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2018 DIGILAW 969 (GUJ)

Rajesh Bhagwatilal Gandhi v. Manager/Employer

2018-08-08

A.S.SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT AND ORDER : 1. Admit. Mr. Naik, learned advocate for the respondent waives service of Rule. With consent of the learned advocates appearing for the respective parties, the Letters Patent Appeal is taken up for final hearing today. 2. The present appeal is directed against the judgment and order dated 29.07.2015, rejecting the captioned writ petition, whereby the learned Single Judge has refused to interfere with the award and order dated 7.11.2014 passed in Ref. (T) No. 548 of 2001. 3. The brief facts of present appeal are as under:- 3.1 The appellant original petitioner was terminated from the services on 17.06.1999 under the allegation of misconduct. 3.2 Being aggrieved and dissatisfied with the same, the appellant raised an industrial dispute before the Labour Court, Bharuch, which was registered as Reference LCB Case No. 548 of 2001. The Labour Court, Bharuch, by an award and order dated 07.11.2014 rejected the said reference solely on the ground that the appellant does not fall within the ambit of definition of workman as defined under Section 2(s) of the Industrial Disputes Act. 3.3 Mr. P.C. Chaudhary, the learned advocate for the appellant has submitted that the Labour Court has categorically failed to appreciate the fact that the designation of the appellant is a Senior Accountant, and therefore, the nature of duty is of pure technical in nature. he does not have any control over the Company and workers thus, the appellant does not having any administrative or managerial nature of work, and therefore, the appellant is squarely covered by the definition of the workman as contemplated under Section 2(s) of the Industrial Disputes Act, and hence, the award passed by the Labour Court, Bharuch is required to be quashed and set aside. 4. Learned advocate for the appellant has submitted that the Labour Court has committed an error in relying upon the decision of this Court in case of Gujarat Engineering Association versus Gujarat Energy Transmission Corporation Ltd., wherein the Executive Engineers who are drawing wages more than Rs. 1600 or 10,000/- are held not to be workmen. 4. Learned advocate for the appellant has submitted that the Labour Court has committed an error in relying upon the decision of this Court in case of Gujarat Engineering Association versus Gujarat Energy Transmission Corporation Ltd., wherein the Executive Engineers who are drawing wages more than Rs. 1600 or 10,000/- are held not to be workmen. The said decision is not at all applicable to the facts of the present case because the appellant has categorically contended before the Labour Court that the appellant was working as Senior Accountant in the Company, and therefore, the facts of the present case are entirely different and on this ground also, the award passed by the Labour Court, Bharuch, is required to be quashed and set aside. 5. Learned advocate for the appellant has submitted that the Labour Court has also failed to appreciate the fact that while deciding the issues whether the appellant is workman or not, the designation of the workman is immaterial. There are catena of decisions of the Supreme Court that the designation of the workman is immaterial, while deciding whether he is workman under the Industrial Disputes Act or not and even a Manager, Supervisor or even the Director are held to be workman by the different Court of Law, and therefore, findings of the Labour Court, Bharuch that the Senior Executive Account are prima-facie illegal and contradictory to the provisions of the Industrial Disputes Act as well as definition of the workman given under Section 2(s) of the Industrial Disputes Act. 6. Learned advocate for the appellant submitted that the Labour Court has also failed to consider the fact that there is no iota of evidence produced before the Labour Court, Bharuch, that the appellant was working in administratorial, managerial or supervisory capacity. In absence of any such evidences, the findings of the Labour Court labeling the appellant is not a workman under Section 2(s) of the Industrial Dispute Act is not tenable in the eyes of law, and therefore, the same deserves to be quashed and set-aside. 7. Learned advocate for the appellant has invited attention of this Court to the cross- examination of the Manager. 7. Learned advocate for the appellant has invited attention of this Court to the cross- examination of the Manager. He has submitted that, in the entire deposition, it does not come out that the present appellant had signed any vouchers, on the contrary, the Manager, has refused to recognize the signatures made on the aforesaid vouchers, and he has submitted that since the Manager has refused to recognize the signatures, it can be safely concluded that the appellant was not working in the capacity of Managerial or Supervisor. 8. In order to support his submissions, learned advocate for the petitioner has placed reliance on following judgments:- (a) Sunita B. Vatsaraj vs. Karnataka Bank Ltd. Anr. (1999) 1 CurLR 1156 (b) Anand Regional Co-operative Oil Seedsgrowers Union Ltd. vs. Shaileshkumar Harshadbhai Shah, (2006) 4 LLN 157 (c) Aloysius Nunes vs. Thomas Cook India Ltd. (2000) LLR 1147 (d) Shankarbhai Nathalal Prajapati vs. Maize Products, (2002) 4 LLN 1035 9. In response to the aforesaid submissions, Mr.Naik, learned advocate for the respondent has submitted that the appellant would not fall under the definition of "Workman". He has submitted that the appellant was drawing salary more than Rs. 10,000/- at the relevant time and being a Supervisor as per definition of "Workman" under Section 2(s)(iii) (iv), he would not qualify as a Workman. He has submitted that, it is an admitted fact that there were two employees, who were working under him and were subordinate to the present appellant. They were doing administrative work of checking the payment of vouchers and cheques. 10. Learned advocate Mr. Naik has invited the attention of this Court to the observations made by the Labour Court and has submitted that in fact, the Labour Court has, after appreciating the entire evidence and the documents produced before it, rightly concluded that the appellant cannot be termed as "Workman". He has also referred to the appointment order of the appellant dated 05.10.1998 by which he was appointed as Accounts Officer, and thereafter, he has been further promoted. 11. Learned advocate Mr. Naik has also referred to the depositions of the Manager made before the Labour Court, wherein it has been deposed by him that the appellant was working as a Senior Executive Accounts and two employees viz. Atul Sheth and Diptiben Thakore were working under him. 12. Learned advocate Mr. 11. Learned advocate Mr. Naik has also referred to the depositions of the Manager made before the Labour Court, wherein it has been deposed by him that the appellant was working as a Senior Executive Accounts and two employees viz. Atul Sheth and Diptiben Thakore were working under him. 12. Learned advocate Mr. Naik has also contended that the appellant was holding a responsible post of Senior Executive Accounts and his duty was to pass bills and make payment and two employees were also given instructions by the appellant for doing day to day activities and they worked as per his instructions. Thus, the work of the present appellant was supervisory in nature. He has also referred to the performance appraisal report of the appellant which was filled by him and according to the said appraisal report, it is submitted by learned advocate Mr. Naik that appellant would never fall under the category of Workman. 13. Learned advocate Mr. Naik has also contended that the present appellant had not pleaded anywhere before the Labour Court in his Statement of Claim that he was a workman and no evidence to that effect was led. 14. In order to support his submissions, learned advocate for the respondent has placed reliance on following judgments:- (a) Union Carbide (India) Ltd. vs. D. Samuel and others, (1999) 2 LLN 165 (b) Union Carbide (India) Ltd. vs. Ramesh Kumbla and others, (1999) 2 Mh LJ 63 (c) Management of M/s. May and Baker (India) Ltd. vs. Workmen, (1967) AIR SC 678 (d) Management of Fenner India Ltd. vs. Presiding Officer & Anr. (2001) 3 LLN 670 (f) Somnath Thlshiram Galande vs. Presiding Officer, IIND Labour Court, Pune and others, (2008) 4 Mh LJ 163 (g) Apparao Basavannappa Manore vs. Wandleside National Conductors, Ltd and others, (1994) 2 LLN 1201 (h) John Josheph Khokar vs. B.S. Bhadange and others, (1998) 1 LLN 161 (i) National Engineering Industries Ltd. vs. Shri Kishan Bhageria and Others, (1988) Supp. SCC 82 15. In this view of the matter, learned advocate Mr. Naik has urged that present appeal does not require any interference. 16. In rejoinder to the aforesaid submissions, learned advocate Mr. Chaudhary has submitted that the Labour Court has not considered any document and the sole findings of the Labour Court is based upon the judgment of the High Court in the case of Gujarat Engineering Association. Naik has urged that present appeal does not require any interference. 16. In rejoinder to the aforesaid submissions, learned advocate Mr. Chaudhary has submitted that the Labour Court has not considered any document and the sole findings of the Labour Court is based upon the judgment of the High Court in the case of Gujarat Engineering Association. He has submitted that the Labour Court has not examined the nature of duties and has briefly considered the same and has erroneously come to the conclusion that the appellant would not fall under the definition of Workman. 17. We have heard learned advocates for the respective parties at length. The impugned judgment, award and the documents which have come on record have also been perused by us. 18. The core issue which needs to be addressed by this Court is whether the appellant would fall under the definition of the Workman as envisaged under Section 2(s) of the Act. Clause (iii) and (iv) of Section 2(s) of the I.D. Act envisages three categories of workmen which are excluded from its embrace. First is managerial, second is administrative and the third category is an employee who works in a supervisory capacity and is drawing wages not exceeding of Rs. 1600/- per month. (At the time of termination of the appellant the prescribed wages under clause (iv) were Rs. 1600/-.) The undisputed fact remains that the appellant was being paid a salary of Rs. 10,000/- which exceeded the maximum limits of Rs. 1600/- as incorporated in third category of Section 2(s) of the Act. 19. It is evident from the documents which have come on record that the appellant was initially appointed on the post of Assistant Accounts Officer on 01.10.1988. Thereafter, he was subsequently promoted as Accounts Officer with effect from 01.10.1990 and further promoted as Senior Executive Accounts on 01.09.1995. It is also established that two employees viz. Atul B. Sheth and Diptiben Thakore were working under him and they had to obey the instructions of the appellant for day to day activities. Learned advocate for the appellant has submitted that the appellant used to approve the cheques which were again sent to the higher authorities and the payments were accordingly made. It is also not disputed that he used to supervise / check the work assigned to his subordinates. 20. Learned advocate for the appellant has submitted that the appellant used to approve the cheques which were again sent to the higher authorities and the payments were accordingly made. It is also not disputed that he used to supervise / check the work assigned to his subordinates. 20. This Court has minutely gone into the deposition made by the Manager before the Labour Court at Exh.128. A perusal of the deposition of the Manager before the Labour Court indicates that he has not been cross-examined qua the signatures of the present appellant put by him as a Senior Executive Accounts, whereas the questions, which were put to him pertain to signatures of the Auditor. This Court has also examined concerned vouchers and on perusal of the same, it indicates that the appellant has signed the same in the capacity of Senior Accounts Officer. In the cross-examination of the Manager, nothing contrary to his examination in chief has been established, wherein it is deposed that two employees, were subordinates of present appellant and he was supervising their work. Thus, it can be safely concluded that the appellant was supervising the works of his subordinates in maintaining the accounts and preparing vouchers as well as cheques, which were in turn signed by him and forwarded to the Manager Accounts. 21. The aforesaid narration of the duties performed by the present appellant indicates that the appellant was supervising or overseeing the work done by his subordinates and thus, his predominant work was supervisory in nature and cannot in any manner be termed as Technical. The fact that he was drawing salary of Rs. 10,000/- at the releavant time has also not been refuted. 22. Reliance placed by the learned advocate for the appellant on the decision in the case of Shankarbhai Nathalal Prajapati is misconceived since the workman in the writ petition was working as Chemist and designated as Starch Technician whose work cannot be considered at par with the work of Senior Executive Accounts. 23. 22. Reliance placed by the learned advocate for the appellant on the decision in the case of Shankarbhai Nathalal Prajapati is misconceived since the workman in the writ petition was working as Chemist and designated as Starch Technician whose work cannot be considered at par with the work of Senior Executive Accounts. 23. Learned advocate for the appellant has placed reliance on the decision rendered in the case of Aloysius Nunes, the same also does not apply to the facts of the present case since in that case, the workman was working a Clerk and was assigned the work to look after the tourists arriving by airways and their loading and he was not exercising any managerial or administrative function normally done by the Manager. Reliance placed on the decision in the case of Sunita B. Vatsaraj cannot come to the rescue since the appellant before the court was serving as Clerk and Trainee and for a temporary period, and she was holding charge as Branch Manager. 24. In the case of Anand Regional Co-operative Oil Seedsgrowers' Union Ltd. the Apex Court has observed thus:- "15. 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. Being in charge of the Section along and that too it being a small one and relating to quality control would not answer the test." 25. As per the observations made by the Apex Court, what is needed to be seen is primary duty performed by the workman and it is necessary to prove that there were some workers under him and whose work required to be supervised. In the present case, unquestionably the appellant was supervising the two employees' working under him who had to act as per his directions in preparing the cheques and vouchers. 26. In the present case, unquestionably the appellant was supervising the two employees' working under him who had to act as per his directions in preparing the cheques and vouchers. 26. The afore-noted observations and careful examination of the depositions of the witnesses as well as documents brought on record, it can be safely be concluded that the present appellant would not fall under the definition of Workman as defined under Section 2(s) of the Industrial Disputes Act, 1947, since the evidence suggests that the appellant was serving as a Senior Executive Accounts, was supervising the work of his two subordinates and carrying on supervisory duties by giving instructions to his subordinates and was paid salary of Rs. 10,000/- which exceeds limits of Rs. 1600/- as prescribed at the relevant time under Section 2(s) of the Act. 27. In light of the for the foregoing observations, this Court is of the considered opinion that the observations made by the Labour Court as well as the learned Single Judge does not call for any interference and the present appeal is devoid of merits and deserves to be dismissed. Accordingly, the appeal is dismissed. No orders as to cost.