Kamal Goyal vs Adidas India Marketing (P) Ltd.
2008 Latest Caselaw 1265 Del

*             HIGH COURT OF DELHI AT NEW DELHI

+                         LPA No.1373/2007

%                             Decided on: 7th August, 2008


       KAMAL GOYAL                         ..... Appellant
               Through Mr.Jagat Arora with Mr.M.K.Dutta,
                                 Advocates.

                           Versus

       ADIDAS INDIA MARKETING (P) LTD         ..... Respondent

Through Nemo

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S.MURALIDHAR

1. Whether reporters of the local papers be allowed to see the judgment ?y

2. To be referred to the Reporter or not ?n

3. Whether the judgment should be reported in the Digest ?n

Ajit Prakash Shah, Chief Justice:

1. The short question is whether the appellant is a workman

within the meaning of Section 2(s) of the Industrial Disputes Act,

1947. The Labour Court on appreciation of the material on record

held that the appellant is not a workman in terms of Section 2(s) of

the Act. The writ petition filed by the appellant was dismissed by

the learned single Judge holding that the terms of employment of

the appellant as Project Incharge clearly bring out the fact that his

duties were far more than clerical or manual in nature and gave

him considerable opportunity to exercise independence,

supervision and discretion in the course of his employment.

2. The appellant was appointed as Project Incharge w.e.f. 15th

September, 1997. His services were terminated by the

respondent on the ground of incompetence w.e.f. 1st April, 2002.

Consequently, the appellant raised an industrial dispute assailing

the management for illegally terminating his services. Before the

Labour Court the stand of the management was that the appellant

was employed as Project Incharge for supervising the routine

operations of manufacturing at different locations from time to

time as per instructions of his superiors and the appellant had

accepted the terms of appointment as Project Incharge vide

appointment letter dated 15th September, 1997. It was

contended that the appellant handled a supervisory position to

oversee routine operations at different locations and he cannot be

termed as a workman. It was also pointed out that the appellant

was getting a salary of more than Rs.45,000/- per month, as

shown by the appellant himself. The Labour Court, on

examination and scrutiny of the evidence adduced by both the

parties, recorded its findings as follows:

"The workman has filed copy of his letter of appointment dated 15.9.1997. The perusal of the said appointment letter Ex.WW1/1 shows that the workman was appointed as a Project Incharge. The case of the workman is that though he was given designation of Project Incharge but his duties were mainly clerical and manual in nature. It is important to note that the workman has not led any evidence in order to prove that though he was designated as Project Incharge but he was working in a clerical job. In this regard, the workman has neither filed any document nor examined any coworker to prove that he was doing the job of clerical nature. On the other hand, the management has examined MW1, Sh. Neeraj Kumar who has filed his affidavit Ex.MW1/A wherein he has stated that the workman was working as Project Incharge. The workman in his cross examination has admitted that he used to check the balls which were manufactured for export. He has also admitted that he used to take decision with regard to the quality check of the balls and he also used to reject the balls which were not upto the standard. Therefore it is clear that from the cross examination of the workman that his job was of supervisory nature.

The workman has also admitted in his cross examination that he was sent out of country four times. He had gone abroad three times for attending meetings. He also admitted in his cross examination that during his stay in Taiwan/Germany, he was provided

three star accommodation. Thus, it is clear from the cross examination of the workman that he had gone abroad to attend meetings on behalf of the company and while he was abroad, he was given three star accommodation. It is well known fact that no management will send abroad a person who is doing the job of clerical nature to attend meetings on behalf of the company nor the management will provide three star accommodation to any workman who is doing the job of clerical nature. The workman in his cross examination has also admitted that at the time of leaving job he was getting salary of Rs.45,000/-. In my view, no person who is doing the job of clerical nature will get salary of Rs.45,000/-"

3. In our opinion all the relevant facts have been taken into

consideration by the Labour Court and it has rightly come to the

conclusion that the appellant is not a workman within the meaning

of Section 2(s) of the Act.

4. Learned counsel appearing for the appellant, however,

sought to rely upon a judgment of the Supreme Court in Anand

Regional Co-op. Oil Seedsgrowers Union Ltd. v.

Shaileshkumar Harshadbhai Shah (2006-III-LLJ 767), where an

employee working as an Assistant Executive in the Quality Control

Department of the appellant cooperative society was held to be a

workman. He particularly relied upon the following observations of

the Court in paragraph 15:

"15. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the Section alone and that too it being a small one and relating to quality control would not answer the test."

5. In our opinion, the decision in Anand Regional Co-op. Oil

Seedsgrowers Union Ltd. v. Shaileshkumar Harshadbhai

Shah (supra) has no application to the case in hand. In that case

the Labour Court found that though the workman was designated

as Assistant Executive, he was a workman within the meaning of

Section 2(s) of the Industrial Disputes Act. The finding of fact was

confirmed by the learned single Judge as well as the Division

Bench and ultimately the appeal was dismissed by the Supreme

Court.

6. In H.R. Adyanthaya and others v. Sandoz (India) Ltd.

and others [(1994) 5 SCC 737], the Constitution Bench of the

Supreme Court held that for a person to be a workman under the

Industrial Disputes Act, he 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. In the

present case, It is clear that the work entrusted to the appellant

was independent of the types of work covered by the said

definition.

7. We find absolutely no substance in the appeal, which is

hereby dismissed.

                                            CHIEF JUSTICE



                                            S.MURALIDHAR
August 07, 2008                               (JUDGE)
nm