Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 824 (KAR)

Divisional Controller, Raichur v. B. S. S. Kumar

2019-04-03

P.B.BAJANTHRI, P.G.M.PATIL

body2019
JUDGMENT : P. B. Bajanthri, J. Appellant-Corporation have questioned the validity of learned single Judge's order dated 12.03.2015 passed in Writ Petition No. 5764/2007 (L-RES). 2. Brief facts of the case is that, respondent was appointed as Assistant Traffic Inspector in the year 1979. He has earned promotion to the cadre of Traffic Inspector in the year 1982. While he was working in the cadre of Traffic Inspector on certain allegation he was subjected to disciplinary proceedings by framing articles of charge on 24.09.1996 which has resulted in imposing penalty of reversion from the post of Traffic Inspector to that of Assistant Traffic Inspector on 28.05.1997. 3. Feeling aggrieved by the order of reversion respondent sought for reference, Reference No. 267/2000, was a subject-matter before the Labour Court. Labour Court proceeded to pass award in favour of respondent. Appellant-Corporation questioned the validity of award dated 12.07.2001 in Writ Petition No. 46880/2002 wherein the learned single Judge remanded the matter to the Labour Court on 27.05.2005. Thereafter, reference was decided afresh by the Labour Court while passing award against the respondent on 31.01.2006. Respondent preferred Writ Petition No. 5764/2007, which was allowed in favour of respondent on 12.03.2015. Hence, the present appeal by the appellant-Corporation. 4. One of the preliminary contention is whether respondent is a Workman or not which has been considered by the learned single Judge in its order dated 12.03.2015 while narrating that appellant-Corporation did not produced any documentary evidence to show that respondent was assigned the supervisory duty and the post held by him do not fall under the definition of "Workman" to the extent that he was discharging the duties of post of Supervisory. In other words appellant-Corporation has not entrusted him any supervisory duties. 5. Learned counsel for appellant-Corporation vehemently contended that the post of Traffic Inspector as well as Assistant Traffic Inspector do not fall under the definition of "Workman" since both the post holders are discharging the supervisory work as is evident from the circular dated 17.11.1992. For want of records the aforesaid circular was not produced. Para 15 of the circular specifically attaches duties of the Assistant Traffic Superintendent or a Traffic Inspector to take action against the frequent absentees and reports be submitted to the Competent Authority on time. This circular is in addition to the other duties reflected in Article 228 dated 14.05.1974. For want of records the aforesaid circular was not produced. Para 15 of the circular specifically attaches duties of the Assistant Traffic Superintendent or a Traffic Inspector to take action against the frequent absentees and reports be submitted to the Competent Authority on time. This circular is in addition to the other duties reflected in Article 228 dated 14.05.1974. Copy of the circular dated 14.05.1974 has not been produced. It was submitted that with reference to circular dated 17.11.1992 suffice to hold that respondent do not fall under the definition of "Workman" and he falls under the proviso to Section 2(s) of the Industrial Disputes Act, 1947 (for brevity "Act 1947"). Merely non-production of circular dated 17.11.1992 that does not change the status of respondent so as to determine that he is a "Workman". Hence, respondent is not a "Workman" as he was discharging the duties of the supervisory. 6. Per contra learned counsel for the respondent vehemently contended that despite having ample opportunity was given to appellant-Corporation they have not utilized for the purpose of appraising the Labour Court and learned single Judge to the extent that the post of Traffic Inspector which was held by him do not have supervisory work. 7. The learned counsel for the respondent insisted that Traffic Inspector/Assistant Traffic Inspector would fall under the definition of "Workman" under Section 2(s) of the Act 1947. It was also submitted that respondent grievance was represented by Union. Therefore, under definition of Section 2(k) of the Act, 1947 the word used is "any person" since grievance of the respondent is agitated through Union. Consequently, one has to draw inference that respondent is a "Workman". 8. Further, learned counsel for respondent relied on the evidence of MW-1. Wherein MW-1 in his evidence he has stated that post held by the respondent do not fall under the definition of "Workman". At the same time in the cross-examination he has stated that no documentary evidence are available, at the same time he refers to circular but he did not refers to the circular dated 17.11.1992. That apart it was submitted that learned single Judge has taken note of that appellant-Corporation did not utilized the opportunity of adducing evidence or production of any documents. In support of the contention of the appellant-Corporation that respondent did not fall under the definition of "Workman". That apart it was submitted that learned single Judge has taken note of that appellant-Corporation did not utilized the opportunity of adducing evidence or production of any documents. In support of the contention of the appellant-Corporation that respondent did not fall under the definition of "Workman". Respondent counsel submitted that respondent-status as on the date of reversion order falls under the definition of "Workman". He relied on the following decisions :- 1. Arkal Govind Raj Rao and Ciba Geigy of India Ltd., Bombay in Civil Appeal No. 2638 of 1980 decided on May 6, 1985; 2. Kays Constructions Co.(Private) Ltd., and its Workmen in Civil Appeal No. 362 of 1958 decided on October 8, 1958. 9. Heard the learned counsel for the parties. 10. Question for consideration in the present appeal is ;- "Whether respondent-status as on the date of reversion from Traffic Inspector to that of Assistant Traffic Inspector fall under the definition of "Workman" or not" 11. Undisputed facts are that he was initially appointed as Assistant Traffic Inspector in the year 1979 and he has earned promotion to the cadre of Traffic Inspector in the year 1982. On account of certain alleged misdeeds stated to have been committed by him he was subjected to disciplinary proceedings which was concluded in imposing the penalty of reversion from the post of Traffic Inspector to that of Assistant Traffic Inspector. Thus, reference sought by the Union on behalf of respondent is with reference to reversion from the post of Traffic Inspector to that of Assistant Traffic Inspector. Therefore, one has to take into consideration whether the post of Traffic Inspector falls under the definition of "Workman" or not. 12. Thus, reference sought by the Union on behalf of respondent is with reference to reversion from the post of Traffic Inspector to that of Assistant Traffic Inspector. Therefore, one has to take into consideration whether the post of Traffic Inspector falls under the definition of "Workman" or not. 12. Section 2(s) the Industrial Disputes Act, 1947 (definition of "workman") 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 1[ten thousand 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.]." Employee who discharge managerial nature could not fall under the definition of "Workman" as is evident from the aforesaid provision. Circular dated 17.11.1992 relating to duties and responsibilities of Traffic Assistant at a Depot which includes Assistant Traffic Superintendent or a Traffic Inspector who has been posted to each Depot to be in-charge of traffic operations in Depot Management. The Traffic Assistant has to help the Depot Manager in Depot Management. He cannot function as mere case worker. The important duties and responsibilities of Traffic Inspector, an extract of Item No. 15 of circular dated 17.11.1992 reads as under :- "15. Appropriate action has to be taken against the frequent absentees and reports be submitted to the Competent Authority on time." 13. He cannot function as mere case worker. The important duties and responsibilities of Traffic Inspector, an extract of Item No. 15 of circular dated 17.11.1992 reads as under :- "15. Appropriate action has to be taken against the frequent absentees and reports be submitted to the Competent Authority on time." 13. Similarly various duties have been assigned relating to maintenance of Depot which suffice that he was holding supervisory post as he has to take action against frequent absentees of employees and reports are required to be submitted to the Competent Authority for taking further action in the matter. 14. Another contention of respondent is that under Section 2(k) of the Act 1947 any person includes Union of the Employees who have espouse cause of respondent "Workman". Even Union can espouse cause otherwise Workman also. In that event seeking reference to the Labour Court a non-Workman is impermissible. The cited decisions do not assist the respondent. In one of the case decided in FLR 2004 (100) 7 reads as under:- "1. It is the dominant purpose of the employment that is relevant and not some additional duties which may be performed by the employee. 2. It is not the designation of the post held by the employee which is relevant, but what is relevant is the nature of duties performed by the employee. 3. The Court has to find out whether the employee can bind the company in the matter of some decision taken on behalf of the company. 4. What is the nature of the supervisory duties performed by the employee Do they include directing the subordinates to do their work and/or to oversee their performance 5. Does the employee have power either to recommend or sanction leave of the workman working under him 6. Does he have the power to take any disciplinary action against the workmen working under him 7. Does he have the power to assign duties and distribute the work 8. Does the employee have the authority to indent material and to distribute the same amongst the workmen 9. Does the employee have power to supervise the work of men or does he supervise only machines and not the work of men 10. Does the employee have any workmen working under him and does he write their confidential report." The respondent status is attracted under Items 2, 3 and 4. Does the employee have power to supervise the work of men or does he supervise only machines and not the work of men 10. Does the employee have any workmen working under him and does he write their confidential report." The respondent status is attracted under Items 2, 3 and 4. Therefore, respondent who was Traffic Inspector as on the date of his reversion he did not fall under the definition of "Workman". Appellant failed to appreciate the aforesaid arguments and producing circular dated 17.11.1992 in writ petition. Accordingly, order of the learned single Judge dated 12.03.2015 passed in Writ Petition No. 5764/2007 is set-aside while affirming the award of the Labour Court dated 31.01.2006. Writ appeal stands allowed.