VED PRAKASH GUPTA

D.ELTON CABLE INDIA (P) LTD. l.t

March 8, 1984.

}).A. DESAI 0. CHJNNAPPA REDDY & A. VARADARAJAN JJ.)

 Industrial Disputes .Act. 1947 S. 2(s)-Definition of Workman-Scope of- Covers.an employee whose substanriQl duty is of a securit)I inspector _at the gate of

factO'.Y premises.

Industrial Disputes Act, 1947-S. 2(ra)"-Dejinition of unfair labour practice- Scope of-Dimissal on flimsy gr/Jund-Wh; ther amounts to vict!mjzation or unfair labour pr:actlce by management.

Natural Justice-Principle ... of-Enquiry officer nat summoning necessary D witnesses-Whether findings of enquiry ojfiCer pen>erse.

The appellant, an.e1nployee_ of the respondent, was charg-:d for abusins,, some feHOw worker oi officer of the management within the premises of the_

factory of the respondent. In dome,.stic enquiry the Enquiry Officer found the appellant guilty of the charge. The .mt\nag"ement dismissed the appellant. On a reference being made under s. tO(i)(c) of the Industrial Disputes Act. 1947 the Labour Cout held on preliminary issue that the reference was bad in law bccauSC>the appellant was not a workman under s. 2(s) of the Act. The Labour Court's findirigs w.:re challengCd by the appellant in a writ petition which was dismissed by the High. Court in limine On a special leave petition being fi.Jed by the appellarit from which this appeal arises, this Court dfrected the Labour Court to try the other issues before it on the basis that the appellant was a

workman. The Labour Court held that the finding of the Inquiry Officer was ... perverse; the punishment of dismissal was dispr0porti6nate to the gravity of the charge and the appllanl was entitled to reinstatement with full back wages and continuity of service. The management filed a writ petition in the High Co'urt challenging the findings of the Labour Court. This writ petition was transferred to this Court.

Allowing the appeal and dismissing the.writ petition,

HELD : A perusal of the evidenee shows that the substantial part of the work of the appellant consisted of looking after the security oflhe factory and its property by deputing t.he watchmen working under him to \\'Ork at the factory

gte or sending them to watch-towers or around the factory or to accoin.pany v.lSitors tb the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as' Te&ards materjaJ entering or, going out of the premises oftlte factory. The apellant could never appoint or dismiss any workman or orer any enqu~? against any workm; in. In these circumstance'

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it is hetd that the substantial duty of the' appellant was only thatof a Security Inspector at the &ate of the factory premises and that it was nelther-managerial nor supervisory in nature in the sense in. which those terms are understood in industriaJ law. Theref.ore he clearly falls within the definition of workman Under s. 2(s) of the Act and the reference of the dispute under s. IO(i)(c) of the Ac.tis valid in, aw. [17'IBC, E-G]

It is seen from the judgment of the Labour Court that though \be appellant had produced before the Enquiry Officer 5 sheetS of.papers with the signatures of about 100 workmen of the factory in support 'of the statement that the appellant had not abused anyone in the factory dufing the course 'of his servjce and the manage'ment had produced Exts. M-6, a list of 90 peisons before the Enquiry Officer, he h'!d not called any of those persons .to ascertain thetruth regarding the allegCd abuse by the appellant. It is also seen from the judgment of the Labour Court that.the appe'llant was hot giVen a list of the management's witnesses before the commen9ement of the domestic enquiry. In these cir<:um stances, the conclusion of the Labour Court that the Enquiry Officer had not acte4 properly in the proceedings and that he had not given full Opportunity to the appellant as required by law does not call for any interference: [178CE]

The punishment ..awarded to the appellant is shockingly disproportionate "regard b, eing l; ad to the charge framed against him. No resporisible eployer

would ever impose in like circumstances the .punishn1ent of dismissal to the employee, and victimizatio~ or unfair labour practice.could well be inferred irom •the conduct of 'the management in aWarding the extreme punishn1ent of dis- . missal for.a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of thefactory. [l78G-H, 179A]

Therefore termination of the apiJellant's sf;:rvice is invalid and unsustainable 'in law. [179A]

L/yods Bank Ltd. v. Panna lat Gupta & Others(l961) LLJ.18 and Construction and Engineering Company Ltd. v. Their Wor.kmen (1965) LLJ. 462, .

refrred to~

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1673 ~~. . ..

ApJ?eal by Special leave from the Ju<lgment and Order dated the !Ith hnuary, 1982 of the Punjab and Haryana High Court in Civil Writ Petition No. 26 of 1982).

G o. P. Malhotra, and N, S. Das Bahl and Pawan K. Bahl for

the Appellant.

Shanti Bhushan and V.P. Chaudhary for.the Respondent.

The Judgment of the Coutt was delivered by

V ARADARAJAN, J. This civil appeal by special leave is direced itgainst the judgment delivered by the Division Bench of the Punjab

V.'f>. GUPTA v .. DELTON CABLE (Vardarajan, J.) j 7J

& Haryana High Curt on 11.1.1982 dismissing in limine Writ

Petition No. 26of1982 which had been filed by the appellant Ved Prakash Gupta. The appellant was an employee of the first respondent M/s; Delton Cable India (Pl Ltd. Faridabad, Haryana. He was given a charge-sheet by the management on 5.8.1979 and dismissed from service on 13.9.1979 after having been found guilty of the charge in the domestic enqiry conducted by the Enquiry Officer who has been examined as one of the witnesses on the side of the mana-· ' gement before the Labour Court at a later stage. There was reference of tHe dispute arising out of the dismissal of _the appellant to the Labour .Court, Faridabad in Reference No. 143 of 1980 under

s.10 (i) (c) of the Irldustrial Disputes Act, hereinafter referred to as the 'Act.' The Labour Court framed the following issues. ·

(i), Whether the claimant Shrl Ved Prakash Guljta was in the position of a workman under the Industrial Disputes Act?

If so, to what effect?

(ii) Whether tlie reference is bad in law in view of the objections raised in the written statement? If. so, to what effect?

(iii) Whether proper and 'valid . domes-tic enquiry has been E , conducted? If so, to what effect?

(iv) Whether the termination of the service of the workman is proper, justified and in order? If not, to what relief is he entitled? • Issues l and 2 were tried as preliminary issues by the Labour Court. The Labour Court held on issue no. l that the appellant Is not a workman within the 'maning of the definition of workman contained in s. 2(s) of the Act. Consequently, it was held that the reference is bad in law in the light of the bjections raised by the ll'.!anagement in the written statement. The Labour Court held that there was no need to consider. the other two issues and passed an award against the appellant. It was against that a, ward that the appel)ant filed the writ petition which was dismissed by the Division Bench of the High Court in limine on 11.1.1982. This Court granted special leave 'to appeal against the judgment of the High Court and later directed the Labour Court to try the other issues on the basis that the appellant is a workman as per the f\ct. The Labour Court accordingly tried the other two issues and held that though the domestic enquiry

stlP_l_\BME Collilt REPORTS [1984] 3 s.c.it

was fair and proper the finding of the euquity officer was perverse.

The Labur Court has observed: •

"The Enquh;.y Officer should have given findings according to the evidence before him intbe enquiry proceeding. J; Ie bas neglected M4 and M-6 while giving the findings in the enquiry. -He also failed to summon the necessray witnesses

an,4 tejected the request of the workman for challenging those witnesses.''

The Labour Court found that the punishment of dismissal awarded to the appellant was disproportionate to the gravity of the charge framed against him and that be is entitled to reinstatement with full baci\: wges and continuity of service.

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The management filed Writ P.tition No .. 4567 of 1982 in the' High Court against the order of the Labour Court holding that the finding of the Enquiry Officer was perverse and that the appellant

. Y is entitled t0 reiastatement With full back wages and continuity of service. The writ petition has been itbdrawri to this Court by order dated 9.7.1983 to be beard along with the civil appeal. This .. is how the. civil appeal and writ petition have come up before us . .

E .

Arguments were advanced before us by Mr. 0. P. Malhotra

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appearing for the appellant and Mr. V. P. Choudhary appearing for management on two points viz:(!) whether tbe appellant wa~ • .:/ a workmen at the relevant time and (2) whether his dismissal is valid in law

The charge framed against the appellht was a~ follows:

"You were on duty on 31.7. 1979 and 1.8..1979 from 8 a.m .. to 4 p.m. It was reported against you as under:

On 31. 7 .1979 a person from M/s. Gurnmukh Dass (building material supplier) came to lMI department with two copies of challan No. )05 dated 15.7.1979 f9r obtaining the signature of the person mncerned in ·;1oke1i of having received 2000 bricks. The copies ofthe chanan were having the gate entry. Shri Durg Singh on instructions of Mr. S.K.

Bagga, junior Engineer, went to the gate for confirming whether the bricks have been received in the factory premises. us per the challan. It was found that the gate entry for the . . ., .

.L.

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V.P. GUPTA v. DELTON CABLE (Varadarajan, J.) 173

supply of 2000 bricks as per the challan aforesaid had been A cancelled in the gate register. You, however, tookthe challan (both copies) from Shri Durg Singh and cancelled the gate

entry from the challan and returned goth the copies to the perso°' of M/s; Gnrumukh Dass.

That on 1.8.1979 as pe. the instructions of IM! department one Mr. Hira Laf, the worker ofIMI department was sent to the gate office in connection with a challan of a water pump. As the worker i.e. said Mr. Hirn Lal did not come back to IMI department for quite some time Mr. S.K. Bagga, •Junior Engineer of IM! department persona!Ly went to the . gate office. He (S.K. Bagga) apprised Mr. Deep Chand

Senior Security Officer of the irresponsibl~ manner in which yon delivered the chalian to the persop of M/s. Gurumukh Dass instead of to IM! department. When Mr. Deep Chand further verified this fact from you you showed ignorance and

- demanded t0 know the name of the person who had said so.

When informed that it was Durg Singh you without any rhyme and reason or provocation abused Shri Durg Singh in a filthy manner saying (translated in English as I fuck the mother of Dnrg Singh ; bring him). You were advised that being a responsible employee and that too belonging' to the security departmnt you should not abuse any employee but you continued in hot temper and demanded Mr. Durg Singh to be called in the gate office.

When Shri Durg Singh was brought and in your presence he once again confirmed and . reiterated.that yon had given the chal!an to the person of M/s.

Gurumukh Das yon lost all your senses and started abusing Shri S.K. Bagga left and right in a filthy, derogatory and abusive manner. You said (translated in English as-you should try liard to. your gandh; y, ou cannot do anything worng to me. Yon may go to Ram Kumar or yon may go to Vijay Ku; mar): The above conduct of yours is gross misconduct as you have lost the basic. courtesy which yon were supposed to extend to the employees as a responsible member of the security staff. The charges if proved will result in total loss of confidence in you."

Jhe two questions arising for our consideration in the civil appeal and writ petition are :

(i) whether the appellant was a workman within the meanin$

<;>f s. 2. (s)'Of the Act ?; an~

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174 SUPREME co.URT REPORTS

(1984] 3 S.C.R.

(ii) whether. the termination of the appellant's service is

proper?

 On the first question there is evidence of only the appellant .examined as WW-I on his side and of the Personnel Manager examined as MW-! 0n the side of the management. The evidence WW-I shows that he was originally recruited as a clerk on a .salary of Rs. 160/- per mense.m. It was admitted by MW-I t!iat at the time of the termiqation of his service WW-I was dtawing total emoluments of Rs. 581/- per mensem as Chargeman security equivll- . lent to a security Inspector as stated in the appellant's claim statement. He was working under the Security Officer and varions other heads of departments of the management.

He has deposed thtt he used to perform the duty of a Chowkidar whenever one left.the place temporarily for taking tea etc.

He has also deposed that he used to accompany accounts branch people as a gaurd ', Vhenever they carried money. He. has statd. that he was ordered to fill up leave application forms of other workmen and counter-sign them before they were approved by the Security Officer. It has ben elicited from him that he has filled up duty registers of workmen and thai some small store items like torch-cells were issued from the

store~ under his signatures. It is seen from his evidence that such store items could be got from the stores under tohe signatures of . . ' even watchmen. On the other hand, MW-I has stated in his evidence that Exts .. M-1 to M-7 are copies of leave applications of workmen containing the apellant's signatures and .that Exts. M-50

anct' M-Sl bearing the appellant's signatures are identity cards .issued by the management to workmen. He has. stated that the Security Inspector is provided with a. chair and a table and three telephones- . one of them an intercom, one connected with the fact.ory and the ·

third connected with the exchange of the telephone department and that the appellant was an officer of the first rank in the respondent's factory. There is no doubt whatsoever that MW<-1 is exaggerating the position which the appellant was holding in, t!ie respondent's factory.

He has admitted that the telephone is piovided in.the Security Inspector's rooni at the gate of the factory premises only to pass on immediate information to other places from the gate of the factory: The telephon, s provided in the Securify Inspector's room at the gate of the factory premises are not intended for the Security• Inspector to carry on any managerial function. MW-I has admitted , jn his evidence that the, Security Inspector ould not appointor dismiss or even take any disCiplinary action against any workman of the

etj:ilishmen\. He has stated that the Security Inspector has control

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V.P. GUPTA v. DELTON CABLE (Varadarajan, J.) 175

over 5 watchmerl, drivers, Rickhaw-pullars and sweepers-16 persons. in all and is ip. overall charge of the factory during the first and third shifts which cover the period from 12 mid-night to 8 a.m. while. the important second shift is from 8 a.m. to 5 p.m. According to the evidence of MW-1 the security Inspector allots duties to persons working under him by way of retaining them at the factory's gate r sending them to watch-towers or for moving around the factory or . accompanying visitors to the factory.

He could order his subordinates to come for overtime duty, sanction , leave for them and recommend for advances and for their promotion. He could issue identity cards like Exts. M-50 and M-51 to workmen and draw small items of stores and issue them to the security staff. He has admitted that the Security Inspector has writing work for only 10 to 30 minutes in the second shift and almost no writing work at all in the first and third shifts and that the writing work consists of entering the names of visitors in the .visitors' register and making entries in respect of in-coming and out-goi!'g materiais in the concerned registers.

S. 2(s) of the'.Act describes a workman and reads :

"workman' means any person (including 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 employiner\( be express or implied and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connec- _ tion with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment ha;" 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 I 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 hundred rupees per mensem or exercises, either by the nature of dutis atta"ched to the office .or by reason of the powers:vested in him, func tions mainly 'of a managerial nature." '

The respondent-management can at best contend that the appellant would fall under s. 2(s) (iii). That has been its attempt before the Labour Court and also in this Court. The management's endeavour is to show that the appellant who admittedtly was drawing total emoluments of.only Rs. ~81/· per mensem at the relevant time was employed in a managerial or administrative capacity and was therefore not a workman who could raise a dispute under the Act.

This Court has stated in Llyods Bank Ltd. v. Panna .Lal Gupta & Others 1 that though it would be legitimate to say that the work done in the audit department is 'important for the proper and efficient functioning of the bank it would be idle to elevate that work to the status o\ offiers who supervise the work of everybody concerned with the bank's establishment. It would be useful to remember in this connection what this Court had stated in Hind Construction and

Elfgineering Company Ltd. v .. T}leir work'!'en.• It is this :

 "The tribunal's Power has been stated in this Court in a large number of cases and it has been ruled that the tribunal can only interfere if the conduct of the employer shows lack of bona !ides or victimization of employee or employees or unfair labour practice. The tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding but it cannot substitute its own appraisal of the evidence for that of the officer conducting .the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all......... The tribunal is not required to consider the propriety or adequacy of the punishment or ' whether it is excessive or too severe .. Bnt 'where the punish

ment is shockingly disproportionate regard being had to the

(!) [1961] L.L.J. 18

\2) [1965] L.L.J. 46?

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v.P. GUPTA v. DELTON CABLE (T'.aradarajan, J.)

particular conduct and the past record or is such as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition qf uch punishment as hself showing victimization or unfair labour practice."

A perusal of.the evidence of WW-1 and MW-1 •regarding the nature of the duties performed by the. appellant shows that the substantial part of the work of the appellant consisted of looking after the sec1Jrity of the factory and its property by deputing the watchmen working upder him to work at the factory gate or sending them to watch-towers or around the factory or to accompany . visitors to the factory and mal[ing .entries in the visitors' .register as regards the visitors and in the concerned registers as regards . ' . . materials entering or going out of the premises of the factory. It must be noted that MW-1 has admitted in his evidence that there is nothing in writting to show what duties are to be carried out by the appellant. Placed in such a situation the appellant might have been doing other items of work such as signing identity cards of workmen, issuing some small items of stores like torch-cells etc. to bis subordinate watchmen, which can be got from the stQieS even under . the signatures of watchman and filling up applicatio1;1 forms of other

workmen and counier-signing them or recommending advances and loans or for promotion of his subordinates. It must also be remembered that the evidence of both WW-I and MW-I shows that the appellant could never appoint or dismiss any workman or order . . any enquiry against any workman. In these circnmstances weold

that-the sulistantial duty of the appellant was only that of a Security Inspector at the gate of the factory premises and that it was neither. managerial nor supervisory in nature in the sense in which those terms are understood in industrial law. In the light of the evidence and the legal position referred to above we are of the opinion that. the finding of the Labour Courfthat the appellant is not a workman within the meaning ofs. 2(s) of the Act is perverse and could not be supported.

On the evidence available on record we bold that the appellant clearly falls within the definition of a workman ins. 2(s) of . the Act and that the reference of the dispute under s.10 (i) (c) of the Act is valid in law.

 The finding of the Labour Court that the enquiry was fair and prqper in the light 'Of its own finding that the enquiry :"fficer failed to summon the necessary witnesses and rejected the request of the _.appellant for challenging the witnesses could not be stated to be correct.

On the merits some witnesses were examined on the side pf the management before the Labour Court and they are S.K.

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Bagga, MW-2, Hira Lal, MW-3, Deep Chand, MW-4 and Laxmi *-;.-

Chand, MW-5 an Accountant ofM/s. Gurumukh Dass, MW-2 has '--.. deposed about the appell; mt abusing Durg Singh who according tq the appellant was the Secretary of a Labour Uniou while the appellant and others were trying to canvass membership for a rival trade union.

MWs-3 and 4 are stated to have corroliorated the evidence.of MW-2.

MW-5 is the only independent witness examined on the side of the management. It is seen from the judgment of the Labour Court relating to the merits of the case that MW-5 who has deposed aout . the challans Exts. M-7 and M-8 having been returned to the persori who accompanied him from the maintenance,. department had not supported. the management that. the appellant abused Durg Singh or any other person within the premises of the factory. It is aiso seen from the judgment of the Labour Court that though the appellant had produced before the Enquiry Of11cer 5 sheets of papers with the signatures of about 100 workmen of the factory in support of the statement that the appellant had not abused anyone in the factory during the course of his service and th.e management had produced Exts. M-6, a list of90 persons before the Enquiry Officer, he had not called any of '.. - . those persons to ascertain the truth regarding the alleged abuse of Durg Singh and S.K. Bagga by the appellant. I.tis also seen from the judgment of the Labour Court that the appellant was not given a list of the management's witnesses before the commencement of the domestic enquiry. In these circumstances, we are of the op; nion that thl!! conclusion of the Labour Court that the Enquiry Officer had not" acted properly in ihe proceedh1gs arid that he had not given full . ' . opportunity to the appellant as required by law does not call for any interference. The charge levelled against the appellant is not a serious one and it is not known how the charge even if proved would result in any much less total loss of confidence of the management in the appellant as the management would have it in the charge. It was argued In the Labour Court that there was no previous adverse remark against the appellant. There is nothing record to show that any previous adverse remark against the appellant had b.een taken into consideration by the management for a warding the extreme penalty of dism.issal from service to the appellant even if he had In fact abused in filthy language Durg Singh and s.K. Bagga.

We are therefore of the opinion that the punishmerit]awarded to the appellant. is shockingly disproportionate regard being had to the charge framed against him.· We are also of the opinion that no responsible employer would ever"impose in'like circumstances the punishment of dismis~.1 to the. employee and that victimization or unfair labour practice could well be .inferred from the conduct of the 111a11asement in,

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• V.P. GUPTA v. DELTON CABLE (Varadarajan, /.) 1 :9

awarding the extreme punishmeni of dimissal for a flimsy charge of abuse of some worker or officer of the management by the-appellant wtthin the, premises of the factory. We therefore hold that the termination of the appellant's ervice is invaliili and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. The appeal is allowed accordingly with costs qu; mtified at Rs. 1,000. The writ petition is dismissed without costs.

H.S.K.

Appeal allowed.

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