Som Nath Bhatt vs Khanijau Industries Engg. P.Ltd. ...
2013 Latest Caselaw 2760 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 8863/2008
                                                      Decided on 4th July, 2013
      SOM NATH BHATT                                         ..... Petitioner
                           Through:      Petitioner in person.

                           versus

      KHANIJAU INDUSTRIES ENGG. P.LTD. NOW
      KNOWN AS LUXOR WRITING INSTRUMENTS
      LTD. & ANR.                            ..... Respondents
                   Through: Mr. Raju Gupta, Advocate.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. By way of present petition under Article 226 of the Constitution of

India, petitioner has challenged Award dated 1.7.2008 passed by the

Presiding Officer, Labour Court No.XIX, Karkardooma Courts, Delhi

whereby reference has been answered in negative thereby holding that

petitioner was not entitled to any relief.

2. The Secretary, (Labour), Govt. of NCT of Delhi referred the dispute

raised by petitioner for adjudication to Labour Court in the following terms:

"Whether the services of Sh.Som Nath Bhatt have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Petitioner filed statement of claim before the Industrial Adjudicator

and sought reinstatement with back wages. Petitioner alleged that he was

appointed by M/s Luxor Pen Company with effect from 4.5.1993 on a

consolidated salary of `5000/- per month. Subsequently, his services were

transferred to the respondent. Although he was designated as Personal

Manager but in fact he was assigned duties of a Miscellaneous Clerk. He

was not vested with any supervisory or managerial powers. When he

protested about it his services were verbally terminated on 4.5.1998 without

assigning any reason.

4. In the written statement respondent alleged that petitioner was

performing the work of managerial nature and was not a workman within

the meaning under Section 2 (s) of the Industrial Disputes Act (for short

hereinafter referred to as „the Act‟). He was recommending names of

workmen for increments etc., passing the conveyance bills for

reimbursement as also signing the vouchers. He was head of the personnel

department. Not only the designation but nature of work performed by him

was of managerial nature. As per the respondent, petitioner was discharged

from the service in terms of Clause 4 of his appointment letter.

5. In the rejoinder, petitioner denied averments made in the written

statement and reaffirmed the contents of statement of claim.

6. Following issues were framed by the industrial adjudicator:

a. Whether the claimant is covered within the definition of workman as defined under section 2 (s) of the ID Act as per preliminary objection no.2 taken in WS?

b. Whether services of Sh.Som Nath Bhatt have been terminated illegally and/or unjustifiably by the management?

c. Relief.

7. Petitioner examined himself as WW1. He did not examine any other

witness. As against this, respondent-management examined its Assistant

Manager Sh.Pradeep Dogra as MW-1. Petitioner as well as respondent also

placed and proved certain documents.

8. After hearing the parties and perusing the written arguments

submitted by them Industrial Adjudicator has returned findings on both the

issues against the petitioner, consequently, answered the reference in

negative. It was held that petitioner was not a workman within the meaning

of Section 2 (s) of the Act. After considering the various judicial

pronouncements, Industrial Adjudicator has observed that mere designation

of claimant is not sufficient but what has to be seen is the nature of duties

discharged by him for deciding as to whether he is a workman or not. On

the basis of oral as well as voluminous documentary evidence which had

come on record Industrial Adjudicator has arrived at a definite finding that

petitioner was discharging supervisory and managerial functions and was

not a workman. It has been categorically held that the evidence on record

established that claimant was not only posted as a Personal Manager but was

also primarily discharging supervisory and managerial functions.

9. It is trite that interference with the award of Industrial Tribunal by the

High Courts in exercise of power under Article 226 of the Constitution of

India is limited. Reappraisal of evidence without sufficient reason of law is

not permissible. Finding of fact recorded by the fact finding authority

cannot be interfered with so long it is based upon some material relevant for

the purpose. The High Court shall interfere only if award is based on no

evidence or any error of law is pointed out, inasmuch as there had been

violation of principles of natural justice.

10. A learned Single Judge of this court in Mahesh Chand vs. Godrej

Sara Lee Ltd., MANU/DE/1846/2008 after placing reliance on Sadhu Ram

vs. Delhi Transport Corporation; AIR 1984 SC 1467; Harbans Lal vs.

Jagmohan Saran AIR 1986 SC 302; Calcutta Port Sharamik Union vs.

Calcutta River Transport Association and others; AIR 1988 SC 2168 and

Indian Overseas Bank vs. Indian Overseas Bank Staff Canteen Worker's

Union and Another AIR 2000 SC 1508 has held as under:

"6. From a conspectus of the above judgments the following legal position emerges. The High Courts should not interfere with the awards of Industrial Tribunal on mere technicalities. Interference is permissible only if the order of the Industrial Adjudicator suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient reason in law to arrive at a finding contrary to that arrived at by the Industrial adjudicator is not the intent of exercising judicial review.

7. This Court under Article 226 of the Constitution of India cannot undertake the exercise of liberally reappreciating the evidence and drawing conclusions of its own on pure questions of fact. The findings of fact recorded by a fact- finding authority duly constituted for the purpose cannot be interfered with as long as they are based upon some material relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken."

11. In the backdrop of above legal position I have considered the

arguments advanced by the petitioner, learned counsel for the respondent

and have perused the written submissions submitted by them. I do not find

any force in the contention of petitioner that Industrial Adjudicator has acted

in haste and did not accord proper opportunity to him to cross-examine

MW-1. As per the petitioner, Industrial Adjudicator had given short dates

inasmuch as conducted proceedings on a day-to-day basis at the fag end of

the proceedings. Industrial dispute was referred to Court way back in the

year 1999. Issues were framed on 30.10.2001. Keeping in mind that it was

the oldest case in court, short dates were given and subsequently matter was

heard on a day-to-day basis. Nothing wrong can be found in this approach

of Industrial Adjudicator. It is not the case that ample opportunity was not

given to the parties to putforth their respective versions and lead evidence.

Both the parties were given sufficient opportunities to lead evidence and

argue the matter before decision has been rendered. Petitioner was also

accorded sufficient opportunity to cross-examine MW-1 which is evident

from the fact that cross-examination of this witness runs into nine pages.

The next contention of petitioner is that written arguments have not been

considered by the Industrial Adjudicator but I find this contention to be

contrary to record. A perusal of impugned award itself shows that written

arguments have been duly considered and a mention in this regard has been

made in the award. Another contention of petitioner is that respondent was

permitted to be represented by an Advocate in violation of Sub Section 4 of

Section 36 of the Act which envisages that a party to a dispute may be

represented by a legal professional with the consent of other parties to the

proceedings with the leave of labour court and/or tribunal. It is submitted

that neither consent of petitioner was taken nor any such permission was

granted. In this case, at the initial stages one Mr. Raju Gupta, Advocate was

appearing for the respondent but subsequently he was debarred from

appearance after petitioner raised objections. Petitioner now contends that

subsequently respondent was represented by Mr. Sanjeev Bajaj, who also

happens to be a lawyer. This plea cannot be entertained at this stage since

no application was filed by petitioner before the Industrial Adjudicator

pointing out this fact nor his appearance was objected to.

12. Petitioner further contends that Industrial Adjudicator has misread the

documents to arrive at a conclusion that petitioner was performing

supervisory and/or managerial functions. As already mentioned hereinabove,

this court has not to reappreciate the evidence and take a different view than

what has been taken by the Industrial Adjudicator unless any perversity is

pointed out in the award. Industrial Adjudicator has categorically held that

Ex.WW1/M1, Ex.WW1/M2, Ex.WW1/16 and Ex.WW1/17 were Annual

Performance Appraisal forms of workers/peons/drivers which contained

signatures of petitioner with recommendations pertaining to the increments

and promotions. In the appraisal reports, petitioner had described the

performance of concerned workers and recommended increments and

promotions. Ex.WW1/M3 to M15 were various bills cum vouchers which

were passed by the petitioner under his signatures inasmuch as Ex.WW1/M4

was the conveyance bill of the petitioner himself which he had passed for

reimbursement. Ex.WW1/M5 to M15 indicated the release of payment to

different employees after such payments were authorised by the petitioner.

Ex.WW1/M18 was the Employment Form whereby a person was engaged as

an unskilled temporary worker with the management under the signatures of

petitioner. Mark M1 to Mark M8, placed on record by the respondent, were

initially denied by petitioner. He denied his signatures on the said

documents. However, subsequently, he filed an affidavit admitting his

signatures on the documents. These documents evidenced that petitioner

had been corresponding with the Commissioner of Provident Fund as also

ESI authorities inasmuch as he had issued notices to several workers calling

upon them to render explanation for their unauthorised absence from work.

Ex.WW1/3 was a circular issued by the President and General Manager of

the management, copies whereof were marked to senior functionaries of the

management including petitioner. Ex.WW1/8 was a letter written by the

petitioner wherein he himself claimed that he was having professional

experience of 21 years on important positions in different companies,

inasmuch as suggested various measures to safeguard the interest of

respondent company. As per the Industrial Adjudicator, cumulative effect

of the functions discharged by the petitioner as indicated in the documents

were sufficient to hold that petitioner was performing supervisory and

managerial functions. Contents of documents are not in dispute. In

Jaiprakash Singh vs. Presiding Officer Labour Court, 2004 LLR 612

petitioner used to post the workers on different jobs; verify the attendance of

workers; call explanation for not completing the work; recommend action on

finding explanation unsatisfactory and arrange payment of over-time, thus,

he was held to be holding supervisory position.

13. For the foregoing reasons, I do not find any perversity in the view

taken by Industrial Adjudicator that petitioner was not a workman.

14. Petitioner has placed reliance on Harjinder Singh v. Punjab State

Warehousing Corporation AIR 2010 SC 1116, Lloyds Bank Ltd. vs. Panna

Lal Gupta and Others AIR 1967 SC 428 and Ananda Bazar Patrika

(Private) Ltd. vs. its workman 1964 AIR 338; 1964 SCR (3) 60, I have

perused the above judgments and find them to be in the context of different

facts. In Harjinder Singh's case (supra) the policy of „last come and first

go‟ was involved. Section 2 (s) of the Act was not in issue in the said case.

In Lloyds Bank Ltd. (supra) and Ananda Bazar Patrika (Private) Ltd.

(supra), in the peculiar facts involved in the said case it was held that

respondents were workmen.

15. In the light of above discussions writ petition is dismissed.

A.K. PATHAK, J.

JULY 04, 2013 raj b.