F.M. Ibrahim Kalifulla, J.
1. The appellant has come forward with this appeal against the order of the learned single Judge dated July 10, 1997, passed in W. P. No. 3640 of 1986, in and by which, the learned Judge while setting aside the award of the second respondent dated September 9, 1985, made in I.D. No. 437 of 1984, and gave certain directions directing the appellant to appoint the first respondent within thirty days from the date of receipt of the copy of the order and also pay all back wages and other monetary benefits, etc.
2. The brief facts of the case are: The first respondent herein who was in the services of the appellant as gradation analyst and assistant production manager was alleged to have been transferred to Dhanbad by letters dated March 10, 1983, and September 8, 1983, that since the first respondent did not obey the order of transfer, by letter dated September 17, 1983, the appellant terminated the services of the first respondent, that aggrieved by the said order of the termination, the first respondent raised an industrial dispute and the same was to be referred to the second respondent by G.O. Ms. No. 1645, dated July 15, 1984. The second respondent took up the said dispute for adjudication in I.D. No. 437 of 1984. Before the second respondent, the appellant took a stand that the nature of the duties performed by the first respondent would show that he was employed in a supervisory capacity and, therefore, he would not come within the definition of “workman” as defined under Section 2(s) of the Industrial Disputes Act, 1947. It was further contended that inasmuch as the first respondent persistently defied the order of transfer issued to him, the appellant was obliged to terminate the services by order dated September 17, 1983. The second respondent by its award dated September 9, 1985, held that the first respondent having been employed in managerial and administrative capacity and since he was drawing Rs. 500 per month cannot be considered as a “workman” falling under the definition of Section 2(s) of the Industrial Disputes Act and in view of the said finding, the second respondent ultimately dismissed the dispute and did not grant any relief to the first respondent.
3. Aggrieved by the award of the first respondent in the said dispute, the first respondent filed W.P. No. 3640 of 1986, inter alia, contending that the duties performed by him were purely of technical and clerical in nature, that the conclusion of the second respondent to the effect that he was not a “workman” falling under the definition of Section 2(s) of the Industrial Disputes Act was totally unjustified, that the termination of his service by the appellant by its order dated September 17, 1983, was passed in total violation of all principles of natural justice, that the requirement of Section 25-F of the Industrial Disputes Act was also not followed and, therefore, for all the above said reasons, the award of the second respondent was liable to be set aside and the appellant should be directed to reinstate the first respondent with all back wages and with continuity of service, etc.
4. The appellant did not file any counter to the said writ petition. It was in these circumstances, the learned single Judge disposed of the writ petition with the directions for reinstatement, etc. Learned counsel for the appellant by relying upon exhibit M-3 would contend that the said exhibit having been prepared in the handwriting of the first respondent himself and the said document discloses that the first respondent claimed to have performed various duties which were in the nature of the duties performed by persons in the cadre of managerial level, the second respondent rightly came to the conclusion that the first respondent was not a “workman” under the provisions of the Industrial Disputes Act, 1947, and the said finding arrived at by the second respondent ought not to have been interfered with by the learned single Judge. Per contra, learned counsel for the first respondent contended that the Supreme Court has repeatedly held that for finding out as to whether a person is a workman or not, the Court should find out what are the primary and basic duties of the person concerned and if he was incidentally asked to do some other work, that would not change the character and status of the persons concerned. In other words, the Supreme Court held that the Court should consider what was the dominant purpose of the employment and the performance of some additional duties must be rejected while determining the status and character of the person.
5. In the above background when the award of the second respondent is perused, we find that when the appellant took the stand that the nature of the duties performed by the first respondent was of supervisory/administration/ managerial in nature, it goes without saying that the burden was upon the appellant to prove that the first respondent was performing the duties as that of supervisor/ administration/ managerial cadre. It was not in dispute that the first respondent was drawing a salary of Rs. 2,178 per month. The first respondent who examined himself as W.W.-1 before the second respondent, stated in unequivocal terms that under exhibit W-1, he was posted as an assistant to the production manager, that he was not delegated with any of the duties of production manager at any time, that his job was purely technical and clerical in nature, that he did not possess any supervisory or managerial functions, that he only worked as layout and material analysing engineer, tool-room partner and production analyst and in the circumstances, the order of the termination was wholly unjustified. It is significant to note that in the cross-examination of the first respondent, what are the nature of the duties performed by him that would elevate him to the position of the supervisory/managerial cadre was not even suggested to him.
6. As against the evidence of the first respondent, the marketing manager of the appellant and the production manager were examined as M.Ws. 1 and 2. M.W.-1, marketing manager, stated that the job of the petitioner was to maintain close relationship with the customers, give information to the factory regarding the market condition and to assist the sale of products which are enumerated in exhibit M-6. He would say that the job of the petitioner was to assist sales administratively. He also admitted that the first respondent never worked under him.
7. As far as M.W.-2 was concerned, his evidence was, to the effect that the first: respondent was working as an assistant under him, that before joining the said post, he was working as production analyst, that after joining as an assistant to the production manager, he was coordinating with various other departments, that whenever bottleneck takes place in the production Section, he used to study the reason for the bottleneck, discuss, it and thereafter a solution is formed or decision was taken and that the first respondent used to communicate the same to the respective supervisors. He also stated that the nature of the work performed by the first respondent was technical and also administrative in nature. M.W.-2 admitted in cross-examination that the first respondent had no powers to take any disciplinary proceedings, a lay man cannot perform the duties of the first respondent and that he was assisting M.W.-2 both technically and administratively. M.W.-2 also admitted that the first respondent did not have any power to grant leave or call for explanation from the subordinates.
8. M.W.-3 was working as assistant production manager who deposed to the effect that the first respondent was reporting to him after abolition of post of production manager, that he was coordinating the work between the machine shop, fabricating shop and other shops, which were under the control of M.W.-3, that he used to co-ordinate between the superintendent and the assistant production manager. He would say that the job performed by the first respondent was more or less of the supervisory work. According to M.W.-3, going and talking with other departments was administrative function, and that attending to any problem in the shop floor was supervisory in nature. M.W.-3 has also admitted that the first respondent did not have any powers to take any disciplinary action inasmuch as no one was working under him.
9. M.W.-5, the assistant parts manager, who was said to be looking after spare parts, deposed to the effect that the first respondent and himself were working in the same office for over ten years, that the first respondent was working under him for a short period before he left the services, that the first respondent was supposed to have customers contact sales promotion work apart from helping customers in making orders for spare parts, that the work of the first respondent was administrative in nature. He identified exhibit M-8 as copy of the gate pass, which was signed by him to enable the first respondent for going out of the factory premises. In cross-examination M.W.-5 admitted that gate pass was not necessary from the level of the officers of the assistant managers and that it was required only for persons who were working below the level of assistant managers.
10. Exhibit M-3 is said to be the appraisal work-sheet, said to have been prepared by the first respondent himself when his name was under consideration for upgradation. Stressing upon exhibit M-3, learned counsel for the appellant contended that the conclusion reached by the second respondent that the first
respondent was employed in managerial and administrative capacity cannot be held to be unjustified. In other words, the learned counsel, by solely relying upon exhibit M-3 sought to advance on argument that the first respondent should be held to be not a “workman” falling under the definition of Section 2(s) of the Industrial Disputes Act, 1947.
11. As stated earlier, it is well settled that in order to find out as to whether a person was performing the work of supervisory or managerial in nature, the dominant purpose of the employment of the person concerned should be taken into consideration and certain additional duties performed by him should be rejected while determining the status and character of the person. Applying the said principles to the facts of the case it could be seen that as admitted by the management witnesses, namely, M.Ws.-1 to 35, the first respondent was only an assistant to the production manager, that his work was to co-ordinate between the customers and the factory regarding the work of the marketing division and to assist them in the sales of products, that admittedly he was assisting the assistant production manager after abolition of the post of production manager, that the nature of the duties performed by him was technical, that he had no powers to take any disciplinary action, that he did not have any power to grant leave or call for explanation from any subordinate, that he was co-ordinating the work between the machine shop, fabrication shop and other shops, which were under the control of the assistant manager, that he was attending to follow-up of materials and trouble-shoot areas, that he was also acting as messenger on certain occasions, that no other person was working under him, that he was working under the assistant manager and, therefore, he cannot go out without a gate pass duly approved by the concerned assistant manager under whom he was working.
12. Apart from such overwhelming evidence adduced on behalf of the management itself, the first respondent also deposed before the second respondent explaining that he was only performing the work of purely technical and clerical in nature without any supervising power and that he was not performing the duties of any supervisory or managerial cadre. In the circumstances, by relying upon exhibit M-3 alone, it cannot be concluded that the first respondent was performing the work of supervisory/managerial/clerical grade. The primary work performed by the first respondent, as stated by the management witnesses themselves were of purely technical with that of skilled workmen. There is absolutely no evidence to show that the first respondent was performing the work of any supervisory/managerial grade. As far as exhibit M-3 is concerned, the said statement seemed to have been made by the first respondent, when he was aspiring to better his career. Therefore, in that context, when he was called upon to describe the nature of duties assigned to them, he seemed to have given exaggerated views of what was performed by him earlier. Even the so called duties performed by him does not inspire us to say that the first respondent can be said to be performing the duties of a supervisor or manager status. In our considered opinion, the management has failed to substantiate its contention that the first respondent was only performing the duties of supervisory/ managerial character. On the other hand, the evidence tendered on behalf of the appellant itself disclosed that the first respondent was only performing the duties of an ordinary skilled workman and nothing more.
13. Therefore, by merely relying upon the ipse dixit of exhibit M-3 one cannot come to the conclusion that the first respondent was not a “workman” as has been done by the second respondent herein. In fact the second respondent Labour Court though would state that the evidence of W.W.-1 should be appreciated with much care and caution, when he deposed about the nature of the duties, failed to appreciate the evidence in that manner. The appreciation of the evidence of the management witnesses by the second respondent also thoroughly lacks details. The finding of the second respondent that the nature of the work performed by the first respondent was more of
administrative and managerial nature, was in our opinion, arrived at by a total misreading of the evidence of the management witnesses and documents placed before it. As stated earlier going by the evidence of the management witnesses themselves, it is brought out beyond doubt that the first respondent was only performing the work of an ordinary skilled workman and not beyond that. Unfortunately, the second respondent has completely omitted to analyse the said evidence that was tendered before him by the appellant themselves, which unfortunately led to the passing of the award impugned in the writ petition. Moreover, exhibit M3 was never considered by the second respondent for reaching the conclusion that the first respondent was not a “workman” and that he was employed in the managerial and administrative capacity. Therefore, when there was no evidence, much less, acceptable evidence, tendered on behalf of the appellant to prove their stand that the first respondent was not a “workman” as defined under Section 2(s) of the Industrial Disputes Act of 1947, the award impugned, in the writ petition rejecting the claim of the first respondent solely on that ground cannot be sustained. The award is, therefore, liable to be set aside.
14. By merely setting aside the said award, it cannot be said that the first respondent would be straightaway entitled for reinstatement with all other attendant benefits. The issue that was referred for adjudication before the second respondent by the State of Tamil Nadu under G.O. Ms. No. 1645, dated July 25, 1984, was “whether the non-employment of Sri T. Lakshmaiah is justified, if not to what relief he is entitled to; compute the relief, if any, to be awarded in terms of money; if it can be so computed”.
Therefore, when once it is held that the first respondent was a “workman” as defined under the provisions of the Industrial Disputes Act, it is incumbent on the part of the second respondent to find out as to whether his non-employment is justified or not? As far as the said question is concerned, the dispute between the appellant and the first respondent continued to exist when on the one hand, the appellant would contend that because of the first respondent’s persistent refusal to go on transfer to Dhanbad, it had no option than to terminate his services, the first respondent would contend that he was denied every reasonable opportunity by the appellant before reaching the said conclusion that he defied the orders of the appellant to go on transfer to Dhanbad. Therefore, it is the bounden duty of the second respondent to adjudicate on the said disputed question between the parties. Viewed from that angle, the order of the learned single Judge in granting the relief of reinstatement with back wages cannot be sustained.
15. Therefore, while setting aside the award of the Labour Court, dated September 9, 1995, passed in I.D. No. 437 of 1984 by holding that by nature of the duties performed by the first respondent and by applying the principles set down by the Supreme Court, he should be considered to be a “workman” as defined under the Industrial Disputes Act, we are constrained to remand the dispute back to the second respondent for adjudication on the merits of the dispute, namely, about the justification of the non-employment of the first respondent by the appellant. The Labour Court shall revive the dispute on its records and proceed with the dispute on the merits and dispose of the same expeditiously preferably before the end of December, 2000.