JUDGMENT
V.S. Deshpande, J.
1. What is the meaning of the word “supervisory” in the expressions “supervisory work” and “supervisory capacity “used in Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter called the Act) defining the word” workman.” It is this meaning which will help us to determine whether the respondent N.R. Sharma in the present writ petition was a workman employed to do any supervisory work or in a supervisory capacity by the petitioner-company on October 9, 1968 when his services were terminated by the petitioner-company
2. Sharma entered the service of the company in 1954 as a mechanic. On January 5, 1965 he was promoted as a supervisor and put on probation for six months with Rs. 25 per month as supervisory allowance. On June 29, 1965 he was confirmed as a supervisor and his supervisory allowance of Rs. 25 was merged in his pay. While his starting salary as a mechanic was Rs. 140 per month his starting salary as a confirmed supervisor was Rs. 360 per month. Adding to it the increments earned till 1968 and the allowances, the total emoluments of Sharma exceeded Rs. 500 per month when his services were terminated. Respondent 3 the union of the workmen of the petitioner-company raised a dispute regarding the termination of Sharma’s services. When this dispute was referred to the Labour Court by the Government, the petitioner-company challenged the legality of the reference on the ground that Sharma was not a workman inasmuch as he was doing supervisory work and his total emoluments exceeded. Rs. 500 per month with the result that he ceased to be a workman even though he was a workman before his emoluments exceeded Rs. 500, This contention was tried as a preliminary issue by the Labour Court. After taking documentary and oral evidence, the Labour Court gave a finding on the preliminary issue that Sharma was a workman inasmuch as his main work was that of a mechanic while the element of supervision was only incidental to his main work. It is this finding which is challenged by the company in this writ petition.
3. There are two ways in which the finding can be assailed in this writ petition. In so far as it is a finding of fact it may be shown that the existence of an industrial dispute was a condition precedent to the validity of the reference made by the Government to the Labour Court. An industrial dispute as defined in Section 2(k) could be raised only by the workmen of the company. If it related to the conditions of employment of a person who is not a workman, then the workmen raising the dispute must show that they are directly interested in the conditions of employment of such a person. If, however, Sharma is held to be a workman, then because of Section 2A even he alone could raise an industrial dispute, fortiori, the union could do so. In so far as the finding is on a question of law, the petitioner can succeed only if it shows that the finding is arrived at by an error of law apparent on the face of the record.
4. The finding as to whether Sharma was a workman when his services were terminated is partly a finding of fact and partly a finding on a question of law. For, it is based on the particular facts and circumstances of this case as admitted in the pleadings and proved by evidence as also on the construction of the word “supervisory” in Section 2(s) of the Act. After a survey of the relevant case-law it was held in Delhi Transport Corporation v. Delhi Administration 1973-II L.L.J. 307, that the question whether an industrial dispute exists or not is a jurisdictional one. In so far as it is a question of fact, it becomes one of jurisdictional fact. The High Court under Articles 226 and 227 of the Constitution is, therefore, competent to consider the soundness of the finding of fact afresh in so far as it is jurisdictional. Since the definition of a “workman” has to be construed in deciding whether an industrial dispute existed or not, the question whether Sharma. was a workman or not also becomes one relating to jurisdiction. In Management of May and Baker (India) Ltd. v. Their Workmen , at the end of paragraph (9) their Lordships of the Supreme Court have observed that “therefore, as Mukherjee was not a workman his case would not be covered by the Industrial Disputes Act and the Tribunal would have no jurisdiction to order his reinstatement.” I. therefore, allowed the learned Counsel to argue this writ petition on both the factual and the legal aspects of the Question as to whether Sharma was a workman when his services were terminated. On perusing the pleadings in the present writ petition, those before the Labour Court and the evidence, documentary and oral taken by the Labour Court, in the light of the arguments addressed before me, the position regarding the status of Sharma at the time of his discharge emerges as follows:
5. On the one hand, Sharma was employed as a mechanic in 1954. It is common ground that as a mechanic, Sharma was a workman within the definition of Section 2(s) of the Act inasmuch as a mechanic did not do any supervisory work. A mechanic, therefore, did technical work and as such a workman. By a contract between the petitioner-company and the Punjab National Bank, Parliament Street Branch, the air-conditioning plant operating in the Punjab National Bank building consisting of six floors was to be maintained and repaired by the petitioner-company. The Punjab National Bank was to pay Rs. 27,000 per year to the petitioner-company for this job. In the contract between the petitioner-company and the Punjab National Bank it was stated that the plant would be operated on week days from 9.30 a.m. to 5 p.m. and on Saturdays from 9.30 a.m. to 1.30 p.m. and that there would be a minimum staff consisting of one operator, one fitter and two assistants. It was not agreed therein that the petitioner-company would post any supervisor as such for the maintenance and repairs of the said plant,
6. Sharma was posted as a member of the staff to maintain and repairs this plant while he was a mechanic. When he was appointed as a supervisor on probation in January, 1965 and was confirmed as such in June, 1965 he continued to attend to this plant. Shri P.N. Seth, the then Regional Manager and now a Director of the petitioner-company could not say if the duties of Sharma (performed as a mechanic) in 1964 changed in 1965 (when he was appointed as a supervisor). There is no direct evidence adduced on the petitioner’s side that the duties of Sharma changed when he was promoted from the post of a mechanic to the post of a supervisor. On the contrary, there are only three persons who have personal knowledge of the work that Sharma did there when he was a mechanic and also when he became a supervisor. These three persons were Sharma himself the junior mechanic Jitendranath and the apprentice Ganesh who were the only three persons detailed to maintain the plant by the petitioner-company. All of them were examined and all of them are agreed in saying that Sharma himself did not work and that he did not supervise the work of other two persons, that is to say, all the three of them did the same work together without any distinction between Sharma being a supervisor and the other two being workmen under him. The order of appointment of Sharma as a supervisor formally asked him to return the tools. For, tools are supplied to mechanics but not to supervisors according to the practice of the petitioner-company. But it is significant that the company did not insist on the return of the tools by Sharma. These tools were recovered by the company from Sharma after the termination of the latter’s services. “This would show that the company was aware that the tools had to be retained by Sharma because he had to use them during the course of this work. This would also show that the work done by him was the same, namely, that of a mechanic, as before his promotion as a supervisor.
7. The petitioner-company did not file any written list of duties of a supervisor. Shri Seth, however, stated generally what were the duties of a supervisor. He did not, however, say that they were the duties of Sharma. The duties of a supervisor, according to Shri Seth, were as follows: (1) to supervise the work oil the mechanics and others allotted to him, (2) to check the daily diaries of the work done by them, (3) to sanction casual leave and earned leave to the employees working under him, (4) to sanction the overtime of the employees under him, (5) to appoint a contractor for a particular job and to supervise his work and (6) to maintain liaison with the customers. The documentary and oral evidence on record shows that Sharma performed only one or at the most two of the above duties. He checked the daily diaries of Jitendranath and Ganesh and he maintained liaison with Punjab National Bank acting as the man on the spotter the petitioner-company. It is true that he took advances from the company for purchases of material for the repair of the plant and he also took such advances from the Punjab National Bank for the same purpose. There is no evidence at all, however, that he could appoint a contractor for a particular job. In connection with the maintenance and repair of the air conditioning plant at the Indian Express building it is proved by document that the work was directly given by the petitioner-company to Messrs. Bhalla and Company. It is only a part of the payment due to Messrs. Bhalla and Company that was made by the petitioner-company to Sharma who took that money from the company as advance for payment to Messrs. Bhalla and Company. There is absolutely no evidence that Sharma had power to grant casual leave or earned leave to any persons working under him or that he had power to sanction overtime allowance to the persons working under him. In Ananda Bazar Patrika (P.) Ltd. v. Its Workmen 1969-II L.L.J. 670, the question was whether P.K. Gupta was employed in a supervisory capacity. In the last but one paragraph of the judgment, at page 672, column 2 of the report, their Lord ships of the Supreme Court observed as follows:
The only power he could exercise over them was to allocate work between them, to permit them to leave during office hours, and to recommend their leave applications. These few minor duties of a supervisory nature cannot, in our opinion, convert his office of senior clerk in charge into that of a supervisor.
Sharma in the present case, did not have the power even to allocate the work to Jitendranath and Ganesh. The diaries maintained by them show that they did the same work which Sharma did, namely, the maintenance of the plant. Sharma did not maintain a diary inasmuch as he was a supervisor. From this fact, it is urged for the petitioner that Sharma was doing supervisory work. It becomes important, therefore, to know exactly the significance of the supervisory element in the work of a person within the meaning of Section 2(s) of the Act.
8. Supervision may be in relation to the work or in relation to persons. In a sense, Sharma, Jitendranath and Ganesh supervised the functioning of the air conditioning plant. The word “supervisor” is not used in Section 2(s) in relation to the supervision of an automatic plant. Many machines run automatically on power. They do not have to be run by human energy. Their running and functioning has only to be watched and repaired in case of anything going wrong. The person who attends to such a machine may do either technical or manual work within the meaning of Section 2(s). But he does not do supervisory work merely because he looks after the machine. The essence of the supervisory nature of the work under Section 2(s) is the supervision by one person over the work of others. It is in this sense that we have to see whether Sharma supervised over the work of two other persons.
9. In South Indian Bank Ltd v. A.R. Chacko 1964-I L.L.J. 319, the question for determination was to what extent accountants were included in the definition of a “workman” under Section 2(s). Their Lordships pointed out that the word “account” comprised different categories. Just as in the present case it is contended without proof that Sharma ceased to be a workman on being appointed as a supervisor, it was contended before the Supreme Court that one Chacko ceased to be a workman on being appointed as an accountant. Their Lordships of the Supreme Court, however, referred to paragraph 332 of the Sastry Award which pointed out that the mere fact that a person was designated as an accountant would not take him out of the category of workman. For the same reason, the mere fact that Sharma was designated as a supervisor would not show that he ceased to be a workman. The word “supervisor” as used by the petitioner-company was primarily for their own purposes. They have divided their own staff into various categories according to the pay scales and nature of duties. In that scheme, Sharma was a supervisor for the purposes of the petitioner-company. This did not mean necessarily that Sharma would be a supervisor for the purposes of Section 2(s). The warning given in paragraph 332 of the Sastry Award in this respect is worth quoting. As reproduced by their Lordships of the Supreme Court in paragraph (9) of the judgment in South Indian Bank case, (supra) it runs as follows:
The categories of workmen known as head clerks, accountants, head cashiers should prima facie be taken as workmen wherever they desire to be so treated but with this important proviso that the banks are at liberty to raise an industrial dispute about such classification wherever they feel that with reference to a particular branch and a particular office a person so designated is really entrusted with work of a directional and controlling nature and perhaps even supervision of a higher type over ordinary supervisory agencies.
This brings out two points. Firstly, supervision contemplates direction and control Secondly, ordinary supervision is not “supervisory” within the meaning of Section 2(s); rather supervision of a higher type over ordinary supervision would be entitled to be called “supervisory” within the meaning of Section 2(s). At the end of paragraph (13) of the same judgment, their Lordships of the Supreme Court characterised the work of Chacko as follows:
…the duties performed by the respondent consisted of clerical work with supervisory functions and were certainly not managerial or administrative as contended for by the Bank.
In the present writ petition also the petitioner-company do contend that Sharma’s duties were managerial. This contention is totally baseless and following the Supreme Court decision referred to above it would appear that Sharma cannot be regarded as doing supervisory work or holding a supervisory capacity at all.
10. In All India Reserve Bank Employees’ Association v. Reserve Bank of India , it was held that the work in a bank involves layer upon layer of checkers and checking is hardly supervision. On the contrary the word “supervise” and its derivatives must be constituted in the light of the context. For, unless so controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the manual work of others. We must guard ourselves, therefore, in thinking that Sharma did supervisory work merely because he had a simple oversight and direction of the work done by Jitendranath and Ganesh.
11. In Burma Shell Oil Storage and Distribution Co. of India v. Burmah Shell Management Staff Association , several categories of employees in an industry were considered by the Supreme Court with a view to determine if and which of them qualified for being covered by the definition of workman under Section 2(s). Their Lordships observed at page 765 that “a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition.” At page 766, they said “the principle is now well-settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work.” After approving the decisions in Anand Bazar Patrika (P.) Ltd. and South Indian Bank Ltd. cases, (supra) their Lordships referred to the English decisions which considered how far the work of a person is manual labour. In the light of the discussion, their Lordships concluded as follows with reference to some of the categories of employees:
(1) A Transport Engineer who supervised over 58 workmen who included mechanics, fitters, etc., did supervisory work because the persons working under him were skilled and he had to do personally only the more highly skilled work. It cannot be said that Jitendranath and Ganesh in our case were really skilled workmen. As they are not skilled, it cannot be said that Sharma becomes a supervisor merely by being in charge of the checking of their work diaries.
(2) A District Engineer was required to supervise the work done by others instead of doing work himself and did supervisory work.
(3) A Foreman (Chemicals) did supervisory work because the manual work done by him was only incidental. (4) Fuelling Superintendents were workmen if they did the work themselves but were supervisors when they supervised the work of others. (5) Chemists did technical work themselves and were not, therefore, supervisors.
12. On the other hand, it is contended by the petitioner, company that Sharma represented them in dealing with the Punjab National Bank and he was, therefore, a supervisor, I am unable to agree that Sharma had any power to act on behalf of the company. The advances taken by Sharma from the petitioner as also from the Punjab National Bank were merely to facilitate the work. It did not signify that he had any authority to represent the company. It was then contended for the petitioner-company that the diaries of Jitendranath and Ganesh also stated that they did the same work which Sharma was said to have done. It was tried to be inferred that Sharma was doing same different work. But the work described in the diaries was the only work which had to be done. There fore, Sharma and these two witnesses told the truth when they said that all the three of them did the same work as a team. This destroys the suggestion that Sharma did some other work.
13. In the light of the above discussion, I conclude as follows:
(a) The factual aspect of the finding of the Labour Court is based on sound evidence and good reasons. Even if it is jurisdictional, it is correct and not capable of being challenged in a writ petition.
(b) The legal aspect of the finding is also correct in the light of the case law discussed above.
14. The writ petition is, therefore, dismissed but in the circumstances without any order as to costs.
15. The parties are directed to appear before the Tribunal on March 4, 1974.