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LPA/1549/2011 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1549 of 2011
In
SPECIAL
CIVIL APPLICATION No. 3083 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
S
KALYANKRISHNAN - Appellant(s)
Versus
BLUE
STAR LTD - Respondent(s)
=========================================================
Appearance
:
MR
NILESH M SHAH for
Appellant(s) : 1,MR MAYANK DESAI for Appellant(s) : 1,
None for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/11/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1. Heard
Mr. Nilesh M. Shah, learned advocate appearing for the appellant at
length.
2. The
appellant herein has challenged the judgment and order dated
18.08.2011 passed by the learned Single Judge in Special Civil
Application No. 3083 of 2010 whereby the learned Single Judge has
confirmed the award dated 20.06.2009 passed by Presiding Officer,
Labour Court, Vadodara dismissing the reference.
3. Mr.
Nilesh M. Shah, learned advocate appearing for the appellant
submitted that the appellant very well falls within the meaning of
workman as defined under section 2(s) of the I.D. Act, 1947. He
submitted that in the given facts and circumstances of the case,
notwithstanding the nomenclature or the quantum of wages as the
appellant did not have any supervisory, managerial or administrative
powers, he does not fall within the definition of workman and any
view contrary is misdirected in facts and law as whether the
appellant is a workman or not is to be decided on the basis of the
nature of his duties. In support of the said submission Mr. Shah has
relied upon a decision of the Apex Court in the case of National
Engineering Industries Ltd. vs. Shri Kishan Bhageria and Others
reported in AIR 1988 SC 329.
3.1 Mr.
Shah further submitted that the respondent management has failed to
prove that the appellant had any supervisory, managerial or
administrative powers. He submitted that it is settled position of
law that supervision necessarily involves a direction and control and
that nowhere it has been proved that apart from few things that the
appellant might have incidentally carried out for or on behalf of his
superiors, he had any permanent powers or direction, control and
superintendence. In this regard Mr. Shah has relied upon a decision
of the Apex Court in the case of Anand Regional Coop Oil
Seedsgrowers’ Union Ltd. vs. Shaileshkumar Harshadbhai Shah reported
in 2006(6) SCC 548 and submitted that in the said case even the
internal auditor of the company was termed as a workman under the
Act.
3.2 Further,
relying upon another decision of the Apex Court in the case of Anoop
Sharma vs. Public Health Division, Haryana reported in 2010(5) SCC
497 Mr. Shah submitted that the appellant is very well within the
meaning of definition of workman under the Act. He submitted that
the courts below erred in passing the impugned orders and the same
deserve to be quashed and set aside.
4. Before
proceeding with the matter, it is relevant to discuss the facts which
emerge from the records. The appellant joined the services of the
respondent establishment as an Account Assistant in the year 1975 and
gradually was promoted to level M5. The services of the appellant as
per the appellant were terminated orally on 17.06.1997. A memo
dated 26.06.1997 was issued to the appellant confirming this very
fact of his termination and also confirming that the appellant was on
three months’ notice at the end of which his services would come to
an end on 17.09.1997.
4.1 The
appellant vide letter dated 17.06.1997 conveyed his resignation from
service. However, the appellant vide letter dated 24.07.1997 denied
all the allegations against him and requested that he may be covered
under the voluntary retirement scheme but the same was not responded
to. The appellant thereafter withdrew the resignation letter earlier
written vide letter dated 21.08.1997. The appellant received another
letter dated 10.09.1997 from the establishment stating that he was
given three month’s salary in lieu of three month’s termination
notice and that he is being relieved. The appellant was relieved on
11.09.1997 with three months’ wages in lieu of the notice.
5. We
have perused the award passed by the labour court as well as the
judgement and order passed by the learned Single Judge. In the case
of National Engineering Industries Ltd. (supra), the Apex Court in
para 7 has held as under:
“In
P. Maheshwari v. Delhi Administration & Ors., [1983] 3 S.C.R. 949
the question whether a person was performing supervisory or
managerial work was the question of fact to be decided bearing in
mind the correct principle. The principle therefore is, one must look
into the main work and that must be found out from the main duties. A
supervisor was one who could bind the company to take some kind of
decision on behalf of the company. One who was reporting merely as to
the affairs of the company and making assessment for the purpose of
reporting was not a supervisor. See in this connection Black’s Law
Dictionary, Special Deluxe, Fifth Edition. At page 1290, “Supervisor”
has been described, inter alia, as follows: “In a broad sense,
one having authority over others, to superintend and direct.
The
term ‘supervisor’ means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
employees, or responsibility to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.”
6. In
the present case, from the documents on record it is amply clear that
the appellant was working at M-5 level and was invested with the
powers of signing cash vouchers, memos and travel expense vouchers.
The appellant has also admitted his signatures in the performance
appraisal form of an employee subordinate to him which shows his
supervisory powers. From the records it is also borne out that the
appellant was the authorised signatory in the sales tax forms, was
responsible for the coordination and management of accounting
activities within various departments of the company. The above
referred decision therefore shall not be applicable on the facts of
the present case.
7. In
the case of Anand
Regional Coop Oil Seedsgrowers’ Union Ltd. (supra), para 15 reads as
under:
“Supervision
contemplates direction and control. While determining the nature of
the work performed by an employee, the essence of the matter should
call for consideration. An undue importance need not be given for the
designation of an employee, or the name assigned to, the class to
which he belongs. What is needed to be asked is as to what are the
primary duties he performs. For the said purpose, it is necessary to
prove that there were some persons working under him whose work is
required to be supervised. Being incharge of the section alone and
that too it being a small one and relating to quality control would
not answer the test.”
7.1 The
aforesaid decision shall also not be applicable to the facts of the
present case as the primary duties as enumerated hereinabove clearly
reveal that there were some persons working under the appellant whose
work was required to be supervised. The said fact is also evident
from the deposition of one Shri Manojkumar Nair.
8. Even
the decision in the case of Anoop Sharma (supra) does not hold any
good as far as the facts and circumstances of the present case are
concerned. It is required to be noted that one of the main
ingredients for an employee to be considered as a workman under the
Act is that there must exist
a relationship of employer and employee. But the persons inter alia
excluded are those who are employed mainly in a managerial or
administrative capacity.
9. The
learned Single Judge in para 2.3 of the impugned judgment and order
observed as under:
2.3 The
facts which are required to be noted here are that, the present
petitioner – workman was getting total emoluments of
Rs.21,000/- when his services were brought to an end. His basic pay
was Rs.10,065/-. Besides, the learned Judge has taken care by taking
note of the fact that he was one of the signatories on the cheques of
the company. Besides, he was supposed to fill in his ‘Appraisal
Form’ and learned Judge has rightly noticed that, taking into
consideration voluminous evidence led before the Court, the nature of
duties assigned to the petitioner – workman definitely put him
outside the definition of ‘Workman’. The learned Judge has taken
note of the fact that a cheque used to be cleared only with the
signatures two authorized signatories and one of them being the
petitioner – workman. The learned Judge has rightly held that,
‘an ordinary workman will not be assigned such status that the
cheques get cleared with his signature’. The learned Judge has
also appreciated the evidence led by the establishment –
respondent herein that is – Manoj Kumar, who has also deposed that,
‘when he joined the services, the petitioner – workman was
his Boss’ and taking into consideration all this, the learned
Judge has appreciated that the petitioner will not fall within the
definition of term ‘Workman’ as defined in Clause 2(s) of the
Industrial Disputes Act (hereinafter referred to as ‘the ID Act’).
The definition is very clear, which reads as under:
“2(s) 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 expressed or
implied and, 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, but does not include any such
person-
i) xxx
ii) xxx
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 exercise 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…”
9.1 The
labour court has discussed each and every aspect of the matter in
detail and also considered the various decisions and law laid down by
this court as well as the Apex Court and has come to the conclusion
that the appellant cannot be considered a workman under the
provisions of the Act.
The learned Single Judge has confirmed the said view of the labour
court. This court is in complete agreement with the same. No
interference is therefore called for in the matter.
10. In
the premises aforesaid, the appeal is devoid of any merits and is
dismissed accordingly.
(V.M.
SAHAI, J.) (K.S. JHAVERI, J.)
Divya//
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