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2011 DIGILAW 731 (GUJ)

S. Kalyankrishnan v. Blue Star Ltd

2011-11-08

K.S.JHAVERI, V.M.SAHAI

body2011
JUDGMENT : K.S. Jhaveri, J. Heard Mr. Nilesh M. Shah, learned advocate appearing for the appellant at length. 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. 2. 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. v. Shri Kishan Bhageria and Others reported in AIR 1988 SC 329 : 1988 (56) FLR 148 (SC). 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 Seeds growers' Union Ltd. v. Shailesh kumar Harshadbhai Shah reported in 2006(6) SCC 548 : 2006 (111) FLR 581 (SC) and submitted that in the said case even the internal auditor of the company was termed as a workman under the Act. Further, relying upon another decision of the Apex Court in the case of Anoop Sharma v. Public Health Division, Haryana reported in 2010(5) SCC 497 : 2010 (125) FLR 629 (SC) Mr. Further, relying upon another decision of the Apex Court in the case of Anoop Sharma v. Public Health Division, Haryana reported in 2010(5) SCC 497 : 2010 (125) FLR 629 (SC) 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. 3. 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. 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. 4. 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. 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." 5. 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. 6. In the case of Anand Regional Coop Oil Seeds growers' 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. 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." The aforesaid decision shall also not be applicable to the facts of the present case as the primary duties as enumerated herein above 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. 7. 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. 8. 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 L 21,000/- when his services were brought to an end. His basic pay was L 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 authorised 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 taken note of the fact that a cheque used to be cleared only with the signatures two authorised 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 HC-NIC (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..." 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. 9. In the premises aforesaid, the appeal is devoid of any merits and is dismissed accordingly. Appeal dismissed.