Notes on Workman under Labour Laws

 

>>> Even a supervisor (by designation: even Manager, Officer) and irrespective of the salary is a workman.

 

>>> It is nobody's case that the workers are getting a living wage which is an ideal wage.

>>> The Wage Debate Should Be About Poverty Not Jobs.

>>> There are enactments that provide or decline benefits according to lower paid, higher paid employees amongst workers/workmen………..e.g; Payment of Bonus Act.

A ‘Supervisor’ that might be higher paid is also covered by the, definition of, ‘Workman’ as in, The Industrial Disputes Act.’

 

>>> Neither the appellation to the post, nor the salary, would decide as to whether the employee is covered within the definition of ‘workman’.

So an employee that is designated as a Supervisor (or even Manager, Officer or even who signed as Director as in some case that landed up in court of law) may also covered by the, definition of, ‘Workman’ as in, The Industrial Disputes Act.’

Name or designation given to the post is not conclusive on the issue.

 

>>> Determining employee is a ‘Workman’::: is a mixed question of fact and law.

 

>>> The employers and attorneys of employers in Line management /Human Resources/Legal cells have strived to confuse between:

Supervisor: Not supervising the work of others.

Supervisor: Performing duties of supervisory nature.

 

The invariable stand has been to claim that targeted employee does not enjoy the protection and umbrella of Labor Laws enacted in Republic of India, so as to deny reinstatement with consequential benefits/back wages, damages…………….. 

 

However the employee might still be covered within the purview of Labor Laws irrespective of ostentatious designation adorned upon the employee, by employer.

 

>>> Central Government Act

Section 2 in The Industrial Disputes Act, 1947

2. Definitions.

 (s) ⁵ " workman" means any person (including an 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 employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has 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; 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 the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

 

https://indiankanoon.org/doc/1418464/

 

>>> Merely because the clerks were doing the work of checking the accounts in Audit Department, they cannot be held to be supervisors.

Name or designation given to the post is not conclusive on the issue.

 

>>> Mere designation of an employee is not of any consequence for the purposes of determining whether he is a workman or not.  What are of importance are the nature of his duties, particularly his primary duties or his basic duties and the dominant purpose of his employment.

 

>>> The stand of courts of law and judiciary has been that: Courts have to look beyond glorified designations assigned by Managements and to examine the nature of duties.

 

 

>>> Thus the employee, while in employment, should be careful about his written comments in communications sent by him while in employment,  duties and actions being recorded in employment related records with employer and must also download the nature of his duties in practice and on record.

 

The bosses and employer may tactfully obtain commanding, authoritative, comments and relate with employee’s duties on record and in practice, which may be placed before a court of law in case of dispute and deny the coverage of ‘Workman’ and hence  umbrella of Labor Laws to employee.

One of the purposes of this article is the make an attempt to point to duties on record and in practice, also.

If the employee is vigilant and careful, employee can remain in coverage by umbrella of labor laws.

 

The employees that want to defend their interest should be careful of their duties in practice being recorded by employers. This record may be in the form inter office memo’s, emails etc etc

 

More so in cases; when a dispute is precipitating or when a dispute has precipitated.

 

Managements are its attorneys in HR/Legal are known, since old times, to prepare secretly to bring a change in duties of the employees on record to bring them out of coverage of umbrella of Labor Laws and also to tire the employees so that the employee do not approach court of law and/or do not pursue their complaints, and/or do not appear in court cases, and the claim of employee is defeated in court of law. It is a known fact that employee’s that put in efforts are successful. It is also a known fact that employer’s loose majority of the cases.

 

It is also a known fact that employee’s that are duly supported by employee’s unions, able counsels specializing in labor/service matters are properly informed and properly informed and supported employees succeed.

If employee has built irrefutable written record while in employment the employee as party in person or thru his able counsel specializing in labor/service matters can succeed with his claim.

 

The employee if does not enjoy the remuneration/powers of Officer/executive should avoide to write and sign in language that has  tone, texture and command, of Officer/executive, and then employee can succeed as covered as ‘Workman’.. …..

 

The decided cases/ judgments that show how and why  the employees lose their claims, and  the same time how the courts lift the veil and provide relief to employee, against the claims of employers. 

 

>>> In order to appreciate that the concerned employee is a ‘Workman’:: is a mixed question of fact and law………………..and also to ascertain why and how:: employees lose their claim on question of fact and law and Non pursuance, first of all, some decided cases/ judgments may be gone thru, in which employees lost.

 

 

-----As it can be seen in old judgment:

Calcutta High Court

Mcleod And Co. vs Sixth Industrial Tribunal, West ... on 10 February, 1958

 

 

1. This is an application under Article 226 of the Constitution. The petitioner is McLeod and Co, Ltd. The respondents are the Sixth Industrial Tribunal of West Bengal and the discharged employee K. P. Sanyal. The object of complaint is the award made by such Industrial Tribunal dated the 18th June, 1957, whereby Respondent K. P. Sanyal was held to be a clerk and workman of the petitioner. The Tribunal held that the termination of Sanyal's services without permission of the Tribunal was a clear contravention of Section 33 of the Industrial Disputes Act and therefore directed reinstatement of Sanyal in the post he was holding at the date of his discharge and payment of all his wages up to the date of reinstatement within 15 days of the publication of the award in the Calcutta Gazette.

2. Two objections have been urged against the award on behalf of the applicant. The first is that Sanyal was not a workman within the meaning of the Industrial Disputes Act. The second is that, even if he were, he is not concerned in the dispute under Section 33(1)(b) of the Industrial Disputes Act, so as to be competent to refer his discharge for the adjudication of the Tribunal under Section 33-A of the Statute.

3. The application raises important and large questions of construction of the Industrial Disputes Act as well as the jurisdiction of this Court in granting the writ of certiorari under Article 226 of the Constitution.

 

6. A preliminary point of objection has been taken on behalf of the respondent that in certiorari proceedings under Article 226 of the Constitution this Court does not act as a court of appeal and correct mere erroneous decisions in law. It is contended, therefore, on behalf of the respondent that even if the decision of the Industrial Tribunal is erroneous this court should not correct a mere erroneous decision by the constitutional writ of Certiorari.

 

10. Before entering into the mysteries of certiorari jurisprudence concerning the nebulous doctrine of error apparent on the face of it or the equally indeterminate doctrine of manifest error the short answer to this preliminary point can be given on the ground that here there is a clear question of jurisdiction of the Industrial Tribunal involved in this application. The determination whether a person is a "Workman" within the definition of the Industrial Disputes Act is the very foundation of the jurisdiction of the Industrial Tribunal entertaining an application under Section 33-A of the Industrial Disputes Act for wrongful termination of service in contravention of Section 33 of the Act during the pendency of any proceedings before the Tribunal. None else than a workman can make such an application……………………….

 

11. The applicant's prayer for certiorari is also in my view well founded in this case event on the Kamath Rule of Certiorari for manifest error apparent on the face of the proceedings based on clear ignorance and disregard of the provisions of law, and as laid down by the Supreme Court. The Tribunal, in my judgment has in this case, (1) come to patently inconsistent and contradictory conclusions by finding that privileges and conditions of service of officers applied to the respondent employee and the service conditions of clerks ceased to apply to him and yet holding that he remained a clerk and or "workman" and (2) by disregarding the statutory amendment of the definition of workman in the Industrial Disputes Act and applying the decision of Labour Tribunals based on previous definition before the amendment off the Statute.

12. The Tribunal's clear and definite finding of fact may be quoted in his own language:--

"Sj. Sanyal was given all the privileges which the officers serving under the Company used to enjoy. The service conditions applicable to clerks ceased to be applicable to him and conditions applicable to officers were made to operate in his case."

His conclusion thereafter that Respondent Sanyal still remained a clerk plainly contradicts that finding of fact. The Tribunal's application of the law or inference from such fact that he still remained a clerk 2nd, therefore, was a workman within the meaning of the Industrial Disputes Act is a manifest error patent on the face of the proceedings and within the doctrine laid down by the Supreme Court in the Kamath decision.

 

14. The Tribunal in this case having come to the conclusion that the conditions of service and the privileges applicable to clerks ceased to apply to the applicant and the conditions and privileges of officers applied to him this must be treated as a finding of fact.

 

  15. I, therefore, think that this Court has jurisdiction under Article 226 of the Constitution to supervise and determine for itself whether the Tribunal in this case has acted within the jurisdiction conferred upon it by the Industrial Disputes Act. If the applicant is not a workman, then obviously and plainly the Tribunal had no jurisdiction to entertain his application under Section 33-A of the Industrial Disputes Act.

 

18. Section 2(s) of the Industrial Disputes Act defines a workman. The main part of the definition is not directly relevant for the purposes of this application although reference to it will be necessary for a true construction of the exception contained in the section. That part of this definition which excludes certain persons from being workmen is material. That exclusion is contained in Section 2(s)(iv) of the Industrial Disputes Act. The other exclusions in (i), (ii) and (iii) are not again directly relevant for the purposes of this application although reference to them will be necessary for the construction and interpretation of the exception with which this application is concerned. Section 2(s)(iv) of the Industrial Disputes Act states that a workman does not include any such person…………..

 

20. In his evidence before the Tribunal, K. P. Sanyal stated:--

 "After the agreement I joined   'A'   group Provident Fund.    Clerks   are  not  entitled to contribute to 'A' group Provident Fund." He also said in his evidence before the Tribunal:-- 

  "Tea and biscuits are supplied to the clerical staff. When I became a junior grade assistant, I used to be supplied free tiffin. I took such tiffin for a year." 

 

 

 21.  In order to claim the benefit of a workman, K. P. Sanyal said also in his evidence before the Tribunal that he had no supervisory duty. He says:-- 

  "I had no supervisory duty. I had no power to report against any clerk nor did I have any power to take disciplinary action against any one." 

 

 

 He also says in his evidence before the Tribunal:-- 

  "Nobody worked under me. My boss used to distribute the work. It was no part of my work to distribute duties." 

 

22.  In cross-examination he further said before the Tribunal:-- 

  "Mr. Robertson was my immediate superior. He used to sign letters and documents on behalf of the Company." 

 

 

 23.  The applicant-company did not can any witness before the Tribunal. It submitted, however, its written statement before the Tribunal in answer to Sanyal's application under Section 33-A. In that written statement the Company contends:-- 

 

 

 "(i) It was on 1-1-55 that he was promoted to the grade of officers." 

 

"(ii) Sri K. P. Sanyal was appointed in the officers' grade and on 1-1-55 his duties changed and became mainly supervisory. He was in charge of the Jute Section of the Jute Mills Department and had under him 15 clerks and typists. He was responsible for the work of the department."

"(iii) With the change he also ceased to be a member of the Provident Fund for clerks and became a member of the Provident Fund for officers. As an officer, he became disentitled to Puja bonus and overtime pay."

24. The Company also relied on the evidence of K. P. Sanyal himself given before the Tribunal on 2-2-56 in the course of a departmental enquiry against a clerk after he became junior grade assistant. That copy of the deposition is an exhibit before the Tribunal. In that deposition K. P. Sanyal said:--

"I am junior grade assistant in charge of the Jute Section of the Jute Department. Before being promoted to junior grade, I Was senior clerk in charge of the Section."

The point about this evidence is that here K. P. Sanyal admitted before this dispute arose that he was in charge of the Jute section of the Jute Department. A person in charge of a Department cannot ordinarily in my view be a clerk even though he may not have power to take disciplinary action or even though he may have another superior officer above him.

25. The Company also relied on certain documents which were put to Sanyal in cross-examination before the Tribunal. They are intended to throw light on the nature of the duties performed by the respondent Sanyal. A brief reference to such documents will be relevant. One such document shows that Sanyal is signing an order directing "Bill for handling charges".

Another such document shows that Sanyal is giving directions to jute Babus in the following terms:--

"All Jute Babus, please note that in future a copy of letter of authority should always be sent to C. S. S. E. Railway.

Sd. K.P.S.

13/7 ".

Another document shows that Sanyal is issuing an order to Mr. Sen in the following terms:--

"Mr. Sen, please check and report.

Sd. K.P.S."

A letter dated the 28th of March, 195S addressed by the Presidency Jute Mills to the company bears the endorsement of Sanyal in these terms:--

"Tarak Babu for action.

Sd. K. P. S. "

In another letter of the Eastern Import and Export Company dated the 27th March, 1956, Mr. Sanyal is seen ordering Mr. Sen in the following terms:--

"Mr. Sen, ask for a certificate from the mill as usual please.

Sd. K.P.S.

28/3 "

Another document is a letter dated the 14th July, 1955 from Sohanlal Suganchand sending a bill and bears the order of Sanyal passing it in the following terms:--

"O. K. Passed.

Sd. K.P.S.

15/7."

26. There are a few other documents of this nature all appearing as annexure to the petition to indicate that Sanyal was not an ordinary clerk doing a purely mechanical job.

 

 

51. As I have held that Respondent Sanyal is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, it necessarily follows that the Industrial Tribunal in this case exceeded its jurisdiction in entertaining an application by Respondent Sanyal under Section 33-Aof the Industrial Disputes Act and in making an Award thereupon. I, therefore, set aside the Award of the Industrial Tribunal dated the 18th June, 1957 and make the Rule absolute. There will be no order as to costs.

 

Thus the management established from record of documents signed by………………….in a language that was own language of employee………………..that employee was no more a workman.

 

Had the employee avoided to write and sign in language having tone, texture and command, the employee would have failed the contentions of management, and succeeded as covered as ‘Workman’.. …..

https://indiankanoon.org/doc/897613/

 

----As it can also be seen in a recent decision:

 

Delhi District Court

Sh. Monu Kumar vs M/S Pooran Chand Sharma & Son on 23 August, 2016

https://indiankanoon.org/doc/95513408/

 

           

The workman filed his statement of claim stating therein that 

he  had   been   working   with   the   management  since  January,   2009   as   a Field Boy ……………..There was no complaint regarding work and conduct of the workman by the management during the entire tenure of the employment of the workman 

with the management. The management was not providing legal facilities 

as available under the Labour Laws such as appointment letter, leave 

book,   wages   slip,   attendance   card,   weekly   and   annual   leave,   bonus, double overtime, House Rent Allowance and Traveling allowance etc. 

……………….. but the management was not paying   the   minimum   wages   to   the   workman.   When   the   workman demanded   the   above   said   legal   facilities   from   the   management,   the management got annoyed and without giving any notice, charge sheet and without any rhyme or reason terminated the services of the workman on 01.10.2014 while withholding the earned wages of the workman for the period 01.08.2014 to 30.09.2014 and also obtained the signatures of the   workman   on   blank   papers   and   vouchers.

 

 

The workman has submitted that he is unemployed since   the   date   

of   his   illegal   termination   by   the   management   and   has 

prayed that the management may be directed to reinstate the workman in service with full back wages and all consequential benefits. 

 

 

Management   appeared   and   filed   its   written   statement stating   therein   that   the   claim   of   the   claimant/workman   is   not maintainable as the claimant was appointed/working as a Supervisor in 

the management/organization………………………………….Further the stand 

taken by the management is that the claimant is not a workman and the………………………………….. management is not an industry within the purview of the Factories Act, 

1948   as   the   management   is   not   a   manufacturer. 

But   till   date   the   workman   has   failed   to  file   even   his 

affidavit in evidence despite opportunities given to the workman for this 

purpose. Even the workman has not been appearing in the present matter 

since 05.10.2015 and today i.e. 23.08.2016 proxy for AR of the workman 

stated that the workman has not contacted his AR despite communication 

sent to him by the AR of the workman and had accordingly submitted 

that   the   evidence   of   the   workman   may   be   closed.   Vide   

order   dated 23.08.2016  workman evidence was closed.  

Since   there   was   no   evidence   on   behalf   of   the   workman, management 

evidence was also closed vide order dated 23.08.2016. 

The   management   is interior contractor and working with the 

different principal employers i.e. factory, residence, office, showrooms etc. and used to deploy its workers at different sites as per the requirement mostly on contract basis. The claimant/workman   was   deputed   at   M/s   Maruti   Suzuki   India   Ltd. Gurgaon, Haryana in 

the capacity of a Supervisor.

The Management has  never asked any worker to stay after working hours as such, there is no   question   of   overtime   payment.

In   view   of   the   above   discussion,   I   am   of   the   considered  opinion that the workman is not 

entitled to any relief. The claim of the  workman is rejected.

 

 

>>> Look into some of decided cases/judgments describing: Who is a workman!

 

----Constitution Bench of the Supreme Court in H.R. Adyanthaya vs. Sandoz (India) Ltd., (1994) 5 SCC 737

 

Supreme Court of India

H.R.Adyanthaya vs Sandoz (India) Ltd on 11 August, 1994

Author: P Sawant

Bench: Kuldip Singh, P.B.Sawant, S.Mohan, G.N.Ray, N.P.Singh

https://indiankanoon.org/doc/1070207/

The question that falls for consideration in these matters is whether the 'medical representatives' as they are commonly known, are workmen according to the definition of 'workman' under Section 2(s) of the industrial Disputes Act, 1947 (the 'ID Act'). The definition under this section has undergone changes since its first enactment. It is necessary to keep in mind the said changes since the decisions of this Court delivered on the point from time to time are based on the definition, as it stood at the relevant time. The definition, as it stood originally when the ID Act came into force w.e.f. 1-4-1947, read as follows-

"(s) 'workman' means any person employed (including an apprentice) in any industry to do any skilled or unskilled, manual or clerical work for hire or reward and includes, for the purposes of any proceeding under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military, or air service of the Crown."

It was amended by Amending Act 36 of 1956 which came into force from 29-8-1956 to read as follows :

exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

3. The first change brought about by this amendment was that whereas earlier only those who were doing unskilled or skilled manual work were included in the said definition, now those who did any unskilled or skilled work, whether manual or not, came to be included in it. The second and the most important change that was brought about was that those persons who were employed to do 'operational' work were also brought within the fold of 'he said definition.

4. We are not referring to the other changes which the definition of 'workman' underwent, after its enactment in 1947 since they are not relevant for our purpose.

5. What is further necessary to remember is that the Amending Act 46 of 1982 simultaneously brought about a change in the definition of 'wages' under Section 2(rr) of the ID Act and for the first time included the following in the said definition-

"(iv) any commission payable on the promotion of sales or business or both;"

6. It is also instructive to point out, in this connection, that along with the change in the definition of 'wages', the definition of 'industry' under Section 2(j) has also been amended. The relevant part of the amended definition reads as follows-

"(j)'industry' means any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or `through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,-

(i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity 'Is carried on with a motive to make any gain or profit, and includes-

(a) any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);

(b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include-

7. It will be seen that by the amended definition of 'industry', an activity relating to the promotion of sales or business or both, carried on by any establishment is for the first time sought to be brought within the said definition. However, the amended definition of 'industry' has not till date come into force.

8. In the light of the amended definitions of 'workman' and 'wages' and that of 'industry' which has not yet become operative, we may now refer to the decisions of this Court on the subject.

 

40. Although we hold that the complaint filed by the workmen is not maintainable under the Maharashtra Act, we are of the view that taking into consideration the fact that a long time has lapsed since the filing of the complaint, it is necessary that we exercise our powers under Article 142 of the Constitution, which we do hereby and direct the State Government to treat the employee's said complaint as an industrial dispute under the ID Act and refer the same underSection 10(1)(d) of the said Act to the Industrial Tribunal, Bombay within four weeks from today. The Industrial Tribunal shall dispose of the reference within six months of the date of reference.

 

 

----  K.H. Pandhi vs. Presiding Officer, CW No.1224 of 1978 decided on 5th February 2004

Delhi High Court

K.H. Pandhi vs The Presiding Officer, Addl. ... on 5 February, 2004

https://indiankanoon.org/doc/824293/

 

held that for an employee to be covered by the definition of "workman", he must be employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work.  If he falls within these categories, it has then to be seen whether he comes within any of the four excluded categories mentioned in Section 2(s) of the Act.

1. The Petitioner is aggrieved by an Award dated 20th December 1977 passed by the Additional Labour Court in ID No. 150 of 1977 wherein it was held that the Petitioner is not a "workman". Consequently, it was held that there was no industrial dispute between the Petitioner and the Respondent-Management.

 

 

4. At the relevant time, the Petitioner was working as an accountant on a salary of about Rs.715.00 per month. He was employed on or about 15th April 1974 and was dismissed from service by a letter dated 5th November 1975. In other words, the Petitioner, who had done his B.Com., was employed with the Respondent-Management for about a year and a half.

 

6. It appears that while the Petitioners evidence was being recorded, a Court question was asked regarding his nature of work. The learned Additional Labour Court has paraphrased his reply and the relevant portion of the Award delivered by the learned Additional Labour Court in this regard reads as follows: --

"... he says that he has not passed any other course of accountancy but his duties were to write accounts and to prepare related statements of accounts. He used to make entries of the vouchers in the account books. He was the only accountant in Delhi. He says that Chief Accountant and Chartered Accountant used to come in Delhi periodically from Patna and he used to perform accountancy work at Delhi according to their guidelines. He also used to deal with cash. He used to keep cash with him. This used to be under the supervision of Technical Director. He also used to deposit money in the Bank and take out money from the Bank. But cheques were issued by Technical Director. He used to prepare daily account of cash in hand that is cash received and cash spent and to send this daily report to the head office. The Technical Director used to check these daily reports and sign them. Technical Director used to authorise the issue of all the vouchers for payments and then only they could be entertained by him."

7. The learned Additional Labour Court noted in the impugned Award that the Petitioner also used to handle stationery and keep its stock and receipt.

8. On these facts, and relying on the decision of a learned Single Judge of this Court in M/s 'Kirloskar Brothers Ltd. vs. The Presiding Officer, 1976 Lab. I.C. 918, the learned Additional Labour Court came to the conclusion that the Petitioner was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (the Act) and, therefore, the dispute raised by the Petitioner is not an industrial dispute, thereby making the reference incompetent.

9. The first question that has to be decided is whether the Petitioner was in fact a workman or not, as defined in Section 2(s) of the Act. During the relevant period the definition of the word "workman" as amended by Amending Act 36 of 1956, which came into force from 29th August 1956, 

 

28. Having decided the issue in favor of the Petitioner, the next question that remains to be considered is whether the services of the Petitioner were validly terminated. Prima facie, it appears to be so, because no enquiry was held against the Petitioner and the Respondent-Management allowed the case against it to go ex parte. Consequently, in the absence of any contrary finding from the Labour Court, on the facts of this case, I have to proceed on the assumption that termination of the services of the Petitioner was not in accordance with law.

 

-----Having gone thru above judgments look into another judgment to appreciate once again that determining an employee is a workman or not, is a mixed question of fact and law and how court of law may view it, to decide:

 

IN HIGH COURT OF DELHI : NEW DELHI  AT NEW DELHI.                    

SUBJECT:CW No. 2523 of 1998

 

Judgement reserved on:   March 1, 2004

 

Judgement delivered on:  March 17, 2004

 

Definition of Workman under ID Act

Tata Sons Ltd.

Versus

 

 1.        S. Bandyopadhyay

2.         S.K. Sarvaryia

            Presiding Officer

            Labour Court

http://www.delhidistrictcourts.nic.in/mar/2523.htm

 

1.                  The Petitioner is aggrieved by an Award dated 18th February 1998 passed by the learned Labour Court in ID No.85/92.  The sole question agitated by learned counsel for the Petitioner is with respect to the finding of the learned Labour Court that the Respondent, an employee of Tata Risk Management Services, working as a Deputy Manager (Engineering) on a salary of Rs.2700 per month, dearness allowance of Rs.1500 per month and a flat is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short the Act).

 

2.                  The case law on the subject of how to determine whether an employee is a workman or not has been discussed by me in considerable detail in K.H. Pandhi vs. Presiding Officer, CW No.1224 of 1978 decided on 5th February 2004.  It is not necessary for me, therefore, to repeat the case law or the discussion therein. 

 

3.                  Suffice it to say that the Constitution Bench of the Supreme Court in H.R. Adyanthaya vs. Sandoz (India) Ltd., (1994) 5 SCC 737 held that for an employee to be covered by the definition of "workman", he must be employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work.  If he falls within these categories, it has then to be seen whether he comes within any of the four excluded categories mentioned in Section 2(s) of the Act.  The Constitution Bench noticed certain earlier decisions where the initial determination was whether an employee falls within any of the excluded categories.  If he did not fall within any excluded category, then it was held that he was a workman within the meaning of Section 2(s) of the Act.  The Constitution Bench found this approach to be incorrect.

 

4.                  So far as the present case is concerned, I find that the learned Labour Court has not followed the sequence laid down by the Supreme Court in Adyanthaya and that is why it has fallen into error.

 

5.                  A review of the case law undertaken in Pandhi clearly indicates that the mere designation of an employee is not of any consequence for the purposes of determining whether he is a workman or not.  What is of importance is the nature of his duties, particularly his primary duties or his basic duties and the dominant purpose of his employment.

 

9.                 Tata Risk Management Services is said to be a division of Tata Sons Ltd. and performs consultancy service in the field of risk management.  While the exact nature of duties of the Respondent employee is not specifically available on record, various documents filed before the learned Labour Court indicate the nature of work done by him and these documents show that his work required imagination and creativity, as one would expect of a consultant.

 

10.               What does the employee say about the nature of work done by him?  He says in paragraph 3 of his statement of claim that he was employed with the Petitioner since 15th January, 1985 as a highly skilled workman. He was doing work with his own hands and he had no power to appoint or charge sheet any worker.  He had no power to grant leave and could not take independent decisions. He was working on instructions from the management. He repeats this in his affidavit by way of evidence and adds that he was performing duties like checking with his own hands machines, buildings, electrical installations and fire fighting equipments. In other words, his case was that he was a skilled manual worker.

 

1.               On the other hand, the case of the Petitioner in the written statement was that the employee was holding a managerial post with all privileges and facilities according to his grade. It was denied that he is a highly skilled workman or that he is doing any work with his own hands. This is repeated in the affidavit by way of evidence. In addition, it is stated that the work of the employee involved development of business for marketing purposes, which included making financial commitments on behalf of Tata Risk Management Services and forwarding offers to various parties independently.    It is further stated that as a person holding an executive and managerial position in a consultancy organization the employee had the final say in some matters. It is stated that the organization performs consultancy services in risk management and it is not a manufacturing division.

 

13.               A letter dated 15th December, 1987 sent by the employee to Fertilizer Corporation of India (Exhibit MW1/4 also Exhibit WW1/M6) is on the subject of forwarding an offer in regard to fire safety audit of Fertilizer Corporation of India and the view expressed by the employee in relation to a tender.  This document reads as follows:-

 

"Please find herewith enclosed two copies of the Tender offering the aforesaid services to Fertilizer Corporation of India Ltd.  Ramagundam Unit in regard to Fire Safety Audit.  This document has been submitted in duplicate for your consideration.

 

In this connection, we would request you to note that we have assumed that you would need a period of six months to decide on the recommendations we make.  Also, in our scope of work we shall be providing basic recommendations with regard to paras 3, 4, 5 and 6 and your Contractor/Suppliers shall be developing the detailed Engineering designs etc.  Our services, however, to assist you in the matter and to evaluate these contractor's offers etc. shall be included within our scope of work.  Having regard to this, we have taken item 8(c) of the Scope of Work as different and quoted for it in Annexure-V, separately."

 

14.               Annexure V to the aforesaid document gives the schedule of fees for conducting safety audit, the charge being Rs.2,25,000/- and if overseas associates are involved, then the charge would be Rs.22,50,000/- (Exhibit WW1/M7). 

 

15.               In a letter dated 6th October, 1989 sent by the Petitioner to M/s Premier Cables Co. Ltd.  (Exhibit MW1/5) the subject is "Risk and Insurance Management Consultancy."  The letter contains the observations of the employee on a fire policy and a machinery insurance policy.   The relevant portion of this letter is as follows:-

 

"As stated in our Action Plan earlier the wire drawing carried out in your factory with a solid, dry and powdered lubricant like calcium stearate and the water based coolant used for machining. The hazard therefore, is the same as wire drawing, categorized under item (ii) under the Engineering Workshops Tariff and carrying a rate of Rs.1.30 per mille. Please therefore ask your insurer to charge this rate instead of Rs.1.90 per mille and refund the Rs.14,000/- or so collected excess.

           

Machinery insurance policy extends to cover damage to electrical machinery/equipment/installation by fire originating within the equipment/installation by short-circuiting, etc. which risk is specifically excluded under the fire policy, Thus machinery insurance policy is designed to cover wide range of damages such as burning out of coils in electrical machines like motors, fire occurring due to electrical faults in these equipment, seizure of piston, breakage of piston rod, seizure of bearings due to lack of lubrication and so on.

 

In order to determine whether a particular machinery/equipment should or should not be insured against breakdown risks the following aspects need to be considered:

 

a.                  For rotating machines damage due to break-down is generally reparable by replacement of parts and the machine is rarely treated as total loss. Therefore the likely costs of repairs (replacement of parts) is one of the criteria.

 

b.                  Possibility of breakdown based on your own experience of damage which to an extent depends on the maintenance of the machinery.

 

c.                  Amount recoverable under the insurance policy in the event of a total loss or constructive total loss of a particular machinery/equipment will be after taking into account certain exclusions, actual depreciation, the deductible excess and the salvage.

 

With total loss claims, there is often dissatisfaction that the claim recovered is much less than the actual loss suffered by the insured. For instance, say, a transformer is badly damaged due to fire resulting from an internal cause and is therefore declared to be constructive total loss. As explained settlement of the claim will be on the basis of its replacement cost as new, less depreciation for the number of years it has been in use as compared to its anticipated life. From this will be deducted the salvage value available and the deductible excess. Therefore, whilst a machine/equipment may have been insured for its full replacement value as new, the claim recoverable may fall for short of the replacement cost.

 

Finally, whilst possibility of breakdown may exist in almost all electrical equipment or rotating machinery, we would recommend you to consider generally machinery breakdown insurance cover in respect of such machinery equipment where the cost of repairs or replacement is likely to be substantial."

 

16.               For the above opinion, a bill of Rs.15,000/- (Exhibit MW 1/6 also Exhibit WW1/M4) towards professional fee was sent under the signatures of the employee. 

 

17.               Finally, there is a reference to a memo issued some time in 1987, which is Exhibit MW1/8 (also Exhibit WW1/M3).  This memo is signed by a superior (Mr. Bilimoria) of the employee and the same is marked to the employee for further action, if necessary.  The employee put a note thereon indicating that he has discussed the matter and no further action is needed. This memo relates to a settlement of claims of Simbhaoli Sugar Mills. It reads as follows:-

 

"In the 4th para of your letter you have explained the basis of claims settlement in case of fire damage to stocks in godown. 

 

It is stated that the "basis of calculating the indemnity in case of raw materials shall be value declared on the policy and prevailing market rates on the date of loss, and for finished goods shall be cost of product only excluding profits".  We would explain that claim for damage to raw materials will be settled on the basis of market value on the date of the loss subject to adequacy of the sum insured calculated on that basis.  If the sum insured is less, the condition of average would apply.

 

As far as finished goods are concerned, claim could be made on the basis of insured's sale value of the product not of all discounts after deducting any unincurred cost.  To quote an example, if say the finished goods are still in unpacked condition whereas the sale value agreed is for packed material all packing charges not yet incurred at the time of the loss should be deducted from the sale value for the purpose of the claim."

 

 

18.               None of these documents have been controverted by the employee and these really form the basis for determining the nature of duties performed by him. Even a cursory reading of these documents suggests that the employee was highly educated (as per his visiting card, he is a chartered engineer) and was certainly not doing any manual work as claimed by him. Manual work (or inspection) may have been incidental to his primary duties as a consultant in risk management, but that will not make him a workman for the purposes of the Act.   The nature of work clearly involved a considerable amount of mental inputs related to creativity and imagination. It can hardly be said that the employee was someone doing manual work.

 

19.               The word "skilled" as in Section 2(s) of the Act has to be construed ejusdem generis, as held in Adyanthaya. So construed, it means skilled work, whether manual or non-manual, which is of a genre of the other types of work mentioned in the definition. The documentary evidence on record clearly shows that the work of the employee was that of a highly qualified and specialized consultant, in the field of risk management. By no stretch of imagination can he be called a skilled workman doing manual or non-manual work.

 

20.               The learned Labour Court has referred to some communications to conclude that the employee was required to report to his superior Mr. Bilimoria.  All that these communications show is that he was not doing much supervisory work. This does not lead the Respondent employee anywhere, because he may still be performing managerial or administrative functions. In any hierarchy an employee is always answerable to a superior and in this case the employee was answerable to Mr.Bilimoria. The fact that he was not doing supervisory work does not put him in the category of workman within the meaning of Section 2(s) of the Act; rather it takes him out of that definition.

 

21.               I am aware that a writ court should not normally interfere with a finding of fact arrived at by the learned Labour Court. But, as discussed in Pandhi, the question whether an employee is a workman or not is a mixed question of law and fact.   In the present case, the learned Labour Court having followed an approach not approved by the Supreme Court in Adyanthaya, a clear question of law does arise. A misunderstanding of the legal position caused the learned Labour Court to commit an error in concluding that the employee is a workman within the meaning of Section 2(s) of the Act. Under these circumstances, it has become necessary to interfere with the conclusion arrived at by the learned Labour Court, which is based on an incorrect appreciation of the law and facts.

 

22.               Consequently, there is no option but to hold that the Respondent employee is not a workman.

 

 

>>> Now: Look into other set of judgments that lay down Even a supervisor (by designation) irrespective of the salary is a workman.

 

>>>The employee was a Shit Engineer and declared as Workman and ordered to be given ‘Service Certificate’.

1.W.P. No. 11548/84 : This writ petition is directed against the award made by the Labour Court, Guntur, directing reinstatement of the 1st respondent (workman) with continuity of service, and with all back wages and other attendant benefits. The management has preferred this writ petition.

2. The 1st respondent-workman joined the Petitioner-company, Coromandal Fertilisers Ltd…… as a Trainee Technician. In Course of time, he attained the position of a Shift Engineer. While working in the said post, the 1st respondent was selected by the National Petro-Chemicals, Libya, for appointment on a Salary of US dollars 1230 month. On receiving the said offer of appointment, the 1st respondent says he submitted a letter of resignation on 17th October, 1981, giving one month's notice to the Management in terms of his appointment order. According to him, he requested the management to accept his resignation with effect from 16th November, 1981 but to relieve him with effect from 12th November, 1981, with a view to enable him to proceed to Libya in time to join the post there. He also requested the management to issue him the necessary Service Certificate as was being issued to other similarly placed employees. His further case is that the management, with a view to victimize him for his Union activities, accepted his resignation forthwith i.e. with effect from 20th October, 1981 and also refused to issue the service-certificate, while issuing such a certificate in the case of another similarly placed person, one Sri Varma. The 1st respondent's further case is that, he went to Libya but, because he was not able to produce the service-certificate from Coromandal Fertilisers Ltd., (his Indian employer) he was not posted in the post for which he was selected by the Libyan Company; that, he was made to work in a lower and menial post, kept under police survelliance suspecting him to be a spy and, after a period of six months, repatriated to India. He says that, he suffered great humilitation and hunger in Libya, and all because of the refusal of the petitioner-management to issue the necessary service-certificate. Ultimately, however, the Libyan authorities realized that he is not a spy; but, refused to employ him and sent him away from their Country, paying him damages in a sum of US Dollars 11,360. After returning to India, the 1st respondent raised a dispute which was ultimately referred by the Government to the Labour Court.

The issue referred to the Labour Court was :

 

"Whether the termination of services of Mr. P. Venugopala Rao, Ex-Shift Engineer, Utilities, by the Management of Coromandel Fertilisers Ltd., Visakhapatnam, by relieving him on 20th October, 1981 ignoring the terms and conditions of resignation letter is valid and justified ? If not, to want relief Mr. P. Venugopala Rao, is entitled ?."

 

3. The 1st respondent's case is that, the action of the management (Writ Petitioner) in accepting his resignation with effect from 20th October, 1981 is contrary to his resignation letter and, therefore, amounts to termination of his service, the termination is not only contrary to the order of appointment but is also contrary to the provisions of the Industrial Disputes act, it amounts to 'retrenchment', as defined by Clause (oo) in S. 2 of the Industrial Disputes Act. He also complains of discrimination and victimisation on the part of the management, in as much as, while issuing service-certificate to other similarly placed employees, it was refused to him, which was really the cause for all his suffering and humiliation in Libya. He claimed reinstatement and back wages for the entire period with attendant benefits.

4. The case of the writ-petitioner/management in this; the resignation letter submitted by the 1st respondent on 17th October, 1981 requested for acceptance of his resignation forthwith. Accordingly it was accepted. It is wrong to say that under the resignation letter the 1st respondent requested his resignation to be accepted with effect from 16th November, 1981. The case put forward by the 1st respondent is a subsequent fabrication, after clandestinely removing his original resignation letter from the relevant file; the 1st respondent has no right to compel the management to issue a service-certificate; it is wrong to suggest that the company withheld the issuance of such a certificate with a view to cause loss to him, or as a measure of victimisation; indeed, the 1st respondent never requested for such a certificate; the 1st respondent is not a 'workman'; he was employed in a supervisory capacity, and since he was drawing a salary of more than Rs. 500/- per month, he does not fall within the definition of 'workman' in Clause (s) of S. 2of the Act. The various duties performed by him as a Shift Engineer, were set out.

5. The first issue that arose on the above pleadings before the Labour Court was, whether the 1st respondent was a 'workman' as defined in S. 2(s) of the Industrial Disputes Act. The second issue was, whether the resignation letter submitted by the 1st respondent on 17th October, 1981 was removed clandestinely by the 1st respondent from the concerned file, as suggested by the management, or whether the management is suppressing the said resignation letter, as suggested by the 1st respondent/workman because its contents are not favourable to the management's case. The third issue related to the reasons for non-issuance of Service-certificate and the fourth and the last was the relief to which the 1st respondent was entitled. On all these issues, the Labour Court agreed with the 1st respondent, accepting his version, Accordingly, it granted the full relief claimed by him.

6. Mr. P. R. Ramachandra Rao, the learned counsel for the Petitioner-management, urged the following contentions in support of the writ petition; (i) assuming that the resignation letter submitted by the 1st respondent was in terms averred by him, it was still open to the management to accept his resignation with effect from such date as it thought appropriate; the management was, therefore, perfectly entitled to accept the resignation with effect from 20th October, 1981, and the only obligation up on the management in such a case, was to pay the salary for the remaining period, upon 16th of November, 1981, which too the workman has to claim by filing a suit. The non-payment of salary for the period 20th October, 1981 to 16th November, 1981 does not render the acceptance of resignation illegal or invalid; it does not amount to retrenchment; the management did not terminate his service; the 1st respondent left of his own accord; the resignation submitted by him voluntarily was merely accepted by the management. In such a case, neither S. 2-A nor S. II-A of the Act are attracted; there is no industrial dispute in such a case and, therefore, the reference to Labour Court and its award are wholly without jurisdiction; (ii) the finding of the Labour Court that the resignation letter submitted by 1st respondent on 17th October, 1981 was in the terms suggested by him and that, the 1st respondent was not guilty of clandestinely removing the said letter from the custody of the management, is perverse and contrary to the inference flowing from the material on record. The Labour Court is equally wrong in holding that the petitioner-management is suppressing the resignation letter submitted by the 1st respondent; (iii) that in view of the duties attached to the post held by the 1st respondent, it is evident that he was employed in a supervisory capacity. He, therefore, falls within exception (iv) to the definition of 'workman' in S. 2(s) of the Act. The Labour Court has misunderstood the management's case on this aspect; it had dealt with this issue with reference to exception (iii), which has thoroughly vitiated its reasoning and finding; and (iv) in any event, the award of full back wages is wholly unsustainable in view of the admitted fact that, while returning to India, the Libyan authorities paid to the 1st respondent US dollars 11,360. The said amount ought to have been deducted from out of the back wages, if any, payable to the 1st respondent.

7. The 1st respondent appeared in person, and we have heard him.

 

8. We shall first take up the issue whether the 1st respondent is a 'workman' as defined in S. 2(s)of the Industrial Disputes Act………………….

 The management's case is that the 1st respondent was employee in a supervisory capacity and since he was drawing a salary of more than Rs. 500/- per month, he cannot be called a ('workman' as defined by the Act). 

9. The definition shows that a person employed in a supervisory capacity is also a 'workman'; but, the fourth exception says that, a person employed in a supervisory capacity and drawing wages exceeding Rs. 500/- per mensem, ceases to be a 'workman'. 

10………………………..On the facts of that case, it was held that, merely because the clerks were doing the work of checking the accounts in Audit Department, they cannot be held to be supervisors. It was also observed that the name or designation given to the post is not conclusive on the issue.

 

12. It is unnecessary to multiply authorities on this aspect. Suffice it to observe that, the question whether an employee is a 'workman' or not, is a mixed question of fact and law, and this Court would interfere with the finding of the Labour Court only if it is shown to be "manifestly or obviously erroneous", or where any other ground warranting issuance of certiorari is made out.

 

13. Mr. P. R. Ramachandra Rao, urged another legal submission on his aspect. He contended that, the question whether an employee is a "Workman" or not, is a jurisdictional fact, upon which depends the jurisdiction of the Labour Court. Therefore, he submitted, the finding of the Labour Court on the said issue is open to review by this Court, as also by a Civil Court. He submitted that, while examining the correctness of the said finding, this Court need not be deterred by limitations of a certiorari. We are not prepared to agree. It may be that the question whether an employee is a "Workman" or not, is a jurisdictional fact; but, it is evident that the Labour Court is a special Tribunal which has been vested, by law, with the power to decide finally the said question and, therefore, its finding on the said issue can be interferred with only if it is shown to be vitiated by an error apparent on the face of the record i.e. a 'Manifest or obvious error', in the words of the Supreme Court. In Brij Raj Krishna v. Shaw & Bros.

14. Applying the said principle, it would be evident that the Industrial Disputes Act sets up a complete machinery for investigation and settlement of all industrial disputes. It defines 'Workman' it also provides in S. 17(2) that an award under the Act "shall be final and shall not be called in question by any Court in any manner whatsoever". It should also be remembered that, the several rights created by the Industrial Disputes Act are not common law rights, but are rights created by a Special Statute. From this point of view also, it must be held that the decision of the Labour Court on the question whether a person is a 'workman' or not, is final and cannot be questioned in a Civil Court. It also necessarily means that, if the finding on the said aspect is questioned in writ petition, the ordinary limitations applicable to certiorari would equally be applicable while examining the said finding. Learned counsel is, therefore, not right in contending that he is entitled to canvass the finding of the Labour Court on the said issue before us as if this Court is sitting as an appellate authority over the decision of the Labour Court.

15. The 1st respondent as W.W. 1 stated that, he has no power to operate the Bank Account, make payment to, or enter into agreements with third-parties; cannot supervise the work of the persons in the shift; has no control over correspondence; not authorised to make commitments on behalf of the Company; not authorised to conduct disciplinary proceedings against workers; cannot appoint any persons; cannot allocate work to any worker or operator; cannot suspend or dismiss or take any other action against his subordinates; cannot incur any expenditure on his own; cannot grant permission to any worker to go outside the premises; not empowered to approve over-time, nor authorised to act independently except to obey the instructions of the higher officials. He stated that, he only recommends disciplinary action against any subordinate, whatever called for; that, he is not authorised to grant leave to workers; that, as a Shift Engineer he does the Boiler-Operation whenever the Boiler-Operator goes out on other duty, that, he assists the Boiler-Operator in testing the level alarms of the Boiler. …………………….In short, his evidence is that his duties are mainly of a technical nature, to be performed by himself. According to him, he is subject to the orders and supervision of the Shift Superintendent, some people work under him also but that, he is not in-charge of allocating the work or assigning duties to them, or taking disciplinary action against, or granting leave to them.

 

16. Ex. W. 18 is the order of appointment of the 1st respondent as a Shift Engineer, but, this order is not at all helpful on the question of the nature of duties to be performed by a Shift Engineer. According to the petitioner-management, the duties of the Shift Engineer are found enumerated in Ex. M. 52, which is described as "Position-Description", "Shift Engineer". It sets out the functions, responsibilities, authority, and relationships of a Shift Engineer. Now, what is important to notice is that, this document, Ex. M. 52, was filed before the Labour Court at a very late stage; it was not produced while the 1st respondent (W.W. 1) ------ or his witness (W.W. 2) ------ were examined.

 

19. On a consideration of the above evidence and the circumstances, the Labour Court accepted the evidence of M.W. 1 refused to act upon Ex. M. 52, and observed thus :

"..... the evidence on record clearly establishes he is only discharging the technical duties, skilled and unskilled in the plant... The evidence and the exhibits that are on record put together clinichingly prove prove that the claimant is a workman under S. 2(s) of the Industrial Disputes Act and is mainly discharging these technical duties in the plant, and though on the instructions of the management he discharges any supervisory duties occasionally, it would not change the nature of the workman as a workman."

20. It cannot be said that the finding of the Labour Court is manifestly erroneous, or is perverse. It cannot also be said that there is no evidence to support the said finding. If, so, no interference is called for by way of certiorari with the said finding.

22. We will next consider the issue relating to the resignation letter submitted by the 1st respondent. While the 1st respondent says that the resignation letter submitted by him was in terms of Ex. W. 36 (the copy submitted by him before the Labour Court), the case of the management is that it was totally different and that, under the said resignation letter, the 1st respondent submitted his resignation effective from the very date of submission of the resignation letter i.e. 17th October, 1981. It is the further case of the management that, having purloined the letter from the relevant file, the 1st respondent has come forward with a false case; whereas the 1st respondent's case is that the management in suppressing the original resignation letter since its terms are inconsistent with the present case of the management. 

23. The evidence adduced on behalf of the management on this aspect, however is inconsistent and unacceptable. 

 

The contradiction is obvious. If the 1st respondent had stated in his resignation letter submitted on 17th October, 1981 that it was a resignation effective with immediate effect, the request for relief by 12th November, 1981 is meaningless. The relief by 12th November, 1981 necessarily means that he would continue in the service till then at least. This self contradictory version of the resignation letter put forward by the management clearly goes to support the 1st respondent's version, which was also set out in his suit notice.

 

25. We shall now deal with the contention of Mr. P. R. Ramachandra Rao put forward by him as first submission. His contention, to repeat is that, the even if the resignation letter submitted by the 1st respondent was in terms averred by him, it was still open to the management to accept the said resignation letter with effect from such date as they thought fit and that, in such case, the only obligation of the management was to pay the salary for the remaining period, upto 16th November, 1981, for which too, the 1st respondent has to approach a Civil Court. His submission is that, the acceptance of the resignation from a date anterior to the one stated in the letter, does not vitiate the acceptance, nor does it render it invalid on the same reasoning, he submits that there can be no industrial dispute between the parties and that, the Labour Court has no jurisdiction in the matter. We are not prepared to agree.

It is stated by Mr. Ramachandra Rao, the learned counsel for the petitioner-management, that there are no standing orders, or other bye-laws or Rules, governing the resignation of employees in this company. He agreed that, in such a case, the matter has to be judged with reference to the ordinary law of the land, i.e., the law of contract……….

…………….It was open to the management either to accept the said offer, or to reject the same, but, it was not open to it to accept the resignation with effect from 20th October, 1981. Such an acceptance is not really the acceptance of an offer, but amounts to a counter-offer, which must again be accepted by the workman, which he did not. To put it differently, what the management did was, not the acceptance of the resignation submitted by the workman, but a termination of his service.

 

27. We may also mention that, we see no reason to differ from the finding of the Labour Court on the question of discrimination and vicitmisation. On a consideration of the relevant material, the Labour Court held that whereas the management issued Service Certificates to other employees, particularly to Sri Varma who left the service of the company simultaneously for serving in Libya it refused to issue such certificate to the 1st respondent with a view to victimise him for his earlier union activities, which appear to have given offence to the management. The action of the management was clearly discriminatory as well.

 

28. The last contention relates to the award of back wages. The reasoning of the Labour Court on this aspect is to found in paragraph 39 of its award, where it referred to the workman's case that he was not paid his salary…………………….

The Labour Court then observed :

"Though the management made correspondence with Libyan Embassy and obtained information, they did not choose to file it into Court to prove that the workman was paid his salaries at Libya. In the absence of any positive evidence from the management regarding the payment of salaries to the workman at Libya, the version given by the workman appears to be more reasonable and probable. So I hold that the workman is entitled to claim back wages also."

 

29……………………The amount representing the equivalent of the said sum of 4,000 dollars in the Indian Currency, as per the official exchange rate prevailing in the month of June, 1982 has, therefore, to be deducted out of the back wages awarded to the 1st respondent-workman. In other respects, the award of the Labour Court is confirmed.

30. The writ petition is, accordingly, dismissed subject to the modification in the matter of award of back wages, in the manner indicated above. In the circumstances of the case, however, we direct the parties to bear their own costs in this writ petition.

In view of the dismissal of the writ petition, no orders are called for in this contempt case which is, accordingly, closed. If the 1st respondent-workman has still any grievance in the matter of working out the benefits under the award, it is open him to adopt appropriate remedies available to him in law. No costs.

 

Andhra High Court

Coromandal Fertilizers Ltd. vs P. Venugopal And Ors.

https://indiankanoon.org/doc/63515/

 

>>> The employee signed as a Director of the company, and declared as Workman.

 

17. In the cross-examination of the 1st respondent his attention was invited to certain documents which were signed by him. He admitted that he has signed the said documents as a Director as per the directions of the petitioner. He also admitted that he had signed a complaint addressed to police station in his capacity as a Director. He stated that he never protested while signing the said documents as a Manager or Director though he signed the same at the instance of the petitioner………………………………….

…………. Though the petitioner claims that the 1st respondent was a Director, admittedly he was never invited to attend Board Meetings. The learned Judge has referred to the case law on the point. After considering the oral evidence adduced by the petitioner as well as by the 1st respondent, there is a finding of fact recorded that the 1st respondent was a workman as the petitioner could not adduce any evidence to prove the assertions made by the petitioner. Therefore, it is very difficult to accept the contention of the petitioner that the 1st respondent was not a workman within the meaning of section 2 (s) of the said Act of 1947."

 

5. From the bare reading of the above findings recorded in the judgment, it is clear that the learned Single Judge has accepted the finding of fact recorded by the Labour Court based upon appreciation of evidence.

The Company has miserably failed to satisfactorily discharge its onus in regard to its plea/objection. Nature of duty of the Respondent No.1…………….

The Company also could not explain what functions/duties were assigned to the Respondent. Even regarding this aspect, the Company failed to discharge it onus inasmuch as the document produced by it reflected a conflicting stand, as noticed above. In these circumstances, and particularly in view of the fact that the learned Single Judge has exercised discretion in consonance with the settled principles of law, we see no reason to interfere with the impugned judgment. Resultantly, the appeal is dismissed

Bombay High Court

M/S. V.L. T. Cargo Movers Pvt. Ltd. vs Shri Ajitkumar S. Puri on 8 October, 2008

https://indiankanoon.org/doc/51990084/

 

>>> Although Graduate Engineer employee was mainly doing technical jobs, and declared as Workman.

 

9. It is the case of the writ petitioner management that the first respondent was working in either administrative or managerial capacity and merely because he was obliged to report to the chief buyer, it does not mean that he ceases to be function in a managerial or administrative capacity.

I may now refer to some of the letters marked by the Labour Court. One feature which cannot escape the attention of any body is the letters from the third parties. They are either directly addressed to the first respondent, or his attention is drawn. When the letters emanate from the petitioner's company, in so far as they relate to his department, the first respondent signs them. According to Mr. Govindaswaminathan, learned counsel for the petitioner, the letters like Exts. M. 11, M. 32 and M. 37 are marked to show how the first respondent was working in an administrative capacity, while Mr. G. Vasantha Pai, learned counsel for the first respondent says that in so far as the first respondent had no independent right to take a decision and further he was working under the chief buyer and was reporting to him is clear to show that he cannot come under the administrative or managerial capacity.

10………….It would not be right to say that a person is not in a position of management unless he has jurisdiction over any definite territory; managerial position can be attained also inside a department.

It is not necessary that in order to be in a position of management the individual concerned should have absolute power in respect of any matter. An appeal may lie from his decisions or he may have to obtain previous sanction in certain matters. It is not necessary again that before a person can be in a position of management he should have the power of making appointments.

Nor again it is necessary that before a person could be said to be in a position of management he should have the power to dismiss any employee.

Further the fact that the concerned employee had no power of attorney or authority to enter into agreements on behalf of the management would not make it clear that he was not in a position of management, nor the fact that his power to incur expenditure was limited, or the fact that he had no power to appoint, dismiss or punish any employee, should be considered to be decisive in this regard.

If an individual has Officers subordinate to him whose work he is required to overlook, if he has to take decisions and also the responsibility for ensuring that the matters entrusted to his charge are efficiently conducted and an ascertainable area or section of work is assigned to him, one would ordinarily be justified in saying that he is in a position of management."

 

12. These are the tests according to Mr. Vasantha Pai which required to be applied in deciding whether the first respondent is a workman. In none of the correspondence there is anything to show that the first respondent could take a decision by himself.

 

15. This is an added point to be put in favour of the first respondent in that he could not manage the workmen, and therefore, he was transferred to this department.

………. here on the fact see no warrant for holding that the first respondent was either working in his supervisory or administrative or even managerial capacity.

7. For all these reasons, I find no difficulty in upholding the in impugned award. According the write petition is dismissed. 

 

Madras High Court

Ashok Leyland Limited vs A. Vijayakumar And Anr.

https://indiankanoon.org/doc/231911/

 

>>> An Officer who is Neither managing nor supervising others, will be a ‘ workman’ under I.D Act as neither the designation nor the salary would decide the issue as to

whether the employee is a workman or not, hence declared as Workman.

 

1.This writ petition has been filed by the petitioner assailing an industrial award dated 3rd January, 2003 of the industrial adjudicator answering the reference made to it against the petitioner-workman.

2.There is no dispute to the material facts essential for adjudicating upon the subject matter of the present case 

3. The petitioner was appointed as an Operations Supervisor with effect from 1st July, 1986 by the respondent No. 1 pursuant to a letter dated 1st July, 1986 on probation for a period of six months from the date of his joining. 

4. The appointment was at an initial remuneration of Rs. 2150/- Confirmation of his services was effected by a communication of 1st January, 1987. The respondent No. 1 has placed reliance on the clause in this letter wherein the petitioner was notified that his services could be terminated by one month's notice from either side or if the company so elects, termination could be effected at any time giving one month's salary in lieu of such notice. There is also no dispute that the last drawn salary of the petitioner was Rs. 3630/- per month and that during the course of his employment, the petitioner was sent to the United States of America and Philippines for training in the international operational procedure in the freight forwarding industry in August, 1987, March, 1988 and June, 1989. Sometime in the year 1989 there was controversy with regard to accounting of the cash which had been withdrawn from the company in its Delhi office. According to the respondent No. 1, Page 1551 advances taken from the company in lieu of expenses to be incurred for the work of custom clearance were not settled or accounted for. On the allegation that in February, 1988, the petitioner had taken Rs. 20,000/- from the company in lieu of expenses for works done but vouchers in regard thereto were falsified, a memo/notice dated 27th June, 1989 (Exhibit W3) was given to the petitioner to which he replied by a letter of 6th July, 1981(Exhibit W4). According to the respondent No. 1, an investigation was made and an explanation was called from the petitioner in the presence of senior officers of the company. As no explanation was given, his services were terminated by a letter dated 23rd September, 1989.

5. The petitioner has disputed any such enquiry by the respondent No. 1. Aggrieved by such termination, the petitioner invoked the jurisdiction of the appropriate government under the Industrial Disputes Act, 1947. By an order bearing reference No. F24(2226)/90-Lab dated 6th July, 1990 the following dispute was referred for adjudication to the industrial tribunal:

Whether the termination of service of Shri Muralidharan K. is legal and/or justified and if not to what relief is he entitled and what directions are necessary in this respect..

6. The petitioner assailed the termination on grounds of malice and also urged that the termination of the services without service of a charge sheet or notice or enquiry, was wholly illegal and that he had been penalised for earning the wrath of his officer. The petitioner claimed entitlement to reinstatement with full back wages and continuity of service. He also urged that his demands vide letter dated 3rd October, 1989 was wrongfully rejected by the respondent.

7. The respondent No. 1 objected to the maintainability of the reference on the ground that the petitioner was appointed as an operational supervisor but the respondent No. 1 treated him as an employee of the managerial cadre and for this purpose alone the workman has been sent to the foreign countries to educate him on international operational procedures. The petitioner was drawing as a salary in excess of Rs. 4200/- per month, more than the statutorily prescribed limit, and that he was functioning in managerial capacity as an operations manager.

10. Thereafter, in accordance with law, the industrial adjudicator proceeded to examine issue No. 2 as a preliminary issue. Inasmuch as the validity of the claimed enquiry was required to be proved, the onus of proof thereon, was placed on the respondent No. 1. The respondent No. 1 failed to lead any evidence on this issue despite several opportunities and consequently its evidence on the issue was closed. Finally by an order passed on 26th August, 1996, the industrial adjudicator returned a finding against the respondent No. 1 on the issue of the legality and validity of the enquiry.

11. The respondent No. 1 thereafter sought leave to adduce evidence with regard to the alleged misconduct of the petitioner. This request was granted by the industrial tribunal by an order passed on 12th December, 1997 when the following additional issue was framed:

Whether the workman committed the alleged misconduct? OPM

12. The petitioner examined himself in support of his case while the respondent led the evidence of Mr. Mahesh Kumar Malik in support of its case. On a consideration of the evidence led before him, the industrial adjudicator by the award dated 3rd January, 2003 held against the petitioner on both issues and as such answered the reference against the workman.

13. The present writ petition has been filed primarily on the ground that the award of the industrial adjudicator is based on no evidence.

22. I have noticed above that the industrial adjudicator had arrived at a finding that the respondents had not held a legally valid enquiry in compliance with the principles of natural justice against the petitioner.

Before this Court also, nothing could be pointed out wherein the allegations made in the letter of termination dated 23rd September, 1989 were ever communicated to the petitioner prior thereto. There is certainly variation of the amounts in the various communications.

 

27. It is well settled that neither the appellation to the post to which an employee is stated to be employed nor the salary which he is being paid would decide the issue as to whether a person is covered within the definition of "workman" as given in Section 2(s) of the Industrial Disputes Act, 1947. It has been repeatedly emphasised by the Apex Court and the high courts that the expression "industry, workman and industrial disputes" etc are not to be interpreted so as to whittle down the object of the enactment. Disputes between employees and the management are not to be excluded from the operation of the enactment Act by giving narrow and restricted meaning to the expressions contained in the Act. Taking a pragmatic approach, the Apex Court has repeatedly held that the courts have to look beyond glorified designations and names assigned to posts by managements and examine the nature of duties to discover what precisely what duties the employee is performing.

 

31……………………In the judgment reported at (1966) 2 LLJ 827 regarding Shree Madhav Mills Limited it was held that though the claimant was drawing wages exceeding the statutory limit but was not employed in a supervisory capacity, he would fall within the definition of workmen under Section 2s of the Industrial Disputes Act, 1947..

 

33. In the light of these well settled binding principles laid down in various judicial pronouncements noticed hereinabove, it has to be held that the petitioner was employed as a workman and was not engaged in any supervisory or managerial functions or capacity. The finding of the industrial adjudicator is contrary to the settled principles of law noticed hereinabove. It would appear that the industrial adjudicator has been persuaded to hold against the petitioner because of the appellation of the post in which he was engaged and the sole fact that he had thrice been abroad to take training. Such finding has been rendered without consideration of the capacity in which the petitioner was engaged or sent abroad or the usual nature of his duties and is contrary to law.

Delhi High Court

Shri Muralidharan K. vs The Management Of Circle Freight ... on 30 April, 2007

https://indiankanoon.org/doc/1707718/

 

>>> Bank Branch Manager, Officer of Bank, performs clerical work as his duties are to check various accounts, and declared as Workman.

 

1. The petitioner has come before the Court by way of this petition challenging the Order of the Central Government Industrial Tribunal No. 1, Bombay. It came to be passed in Reference No. CGIT-17 of 1990 on 4th July, 1994. This reference has been referred to the Tribunal under the provisions of section 10(1)(d) read with section 2-A of the Industrial Disputes Act, 1947 The services of the petitioner came to be terminated by the respondent Bank with effect from 31st October, 1994.

2. The petitioner was employed in the said bank as Clerk Trainee on 3rd December, 1971 and on completion of the trainee period, she was taken up as probationary clerk on 16th May, 1972. She worked on that basis almost for six years. She was promoted on 10th May, 1978 to the rank of Officer Grade III. Her salary was more than Rs. 2,700/- being payable to clerical staff. By her letter dated 12th May, 1978, the petitioner accepted the promotion and reported to Bandra Branch where she was transferred. She started working in that Branch from 17th May, 1978. On 24th May, 1978, the respondent-Bank executed a Power of Attorney in favour of the petitioner. During that time, when she was working in the Bandra Branch, one Mr. Satish Rao was working as Branch Manager. He was transferred from Bandra Branch in the month of April, 1982, and from 9th April, 1982 to 8th May, 1982, the petitioner was holding charge of the Bandra Branch of the respondent-Bank. She was therefore, working as Manager of the Bandra Branch of the respondent-Bank. On 8th May, 1982, the new Manager Mr. Satish Udupa took over and during the intervening period, the petitioner was holding the charge of the branch as Manager. The petitioner proceeded on leave on medical grounds as also on maternity leave from 11th May, 1982.

3. In the month of June, 1982, what is alleged to be the misconduct of the petitioner came to be noticed and, therefore, she was contacted by the management of the respondent -Bank. According to the respondent-Bank, she had given a letter dated 14th June, 1982 admitting the lacks on her part. This led to the initiation of the departmental proceedings eventually relating to her termination. A reference was answered against the petitioner on the ground that she is not a workman.

4…………………………………………. In its reply, the Bank raised a question whether the petitioner can be considered to be a workman as per section 2(s) of the Industrial Disputes Act, 1947. While holding in favour of the Bank, the tribunal also went into the question of fairness and propriety of the inquiry and not only held that the inquiry was fair and proper but also held that the action of the management in terminating the petitioner was just and proper.

 

5. It is admitted on both the sides that if the petitioner is not a workman, as held by the tribunal, obviously, it was not open to the tribunal to enter into a question of fairness and propriety of the inquiry and justness, and legality of the orders of dismissal. It is ultimately to be noted that the tribunal will get jurisdiction to inquire into the aspect of the action of the management on proceeding with the reference that the petitioner is a workman. If the person, who is affected by the action of the management is not a workman, obviously, the tribunal shall not get this jurisdiction. The matter is, therefore, heard on the basis that if, at all, the petitioner is accepted to be a workman, the aforesaid finding will have to be set aside and the trial Court will have to be directed to consider the inquiry part and the punishment part afresh.

 

6…………………………….. Before the tribunal, witnesses were examined on both the sides. The petitioner examined solitary witness for herself and on her behalf. The respondent-Bank had examined Inquiry Officer as also two of its employees. By way of documentary evidence, the respondent - Bank produced Duty List at Exhibit M-21 and also Power of Attorney page 41. First of the said documents M-21 is at pages 15 and 16 of the compilation given by the bank in course of the hearing of the matter.

 

8. It is an admitted position that in absence of the Branch Manager, the petitioner had worked as Manager of the Bandra Branch. However, accepting this contention and relying on the documents of the management, i.e. duty sheet Exhibit M-21 as well as Power of Attorney, on behalf of the petitioner it was urged that keeping aside the nomenclature, the designation and all duties flowing therefrom as also the document like Power of Attorney, one has to concentrate only on duty actually performed by the petitioner. Duty sheet Exhibit M-21 makes it very clear that she was doing the work of checking of savings bank accounts. Bills payable, Cumulative Deposit Accounts, General Ledger and Day Book, B.S.E.S. statement i.e. Bombay Suburban Electric Supply Ltd., Maintaining of remittance, Rejects and Cash Scroll, Daily Checking of Cash and checking of Daily Slip Book.

9. The petitioner has admitted in her cross-examination that duty list is correct. So far as the Power of Attorney is concerned, no one would deny its existence nor has the petitioner. However, she has categorically stated that, so

 

10. The respondent bank seems to be falling back upon the Power of Attorney as also the fact that the petitioner was to be in-charge of the Branch almost for a period of one month coupled with the said duty list. On attendant circumstances, the respondent bank is also relying on the fact that the petitioner has been promoted in the officers cadre and she has been drawing salary in the officers grade. It has also come on record that the petitioner was a member of the Bank Employees Union. On being promoted, she had resigned from the union and joined Officers Union which, according to the respondent bank is a clear indication of perception that the petitioner had of her position in the bank.

 

11………………………….. In other words, according to the petitioner, while she was working, admittedly, as a clerk, the work that was checked by the person immediately above her, was of the same nature whether the clerk, who had initially written the books or registers, had committed any mistake or not. This by itself would not refer her work to be of supervisory character. The management is trying to say that this was essentially a duty of the officer who keeps an eye over the work of the clerks working under her as also to pull them up if they were found lacking in duty and generally be the in-charge of the department.

 

14……………... In either events and as per the Supreme Court pronouncements also one has to look at the actual work that was done by the petitioner and the evidence led by the respondent Bank.

 

19. Going by the evidence on record, in absence of any other material, it seems that the petitioner was working as in charge of savings section in the branch with one clerk or at the most with two clerks and as a part of her duty she was keeping an eye over their work while doing her own work.

 

21………………………… However, all throughout as officer or as an incharge manager whether she was supervising the work of the others and keeping watch on the clerks working under her, in her section or otherwise, her substantial work as was enumerated in the duty sheet Exhibit M-21 page 16 of the compilation is nothing else but checking the work done by the clerks. This being a mechanical or clerical work, obviously, it cannot be equated with the work of the managerial or administrative nature nor can it be said that she was employed in a supervisory capacity.

 

28. This is precisely the background in respect of the petitioner in the instant case as, when the petitioner did work as incharge Branch Manager, she might have an occasion to use any of the powers for which there is no clear cut evidence in that regard. She did not work all throughout including the period that she was incharge as Branch Manager. If that be so, the ratio of the Supreme Court decision in the case of State Bank of Bikaner (supra), on the contrary, helps the petitioner.

 

32. It is quite clear that the petitioner, though designated as an officer and entrusted with various powers as per the Power of Attorney, was in fact left to the situation of carrying out the work of clerical nature, no doubt, including the checking up of work done by the other workers in her own section. On the basis of the material on record both, oral and documentary, in my opinion, therefore, the learned tribunal had totally misdirected itself in appreciating the evidence and hence the Award cannot be sustained. The Award is set aside. The petitioner is to be a workman and the trial Court is, therefore, directed to hear the Reference and proceed further with it in accordance with law. Rule made absolute accordingly.

 

 

Bombay High Court

Smt. Sunita B. Vatsaraj vs Karnataka Bank Ltd. & Another 

https://indiankanoon.org/doc/1106283/

 

>>> Officer of Bank, performs clerical work and declared as Workman.

 

 

Rule. Respondents waive service. By content Rule is made returnable forthwith. The short question which falls for our consideration is whether the appropriate Government was justified in declining to make a reference of an industrial dispute arising out of the termination of service of the petitioner for adjudication to the Industrial Tribunal/ Labour Court under Section 10 of the Industrial Disputes Act, 1947. The petitioner was employed with the respondent No. 3 Bank in 1988 as a Clerk in Trade Services Department and was doing clerical/technical duties. The petitioner was thereafter promoted to higher grade vide letter of promotion dated August 27, 1994. According to the petitioner she continued to do the same duties of clerical/technical even after her promotion. By letter of termination dated January 15, 2001 the petitioner's services were terminated by the Bank. Being aggrieved, the petitioner vide her letter dated January 15, 2001 raised two demands viz (i) for reinstatement in service with full back wages and continuity of service and (ii) no action should be taken against the petitioner with regard to recovery of the housing loan till the dispute of termination of her services is resolved. As the demands made by the petitioner were not acceded to by the Bank, she approached the Regional Labour Commissioner (Central) for conciliation vide letter dated January 31, 2001. The bank did not appear but sent its reply dated March 20, 2001 copy of which was received by the petitioner on April 16, 2001 only after the conciliation proceedings were closed. In the reply it was contended by the bank that the petitioner was not a "workman" as defined under Section 2(s) of the Industrial Disputes Act as the duties performed by the petitioner were primarily managerial duties. The conciliation officer submitted his failure report vide letter dated August 16, 2001. The Central Government, after taking into consideration the report of the conciliation officer by its order dated August 16, 2001 declined to make a reference on the ground that:

"The disputant, Smt. Leena Patade, could not convincingly establish that she will come within the definition of workmen under the I. D, Act, 1947. Moreover, nature of duties assigned to her shows that she was an officer of the bank availing all the benefits available to an officer of the bank. Hence there is no merit".

The present writ petition is filed questioning the correctness and validity of the said order. It is well settled that while exercising powers conferred by Section 10 to refer an industrial dispute to the Tribunal for adjudication, the appropriate Government is discharging an administrative function and not a quasi-judicial or judicial function. 

 

5. In the present case it is the specific case of the employee that she was discharging the duties which were of clerical nature, though her designation was that of an officer. It is also her case that she was given glorified designation -without there being any actual change in her duties. It is well settled that mere nomenclature or the designation is not conclusive and whether a person is a workman within the meaning of Section 2(s) depends upon various factors including the nature of duties performed by him/her.

 

6. It is apparent from the above observations that where a detailed investigation is necessary to determine whether the person raising the industrial dispute is a workman as defined under Section 2(s) of the Act, then the Government will make a reference under Section 10 of the said Act. The reasons given by the Government would show that the Government came to the conclusion that there is no convincing evidence that the petitioner is a "workman" within the meaning of Section 2(s). It would further appear that the Government was satisfied that the petitioner was getting all the benefits available to an officer of the bank. 

 

7. In the present case it cannot be forgotten that it was a specific case of the petitioner that she was discharging the duties which were of clerical in nature although she was designated as an Officer and was put in Junior Officer's Grade. At the same time it was also contended by the petitioner that although several employees of the bank left the employment under the Voluntary Retirement Scheme (VRS), the petitioner was not allowed to go under the VRS on the ground of she being indispensable to the bank and immediately thereafter the bank insisted upon her to resign from the services of the bank by availing of a separate scheme which was less beneficial than availed by the other employees of the bank and since the petitioner did not accept the said scheme, her services were terminated by the bank. If the dispute raised by the petitioner is considered in this background, it is not possible to conclude that it did not merit even adjudication by the competent Court or Tribunal.

8. In the result, in view of the foregoing discussion, the petition is liable to be allowed. Rule is made absolute in terms of prayer Clause (a).

 

Bombay High Court

Leena Patade (Smt.) vs Union Of India (Uoi), Ministry Of ...

https://indiankanoon.org/doc/1229461/

 

>>> In case Chief Analytical Chemist, being incharge of section immaterial and duties performed/allocated are to be examined, and declared as Workman..

 

 

1. The short question that is involved in the present petition is whether the petitioner-employee is a workman within the meaning of the Industrial Disputes Act. The facts on record show that the petitioner was first employed on July 16, 1970 as an Analytical Chemist in the salary grade of Rs. 650/- to Rs. 1,000/. He resigned the said job on April 30, 1974. On Oct. 16, 1974 he re-joined as a Chief Analytical Chemist in the salary grade of Rs. 750/- to Rs. 1,500/- consolidated. His appointment was for a minimum period of three years. His services thereafter came to be terminated with effect from October 19, 1977 on account of the efflux of the tenure. He challenged the said termination before the Labour Court and the Labour Court by its impugned order rejected the reference holding that he was not a workman within the meaning of the Act. Hence the petition.

2. The Labour Court has recorded its impugned finding on the ground that one J. K. Mehta was working as an Analytical Chemist with the petitioner and the petitioner also supervised the work of Rabbit House Boy. The Labour Court has for the said finding also relied upon the contents of clause (5) of the appointment letter which states that the petitioner would be in complete charge and responsible for the analytical section, including the care of experimental animals and their well-being in general, and clause (8) thereof which specifies that it is his duty to train apprentices in his department so that they can be sent for approval as Analytical Chemist by the Commissioner, Food and Drug Administration or any other authority. The Labour Court from these facts drew the inference that the petitioner was exercising supervisory authority over the apprentices in the analytical chemist section. Hence he was not workman within the meaning of Section 2(s) of the Act.

3. We are afraid that the Labour Court has completely misdirected itself. It is true that the post of the petitioner was that of a Chief Analytical Chemist. However, it is not the designation but the nature of the duties performed by or allocated to the post which have to be examined to find out whether the work is that of a supervisory character. To come to the conclusion that the petitioner was working in supervisory capacity it was necessary to prove that there were atleast some persons working under him whose work he was required to supervise. Admittedly there is no evidence led by the respondent-employer to prove it. The only evidence that is brought on record is that he was incharge of the entire analytical section. 

 

As a person in charge of the section and being the only person in the section he was required to do every thing himself. The mere fact of being in charge of the section therefore did not make him a supervisor. There was no other fact on record on the basis of which the Labour Court could have come to the conclusion that the petitioner was working in a supervisory capacity of was exercising supervisor powers. The Labour Court, therefore, according to us, travelled beyond is jurisdiction and authority and has also improperly exercised the jurisdiction vested in it to come to the conclusion that the petitioner was a supervisor.

4. Hence we have no hesitation in setting aside the impugned order of the Labour Court and remanding the matter for trial on merits. Rule made absolute accordingly with costs.

 

 

Bombay High Court

S.B. Kulkarni vs Indian Red Cross Society And ...

https://indiankanoon.org/doc/138920/

 

>>> Maintenance Engineer is not performing any managerial or administrative function,

Is having no power to take disciplinary action against any employee nor can sanction

Leave, and declared as Workman.

 

By means of this writ petition, the petitioner has challenged the validity and legality of the award passed by the Industrial Tribunal directing the petitioner to reinstate the workman with full back wages and other consequential benefits including interest on unpaid wages and cost of Rs.5000/-. For facility and convenience, the petitioner is called the "management" and the respondent is called the "workman". 

It is alleged, that all the units are independently managed and administered separately and that there is no inter unit transfer and, it is only in exceptional circumstances that an employee is sent on a deputation to another unit, as per the requisite requirement of work.

It is alleged that the workman respondent No.2 was appointed by the Head Office in Kolkata on 19.4.1991 as a Maintenance Engineer, but was mainly appointed to do the liaison work of the Company. The petitioner was transferred by the Head Office to the Naini unit in the year 1993 and, since then, was working at the Naini unit. In the year 1999, the management transferred the workman from Naini unit to Kolkata unit, as he was no longer required by the Naini unit. It is alleged that the workman reported for work at the Kolkata unit but was not allowed to join on the ground that there was no vacancy on the post of Maintenance Engineer at Kolkata nor was there any requirement of work and accordingly the workman was directed to report back to the Naini unit. The workman, accordingly reported back at the Naini unit but was not allowed to join at the Naini unit. This led to a dispute and upon the failure of the conciliation proceedings, the Deputy Labour Commissioner, while exercising the powers under Section 4-K of the U.P. Industrial Disputes Act, referred the matter for adjudication before the Industrial Tribunal. The terms of the reference order was whether the employer was justified in not taking work from the workman w.e.f. 20.1.2000 ? If not, to what relief was the workman entitled to ? 

 

The petitioner filed a rejoinder affidavit to the written statement of the workman and contended that the order of reference was bad in law and that the Deputy Labour Commissioner had no jurisdiction to refer the dispute to the Industrial Tribunal, inasmuch as, no cause of action arose in the State of U.P. and, therefore, the authority had no power to refer any dispute under the U.P. Industrial Disputes Act. It was contended that the respondent No.2 was temporarily transferred to the Naini unit and since his services was no longer required at the Naini unit, he was accordingly transferred back to the Kolkata unit in the year 1999. It was contended that since the Naini unit had transferred respondent No.2 and was also relieved from the Naini unit, no dispute or cause of action arose in the State of U.P. and that, whatever dispute, if any, was only with the Kolkata unit and that therefore workman should approach the Kolkata unit for the redressal of his grievance. 
The Industrial Tribunal, after considering the evidence on the record, held that the cause of action arose at Naini and therefore, the State Government was competent to raise an Industrial dispute. The Tribunal held that the State of U.P. had the territorial jurisdiction to refer the dispute and that a part of cause of action arose in the State of U.P. The Tribunal further found that respondent No.2 was a workman as defined under Section 2(z) of the U.P. Industrial Disputes Act and that the work which he was performing was that of a skilled workman and that there was no evidence to show that respondent No.2 was appointed for any managerial or administrative work. 

The Tribunal further found that even though his designation was termed as an officer, his duties and functions were not managerial in nature. 

The aforesaid provision is more or less pari materia with the provisions of Section 2(s) of the Industrial Disputes Act (Central). The definition of 'workman' has undergone a sea change from the time of the enactment of the Industrial Disputes Act. Amendment in the definition of workman was made in the year 1947, 1956 and thereafter in the year 1982. From an unskilled manual or clerical work, the definition of 'workman' now includes a skilled, unskilled, manual, supervisory, and operational work. The moot question, in the present case is, whether respondent No.2 is a workman as defined under the provisions of U.P. Industrial Disputes Act or not ? The appointment letter of respondent No.2 indicates that he was appointed as a Maintenance Engineer for the maintenance of the equipments, machines, electrical systems and was also responsible for liaisoning with the Government department and other agencies. The rejoinder statement of the employers indicates that respondent No.2 was basically appointed to do liaisoning work with his brother who was an approved consultant in the Pollution Board for the purposes of setting up a water treatment plant, as is also clear from the evidence of the Senior Vice President. The evidence of the Foreman also indicates that he was not looking after the maintenance of the machines and that he was only looking after the pollution matter…

 

 

The record indicates that he was not authorized to take any independent decision and that he had to work under the supervision and direction of his superiors. He had no subordinate staff nor could he sanction leave, etc. nor had any authority to take any disciplinary action against an employee of the Company. Consequently, the evidence that has been brought on the record, suggests that respondent No.2 was not performing any administrative or managerial work and that he was nothing else but a skilled workman or a glorified workman, being given a designation of an officer. In my opinion, merely by giving him a designation of an officer would not make the respondent No.2 an officer. In my opinion, it is clear, that according to the work which respondent No.3 was performing, he was a workman as defined under the U.P. Industrial Disputes Act. 

 

In view of the aforesaid, this Court is of the opinion that the award of the Industrial Tribunal does not suffer from any error of law. Consequently, the writ petition fails and is dismissed. In the circumstances of the case , there shall be no order as to cost. 

 

Shree Baidyanath Ayurved Bhawan Ltd., Allahabad v. Presiding Officer,

Industrial Tribunal (1), Allahabad

http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=38695

 

>>>Assistant Engineer, he has been performing duties of technical nature, declared as Workman.

 

1. Challenge in this writ petition is to the orders under Annexures-12 and 14 of the Deputy Labour Commissioner, Meerut, Respondent No. 1 finding that the late Bennett Solomon was 'workman' under the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and that his date of birth was 15th January, 1918and, therefore his retirement on 15th January, 1976 before he attained the age of 60 years was illegal.

2. The late Bennett Solomon was workimg as an Asst. Engineer under the U.P. State Sugar Corporation Ltd., the petitioner. He died on 15th May, 1977 and his legal representatives are respondent Nos. 2 to 6. According to the petitioner, Solomon's date of birth was 15th January, 1916 and therefore he was due to retire on 15th January, 1976. The petitioner served a notice on 9th December, 1975 on Solomon (Annexure-5) stating therein that he would be retired from service from 15th January, 1976. Against the said notice Solomon made a representation (Annexure-6) under clause L.L(4) of U.P. Sugar Standing Orders 1971 governing the conditions of employment of workmen in Vacuum Pan Sugar Factories to the Labour Commissioner, Uttar Pradesh. The said representation was sent to the Deputy Labour Commissioner, Meerut for disposal. Parties filed their respective affidavits before the Deputy Labour Commissioner and also adduced oral and documentary evidence in support of their respective cases. Solomon's case was that his date of birth was 15th January, 1918 and as such he was due to retire only on 15th January, 1978 and not on 15th January, 1976. He also prayed for necessary correction of his date of birth. ……………………. The petitioner took a preliminary objection that Solomon was not a 'workman' as per the definition of that expression contained in the Act. On consideration of the materials and evidence placed before him the Deputy Labour Commissioner vide his order under Annexure-12 held that Solomon was a 'workman' under the Act. The preliminary objection having been held against the petitioner, the Deputy Labour Commissioner proceeded to consider the dispute between the parties regarding Solomon's date of birth and held by his order under Annexure-14 that Solomon's date of birth was 15th January, 1918 and as such he must be deemed to have continued in service till he attained the age of 60 years with full wages.

 

3. Learned counsel for the petitioner urged before this Court that the Deputy Labour Comissioner erred in finding that Solomon was 'workman' under the Act as Solomon's work and duties clearly took him out of the definition of 'workman' as contained in Section 2(z) of the Act. It may be noted that no material has been placed in this court enumerating the duties and the work which were performed by Solomon as an Asst. Engineer. In support of his contention, learned counsel for the petitioner referred to paragraph No.7 of Annexure-12 wherein Solomon's duties have been described by the Deputy Labour Commissioner. The work and duties of Solomon as described in the aforesaid paragraph No.7 are as follows:

"(i) his work was technical in nature;

(ii) in case of breakdown of machines, he was himself repairing the defects; and

(iii) he used to get the work assigned by the Manager and Chief Engineer executed and for that purpose he used to look after the work of the workmen working under him and the concerned machines."

 

According to the learned counsel for the 5 petitioner as the work and duties of Solomon described above were supervisory in nature and his wages were more than Rs. 500 per month, he was not a 'workman' under the Act.

 

3……………….. In Solomon's case, however, his duties as described in paragraph No.7 of Annexure-12 do not indicate that the major part of his duties was of a supervisory nature. As already stated, his work was technical in nature and he merely looked after the work of the workmen working under him as well as the concerned machines, he did not allocate jobs to the workmen, this work was either done by the Manager or the Chief Engineer. He had no power to sanction leave to any of the workmen working under him nor did he exercise any disciplinary control over the workmen. In these circumstances, Solomon's duties cannot be said to be of supervisory nature. The Deputy Labour Commissioner had considered the oral and documentary evidence and all the materials placed before him relating to the nature of the duties of Solomon and had come to the conclusion that he was a 'workman' under the Act. Nothing has been placed before this Court to justify a different conclusion.

 

5. In his order under Annexure-14, the Deputy Labour Commissioner has at the end held that Solomon should be deemed to have continued in service and entitled to full wages till he attained the age of 60 years. Admittedly Solomon did not live up to the age of 60 years as he died on 15th May, 1977. It is therefore clarified that Solomon shall be deemed to have continued in service under the petitioner in the post last held by him till 15th May, 1977 and entitled to all financial benefits due to him under the law upto 15th May, 1977 which shall be paid to his legal representatives, respondent Nos. 2 to 6.

6. Subject to this clarification, the orders under Annexures-12 and 14 are confirmed. The writ petition which has no merits is dismissed with costs. 

Allahabad High Court

U.P. State Sugar Corporation Ltd. vs Deputy Labour Commissioner And .

https://indiankanoon.org/doc/554060/

 

>>> Senior Service Engineer, entrusted with work of installation, servicing and repair of Xerox machine, declared as Workman.

 

 

 

1. Order of the learned Presiding Officer, Labour Court, Sambalpur, passed in Industrial Misc. Case No. 28 of 1994 computing the entitlement of subsistence allowance of opposite party No. 2 has been assailed in this writ petition.

2. For better appreciation of the questions involved, a few facts giving rise to the initiation of the aforesaid Misc. Case may briefly be stated thus:

Opposite party No. 2 while working as a Technician in Kores India Limited, Rourkela office, was placed under suspension with effect from February 15, 1993 and till the filing of the case before the Labour Court he was still under suspension. Since his employer did not pay his subsistence allowance he raised an industrial dispute before the District Labour Officer, Rourkela, whereupon a conciliation proceeding was initiated where he begged apology and consequently his employer agreed to reinstate him in service with all backwages. But he was neither reinstated nor paid backwages. This led the opposite party No. 2 to approach the Labour Court by filing a petition under Section 33C(2) of the Industrial Disputes Act (in short 'the Act') seeking a direction to his employer to pay subsistence allowance and other allowances as admissible to him.

3. Kores India Limited through its functionaries, petitioners herein, refuted the claim of opposite party No. 2 contending, inter alia, that opposite party No. 2 was not a workman as defined under Section 2(s) of the Act and therefore, the proceeding as laid was not maintainable. They also challenged the claim of subsistence allowance and bonus as detailed in the petition which are at Annexures 2 and 3 of the present writ petition. Their further case was that opposite party No. 2 during course of employment had committed serious acts of irregularities detrimental to the interest of his employer for which he was transferred to Ernakulam Branch to work under a new Manager by order dated June 13, 1993. Though he received the said order, he did not join at his new place of posting and therefore, he was not entitled to subsistence allowance as claimed.

 

 

7. To appreciate the contentions we would like to deal with all the issues seriatim. Since a workman is entitled to initiate a proceeding under Section 33C(2) of the Act by making an application to the Labour Court, the first and foremost question that arises for consideration is as to whether opposite party No. 2 is a workman. Section 2(s)

 

 

 

8. It would appear from the impugned order that a contention was raised that the work of opposite party No. 2 was of managerial and supervisory in nature and his monthly salary being Rs. 3,400 at the relevant time, he was not a workman. It was, however, admitted that while working as Service Engineer he was promoted to the post of Senior Service Engineer and the job entrusted to him was installation, servicing and repair of xerox machines. No evidence whatsoever was led by the petitioners to support the contention that his work was managerial or supervisory in nature, although admittedly he was drawing salary of Rs. 3,400 per month. In course of hearing, nothing could be brought to our notice to assail the aforesaid finding of the learned Labour Court and in absence thereof we would hold that opposite party No. 3 is a 'workman' as defined in the Act.

 

 

 

 

9………………….The jurisdiction of the Labour Court therefore would not be ousted merely because the employer disputed such right. However, if the status of the workman is disputed, the monetary claim or the right as claimed is dependent on the determination of the said status, then in that case it is not permissible for the Labour Court to entertain the application under the aforesaid section. 

 

 

13. For the foregoing discussion, we would hold that opposite party No. 2 is entitled to subsistence allowance from the date of suspension till June 31, 1993, the date of service of letter at Annexure-8 and not thereafter.

14. The last question is whether determination of the claim of opposite party No. 2 at Rs. 86,750 is correct and based on evidence. We find from the record that initially claim was made to the extent of Rs. 64,651 towards salary for the whole month of February, 1993 suspension allowance (@ 50 per cent of the salary till May, 1993 and 75 per cent from June, 1993 to July 1994, arrear travelling dues terms and commission, but by amending the petitioner it was enhanced to Rs. 94,001. From the impugned order it appears that the learned Tribunal without referring to any evidence whatsoever accepted the claim of opposite party No. 2 in toto, except the travelling dues, i.e. Rs. 251. It is admitted fact of the parties that opposite party No. 2 worked till February 10, 1993 and from the next day he was not under suspension till June 31, 1993, that is the date of service of letter, Annexure-6. In that view of the matter, opposite party No. 2 is entitled to salary from February 1, 1993 to February 10, 1993 and subsistence allowance from August 11, 1993 to May, 1993. Admittedly opposite party No. 2 was drawing salary of Rs. 3400 per month. He has claimed suspension allowance @ 50 per cent till May, 1993. We accordingly compute his salary from February 1, 1993 to February 10, 1993 and subsistence allowance for the rest period till May, 1993 at Rs. 7,365. So far as bonus is concerned, it may be stated that since bonus is linked with work opposite party No. 2 being a suspended employee was not entitled to bonus for the suspension period. We would, however, have calculated the bonus for the period from February 1, 1993 to February 10, 1993, but in absence of any evidence as to quantum of bonus paid to similarly situated other employees for the month of February, 1993, we are unable to calculate the same.

15. The writ application is accordingly disposed of. No cost.

 

 

Orissa High Court

General Manager, Kores (India) ... vs Presiding Officer, Labour Court….

https://indiankanoon.org/doc/1994408/

 

 

>>> Superintendent, was not performing supervisory duties but was only maintaining the

account books, declared as Workman.

 

 

1. The writ petitioner in these proceedings challenges an order dated 21. 3. 1996 as well as the final award dated 4. 3. 1998, of the Industrial Tribunal-I.

2. The writ petitioner is the management of Ram Lal Anand College affiliated to the Delhi University (hereafter called the college). The first respondent, (who had raised the industrial dispute and was claimant before the Tribunal is hereafter referred to ''as the workman''. )

3. The workman was appointed by the college, on 1. 11. 1973 as Superintendent (Accounts). His services were confirmed on 1. 11. 1974. The college issued a memorandum alleging certain objectionable conduct to the workman on 17. 1. 1976. He replied to it on 2. 2. 1976. By an order, dated 28. 6. 1976, the college placed the workman under suspension from its services. The order of suspension was revoked on 23. 7. 1976. The workman was reinstated to the services and reported for duties.

4. On 29. 11. 1976 a charge-sheet was served upon the workman. He replied to the charges denying them. An enquiry was constituted into these charges, which were about 18 in number. After holding departmental enquiry, the management issued an order reducing the workman in rank. He preferred an appeal, which was rejected. Thereafter, he filed a civil suit in which initially an injunction was granted; later the temporary injunction was vacated and eventually suit was dismissed. The management issued another charge-sheet on 5. 2. 1979 (hereafter called the second charge-sheet) containing 13 charges. An Enquiry Officer was appointed. In these proceedings, the petitioner participated initially but later refused to attend the hearings. The proceedings were set down ex-parte. The enquiry report found the petitioner guilty of several charges. A copy of the report was served upon the workman and eventually by an order dated 5. 10. 1980 he was dismissed from the services.

5. The workman raised an industrial dispute, upon being aggrieved by the penalty of reduction in rank as well as the order of the dismissal dated 5. 10. 1980 after the conciliation proceedings ended in failure, the industrial disputes were referred for adjudication by separate orders issued on 4. 2. 1982 and 6. 2. 1982. The first related to the penalty of reduction in rank and the second pertained to legality and the justification of the order of dismissal of the workman.

 

7. The Tribunal by its order dated 24. 8. 1984 framed 6 issues which included whether the first respondent was a workman within the Industrial Disputes Act; whether the dispute was a industrial dispute; whether and inter alia whether enquiry conducted against the petitioner was illegal and invalid.

8. The principal objections as to the fairness of the enquiry were that in the first enquiry, the Principal who was allegedly instrumental in getting the workman suspended acted as a Presenting Officer; it was also averred that the workman was not allowed to cross examine witnesses and lead his own evidence in the proceedings. The workman also took the plea that he was not permitted to engage a defense representative and the rules applicable for the conduct of enquiry into charges against non-academic employees of the university were violated thus resulting in prejudice

 

13. The final award, after analysing the evidence concluded, on the issue of whether the respondent was a workman found that he was required to maintain files and accounts but had no supervisory duties such as the right to sanction leave, impose penalty or take any decision in any matter. It was also concluded that the workman's function was checked by a Senior Assistant. Therefore, it was held that the first respondent was a workman within the meaning of the expression under Section 2(s) of the Act.

 

 

65. In view of the above findings, the following directions are issued:

1) The findings in the first impugned order, dated 21. 3. 1996 as well as the final award dated 4. 3. 1998, of the Industrial Tribunal-I are upheld;

2)The direction to pay full back-wages, contained in the final award dated 4-3-1998 is hereby modified, to the extent, that instead of 100% back-wages, the respondent workman shall be entitled to 60% back-wages, for the period 1-12-1980 to 30-4-2002.

3)The directions contained in the final award regarding continuity and consequential benefits are left undisturbed;

4)The respondent-workman shall be entitled to payment of gratuity and provident fund, on the basis of the above directions; he shall also be entitled to pension, on the basis of such pay-fixation;

5)All the amounts payable to the respondent workman, as per this judgment shall be disbursed to him, within six weeks from today.

66. The writ petition, and all pending applications are allowed, in terms of the above directions; Rule made absolute in these terms.

 

 

Delhi High Court

The Management Of Ram Lal Anand ... vs The Workman Sh. C.L. Yadav And Anr

https://indiankanoon.org/doc/1262834/

 

 

Notes on Termination of Service, Layoffs, and retrenchments

 

NOTE ON “TERMINATION OF SERVICE, LAYOFFS AND RETRENCHMENTS”

The definitions of lay-offs and retrenchment are specifically covered under Industrial Disputes Act, 1947. However, while determining termination of service of employee it is pertinent to delve into spectrum of Labour and Employment Acts and regulations which are prevalent in India in order take statutorily compliant decision taking into account the business objectives of the company.

INDUSTRIAL DISPUTES ACT, 1947 - (The ID Act)

The law relating to lay-offs and retrenchment is specifically expounded under Chapter VA (Entitled, Layoff and Retrenchment) and Chapter VB (Concerning, Special provisions relating to Lay-Off, Retrenchment, and Closure in Certain Establishment) of the Industrial Disputes Act, 1947. These two chapters in ID Act elaborately delineates provisions relating to Lay-offs and Retrenchment.

The ID Act is applicable to certain class of workmen as defined under Section 2(s) of the Act. “Workman” means

         “Any person (including an 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 employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute”

Further, note that there are certain exclusions to the definition of workman, and according to the Act, Workman who is, (i) in managerial or administrative capacity; or (ii) employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem, or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature, are express exclusions to the definition. As such, this Act does not become applicable to sizable spectrum of employees working in various organizations or companies either due to their nature of work or earning being at a higher scale.

This Act has provided lucid definition to the words “lay-offs” and “retrenchments” under in Section 2(kkk) and Section 2(oo) of the Act, and the extract thereof is below.

"Lay-Off (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery [or natural calamity or for any other connected reason] to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.

Explanation: Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause:

Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid- off only for one-half of that day 

Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day.”

“Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

  (a) voluntary retirement of the workman; or

(b) retirement  of the workman on reaching the age of superannuation if the contract of employment between the employer  and  the  workman  concerned  contains  a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health; 

The law relating to lay-off and retrenchment is effectively applicable for workman in industrial establishment, as defined under the ID Act, and effectively, the scope and validity of these provisions to said workman are categorically restricted to certain persons employed in an industry subjected to exclusions as delineated under the definition of workman. Thereby, Act clearly indicates that employees working in companies with salaries higher than limit applicable for workman, or who are in managerial or administrative capacity does not fall within the ambit of the scope of the said Act. Given the exclusions, the scope and applicability of Industrial Disputes Act is limited to workman as defined under the said Act

In “T. Prem Sagar vs The Standard Vacuum Oil Company Madras and Others”, the apex court had laid down certain tests to ascertain whether an employee is in a position of management and extract of the judgment is provided below. 

        “So, in order to determine whether a person is in a position of management or not, the factors to be considered are  whether the,  person  had  power to operate  on the  Bank  account, whether he could make payments to third parties  and enter into agreements with them on behalf of the employer, whether he  was entitled to represent the employer to the  world  at large  in  regard  to  the dealings  of the  employer with strangers, whether he had authority to supervise the work of the  clerks  employed in the establishment, whether  he had control  and charge of the correspondence, whether he could make commitments on behalf of the employer, whether he could grant leave  to  the  members of the staff and hold disciplinary proceedings against them and whether he had the power to appoint members of the staff or punish them. The salary drawn by an employee may have no significance and may not be material though it may be treated theoretically as a relevant factor.”

The apex court had emphasized the applicability of the tests laid out under the said judgement that that they should be considered against the facts of the case, particularly taking into account the nature and scope of work of the employee in broader perspective of his/her work functions and responsibilities. 

It is important to note that the Shops and Establishment Act does not apply to the employees in any establishment in a position of management and having control over the affairs of the establishment, whose average monthly wages exceed sixteen hundred rupees. However, employees falling under the purview of the SE Act would be governed with regard to matters of Wages, Conditions for termination of services appeals, suspension and terminal benefits, under Chapter VIII of the said Act.

Section 47 of the Telangana Shops and Establishment Act stipulates conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement, etc., and payment of subsistence allowance for the period of suspension. Pursuant to the said provision, “no employer shall, without a reasonable cause terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee at least one month notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than one year, a service compensation amounting to fifteen days average wages for each year of continuous employment”. Therefor the Section highlights that serving of notice period is mandatory for termination, retirement, resignation, disablement etc.,. Therefore, the companies will have to adhere with it. 

Employer-employee or Employer-workman relationship are regulated by various labour and employment laws. However, in the context of lay-offs, retrenchment and termination of services of employee, predominantly, two Acts, namely the Industrial disputes Act and the state relevant Shops and Establishment  (SE) Act governs and stipulates the law and procedures pertaining thereto. The ID Act govern relationship of workman-employer and the SE Act of employee-employer.

 

Query on Suit

Query on Suit

I have file a suit for declaration & permanent injunction for a property. The court grant temporary injection & said injunction is also extended. My opposite party refused to receive court summon. But later on appeared before the court & pray for written objection. The ourt allow prayer of OP. Thereafter OP remaining absent on several dates. My advocate prays for Ex-party order in my favour & court grant order in my favour. My friend says that since OP is refused to receive count summon & failed to submit written objection against me within due time, the court will not vacate it's order. Can such ex-party order be vacated & is there any time limit ? When such order become absolute?

Answer ;

Since it is an interim order, the IA and the orders passed therein are temporary in nature which will automatically stand revoked/cancelled or become infructuous upon disposal of the main suit. If the court has disposed the matter by passing an exparte judgment then the the IA will become infructuous from the date of the passing of the said judgment

Query on Power of Attorney

Query on Power of Attorney_______________

Father's property was sold by Daughter in 1995, Without the knowledge of Father & sale deed was executed by daughter via Notarized Power of attorney ( POA was fake does not have witness, seal notary does not have register number of advocate, Signature of notary advocate is fake). After 20 year again i.e 2015 Father again gifted the property to Daughter and Daughter again gifted the property to her daughter again, Note - Person who had sale deed from daughter did not pay tax or transferred khata till 2020, will this sale deed executed via notarized POA valid in 1995. Now whether Sale deed sustains or gift deed !!

Answers_______________

The registered sale deed executed by the power agent in the year 1995 is valid, moreover the principal never challenged the said sale deed then or after that. This clearly indicates that the original owner/principal has ratified the sale deed executed by the power agent. Therefore the sale deed which is the principal document will remain valid and not the gift deed, the title holder can object to the gift deed and get it nullified Please note that you have repeated the same question in the forum section under a different subject.

A bald statement of taking opinion from some counsels could not be taken as a sufficient cause

 A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ., refused to condone a delay of 65 days in filing the appeal under Section 37 of Arbitration and Conciliation Act, 1996 which was consequently dismissed. The appellant filed the said appeal against the order of the learned Single Judge who dismissed appellant’s objection to the award passed by the Arbitrator. However, there was a delay of 65 days in filing the appeal. The appellant sought condonation of such delay on the grounds that the appellant was a corporate body (a company) with a legal department and higher management. Every decision of filing an appeal is scrutinised by the higher management. It was stated that the appellant had preferred to take opinion from some counsels, and also made a self-analysis of the case. Thereafter, the facts were placed before the management who took the decision of filing the appeal. Thus, the appellant submitted, the delay was on account of bona fide reasons and not due to inaction or carelessness. The High Court did not find favour with the submissions of the appellant. Referring to a few Supreme Court decisions, the High Court observed that while deciding an application under Section 5 of Limitation Act, the courts must adopt a liberal approach, provided there is no gross negligence, deliberate inaction or lack of bona fide imputable to the party seeking condonation of delay. Further, while considering the application seeking condonation of delay, the period of delay is not the criteria. A short delay may not be condoned in absence of an acceptable explanation while a large delay may be condoned if the explanation is satisfactory. In the instant case, the appellant was a private limited company with a legal department. The application for condonation of delay was highly casual in nature, it lacked material particulars and did not disclose sufficient cause for the condoning the delay. A bald statement of taking opinion from some counsels could not be taken as a sufficient cause. Holding thus, the High Court denied to condone the delay and dismissed the appeal. [Lifelong Mediatech (P) Ltd. v. United India Insurance Co. Ltd.,  2018 SCC OnLine Del 9559, dated 03-05-2018]