Bombay High Court
Dr. Balabhai Nanavati Hospital vs Ashoka Shetty And Anr on 11 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:603
WP1310-2009.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1310 OF 2009
Dr. Balabhai Nanavati Hospital
S.V. Road, Vile Parle (West),
Mumbai - 400 056 ...Petitioner
Versus
1 Ashoka Shetty
B-303, Symphony, Old Raviraj Complex,
Jesalpark, Bhayander (East),
Thane - 401 105
2 The Presiding Officer, Third Labour Court,
Mumbai, New Administrative Building,
Bandra (E), Mumbai - 400 051 ...Respondents
Mr. R. V. Paranjape, a/w T. R. Yadav, for the Petitioner.
Mr. Vinay Menon, a/w Kirti Shetty and Deep Samant, for
Respondent No.1.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 9th AUGUST, 2023
PRONOUNCED ON: 11th JANUARY, 2024
JUDGMENT:
-
1. This petition under Article 226 of the Constitution of India
raises usual controversy as to whether the employee -
respondent No.1, herein, is a workman within the meaning of
Section 2(s) of the Industrial Disputes Act, 1949 ("the I.D. Act").
2. Background facts leading to this petition can be
summarized as under:
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(a) The petitioner is a Hospital run by a Public
Charitable Trust. It employs about 1100 employees in different
grades and capacities. Respondent No.1 was appointed on a
temporary basis as a, "Food Service Supervisor" with effect from
15th October, 1990. In terms of the appointment order,
respondent No.1 was to perform the duties as may be assigned
to respondent No.1 by the Medical Superintendent and other
Superior Officers. On 4th February, 1991, respondent No.1 was
confirmed in the said post.
(b) The petitioner claimed on 11th February, 2003, a
duty list captioned as 'job description' was served on respondent
No.1. It is the claim of the petitioner that respondent No.1 had
all along been discharging supervisory duties. As Food Service
Supervisor the respondent had about 30 kitchen ward-boys
working under his direct supervision and control. He was in-
charge of and responsible for food service to the patients in the
wards in the entire hospital. Respondent No.1 was to report to
Food Service Manager, who was the Head of the Department.
(c) It seems that disputes arose between the
Management and Respondent No.1. On 12th February, 2003, a
show cause notice was served on respondent No.1 alleging
misconduct under Rule 22(a)(l) and (x) of the Model Standing
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Orders. In the wake of a serious complaint lodged by Mr. Rohan
M. Uchil, Food Service Manager, dated 16th August, 2004, a
charge-sheet was served on respondent No.1 alleging serious
misconduct under Rule 22(a), 22(k) and 22(l) of the Model
Standing Orders under the Maharashtra Industrial Employment
(Standing Order) Rules, 1959. Enquiry commenced. Post
enquiry, the Enquiry Officer found respondent No.1 guilty of
certain counts of misconduct. Eventually, respondent No.1
came to be dismissed from service by an order dated 24 th
January, 2006.
(d) Respondent No.1 raised an industrial dispute. Upon
failure of conciliation proceedings, the appropriate Government
referred the dispute to the Labour Court for adjudication.
(e) Respondent No.1 filed a statement of claim in
support of the demand of reinstatement. The petitioner resisted
the claim by filing a written statement. The tenability of the
reference was assailed by contesting the status of respondent
No.1 as a workman. Thereupon, the learned Presiding Officer
framed a preliminary issue: Whether the respondent - second
party is a workman under I.D. Act?
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(f) The parties led evidence. Respondent No.1 examined
himself. Mr. Rohan Uchil, the Food Service Manager, deposed
on behalf of the petitioner - employer.
(g) After appraisal of the pleadings, evidence adduced by
the parties and the documents tendered for his perusal, the
learned Presiding Officer, 3rd Labour Court, Mumbai, was
persuaded to answer the preliminary issue in the affirmative
and hold that respondent No.1 was a workman within the
meaning of Section 2(s) of the I.D. Act.
(h) The learned Presiding Officer was of the view that
though the designation of the post held by respondent No.1
was, "Food Service Supervisor" yet in substance respondent
No.1 discharged the duties of a workman. The learned Presiding
Officer was also of the view that as the petitioner - employer had
proceeded against respondent No.1 in accordance with the
Model Standing Orders applicable to a workman the decision of
this Court in the case of S. A. Sarang vs. W. G. Forge and Allied
Industries, Ltd. and ors.1 governed the facts of the case and the
petitioner - employer was estopped from denying the status of
the respondent No.1.
3. Being aggrieved by and dissatisfied with the aforesaid
determination of the preliminary issue, the petitioner - employer
1 1996(1) CLR 387.
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has invoked the writ jurisdiction of this court. The principal
ground of challenge is that the learned Presiding Officer, Labour
Court, committed a manifest error in not correctly appreciating
the nature of the duties performed by respondent No.1, which
were primarily of supervisory nature. The learned Presiding
Officer misread the appointment orders and the duty list
captioned 'job description' and also the evidence adduced by the
parties especially the admissions in the cross-examination of
the respondent No.1. Secondly, the learned Presiding Officer
was not justified in placing reliance on the decision in the case
of S. A. Sarang (supra) as the said decision was further clarified
and distinguished by a Division Bench of this Court in the case
of German Remedies vs. R. D. Lotlikar2.
4. By an order dated 28th July, 2009, Rule was issued and
the proceedings before the learned Labour Court were stayed.
5. I have heard Mr. R. V. Paranjape, the learned Counsel for
the petitioner, and Mr. Vinay Menon, the learned Counsel for the
respondent, extensively. The learned Counsel took the Court
through the pleadings, evidence and documents on record. The
learned Counsel have also tendered a short synopsis in support
their respective submissions.
2 2008(2) CLR 1006.
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6. Mr. Paranjape, the learned Counsel for the petitioner,
submitted that the learned Presiding Officer, Labour Court, did
not pose unto himself the correct question. It is the nature of
the duties which is of determinative significance. The learned
Presiding Officer unjustifiably discarded the evidence and the
material which unmistakably demonstrates that respondent
No.1 was rendering services as Supervisor. Laying emphasis on
the 'job description' dated 11th February, 2003, Mr. Paranjape
submitted that most of the duties which respondent No.1 was
required to perform, were purely supervisory in nature. Yet, the
learned Presiding Officer, Labour Court, returned a finding that
respondent No.1 was a workman without following the ratio of
the judgments of this Court in the cases of Reserve Bank of
India vs. Waman Baburao Shinde and others 3, Vinayak
Baburao Shinde vs. S. R. Shinde and others4, Vandana Joshi
vs. Standard Chartered Bank Ltd., Mumbai 5 and Inthru
Noronha vs. Colgate Palmolive (India) Ltd. and others6.
7. Mr. Paranjape also placed reliance on the judgments of the
Supreme Court in the case of Burmah Shell Oil Storage and
Distribution Company of India Ltd. Vs. The Burmah Shell
3 (1998) 3 LLJ (supp) 275.
4 (1985) 1 CLR 318.
5 2011 (1) Mh. L.J. 415
6 2005(2) Mh. L.J. 884.
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Management Staff Association and others 7 and the decisions of
this Court in the cases of John Joseph Khokar vs. B. S.
Bhadange and ors.8 Shrikant Vishnu Palwankar vs. Presiding
Officer, First Labour Court and ors.9 and Ramesh son of
Ramrao Wase vs. Commissioner, Revenue Division, Amravati10 to
bolster up the submission that the learned Presiding Officer did
not apply the correct test and, therefore, the impugned order is
legally unsustainable.
8. Mr. Paranjape would further urge that the reliance by the
learned Presiding Officer on the judgment in the case of S. A.
Sarang (supra) was wholly unjustifiable. Mr. Paranjape urged
that where there is overwhelming evidence to show that the
employee was discharging the duties of a Supervisor, mere
reference to the provisions of Model Standing Orders, that too
applicable to a Supervisor, would not clothe such employee with
the status of a 'workman'. Mr. Paranjape submitted that in the
case at hand the petitioner - employer had made it abundantly
clear that the petitioner did not reckon respondent No.1 as a
workman as he was discharging supervisory duties, yet to give a
fair opportunity, the enquiry was initiated in accordance with
the Model Standing Orders.
7 1970(3) SCC 378.
8 1997(3) Mh. L.J. 907.
9 1992 I L.L.N.
10 1995 - II L.L.N. 178.
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9. Mr. Menon, the learned Counsel for respondent No.1,
would submit that the determination by the learned Presiding
Officer, Labour Court, is flawless. At the outset, Mr. Menon
submitted that respondent No.1 has suffered huge prejudice as
the petitioner - employer assailed the order on preliminary issue
and resultantly the industrial dispute awaits adjudication for
over 14 years. The observations of the Supreme Court in the
case of D. P. Maheshwari vs. Delhi Administration and others 11
find practical application in the case at hand, submitted Mr.
Menon.
10. Secondly, Mr. Menon urged, having resorted to the
provisions contained in Model Standing Orders applicable to a
workman, consistently, it was not open to the employer to
question the status of the respondent. The decision of this
Court in the case of S. A. Sarang (supra) squarely governs the
facts of the case.
11. According to Mr. Menon, the test to be applied to
determine the status of employee is rather well settled and, in
the case at hand, the petitioner failed to bring any material on
the record of the Court to demonstrate that respondent No.1
was discharging supervisory functions. The endeavour of the
petitioner to bank upon the duty list captioned 'job description'
11 (1983) 4 SCC 293.
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was severely criticized by Mr. Menon on the ground that there
was no reason to provide 'job description' in the year 2003 when
respondent No.1 had been discharging the same duties since the
year 1990. In fact, respondent No.1 had refused to accept the
said 'job description' as the petitioner was required to give a
notice of change under Section 9-A of the I.D. Act. Mr. Menon
would urge that it is well recognized that designation of the post
does not matter and it is the substantive work which an
employee is called upon to perform that determines his status.
At best, respondent No.1 can be said to have been appointed to
do supervisory work and not in a supervisory capacity.
12. To lend support to the aforesaid submissions, Mr. Menon
placed reliance on the decisions of the Supreme Court in the
cases of National Engineering Industries Ltd. Vs. Kishan
Bhageria and ors.12 S. A. Sarang (supra), Aloysius Nunes vs.
Thomas Cook India13 2000(3), Carona Ltd. vs. Anand
Manjunath Rao and ors.14, Cricket Club of India and anr. vs.
Baljit Shyam and another15 and Andhra Scientific Co. Ltd. vs. A.
Sheshagiri Rao and other16.
12 AIR 1988 SCC 329.
13 (2000) 3 Bombay 358.
14 (2018) 2 CLR 552.
15 1998 (3) LLN 994.
16 AIR 1967 SC 408.
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13. The perennial controversy as to whether an employee
before the industrial adjudicator satisfies the description of a
workman confronts the court/tribunals. An answer has to be
explored in the light of the governing statutory provision.
Section 2(s) of the I.D. Act defines workman. The legal position
has crystalized to the effect that the nomenclature of the post is
not of decisive significance. Rather, it is the nature of the
substantive duties which the employee is called upon to perform
that furnishes a surer test for determination of the status of the
concerned employee.
14. In the case of S. K. International and others vs. Ashok T.
Tambe Original17 I had an occasion to consider the import of the
term 'workman' especially where the employees perform
multifarious duties. The observations in paragraphs 26 to 30
read as under:
"26. Section 2(s) of the ID Act, 1947 defines the expression
workman to mean any person employed in any industry to
do any manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward. In the case of
H. R. Adyanthaya and ors. vs. Sandoz (India) Ltd. (1994) 5
SCC 737, the Constitution Bench of the Supreme Court
enunciated that to be qualified to be workman under
Section 2(s), the person must be employed to do the work
which falls in any of the specified categories, manual,
unskilled, skilled, technical, operational, clerical or
supervisory. To put it in other words, it is not enough that a
person is not covered by any of the four exceptions to the
definition. It is also fairly well settled that the burden is on
the person, who asserts the status of the workman under
Section 2(s) to establish with reference to the dominant
17 2023 SCC Online Bom 2583.
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nature of his duties that the work which the said person
performs falls within one of the specified categories under
Section 2(s) of the Act, 1947.
27. In the case of Burmah Shell Oil Storage and
Distribution Company of India Ltd. V/s. The Burmah Shell
Management Staff Association and Ors. (1970) 2 LLJ 590
the Supreme Court adverted to a situation where an
employee is entrusted to discharge multifarious duties. In
such cases, the Supreme Court held, it would be necessary
to determine under which classification the employee will
fall for the purpose of finding out whether he does not go
out of the definition of "workman" under the exceptions. The
principle is now well settled that for this purpose, a
workman must be held to be employed to do that work
which is the work he is required to do, even though he may
be incidentally doing other types of work. The Supreme
Court referred to its earlier decision in the case of Ananda
Bazar Patrika (P) Ltd. Vs. Workmen (1970) 3 SCC 248,
where the principle was enunciated as under:
"3. The question whether a person is employed in a
supervisory capacity or on clerical work, in our
opinion, depends upon whether the main and principal
duties carried out by him are those of a supervisory
character, or of a nature carried out by a clerk. If a
person is mainly doing supervisory work, but,
incidentally or for a fraction of the time, also does
some clerical work, it would have to be held that he is
employed in supervisory capacity; and, conversely, if
the main work done is of clerical nature, the mere act
that some supervisory duties are also carried out
incidentally or as a small fraction of the work done by
him will not convert his employment as a clerk into one
in supervisory capacity. ...."
28. In the case of Arkal Govind Raj Rao vs. CIBA Geigy
and India Ltd. (1985) 3 SCC 371, another three-judge Bench
of the Supreme Court re-exposited the principle in the
following words :
"6. where an employee has multifarious duties and a
question is raised whether he is a workman or
someone other than a workman the Court must find
out what are the primary and basic duties of the
person concerned and if he is incidentally asked to do
some other work, may not necessarily be in tune with
the basic duties, these additional duties cannot
change the character and status of the person
concerned. In other words, the dominant purpose of
employment must be taken into consideration and the
gloss of some additional duties must be rejected while
determining the status and character of the
person. ......"
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29. A useful reference in this context can also be made to
a decision of the Supreme Court in the case of S.K.Maini V/
s. M/s. Carona Sahu Company Ltd. and Anr . (1994) 3 SCC
510 wherein it was enunciated that 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 commercial organisations quite a large number of
employees are often required to do more than one kind of
work. 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 9 (1985) 3 SCC 371. out of it. In this
connection, reference may be made to the decision of this
Court in Burmah Shell Oil Storage (supra). In All India
Reserve Bank Employees' Assn. V/s. Reserve Bank of India
(AIR 1966 SC 305), it has been held by this Court that the
word 'supervise' and its derivatives are not words of precise
import and must often be construed in the light of context,
for unless controlled, they cover an easily simple oversight
and direction as manual work coupled with the power of
inspection and superintendence of the manual work of
others. It has been rightly contended by both the learned
counsel that 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 defined in
Section 2(s) of the Industrial Disputes Act.
30. The aforesaid enunciation indicates that it is the
dominant nature of work or duties which determines the
status and not the incidental work, which an employee may
be called upon to perform. Herein lies the task before the
industrial adjudicator or Court to decipher the dominant
nature of duties and remove the gloss. Often the industrial
adjudicator and Court come across a verbose and labyrinth
description of the duties. Still an effort is warranted to
remove the gloss and find out the dominant nature of the
duties."
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15. In the backdrop of the controversy at hand a reference to
two more judgments of the Supreme Court may be
advantageous. In the case of All India Reserve Bank Employees
Assn. vs. Reserve Bank of India18 the Supreme Court enunciated
that the word "supervise" and its derivatives are not words of
precise import and must often be construed in the light of
context, for unless controlled, they cover an easily simple
oversight and direction as manual work coupled with a power of
inspection and superintendence of the manual work of others.
16. In the case of National Engineering Industries (supra), on
which reliance was placed by Mr. Menon, after following the
decision in the case of D. P. Maheshwari (supra), the Supreme
Court expounded the nature of the duty of a Supervisor as
under:
"7. In P. Maheshwari v. Delhi Administration & Ors .,
[1983] 3 S.C.R. 949 the question whether a person was
performing supervisory or managerial work was the
question of fact to be decided bearing in mind the correct
principle. The principle therefore is, one must look into the
main work and that must be found out from the main
duties. A supervisor was one who could bind the company
to take some kind of decision on behalf of the company. One
who was reporting merely as to the affairs of the company
and making assessment for the purpose of reporting was
not a supervisor. See in this connection Black's Law
Dictionary, Special Deluxe, Fifth Edition. At page 1290,
"Supervisor" has been described, inter alia, as follows:
"In a broad sense, one having authority over
others, to superintend and direct. The term
'supervisor' means any individual having
authority, in the interest of the employer, to hire,
18 AIR 1966 SCC 305.
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transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other
employees, or responsibility to direct them, or to
adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment."
(emphasis supplied)
17. The Supreme Court has, thus, held that a Supervisor was
one the who could bind the company to take some kind of
decision on behalf of the Company. Conversely the one who
makes assessment for the purpose of reporting is not a
Supervisor.
18. In the case of John Khokar (supra), on which reliance was
placed by Mr. Paranjape, the legal position was summarized as
under:
"14. The position that emerges from the aforesaid
discussion is that in determining the question whether a
person employed by the employer is workman under Section
2(s) of Industrial Disputes Act or not, the Court has
principally to see main or substantial work for which the
employee has been employed and engaged to do Neither the
designation of the employee is decisive nor any incidental
work that may be done or required to he done by such
employee shall get him outside the purview of workman, if
the principal job and the nature of employment of such
employee is manual, technical or clerical. In hierarchy of
employees, some sort of supervision by the employee over
the employees of the lower ladder without any control may
not by itself be sufficient to bring that employee in the
category of supervisory, yet if the principal job of that
employee is to oversee the work of employees who are in the
lower ladder of the hierarchy and he has some sort of
independent discretion and judgment, obviously such
employee would fall within the category of supervisor. Each
case would depend on the nature of the ditties
predominantly or primarily performed by such employee
and whether such function was supervisory or not would
have to be decided on facts keeping in mind correct
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principles. Where the employee possesses the power of
assigning duties and distribution of work such authority of
employee may be indicative of his being supervisor doing
supervision. In a broad sense supervisor is one who has
authority over others : someone who superintends and
directs others. An employee who in the interest of the
employer has responsibility to directly control the work done
by the other workers and if the work is not done correctly to
guide them to do it correctly in accordance with norms shall
certainly be a supervisor. A supervisory work may be contra
distinguished from managerial and administrative work and,
so also a supervisor from manager and administrator.
Supervisor's predominant function is to see that work is
done by workers under him in accordance with the norms
laid down by the management : he has no power to take any
disciplinary action."
(emphasis supplied)
19. In Vandana Joshi (supra) a Division Bench of this Court,
inter alia, observed the fact that the employee was not vested
with the power to sanction leave or to initiate disciplinary
proceedings is not conclusive of the question as to whether the
work that is performed by the employee is of managerial or
supervisory category. Whether leave can be sanctioned and
whether disciplinary proceedings can be initiated is one of the
circumstances which may be considered in the balance. The
balance, however, has to be drawn on the basis of the over all
nature of the duties and responsibilities performed and the
dominant nature of the work that is performed by the employee.
20. From a survey of the aforesaid precedents it becomes
evident that the judgments, apart from enunciating the
foundational premise of the nature of main duty of the
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concerned employee, advert to various facets of supervisor or
managerial work. In the very nature of the things, the enquiry
as to the status of the concerned employee, in a given case, is
rooted in facts. It may not, therefore, be appropriate to readily
import the decision in one case based on a particular facet of
the duty of the concerned employee found in that case to
another with a completely different fact-situation.
21. Reverting to the facts of the case, first and foremost it is
imperative to note that respondent No.1 came to be appointed as
a Food Services Supervisor in the year 1990. Apparently, the
position of respondent No.1 did not alter till he came to be
dismissed. It does not appear that a specific job description was
furnished to respondent No.1 when he was initially appointed.
Vide letter dated 11th February, 2003 respondent No.1 was
sought to be clothed with the following job description:
"Job Description:
1. Supervisors/Asst. Supervisors are required to work in
any shift as per the need of the Food Services Dept. in
the Hospital during the timing from 6 am. to 10 pm.
2. You must see to the hygiene and cleanliness of the
kitchen and food service area.
3. You are responsible for the regular and periodical
theory of the kitchen and other area of the food
service.
4. You must keep a check on the hygine of the concerned
personnel.
5. You must test the food after it is ready.
6. You must supervise the preparation, cooking and
distribution of the food.
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7. You must check the quality and quantity of the goods
received.
8. You should supervise the distribution of the food from
trolleys in the ward pantries.
9. You must supervise the work of the department in the
entire hospital area existing as well as any changes
thereof.
10. You should intent the raw materials from the store on
a daily basis.
11. You must take rounds in the ward pantries after meal
trolleys have gone to the floors.
12. You must plan the duty roaster and schedule for the
staff.
13. You should maintain attendance, leave schedule and
overtime record for the entire kitchen staff.
14. You should maintain all books of record necessary for
running of the department.
15. You should attend to the complaints of the patient of
the staff.
16. You should perform any other job as given from time to
time by their superiors.
There will also be a flexibility on your side towards in
any other related department."
22. There is material to indicate that respondent No.1 refused
to accept the service of the said 'job description' in person and
therefore it was served upon respondent No.1. Evidently, the
entries in the aforesaid job description refer to, emphasis and
underscore the supervisory aspects of job profile, repetitively.
However, that is not decisive de hors the aspect whether the
same amounts to change in the conditions of service.
23. What was the nature of the duties performed by
respondent No.1. The stand of the parties has already been
noted. The manner in which the parties fared in the cross-
examination assumes significance. It was elicited in the cross-
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examination of respondent No.1 that there was a kitchen
manager above him. The kitchen/ward boys were serving foods
etc. to the patient. He used to supervise the services rendered
by them. If somebody complained about the service of ward
boys he used to report it to the Manager of the kitchen or
superior. He went on to admit that before serving daily food to
customer he used to taste it and if found below standard he
used to report the same to the Manager.
24. It would be contextually relevant to note that Mr. Rohan
Uchil, employee's witness, conceded in the cross-examination
that respondent No.1 had refused to accept the job description.
However, later on, respondent No.1 did not dispute the same.
Respondent No.1 and other staff used to lodge complaints about
the problems in the food service. He had the power to sanction
leave. Conversely, respondent No.1 had no power to initiate any
action against cooks or ward boys. According to Mr. Uchil the
control which respondent No.1 exercised meant, 'to supervise
whether food was being properly cooked as per the standard
norm.'
25. Appraising the aforesaid evidence the learned Presiding
Officer came to the conclusion that though the designation of
the post included the term 'supervisor' yet respondent No.1
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essentially supervised the services of a person cooking the food
and distributing the food to the patients. The substantive work
of respondent No.1 was to cause smooth distribution of the
cooked food after tasting it. There were no other attributes
which rendered the work of respondent No.1 supervisory in
nature.
26. Should the aforesaid finding of fact arrived at by the
Labour Court be interfered with by this Court in exercise of
extraordinary writ jurisdiction, is the moot question.
27. It is trite in exercise of certiorari jurisdiction the Court
proceeds on an assumption that the jurisdictional court has the
jurisdiction to decide wrongly as well as rightly. Thus, the High
Court would not assign to itself the role of an Appellate Court
and venture to re-appreciate the evidence and substitute its own
finding in place of those arrived at by the Court below. The
High Court would interfere where the Court below is found to
have assumed jurisdiction not vested in it, exceeded its
jurisdiction or otherwise acted in utter disregard to the
governing law, rules of procedure or principles of natural justice,
where applicable, resulting in a failure of justice. To put it in
other words, the supervisory jurisdiction is not available to
correct a mere error of fact or law unless the error is manifest or
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apparent on the face of the proceedings. (Surya Dev Rai vs.
Ram Chander Rai and others (2003) 6 SCC 675).
28. On the aforesaid touchstone, if the material on record is
considered, the situation which emerges is that the primary
duty of respondent No.1 was to taste the food and report to the
superior officer if the food did not meet the requisite standard.
Secondly, the respondent was to supervise the serving of the
food to the patients in the different wards. The aforesaid main
twin-duties of respondent No.1 clearly fall within the ambit of
manual or operational duties. The element of supervision which
respondent No.1 exercised cannot be said to be of such a nature
as to clothe him with an authority to bind the company by his
decisions. Nor respondent No.1 exercised a pervasive control
over the kitchen/ward boys. On an overall evaluation of the
nature of the duties discharged by respondent No.1, the profile
seems to be that of oversight and direction. Respondent No.1
while discharging the manual work of tasting the food was
vested with a power of inspection and superintendence of the
manual work of kitchen/ward boys in the matter of cooking and
service of food. In this view of the matter, the finding recorded
by the learned Presiding Officer, Labour Court, cannot be said to
be based on no evidence.
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29. I find substance in the submission of Mr. Menon that the
endeavour of the employer to saddle respondent No.1 with
futuristic duties, extracted above, does not gloss the true import
of the duties performed by respondent No.1. There is material to
indicate that there were other food service supervisors apart
from respondent No.1. The food service manager used to prepare
the roster of the food supervisors. In that context, the aforesaid
duties in the 'job description' which have an element of decision
making at an individual level do not fit in with the plurality of
food service supervisors.
30. This being construct of the nature of duties of respondent
No.1, it may not be necessary to elaborately delve into the
question as to whether the learned Presiding Officer, Labour
Court, was justified in placing reliance on the decision in the
case of S. A. Sarang (supra). In the case of S. A. Sarang (supra),
where the employer had taken action against the employee
resorting to Model Standing Orders, a learned Single Judge of
this Court held that if an employer continuously and
consistently proposes to take action against its employee on the
footing that he is covered by the Model Standing Order (thereby
implying that the employee is a workman within the meaning of
the Act) then such employer must be estopped from denying the
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said fact when the dispute regarding the dismissal of the
employee finally lands up before an industrial adjudicator.
31. In the case of German Remedies (supra) a Division Bench
of this Court clarified the aforesaid judgment by observing that
merely because the procedure for termination of the services
which was adopted was akin to the rules provided regarding
termination of services of a workman under Model Standing
Orders that itself would not attract the principle of estoppel
against the employer nor it would dis-entitle the employer from
denying the claim of respondent being the employee. With
reference to the aforesaid observations in the case of S. A.
Sarang (supra) it was clarified that, "The expression "estoppel"
used in the said ruling has nothing to do with the rule of
estoppel. The said expression has been used specifically to
disclose the procedure to be adopted by the industrial
adjudicator while assessing the evidence led by the parties. In a
case where the complainant places sufficient material on record
which would disclose a consistent conduct on the part of the
employer to treat the complainant as his employee and this is
revealed from the material placed by such employee before the
Court, in that case the contention raised on behalf of the
employer denying the status of the complainant has to be
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rejected. It is in that context the expression, "estoppel" has
been used in paragraph 6 of the said decision and it has
nothing to do with the rule of estoppel as is to be found under
Section 115 of the Evidence Act."
32. It is imperative to note that in the order of confirmation
dated 4th February, 1991 it was specifically stipulated that the
conditions of service of respondent No.1 would be governed by
Model Standing Orders or such other rules and regulations of
the hospital and also by the terms of the said appointment
letter. As noted above, a show cause notice was served on 12 th
February, 2003 alleging misconduct within the meaning of Rule
22(a)(l) and (x) of the Model Standing Orders. On 22 nd February,
2003 a warning was issued to respondent No.1 alleging
misconduct under Rule 22(h) and 22(n) of the Model Standing
Orders. The charge-sheet dated 1st September, 2004 levelled
charges of misconduct under Rule 22(a)(k) and (l) of the
Maharashtra Industrial Employment (Standing Order) Rules,
1959.
33. Mr. Paranjape attempted to salvage the position by
canvassing a submission that the Model Standing Orders apply
to both clerical and supervisory staff. Model Standing Orders
under Schedule I of the Maharashtra Industrial Employment
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(Standing Orders) Rules, 1959 for workman employed in the
establishment to do clerical or supervisory work are the same.
34. This submission is required to be appreciated in the
totality of the circumstances. In the confirmation order issued
in 1991 it was stipulated that the respondent No.1's services
would be governed by the Model Standing Orders. It is not the
case that there has been any change in the position of
respondent No.1 since then. He continued to hold the same
post as Food Service Supervisor.
35. For the foregoing reasons, I do not find any justifiable
reason to interfere with the impugned order, in exercise of
extraordinary writ jurisdiction.
36. Hence, the following order:
:ORDER:
Petition stands dismissed.
Rule discharged.
[N. J. JAMADAR, J.]
