Shri Yadeshwar Kumar vs M.S. Bennett Coleman And Co. Ltd.
2007 Latest Caselaw 1629 Del

JUDGMENT

Mukundakam Sharma, C.J.

Page 2632

CM No. 17332/2006 (condensation of delay)

This is an application praying for condensation of delay of one day in filing the present appeal. Reasons for such delay in filing the appeal have been given and explained in paragraphs 2 and 3 of the application. Having gone through the same and having heard the learned Counsel appearing for the parties and for the reasons stated in the application, we allow the application. The delay of one day in filing the appeal stands condoned. The appeal is taken on record.

The application stands disposed of in terms of the aforesaid order.

LPA No. 2367/2006

1. We have heard the learned Counsel appearing for the parties on the appeal, which was filed by the appellant as against the judgment and order dated 6th October, 2006 passed by the learned Single Judge whereby the writ petition filed by the respondent was allowed and the award dated 6th December, 2005 was set aside.

2. The appellant was appointed as Printer with the respondent on 26th December, 1976. His services were later on confirmed as Printer on 1st April, 1977. Thereafter, he was promoted and transferred to Ahmedabad as a Night Supervisor with effect from 21st July, 1978. He was subsequently transferred from Ahmadabad to Delhi office of the respondent on 14th January, 1980 as a Night Supervisor.

3. On 16th July, 1986, an allegation was made that the appellant insulted Mr.M.M. Srivastava, Administrative Manager in presence of other staff. Consequent to the aforesaid incident, a chargesheet was issued to the appellant on 29th July, 1986 alleging misconduct and indiscipline. On receipt of the aforesaid chargesheet, on 2nd August, 1986, the appellant entered into the room of Mr. M.M. Srivastava and abused and threatened him and was about to physically assault him but was restrained from doing so by some of other staff members. Be that as it may, when reply to the chargesheet dated 29th July, 1986 was received, the same was considered and was found to be unsatisfactory and under an order dated 28th August, 1986, the services of the appellant were terminated. The appellant was given one Page 2633 month's salary in lieu of notice. The appellant / workman challenged the aforesaid termination of service by raising a dispute which was referred to by the appropriate Government on the following terms:

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?

4. In the said reference proceeding the appellant took up a plea that although he was working as Night Supervisor, yet he was a workman and, therefore, the reference was justified. The management / respondent, however, took up a plea that the appellant was working in a supervisory capacity and, therefore, he was not a workman. It was also stated that there were a number of watchmen working under him and he used to supervise their work and that he had full authority to pass their overtime slips and also the power to recommend or reject leave of the watchmen working under him. It was also contended on behalf of the management that the appellant had the power to allot duties to watchmen and he was also responsible for the safety of the property of the company during all the three shifts and that he represented the management during the departmental inquiries also. On the basis of the aforesaid pleadings, the learned Labour Court framed an issue in the following manner:

Whether respondent was a workman or not within the meaning of Section 2(s) of the Industrial Disputes Act?

5. The Labour Court decided the reference as well as the issue as to whether or not the appellant was a workman against the management. The Labour Court also observed that the management has failed to prove the misconduct of the appellant.

6. Being aggrieved by the aforesaid award passed by the Labour Court, a writ petition was filed by the management before this Court. The learned Single Judge considered the pleas raised before him and by his order dated 6th October, 2006, he held that the evidence on record clearly proves and establishes that the appellant was not a workman and that he was a Supervisor drawing a salary of Rs. 1977/-, which is more than the statutory limit. It was held that therefore, the Tribunal went wrong in holding that the appellant was a workman. By passing the aforesaid order and holding in the aforesaid manner, the writ petition was allowed.

7. In view of the aforesaid findings and the conclusions arrived at by the learned Single Judge there was no requirement on his part to decide the other issue as to whether or not the misconduct alleged against the appellant stands proved or not.

8. Being aggrieved by the aforesaid order, the appellant has filed the present appeal on which we have heard the learned Counsel appearing for the parties. The learned Counsel for the parties have elaborately taken us through the evidence on record of this case. The learned Single Judge has elaborately dealt with the evidence on record and discussed the nature of duties performed by the appellant and on careful analysis thereof has come to a definite finding and conclusion that the appellant is not a workman. Such findings are arrived at by the learned Single Judge on appreciation of the records.

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9. Counsel appearing for the appellant vehemently submitted before us that by any stretch of imagination the appellant could not be held to be a Supervisor.

10. We looked into the evidence on record in order to appreciate the said contention. Evidence adduced clearly spells out the nature of duties performed by the appellant, which are of the following nature:

a) There were a number of Watchmen under Shri Yadeshwar Kumar and he used to supervise their work.

b) Whenever it was required to take any overtime work from the watchman, then Shri Yadeshwar Kumar used to instruct the watchman for overtime work and he had full authority to pass their overtime slips and as such overtime slips were regularly passed by him.

c) Whenever any watchman applied for leave, he recommended or rejected the leave. Shri Yadeshwar Kumar had full authority to grant leave to watchmen and reject.

d) He had the powers to allot duties to watchmen.

e) He was responsible for the safety of the property of the company during all the three shifts.

f) He represented the management during departmental enquiries.

g) His pay was fixed in the Administrative and supervisory cadre and so was his entitlement for leaves.

h) He officiated as Press Superintendent. He also applied for the post of Press Superintendent and in his application, he had stated that he worked as Night Supervisor and was quite effective on discipline, printing work and he independently handled case room and Rotary Department.

i) Shri Yadeshwar Kumar was not allotted any clerical or manual duty nor he performed any clerical or manual work. During his duty hours he solely performed supervisory / administrative duties.

j) He used to report cases directly to the management against workmen and watchmen for disciplinary action.

k) He gave his statement during departmental enquiries against Shri Naresh Mehta and Shri Arvind Batish and during the enquiries, he was cross examined. In the cross examination, he had admitted that he worked as security in charge and was performing supervisory duty.

l) He was not getting any overtime and was paid bonus along with other administrative and supervisory staff.

m) He used to mark his attendance in the attendance register meant for administrative and supervisory staff along with other members of administrative and supervisory staff.

11. The aforesaid fact has been clearly stated by one of the management's witnesses, namely, Shri Jagdish Chawla. We may also at this stage refer to the evidence of Shri Jagdish Bhatt. He has clearly stated that the duties performed by him were also the duties performed by the appellant, which were of the following nature:

a) There are number of watchmen under my control and I supervised their work.

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b) Whenever it is required to take any overtime work from the watchman, then I instruct the watchman for overtime work and have authority to pass their overtime slips. Such overtime slips were regularly passed by Shri Yadeshwar also.

c) Whenever any watchman applied for leave, Shri Yadeshwar Kumar had full authority to grant leave to watchmen and reject it.

d) He had powers to allot duties to watchmen.

e) He was responsible for the safety of the property of the company during all the three shifts.

f) His pay was fixed in the Administrative and Supervisory cadre and so was his entitlement for leaves. I am also in the same category.

g) I do not perform any clerical or manual duty. I am solely performing supervisory and administrative duties. These were the duties performed by Shri Yadeshwar Kumar also.

h) Shri Yadeshwar Kumar used to report cases directly to the management against workmen and watchmen for disciplinary action. I am also performing the same duties.

i) Mr. Yadeshwar Kumar was not getting any overtime and was paid bonus along with other administrative and supervisory staff. I am also not eligible for claiming overtime and am paid bonus along with other executives.

j) Mr. Yadeshwar Kumar used to mark his attendance in the attendance register meant for administrative and supervisory staff along with other members of administrative and supervisory staff. I am also marking my attendance in a similar fashion

12. We have also been taken through the evidence of the workman himself. In his deposition the appellant has admitted that he was appointed as a representative of the management in many inquiries. He also admitted in his deposition that many watchmen used to work under his control. He admitted in his deposition that he used to recommend disciplinary action against a workman, who was guilty of any misconduct. He had also stated that he officiated in the capacity as a Press Superintendent in Ahmedabad, and in that capacity he had taken decisions for disciplinary action. The aforesaid evidence makes it crystal clear that the nature of job, that the appellant was engaged in, was of a managerial and supervisory character. The contention that is raised on behalf of the appellant, therefore, cannot be accepted. Since it is held that the appellant is not a workman, there could not have been a case of reference of the dispute by the appropriate Government. The findings and conclusions arrived at by the learned Single Judge are found to be legal and valid.

13. The allegation against the appellant in the chargesheet is also very serious which pertains to misbehavior with the Administrative Manager. When the chargesheet was drawn up and served on the appellant, he again misbehaved with Mr.M.M. Srivastava and also threatened and abused him and was about to physically assault him.

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14. Counsel appearing for the appellant during the course of arguments relied upon the decision of the Supreme Court in Ved Prakash Gupta v. Delton Cable India (P) Ltd. and Ananda Bazar Patrika (P) Ltd. v. The workmen . Relying on the said decisions, counsel for the appellant submitted before us that allotting work to some labourers and recommending leave applications are minor duties which cannot convert his post to that of a Supervisor.

15. In our considered opinion, the said judgments are distinguishable on facts. In Ved Prakash Gupta v. Delton Cable India (P) Ltd. (supra), it was held that the concerned workman was working as a Security Inspector at the factory gate and was not performing either managerial or supervisory functions. The workman could not order inquiry against any employee. In that context it was held that he had neither managerial nor supervisory power which would exclude him from the definition of "workman". However, in the present case it is clearly established from the records that the appellant had initiated and conducted disciplinary proceedings against some employees. The nature of duties which the appellant and the workman in Ved Prakash Gupta Delton Cable India (P) Ltd. (supra) were performing were entirely different. In Ananda Bazar Patrika (P) Ltd. (supra), the Supreme Court found, as a matter of fact, that the employee was maintaining and writing cash book and was given a few minor duties of supervisory nature. In these circumstances, on the basis of factual evidence and material available, it was held that the employee was a workman.

16. In our considered opinion, the aforesaid decisions were rendered in the facts of those cases whereas facts of the present case are clearly distinguishable and, therefore, reliance on the said decisions by the appellant is misplaced.

17. In that view of the matter, this appeal has no merit and is dismissed.