Rajaram Bandekar Srigao Mines ... vs Stephen Fernandes And Anr.
2003 Latest Caselaw 1047 Bom

JUDGMENT

R. J. Kochar, J.

1. The appellant/employer is aggrieved by the impugned Judgment and Order passed by the learned single Judge of this Court on September 7/13, 2001 in Writ Petition No 72/1998, wherein the respondent No. 1 employee, as the original petitioner had questioned the legality and propriety of the Award Part I passed by the Industrial Tribunal in Reference No. CGIT-2/50 of 1988 holding that the petitioner employee was not a workman within the definition of Section 2(s) of the Industrial Disputes Act, 1947 and therefore it was held that the Reference was not maintainable. The learned single Judge, by the impugned Order, quashed and set aside the aforesaid Award of the Tribunal and held and declared that the original petitioner was a workman under Section 2(s) of the Act and remanded the matter to the Tribunal for trial on merits.

2. The grievance of the petitioner in the Reference was that he was unlawfully terminated from employment with effect from June 30, 1985. He, therefore, sought consequential relief of reinstatement with full back wages and continuity of service in his statement of claim. As we are not concerned with the facts or the merits of the case, we are not stating the other pleadings of the parties before the Tribunal. The petitioner filed his statement of claim, justifying his demand questioning the legality and propriety of the order of termination. The appellant/employer filed his written statement and raised a preliminary objection in respect of the maintainability of the Reference on the ground that the petitioner/employee was not falling within the definition of Section 2(s) of the Industrial Disputes Act and therefore the Reference made by the appropriate Government was not competent. Since the question of jurisdiction was raised, the learned Member of the Tribunal proceeded to decide the same as a preliminary issue and he answered the same in favour of the appellant/employer. He held that as Surveyor, the Workman did not satisfy the test of the definition of workman under Section 2(s) of the Act and therefore he held that the Reference was not competent. The parties had adduced oral and documentary evidence on the basis of which the Tribunal concluded that the workman in the Reference was not in fact a workman as defined under Section 2(s) of the Act and therefore the Reference was bad in law as there was no industrial dispute between the employer and workman as contemplated by the provisions of the Industrial Disputes Act. The Tribunal considered the evidence on record and held that the duties performed by the petitioner/ workman did not satisfy the substantive main part of the definition of Section 2(s) of the Act.

3. Aggrieved by the aforesaid Award of the Tribunal the petitioner/workman approached this Court by filing the Writ Petition under Articles 226 and 227 of the Constitution of India. The learned single Judge by the impugned Order, as stated above, quashed and set aside the said Award and remitted the matter to the Tribunal for final disposal on merits. We are informed that the Tribunal has already completed the recording of evidence on merits, but it has not given its final Award as the Tribunal is restrained by this Court from doing so during the pendency of the present L.P.A.

4. We have heard the learned counsel on both the sides. We have carefully gone thorough the proceedings. We are satisfied to the core that there was absolutely no good ground for the learned single Judge to have interfered with the well-reasoned Award of the Tribunal which was based on evidence and material on record. The decision of the learned single Judge is contrary to the legal position in respect of the definition of workman given under Section 2(s) of the Industrial Disputes Act. It appears that the learned single Judge was not shown that the appellant/employer had led oral evidence of its Project-in-Charge who had not only filed his affidavit, but was also cross-examined. The learned single Judge therefore has mentioned in paragraph 17 that the Company had not led evidence to prove that the work done by the petitioner was of supervisory nature or that he was exercising supervisory powers. We also fail to appreciate how the learned single Judge has observed that the Tribunal had travelled beyond its jurisdiction and authority in coming to the conclusion that the petitioner was working in a supervisory capacity and therefore not a workman. The Industrial Tribunal which was called upon to adjudicate the industrial dispute referred to it by the appropriate Government under Section 10(1) of the Act had perfect jurisdiction to decide ail the issues raised before the Tribunal. With respect to the learned single Judge, we fail to understand how it can be said that the legally constituted Tribunal under the Act to decide the legality and validity of the industrial disputes could be said that it had no jurisdiction to decide the question whether the reference was competent or not on the basis whether the workman satisfied the definition of Section 2(s) of the Act. We also do not agree with the conclusion drawn by the learned single Judge that the findings recorded by the Tribunal are perverse.

5. We have ourselves perused the entire Award and we find that the Tribunal has considered the evidence and has based its conclusion on the basis of the material adduced before the Tribunal. We fail to understand on what basis the learned single Judge has observed that the Tribunal has failed to exercise jurisdiction vested in it and decided the dispute by giving a perverse finding on a preliminary issue. The Tribunal has considered the evidence and material before it and has recorded its preliminary finding. The Tribunal was well within its jurisdiction to decide the said issue and has decided the same on the basis of the material before the Tribunal. We therefore are of the opinion that the Award of the Tribunal cannot be termed or deemed as perverse or it cannot be said that the Tribunal has failed to exercise its jurisdiction. The Tribunal has rightly and properly exercised its jurisdiction and has given its Award on the basis of the evidence and material on record. The Tribunal has also considered the provisions of the Special Act namely the Mines Act and also the Metalliferous Mines Regulations, 1961. We do not find any error of law or fact or perversity in the findings recorded by the Tribunal to warrant interference by this Court under its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

6. Even then we have independently considered the question whether the petitioner employee falls within the definition of "workman" given under Section 2(s) of the Industrial Disputes Act, 1947. The petitioner/employee was appointed as Surveyor and he was holding the post of Surveyor which is a statutory post required to be created under the Law of Mines and Minerals. There is no dispute that the petitioner/employee was independently governed by separate service conditions. There is also no dispute that he was provided with a furnished rent free accommodation. He was also enjoying electricity and water without any payment. He was not governed by the settlement between the management and the workmen and he was not getting any benefits under the said settlement. There is also no dispute that Draftsmen and labourers are working under him. There is also no dispute that there is a grade or category of Foreman below the grade of Surveyor and such a Foreman is not a workman. Shri Diniz, the learned counsel appearing for the appellant, before us has pointed out the anomaly that if the contention of the petitioner that he is a workman is accepted, in that case the Foreman who works below him is not a workman while the Surveyor being a superior, would be a workman. Apart from the aforesaid important conditions which definitely lead us to infer that the petitioner certainly does not fall within the main definition of 'workman' under Section 2(s) of the Industrial Disputes Act. We have further considered the provisions of the law and in particular the provisions of the Metalliferous Mines Regulation, 1961 under which several posts have been created and their duties and responsibilities have been statutorily defined in Chapter V. The Chapter is captioned as "Duties and Responsibilities of Workman, Competent Persons and Officials". From this caption of Chapter V under the Regulations itself has made a distinction between workman and officials. The category of workman is treated separately. Under the Regulations, "official" is defined as under:

"Section 2(23) - "Official" means a person -appointed in writing by the owner, agent or manager to perform duties of supervision in a mine or part thereof, and includes an assistant manager, and underground manager, a mine foreman, a mining mate, an engineer and a surveyor;"

7. It is therefore clear that the employees employed in the aforesaid category are officials in the establishment of the Mine under the Mines Act. In this definition 'workman' is not included. Rule 2(19) defines "Mine foreman" as a person to perform the duties of supervision or control in a mine or part thereof. Chapter V defines the duties and responsibilities of workmen, competent persons and officials separately and minutely. Regulation 52 which prescribes duties and responsibilities of Surveyors, reads as under:

" Duties and responsibilities of surveyors-

(1) Every surveyor shall- (a) make such surveys and levelling, and prepare such plans and sections, and tracing thereof as the manager may direct or as may be required by the Act or by the regulations or orders made thereunder, and shall sign the plans, sections and tracings and date his signature; and

(b) be responsible for the accuracy of any plan and section, or tracing thereof, that has been prepared and/or signed by him.

(2) The surveyor shall record in a boundpaged book kept for the purpose-

(a) full facts when the working of the mine has approached to about 75 metres from the mine boundary or from disused or waterlogged workings;

(b) any doubt which may exist, concerning the accuracy of the plan and sections prepared under these regulations, and

(c) any other matter relating to the preparation of the plans, sections and tracings that be may likely to bring to the notice of the manager.

Every entry in the book shall be signed and dated by the surveyor, and countersigned and dated by the manager;

Provided that where in any mine two or more surveyors are employed, each of the surveyors shall make the entries aforesaid in respect of the workings in his jurisdiction or the plans and sections in his charge.

(4) Nothing in sub-regulation (2) shall absolve the owner, agent or manager of his responsibility under the Act and under these regulations and orders made thereunder."

8. It would also be relevant to reproduce Rule 66 to appreciate the duties and responsibilities of Surveyors working in Mines :

"Preparation of plans by surveyors.-(1) Every plan and section, and tracing thereof, prepared under the regulations shall be" prepared by or under the personal supervision of a surveyor appointed under regulation 38.

(2) Every Plan or section, or any part thereof, prepared by or under the personal supervision of a surveyor shall carry thereon a certificate by him to the effect that the plan or section or part thereof is correct, and shall be signed and dated by the surveyor and countersigned and dated by the manager on every occasion that the plan or section is brought up to date.

(3) Every tracing of a plan or section, or of any part thereof, shall bear a reference to the original plan or section from which it was copied and shall be certified thereon by the surveyor to be a true copy of the original plan or section. The certificate shall be signed and dated by him.

(5) If the surveyor fails or omits to show any part of the workings or allows any plan or section to be inaccurate, he shall be guilty of a breach of these regulations. Nothing in this regulation shall, however, exempt the owner, agent or manager of his responsibility to ensure that every plan or section prepared, kept or submitted under these regulations or by an order made thereunder is correct and maintained up to date as required thereunder".

9. The Tribunal has considered the evidence and material on record in the context of the aforesaid provisions of law and has given correct finding that the petitioner/employee did not fall within the four corners of the definition of 'workman' under Section 2(s) of the Industrial Disputes Act. It would be relevant to reproduce Section 2(s) of the Industrial Disputes Act which 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."

10. Reading the aforesaid provisions of law, by no stretch of imagination it can be said that the duties and responsibilities of the petitioner/employee would fall within the definition of 'workman'. We have to see the predominant work performed by a Surveyor which is a statutory post. Predominant nature of the duties partakes the character of administration and the work in the capacity of a supervisor. A small clerical or manual work is always independent work in every post. Often a person holding the post of manager or an administrator has also to do some writing or some manual movements, but thereby he cannot be stretched in the main part of the definition of 'workman'. The predominant nature of the duties must fall within the definition of 'workman' if the concerned person is to be characterised as 'workman'. In the present case apart from the perquisites which are not available to the workman who is always governed by the terms of the settlement under the Industrial Disputes Act, the main duties and responsibilities cast on the post of a" Surveyor cannot and do not fall within the main definition of workman. They are certainly of administrative/supervisory nature. Considering the nature of evidence on record and the aforesaid legal provisions, we" are fully satisfied that the petitioner/ employee was employed as an official in the post of a Surveyor and was performing the duties of surveyor as required under the Regulations and these duties and responsibilities and the work done by him, do not carry him in the realm of the main definition of 'workman' under Section 2(s) of the I.D. Act. They take him out of the purview of the main part of the definition. We may refer here the latest judgment of the Supreme Court on the definition of "Workman" under Section 2(s) of the Industrial Disputes Act. It has been reiterated, may be hundred times that while considering the issue of 'workman' we must first find out from the material on record the primary duties and dominant nature of work performed by the incumbent and that these duties must satisfy the tests prescribed in the substantive and main part of the definition. It is not permissible to test the duties negatively to say that they do not fall in the exceptional part and then to conclude that he automatically falls in the main part. It is indeed the other way round. The workman must at the first instance prove positively on the basis of material that he predominantly and substantively falls within the main part of the definition and not that he does not fall in the area covered by the exceptions in the definition.

The learned single Judge has committed grave error of law in this respect. The Supreme Court in the judgment of Hussan Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board and Anr. observes as under at p. 1523 of LLJ:

"No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him. Even if the whole undertaking be an industry, those who are not workmen by definition may not be benofitted by the said status. It is the predominant nature of the services that will be the true and proper test. Operations of the Government which are pure and simpliciter administrative and of a governmental character or incidental thereto cannot be characterized to be "industrial" in nature, be they performed by a department of the Government or by a specially constituted statutory body to whom any one or more of such functions are delegated or entrusted with. When as in this case, as disclosed from Section 15 of the Act as also the provisions of the Scheme, the primary duties of an employee and the dominant purpose, aim and object of employment was to carry out only certain specific statutory duties in the matter of effective enforcement and implementation of the Welfare Scheme in order to ameliorate and rehabilitate a particular cross section of Labour, and, if need be, on the basis of his own decision which calls for a high degree of discretion and exercise of power to prosecute the violator of the provisions of the Act, Rules and the provisions of the Scheme, we are unable to accord our approval to the claim made on behalf of the appellant that he can yet be assigned the status of a "Workman", without doing violence to the language of 1 Section 2(s) and the very purpose and object of the Industrial Disputes Act, 1947. That apart, even judging from the nature of powers and the manner of its exercise by an Inspector, appointed under the Act, in our 1 view, the appellant cannot be considered to be engaged in doing any manual, unskilled, technical, operational, clerical or supervisory work and the mere fact that in the course of performing his duties he had 2 also to maintain, incidentally, records to evidence the duties performed by him, day to day, cannot result in the conversion of the post of "Inspector" into any one of those nature noticed above, without which, as held by a Constitution Bench of the Court in the decision in H.R. Adyanthayya and Ors. v. Sandoz (India) Ltd. and Ors. the appellant cannot fall within the definition of "Workman". The powers of an Inspector and duties and obligations cast upon him as such are identical and akin to law enforcing agency or authority and also on a par with a prosecuting agency in the public law field."

11. The Tribunal therefore has rightly held that the petitioner/employee was not a workman and therefore the industrial dispute referred by the appropriate Government for adjudication of his dispute challenging the order of termination was rightly held not competent and not maintainable. We do not find any error of law or perversity in the order of the Tribunal to warrant interference of extraordinary jurisdiction under the Constitution. The learned single Judge has committed a grave error of law by interfering with the well-reasoned Award of the Tribunal in his extraordinary and narrow jurisdiction of Articles 226 and 227 of the Constitution of India. There is certainly miscarriage of justice to warrant interference by us under the provisions of Clause 15 of the Letters Patent.

12. We therefore allow the appeal, quash and set aside the judgment and order passed by the learned single Judge and confirm the Award passed by the Tribunal rejecting the Reference not competent. The Tribunal not to pronounce its final award on merits. In the circumstances no order as to cost.

13. Before parting, we may mention that as usual we tried to settle the dispute between the parties, particularly when we noticed that the employee had met with an accident and was not able to work and was hospitalised for some time and therefore he was terminated from employment. Considering his length of service and the age of retirement which he reached during the pendency of litigation, we tried to recommend compensation of Rs. 1,00,000/- to be paid by the appellant/employer to the respondent/employee. Since there was very wide gap between the parties, we left the thread of settlement at that point and we proceeded to decide the L.P.A. on merits.