Bombay High Court
General Manager, Suguna Foods ... vs Gajanan Mahadeo Mandaokar on 24 November, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.7978/2018
PETITIONERS : 1) General Manager,
(Orig.Respondents) Suguna Foods Pvt. Ltd.,
Mouza Tambhari, Wani,
Tah. Hinganghat, District - Wardha.
2) Managing Director,
Suguna Foods Pvt. Ltd.,
5th Floor, Jaya Enclave, 1057,
Avinashi Road, Coimbatur
(State of Tamilnadu).
...VERSUS...
RESPONDENT : Gajanan Mahadeo Mandaokar
(Original Aged about 57 years, Occ. Nil,
Complainant) R/o Hinganghat, Tah. Hinganghat,
District - Wardha.
With
WRIT PETITION NO.7979/2018
PETITIONERS : 1) General Manager,
(Orig.Respondents) Suguna Foods Pvt. Ltd.,
Mouza Tambhari, Wani,
Tah. Hinganghat, District - Wardha.
2) Managing Director,
Suguna Foods Pvt. Ltd.,
5th Floor, Jaya Enclave, 1057,
Avinashi Road, Coimbatur
(State of Tamilnadu).
...VERSUS...
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2
RESPONDENT : Chetan S/o Ramlalji Kohpare,
(Original Aged about 32 years, Occ. Nil,
Complainant) R/o Hinganghat, Tah. Hinganghat,
District - Wardha.
Mr. Chetan Ramlal Kohpare,
436 A, Subhash Nagar,
Old Pardi Naka, Bhandara Road,
Nagpur - 440 008.
(Amendment carried out as per
order dated 3/1/2020)
With
WRIT PETITION NO.7980/2018
PETITIONERS : 1) General Manager,
(Orig.Respondents) Suguna Foods Pvt. Ltd.,
Mouza Tambhari, Wani,
Tah. Hinganghat, District - Wardha.
2) Managing Director,
Suguna Foods Pvt. Ltd.,
5th Floor, Jaya Enclave, 1057,
Avinashi Road, Coimbatur
(State of Tamilnadu).
...VERSUS...
RESPONDENT : Prafulla S/o Sureshrao Ladhi,
(Original Aged about 33 years, Occ. Nil,
Complainant) R/o Hinganghat, Tah. Hinganghat,
District - Wardha.
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Shri Santosh D. Chande, Advocate for petitioners in all petitions
Shri A.J. Salway, Advocate for respondent in all petitions
----------------------------------------------------------------------------------------------
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3
CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 07/09/2021
Date of pronouncing the judgment : 24/11/2021
JUDGMENT
1. Heard Shri Santosh D. Chande, learned Counsel for the
petitioners and Shri A.J. Salway, learned Counsel for the
respondents. Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned Counsel for the rival parties.
2. In Writ Petition No.7978/2018 the respondent, who
was appointed as a Supervisor (Mandi) and thereafter confirmed as
Branch Coordinator. By an order dated 18/12/2015, the respondent
was transferred as a 'Supervisor-Weighment' to Talegaon Branch.
Since the respondent did not join at the place of transfer in spite of
reminders the services of the respondent, came to be terminated by
the order dated 18/12/2015, which was challenged by him in
Complaint (ULP) No.6/2016 before the learned Labour Court,
Wardha, who by judgment dated 31/3/2017 held that the
respondent was workman and dismissal was without giving an
opportunity of hearing and therefore, set aside the same and
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directed reinstatement with continuity of service and back wages
and the transfer order of the respondent, was also set aside. The
Revision (ULP) No.44/2017 there against by the petitioner, was
partly allowed by the learned Industrial Court by maintaining the
order of reinstatement with continuity and back wages but setting
aside the order of cancellation of transfer. It is against the order
directing reinstatement, continuity and back wages that the present
petition has been filed.
3. In Writ Petition No.7979/2018 the respondent was
appointed on 1/10/2007 as Assistant (Purchase) and thereafter
confirmed as Executive Procurement and was transferred to Daund
Branch as a 'Supervisor - Weighment'. Since the respondent did not
join at the place of transfer in spite of reminders the services of the
respondent, came to be terminated by the order dated 18/12/2015.
The learned Industrial Court in Complaint (ULP) No.5/2016
cancelled the transfer order and directed reinstatement, continuity
and back wages. The learned Industrial Court in revision by the
petitioner, bearing Revision No.43/2017, set aside the relief of
quashing of the transfer order, but maintained the relief of
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reinstatement, continuity and back wages. Hence this petition.
4. In Writ Petition No.7980/2018 the respondent was
appointed on 1/10/2007 as Assistant (Purchase) and thereafter
confirmed as Executive Procurement on 2/5/2013 and was
transferred to Kadus Branch as a Supervisor - Weightment by an
order dated 18/12/2015. Since the respondent did not join at the
place of transfer in spite of reminders the services of the respondent,
came to be terminated by the order dated 18/12/2015. The learned
Industrial Court in Complaint (ULP) No.7/2016 cancelled the
transfer order and directed reinstatement, continuity and back
wages. The learned Industrial Court in Revision No.46/2017 set
aside the relief of quashing of the transfer order, but maintained the
relief of reinstatement, continuity and back wages. Hence, this
petition.
5. Shri Chande, learned Counsel for the petitioners raises
a contention that considering the nature of duties of the
respondents, they did not fall within the definition of workman as
contained in Section 2 (s) of the Industrial Disputes Act, 1947 (for
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short, "the I.D. Act, 1947" hereinafter), for which purpose, he invites
my attention to the appointment orders of the respondents, whereby
they were appointed as a Supervisor-Mandi / Assistant (Purchase).
He further invites my attention to the confirmation orders of the
respondents, whereby they were confirmed to the post of Branch
Coordinator-Procurement/Executive Procurement, in support of his
contention. He further invites my attention to the cross-examination
of the respondents, and the admissions contained therein, regarding
the nature of work being performed by the respondents, which
according to the learned Counsel, indicated that they were not
workmen. He further submits that a stray admission by the witness
for the petitioners, could not be construed to mean that the
respondents were workmen, contrary to what had been admitted by
the respondents themselves in their cross-examination. He further
submits that the Courts below, have incorrectly held the respondents
to be the workmen, which finding needs to be set aside and the
complaints need to be dismissed.
6. Shri Chande, learned Counsel for the petitioners places
reliance upon Burmah Shell Oil Storage and Distribution Company
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of India Ltd. Vs. The Burma Shell Management Staff Association and
others, 1970 (3) SCC 378 and Twenty First Century Printers Ltd.
Mumbai Vs. K.P. Abraham and another, 2009 (1) Mh.L.J. 434 in
support of his contention.
7. Shri Salway, learned Counsel for the respondents
supports the impugned judgments and orders and submits, that the
cross-examination of the respondents themselves indicates that the
duties performed by them were of the nature, which were squarely
covered by the definition of workman as contained in Section 2 (s)
of the I.D. Act, 1947. He submits that for determining the nature of
the duties, the nomenclature or label is not material but the
dominant nature of the duties performed have to be looked into,
considering which the Courts below have rightly arrived at a
conclusion that respondents were workmen and since a finding was
rendered in his submission correctly, that the termination was illegal
the impugned judgments and orders cannot be faulted with. He
places reliance upon Arkal Govind Raj Rao Vs. Ciba Geigy of India
Ltd., Bombay (1985) 3 SCC 371.
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8. It is a settled position of law that while determining
whether a person is a workman or not, it is not the nomenclature or
the label affixed to his appointment but the dominant nature of the
duties being performed by the employee which have to be taken into
consideration [see Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit
Singh (2005) 3 SCC 232]. The orders of appointment of the
respondents indicate that the appointments were to the post of
"Supervisor-Mandi"/Assistant (Purchase). The appointment orders
however except for the above, do not specify the nature of the duties
which the respondents were required to perform on their
appointment. The confirmation orders indicate that the services of
the respondents were confirmed after the probation period and they
stood appointed as a Branch Coordinator-Procurement/Executive-
Procurement. These orders also do not indicate with any precision
the nature of duties to be performed by the respondents. In absence
of any mention in the appointment orders; the orders of
confirmation and the orders of transfer, to indicate what specific
duties were to be performed by the respondents in the posts held by
them, in absence of the duty-chart/list, specifying the work to be
performed by the respondents, being placed on record or for that
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matter any other material placed on record by the petitioners, the
same has to be gleaned from the evidence on record.
9. For the sake of ready reference the definition of
workman as contained in Section 2 (s) of the I.D. Act, 1947 is
reproduced as under :-
"Section 2 Definitions
(a)...........
(b)............
(c)...........
(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
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(iii) who is employed mainly in a managerial or
administrative capacity or
(iv) who, being employed in a supervisory
capacity, draws wages exceeding 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."
It is material to note that the definition of workman in Section 2 (s)
of the I.D. Act, 1947 includes a person employed to do supervisory
work also.
10. The cross-examination of the respondent in Writ
Petition No.7978/2018 as well as the witness examined by the
petitioner/opponent before the learned Labour Court thus assumes
significance and for the sake of ready reference is quoted as under :-
"(a) the relevant portion of the cross-examination of the
respondent in Writ Petition No.7978/2018 is as under :-
"fnukad% 14 lIVsacj 2016 gs Eg.kus [kjs vkgs dh eh xSjvtZnkj
foHkkxkr czkap dksvkWMhZusVj dk;Zjr gksrks o eyk ekfld :-25000 ixkj
feGr gksrk- gs Eg.kus [kjs vkgs dh] ek÷;k inkps vls dke gksrs dh cktkjkr
lks;kchu fodr ?ks.;kdfjrk ts vf/kdkjh useys gksrs] R;kauk ;ksX; rs funsZ'k
ns.ks- gs Eg.kus [kjs vkgs dh] lnj vf/kdkjkÚ;kauh fdrh Vu eky ?ksryk o
dks.kR;k ntkZpk o dks.kR;k njkus eky ?ksryk] ;koj ns[khy eh y{k Bsor
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gksrks- gs Eg.kus [kjs vkgs dh] eh lnj eky fodr ?ks.kkÚ;k vf/kdkÚ;kauk R;kauh
dks.kR;k njkiklqu dks.kR;k njki;Zar eky [kjsnh djkok R;kaph jsUt Bjoqu nsr
vls- gs Eg.kus [kjs vkgs dh eh R;k eky fodr ?ks.;kÚ;k vf/kdkÚ;kaoj
ns[kjs[khps dke dfjr gksrks- lk{khnkj lkaxrks dh] eh R;kP;koj izR;{kkr uOgsrj
Qksuo:u ns[kjs[k Bsohr gksrks- gs Eg.kus [kjs vkgs dh] eyk o R;k fodr
?ks.;kÚ;k vf/kdkjhuk daiuhlkBh cktkjkrqu lks;kchu [kjsnh dj.;kph eqHkk
gksrh- rlsp R;kauk o eyk lnj lks;kchupk Hkko Bjfo.;kph eqHkk gksrh- gs
Eg.kus [kjs vkgs dh] vkEgh izR;{kkr [kjsnh dsysY;k lks;kchupk eky daiuhus
d/khgh ijr ikBoyk ukgh- gs Eg.kus [kjs ukgh dh] vkEgkyk cktkjkrqu lnj
eky fodr ?ksrkauk lsYQ vlhlesaVps vf/kdkj gksrs- gs Eg.kus [kjs ukgh dh]
ek>s dke o eh Lor% dkexkj ;k O;k[;sr clr ukgh-"
(b) the relevant portion of the cross-examination of
the witness for the petitioner is as under :-
"We have not given the duty list to the complainant.
Complainant was not authorized to sanction the leave of any
of employee. Complainant was not authorized to write the
confidential report of any of employee. Farmers used to bring
soyabin seeds in A.P.M.C., in smaller lots to sell. Those lots
used to auction. In that auction, prospective purchaser used
to give bids, based on the quality. The highest bidder will be
declared as a buyer. It is true to say that, there are some
brokers in A.P.M.C. to conduct the auction. While accessing
soyabin quality one has to check the percentage of moisture,
foreign material and damage seeds etc. It is not true to say
that to assess the quality of soyabin, is a technical aspect. The
work of purchase executive is a manual type of work."
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11. The respondent in Writ Petition No.7979/2018, in his
affidavit-evidence states that his work was to purchase Soyabean
from the market yard, get it measured, keep account of the same,
load them and send to the petitioners. In cross-examination, he
states that he was working as a Purchase Executive.
12. In Writ Petition No.7980/2018, the examination-in-
chief and cross-examination of the respondent is similar to that in
Writ Petition No.7979/2018.
13. Thus, though appointment and confirmation orders of
the respondents to the posts on which they were appointed and
confirmed, do not specify the nature of duties, which the
respondents were required to do, and even if the orders of transfer,
to which the respondents, were transferred are also silent on that
point, however, considering the evidence which has been led by the
respondents and considering the definition of workman as occurring
in Section 2(s) of the I.D. Act, 1947, it cannot be said that the
respondents, did not fall within the definition of workmen, in spite
of the nomenclature used in their appointment/confirmation/
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transfer orders, as it is not the nomenclature, but the nature of work,
being actually done by the respondents, which is material in
determining their status and in spite of specific evidence led by the
respondents, the petitioners, did not bring anything on record, by
way of evidence, documentary or oral, to indicate otherwise.
14. Once it is held that the respondents were workmen, and
they were confirmed in their posts, though it was evident that the
respondents, had flouted the orders of transfer by not joining at the
place of transfer, in spite of repeated reminders in this regard, which
obviously was a misconduct, the termination could not have been
done, without subjecting the issue to an enquiry, which admittedly
has not been done.
15. Thus, in light of the discussion made above, I do not see
any infirmity with the judgments as passed by the Courts below in
directing reinstatement of the respondents. I, also do not see any
infirmity in the judgment as passed by the learned Industrial Court,
whereby the direction as contained in the judgments of the learned
Labour Court, cancelling the orders of transfer has been quashed
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and set aside.
16. Insofar as the issue of grant of back wages is concerned,
the respondents, in their complaints in paragraph No.8, had clearly
mentioned that they could not secure any alternate employment,
which position was reiterated in their affidavit-evidence in
paragraph No.6, for which there is no cross-examination whatsoever.
The petitioner in its written statement has not denied this position.
In view of the above position, it was therefore, necessary for the
petitioners to bring on record the material to demonstrate the
gainful employment of the respondents, which it failed to do so, and
therefore, in light of the dictum of the Hon'ble Apex Court in
Rajasthan State Road Transport Corporation, Jaipur Vs. Phool
Chand (Dead) through Legal Representatives (2018) 18 SCC 299 ,
since the petitioners did not discharge the burden which was shifted
upon it, the grant of full back wages while directing reinstatement of
the respondents cannot be faulted with.
17. Thus, I do not find any infirmity in the judgment passed
by the learned Industrial Court below and the petitions being
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without any merits, they are accordingly dismissed. Rule is
discharged. No costs.
18. It is, however, made clear that it will be open to the
petitioners to take appropriate action against the respondents for
any misconduct which it may find to have been committed by the
respondents, due to flouting of the orders of transfer and take
appropriate action, in that regard, only after an enquiry in that
regard, as contemplated by law.
(AVINASH G. GHAROTE, J.)
Wadkar
