Management Of Roneo Vickers India ... vs Lt. Governor Of Delhi And Ors.
1994 Latest Caselaw 98 Del

JUDGMENT

C.M. Nayar, J.

(1) These two writ petitions have been filed by the Management and the Workman Shri N.L. Khosla to impugn the Award dated August 29, 1990, of Shri Ajit Bharihoke, Presiding Officer, Labour Court Viii in a reference No. F.26 (92)/68-Lab. dated 25/26.3.1968, made by the Lt. Governor of Delhi in exercise of the powers purported to have been conferred by Sections 10(1)(c) and 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act').

(2) Shri N.L. Khosla was employed by the erstwhile "Roneo Limited" as a Salesman in the year 1962 in New Delhi office on probation on a salary of Rs. 200.00 per month. Shri Khosla was also entitled to commission over and above the salary, which he received. The letter of appointment dated August 16,1962, was issued to the petitioner and the operative part reads as follows: "RONEOLIMITED H.O.for India P13 Mission Row Extn Calcutta. Incorporated in England Ref. 44 16th August, 1962. Mr.N.L. Khosla, 11/19 East Patel Nagar, New Delhi. Dear Sir, With reference to your application of 7th July and your subsequent conversation with our District Manager, New Delhi and East Punjab, we agree to appoint you as a Salesman in our New Delhi Office as from the 9th instant on the following terms and conditions: Salary-. You will receive a salary of Rs. 200.00 (Rupees two hundred only) per month. Commission: You will be paid the following rates of commission on all orders booked by you personally at full list prices for Roneo V-80 suspended filing systems, folding furniture and steel racks. In cases, where discounts or special reduced rates have to be extended to procure orders, half the following rates of commission will be paid. These rates of commission will also be paid on all direct orders for the above goods, provided you have reported an effective call within two months prior to the date of the said in question. It is distinctly understood that you will be entitled to the above commission monthly when the amount has been realised by us is full. No commission, however,will be paid to you on delivery, packing, labour, forwarding and other miscellaneous charges in respect of such supplies. A consolidated amount of Rs. 25.00 (Rupees twenty five only) per month will be paid to you as conveyance allowance. Territory: Your territory for canvassing will be supplied by your District Manager and this may be changed or altered at any time. Daily report you will make out a report daily and this should be handed over to the District Manager. In case of goods returned by customers on which commission has been paid to you, the company reserves the right to recover the amount of such commission from any sums due to you. It is to be clearly understood that while you are employed by us, you are forbidden to take up any other work whatsoever and observe and comply with all lawful directions and instructions given you by the Company or the General Manager and not to disclose to anyone information concerning the company's business or affairs. You shall not except under specific instructions of the company receive any money for any order, or collect any debt due to the company nor give any receipt for company's money, nor shall you accept any orders, otherwise than in the name of and as salesman for the company. Any dispute arising out of or in any way connected with you employment with the company whether during or after the termination of your services, should be referred to the General Manager whose decision will be final. You will be on probation for three months and during this period the company reserves the right to dispense with your services without assigning any reasons. Please intimate your acceptance of the above terms and conditions on the carbon copies of this letter. Yours faithfully, for Roneo Vickers India Limited Sales MANAGER"

(3) The respondent No. 3, therefore, came on the roll of the company on the terms and conditions as specified above. The petitioner company Roneo Vickers India Limited is the successor company of the erstwhile Roneo Limited incorporated in England and the Indian business of the said company was taken over on and from July 1, 1967 and the Civil Writ Petition No. 250/91 has been filed by this Company to impugn the Award of the Labour Court. The petitioner further alleges that Shri Khosla had proved to be failure in the New Delhi market and consequently was transferred from Delhi to Bombay with a view to explore another market. The order of transfer is dated December 7,1967, and the respondent was asked to report to Bombay Regional Office on 2nd January, 1968. It is stated that Shri Khosla in the first instance did not join the Bombay office for his personal reasons, as well as, for his alleged sickness. The said respondent also raised an industrial dispute on being dis-satisfied with the order of his transfer from Delhi to Bombay and invoked the machinery for redressal of his grievance, as provided under the provisions of the Act. All possible endeavors made by the Conciliation Officer, to bring about the settlement of dispute proved futile and the said Conciliation Officer submitted a report in this regard. An order dated 25th and 26th March, 1968 was passed to the effect that from a report submitted by the Conciliation Officer, Delhi, under Section 12(4) of the Industrial Disputes Act, 1947, ; it appears that an industrial dispute exists between the Management of M/s. Roneo Vickers India Limited, Connaught Circus, New Delhi and its workman Shri N.L. Khosia, as reported by the Shops and Commercial Karamchari Sangh( Registered). In exercise of the powers conferred by Section 10(l)(c) and 12(5) of the Act, the said dispute was referred to the Labour Court constituted for the Union Territory of Delhi and the terms of reference can be reproduced as below: "whether the transfer of Shri N.L.Khosla from Delhi to Bombay is illegal and or unjustified and if so to what relief is the workman entitled?" The matter was adjudicated in the Court of Shri Ajit Bharioke, Presiding Officer, Labour Court No.VIII and the award was given on August 29, 1990. Respondent No. 3 in his statement of claim stated that he was originally employed by the Delhi Office of M/s. Roneo Limited, a British Company on August 9, 1962 as a Salesman for New Delhi Office. M/s. Roneo Vickers India Limited took over the entire business of M/s. Roneo Limited on the terms and conditions, as detailed in the Rules. He was appointed only for Delhi office of the company and as per his service condition his headquarter for the purpose of employment was at New Delhi and the territory for a salesmanship was Delhi and area within a radius of 30 miles of Delhi, subject to variation in territory within the headquarters of Delhi from time to time. Therefore, he could not be transferred outside Delhi. In July, 1964, he was promoted to the post of Sales Supervisor on probation for a period of three months. He, however, was reverted to the post of Salesman with a malafide design to help the named favorites in the company. He further alleged that he was served by the - Management with the order of transfer to Bombay and against such transfer he made representations. According to him the aforesaid transfer from Delhi to Bombay was illegal and unjustified because it was against the terms and conditions of service. It is further alleged that the transfer order is colourable exercise of power c with a motive to victimise the workman because he was a union activist and because of vindictive attitude of Shri Satyapal Ahuja, Director and General Manager of the company.

(4) The Management filed written statement and raised a preliminary objection to the effect that Shri N.L.KhosIa was not a workman, as defined under the Industrial Disputes Act, because he was employed in the respondent-company as a sales representative and his job is not of technical, clerical, supervisory or manual nature. The order of transfer is valid as transfer is an incident of service and the respondent cannot complain against the same. The management raised further objections with which I am not presently concerned because they were not agitated before me at the time of arguments. On the basis of pleadings of the parties, the following issues were framed:

1. Whether Shri N.L. Khosia is not a workman?

2.Whether the dispute under reference is not an industrial dispute? Additional issues were framed on 9.9.1969 and the findings in respect of the same have not been impugned before me. The Labour Court considered the concept of workman, as defined in Section 2(s) of the Act and came to the conclusion on appreciation of evidence on record that one of the main duties of Shri Khosia was to do the designing and installation work for customers and it cannot be said that the designing and installation work which used to consume about half of the days duty hours of Shri Khosia was only small part of his duty. Therefore, Mr. Khosia was held to be a workman and, as such, covered by the provisions of Industrial Disputes Act.

(5) The learned Counsel appearing for the petitioner Management has strenuously argued that the respondent is not a workman, as he was employed as a salesman in the company and apart from salary was also paid commission. He has cited Voltas Ltd. vs. Its Workmen . The passage which has been cited reads as follows: "two other points have been urged on behalf of the respondents. They are with respect to (1) salesmen and (2) apprentices. The tribunal has excluded these two categories from the award of bonus made by it. The respondents contend that they should also have been included. We are of opinion that the decision of the tribunal in this behalf is correct. So far as salesmen are concerned, the tribunal has examined the relevant decisions of other tribunals and has come to the conclusion that salesmen who are given commission on sales are not treated on par with other workmen in the matter of bonus. It has also been found that the clerical work done by salesmen is small and incidental to their duty as such; salesmen have therefore been held not to be workmen within the meaning of the Industrial Disputes Act. The tribunal has pointed out that the commission on an average works out to about Rs. 1000.00 per mensem in the case of sales men and therefore their total emoluments are quite adequate. Besides, the salesmen being paid commission on sales have already taken a share in the profits of the appellant on a fair basis and therefore there is no justification for granting them further bonus out of the available surplus of profits. As for the apprentices,the tribunal has held that there is a definite term of contract between them and the appellant by which they are excluded from getting bonus. Besides, as the appellant has pointed out, the apprentices are merely learning their jobs and the appellant has to incur expenditure on their training and they hardly contribute to the profits of the appellant. The view of the tribunal therefore with respect to apprentices also is correct."

The learned Counsel has next cited the judgment in Management of M/s. May and Baker (India) Ltd. v. Their Workmen, and reference may be made to paragraph 9, which reads as under:

"the next contention on behalf of the company is with respect to the order of reinstatement of Mukherjee. The company's case is that Mukherjee was discharged with effect from April 1, 1954. At that time the definition of the word "workman" under Section 2(s) of the Industrial Disputes Act did not include employees like Mukherjee who was a representative. A "workman" was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward .Therefore, doing manual or clerical work was necessary before a person could be called a workman. This definition came for consideration before industrial tribunals and it was consistently held that the designation of the employee was not of 'great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that word as it existed before the amendment of 56. The nature of the duties of Mukherjee is not in dispute in this case and the only question, therefore, is whether looking to the nature of the duties it can be said that Mukherjee was a workman within the meaning of Section 2(s) as it stood at the relevant time. We find from the nature of the duties assigned to Mukherjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work. In the circumstances the tribunal's conclusion that Mukherjee was a workman is incorrect. The tribunal seems to have been led away by the fact that Mukherjee had no supervisory duties and had to work under the directions of his superior officers.That, however, would not necessarily mean that Mukerjee's duties were mainly manual or clerical. From what the tribunal itself has found it is clear that Mukherjee's duties were mainly neither clerical nor manual. Therefore, as Mukherjee was not a workman his case would not be covered by the Industrial Disputes Act and the tribunal would have no jurisdiction to order his reinstatement. We, therefore, set aside the order of the tribunal directing reinstatement of Mukherjee Along with other reliefs. Reliance is also placed to the judgment in Burmah-Shell Oil Storage and Distributing Co. of India Ltd. v. The Burmah Shell Management Staff Association and Others, to advance the proposition that Sales Engineering Representatives cannot be held to be workmen within the meaning of Industrial Disputes Act. This judgment again highlights the proposition that where the main work to be performed by Sales Representative is promotion of sales and the amount of technical work which he does is all ancilliary to his chief duty of promoting sales and giving advice, he cannot fall in the definition of a workman. On the other hand, it has been argued, as was contended before the Labour Court, that it is settled law that while determining the status of a person as workman, the Labour Court is not supposed to go by the designation of a person. The Court has to look into the nature of the duties of the person concerned and on the basis of his main duties, it should be determined whether he is covered under the definition of the workman, as provided under Section 2(s) of the Act. Reliance is also placed by the respondent workman on the judgments in May & Baker (India) Ltd. (supra) and Burmah Shell Oil Storage and Distributing Co. of India Ltd. (supra) for the proposition which have already been cited by Counsel for the petitioner. Reference is also made to the judgment of the Supreme Court in S.K. Verma v. Mahesh Chandra and Another , where the Court was considering, as to whether, the Development Officers in the Life Insurance Corporation were workmen. The Court came to the conclusion that "one does not have to be carried away by the appellation 'development officer' as the Industrial Tribunal appears to have been. After all, what is in a name? Notwithstanding the glorified designation, we must look to the nature of his duties to discover what precisely a development officer is? The crux of the reasoning is that one has to go behind the letter of appointment or the designation of a person to find out the nature of duties in which he is engaged. The conclusions of the judgment are stated in paragraph 9 and the same may be reproduced as follows: "A perusal of the above extracted terms and conditions of appointment shows that a development officer is to be a whole time employee of the Life Insurance Corporation of India, that his operations are to be restricted to a defined area and that he is liable to be transferred. He has no authority whatsoever to bind the Corporation in any way. His principal duty appears to be to organise and develop the business of the Corporation in the area allotted to him and for that purpose to recruit active and reliable agents, to train them to canvass new business and to render post sale services to policy- holders. He is expected to assist and inspire the agents. Even so he has not the authority to appoint agents or to take disciplinary action against them. He does not even supervise the work of the agents though he is required to train them and assist them. He is to be the 'friend, philosopher and guide' of the agents working within his Jurisdiction and no more. He is expected to stimulate and excite the agents to work, while exercising no administrative control over them. The agents are not his subordinates. In fact, it is admitted that he has no subordinate staff working under him. It is thus clear that the development officer cannot by any stretch of imagination be said to be engaged in any administrative or managerial work. He is a workman within the meaning of Section 2(s) of the Industrial Disputes Act."

To similar effect is the judgment of the Supreme Court in Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay,  and paragraph 6 of the same may be reproduced in this regard:    "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 first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant."  

The law, as laid down in the case of Voltas Ltd. (supra) has no application to the facts of the present case. The Court was dealing with respect to salesmen and apprentices when these two categories were excluded from the award of the bonus by the company. The finding of the Tribunal was that the salesmen who were given commission on sales had already taken the share in the profits of the company on a fair basis and therefore, there was no justification for granting them further bonus out of the available surplus of profits. In the final analysis the Supreme Court has held against giving narrow and restricted meanings to expressions in the Industrial Disputes Act as this is an enactment intending to bring about peace and harmony between labour and Management. The following passage from the judgment in S.K. Verma (supra) will illustrate this proposition:    

 "It is trite to say that Industrial Disputes Act is a legislation intended to bring about peace and harmony between labour and management in an industry and for that purpose, it makes provision for the investigation and settlement of industrial.disputes. It is, therefore, necessary to interpret the definitions of 'industry' 'workman', 'industrial dispute' etc. so as not to whittle down but to advance the object of the Act. Disputes between the forces of labour and management are not to be excluded from the operation of the Act by giving narrow and restricted meanings to expressions in the Act. The Parliament could never be credited with the intention of keeping out of the purview of the legislation small bands of employees who, though not on the managerial side of the establishment, are yet to be denied the ordinary rights of the forces of labour for no apparent reason at all. In Workmen of Indian Standards Institution v. Management of Indian Standards Institution,  this Court had occasion to point out:    "....It is necessary to remember that the Industrial Disputes Act, 1947, is a legislation intended to bring about peace and harmony between management and labour in an 'industry' so that production does not suffer and at the same time, labour is not exploited and discontented and, therefore, the tests must be so applied as to give the widest possible connotation to the term 'industry'.   

Whenever a question arises whether a particular concern is an 'industry', the approach must be broad and liberal and not rigid or doctrinaire. We cannot forget that it is a special welfare legislation we are interpreting and we must place such an interpretation as would advance the object and purpose of the legislation and give full meaning and effect to it in the achievement of its avowed social objective."    so we adopt a pragmatic and not a pedantic approach and we proceed, in considering the question whether development officers in the Life Insurance Corporation are workmen to first consider the broad question on which side of the line they fall, labour or management, and then to consider whether there are any good reasons for moving them over from one side to the other."   

(6) In the present case, the Labour Court has appreciated the evidence on record and came to the conclusion that the job of salesman in the Management Company was two-fold. Firstly, he was required to solicit orders from the prospective customers and secondly he was also required to design the Roneo desk-cabinets or steel racks etc. and the same had to be installed as per requirement of the respective customers. The relevant passages from the Award may be reproduced as follows:    "perusal of catalogue of Roneo desk-cabinets EX.WX /18 will show that under the caption Individual Requirement it is written "each record is designed individually to meet the requirements of the user" this fact clearly show that watchman had to design the record considering specific business and the need of the customers. Thus the workman Shri Khosla in this regard must be correct. From this evidence, it is established on record that one of the main duties of Shri Khosla was to do the designing and installation work for the customers. In my opinion, by no stretch of imagination, it can be said that the designing and installation work which used to consume about half of the days duty hours of Shri Khosla was only small part of his duty."  

The contention of the Management that the designing work on the part of Shri Khosla was only incidental to his main job of sales promotion and, therefore, he was designated as a salesman was categorically rejected. The Labour Court on appreciation of evidence clearly came to the conclusion that one of the main duties of the respondent was to do the designing and installation work of the customers and it cannot be said that the designing and installation work, which used to consume about half of the days duty hours of Shri Khosla was only small part of his duty. The record also established that one of the main duties of Shri Khosla was skilled, manual and technical in nature and thus, he was held to be covered within the definition of workman, as defined under Section 2(s) of the Act. It is settled that appreciation of evidence by Labour Court cannot be faulted when no conclusion is arrived at by drawing 'impermissible inferences' from the evidence. The Labour Court has clearly held that the respondent was a workman within the meaning of the Act and it will not be open for this Court to re-appraise the evidence and arrive at a different conclusion in a petition under Article 226 of the Constitution of India. The finding of the Labour Court in this regard is, accordingly, affirmed.

(7) The next and the last contention by the learned Counsel for the petitioner is that the finding of the Labour Court that the petitioner could not be transferred is perverse and cannot be sustained. The Labour Court has referred to the appointment letter to indicate that the territory for canvassing was to be outlined by the District Manager and this will be changed and altered at any time. There is no other clause in the entire appointment letter about the transfer of workman from one place to another. The relevant rules also do not provide for transfer of employees from one place to another. The perusal of the appointment letter shows that power is vested in the District Manager, to assign duties to the respondent, and the territory is defined in the following paragraph:

"your territory for canvassing will be supplied by your District Manager and this will be changed and altered at any time."

On a specific query, raised by me the Counsel for the Management admitted that the powers of the District Manager are operative only in the concerned District and he has no power to travel beyond his District. The Labour Court has also held that the workman was made to understand that he was to work under the District Manager, New Delhi and East Punjab and he could only be transferred within territories of the aforesaid districts. In view of the facts of this case, the findings of the Labour Court cannot be faulted and held to be perverse and there is no scope for interference in the present petition. The job of the respondent-workman was validly held not transferable to any other place except within the territory of New Delhi and East Punjab District. The finding in this regard is also affirmed. No other point has been raised by the Management in Civil Writ No. 250/91 and the same is dismissed accordingly.

(8) Civil Writ Petition No. 794/91: Shri N.L. Khosla has impugned the award of the Labour Court only on the ground that the relief granted by the Court is inadequate and the same needs to be enhanced. He has claimed a very large sum of money, as referred to in paragraph 26 of the writ petition which runs into different heads and totals about Rs. 1,10,97,202.29. I have heard Shri N.L. Khosla, who has appeared in person and argued at length. There is no denial of the fact that since the date of impugned order of transfer dated December 7, 1967, Shri Khosla has neither worked at Delhi Office nor at Bombay Office. where he was trans ferred. This fact is not denied by him. The Labour Court, however, arrived at the finding that the Management has failed to establish that Shri Khosia has been gainfully employed during this period. The exercise of power under Section 11A of the Industrial Disputes Act, on the facts and circumstances of this case, cannot be held to have been exercised erroneously. The Labour Court has concluded that the matter has been hotly contested for a period of about 20 years and there can be no goodwill between the parties and as an exceptional case, the compensation to the tune of Rs. 50,000.00 was directed to be paid to the workman Shri N.L. Khosla. In any case, Shri Khosla has already reached the age of superannuation in the year 1985 and the only question now arises, as to whether, the impugned award made by the Labour Court is adequate on the present facts. The order of transfer has been held to be bad, but the fact remains that the litigation between the parties was long and protracted and there has been no sign of any re approachment between them even at this belated stage. The Management quite bluntly refused to talk to the workman and did not even pay the amount awarded by the Labour Court till date, as this Court had granted stay of recovery. There is no doubt that the petitioner-workman is also responsible for the problems, as he neither opted to join the Bombay Office under protest and he has not worked for the company during this long period. There is, therefore, some force in the finding of the Labour Court that the workman has also to share some blame in not earning his salary during the period of litigation. The Management, however, made no attempt to rehabilitate the respondent at any stage by offering him a place in Delhi Office and took full advantage of protracted litigation and law's delays to aggravate the misery and plight of the hapless workman.

(9) The question now arises, as to whether, the relief granted by the Labour Court was just and adequate and whether this Court has sufficient powers to intervene in exercise of its jurisdiction under Article 226 of the Constitution of India. There can be no mathematical formula to award compensation but the Court has to view the entire background and circumstances in arriving at a fair conclusion. The jurisdiction of the High Court 'under Article 226 is broad enough to substitute its own order, as what the Tribunal may, in its discretion, do, the High Court too, under Article 226 can, if facts compel, do'. I will seek support from the judgment of the Supreme Court in Gujarat Steel Tubes Ltd. and Others v. Gujarat Steel Tubes Mazdoor Sabha and Others (1980)Vol 2 Supreme Court Cases 593. The said judgment has clearly held that "under Article 226 however, restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice; and, more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand." Paragraph 147 may be reproduced as follows: "the last part of our conclusions relates to the relief which must be fashioned with an eye on mutual equities. We cannot ignore a few raw realities since law is not dogmatics but pragmatics, without temporising on principle. The Management's limitations in absorbing all the large number of discharged employees all at once when, steel, the raw material, is scarce, is a problem. Likewise, their inability to pay huge sums by way of back wages or otherwise, without crippling the progress of the industry, cannot be over-looked but cannot be overplayed after Hindustan Tin Works. Another factor which cannot be wished away is the presence of over a couple of hundred workmen, with varying lengths of service, who may have to be sacked if the old workmen are to be brought back. It is a problem of humanist justice. Lastly, the rugged fact of life must not be missed that some of the workmen during the long years of desperate litigation, might have sought jobs else where and most of them perhaps have, for sheer survival, made at least a starving wage during the prolonged idle interval. This factor too is a weak consideration, tested by the reasoning in Hindustan Tin Works. Moreover, rationalisation of reabsorption of the removed workmen requires attention to the classification of permanent workmen and their casual counterparts. Every proposal must be bottomed on the basic economic fact that the beneficiaries are from the many below the destitution line. This Court has, in a very different context though, drawn attention to the Gandhian guide-line: Whenever you are in doubt.....apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him. It is apt here."

The exercise of jurisdiction by this Court under Article 226 of the Constitution of India for increase of the amount awarded by the Labour Court will be justified in the facts and circumstances of the present case. The award is, accordingly, modified and the compensation is enhanced from Rs. 50,000.00 to Rs. 2.50 lacs. The said amount shall be paid by the Management within four weeks from today. The Writ Petition 794/91 is allowed in the above terms. The petitioner shall also be entitled to costs, which are quantified at Rs. 10,000.00