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2017 DIGILAW 778 (CAL)

ESS DEE Aluminum Ltd. v. State of West Bengal

2017-09-14

SAMBUDDHA CHAKRABARTI

body2017
JUDGMENT : Sambuddha Chakrabarti, J. 1. Although the writ petition is directed against the Certificate issued by the Conciliation Officer which has been annexed to the petition as Annexure P-5 and the Award dated January 18, 2013, i.e. Annexure P-9, Mr. Mehta, the learned Advocate for the petitioner, raised a preliminary objection to the jurisdiction of the concerned labour court to adjudicate the dispute under the Industrial Disputes Act as, according to him, the respondent No. 3 was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. Since, it pertained to the question of jurisdiction of the labour court to adjudicate the dispute it was taken up as a preliminary issue. 2. It is pertinent to mention that in the present petition after September 28, 2015, the respondent No. 3 went unrepresented. When the petitioner raised the issue on June 19, 2017, none appeared on behalf of the respondent No. 3, so also on June 23, 2017, when the preliminary issue was again heard. The learned advocate for the State respondents appeared but declined to make any submission on the point taken by the writ petitioner. 3. Before appreciating the scope of the issue raised, it is necessary to give in brief the facts leading to the issue of the Certificate by the Conciliation Officer as well as the Award passed by the learned Judge of the 2nd Labour Court, Kolkata. 4. The petitioner alleges that in terms of an order of the Board of Industrial and Financial Reconstruction, India Foils Ltd. stood merged with the petitioner company and the latter had acquired all the assets and liabilities of the former upon such merger. The respondent No. 3 was appointed by the India Foils Ltd. on September 29, 1995, in the Supervisory Grade as a probationer with the terms and conditions enumerated in the appointment letter. By a letter dated January 1, 2001, the respondent No. 3 was integrated in the management cadre of the company and was designated as a Junior Executive in Grade 'A'. He was also a member of the India Foils Supervisory Staff Association. 5. After the manpower was restructured, the service of the respondent No. 3 became redundant and the company was compelled to determine the employment of the respondent No. 3 with effect from August 23, 2003. He was also a member of the India Foils Supervisory Staff Association. 5. After the manpower was restructured, the service of the respondent No. 3 became redundant and the company was compelled to determine the employment of the respondent No. 3 with effect from August 23, 2003. The respondent No. 3 raised a dispute before the Conciliation Officer over his termination from service and the said dispute not having been settled he filed an application before the Conciliation Officer for issuing a pendency certificate. On the basis of that a certificate in the relevant proforma was issued by the Conciliation Officer. 6. The petitioner was served with a notice by the concerned labour court followed by an adjudication by the said Court. Ultimately, the learned Judge of the 2nd Labour Court by the Award impugned allowed the case on contest. The order of determination of contract of employment was set aside and the appellant was declared entitled to get reinstatement with continuity of service with effect from the date of termination with 50% back wages and other benefits as per the Standing Orders of the company. 7. In the affidavit-in-opposition, the respondent No. 3, inter alia, mentioned that although he was designated as a Supervisor he had performed clerical job. He neither operated any bank account nor had any control over the staff nor did he make any correspondence as a Junior Executive. 8. The respondent No. 3 objected to the termination through the union and demanded immediate reinstatement in service with full back wages. It is not necessary to further discuss the contents of the affidavit-in-opposition as the present exercise is restricted to the preliminary issue raised by the petitioner. 9. However, it is necessary to mention that with regard to the status of the respondent No. 3 the petitioner has stated in paragraph 7 of the affidavit-in-reply that he was initially appointed in supervisory grade on specified terms and conditions of service and it has been denied that the respondent No. 3 performed clerical job. It has been the specific case of the petitioner that he was promoted as a Junior Executive in grade 'A' in the management cadre with effect from January 1, 2001. 10. It has been the specific case of the petitioner that he was promoted as a Junior Executive in grade 'A' in the management cadre with effect from January 1, 2001. 10. The learned Judge of the labour court had specifically framed issue No. 2 to decide whether the respondent No. 3 herein was a workman within the meaning the of Section 2(s) of the Industrial Disputes Act. While deciding the issue, it has been observed that in the complexity of the industrial or commercial organization a large number of employees are often required to perform more than one duty. The test is the nature of the main duties of an employee and not the designation which does not determine whether he is a workman. Merely performing some supervisory duty will not take the employee out of the definition of a workman. The central concept of supervisory duty is the fact that there are certain persons working under him and the essence of such a work is the supervision by 1% over the work of another. 11. The learned Judge referred to the evidence of the PW 1 that his nature of job was to repair defects in the machine and to put data in the log book. He used to get instruction from the shift manager to repair defective machines and was helped by other workmen in his repairing job. The learned Judge observed that by the letter dated January 1, 2001, he was promoted to the management cadre but his gradation remained unchanged. The evidence of OPW 1 in his cross-examination was considered by the learned Judge. It has been recorded in the order that when the respondent No. 3 was supervising his subordinate staff, it was not necessary to work manually. If any situation arose he had to demonstrate the maintenance work manually. The respondent No. 3 had to guide his team on technical matters and he had no final authority to sanction leave. He was merely authorized to recommend the same. Total administration of Mechanical Maintenance Department of the company was controlled by the personnel section. As a team leader, he had to work with the assistant workers. 12. Based on the above evidence, the learned Judge concluded that the respondent No. 3 herein used to repair defective machines and put data on log book. Total administration of Mechanical Maintenance Department of the company was controlled by the personnel section. As a team leader, he had to work with the assistant workers. 12. Based on the above evidence, the learned Judge concluded that the respondent No. 3 herein used to repair defective machines and put data on log book. He had no supreme authority to take independent decision or to grant to leave other workers personally. The company did not produce any document in support of their case about the power of recommendation by the respondent No. 3. Therefore, the learned Judge concluded from the nature of work as evident from the evidence on record it did not appear that the respondent No. 3 had managerial power and had any authority to take any decision independently. 13. Mr. Mehta, the learned advocate for the respondent had assailed this finding of the labour court on the ground that on behalf of the petitioner company Mr. Swapan Kumar Pal was examined as OPW 1 and the evidence adduced by him in examination-in-chief has been ignored by the learned Judge of the labour court. 14. OPW 1 has specifically stated in his examination-in-chief that the respondent No. 3 herein was to supervise one-shift duty along with the team of workers. He was to check and maintain the mechanical failure in any department within the company and to remove the same with the help of his team mates. In the case of any bigger fault he was supposed to report it to his superiors. He had to lead about 8 to 10 employees when he was designated as a Junior Executive in grade 'A', his nature of job and responsibility was the same. But he was receiving salary and allowances of an Executive. In the cross-examination, the OPW 1 had specifically stated that he had to supervise the maintenance work of the company and he was not necessarily required to work manually. Again the respondent No. 3 as the PW 1 had admitted in cross-examination that is as per Exhibit 1 the terms and conditions of his service were that of a supervisor and he was drawing all the emoluments of Junior Executive, grade 'A' which were again revised with effect from April 1, 2003. 15. Mr. Mehta submitted that the respondent No. 3 was drawing his emoluments far above Rs. 15. Mr. Mehta submitted that the respondent No. 3 was drawing his emoluments far above Rs. 1600 per month as a Supervisor and, therefore, he does not come under the inclusive definition of Section 2(s) of the Industrial Disputes Act. It appears that the learned Judge of the labour court failed to attach due importance to a substantial portion of the evidence adduced by PW 1 and OPW 1 and erred in not reading the evidence as a whole in its entirety. A piecemeal selection of a part of the evidence is not the right approach as the effect of the totality of the evidence is likely to be lost sight of in the process. 16. I quite agree with the submission of the writ petitioner that the learned Judge ought to have held that a very major part of the evidence adduced by OPW 1 in-chief has not been specifically controverted by way of cross-examination. The very specific statement that the respondent No. 3 was to supervise one-shift of the duty of the company and after his promotion as a Junior Executive, he was receiving salary and allowances as an Executive remained unchallenged. On the contrary, a careful reading of the cross-examination of OPW 1 also leads to the supervisory activity being discharged by the respondent No. 3. 17. It is a settled proposition of law that when a statement made in-chief by a witness is not specifically challenged in cross-examination the testimony in examination-in-chief goes uncontroverted and amounts to acceptance of the case. A Division Bench of this Court in the case of AEG Carapiet v. A.Y. Darderian, reported in AIR 1961 Cal 359 , had held that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is not merely a technical rule of evidence, but a rule of essential justice. 18. I also agree with the writ petitioner that once it is established that the applicant was a supervisor by nature of his duties and he was drawing a salary exceeding Rs. 1600, he cannot be classed as a workman within the meaning of Section 2(s) of the Industrial Disputes Act. Mr. 18. I also agree with the writ petitioner that once it is established that the applicant was a supervisor by nature of his duties and he was drawing a salary exceeding Rs. 1600, he cannot be classed as a workman within the meaning of Section 2(s) of the Industrial Disputes Act. Mr. Mehta criticized the finding of the Tribunal that there was confusion between supervisory and administrative and managerial duties and erroneously equated the both. 19. When the learned Judge concluded that the respondent No. 3 had no managerial power and no exclusive authority to take a decision independently, she was obviously applying a wrong test. The question is not whether the respondent No. 3 could exclusively take any decision. It cannot be glossed over that a very major part of the definition of workman includes a supervisor and the clause excluding the employees from the category of workman refers to a monthly salary ceiling. If the labour court had to hold that the private respondent was actually not performing the supervisory duties, it was necessary for it to come to a specific finding as to which of the enumerated types of duties was actually performed by him so as to be classed as a workman. 20. I find sufficient merit in the submissions of the petitioner. The learned Judge of the Tribunal while deciding the issue in favour of the respondent No. 3 has erroneously concluded that he might be designated as a workman. On the contrary the very specific and uncontroverted evidence of the OPW 1 belie the finding. 21. I, therefore, hold that the respondent No. 3 was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. Therefore, the labour court had no jurisdiction to adjudicate the dispute. Consequently, further adjudication of other issues was also beyond the scope of jurisdiction of the labour court. 22. The Award impugned is set aside and quashed. The interim orders granted earlier are all vacated. 23. The writ petition is allowed. 24. There shall be no order as to the costs. 25. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.