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2025 DIGILAW 214 (GUJ)

Jyoti Limited v. Maheshbhai Jayantibhai Patel

2025-03-05

M.K.THAKKER

body2025
JUDGMENT : 1. Rule returnable forthwith. Learned senior advocate Mr. Shalin Mehta waives service of notice of Rule on behalf of respondent. 2. This petition is filed by the petitioner challenging the award dated 27.09.2017 in reference LCB No. 307/2009 passed by the learned Labour Court, Vadodara whereby, the learned Labour Court has allowed the reference and held that termination dated 02.04.2009 is illegal and the directions were issued to pay 100% back wages to the workman from the date of termination i.e 02.04.2009 till the date of superannuation. The ground for challenging the impugned award is mainly that the petitioner does not fall under the definition of workmen as per section2(s) of the Act, 1947. 3. The gist of the case is that the organization of the petitioner-Company comprises with various internal department namely HR Department, Accounts Department, Quality Department and Research and Development (R&D) Department etc. and as per the tree of management hierarchy, post of Senior Engineer, Executive Engineer having salary of Rs.25,000/- would be considered as Supervisory in nature and having authority to deal and manage the affairs of the concerned department i.e research and development department. The respondent was initially appointed vide appointment order dated 08.08.1980 as a Technical Assistant in R&D Department and subsequently promoted as Senior Engineer/Executive Engineer and was drawing the salary of Rs.26,000/-. The respondent has tendered the resignation on 02.04.2009 to the higher authorities of the Company which was accepted and petitioner-Company paid all terminal benefits. Thereafter, dispute was raised before the learned Labour Court which was registered being reference LCB No.307 of 2009. The respondent filed the statement of claim and the petitioner Company has filed the written statement raising the preliminary objections about the maintainability of reference in view of the fact that respondent was never engaged as workman and he cannot be termed as ‘workman’ under section 2(s) of the I.D.Act, 1947. The learned Reference Court has awarded the reference in favour of the respondent-workman vide judgment and award dated 27.09.2017 which is subject matter of challenge before this Court. 4. Heard learned advocate Mr.Vasavada for the petitioner and learned senior advocate Mr.Shalin Mehta with learned advocate Ms.Aditi Raol for the respondent. 4.1. The learned Reference Court has awarded the reference in favour of the respondent-workman vide judgment and award dated 27.09.2017 which is subject matter of challenge before this Court. 4. Heard learned advocate Mr.Vasavada for the petitioner and learned senior advocate Mr.Shalin Mehta with learned advocate Ms.Aditi Raol for the respondent. 4.1. Learned advocate Mr.Vasavada submits that learned Labour Court ought not to have assumed the jurisdiction as the respondent being Senior Engineer falling under the cadre of supervisor capacity in the R&D Department and work of the respondent was to operate the manufactured products of the Company and looking to the nature of job and experience required in the job, the respondent cannot be said as workman and therefore, reference ought to have been rejected on that ground. Learned advocate Mr.Vasavada submits that present respondent has been working as a Senior Engineer and there were other 10 to 12 workmen working in the said department and though specific contentions were raised in the written statement with regard to the jurisdiction of the learned Labour Court to entertain the reference, without framing issues, the learned Labour Court has allowed the reference in favour of the respondent. 4.2. Learned advocate Mr.Vasavada submits that considering the nature of work performed by the respondent, the respondent cannot be said to be a workman as per the Act, 1947. Learned advocate Mr.Vasavada submits that the other twelve workers who are working under the instructions of the respondent as Senior Engineer in R&D Department however, only to mislead the learned Court, the respondent has intentionally and deliberately mentioned his post as Technical Assistant. Learned advocate Mr.Vasavada submits that after tendering resignation voluntarily and after taking all the terminal benefits, learned Reference Court has committed error in granting the back wages for the period which he did not work. Learned advocate Mr.Vasavada submits that looking to the nature of job, quantum of responsibility of the job in R&D Department and as well as the quantum of salary drawn by the respondent, instead of dismissing the reference, the learned reference court has awarded the same in favour of the respondent. Therefore, the same is required to be interfered with and petition is required to be allowed. 4.3. Therefore, the same is required to be interfered with and petition is required to be allowed. 4.3. Per contra, learned senior advocate Mr.Shalin Mehta has submitted that workman, as defined under section 2(s) of the Act, 1947 includes the employee as a Supervisor, such a person is not a workman if performs managerial functions by reasons of power vested in him or nature of the duties attached to his office. Several considerations would naturally be relevant in determining the status of an employee for the purpose of deciding the question as to whether a person is in position of the Manager or Supervisor. Learned senior advocate Mr.Shalin Mehta submits that the respondent does not have the authority to supervise the work of the staff employed in the establishment neither had the control and charge of the correspondence nor has power to appoint members of the staff or to punish them and therefore, in absence of above powers, the learned Labour Court rightly and legally came to the conclusion in its award that respondent is workman, as defined under section 2(s) of the I.D.Act. Learned senior advocate Mr.Shalin Mehta submits that the forceful resignation was taken by the petitioner-Company on 02.04.2009 and on the same day it was accepted and he was relieved from the service. Learned senior advocate Mr.Shalin Mehta submits that after taking forceful resignation, the complaint was filed to the Police Commissioner as same was not taken by the Police Officer of Gorva Police Station and thereafter, on 07.04.2009 the request was made to permit to withdraw the resignation to the Company which was not replied by the petitioner company. Learned senior advocate Mr.Shalin Mehta submits that the terminal benefits were accepted with protest and communication which was placed on record dated 01.09.2009 suggests that he is ready to refund the said amount if the respondent is taken back in the service. Learned senior advocate Mr.Shalin Mehta submits that though cheque was given on 15.04.2009, however, same was not deposited up to 31.08.2009 as petitioner was under the hope that he would be taken back in service. Learned senior advocate Mr.Shalin Mehta submits that after assigning detailed reasons learned Reference Court has awarded reference in favour of the respondent therefore, no interference is required in the impugned order and petition is required to be dismissed. 5. Learned senior advocate Mr.Shalin Mehta submits that after assigning detailed reasons learned Reference Court has awarded reference in favour of the respondent therefore, no interference is required in the impugned order and petition is required to be dismissed. 5. Having considered the argument advanced by the learned advocates for the respective parties and on perusing the record and proceedings thoroughly, certain facts which are narrated hereinbelow remain undisputed: (a) The respondent was appointed as a Technical Assistant from 08.08.1980 and was lastly serving on the post of Senior Engineer and drawing the salary of Rs.26,000/- and was a permanent employee. (b) As per the statement of claim, the nature of duties mentioned in para no.4 is of to give pump testing report to the customer, preparing the form of the tender relating to the Pump. (c) On 02.04.2009 the resignation was tendered which was accepted on the same day. On 07.04.2009 request was made to permit the resignation which was taken forcefully on 02.04.2009 wherein also, the nature of duties is stated which is mentioned in the statement of claim. (d) Chief Examination is the form of affidavit if filed below Exh.12. It is admitted that 10 to 12 workers were working with the petitioner however, the suggestion that petitioner was taking the work from the said employees was answered in the negative form. 5.1. Except these, no rebuttal evidence was placed before the learned Labour Court either in the nature of oral evidence of any witness or in the nature of any documentary evidence. Though the list was produced below Exh.16, containing the copy of the resignation, acceptance of resignation and payment of terminal benefits, no evidence was adduced to show that petitioner does not fall under the definition of section2(s) of the Act, 1947. 5.2. It is true that in the written statement it was claimed that respondent does not fall under the definition of section 2(s) however, during the cross-examination, petitioner was unable to rebut the evidence of the respondent, more particularly, statement made in the chief examination, describing the nature of the duties. In absence of any rebuttal evidence, it cannot be claimed that error has been committed by the learned Reference Court in entertaining the reference. In absence of any rebuttal evidence, it cannot be claimed that error has been committed by the learned Reference Court in entertaining the reference. The reliance was placed by the learned advocate for the petitioner Mr.Vasavada on the decision rendered by this Court in Special Civil Application No. 12710 of 2019 wherein, this Court has held that Deputy Engineers and Executive Engineers are employed in Supervisor capacity and they are always drawing the wages exceeding what is prescribed in the Statute. On referring the decision, it was observed by this Court that there is substantial evidence on record to suggest that the petitioner was enjoying control over several subordinates who were working under him and evidence was placed in the nature of communication dated 23.06.1999 suggests that some other officer were asked to take charge of on going works of the petitioner. In the instant case, the petitioner failed to adduce any evidence to rebut the evidence of the workman showing the nature of duties. 5.3. This Court has referred the decision rendered by the Apex Court in the case of S.K. Verma Vs Mahesh Chandra and Anr., 1983 (4) SCC 214 wherein, it is held that designation or name of the post is not decisive and it was held that the nature of duties is the material aspect to determine the jurisdiction of the learned Labour Court when the dispute is raised that whether the employee is workman or not. This Court is of the view that designation of an employee is not of great importance, what is important is the nature of duties. If the nature of duty is manual, technical or clerical then the person would be a workman. The test is whether the duty is performed by the concerned employee and the functions discharged are similar to or the same as, the duties or functions assigned to person falling in that category. Workman under the definition of section 2(s) must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. When the respondent has discharged his burden by putting himself in the box by describing the nature of duties then the burden would shift on the employer to take his case out of the Act by reasons of exclusion. When the respondent has discharged his burden by putting himself in the box by describing the nature of duties then the burden would shift on the employer to take his case out of the Act by reasons of exclusion. It is for the Management to adduce their evidence in order to make good preliminary objections that the person in respect of whom the reference was made was not workman. The petitioner herein, has admitted in para no.12 of the written statement that the respondent is doing the pump testing work, submitting the report to the customers, preparing the Tender Form for the Pump however, it is stated that remaining part regarding the making signature by a Senior Manager and following the instruction of a superior is disputed. When the petitioner himself has admitted the nature of duties which is described in the statement of claim as well as in the chief examination and in the cross- examination, it was for the petitioner to discharge his onus thereafter, to place contrary evidence on record, to prove the fact if it is contrary. 5.4. In absence of the same, learned Reference Court would not have any other option to accept the plea of the respondent and to adjudicate the reference on merits. The petitioner did not deem it fit to put himself in the box to adduce evidence nor has placed any other record to show rebutting the evidence of respondent to establish that respondent was discharging the duties which falls under the exceptions of section 2(s) of the Act, 1947. 6. As there is no error committed by the learned Reference Court, this Court does not deem it fit to exercise the writ jurisdiction. Therefore, the award dated 27.09.2017 in reference LCB No. 307/2009 passed by the learned Labour Court, Vadodara is hereby confirmed. Record and proceedings, if any, be sent back. 7. Resultantly, this petition is dismissed. Rule is discharged.