K. George Chacko vs The Secretary (Labour) And Mr. ...
2006 Latest Caselaw 2228 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of order dated 17.11.2000 and 17.7.2001 passed by the Secretary (Labour) declining to refer the alleged dispute raised by the petitioner for adjudication to the Industrial Tribunal.

2. The petitioner was working as a Senior Manager (P&A) with M/s Vama Industries and drawing a salary of Rs. 19,740/- p.m.. He sought to raise a dispute about the termination of his service by the employer. The defense taken by the employer was that the petitioner was not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act. The respondent No. 1 passed an order dated 17.11.2000 refusing to refer the dispute allegedly raised by the petitioner on following grounds:

Sh. K. George Chacko was admittedly working with a management on the post of Senior Manger (P&A) and his last salary drawn was 19740/- p.m.. According to the copies of documents verified was submitted by the management, Sh. Chacko was issuing appointment letters, sanctioning leave to the staff acting as passing authority in respect of medical bills of the staff and automobile repair and expenses authorised signatory in r/o P.F.. documents and issuing instruction to the staff of the need of discipline and punctuality and order regarding delivery of stationary and printing items in the capacity of Sr. Manager (P&A). He was performing duties of managerial and administrative nature and having administrative and financial powers Sh. Chacko is, therefore, not a workman as defined in the Section 2(s) of the Industrial Disputes Act, 1947. As required under the provisions of Sub-section (5) of Section 12 of the Industrial Disputes Act, 1947 a copy of this order be sent to the parties concerned.

3. The petitioner filed a review petition against the order of the appropriate Government and the review petition was also dismissed by the Secretary (Labour) on 17.7.2001 observing as under:

Whereas the matter of dispute between the management of M/s Vama Industries, through its Managing Partner, 523-524, World Trade Centre, Barakhamba Road, New Delhi-110001 and Shri K.George Chacko, B-453, DDA Flats, Ghazipur Dairy Farm, Delhi-110096 was declined to be referred to the Industrial Tribunal/Labour Courts for adjudication vide order of even number dated 17.11.2000 on the ground that Shri K.George Chacko was admittedly working with a management on the post of Senior Manager (P&A) and his last salary drawn was Rs. 19740/- p.m. He was performing duties of managerial and administrative nature and having administrative and financial powers, Sh. Chacko is, therefore, not a workman as defined in Section 2(s) of the Industrial Disputes Act, 1947.

Whereas, the workman has filed review application dated 29.12.2000 to review the Order dated 17.11.2000. The contention of the petitioner is that although his designation was Manger (Personnel & Administration), yet the duties performed by him were of the clerical nature and not of a managerial nature. Therefore, both the parties were called for hearing. The management on the other hand, contented that the petitioner was functioning in the grade of Senior Manger and was drawing salary of Rs. 19740/- per month with other perks, such as the facilities of official vehicle etc. and was performing the managerial / supervisory duties and as such, could not be termed as 'workman' within the ambit of Section 2(s) of the Industrial Dispute Act, 1947. The management in support of its contention has filed photocopies of many documents indicating exercise of supervisory/managerial authority by the petitioner. The petitioner, however has rebutted it by stating that whatever authority he exercised was subject to audit check by his superiors and his job was pre-dominantly clerical.

It appears that the petitioner has at times performed jobs of clerical nature i.e. preparation of salary of the employees with the help of clerical cadre which fact has not been refuted by the representative of the management. However, this does not wash away the supervisory/managerial role of the petitioner in support of which enough documents have been provided by the management, which are on record and include the copy of application of the petitioner in which he himself has mentioned that previously he had worked as Personnel-cum-Administrative Officer with M/s Castell Industries from 1975 to 1982, with M/s Old Village Industries Limited as Senior-Personnel Assistant from 1982 to 1984 and with M/s. Ravi Industries as Personnel-cum-Administrative Manager from 1984 to September 1988. Obviously, no prudent person would apply for a clerical job, who had already been functioning as Personnel-cum-Administrative Manager in a company. There is another document issued under the signatures of the petitioner in the form of a circular, directing the employees to observe punctuality dated 26.5.1989. There is yet another circular issued in June 1989 by the petitioner prescribing procedure for routine printing requirements of certain forms by the factory. There are some other documents also which indicate exercise of financial powers by the petitioner, though to a very limited scale. The fact that all such exercise of supervisory/managerial powers was subject to the audit by the superior authorities, as claimed by the petitioner, does not make him a workman because in any organisation exercise of authority at every level is subject to internal checks at superior levels.

Therefore, having considered all the facts on record and having heard arguments from both the sides, I do not find any reason to review and cancel the order dated 17.11.2000 passed by the then Secretary (Labour), rejecting the case for being referred to the Industrial Tribunals/Labour Courts for adjudication.

Accordingly, the application is hereby dismissed.

4. The above orders passed by the appropriate Government also gave a vivid picture of the claim raised by the petitioner and the response of the respondent. By this writ petition, the petitioner has challenged both the orders on the ground that the orders have been obtained by the respondent No. 2 by suppression, misrepresentation, distortion, concealment of material facts and records from respondent No. 1. The orders were passed under political pressure by unfair means and as a result of nexus between respondent No. 1 and respondent No. 2. The petitioner submitted that the appropriate Government had no power to decide whether the petitioner was a 'workman' or not. This could only be adjudicated by the Industrial Tribunal after reference of the dispute by the appropriate Government. Respondent No. 1 wrongly exercised the power which was not vested in it. He submitted that whenever an Industrial Dispute is raised, the Government has no option but to refer the dispute. The Government cannot decide whether the person who, raised a dispute was a 'workman' or not and refuse to refer the dispute. The petitioner submitted that the designation of an employee was not of any importance, what was important was, the nature of duties. The respondent No. 1 failed to take into account that the petitioner was not doing supervisory work as main work but his main work was clerical or technical in nature. The decision of the respondent No. 1 was unilateral decision without giving an opportunity to the petitioner to rebut the conclusions arrived at by the appropriate Government. The review was also not properly conducted and the petitioner was given no chance to make his representation.

5. I consider that the writ petition of the petitioner is misconceived. Indisputably, the petitioner was working as a Senior Manager (P&A) and was drawing a salary of Rs. 19,740/- p.m.. It is now well settled law that while referring the dispute the Government has to form a prima facie opinion wheather there was really a dispute worth referring or not. While forming an opinion the Government can take into account the averments made by the petitioner for referring the dispute and the respondents' response. In Secretary, Indian Tea Association v. Ajit Kumar Barat the State Government had refused to refer the dispute raised by the alleged workman on the ground that he was not a workman. The matter went up to the Supreme Court and the Supreme Court observed as under:

From the order of the State Government we find that while deciding the question whether Respondent No. 1 was a workman, it took into consideration the salary and allowances of respondent No. 1 drawn at the relevant time and also the nature of work. Respondent No. 1 who has appeared in person did not dispute the salary and allowances etc. as indicated in the order of the Government but urged that his responsibilities were neither supervisory nor managerial in nature.

Mr. Gupta, learned senior counsel appearing for the appellant has drawn our attention to the circular dated 30th March, 1994 issued by the appellant-association. This circular indicates duties of respondent No. 1 who was functioning as a Joint Secretary at the relevant time and we find his duties were to deal with all legal matters and Court proceedings, labour and land laws and publications (Labour Legislations Labour Welfare). We also find from the records that respondent No. 1 had power to sanction expenses incurred in litigation by the appellant. On the above materials on record the State Government rightly formed the opinion that respondent No. 1 was not a workman.

Respondent No. 1 has not been able to show that while passing the above administrative order, State Government took into consideration any irrelevant or foreign matter. We, therefore, hold that the above administrative order was passed by the State Government after taking into consideration material available on record and it could not be faulted.

6. Whenever a dispute is requested to be referred by any person for adjudication by the Industrial Tribunal, the appropriate Government has to apply its mind and form an opinion as to the existence of the Industrial Dispute before making order for the reference. The appropriate Government has not to act merely as a post office and refer every matter as an Industrial Dispute to the Labour Court/Industrial Tribunal for adjudication. It is seen that the persons of the level of Senior Manager, Advocates, executives have tried to use the platform of Industrial Disputes Act to settle the scores with the management. If the disputes raised by all those persons who are not really 'workmen' in the eyes of law, are referred to the Industrial Tribunal without the appropriate Government applying its mind, the forum of Industrial Tribunal and Labour Court shall be hijacked by those well-to-do persons who earn high salaries, do supervisory work and the real workmen shall suffer. The Industrial Tribunals and Labour Courts were constituted to give speedy justice to the workmen as defined under Section 2(s) of the Industrial Disputes Act. The recent judgments of Supreme Court have made it amply clear that in order to be the workman a person has to be the one performing the manual, semi-skilled, skilled, technical, operational or clerical nature of jobs. The companies do not appoint Senior Managers and give salary of Rs. 19,740/- or so for doing work of a clerk since, clerks are available in much less salary. Merely because a Senior Manager has also to do some clerical work apart from his normal managerial duties, this would not convert a Senior Manager into a clerk making him eligible to become a 'workman' for reference of a dispute by the appropriate Government. It is now well settled that the Government can refuse to refer a dispute for adjudication, if after examining, it finds that the person who asked to refer the dispute was not a 'workman' or no dispute has arisen as claimed or the dispute has become stale/dead due to lapse of long time or it would not be congenial for the industrial atmosphere to refer the dispute.

7. The counsel for the respondent has relied upon Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. . In this case the Supreme Court has devolved upon the issue of powers of Government in detail. The appellants had approached the Supreme Court since the Government had refused to refer to the Tribunal the dispute about the termination of services of the appellants observing that the termination was an act of retrenchment on the part of the management for which the management was willing to pay all legal dues and the management does not appear to have acted malafidely or vindictively. The Supreme Court observed as under:

The first contention which has been raised before us by Mr. Bishan Narain on behalf of the appellants is that the reasons given by respondent No. 1 in refusing to make a reference show that respondent No. 1 considered the merits of the dispute and came to the conclusion that the reference would not be justified; and Mr. Bishan Narain contends that in dealing with the merits of the dispute, while deciding the question as to whether a reference should be made or not under Section 12(5) of the Act respondent No. 1 has acted illegally and improperly. The relevant scheme of the Act as disclosed by Section 12 is clear. When any industrial dispute exists or is apprehended, the Conciliation Officer may hold conciliation proceedings in the manner prescribed by Section 12. If the Conciliation Officer's efforts to bring out a statement of the dispute fail, then he makes a failure report under Section 12(4); and Section 12(5) provides, inter alia, that if on a consideration of the report referred to in Sub-section (4) the appropriate Government is satisfied that there is a case for reference to the Tribunal, it may make such reference. It, however, adds that where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefore. The argument, is that Section 12(5) imposes an obligation on respondent No. 1 to record reasons for refusing to make a reference; and the reasons given by respondent No. 1 in the present case indicate that respondent No. 1 acted beyond its jurisdiction in proceeding to consider the merits of the dispute while deciding whether the reference be made or not.

This argument must be rejected, because when the appropriate Government considers the question as to whether a reference should be made under Section 12(5), it has to act under Section 19(1) of the Act, and Section 19(1) confers discretion on the appropriate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under Section 12(4) the appropriate Government ultimately exercises its power under Section 19(1), subject to this that Section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under Section 12(4). This question has been considered by this Court in the case of the State of Bombay v. K.P. Krishnan and Ors. . The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raise question of law, the appropriate Government should not purport to reach a final decision on the said question of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government make take that into account in deciding whether a reference should be made or not. It must, therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 19(1), and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be accepted.

8. The other judgment relied upon is Prem Kakar v. State of Haryana and Ors. 1976 SCC (L&S) 450. In this case, the appellant used to work as Electrical Foreman in the concern and he was dismissed from service. He asked for reference of an industrial dispute and the Government refused to refer the dispute observing that he was working in the capacity of a foreman which was a supervisory job and his wages were more than Rs. 500/- p.m. therefore, his case was not covered under the definition of term 'Workman'. The Supreme Court observed that the Government found that the appellant was not a workman within the definition of 'workman' as given in Industrial Dispute Act and considered it was not a fit case for reference for adjudication. There was nothing wrong in the decision of the Government. It was argued that the issue whether the employee was a workman or not was a disputed question of fact and only to be decided by the Labour Court and not by the Government. The Supreme Court referring to the case of Bombay Union of Journalists (supra) and State of Bombay v. K.P. Krishnan held that there was nothing wrong in the decision of the Court.

9. In view of my above discussion, I find no force in the writ petition. The writ petition is dismissed. No orders as to costs.