Young Women'S Christian ... vs Smt. Jyotsna Paul
2004 Latest Caselaw 1166 Del

JUDGMENT

Madan B. Lokur, J.

1. The principal question that arises in this case is whether the Respondent is a workman. There is no dispute that if it is held that the Respondent is a workman, then the termination of her services is contrary to law. The second question that may arise consequentially, is what back wages is the Respondent entitled to.

2. The Respondent was employed by the Petitioner with effect from 16th April 1987 and was regularized on 1st November 1987. Her job title was "Catering Supervisor" (apparently redesignated as Kitchen Supervisor) and her initial salary was Rs. 1500/- per month, the last drawn salary being Rs. 2176/- per month. She was responsible to the Administrative Officer and was required to supervise and control the kitchen and food service staff; she was expected to co-ordinate with other supervisors and junior managers. As regards her hours of work, it was mentioned in her appointment letter that "completion of work and not 'hours' spent is more important." Her specific responsibilities were "to effectively organize and control the food and beverage department." Her periodic responsibility and recurring responsibilities were as follows:

"PERIODIC RESPONSIBILITY

(a) To assist the Administrative Officer to plan and review manpower needs in Kitchen and Service areas. Implement duty rosters, train and develop to improve performance standards; schedule leave rosters;

(b) To plan and review standards particularly in relation to standard purchase specifications (for all equipment and material needs), standard cost and ensure quality control;

(c) To plan and review menus, type of cuisine and standardise recipes in consultation with Administrative Officer and the IGH Committee.

(d) To formulate and review systems of Control for Food and Beverage Department.

RECURRING RESPONSIBILITIES:

(a) Supervise all aspects of Food and Beverage Departments not only to ensure smooth functioning of it but also ensuring good and efficient services;

(b) Ensure high standards of hygiene in the Department - personal hygiene of staff, job hygiene (in relation to work habits), cleanliness of production and sales outlets;

(c) Ensure high standards of discipline amongst the staff;

(d) Co-ordinate with the Administrative Officer for deployment of staff, preparation of duty rosters, sanctioning leave and control of absenteeism;

(e) Co-ordinate with other departments for smooth efficient functioning of Food and Beverage Deptt.

(f) Indent material, equipment required as standard systems laid down by the management;

(g) Maintain all records, forms, registers required in the functioning of Food and Beverage Department;

(h) Handling all correspondence relating to functioning of Food Service Department.

(i) Issue stores to the main kitchen, pantry and keep records of items issued from the main store, prepare purchase requisition slips.

(j) Any other job as assigned from time to time."

3. When the services of the Respondent were terminated on 28th June 1990 she raised an industrial dispute. The question referred for adjudication by a Notification dated 8th April 1991 to the Labour Court was as follows:

"Whether the termination of services of Smt. Jyotsna Paul is illegal and/or unjustified and if so, to what relief is she entitled and what directions are necessary in this respect?"

4. It was the contention of the Petitioner that the Respondent was employed to work in supervisory capacity and, therefore, she was not a workman within the meaning of that word as defined in Section 2(s) of the Industrial Disputes Act, 1947 (the Act). The Labour Court adjudicating the reference framed an issue whether the Respondent was a workman. This was answered in the affirmative in the impugned Award dated 7th June 1999, giving rise to the present writ petition.

5. It is now well settled that the designation given to an employee does not determine whether he is a workman or not - what is important is the nature of duties performed by the employee. Whether an employee is a workman or not is a mixed question of law and fact. These issues as well as the case law in this regard have been discussed in K.H. Pandhi vs. The Presiding Officer, referred to by learned counsels.

6. As far as this case is concerned, what is significant is that the job description of the Respondent quite clearly shows that she was employed to perform managerial and supervisory duties, such as manpower planning (including coordinating with the Administrative Officer for preparation of duty rosters, sanctioning leave and control of absenteeism), ensuring quality control and quality of services, selection of cuisine, meal and menu planning, ensuring hygiene and discipline in relation to the kitchen, food and beverage departments etc. While performing her primary duties, the Respondent was also required to do some clerical and manual work, such as maintenance of records, forms and registers, deployment of staff, handle correspondence, and issue stores etc. Therefore, on the basis of the job description alone, it is extremely difficult to say that the Respondent was a workman as defined in Section 2(s) of the Act. She was primarily a manager and supervisor who was also required to do some clerical and manual work.

7. The Supreme Court has noted in S.K. Maini vs. Carona Sahu Co. Ltd., that there is distinction in what an employee is engaged to do and what he does. I think this distinction is important in the context of the facts of the present case. This is because of the wide variation between the work that the Respondent was employed to do and what she says she did. The job description of the Respondent is mentioned above. What work did she actually perform?

8. In her affidavit by way of examination in chief, the Respondent mentions the work performed by her in only two paragraphs. These read as under:

"That since the date of her appointment she had been performing the duties of preparation of food in the kitchen along with other kitchen staff, checking quality of the food, cleanliness of the kitchen, preparing requisitions for requirement of vegetables, atta, pulses and other materials for preparation of food, to prepare daily menus for the guests, maintenance of the store in which atta, pulses, ghee, sugar, spices etc. used to be kept. She used to issue materials kept in the store for preparation of good daily and used to keep stock of the same, in the stock-register.

That applicant had no disciplinary control over the other kitchen staff. She could not grant leave, recommend increments, issue Memos. She in fact had no Supervisory control over the kitchen staff but was merely rendering her technical knowledge in the matter of preparation of food items and had been herself doing manual and clerical work in this connection. The applicant, in fact, is workman under Industrial Disputes Act."

9. A perusal of the above evidence tendered by the Respondent suggests that she worked basically as a storekeeper and cook. This was also the stand she took during her cross-examination. She was asked and she replied, strangely enough, that she never represented against this to the Petitioner. It has come in the cross-examination of the Respondent, at one place, that there were 3 (and at another place 4) cooks employed by the Petitioner. It is difficult to appreciate why a Catering or Kitchen Supervisor should be asked to work as a cook when there were already 3 or 4 cooks employed by the Petitioner. I find it hard to understand why, under these circumstances, the Respondent, employed as a Catering Supervisor with a specific job description, should work as cook and storekeeper for as long as three years without so much as even a whimper of protest. It appears to me that the Respondent has deliberately overstated her case to somehow or the other bring it within the purview of the Act.

10. Unfortunately, the learned Labour Court has dealt with the issue in a rather simplistic manner. He seems to have accepted the position that the Respondent "was preparing flour, chapattis and pulses" and that supervisory work was incidental. There is no discussion about the duties actually performed by the Respondent. Additionally, the learned Labour Court held that because the Respondent did not allocate work to others or sanction leave or exercise disciplinary control meant that she was a workman within the meaning of the Act. The latter conclusion, at least on the factual aspect, does not seem to be warranted from the job description of the Respondent. Among her periodic responsibilities was to assist the Administrative Officer in manpower management, which involved planning and reviewing manpower needs in the kitchen and service areas, implementing duty rosters and scheduling leave rosters. Her recurring responsibilities included ensuring high standards of discipline amongst the staff, sanctioning leave and controlling absenteeism. There is nothing to show that the Respondent did not do the job that she was employed for.

11. I am of the view that the presumption is that an employee does the job that he or she is employed to do. This is, of course, a rebuttable presumption, the onus being on the employee to show that he or she was actually doing some other work than what he or she was employed to do. In the present case it appears to me, as mentioned above, that the Respondent has overstated her case; in the process she has distorted the truth, which is that she was primarily concerned with managerial and supervisory functions, clerical and manual duties being incidental and occasionally necessary. The Respondent has not been able to successfully rebut the presumption that she was doing what she was employed to do.

12. The learned Labour Court has ignored material evidence on record and has, therefore, reached a conclusion that could not have been reached had all the materials been taken into consideration. The learned Labour Court has erroneously determined a mixed question of law and fact and, therefore, a jurisdictional error has been committed by it. For this reason, this Court can and should interfere to set aside the impugned Award.

13. Consequently, the writ petition is allowed and it is held that the Respondent was not a workman within the meaning of Section 2(s) of the Act. The impugned Award dated 7th June 1999 is set aside.

14. In view of the orders dated 19th September 2003 and 5th March 2004, the pending interim applications being CM No. 10937/2003 and 3688/2004 filed by the Respondent are dismissed.

15. No costs.

Madan B. Lokur, J.

October 26, 2004

Certified that the corrected copy of the judgment has been transmitted in the main Server.