Suresh Navnitlal Shah, vs Hindustan Spg. And Weaving Mills ...
2002 Latest Caselaw 131 Bom

JUDGMENT

Nishita Mhatre, J.

1. This petition challenges the order of the Industrial Court dated 15th December, 1998 declaring that the petitioner is not an "employee" under the provisions of section 3(13) of the Bombay Industrial Relations Act, 1946 (herienafter referred to as "1946 Act").

2. A few facts giving rise to the present petitioner are as under:

The petitioner joined the services on 24th March, 1968 in the erstwhile Crown Spinning and Manufacturing Company Limited as Departmental Assistant. In the year 1972-73, the name of the Company was changed to the present name, namely, Hindustan Spinning & Weaving Mills Company Limited which is the first respondent herein. The service conditions of the employees continued as before and the petitioner continued to work as a Departmental Assistant. On 10th May, 1991, the services of the petitioner were terminated without assigning any reasons to him. The petitioner, therefore, filed a complaint under Item 1(b) and (f) and Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the "1971 Act") alleging that the first respondent had terminated his service in breach of the conditions of service applicable to him. In the written statement filed by the first respondent, a contention was raised that the petitioner was not an "employee" under Item 3(13) of the 1946 Act since he was performing work of a supervisory nature and was drawing wages with a basic salary of over Rs. 1000/- per month.

3. Initially, the Industrial Court framed two issues, namely, maintainability of the complaint and whether the first respondent had engaged in unfair labour practices under Items 1(b) and (f) and 9 of Schedule IV of the 1971 Act. An additional issue was later on framed as to whether the petitioner proved that he was an "employee" under section 3(13) of the 1946 Act and, therefore, an "employee" under section 3(5) of the 1971 Act. Evidence was led before the Industrial Court to substantiate the contention of the petitioner that he was an employee and, therefore, was entitled to maintain the complaint under Item 9 of the 1971 Act. The Industrial Court held that the complaint is not maintainable and the petitioner was not an "employee" under section 3(13) of the 1946 Act. The Industrial Court took the view that although the petitioner was not a Supervisor supervising men but machines, he was still performing work in a technical capacity and, therefore, could not be considered as an employee. The Industrial Court held that the evidence on record showed that the petitioner was drawing a salary of Rs. 1195/- admittedly and therefore he would not fall within the scope of the definition "employee" under section 3(13) of the 1946 Act. It is this order which has been challenged by the petitioner by way of present writ petition.

4. To understand the import of the term "employee" as defined under the 1971 Act, one would have to consider section 3(5) of the Act. This section provides that with respect to an employee governed by the Bombay Act i.e. Bombay Industrial Relations Act, 1946, the definition of "employee" as contained in the Bombay Industrial Relations Act, 1946 would prevail. When one turns to the definition of "employee" as contained in section 3(13) of the 1946 Act, it is observed that skilled and unskilled workmen are contained in the inclusive part of the definition, whereas certain categories of workmen drawing more than Rs. 1000/- of basic pay are excluded. Section 3(13) of the 1946 reads as under :-

"3(13) "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes---

(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) of Clause (14);

(b) a person who has been dismissed, discharged or retrenched or whose services have been terminated from employment on account of any dispute relating to change in respect of which notice is given or an application made under section 42 whether before or after his dismissal, discharge, retrenchment or, as the case may be, terminated from employment;

but does not include-

(i) a person employed primarily in a managerial, administrative, supervisory or technical capacity drawing basic pay (excluding allowances) exceeding one thousand rupees per month;

(ii) any other person or class of persons employed in the same capacity as those specified in Clause (4) above irrespective of the amount of the pay drawn by such persons which the State Government may, by notification in the Official Gazette, specify in this behalf."

Obviously, therefore, a workman who is skilled, whether or not he is drawing a basic wage of more than Rs. 1000/- per month would be covered by the said definition.

5. The first respondent has all along contended in its written statement that the petitioner was not governed by the 1946 Act since he was a Supervisor drawing basic salary of more than Rs. 1000/- per month. It was their endeavour before the Industrial Court to establish by evidence that the petitioner was in fact a Supervisor and supervising the work of other persons and, therefore, would not be covered by the definition "employee". However, the Industrial Court has lost sight of the pleadings as well as the evidence on record and has come to the conclusion that the work performed by the petitioner was of a technical nature. In fact, the Industrial Court has come to a categorical conclusion that the petitioner was engaged to supervise machines and not men and, therefore, could not considered as a Supervisor. However, without there being any pleadings, the Industrial Court has observed that the petitioner is engaged in the work of a technical nature and since he is drawing more than Rs. 1000/- per month as basic pay, he is not covered by the definition of "employee" as contained in the 1946 Act and, therefore, the complaint under the 1971 Act is not maintainable.

6. Mr. Ganguly, learned Advocate for the petitioner, has relied upon the judgment of the Division Bench of this Court in The Bombay Dyeing & Manufacturing Co. Ltd. v. R.A. Bidoo and others, , in support of his contention that the petitioner was only supervising men and not machines and that the petitioner was working as a skilled workman and, therefore, was covered by the definition of the word "employee" as contained in the 1946 Act. The judgment of the Division Bench in the case of Bombay Dyeing (supra) considered the import of the term "employment in technical capacity" and observed that a person employed in a technical capacity must be deemed to be included in the category of skilled employees. In other words, skilled employees form a larger class of which persons employed in technical capacity form a part. It has further been observed (vide paragraph 20) as under :-

"20. In our opinion, what has been examined by us so far should be sufficient for the purpose of understanding the meaning of "employment in technical capacity". A person can be said to be employed in a technical capacity if he is, in the first place, a skilled person. He must have enough dexterity to discharge the work assigned to him with speed and accuracy. He must also have a skill, but that skill is not a general skill like that of a weaver who is in-charge of several looms in a textile unit. Such a weaver is skilful enough to look after several looms at one time and if something goes wrong he is able to attend to and mend the same. But he is not employing any particular knowledge or art in which he has been trained or in which he had some education, formal or otherwise. In the case of a person employed in a technical capacity, the application of a knowledge of a particular craft or work is the distinguishing feature. With the assistance of the knowledge he possesses, a person employed in a technical capacity is able to bring about a result which could not be brought about by a person, howsoever skilled, who is to perform routine, repetitive work. A person employed in a technical capacity has to use his judgment and has to find out whether a particular work can be done in one manner or another and then he does that work in the manner in which he thinks it is better done. The work which results from the labours of such a person necessarily bears, at least in some small measure, the imprint of his personality and the knowledge of the person who does that work. It is not necessary that the work that such a person does must be inventive, but it must necessarily be a work the contours of which are no pre-determined before that work is actually performed by the person employed in a technical capacity. Indication of this is available from the facts of Marshal Braganza v. Samant, 1975(2) L.L.J. 189. That case, in our opinion, very vividly describes the work of a person employed in a technical capacity."

7. Mr. Sawant, learned Advocate for the first respondent, has relied on the judgments of the Apex Court in Kalai Prasad Agarwalla and others v. M/s. Bharat Coking Coal Ltd. and others, , Union of India v. United India Insurance Co. Ltd. and others, and Sardul Singh v. Pritam Singh and others, and Municipal Corporation of City of Amravati v. Ashok Ramkrishna Kamble and others, 1994(II) L.L.N. 394 of this Court in support of his contention that if evidence which has come on record entitles the Industrial Court to take a particular view in the matter, merely because there is no pleadings to that effect, the entire evidence should not be discarded. He urges that the Industrial Court has to decide the matter based on the evidence. In my view, these judgments have no application as the pleadings between the parties have to be strictly construed more so when the objection raised for ousting the jurisdiction of the Court was only on a limited issue. The Apex Court in the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and another, , has observed (vide paragraphs 31 and 32) thus :

"31.........Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Pvt.) Ltd. v. Industrial Tribunal, 1967(2) Lab.L.J. 677 at p. 680(Punjab), commends to us. The rules of air play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary.

32. Can it for a moment be suggested that this elementary principle does not inform industrial adjudication? The answer must be an emphatic 'no'."

8. It is obvious from the pleadings that the parties went to trial only on the basic issue as to whether the petitioner was not an employee on account of him being supervisor drawing basic salary of more than Rs. 1000/-. Evidence was led on this basis. The petitioner had no knowledge that the jurisdiction of the Court would be ousted on the footing that he was employed in a technical capacity and was drawing basic wages of over Rs. 1000/- and, therefore, not an "employee" under section 3(13) of the 1946 Act. Therefore, the Industrial Court has misdirected itself by no considering this fact. Having held that the petitioner was not a supervisor of men but of machines, the only inference which the Industrial Court ought to have drawn is that the petitioner is an "employee" under the 1946 Act. I have gone through the evidence which was before the Industrial Court with the help of the learned Counsel for both the parties. I find that it is apparent from the evidence that the petitioner was employed as a skilled workman to supervise the working of the machines which, in my view, would not oust him from the scope of section 3(13) of the 1946 Act.

9. For the foregoing reasons, I pass the following order:-

(a) The order of the Industrial Court dated 15th December, 1998 is set aside and the matter is remanded back to the Industrial Court for deciding the same afresh in the light of the observations made in this judgment.

(b) Parties are directed to appear before the Industrial Court on 1st March, 2002.

(c) Industrial Court to dispose of the Complaint latest by 31st August, 2002.

10. Rule accordingly made absolute with no order as to costs.

11. Issuance of certified copy expedited.