State Of Haryana And Others vs S.D. Dubey
2009 Latest Caselaw 2983 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P.(C) No. 890/2009 & CM No. 1973/2009

%                     Date of Decision: 03rd August, 2009


# State of Haryana and Others
                                                         ..... PETITIONERS
!                     Through: Mr. S.N. Sharma

                                  VERSUS

$ S.D. Dubey
                                                         .....RESPONDENT

^                     Through: Nemo.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not?NO

3. Whether the judgment should be reported in the Digest?NO

S.N.AGGARWAL, J (ORAL) The petitioners have filed this writ petition under Article 226 of the

Constitution of India seeking to challenge an award dated 13.12.2007

passed by the Central Government Industrial Tribunal, New Delhi by

which the petitioners have been directed to pay 15 days wages for every

completed year of service to the respondent as per the provisions of

Section 25-F of the Industrial Disputes Act, 1947.

2. The respondent was appointed as a Deputy Mining Engineer with

the petitioners w.e.f. 20.07.1993. His services were terminated w.e.f.

03.03.2003. The Industrial Adjudicator vide its impugned award has

found the termination of the respondent neither legal nor just.

3. Mr. S.N. Sharma, learned counsel appearing on behalf of the

petitioners has argued that the respondent was not a workman within the

meaning of Section 2(s) of the Industrial Disputes Act, 1947 and for that

reason, according to him, the impugned award cannot be sustained in

law. This objection that the respondent is not a workman was taken by

the petitioner even before the Court below but without any success. The

relevant portion of the impugned order on this aspect is extracted

below:-

" The management has to prove that the workman was competent to watch over the work of the juniors and submit reports regarding their work in managerial or administrative office. There must be some sub-ordinate employees as the administrator has the power to inspect the work of those subordinate and submit confidential reports to the higher authorities. It is for the management to prove that the workman has been assigned managerial duty. The workman cannot be said to be a manager or administrator in view of the nomenclature given to him. The work of a Engineer is always operational.

The real tests for ascertaining the status and function of employee are the primary, basic or dominant nature of duties. The words 'managerial' or 'supervisory' have to be understood in their proper connotation and their mere use cannot be detracted from the truth.

In (1985) 3 SCC 371 it has been held that the nature of the work of a workman is to be ascertained from the dominant nature of duties performed by him and not by nomenclature. In view of this judgment of the Hon'ble Apex Court, the claimant is a workman. This point is decided accordingly."

4. I am in complete agreement with the above reasoning given in the

impugned award for holding the respondent to be a workman. The

respondent was appointed with the petitioners as Deputy Mining

Engineer. Needless to state that the duties of an Engineer are always

operational unless proved to the contrary. The petitioners have not

placed any document on record to substantiate their plea that the

respondent was performing purely managerial or administrative functions

which alone could exclude him from the purview of definition of workman

given in Section 2(s) of the Industrial Disputes Act, 1947.

5. It shall be significant to mention that the Court below in its

impugned award (at internal page 3) has noted that the petitioners have

paid retrenchment compensation to four other employees, namely, Shri

Kuldeep Singh, Assistant Manager (Quality Control), Shri Ghanshyam

Singh, Supervisor, Shri Narishmanlu, Surveyor and Shri Duli Chand Yadav,

Technical Assistant.

6. Mr. S.N. Sharma, learned counsel appearing on behalf of the

petitioners, on instructions from his client, submits that none of the

above four persons was performing managerial or administrative

functions and, therefore, according to him, the retrenchment

compensation was paid to them as they were treated as workmen by the

petitioners. This Court in exercise of its jurisdiction would not like to go

into the disputed question of fact as to whether the above named four

persons were not performing administrative functions or whether the

respondent was performing administrative functions as alleged. This

aspect of the matter has already been taken care of in the impugned

award and the findings contained in the said award do not call for any

interference by this Court in exercise of its extraordinary discretionary

writ jurisdiction under Article 226 of the Constitution of India. This writ

petition, therefore, fails and is hereby dismissed in limine. The stay

application is also dismissed.

AUGUST 03, 2009                                            S.N.AGGARWAL, J
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