{"id":270116,"date":"1987-11-11T00:00:00","date_gmt":"1987-11-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-engineering-industries-vs-shri-shri-kishan-bhageria-others-on-11-november-1987"},"modified":"2017-11-30T11:48:47","modified_gmt":"2017-11-30T06:18:47","slug":"national-engineering-industries-vs-shri-shri-kishan-bhageria-others-on-11-november-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-engineering-industries-vs-shri-shri-kishan-bhageria-others-on-11-november-1987","title":{"rendered":"National Engineering Industries … vs Shri Shri Kishan Bhageria & Others on 11 November, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
National Engineering Industries … vs Shri Shri Kishan Bhageria & Others on 11 November, 1987<\/div>\n
Equivalent citations: 1988 AIR 329, 1988 SCR (1) 985<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nNATIONAL ENGINEERING INDUSTRIES LIMITED\n\n\tVs.\n\nRESPONDENT:\nSHRI SHRI KISHAN BHAGERIA & OTHERS\n\nDATE OF JUDGMENT11\/11\/1987\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nOZA, G.L. (J)\n\nCITATION:\n 1988 AIR  329\t\t  1988 SCR  (1) 985\n 1988 SCC  Supl.   82\t  JT 1987 (4)\t569\n 1987 SCALE  (2)1301\n\n\nACT:\n     Industrial Disputes  Act<\/a>, 1947: Section 2(s)<\/a>-'Workman'-\nwho is-Internal\t Auditor in  Company-Not  doing\t supervisory\nwork-only checking  up on  behalf of employer-No independent\nauthority or  right  to\t take  decision-Such  employee\theld\n'workman'-I. D.\t Act not  repugnant to\tRajasthan Shops\t and\nCommercial Establishments Act 1958.\n     Rajasthan\tShops  and  Commercial\tEstablishments\tAct,\n1958: Sections\t28A<\/a> and\t 37-Whether<\/a> repugnant  to Industrial\nDisputes Act<\/a>  1947-Employee's  petition\t against  dismissal-\nDismissed on  ground of\t limitation-Relief through  petition\nunder I. D. Act 1947-Whether barred.\n\n\n\nHEADNOTE:\n%\n     The Ist respondent was working in the appellant-company\nas an  Internal Auditor\t on a  monthly salary of Rs.1186-60P\nper month. The appellant alleged that the respondent started\nabsenting himself  from 28th  January, 1978  and as such was\nnot entitled  to any  salary for  any period beyond the said\ndate. The  respondent was thereafter placed under suspension\non 30th March, 1978.\n     On 4th  May, 1978\tthe respondent\tfiled an application\nunder section  33C(2)<\/a> of  the Industrial  Disputes Act, 1947\nclaiming a  total sum  of Rs.4746-40p  on account  of salary\nfrom Ist  January, 1978\t to 30th  April, 1978. The appellant\nobjected on  the  ground  that\tthe  respondent\t was  not  a\n'workman'.  On\t 9th  November,\t 1978  there  was  an  order\ndismissing the respondent from service.\n     On\t 2nd   January,\t 1979\tthe  respondent\t  filed\t  an\napplication under  section 28A\tof the\tRajasthan Shops\t and\nCommercial Establishments  Act, 1958  which was dismissed on\n31st July, 1979 on the ground of limitation.\n     On the  2nd August, 1979 the Labour Court held that the\nrespondent was\tdoing clerical\tduties and  as\tsuch  was  a\n'workman' under\t the Industrial\t Disputes  Act<\/a>\tand  he\t was\nentitled to Rs.2060-98p as salary\n986\nfrom 9th  March, 1978  to 30th April, 1978. There was also a\nreference under\t section 10<\/a>  of the Industrial Disputes Act,\n1947 on 8th August, 1960 arising out of the dismissal of the\nrespondent. The\t appellant filed a writ petition challenging\nthis order.\n     All the  aforesaid writ petitions were disposed of by a\nSingle Judge  of the  High Court on 16th March, 1982 holding\nthat the respondent was not a 'workman'.\n     Division Bench  of the High Court, however reversed the\naforesaid judgment  and\t held  that  the  respondent  was  a\n'workman'. The\ttwo writ  petitions of\tthe  appellant\twere\ndismissed, while  the writ  petition of\t the respondent\t was\nallowed.\n     Aggrieved\tby   the  aforesaid   orders  the  appellant\nappealed to  this Court.  On the  questions: (1) whether the\nrespondent was\ta 'workman'  or not within the definition of\nsection 2(s)<\/a>  of the  Industrial Disputes  Act, 1947 and (2)\nwhether the  Industrial Disputes  Act<\/a>, 1947 or the Rajasthan\nShops and Commercial Establishments Act, 1958 would apply.\n     Dismissing the appeals,\n^\n     HELD: 1.(a) Whether a person was performing supervisory\nor  managerial\twork  is  a  question  of  fact.  One  must,\ntherefore, look\t into the  main work  and that must be found\nout from the main duties. A supervisor has to take some kind\nof decision  on behalf of the company. One who was reporting\nmerely\tas   to\t the  affairs  of  the\tcompany\t and  making\nassessment for\tthe purpose  of reporting is not supervisor.\n[992A-B]\n     (b) There\tis no  controversy in the instant case, that\nthe  respondent\t  is  not  employed  in\t any  managerial  or\nadministrative capacity.  Distribution of work may easily be\nthe work of a manager or an administrator but \"checking\" the\nwork so distributed or \"keeping an eye\" over it is certainly\nsupervision. A\tmanager or  administrator's work  may easily\ninclude supervision  but that does not mean that supervision\nis the only function of a manager or an administrator. Where\nthere is  a power  of assigning\t duties and  distribution of\nwork there is supervision. [990C,991A-B,991D]\n     Mcleod and Co. v. Sixth Industrial Tribunal West Bengal\nand others<\/a>, A.I.R. 1958 Calcutta 273; All India Reserve Bank\nEmployees Association  v. Reserve  Bank of  India<\/a>, [1966]  1\nS.C.R. 25; Llyods Bank\n987\nLtd. v. Pannalal Gupta<\/a>, [1961] 1 L.L.J. 18; Burmah Shell Oil\nStorage\t &  Distribution  Co.  Of  India.  v.  Burmah  Shell\nManagement Staff Association & Ors. [1971] 2 S.C.R. 758; The\nPunjab Co-operative  Bank Ltd. v. R.S. Bhatia<\/a> (dead) through\nLrs, [1975] 4 S.C.C. 696; Maheshwari v. Delhi Administration\nJUDGMENT<\/a>:\n<\/pre>\n
Delton Cable  India (P)\t Ltd., [1984]  2 S.C.C. 569 and Hind
\nConstruction and  Engineering Company Ltd. v. Their Workmen<\/a>,
\n[1965] 1 L.L.J. 462 referred to.\n<\/p>\n
     (c) A  checker on\tbehalf of the management or employer
\nis not a supervisor. [993E]
\n     In the  instant case, the nature of duties performed by
\nRespondent No.\t1 were\tmainly reporting  and checking up on
\nbehalf of  the management. A reporter or a checking clerk is
\nnot a supervisor. The respondent does not appear to be doing
\nany kind of supervisory work. He was undoubtedly checking up
\non behalf of the employer but he had no independent right or
\nauthority to take decision and his decision did not bind the
\ncompany. The  Division Bench came to the conclusion that the
\nrespondent was\ta ‘workman’  within the\t meaning of  section
\n2(s)<\/a> of\t the  Industrial  Disputes  Act,  1947\ttaking\tinto
\nconsideration the  evidence recorded before the Labour Court
\nthat the  respondent is a workman and not a supervisor. That
\nconclusion  on\t the  appreciation  of\tevidence  cannot  be
\ninterfered with\t under\tArticle\t 136<\/a>  of  the  Constitution.
\n[993A-C]\n<\/p>\n
     2.(a) In  order to raise the question of repugnancy two
\nconditions must\t be fulfilled.\tThe State  law and the Union
\nlaw must operate in the same field and one must be repugnant
\nor inconsistent\t with the  other. These\t are two  cumulative
\nconditions which are required to be fulfilled. [995E]
\n     Deep Chand\t v. The\t State of  Uttar Pradesh and others<\/a>,
\n[1959] Suppl.  2 S.C.R.\t 8 and\tM\/s. Hoechst Pharmaceuticals
\nLtd. and  others v.  State of  Bihar and  others<\/a>,  [1983]  4
\nS.C.C. 45 at page 87 referred to.\n<\/p>\n
     (b) In  this case there is a good deal of justification
\nto hold\t that these  laws, the Industrial Disputes Act<\/a>, 1947
\nand the\t Rajasthan Shops  and Commercial Establishments Act,
\n1985 tread  on the  same field\tand both  laws deal with the
\nrights of  a dismissed\tworkman or  employee. But  these two
\nlaws are  not inconsistent  or repugnant  to each other. The
\nbasic test  of repugnancy  is that if one prevails the other
\ncannot prevail.\t That is  not the  position  in\t this  case.
\n[995F-G]
\n988<\/span>\n<\/p>\n
     (c) The  application under section 28A of the Rajasthan
\nAct was\t dismissed not on merits but on limitation. There is
\na period  of limitation provided under the Rajasthan Act and
\nit may\tbe extended  for reasonable  cause. But\t there is no
\nperiod of  limitation as  such provided under the Industrial
\nDisputes Act<\/a>.  Therefore, that\twill be\t curtailment of\t the
\nrights of  the workmen\tor employees  under  the  Industrial
\nDisputes Act<\/a>. In that situation section 37<\/a> declares that law
\nshould not  be construed to curtail any of the rights of the
\nworkmen. [996A-B]\n<\/p>\n
     (d) Social\t Welfare and  labour welfare  broadens\tfrom
\nlegislation to\tlegislation in\tIndia. It  will\t be  a\twell
\nsettled principle  of  interpretation  to  proceed  on\tthat
\nassumption and\tsection 37  of the  Rajasthan Act must be so
\nconstrued. In no way the Rajasthan Act could be construed to
\ncurtail the  rights of\tthe workman to seek any relief or to
\ngo in  for adjudication\t in case  of the  termination of the
\nemployment. [996C]\n<\/p>\n
     (e)  There\t is,  therefore,  no  conflict\tbetween\t the
\nIndustrial  Disputes  Act<\/a>,  1947  and  Rajasthan  Shops\t and
\nCommercial Establishments Act, 1985 and there is no question
\nof repugnancy.\tThese two  Acts\t are  supplemental  to\teach
\nother. [994G-H; 996D]\n<\/p>\n
     3. The High Court was, therefore, right in holding that
\nRespondent No.\t1 was  a ‘workman’ and in granting relief on
\nthat basis. [996E]<\/p>\n
&
\n     CIVIL APPELLATE  JURISDICTION: Civil  Appeal  Nos.3521-
\n3523 of 1987.\n<\/p>\n
     From the  Judgment and  order dated  17.10. 1986 of the
\nRajasthan High\tCourt in  D.B. Civil  Special (Writ) Appeals
\nNos. 27,28 of 1983 and 224 of 1982.\n<\/p>\n
     Dr. Shankar  Ghosh, N.C. Shah and Praveen Kumar for the
\nAppellant.\n<\/p>\n
     Tapas Ray, S.K. Jain, Mrs. P.Jain and S. Atreya for the
\nRespondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SABYASACHI MUKHARJI, J. After hearing parties and after
\nconsidering the\t relevant documents,  additional as  well as
\noriginal, we  grant leave  to appeal  in these\tmatters. The
\nappeals are disposed of by the judgment herein.\n<\/p>\n
989<\/span><\/p>\n
     Since prior  to Ist of January, 1978 the respondent No.
\n1 Shri\tKishan Bhageria\t was working  under  the  appellant-
\ncompany as  an Internal\t Auditor  on  a\t monthly  salary  of
\nRs.1186.60  per\t  month.  The  appellant  alleged  that\t the
\nrespondent started  absenting himself  from 28.1.78  and  as
\nsuch was  not entitled\tto any\tsalary for any period beyond
\n28.1.78 The  said respondent  was  thereafter  placed  under
\nsuspension on  30th of March, 1978. The respondent on 4th of
\nMay, 1978  filed an  application under section 33C(2)<\/a> of the
\nIndustrial Disputes Act, 1947 (hereinafter called ‘the Act’)
\nclaiming the  total sum\t of Rs.4,746.40 on account of salary
\nfrom Ist of January, 1978 to 30th of April, 1978 at the rate
\nof Rs.11,86.60\tper month.  The appellant  company objected.
\nThe main  ground of  objections was  that the respondent was
\nnot a  workman. On  or about 9th of November, 1978 there was
\nan  order   dismissing\tthe  respondent\t from  service.\t The
\nrespondent thereafter  on 2nd  of  January,  1979  filed  an
\napplication under  section 28A\tof  the\t Rajasthan  Shops  &
\nEstablishments Act<\/a>,  1958 (hereinafter called ‘the Rajasthan
\nAct’). The  said application  was dismissed  on 31st of July
\n1979 on the ground of limitation. The Labour Court on 2nd of
\nAugust, 1979  held that\t the respondent\t was doing  clerical
\nduties and  as such  was a  workman under the Act and he was
\nentitled to  Rs.2,060 as  salary from  1.1.78 to 9.3.78. The
\nappellant filed\t Writ  Petition\t No.  765  of  1979  in\t the
\nRajasthan High\tCourt against  the order of the Labour Court
\nallowing the  said salary. The respondent also filed another
\nwrit petition  being writ  petition No.\t 1091  of  1979\t for
\ndeclaration that  he was  entitled to receive Rs.2,066.98 as
\nsalary from  9.3.78  to\t 30.4.78.  There  was  thereafter  a
\nreference under\t section 10<\/a> of the Act on 8.8.80 arising out
\nof the\tdismissal of  the respondent.  The  appellant  filed
\nanother writ  petition being  Writ Petition No. 1623 of 1980
\nchallenging the order of reference. All these aforesaid writ
\npetitions were\tdisposed of  by the  learned Single Judge of
\nthe  Rajasthan\tHigh  Court  on\t 16.3.82  holding  that\t the
\nrespondent was\tnot a  workman. The  other contentions urged
\nbefore the  leaned Single  Judge were  not considered by the
\nDivision Bench\tin the\tview it\t took later  on. On  17th of
\nOctober, 1986  the Division  Bench reversed  the judgment of
\nthe learned  Single Judge and held that the respondent was a
\nworkman. Two  writ petitions of the appellant were dismissed
\nand  the  writ\tpetition  of  the  respondent  was  allowed.
\nAggrieved by  the aforesaid orders the appellant has come up
\nin these appeals before this Court.\n<\/p>\n
     The main question which requires consideration in these
\nappeals is  whether the respondent was a workman or not. For
\nthe determination  of this question it is necessary to refer
\nto section  2(s)<\/a> of  the Act  which  defines  “workman”\t and
\nstates that it means any person emp-\n<\/p>\n
990<\/span><\/p>\n
loyed in  any industry to do any manual, unskilled, skilled,
\ntechnical, operational,\t clerical or  supervisory  work\t for
\nhire or\t reward, whether  the terms of employment be express
\nor implied,  and includes  any\tsuch  person  who  has\tbeen
\ndismissed discharged  or retrenched in connection with or as
\na consequence  of any dispute. But sub-clause (iii) does not
\ninclude any person who is employed mainly in a managerial or
\nadministrative capacity and sub-clause (iv) does not include
\nany person  who being  employed in  a  supervisory  capacity
\ndraws wages  exceeding one  thousand six  hundred rupees per
\nmonth or  duties attached  to the office or by reason of the
\npowers vested  in him,\tdischarges  functions  mainly  of  a
\nmanagerial nature.  In view  of the  said definition, we are
\nconcerned here\twith the question whether the respondent was
\na workman as not being employed in any supervisory capacity.
\nThere is  no controversy  that the  said respondent  is\t not
\nemployed in any managerial or administrative capacity.\n<\/p>\n
     In this  case before  we deal  with the  facts and\t the
\nrelevant authorities  of this Court it may be appropriate to
\nrefer to  a decision  of P.B.  Mukharji, J.  Of the Calcutta
\nHigh Court  as the  learned Chief Justice then was in Mcleod
\nand Co.\t v.  Sixth  Industrial\tTribunal,  West\t Bengal\t and
\nothers<\/a>, A.I.R.\t1958 Calcutta  273. There  the learned Judge
\nobserved that  whether a  person was  a workman\t within\t the
\ndefinition of  the Industrial  Disputes\t Act<\/a>  was  the\tvery
\nfoundation of  the jurisdiction\t of the Industrial Tribunal.
\nThe Court  further observed  that in  order to determine the
\ncategories of  service indicated  by the  use  of  different
\nwords like “supervisory”, “managerial”, “administrative”, it
\nwas necessary  not to  import the  notions of  one into\t the
\ninterpretation of  the other. The words such as supervisory,
\nmanagerial   and    administrative   are   advisedly   loose
\nexpressions with  no rigid  frontiers and  too much subtlety
\nshould not  be used  in trying\tto  precisely  define  where
\nsupervision ends  and management  begins  or  administration
\nstarts. For  that would be theoretical and not practical. It
\nhas to\tbe broadly  interpreted from a common sense point of
\nview where  tests will be simple both in theory and in their
\napplication. The  learned  Judge  further  observed  that  a
\nsupervisor need\t not be\t a manager or an administrator and a
\nsupervisor can be a workman so long as he did not exceed the
\nmonetary  limitation   indicated  in   the  section   and  a
\nsupervisor irrespective\t of his\t salary is not a workman who
\nhas to\tdischarge functions  mainly of\tmanagerial nature by
\nreasons of  the duties\tattached to  his office\t or  of\t the
\npowers vested in him. In that case the learned Judge further
\nheld that  a person  in charge\tof a  Department  could\t not
\nordinarily be  a clerk\teven though he may not have power to
\ntake disciplinary  action or even though he may have another
\nsuperior
\n991<\/span>
\nofficer above him. It was further observed that distribution
\nof  work  may  easily  be  the\twork  of  a  manager  or  an
\nadministrator but  “checking” the  work\t so  distributed  or
\n“keeping an  eye” over\tit is  certainly supervision.  It is
\nreiterated that a manager or administrator’s work may easily
\ninclude supervision  but that does not mean that supervision
\nis the only function of a manager or an administrator.\n<\/p>\n
     Bearing in\t mind the  aforesaid indication, it would be
\nnecessary to  discuss some  decisions of  this Court. In All
\nIndia Reserve  Bank Employees Association v. Reserve Bank of
\nIndia<\/a>, [1966]  1 S.C.R.\t 25, this Court dealing with certain
\ntypes of  employees  observed  “These  employees  distribute
\nwork, detect  faults, report  for penalty, make arrangements
\nfor filling  vacancies, to  mention only a few of the duties
\nwhich are  supervisory and  not merely clerical.” At page 46
\nof the\treport Hidayatullah, J. as the learned Chief Justice
\nthen was  observed that\t the work  in a\t Bank involved layer
\nupon layer  of checkers\t and checking  is hardly supervision
\nbut  where   there  is\ta  power  of  assigning\t duties\t and
\ndistribution  of   work\t there\t is  supervision,  (emphasis
\nsupplied). There  the Court  referred to a previous decision
\nin Llyods  Bank Ltd.  v. Pannalal Gupta, [1961] 1 L.L.J. 18,
\nwhere the  finding of  the  Labour  Appellate  Tribunal\t was
\nreversed because  the legal  inference from proved facts was
\nwrongly drawn  and it  was reiterated  that before  a  clerk
\ncould claim  a special allowance payable to a supervisor, he
\nmust prove  that he  supervises the  work of some others who
\nare  in\t  a  sense   below  him.   It  was  pointed  out  by
\nHidayatullah, J. that mere checking of the work of others is
\nnot enough  because this  checking was\ta part of accounting
\nand not\t of supervision\t and the  work\tdone  in  the  audit
\ndepartment  of\t a  bank   was\tnot  supervision.  (emphasis
\nsupplied).\n<\/p>\n
     In Burmah\tShell Oil  Storage  &  Distribution  Co.  Of
\nIndia. v.  Burmah Shell Management Staff Association & Ors.,
\n[1971] 2 S.C.R. 758, this Court observed that a workman must
\nbe held\t to be\temployed to  do that  work which is the main
\nwork  he   is  required\t  to  do,  even\t though\t he  may  be
\nincidentally  doing  other  types  of  work.  Therefore,  in
\ndetermining which of the employees in the various categories
\nare covered  by the  definition of  ‘workman’ one has to see
\nwhat is the main or substantial work which he is employed to
\ndo. In\tThe Punjab  Co-operative Bank  Ltd. v.\tR.S.  Bhatia<\/a>
\n(dead) through\tLrs., [1975]  4 S.C.C.\t696 it was held that
\nthe accountant\twas supposed to sign the salary bills of the
\nstaff even  while performing the duties of a clerk. That did
\nnot  make   the\t respondent  employed  in  a  managerial  or
\nadministrative capacity. The workman was, therefore, in that
\ncontext rightly held as a clerk.\n<\/p>\n
992<\/span><\/p>\n
     In P. Maheshwari v. Delhi Administration & Ors<\/a>., [1983]
\n3 S.C.R.  949 the  question whether  a person was performing
\nsupervisory or\tmanagerial work\t was the question of fact to
\nbe decided  bearing  in\t mind  the  correct  principle.\t The
\nprinciple therefore is, one must look into the main work and
\nthat must  be found  out from  the main duties. A supervisor
\nwas one\t who could  bind the  company to  take some  kind of
\ndecision on  behalf of\tthe company.  One who  was reporting
\nmerely\tas   to\t the  affairs  of  the\tcompany\t and  making
\nassessment  for\t  the  purpose\t of  reporting\t was  not  a
\nsupervisor. See\t in this  connection Black’s Law Dictionary,
\nSpecial Deluxe,\t Fifth Edition.\t At page  1290, “Supervisor”
\nhas been described, inter alia, as follows:\n<\/p>\n
\t  “In a\t broad\tsense,\tone  having  authority\tover
\n\t  others, to superintend and direct.\n<\/p><\/blockquote>\n
\t  The term  ‘supervisor’ means any individual having
\n\t  authority, in\t the interest  of the  employer,  to
\n\t  hire, transfer, suspend, lay off, recall, promote,
\n\t  discharge, assign,  reward,  or  discipline  other
\n\t  employees, or responsibility to direct them, or to
\n\t  adjust  their\t  grievances,  or   effectively\t  to
\n\t  recommend such  action, if  in connection with the
\n\t  foregoing the exercise of such authority is not of
\n\t  a merely  routine or clerical nature, but requires
\n\t  the use of independent judgment.”<\/p><\/blockquote>\n
     Reference may be made to the observations of this Court
\nin Ved\tPrakash Gupta  v. M\/s.\tDelton Cable India (P) Ltd<\/a>.,
\n[1984] 2 S.C.C. 569. There on facts a Security Inspector was
\nheld to\t be a  workman. At page 575 of the report this Court
\nreferred to  the decision  in Llyods  Bank Ltd. v. Panna Lal
\nGupta, (supra)\tand also  the observations  of this Court in
\nHind Construction  and Engineering  Company  Ltd.  v.  Their
\nWorkmen<\/a>, [1965] 1 L.L.J. 462. In that case the nature of the
\nduties\tperformed   by\tthe   appellant\t showed\t  that\t the
\nsubstantial part  of the  work of the appellant consisted of
\nlooking after  the security  of the factory and its property
\nby deputing  the watchmen  working under  him to work at the
\nfactory gate  or sending  them to watch-towers or around the
\nfactory or  to accompany  visitors to the factory and making
\nentries in  the visitors’  register as\tregards the visitors
\nand in the concerned registers as regards materials entering
\ninto or\t going out  of the premises of the factory. There it
\nwas found that he had no power to appoint.\n<\/p>\n
     In the  instant case  the evidence have been summarised
\nby the\tDivision Bench.\t Reference may\tbe made to pages 65,
\n73, 80, 84 to 94,
\n993<\/span>
\n95, 96 and 97 of the Paper Book which indicate the nature of
\nduties performed  by the respondent No. 1 herein. His duties
\nwere mainly,  reporting and  checking up  on behalf  of\t the
\nmanagement.  A\treporter  or  a\t checking  clerk  is  not  a
\nsupervisor. The\t respondent herein  does not  appear  to  us
\ndoing any  kind of  supervisory\t work.\tHe  was\t undoubtedly
\nchecking up  on\t behalf\t of  the  employer  but\t he  had  no
\nindependent right  or authority\t to take  decision  and\t his
\ndecision did  not bind\tthe company.  In that  view  of\t the
\nmatter keeping\tthe correct  principle of  law in  mind\t the
\nDivision Bench\thas  come  to  the  conclusion\ttaking\tinto
\nconsideration the  evidence recorded before the Labour Court
\nthat the  respondent is a workman and not a supervisor. That
\nconclusion arrived  at in the manner indicated above cannot,
\nin our\topinion, be interfered with under Article 136<\/a> of the
\nConstitution. It is not necessary for our present purpose to
\nset out\t in extenso  the evidence  on record as discussed by
\nthe Division Bench. Our attention was, however, drawn by the
\ncounsel for  the respondent  to certain\t correspondence, for
\ninstance the letter at page 65 of the paper book bearing the
\ndate 14th  of May,  1976 where\tthe respondent reported that
\ncertain materials  were lying in stores deptt. in absence of
\nany decision.  It was  further reiterated that on inspection
\nof  the\t  pieces  that\tthose  pieces  were  found  cracked.
\nSimilarly, our\tattention was drawn to several other letters
\nand we\thave perused  these letters.  We are  of the opinion
\nthat the  Division Bench  was right  that these letters only
\nindicated that\tthe report  was being  made of\tthe checking
\ndone  by   the\trespondent.  A\tchecker\t on  behalf  of\t the
\nmanagement or employer is not a supervisor.\n<\/p>\n
     In the  aforesaid view  of the matter the conclusion of
\nthe Division Bench that respondent No. 1 is a workman has to
\nbe sustained. We do so accordingly.\n<\/p>\n
     The next  question that  arises in this case is whether
\nAct would  apply or  the Rajasthan  Act would apply. In this
\nconnection section  28A of the Rajasthan Act is material. It
\nenjoins that no employer shall dismiss or discharge from his
\nemployment any\temployee who  has been\tin  such  employment
\ncontinuously for  a period  of not less than 6 months except
\nfor a  reasonable cause\t and after  giving such\t employee at
\nleast one  month’s prior notice or on paying him one month’s
\nwages in lieu of such notice. Sub-section (2) of section 28A<\/a>
\ngives every  employee, so  dismissed or discharged, right to
\nmake a\tcomplaint in  writing in  the prescribed manner to a
\nprescribed authority  within 30\t days of  the receipt of the
\norder of  dismissal or discharge. Sub-section (3) of section
\n28A<\/a> provides  that the\tprescribed authority  shall cause  a
\nnotice to  be served  on the  employer relating\t to the said
\ncomplaint, record
\n994<\/span>
\nbriefly the  evidence produced by the parties, hear them and
\nmake  such  enquiry  as\t it  might  consider  necessary\t and
\nthereafter pass\t orders in  writing giving reasons therefor.
\nSection 37 of the Rajasthan Act reads as follows:\n<\/p>\n
\t  “37. Saving  of certain  rights  and\tprivileges.-
\n\t  Nothing in  this Act\tshall affect  any rights  or
\n\t  privileges which  an employee in any establishment
\n\t  is entitled  to on  the date\tthis Act  comes into
\n\t  force under  any other  law, contract,  custom  or
\n\t  usage applicable  to\tsuch  establishment  or\t any
\n\t  award, settlement  or\t agreement  binding  on\t the
\n\t  employer and\tthe employee  in such establishment,
\n\t  if such  rights or  privileges are more favourable
\n\t  to him  than those  to which\the would be entitled
\n\t  under this Act.”<\/p><\/blockquote>\n
     It has  to be  borne in mind that section 2A<\/a> of the Act
\nwas amended  to permit\tindividual  workman  to\t ask  for  a
\nreference in  the case of individual dispute. This amendment
\nwas assented  to by  the President on 1st of December, 1965.
\nThe Rajasthan  Act received  the assent\t of the President on
\n14th of\t July, 1958. On 8th March, 1972 Chapter 6A including
\nsection 28A<\/a> was inserted in the Rajasthan Act. Therefore the
\nmaterial provision  of the  Rajasthan Act  is the subsequent
\nlaw. Under  Article 254(2)<\/a>  of the Constitution if there was
\nany law\t by the State which had been reserved for the assent
\nof  the\t President  and\t has  received\tthe  assent  of\t the
\nPresident, the State law would prevail in that State even if
\nthere is  an earlier  law by  the Parliament on a subject in
\nthe Concurrent\tList. It  appears that\tboth of\t these\tActs
\ntread the same field and if there was any conflict with each
\nother, then section 28A of Rajasthan Act would apply being a
\nlater law.  We find, however, that there is no conflict. The
\nlearned Single\tJudge of  the Rajasthan High Court in Poonam
\nTalkies, Dausa\tv.  The\t Presiding  Officer,  Labour<\/a>  Court,
\nJaipur, (S.B.  Civil Writ  Petition No.\t 1206\/85 decided  on
\n9.6.1986) so.  That decision has been upheld by the Division
\nBench of the Rajasthan High Court in Writ Appeal No. 231\/86.
\nThe Division  Bench of\tthe High Court in the instant appeal
\nrelying on  the said  decision held  that there was no scope
\nfor any\t repugnancy. It appears to us that it cannot be said
\nthat these  two Acts do not tread the same field. Both these
\nActs deal  with the rights of the workman or employee to get
\nredressal and damages in case of dismissal or discharge, but
\nthere is  no repugnancy because there is no conflict between
\nthese  two   Acts,  in\tpith  and  substance.  There  is  no
\ninconsistency between these two acts. These two Acts, in our
\nopinion, are supplemental to each other.\n<\/p>\n
995<\/span><\/p>\n
     In Deep Chand v. The State of Uttar Pradesh and others<\/a>,
\n[1959] Suppl.  2 S.C.R.\t 8, Subba  Rao, J.,  as the  learned
\nChief Justice  then was\t observed that\tthe  result  of\t the
\nauthorities indicated was as follows:\n<\/p>\n
\t  “Nicholas  in\t his  Australian  Constitution,\t 2nd
\n\t  Edition,  p.\t 303,  refers\tto  three  tests  of
\n\t  inconsistency or repugnancy:\n<\/p><\/blockquote>\n
\t       1.   There may be inconsistency in the actual
\n\t\t    terms of the competing statutes;\n<\/p><\/blockquote>\n
\t       2.   Though there  may be no direct conflict,
\n\t\t    a State  law may  be inoperative because
\n\t\t    the Commonwealth  Code is intended to be
\n\t\t    a complete exhaustive code; and\n<\/p><\/blockquote>\n
\t       3.   Even in  the  absence  of  intention,  a
\n\t\t    conflict may  arise when  both State and
\n\t\t    Commonwealth  seek\t to  exercise  their
\n\t\t    powers over the same subject matter.”\n<\/p><\/blockquote>\n
     Quoting the  aforesaid observations, this Court in M\/s.\n<\/p><\/blockquote>\n
Hoechst Pharmaceuticals\t Ltd. and  others v.  State of Bihar
\nand others<\/a>, [1983] 4 S.C.C. 45 at page 87 where A.P. Sen, J.
\nexhaustively dealt  with the  principles of  repugnancy\t and
\nobserved that  one of  the occasions  where inconsistency or
\nrepugnancy arose  was when  on the  same subject matter, one
\nlaw would  be repugnant to the other. Therefore, in order to
\nraise a\t question  of  repugnancy  two\tconditions  must  be
\nfulfilled. The\tState law  and the Union law must operate on
\nthe same  field and  one must  be repugnant  or inconsistent
\nwith the  other. These are two conditions which are required
\nto be fulfilled. These are cumulative conditions. Therefore,
\nthese laws  must tread\ton the\tsame field and these must be
\nrepugnant or  inconsistent with\t each other. In our opinion,
\nin this\t case there  is a good deal of justification to hold
\nthat  these  laws,  the\t Industrial  Disputes  Act<\/a>  and\t the
\nRajasthan Act  tread on\t the same  field and  both laws deal
\nwith the  rights of dismissed workman or employee. But these
\ntwo laws  are not  inconsistent or  repugnant to each other.
\nThe basic  test of  repugnancy is  that if  one prevails the
\nother cannot prevail. That is not the position in this case.
\nLearned\t counsel   on  behalf  of  the\tappellant,  however,
\ncontended that\tin this\t case, there had been an application
\nas indicated  above under  section 28A\tof the Rajasthan Act
\nand which  was\tdismissed  on  ground  of  limitation.\tSree
\nShankar\t Ghosh\t tried\tto   submit  that   there  would  be
\ninconsistency or  repugnancy between  the two decisions, one
\ngiven on limitation and the other if any
\n996<\/span>
\nrelief is  given under the Act. We are unable to accept this
\nposition, because  the application  under Section 28A of the
\nRajasthan Act  was dismissed not on merit but on limitation.
\nThere is a period of limitation provided under the Rajasthan
\nAct of\tsix months  and it  may be  extended for  reasonable
\ncause. But  there is  no period of limitation provided under
\nthe  Industrial\t  Disputes  Act<\/a>.  Therefore,  that  will  be
\ncurtailment of\tthe rights of the workmen or employees under
\nthe Industrial\tDisputes Act<\/a>.  In the  situation section  37<\/a>
\ndeclares that  law should not be construed to curtail any of
\nthe rights  of\tthe  workmen.  As  Poet\t Tennyson  observed-
\n“freedom broadens from precedent to precedent” so also it is
\ncorrect to  state that\tsocial welfare\tand  labour  welfare
\nbroadens from  legislation to  legislation in India. It will
\nbe a  well-settled principle of interpretation to proceed on
\nthat assumption\t and section 37 of the Rajasthan Act must be
\nso construed. Therefore in no way the Rajasthan Act could be
\nconstrued to  curtail the  rights of the workman to seek any
\nrelief or  to go  in for  an adjudication  in  case  of\t the
\ntermination of\tthe employment.\t If that  is the position in
\nview of\t the provisions 6 months’ time in section 28A of the
\nRajasthan Act  has to  be ignored  and that  cannot have any
\nbinding effect\tinasmuch as  it curtails  the rights  of the
\nworkman under  the Industrial Disputes Act<\/a> and that Act must
\nprevail. In  the premises,  there is no conflict between the
\ntwo Acts and there is no question of repugnancy.\n<\/p>\n
     The High  Court was,  therefore, right  in holding that
\nthe respondent\twas workman  and in  granting relief on that
\nbasis. Before  we conclude  we note  that our  attention was
\ndrawn  to   certain  observations   of\t this\tCourt\tthat
\ninterference by\t the High  Court in  these  matters  at\t the
\ninitial stage  protracts adjudication  and defeats  justice.
\nReference was  made to certain observations in P. Maheshwari
\nv.  Delhi   Admn<\/a>.  &   Ors.,  (supra).\t But  as   mentioned
\nhereinbefore in\t this case, the interference was made by the
\nHigh Court not at the initial stage.\n<\/p>\n
     In the  premises, we  are of  the opinion that the High
\nCourt  was  right  in  the  view  it  took.  These  appeals,
\ntherefore, fail\t and are  accordingly dismissed. There will,
\nhowever, be  no order  as to costs. The reference before the
\nTribunal should proceed as expeditiously as possible.\n<\/p>\n
N.V.K.\t\t\t\t\t  Appeals dismissed.\n997<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India National Engineering Industries … vs Shri Shri Kishan Bhageria & Others on 11 November, 1987 Equivalent citations: 1988 AIR 329, 1988 SCR (1) 985 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: NATIONAL ENGINEERING INDUSTRIES LIMITED Vs. RESPONDENT: SHRI SHRI KISHAN BHAGERIA & OTHERS DATE OF JUDGMENT11\/11\/1987 BENCH: MUKHARJI, SABYASACHI (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-270116","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNational Engineering Industries ... vs Shri Shri Kishan Bhageria & Others on 11 November, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/national-engineering-industries-vs-shri-shri-kishan-bhageria-others-on-11-november-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"National Engineering Industries ... vs Shri Shri Kishan Bhageria & Others on 11 November, 1987 - 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