The Bhatiya General Hospital And ... vs Hanmant Anandrao Raje And Ors
2023 Latest Caselaw 4891 Bom

2023:BHC-AS:14607

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              APPELLATE SIDE CIVIL JURISDICTION

                                     WRIT PETITION NO.11048 OF 2022

             The Bhatiya General Hospital and Another                  ...Petitioners
                  vs.
             Hanmant Anandrao Raje and Others                          ...Respondents

             Mr. Anand Pai a/w. Mr. Omar Shaikh, for the Petitioners.
             Mr. S.C. Naidu a/w. Mr. Manoj Gujar, Mr. T.R. Yadav, Mrs. Divya
             Yajurvedi and Mr. Pradeep Kumar i/b. C.R. Naidu & Co, for the
             Respondents.

                                          CORAM :       N. J. JAMADAR, J.
                                      RESERVED ON :     MARCH 30, 2023
                                      PRONOUNCED ON :   JUNE 5, 2023


             JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the

learned counsel for the parties, heard finally at the stage of

admission.

2. This petition under Article 226 of the Constitution of India

assails the judgment and order dated 21st January, 2022 passed by

the learned Member, Industrial Court at Mumbai in Complaint

(ULP) No. 366 of 2018 whereby the learned Member was persuaded

to hold and declare that the petitioners/ employers engaged in

unfair labour practices under Items 5, 9 and 10 of Schedule IV of

the Maharashtra Recognition of Trade Unions and Prevention of

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Unfair Labour Practices Act, 1971 (the Act, 1971) and direct the

petitioners to cease and desist from engaging in unfair labour

practices and quash and set aside the letter dated 28 th July, 2018

and email dated 30th July, 2018 and the consequent action and also

direct the petitioners to grant medical and monetary benefits as

well as leave facilities which the respondents/ complainants were

enjoying prior to August, 2018 and extend the same service

conditions which the respondents/ complainants were enjoying

before they were sought to be changed by the communications

which were quashed and set aside.

3. Shorn of unnecessary details, the background facts leading

to this petition can be stated as under:-

a} Petitioner No. 1 is a general hospital run by a public charitable

trust. Petitioner No. 2 is the Chief Executive Officer of petitioner No.

1. Respondent Nos. 1 to 6/ original complainants are the permanent

employees of the petitioner No.1.

b} Respondents were appointed in different capacities in

different departments of petitioner No. 1, initially in the capacity of,

"workman" as defined under section 2(s) of the Industrial Disputes

Act, 1947 (the Act, 1947). They have rendered services in the

range of 15 to 30 years. They were the members of "Bhatia General

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Employees Union", a registered trade union.

c} In the year 2008-09 the respondents were, according to the

petitioners, promoted to the managerial cadre. Respondent No. 1

Hanamant Raje was promoted as Jr. Patient Welfare Officer.

Respondent No. 2 Anjana Phade and No. 4 Vidhya Pawar were

promoted as Technical Supervisor- Blood Bank and Jr. Technical

Supervisor- Blood Bank, respectively, and respondent No. 3 Jyoti

Boricha, No. 5 Jasmine Karol and No. 6 Rajshree Divekar as

Technical Supervisor-Laboratory.

d} It is the case of the petitioners that on the establishment of

the petitioner No. 1 there are grades of employees. Employees up to

grade F are the members of the union. Their service conditions are

governed by settlements entered into between the employer and the

union, from time to time. The employees who are placed in the

managerial cadre and the technical supervisors are governed by

separate service conditions determined by the management. Post

promotion, the respondents came to be placed in L1 grade.

e} Despite the promotion in the year 2008-09 and a subsequent

promotion to L2 grade and consequent higher pay scale, the

respondents were inadvertently extended the benefits which were

available to the workman, like unlimited medical benefits, leave

travel allowances, 30 days of privilege leave, 12 days of casual leave

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and 15 days sick leave, which the managerial cadre officers were

not entitled to. When the said inadvertent mistake was realized, the

petitioners addressed a letter dated 28th July, 2018 to the

respondents and 14 other persons so as to bring emoluments and

benefits at par with rest of the officers and managers. Barring the

respondents, rests of the officers/managers accepted the revised

dispensation. However, the respondents filed a complaint of unfair

labour practices.

4. The substance of the complaint of the respondents/

complainants was that despite the promotion, nature of work

performed by them prior to and after the purported promotion

remained the same. They continued to perform the duties of

technical and operational nature. Their duties had no trappings of

supervisory control or managerial cadre. All the complainants fell

under the category of 'workman' as defined under section 2(s) of

the Act, 1947 or 'Employee' as defined under section 3(5) of the

Act, 1971. By the impugned communication the employer professed

to adversely and drastically alter the service conditions and

benefits to which they were entitled to. There was no notice of the

change in the service conditions. Thus, the action of the employer to

deprive the respondents of the benefits to which they were entitled

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to as workman amounted to partiality within the meaning of Item 5

and also constituted failure to implement the settlement under Item

9 and an act of force or violence within the meaning of Item 10 of

the Schedule IV of the Act, 1971.

5. The employers/petitioners resisted the complaint. It was

inter alia contended that though the respondents were initially

appointed in the workman category, post promotion, the

respondents were working in a supervisory, administrative and

managerial cadre. Thus, the respondents were not workman.

Resultantly, they were not covered by the settlements which the

employer had entered with the union. The respondents were getting

the benefits under the settlements while they were working in the

workman category. However, in the wake of the promotion, the

respondents voluntarily resigned from the membership of the union

and since then they have been working in supervisory,

administrative and managerial cadre. It was thus contended that

the complaint of unfair labour practices under the Act, 1971 was

not tenable. Even otherwise, the petitioners denied that there was

unfair labour practice.

6. By the impugned communication, according to the petitioners

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an endevour was made to correct an inadvertent mistake. The said

action did not amount to any adverse change in the conditions of

services. It was contended that in the promotion order

inadvertently an error had crept in providing that "all other terms

and conditions shall remain the same". This led to continuation of

the benefits, which the workman were entitled to. Therefore, it

cannot be said that the petitioners had indulged in unfair labour

practices.

7. It would be contextually relevant to note that the learned

Member, Industrial Court had granted interim relief staying the

execution and operation of the impugned communication. Writ

Petition No. 13165 of 2019 preferred by the petitioners came to be

disposed of by an order dated 18 th February, 2020 by directing the

Industrial Court to hear and dispose of the Complaint (ULP) No. 336

of 2018, expeditiously.

8. The learned Member, Industrial Court recorded the evidence

of respondent/complainant No. 2 Anjana Phadke (Exh.U-17) for the

complainants and Dr. Sunita Nair (Exh.C-22) and Dinesh Thombare

(Exh.C-80) for the employers. After appraisal of the rival

contentions, evidence and material on record, the learned Member

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was persuaded to return the finding that the complainants were

covered by the definition of "workman" under section 2(s) of the

Act, 1947 and "Employee" under section 3(5) of the Act, 1971 and

that the petitioners committed unfair labour practices under Items

5, 9 and 10 of Schedule IV of the Act, 1971 and gave directions, as

indicated above. Being aggrieved, the petitioners have again

invoked the writ jurisdiction of this Court.

9. I have heard Mr. Anand Pai, learned counsel for the

petitioners and Mr. S.C. Naidu, learned counsel for the respondents

at some length. The learned counsel for the parties took the Court

through the pleadings, deposition of the witnesses and the material

on record, including the impugned order.

10. Mr. Pai, learned counsel for the petitioners strenuously

submitted that the learned Member, Industrial Court misdirected

himself in holding that the complainants were the workman. Mr. Pai

submitted that the question as to whether a person is workman is a

mixed question of fact and law and that determination being

jurisdictional in nature, is amenable to judicial review under Article

226 and 227 of the Constitution of India. As a second limb of this

submission, Mr. Pai would urge that the learned Member, Industrial

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Court lost sight of the fact that the onus to establish that the

complainants were the workman was not at all discharged by the

respondents/complainants. According to Mr. Pai, the learned

Member did not properly appreciate the evidence tendered before

the Court which unmistakably indicated that the respondents/

complainants were holding supervisory and managerial posts. The

duty list which were duly tendered and proved were unjustifiably

discarded by the learned Member. Therefore, the impugned

judgment and order deserves to be interfered with in exercise of

writ jurisdiction, submitted Mr. Pai.

11. To bolster up the aforesaid submissions Mr. Pai placed

reliance on the judgments in the cases of Somnath Tulshiram

Galande vs. Presiding Officer, IInd Labour Court, Pune and Others 1

and H.R. Adyanthaya and Others vs. Sandoz (India) Ltd. & Ors.2

12. Per contra, Mr. Naidu, learned counsel for the respondents

would urge that the impugned order does not warrant any

interference in exercise of the extra ordinary jurisdiction. Laying

emphasis on the contours of the writ jurisdiction, Mr. Naidu would

submit that the Court in exercise of writ jurisdiction is more

1 2008(4) Mh.L.J. 163.

2 (1994) 5 Supreme Court Cases 737.

Vishal Parekar                                                                   ...8





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concerned with the decision making process rather than the merits

of the decision. In the case at hand, according to Mr. Naidu, the

learned Member, Industrial Court has arrived at a justifiable

conclusion that the respondents satisfy the description of workman

upon appreciation of oral and documentary evidence. Such a finding

can, by no stretch of imagination, be termed as perverse and thus

needs no interference in exercise of writ jurisdiction. In any event,

according to Mr. Naidu, the burden to establish that the

respondents were not workman, was on the petitioners/ employers

and they miserably failed to discharge the said burden. Therefore,

looked at from any perspective, the impugned order is wholly

justifiable. To demonstrate the limits of the writ jurisdiction, Mr.

Naidu placed reliance on the judgment of the Supreme Court in the

case of State of Andhra Pradesh vs. P.V. Hanumantha Rao (Dead)

Thr. L.Rs and Anr.3.

13. Mr. Naidu would further urge that the case sought to be put

forth on behalf of the petitioners that the respondents were working

in a supervisory capacity was omnibus, in the least. A bald

contention was raised that the respondents were working in

supervisory managerial and administrative capacities without

reference to any duty list much less any effort at substantiating 3 AIR 2004 Supreme Court 627.

Vishal Parekar                                                                  ...9





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those attributes. Mr. Naidu would urge that exclusions envisaged by

sub-clauses (iii) (iv) of clause (s) of section 2 cover distinct

capacities and the expression managerial or administrative or

supervisory are not inter changeable much less of one and the same

nature.

14. To lend support to the submission that burden rests on the

employer to establish that a person is not workman, reliance was

sought to be placed on a Division Bench judgment of this Court in

the case of Waman Ganpat Raut vs. Cadbury-Fry (India) Pvt. Ltd.4.

Reliance was also placed on a judgment of learned single Judge of

this Court in Aloysius Nunes vs. Thomas Cook India Ltd.5.

15. Mr. Naidu also placed reliance on the judgments in the cases

of Rallis India Ltd. vs. State of West Bengal and Others 6; Electronics

Corporation of India Ltd. Service Engineers Union vs. Electronics

Corporation of India Litd. And Another7, and Northcote Nursing

Home Pvt. Ltd and Another vs. Zarine H. Rahina (Dr. Ms.) &

Another8 and the judgment of the Supreme Court in the case of All

India Reserve Bank Employees' Association and Another vs.

4 Sp.Civil Application No.3410/1976, Dt. 13/03/1980. 5 2000 II CLR 469.

6 1983 II LLJ, 293.

7 2004 III LLJ, 971.

8 2001( Supp.) Bom. C.R. 619.

Vishal Parekar                                                                             ...10





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Reserve Bank of India and Another9.

16. The definition of "workman" under section 2(s) of the

Industrial Disputes Act, 1947 is of wide amplitude. Four classes of

employees are, however, specifically excluded from the definition of

workman. An employee who is employed mainly in a managerial or

administrative capacity or the one who is employed in a

supervisory capacity, draws wages exceeding Rs. 10,000/- per

month 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 is, inter alia, excluded from the definition of

workman. The use of the term, "mainly" underscores the dominant

nature of the duty so as to fall outside the protective umbrella of the

labour legislation. By its very nature, the question as to whether an

employee is a workman or not is rooted in facts.

17. In the case of All India Reserve Bank Employees' Association

(supra), the Supreme Court enunciated that whether a particular

workman is a supervisor within or without the definition of

'workman' is ultimately a question of fact, at best one of mixed fact

and law and will really depend upon the nature of the industry, the

type of work in which he is engaged, the organisational set-up of the

9 AIR 1966 Supreme Court 305.

Vishal Parekar                                                                  ...11





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particular unit of industry and like factor.

18. This being the nature of the definition of workman, the

nomenclature of the post held by an employee is not of decisive

significance. It is the nature of the duty and not the nomenclature of

the position that matters. Whether the overall consideration of the

duties performed by the employee satisfies the description of the

duties being either supervisory or mainly managerial nature, is the

question to be posed.

19. A useful reference in this context can be made to a judgment

of the Supreme Court in the case of S.K. Maini vs. M/s. Carona Sahu

Co. Ltd.10 wherein it was inter alia, observed as under:-

9] "After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2 (s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2 (s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or

10 (1994) 3 SCC 510.

Vishal Parekar                                                                         ...12





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commercial organisations quite a large number of employees are often required to do more than one kind ofwork. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it"

"... the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as Section 2 (s) of the Industrial Disputes Act."

(emphasis supplied)

20. Reverting to the facts of the case, in the light of the aforesaid

position in law, the thrust of the case of the employer was that the

respondent N. 1 post promotion was re-designated as Jr. Patient

Welfare Officer and respondent Nos. 2 to 6 as Technical Supervisors.

Mr. Pai, made painstaking effort to take the Court through the duty

list of each of the respondents to draw home the point that some of

the duties were predominately of supervisory or managerial nature.

21. I have carefully perused the duty lists. I find it rather difficult

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to agree with the submission on behalf of the petitioners that the

predominant nature of the duties performed by any of the

respondents was of managerial nature.

22. First and foremost, the description of the duties is of general

nature. For example primary duty of Hanmant Raje, as Jr. Patient

Welfare Officer, was to meet the patients and their attendants

personally and to take their feedback. To this end, it was further

provided in the duty list that Raje was to ensure that processes are

"customer centric" and that he was to update the Reporting Officer

on all the day to day problems and their resolution. I am afraid, the

use of management jargon in the duty list is of assistance in

demonstrating that the nature of duties performed by Raje was of

managerial nature. The duties were plainly of operational nature in

the sense that he was to meet the patients and their relatives and

attend to their grievances and nothing more.

23. What weighed with the learned Member, Industrial Court was

the fact that Hanmant Raje, respondent No. 1, was to report to Ms.

Shweta Rane, the Senior Patient Welfare Officer. Ms. Rane was, in

turn, shown in the workman category.

Vishal Parekar                                                                    ...14





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24. Dr. Sunita Nair conceded in the cross examination in no

uncertain terms that vide letter dated 20 th April, 2017, Hanmant

Raje stood re-designated as Jr. Patient Welfare Officer and his

reporting authority was to be Ms. Shweta Rane and that the later

falls under the workman category. A feeble attempt was made to

wriggle out of the situation by affirming that the designation of Ms.

Rane was not changed as she was not having the requisite

qualification.

25. The aforesaid circumstance singularly dismantles the

employer's case that Mr. Raje performed supervisory or managerial

duties. The person to whom Hanmant Raje was to report, as a

superior to him, was in the workman category. It does not stand to

reason that the reporting employee, in such a situation like this, can

be said it to be performing supervisory duties.

26. The designation of respondent Nos. 2 to 6 as Technical

Supervisor is also not of much assistance to advance the cause of

the employer. I have perused the duty list of Lab Technical

Supervisor and Hematology Technical Supervisor. Primary duty of

the employees, who were to man those positions, was to accept the

samples, prepare reports and maintain the record. Tucking in the

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duties like, take over responsibility of department and sign the

reports, on Sundays and public holidays do not change the primary

duties which were essentially of the technicians.

27. To add to this, it is pertinent to note that when the

respondents 2 to 6 were promoted to Technical Supervisors, apart

from the change in the basic salary and the level in the hierarchy of

the employees maintained by the employer, it was categorically

mentioned that all other terms and conditions shall remain the

same as per the initial appointment (indisputably in the category of

workman). Inadvertent mistake in extending the said benefits seem

to have dawned after almost nine years.

28. It is in this context, the evidence of Ms. Anjana Phadake

deserves to be evaluated. It was categorically asserted that they

were performing the same duties which they used to perform before

the promotion. She further asserted that Shweta Rane who was

working as a Patient Welfare Officer was at the same level as

complainant No. 1 and was receiving benefits as per settlement. Mr.

Bhupendra Upadhyay was working as Senior Technical Supervisor

and received all the benefits as per the settlement. Ruchita Patole,

who was working in L1, was also receiving all the benefits as per the

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settlement. Likewise, Mahadev Thombare, who was categorized in

L1 due to seniority and promotion, still continued to get the benefits

as per the settlement and thus the employers were showing

favoritism and partiality to one set of workers vis-a-vis the

complainants.

29. Nothing material could be elicited to discard the version of

Anjana Phadake. On the contrary, during her cross examination, Dr.

Sunita Nair, conceded in no uncertain terms that Bhupendra

Upadhyay, Ruchita Patole, Shweta Rane are all designated under

the workman category. She went on to concede unequivocally that

the complainants do not sanction leave of any subordinate

employees, they do not have power to appoint or dismiss the

employee, they do not have powers to recommend pay hikes of any

of the employees and they do not write service book or service

related documents of the employees. They don't have independent

office.

30. In the backdrop of the aforesaid evidence, the learned

Member, Industrial Court recorded a finding that there was nothing

on record to show that the work performed by any of the

complainants was of such a nature as to bind the petitioners to

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some kind of decisions on behalf of the hospital. Nor there was

material to show that any of the complainants had power to direct

or oversee the work of any subordinate. Nor they had the authority

to exercise the supervisory control in the nature of grant of leave,

appraise actual performance etc.

31. The aforesaid view of the learned Member, Industrial Court

appears fully justifiable. On the one hand, the material on record

indicates that all the complainants/ respondents performed

technical or operational duties. On the other hand, none of the

duties performed by any of the complainants/ respondents had the

attributes of supervisory character. To add to this, the persons who

were shown to be either superior or equivalent to the respondents

were categorized in workman category.

32. Mr. Pai attempted to salvage the position by canvassing a

submission that Ms. Phadake had no authority to lead evidence on

behalf of rest of the complainants. This challenge does not merit

countenance. It would be suffice to note that the manner in which

Dr. Sunita Nair fared in the cross examination dismantled the very

substratum of the petitioners' case that the respondents/

complainants were not the workman.

Vishal Parekar                                                                               ...18





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33. The conspectus of the aforesaid consideration is that the

petitioners could not succeed in demonstrating that the main duties

discharged by the complainants/ respondents were supervisory and

managerial, they had the authority to take decision and bind the

petitioners and also supervise the work of the officials subordinate

to them.

34. Once, this finding of fact recorded by the learned Member,

Industrial Court is found to be justifiable, the inference of unfair

labour practices is a matter of necessary corollary as the

complainants were deprived of the benefit of the settlement which

was extended to similarly circumstanced employees categorized as

workman.

35. The endevour of Mr. Pai to bank upon the categorization and

grading of employees, on the establishment of petitioner No. 1, is

required to be stated to be repelled as that is of no consequence, for

what matters is the nature of the duty and not designation or

categorization by the employer.

36. For the foregoing reasons, no case for interference in exercise

of writ jurisdiction is made out.

Vishal Parekar                                                                   ...19





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        Hence, the following order.



                                    ORDER

1] The petition stands dismissed.

2] Rule discharged.

3] In the circumstances, there shall be no order as to costs.

4] The Interim Application(s), if any, stand(s) disposed.

                                            (N. J. JAMADAR, J.)




Vishal Parekar                                                                   ...20