Bennett Coleman And Co. Limited vs Shri Yadeshwar Kumar
2006 Latest Caselaw 1743 Del

JUDGMENT

Shiv Narayan Dhingra, J.

Page 3132

1. By this writ petition, the petitioner has challenged the validity of Award dated 6.12.2005 passed by Labour Court-IV, Karkardooma, Delhi.

2. Briefly the facts are that respondent/ workman was appointed as a Printer with the petitioner on 26.12.1976 at Calcutta. He was confirmed as Printer on 1.4.1977. Thereafter, he was promoted and transferred to Ahmedabad as a Night Supervisor with effect from 21.7.1978. He was transferred from Ahmedabad to Delhi office of the petitioner on 14.1.1980 as a Night Supervisor. Respondent was charged with misconduct. The allegations of the petitioner against the respondent were that on 16.7.1986 respondent insulted Mr. M.M. Srivastava, Administrative Manager in presence of other staff. A charge sheet was issued to the respondent on 29.7.1986 about misconduct and indiscipline. After receipt of the charge sheet respondent, on 2.8.1986, entered into the room of Mr. Srivastava and abused and threatened him and was about to physically assault him but was restrained from doing so by some of the staff members . The reply to the charge sheet dated 29.7.1986 submitted by the respondent was considered unsatisfactory and the service of the respondent was terminated on 28.8.1986. He was given one month's salary in lieu of notice. Respondent challenged the termination of his services, as a result following dispute was referred by the appropriate government for adjudication to the Labour Court:

Whether the termination of services of Shri Yadeshwar Kumar is illegal and/or unjustified and if so to what relief is he entitled and what directions are necessary in this regard ?

3. The petitioner in response to the claim of the respondent took the stand that respondent was not a workman. He was working in Supervisory capacity. There were a number of watchmen working under him and he used to supervise their work. Whenever any overtime work was to be taken from the watchmen, respondent used to instruct the watchmen about overtime work and he had full authority to pass their overtime slips. He used to exercise this authority very often. He used to recommend or reject leave of the Page 3133 watchmen working under him. Respondent had the power to allot duties to watchmen. He was responsible for the safety of the property of the company during all the three shifts. He represented the management during the departmental enquiries. His pay was fixed in the administrative and supervisory cadre. He had also officiated as Press Superintendent for some time. Respondent was not allotted any clerical or manual duty nor he performed any clerical or manual work. He was drawing a total salary of Rs. 1977/-.

4. On the basis of pleadings of the parties, Labour Court framed an issue " whether respondent was a workman or not within the meaning of Section 2(s) of the Industrial Disputes Act? Labour Court decided the reference as well as issue of workman against the petitioner. The Labour Court observed that the management has failed to prove the misconduct.

5. In order to find out whether an employee is a workman or not , the Court has to look into the definition of the workman under Section 2(s) of the Industrial Disputes Act 1947 ( for short the 'Act') which reads as under:

2 (s) " Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed mainly in a managerial or administrative capacity; or

(iii) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

6. Definition would show that workman means a person employed in an industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward.

A school of thought that somebody who does not fall under the exceptions enumerated under Section 2(s) of the Act shall be a workman was being followed. In H.R. Adyanthaya and Ors. v. Sandoz (I) Limited and Ors. , Supreme Court analysed all the previous judgments and held that it was not sufficient for a person to be a workman that he does not fall within the exceptions given in Section 2(s). In order to be a workman the specific Page 3134 nature of work as given under Section 2(s) the Act must be shown to be the one being done by the person. There may be employees who do not do any supervisory or administrative work but may be out of the scope of the definition. Supreme Court reiterated the approach it had taken in May & Baker India Limited -AIR 1967 SC 67; Western India Match Co. Ltd. v. Their Workmen and Burmah Sheel Oil Storage & Distributing Co. of India Ltd. v. The Burmah Sheel Management Staff Association and Ors. - . While summarizing the legal position, Supreme court held as under:

24. We thus have three three-Judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories, viz., manual, clerical supervisory or technical and two two-Judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three three-Judge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Burmah Shell cases have taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation.

7. Recently Supreme Court in Sonepat Cooperative Sugar Mills Limited v. Ajit Singh (2005) 3 SCC 23, Supreme Court has again surveyed the entire case laws as to who is workman and held as under:

Thus, a person who performs one or the other jobs mentioned in the aforementioned provisions only would come within the purview of the definition of workman. The job of a clerk, ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. The question as to whether the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regards the dominant nature thereof. With a view to give effect to the expression to do " any manual, unskilled, skilled, technical, operational, clerical or supervisory work", the job of the employee concerned must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not performing any managerial or supervisory duties, ipso facto he would be a workman. (para 16)

Page 3135

The jurisdiction of the Industrial Court to make an award in the dispute would depend upon a finding as to whether the employee concerned is a workman or not. When such an issue is raised, the same being a jurisdictional one, the findings of the Labour Court in that behalf would be subject to judicial review.(para 22)

8. It is argued by learned Counsel for the petitioner that the Labour Court in the present case had not asked the proper and positive question to itself in order to determine whether a person is a workman or not. There has to be a positive finding that the workman was performing any of the job mentioned under Section 2(s) of the Act. The approach of the Labour Court had been negative.

9. A perusal of the Award and evidence shows that duties of the respondent were to supervise chowkidar and sweepers. He used to mark attendance of the chowkidars and security staff working under him. He used to forward leave and overtime slips to the security officer although he was not sanctioning authority but he was recommending authority. Documents with his recommendations were placed on record. It was his duty to report to administrative manager or security officer about any untoward incident. On the other hand the workman relied upon certificate issued by the management that he was a skilled printer. This certificate was of the period when he was working as a printer. Respondent produced another certificate issued by the Labour Officer of the management wherein it is mentioned that workman is a good workman. He alleged that he was doing 8 hours duty being a workman whereas the administrative and officers category persons were working six and a half hours in a day. Because of some supervisory work, apart from doing his main work of a manual/ clerical or technical in nature, he does not become a supervisor.

10. The Tribunal on the basis of the fact that one Chander Kant was a senior officer to the respondent and the work of respondent was being over seen by Chander Kant concluded that respondent was not a supervisor. The Tribunal further observed that management had placed on record the leave applications of persons working under respondent and handled by him, but these were not proved as per rule of evidence. The same could not be relied upon. The Tribunal thereafter concluded that " in the light if the evidence led by the workman is analysed, it is clear that he was simply supervising the work of other persons and his functions were not of managerial or administrative in nature. No doubt certain applications have been sanctioned by Sh. Yadeshwar Kumar as departmental head but there were two persons who were working above him and so he cannot be said to be working in a supervisory capacity.

11. Obviously, the approach of the Labour Court has been contrary to the law laid down by the Supreme court in a series of judgments. In order to decide whether a person is a workman or not, the dominant and main functions are to be considered. A person can be called a supervisor if he is entrusted with the job of supervising other workmen who work under him. There is no dispute that the respondent was not only designated as Night Supervisor but he was having job of supervision over security guards, chowkidars and sweepers. He used to forward over time claims of the persons Page 3136 working under him after verifying the same. He used to recommend leave of the persons working under him. He was in charge of the security of the property of petitioner and used to supervise the work of security guards etc. It is not necessary that a supervisor has to be top cadre management person. A supervisor may occupy a lower position in the organisation chart of the company where in the descending order may be CMD, MD, General Managers, Deputy Managers, Managers, Administrative Officer and supervisor etc. It has been laid down by the Supreme Court that in order to be a workman a person must be performing one of the functions as specified in Section 2(s) of the Act and it was not sufficient that he was not performing administrative or managerial function. Tribunal also went in wrong in law by observing that strict principles of rules of evidence are required to be followed by the Tribunal. While weighing the material placed before the Tribunal, a Tribunal is not to follow the strict rules of evidence and neither has to arrive at a conclusion by considering the proof beyond reasonable doubt. A Tribunal has to weigh the material placed before it by both sides. All materials which are logically probative for a prudent mind are liable to be considered. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

12. I come to the conclusion that in this case respondent was not a workman, he was a supervisor drawing salary of Rs. 1977/- i.e. more than the statutory limit so as to take him out of the definition of the workman. Tribunal went wrong in holding that respondent was a workman.

13. I, therefore, allow this writ petition. Award dated 6.12.2005 is hereby set aside.