M/S Continental Auto Services vs The Secretary-Labour And Anr
2014 Latest Caselaw 3287 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       Judgment delivered on: 23rd July, 2014

+      W.P.(C) 584/2013

M/S CONTINENTAL AUTO SERVICES                  ..... Petitioner
                 Represented by: Mr. Siddharth Dias, Adv.

                      versus
THE SECRETARY-LABOUR AND ANR                ..... Respondents
                 Represented by: Mr. Dhanesh Relan and Ayush
                 Bhandari, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Vide the present petition, the petitioner has assailed the award dated 31.05.2012, passed by Ld. Presiding Officer, Labour Court-X, Karkardooma, Delhi in F.24(4539)/2001-Lab./4495-99 dated 26.03.2002 in ID No. 101/09, Unique Case ID No. 02402C0045642002.

2. Respondent no.1 is a proforma party. Citation qua respondent no. 2 has been filed, which is on record. As per the citation, respondent no. 2 has been served for the date of hearing, i.e., 13.12.2013. However, there is no appearance on behalf of the said respondent despite service. Even today, none appeared on his behalf. Therefore, this Court has no option but to proceed with the matter in his absence.

3. Mr. Siddharth Dias, Ld. Counsel appearing on behalf of the petitioner submits that respondent no. 2 / claimant was in service of the petitioner as a Sr. Store Officer. His services were determined in accordance with law and

all his dues were tendered to him. However, he refused to accept and raised an industrial dispute.

4. Mr. Dias further submits that the Ld. Presiding Officer has passed the impugned award by granting relief of reinstatement of respondent no. 2 / claimant in service along with 50% back wages and continuity of service.

5. He submits that the award passed by the Ld. Presiding Officer is perverse and unsustainable.

6. Ld. Counsel further submits that respondent no. 2 / claimant was not a workman being a Sr. Stores Officer and entrusted with onerous duties and responsibilities and was drawing a salary in an Officer Grade of the Petitioner Company with the allowances as applicable to employees in the Managerial Cadre. The said respondent was tendered all his duties vide letter dated 17.04.2001. However, he refused to accept the same.

7. In cross-examination of the claimant, he admitted that while he was working in Store Department, S/Sh. Mukesh Jain, Makan Singh and S.K. Panwar were working as supervisors; that there were two other helpers working on need basis namely Mr. Surender Kumar and Neem Bahadur. He further admitted that he was entrusted with task of making request to the A/c Department for preparation of cheques to be issued to different parties, who supplied parts, lubricants and other materials, which were stocked in the Stores Department. Further admitted that the material stocked to their Stores Department was valued for several Lakhs of Rupees. Also admitted that he was a senior-most employee working in the Store Department. He further admitted that the review performance form of Sh. Tajesh Kumar/R-2 for a period of 15.12.1999 to 31.03.2000 bears his Signature at Point "A", same

is Ex.WW1/M9. He further admitted that as per Ex.WW1/M-10, his review performance for the period of 01.10.1999 to 30.09.2000 was assessed. However, he denied his signature upon the said document.

8. I note, he admitted in his cross-examination that his revised salary was mentioned in his promotion letter dated 11.10.1999 Ex.WW1/4. He admitted that he was also getting allowance towards children education, which was not reflected in the records. He further admitted that he was getting reimbursement towards telephones, books and periodicals, electricity, gas and water, scooter maintenance, leave travel assistance and medical reimbursements.

9. I further note that, Ld. Presiding Officer recorded in the impugned award as under:

"It has been admitted by the MW1 Sh. P.N. Joshi alleged Manager (HR) of the Management that the claimant had no power to issue chargesheets, notices, appointment letters, termination letter as also marking attendance of any employee working under him which are duties in the nature of supervisory/managerial or administrative work / function. It is further seen from the record that though it has been alleged that the claimant used to recommend to the management with regard to the grant of increments, promotions, disciplinary action, appointments and other administrative actions to be taken by the management, however, no such evidence has been produced by the management in this regard, on record.

I further find that the workman has alleged that his duties were clerical in nature with no supervisory / administrative and managerial work in the nature of marking attendance of the employees allegedly working under him or initiating / recommending disciplinary action against them or grating leave to them or even supervising their work to the extent of

even marking their attendance to which there has been no effective rebuttal on the part of the management either in the cross-examination of the workman as WW1 in workman evidence or even in its management evidence by way of the testimony of the MW1 in management evidence, on record, who on the contrary, as abovesaid, admitted in his cross- examination on behalf of the workman as MW1 in management evidence that the claimant did not have the powers to issue charge-sheets, notices, appointment letters, termination letter and making attendance of the employees".

10. I also note that letter dated 17.04.2001 addressed by the petitioner to the respondent no. 2 / claimant states as under:

"As you are aware, you joined the services of our company with effect from March, 29, 1988 as a Store Keeper. Over the years, based upon your performance and the exigencies of work at our Workshop you have been promoted and are at present working as a Senior Stores Officer.

Due to business exigencies and keeping in view administrative and financial constraints of the Company, it has been decided to downsize our operations. In the circumstances, we are left with no other option but to discharge you from the services of our Company in terms of Clause 11 of your contract of employment, with immediate effect, i.e., 17th April, 2001. Hence you are being paid along with this letter one month salary in lieu of Notice. Further, we are also tendering to you severance compensation at the rate of fifteen days for every completed years of service as a special case, without constituting a precedent. This payment along with your other dues may be collected from our office, on any working day during working hours.

In the event, you desire to obtain a Service Certificate, you may apply form the same in writing separately after settling your dues in full and final with the Company."

11. I further note that on the bottom of the said letter it is noted as under:

"This letter was handed over to you on 17.04.2011, but you refused to take the letter. Hence we are serving this letter to your residential address."

12. In this context, it is relevant to note that the Apex Court in the case of All India Reserve Bank Employees Association v. Reserve Bank of India AIR 1966 SC 305 has held under as under:

"31. It may be mentioned here that Mr. Chari attempted to save the employees in Class II from the operation of the exceptions in Clause (iv) by referring to their duties which he said were in no sense 'supervisory' but only clerical or of checkers. He also cited a number of cases, illustrative of this point of view. Those are cases dealing with foremen, technologists, engineers, chemists, shift engineers, Asstt. Superintendents, Depot Superintendents, godown-keepers etc, We have looked into all of them but do not find it necessary to refer to any except one. In Ford Motor Company of India v. Ford Motors Staff Union, [1953] 2 L.L.J. 444 the Labour Appellate Tribunal correctly pointed out that the question whether a particular workman is a supervisor within or without the definition of 'workman' is "ultimately a question of fact, at best one of mixed fact and law. ..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organisational set-up of the particular unit of industry and like factor". The Labour Appellate Tribunal pertinently gave the example that "the nature of the work in the banking industry is in many respects obviously different from the nature and type of work in a workshop department of an engineering or automobile concern." We agree that we cannot use analogies to find out whether Class II workers here were supervisors or doing mere clerical work. No doubt, as Mr. Chart stated, the work in a Bank involves layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision. In Llyods Bank

Ltd. V. Pannalal Gupta [1961] 1 L.L.J. 18, the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn. It is pointed out there that before a clerk can claim a special allowance under Para 164(b) of the Sastry Award open to Supervisors, he must prove that he supervises the work of some others who are in a sense below him. It is pointed out that mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision and the work done in the audit department of a bank is not supervision.

32. The Reserve Bank has placed on record extract from the manuals, orders, etc., relative to all class II employees and on looking closely into these duties we cannot say that they are not of a supervisory character and are merely clerical or checking. These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical. Without discussing the matter too elaborately we may say that we are satisfied that employees in class II except the personal assistants, were rightly classed by the national tribunal as employed on supervisory and not on clerical or checking duties. In view of the fact that all of them now receive even at the start "wakes" in excess of Rs. 500 per month, there is really no issue left concerning them, once we have held that they are working in a supervisory capacity."

13. The High Court of Bombay in the case of Vilas Dumale v. Siporex India Ltd. And Anr. 1998 LLR 380 has held as under:

"5. The Counsel for the petitioner has also relied on a judgment given in case of S.K. Maini v. M/s. Carona Sahu Company Limited and others,1994 (68) FLR 1101(SC). In this case, the Supreme Court has laid down the principles for the determination of the question as to whether a particular employee falls within the definition of workman. In the said case it has been observed as under:

"Whether or not an employee is a workman under section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait- jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it become necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the concerned employee and not some works incidentally done. In other words, that is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as defined in section 2(s) of the Industrial Disputes Act."

6. Keeping the above observations in view, I am of the considered view, that the petitioner cannot be held to be a workman."

14. Further in the case of G.M. Pillai v. A.P. Lakhanikar, Judge, 3rd Labour Court & Ors., 1998 LLR 310 High Court of Bombay has held as under:

"In determining the question whether a person employed by the employer is workman under Section 2(s) of the Industrial Disputes Act or not, the Court has principally to see main or substantial work for which the employee has been employed and engaged to do. Neither the designation of the employee is decisive nor any incidental work that may be done or required to be done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employee over the employees of lower ladder without any control may not by itself be sufficient to bring that employee in the category of Supervisor, yet if the principal job of that employee is to oversee the work of employees who are in the lower ladder of the hierarchy and he has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. Each case would depend on the nature of the duties predominantly or primarily, performed by such employee and whether such function was supervisory or not would have to be decided on facts keeping in mind correct principles. In John Joseph Khokar v. B. S. Bhadange and two others 1997 II CLR 1921. I observed, "Where the employee possess the power of assigning duties and distribution of work such authority of employee may be indicative of his being supervisor doing supervision. In a broad sense Supervisor is one who has authority over others :someone who superintends and directs others. An employee who in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it

correctly in accordance with norms shall certainly be a Supervisor. A supervisory work may be contra-distinguished from managerial and administrative work and, so also a supervisor from manager and administrator. Supervisor's predominant function is to see that work is done by workers under him in accordance with the norms laid down by the management: he has no power to take any disciplinary action." The said observations clearly fit in the facts of the present case where the employer has been successful in proving before the Labour Court that the petitioner under him had five B grade Inspectors and the petitioner was overseeing and controlling work done, by those subordinate five employees. The work of the petitioner as Superintendent, Quality Control, predominently is to supervise the work in the Quality Control Department of the employer. He also had powers to take independent decision about the quality control of the material received from the vendors after obtaining report from the group of Inspectors working under him. There is also evidence to the effect that the petitioner was sanctioning leave to the employees working under him. All in all, the finding recorded by the Labour Court that the petitioner was not workman cannot be said to be perverse or grossly erroneous warranting interference by this Court in extraordinary jurisdiction. The Labour Court has on consideration of the entire evidence on record reached the conclusion that the petitioner was not workman and this Court in exercise of extraordinary jurisdiction shall not, on re-appreciation of the evidence, come to the conclusion otherwise when the finding recorded by the Labour Court is supportable from the evidence on record."

15. Respondent no. 2 / claimant admitted that he was working as a Sr. Supervisor in Stores. He was getting all the allowances as noted above. The allowances to other employees were lesser than what he was getting.

16. Despite the facts recorded above, Ld. Presiding Officer passed the impugned order and directed the petitioner to reinstate the respondent no. 2 / claimant in service with 50% back wages.

17. In view of the above discussions and the law laid down by the Supreme Court in the case of All India Reserve Bank Employees Association (Supra), I am of the considered opinion that respondent no. 2 / claimant was not a workman. Thus, the award dated 31.05.2012 is set aside.

18. Accordingly, instant petition is allowed.

19. No order as to costs.

CM. No. 1122/2013 With the disposal of the instant petition itself, instant application has become infructuous and disposed of as such.

SURESH KAIT, J JULY 23, 2014 jg