his claim was based upon the provisions of the Act. Section 14, of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or in any instrument or contract having effect by virtue of any enactment under the Act. The sweep of this section clearly provides that the right to claim gratuity by an employee under the provisions of this Act is not based on any contract but a right which arises out of the provisions of the statute itself. The mere fact that there was no gratuity scheme in Vulcan Insurance Co. or the merger scheme did not provide for grant of gratuity is not sufficient to hold that the application of respondent No. 1 was not maintainable. The provisions made under the Act are in addition to the rights conferred on the employee under the conditions of service contained in any contract or any Act. As there was no provision under the conditions of service for grant of gratuity, respondent No. 1, is entitled to claim gratuity under the provisions of the Act, and in our judgment, the authorities below were justified in holding the contention of the petitioners that the application was incompetent on the ground that the conditions of service or the merger scheme did not provide for grant of gratuity was without anyis not in dispute that the scheme known as the General Insurance (Rationalisation of Pay Scales and other Conditions of Service of Development Staff) Scheme, 1976 was framed under the provisions of section 16(1)(f) of this Act. The scheme categorises Development Staff in four categories and those are (1) Development Superintendents; (2) Inspectors Grade I; (3) Inspectors Grade II; and (4) Field Workers. Rule 17 of the scheme provides for payment of gratuity to the Development Superintendent, Inspectors Grade I and Inspectors Grade II on the termination of theiris not possible to accept the submission of the learned Counsel. The reading of(7) of section 16 of the General Insurance Business (Nationalisation) Act indicates that if there is any clash of interest between the provisions of this Act and the Scheme framed thereunder with the provisions of any other Act, then the provisions of General Insurance Business (Nationalisation) Act and the Scheme thereunder would prevail. Therefore, it is necessary to ascertain whether there is a clash of interest when respondent No. 1 claims gratuity under the Act.6. It is not in dispute that though the nationalisation scheme covers the conditions of service of the field workers, it does not provide for the payment of gratuity to the field worker. The scheme is silent in regard to the payment of gratuity to the field workers and the reason is not far to see. Shri Chedha pointed out that it was the policy of the Insurance Companies to phase out the category of field workers, as they were very lowly paid employees, and were not highly educated. The Insurance Companies decided to assimilate the employees belonging to the category of field workers in the grade of Inspector Grade II provided their work and the out put was found satisfactory. Those field workers, who were not found upon the mark were relieved from their employment within a period of about a year from the date of the scheme coming into effect. It, therefore, appears that the nationalisation scheme framed by the Insurance Companies did not make any provision for grant of gratuity to the Field Workers as most of the Field Workers were either merged in the cadre of Inspectors Grade II or were relieved of their duties within a period of one year. As the nationalisation scheme is silent about payment of gratuity to the field workers, who obviously must be very few in number, it is impossible to conclude that what the scheme intended was to deprive them of the right to claim gratuity. Shri Chedhas submission that by conscious action the scheme provided for depriving the field workers, who were obviously the lowly paid employees depriving the Field Workers, who were obviously the lowly paid employees of the employees at the bottom of the ladder on the development side, from the grant of gratuity cannot be accepted. As the insurance companies had decided to abolish the post of field workers within a year of the scheme coming into operation, probably no provision was made in the scheme for payment of gratuity to such workers. It is impossible to assume that the scheme which provides for payment of gratuity to other three categories of employees on the development side, deliberately intended to exclude workers at the bottom from advantage of gratuity. In our judgment, under the circumstances there is no clash of interests whatsoever between the right of the Field Workers to claim gratuity under the provisions of the Act and the provisions of section 16 or the scheme framed thereunder. In our judgment, the conclusion recorded by the two authorities below that respondent No. 1, stands entitled to claim gratuity under the provisions of the Act is in accordance with law and cannot be faultedsubmission made on behalf of respondent No. 1 is quite attractive, but we need not record any finding on that aspect because in the present case we find that respondent No. 1 was performing manual or clerical work and would therefore, come within the definition of employee and would be entitled to claim benefits of theare unable to accept this submission. The work which respondent No. 1, was required to perform is of visiting customers at their houses and canvassing and doing business by selling the insurance policies. We are unable to appreciate now the work of respondent No. 1, or visiting customers and selling insurance policies, collecting premium amount and depositing it in the office cannot be treated as a manual work. The manual work cannot be restricted only to those cases where a worker is required to carry out certain work by his hands. Take for instance, the work performed bywho are required to visit several houses to sell the product. The work performed byis undoubtedly of promoting the sale by effecting sales of the product of the Company which engages them. The work performed by such persons is certainly a manual work and we do not see any distinction between the case of a sales girl visiting the houses for selling the product of the product of the company and a Field Workds, who is required to visit the houses of the customers for selling the insurance policies. It is obvious from the material on record that the Field Workers are lowly paid employees and are employed to travel over the town and contact various customers, and in our work. We also find that it is one of the duties of the Field Worker to collect the premium amount from the customers and to deposit it ultimately in the office, and we do not see any reason why the work of this nature performed by the Field Workers should not be treated as clericalare unable to persuade ourselves to this line of reasoning in the case of Field Workers, there is no question of dominant work or an incidental work. The duties performed by the Field Workers are to visit the customers and to sell the insurance policies and then to service the policies till maturity by attending on customers. In the performance of this work, there is nothing like dominant work or incidental work and merely because the Company claims that the Field Workers were employed to canvass business it is not sufficient to conclude that the work performed by the Field Worker is neither manual nor clerical work. In our judgment, applying the test laid down by the Supreme Court in the Case of Burmah Shell, there is no manner of doubt that respondent No. 1 was performing manual work and clerical work so as to entitled him total within the definition of employee under thehave perused the judgment very closely and in our judgment, the reliance on the judgment in Variavas case is of no assistance to the petitioners. In Variavas case the employee was appointed to work as an agent of a Company carrying on business of general insurance and the terms and conditions of the appointment of the employee were for servicing unit which was opened at Nagpur. The service of the employee was terminated and the reference was made to the Industrial Tribunal under section 10(1)(d), of the Industrial Disputes Act, to ascertain whether the action of the management in terminating the services of Variava was legal and justified. The Tribunal came to the conclusion that Variava was not a workman within the meaning of the term in section 2(s), of the Industrial Disputes Act and the reference was not tenable. In the petition filed under Articles 226 and 227, of the Constitution of India before the Division Bench it was conceded on behalf of Variava that he was not claiming to be a workman on the ground that he did either skilled manual work or skilled clerical work. The claim of Variava to be treated as workman was restricted only to the claim that the work performed was either supervisory or technical. In view of the concession made before the Division Bench, the only question which fell for determination was whether as contended by the management, the employee was covered by the expression in Clause (iii), as a person employed mainly in the managerial or administrative capacity. The Division Bench, on the material before it, came to the conclusion that Variava was not a workman as he was not employed to do supervisory or technical work. We fail to appreciate how this decision would be of any assistance to the petitioners in the present case as the decision in Variavas case does not lay down any principle to the effect that the Field Workers are not performing manual or clerical work. The decision in Cariavas case centred round only as to whether the employee was performing supervisory or technical work and on the material produced in that case, the finding was recorded against the employee. In our judgment, the decision in Variavas case is of no assistance in the presentis true that the learned Single Judge of the Madras High Court, on the material produced in that case, came to the conclusion that the main or substantive work performed by the employee being one of canvassing the insurance business and developing and promoting the business of the Company, the employee would not fall within the meaning of section 2(e), of the Act. With respect to the learned Single Judge, we are unable to find any reasons in the judgment which led to the conclusion that the employee was incidentally doing clerical work. It must be stated that it was not urged before the learned Single Judge that the work performed by the Field Worker as really manual work. The submission before the Single Judge seems to have been restricted to the claim that the work done by the Field Worker was of a clerical nature. The learned Judge on the material produced felt that main or substantial work being of canvassing, some incidental clerical work done by the Field Worker would not enable him to be designated as employee under the Act. On the material produced in the present case we are satisfied that the work performed by respondent No. 1, was manual as well as clerical and, therefore, he is entitled to claim advantage of the provisions of Payment of Gratuity Act which is a beneficial legislation enacted to give assistance to the lowly paidare unable to appreciate the submission that a fresh opportunity should be given to the petitioners to lead further evidence. It must be remembered that the application filled by an employee section section 4, of the Act cannot be considered as a pleading in the suit and the claim of an employee cannot be defeated on technical grounds. Apart from this, we find that in a detailed written statement filed on behalf of the petitioners, it was specifically denied that the employee was not engaged to do any manual or clerical work. The petitioner company had ample opportunity to lead evidence before the authorities and in fact did so. On the material produced before the authorities, if it becomes evident that the work performed by the employee was of a manual or clerical nature, then it is futile for the petitioners now to claim that they should be given a fresh opportunity to establish the contrary. The material was produced by the parties before the authorities and it is for the Court to ascertain what was the nature of work from the duties performed by the employee. In our judgment, the claim advanced by Shri Kothari for remission of the matter for a fresh opportunity is without any merit and deserves to befind no merit in this contention advanced on behalf of the company which is a nationalised one and which is fighting against the lowly paid employees for a small amount of gratuity awarded by the two authorities below. The authorities below very rightly condoned the delay, if any, on the part of the employee in filling the application and the discretion exercised by the authorities below, and which we think very rightly exercised, cannot be disturbed in these proceedings under Articles 226 and 227 of the Constitution of India. The submission that Insurance Companies are not covered by the provisions of the Act is also without any substance as the Act specifically provides under section 1(3)(b) that it shall apply to every establishment within the meaning of any law for the time being in force, in relation to the establishment employing ten or more persons. Shri Kothari could not deny that the petitioner Company is an establishment employing more than ten persons. In our judgment, the defence raised by the petitioner Company to the application made by the employee is without any substance and the authorities below were justified in granting the applications and awarding the amount of gratuity to the employees.