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2014 DIGILAW 214 (MP)

S. G. S. Motors Pvt. Ltd. v. Mamta Mathur

2014-02-14

SUJOY PAUL

body2014
JUDGMENT : Sujoy Paul, J. Feeling dissatisfied and aggrieved by the award of the Labour Court passed in Case No. 22A/I.D.Act/2005 (reference), the petitioner/employer has filed this petition under Article 227 of the Constitution of India. The industrial dispute was referred by the appropriate Government to the Labour Court to decide the question "whether the" termination of Narendra Kumar is legal and valid? If not, to what relief he is entitled to? In this regard, what directions are required to be given to the employer?" The workman, Narendra Kumar died during pendency of the matter before the Labour Court on 29.11.2006. The Labour Court answered the terms of reference in favour of the workman and directed that the employer shall pay 50% back-wages to the dependents from the date of termination till the date of publication of the award. This award is under challenge. Shri Sanjay Dwivedi, learned Counsel for the petitioner assailed this award on three counts:- (i) The workman admittedly died on 29.11.2006. For a period after his death, the Labour Court was not justified in granting the back-wages. (ii) The workman was gainfully employed after his termination from petitioner Industry which was established by filing affidavit Annexure P-11. Labour Court erred in disbelieving the same. (iii) The workman was working in supervisory capacity and, therefore, he was not a workman u/s 2(s) of the Industrial Disputes Act, 1947. 2. Shri Rajendra Bhargava in response fairly accepted that the contention in point No. (i) of the petitioner can be accepted. The Labour Court has erred in granting back-wages for a period beyond the death of the workman. I appreciate the fairness shown and there is no doubt that after 29.11.2006 no back-wages can be granted. Labour Court has clearly erred in law in granting back-wages beyond the date of death of the workman. 3. So far the question of gainful employment is concerned, Shri Anil Mishra entered as employer's witness by filing his affidavit under Order XVIII, Rule 4, CPC (Annexure P-11). In para 7 of this affidavit, it is contended that the workman was employed in Shitla Bus services and, thereafter, he started his own transport business. He was never remained unemployed. However in cross-examination the said witness only deposed that he had seen the workman working in Shitla Bus service but he has not obtained any document in this regard from Bus owner. He was never remained unemployed. However in cross-examination the said witness only deposed that he had seen the workman working in Shitla Bus service but he has not obtained any document in this regard from Bus owner. The cross-examination portion shows that the said witness was unable to show any document regarding 'gainful employment' of the workman. In Industrial Disputes Act, the term "gainfully employed" is used. Thus, the burden was on the shoulder of the employer to show and establish that the workman was "gainfully employed". In Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, (1984) 4 SCC 635 , Apex Court opined that mere engagement of a workman at some workplace does not mean that he is gainfully employed (para 21). In Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, the Apex Court has taken the same view (para 21). A Division Bench of this Court in Chinta Jaiswal Vs. Indian Oil Corporation Ltd. and Others, (1994) 39 MPLJ 777, opined that for the purpose of a person to be known as 'employed', it is necessary that he should be in employment of someone, and secondly, it should be a gainful employment. The 'gainful employment' would ordinarily mean that a person is able to earn his livelihood for maintenance of his family. If appointment is not gainful, it is no employment in the eyes of law. The employer has not placed any material to show that workman was 'gainfully employed'. 4. In the opinion of this Court, there is no perversity in the findings of the Court. This Court is not obliged to act as appellate authority to re-appreciate the evidence. The Court below has taken a plausible view which does not requires any interference from this Court. 5. The last contention of the petitioner is that the workman was working in supervisory capacity and, therefore, he is not workman. This Court is not obliged to act as appellate authority to re-appreciate the evidence. The Court below has taken a plausible view which does not requires any interference from this Court. 5. The last contention of the petitioner is that the workman was working in supervisory capacity and, therefore, he is not workman. Section 2(s) reads as under:- (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 express or implied, 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) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (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 exercises, 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. 6. In my opinion, the definition of workman means any person who is engaged to do any manual unskilled, skilled, technical, operational, clerical or supervisory work. The four exceptions are carved out which includes certain employee who are engaged in managerial or administrative capacity. 7. Shri Sanjay Dwivedi fairly admits that it was not the case of the employer that the workman was mainly engaged in any managerial or administrative capacity. 8. So far as section 2(s)(iv) is concerned, for establishing that the person was employed in supervisory capacity and was drawing wages exceeding Rs. 1,600/-, it is obligatory on the part of the employer to establish that the workman was working and rendering services of supervisory nature. This is settled in law that mere nomenclature and designation of the post will not determine the nature of duty. 1,600/-, it is obligatory on the part of the employer to establish that the workman was working and rendering services of supervisory nature. This is settled in law that mere nomenclature and designation of the post will not determine the nature of duty. Whether or not the employee was working in supervisory capacity, can be established only by leading evidence. There is no evidence to show that workman was performing supervisory nature of work. In Hussan Mithu Mhasvadkar Vs. Bombay Iron and Steel Labour Board and Another, (2001) 7 SCC 394 , the Apex Court opined that for deciding about the status of an employee, his designation alone is not decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him (para 10). At the cost of repetition, it is clear that the petitioner/employer has not established by leading evidence that the workman was performing mainly supervisory work. For the aforesaid reasons, the order of Labour Court in para 37 to the extent it granted back-wages for a period after the death of the workman is set-aside. Remaining portion is upheld. Petition is partly allowed. No cost.