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2000 DIGILAW 53 (BOM)

A. D. Inamdar v. Bajaj Tempo Ltd.

2000-01-29

B.H.MARLAPALLE

body2000
JUDGMENT : 1. The petitioner has brought in question the legality of the award passed by the learned Presiding Officer, First Labour Court at Pune, on 14 March 1989 in Ref. (I.D.A.) No. 101 of 1988 in which it has been held that the petitioner do not fall within the ambit of term “workman” as defined under S. 2(s) of the Industrial Disputes Act, 1947, and only on that ground the reference came to be rejected. 2. Admittedly, the petitioner came to be employed by the respondent-management as a clerk in the Accounts Department from 24 September 1962 and thereafter he was made an accountant. During the course of his service, on 6 September 1980, he was issued a chargesheet and by order, dated 29 December 1980, he was dismissed from service on the ground of dishonesty in connection with the employer's property, it was contended that this order of dismissal was not received by the petitioner and was forwarded to him along with letter, dated 3 June 1981, by which the representation made by the petitioner was rejected. On receipt of the dismissal order, the petitioner raised a demand for reinstatement with back-wages and continuity in service and this demand came to be referred for adjudication by the Labour Court under Ref.(I.D.A.) No. 127 of 1982 The respondent-management has opposed the reference on the preliminary point of maintainability as well as on merits. It was contended by the respondent-management that the petitioner was not a workman within the meaning of the Industrial Disputes Act, 1947. The petitioner-employee filed an affidavit setting out the nature of his duties at the time of his dismissal order as well as prior to the said date. He was examined at length before the Labour Court. On behalf of respondent-management, one Sri Kantilal Jogidas Mutha, Manager (Accounts) was examined. On considering the oral and documentary evidence, the Labour Court by its impugned award held that the petitioner was not a workman as defined under S. 2(s) of the Industrial Disputes Act, 1947. 3. In its written statement, the respondent-management had, inter alia, contended that the main duties of the petitioner-employee required application of mind and initiative and he was not required to do any skilled or manual work or any technical work. 3. In its written statement, the respondent-management had, inter alia, contended that the main duties of the petitioner-employee required application of mind and initiative and he was not required to do any skilled or manual work or any technical work. In addition, as an Accountant, he was required to supervise the work of his subordinates and he was not covered under the settlement signed between the respondent-management and the union representing workman. A contention was also raised that he was getting petrol allowance, which was paid only to the managerial staff and he was drawing a monthly salary of Rs. 1,355 when he was removed from the post of Accountant. In his depositions Sri Mutha-the witness of the respondent-company stated that the petitioner was working as an Executive Accountant, but during the cross-examination when he was shown a copy of the chargesheet and the dismissal order he agreed that the petitioner was an Accountant and it has come in the evidence that the Accounts Department was headed by a Manager, who was assisted by a Chief Accountant, Deputy Chief Accountant, five Accountants, etc. In addition, there were 25 clerks and some peons, etc., in the said department. Sri Mutha did not dispute the nature of duties of the petitioner as they were stated in his affidavit, viz., preparation of trial balance profit and loss account, checking of travel allowance of officers, filling the figures of depreciation and closing stock in the monthly profit and loss statement, maintaining of general ledger for income and expenditure and journal for adjustment of erroneous and wrong entries, correction of computer statements, sending statement pertaining to the bills, etc., to the internal auditor of the company, etc. There was no evidence brought on record by the respondent-management specifically to show that the petitioner was supervising the work of an employee subordinate to him like the clerk, etc., and in fact the Labour Court on this point goes to draw an inference against the employee solely on the ground that he was not covered by the settlement signed between the respondent-management and the union and he was getting petrol allowance, which was payable to the officers and Managers only. 4. 4. A number of judgments were referred to by both the parties before the Labour Court and it must be deplorably noted that the learned Presiding Officer failed to apply his mind to the facts brought on record as well as the enunciations cited before him. The learned Presiding Officer noted that preparation of statement after finding out mistakes from the computer statement cannot be said to be the work of mere clerical nature and it required application of mind. He further held the work that was being carried out by the petitioner-employee required certain creativity and imaginative approach. 5. It is well recognized that the term, “supervision” includes supervision over subordinates and not over the computers. Checking of ledgers, statements, registers, records or computer printouts cannot be, by any stretch of imagination, held to be a supervisory or managerial function. In the case of All India R.B.I. Employees Association v. R.B.I. [A.I.R. 1966 S.C. 305], the Supreme Court held that mere checking of work of others is not enough because these checking forms a part of accounting and not of supervision and the work done in the audit department of a bank was not a work of supervisory nature. The same view was reiterated by the Apex Court in the case of National Engineering Industries v. Shri Kishan Bhageria [ 1988 (1) L.L.N. 675 ]. 6. The learned counsel for the respondent-management while opposing the petition, submitted that the nature of duties that the petitioner was performing could not be held to be clerical and therefore, the findings recorded by the learned Presiding Officer in the impugned award do not call for any interference by this Court. 6. The learned counsel for the respondent-management while opposing the petition, submitted that the nature of duties that the petitioner was performing could not be held to be clerical and therefore, the findings recorded by the learned Presiding Officer in the impugned award do not call for any interference by this Court. He has relied upon a recent judgment of the Supreme Court in the case of H.R. Adyanthaya v. Sandoz (India), Ltd., [ 1994 (2) L.L.N. 1017 ], in which the Supreme Court referred to the earlier decisions rendered by-it in the case of May and Baker (India), Ltd. v. Workmen [A.I.R. 1967 S.C. 678]; Western India Match Company, Ltd. v. Workmen [A.I.R. 1964 S.C. 472]; Burmah Shell Oil Storage and Distribution Company of India, Ltd. v. Burmah Shell Management Staff Association [ (1970) 3 SCC 378 : A.I.R. 1971 S.C. 922]; Miss A. Sundarambal v. Government of Goa, Daman and Diu [ 1988 (2) L.L.N. 608 ]; S.K. Verma v. Mahesh Chandra [ 1983 (2) L.L.N. 637 ]; Ved Prakash Gupta v. Delton Cable India (Private), Ltd. [ 1984 (2) L.L.N. 27 ]; and Arkal Govind Raj Rao v. Ciba Geigy of India, Ltd. [ 1985 (2) L.L.N. 270 ], and while summarising in Para. 24 of the said judgment, the Supreme Court observed that a person to be a workman as defined under the Industrial Disputes Act, must be employed to do the work of any categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. 7. In the instant case no doubt, at the relevant time the petitioner was drawing a monthly salary in excess of Rs. 1,000 but mat itself will not be sufficient to hold that he did not fall within the ambit of S. 2(s) of the Industrial Disputes Act. It was necessary for the respondent-management to demonstrate by way of evidence that the nature of duties assigned to the petitioner at the relevant time was supervisory or managerial. The issue as to what constitutes supervisory or managerial work has been clearly laid down by the Supreme Court in the case of Burmah Shell (vide supra). It was necessary for the respondent-management to demonstrate by way of evidence that the nature of duties assigned to the petitioner at the relevant time was supervisory or managerial. The issue as to what constitutes supervisory or managerial work has been clearly laid down by the Supreme Court in the case of Burmah Shell (vide supra). As observed hereinabove, the respondent-management failed to bring any thing on record to show that the petitioner was working in the supervisory post or a managerial post and the evidence of the respondent's sole witness, in fact, supports the case of the petitioner that he was working as a clerk. The conclusion drawn by the learned Presiding Officer is grossly erroneous and undoubtedly his findings have resulted into miscarriage of justice. It is, therefore, a fit case to intervene in the impugned award as the reasoning given in support of the findings recorded by the Labour Court renders it unsustainable. 8. In the result, the writ petition is allowed and the award impugned is hereby quashed and set aside. The Labour Court at Pune is directed to decide the Ref. (I.D.A.) No. 127 of 1982 (new No. 101 of 1988) on its merits. It is further directed that the reference shall be decided as expeditiously as possible and in any case within a period of six months from the receipt of writ from this Court. 9. Rule made absolute accordingly with no order as to costs.