Hirenbhai Karshanbhai Kamaliya vs The Managing Director
2022 Latest Caselaw 6470 Guj

    C/SCA/12710/2019                                    ORDER DATED: 20/07/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 12710 of 2019

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                       HIRENBHAI KARSHANBHAI KAMALIYA
                                    Versus
                           THE MANAGING DIRECTOR
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Appearance:
KHUSHBU D CHHAYA(8093) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 20/07/2022

                                ORAL ORDER

1. Heard Ms.Khushbu Chhaya learned advocate for

the petitioner and Mr.Dipak Dave learned

advocate for respondent nos.1 and 2.

2. Challenge is to the award dated 23.05.2019

passed by the Industrial Tribunal, Rajkot. One of

the grounds on which the Industrial Tribunal has

refused to entertain the reference is that the

Deputy Engineer cannot be held to be a

workman.

3. The Division Bench of this Court in Letters

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Patent Appeal No.1159 of 2014 held as under:

"1. The present appeal is directed against the judgment and order dated 25.04.2014 passed by the learned Single Judge of this Court in SCA No.17115/12 and other allied matters, whereby the learned Single Judge has held that Deputy Engineer and Executive Engineer cannot be said as workman within the meaning of section 2(s) of Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and therefore, not entitled to claim the age of retirement of 60 years, but it would be only 58 years and has consequently, set aside the award passed by the Industrial Tribunal in favour of the respondent workman.

2. We have heard Mr.Vasavada, learned counsel appearing for the appellant and Mr.Dave, learned counsel appearing for respondent no.1 by caveat. The presence of respondent no.2 may not be required at this stage.

3. The learned counsel for the appellant contended that though the nomenclature of the post of the respective workman was Deputy Engineer and Executive Engineer, in fact, they were not discharging function in supervisory capacity, but they were discharging work as technical persons and as the nature of the work was technical and not in supervisory capacity, it could not be said that the respective workman who is the appellant herein, was covered by exception (iv) of section 2(s) of the Act. Learned counsel made an attempt to show that though in the written statement, the contention was raised that the workmen were in supervisory capacity

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and could not be termed as workman, however, in the evidence produced before the Tribunal, it was not successfully established. The finding of fact recorded by the Tribunal could not be upset by the learned Single Judge while exercising power under Article 226 and/or Article 227 of the Constitution. It was submitted that the learned Single Judge has not properly considered the matter and therefore, this Court may consider in the present appeal.

4. We may record 4that the learned Single Judge after considering the provisions of section 2 of the Act, from paras 5.5.2 to 5.7, has recorded the findings as under:

5.5.2 The conjoint reading of the undisputed facts and above statutory provision makes it clear that the Officers working in the cadre of Deputy Engineer and Executive Engineer are employed in a supervisory capacity, and they have always drawn wages exceeding what is prescribed in the statute i.e. Rs.1,600/- per month or Rs.10,000/- per month. For this reason, the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947, and therefore can not claim to be workmen. In view of this finding, though further inquiry may not be necessary, it also transpires that, they also exercise the functions mainly of a managerial nature, either by the nature of the duties attached to the office or by the reason of the powers vested in them. Thus, though it is not in dispute that, these officers are covered by Section 2(s) of the

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Act, equally true it is that they are excluded by exception-(iv) of that sub-section, for more than one reasons, and that is how they are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

5.6.1 Further, this Court has already concluded this issue by more than one decisions. So far the cadre of Deputy Engineer is concerned, the said point is specifically answered by this Court in Special Civil Application No.13751 of 2004, in order dated 01.12.2004, the relevant part of which reads as under.

5. Having considered the submissions made by the learned counsel for the petitioner and having examined the award of the Labour Court, it is not possible to interfere with the findings of the Labour Court. As noted above, admittedly, the petitioner was engaged as Deputy Engineer by the respondent. Admittedly, his pay was more than Rs.1600/- per month. The finding of the Labour Court that the evidence on record establishes that the petitioner was discharging duties of supervisory character also cannot be interfered with. I am in agreement with the view of the Labour Court and I find that there is substantial evidence on record to suggest that the petitioner was enjoying control over several subordinates who are working under him. The attempt on the part of the counsel for the petitioner to show that the powers of the petitioner were withdrawn on the basis of communication dated 23rd June 1999 also cannot be of any avail to the petitioner.

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The said communication only suggests that some other officer was asked to take over the charge of ongoing works from the petitioner. The background in which the said decision was taken is not clear. However, the said communication can only mean that for some internal reasons, the charge of the works otherwise being carried on by the petitioner was handed over to some other officer. That by itself would not divest the petitioner of his character of an officer of the respondent who is otherwise vested with supervisory powers. [emphasis supplied]

5.6.2 This Court not only does not find any reason to take a different view in the matter, independently also this Court has already arrived at the finding in this regard, as recorded in para:5.5.2 above. Further, if a Deputy Engineer is not a workman, Executive Engineer, who is higher in rank, is certainly not a workman. The point for consideration before this Court thus stands answered accordingly.

5.7 Additionally, under almost identical circumstances, in the case of Accounts Officers of the Gujarat Electricity Board, this Court has taken the same view, in the case of Gujarat Electricity Board vs. B.M.Shah in Special Civil Application No.5802 of 1988 and the same is even confirmed by the Division Bench in Letters Patent Appeal No.346 of 2001. I see no distinction in the cases on hand, except that it was the case of Accounts Officers, while the present cases are of the Deputy Engineers and Executive Engineers. Thus,

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the view of learned Single Judge of this Court, as confirmed by the Division Bench in case of an Accounts Officer applies with full force in the case of Deputy Engineer and Executive Engineer as well. The applicability of Section 2(s) of the Industrial Disputes Act, 1947 is not in dispute, but the argument of learned advocates for the officers is that, they are covered by Section 2(s) of the Act and further that, they are not excluded through any of the four exceptions under that sub-section. It is this later part of the argument, which is rejected. In view of the undisputed facts recorded above, it is held that the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception-(iv) of Section 2(s) of the Act and thereby they stand excluded from the ambit of the definition of the workman under Section 2(s) of the Act.

5. The aforesaid aspect as such if considered as it is, one may gather that the work of the Deputy Engineer or the Executive Engineer could be said as supervisory in nature. In the written statement before the Tribunal, at paragraph 14, it was stated as under:

(14) The Opponent Board states and submits that Shri Sapovadiya was having a separate chamber together with a telephone line, he was doing the work of supervisory and/or administrative cader and therefore cannot avail the benefit of the award passed in Ref(IT) 325/81. He was recommending the leave etc of his subordinate staff.

Confidential reports of his subordinate employees were filled in by Shri Sapovadiya as reporting officer. He was assessing and judging the work of his subordinate staff. He

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was recommending to fill up vacant post by temporary appointments. He was the member of the staff selection committee. He was passing the T.A. Bill claims of his subordinate staff. He was drawing monthly salary of rupees_______. He was planning his tour programs and got wide powers of issuing cheques jointly with Additional Chief Engineer. He was having_____ persons working under him. Therefore, by virtue of his functions it is crystal clear that he was having powers of control and supervision. In short the main work he was required to do was of supervision. It is therefore considered that he was not a workman and on completion of 58 years he was retired.

6. The evidence of cross examination of Avinash Rupsinh, who was the witness for the respondent Electricity Company, if considered with the examination-in-chief which was tendered by way of affidavit, shows that the duties which were being performed by the appellant was supervisory in nature inasmuch as the Executive Engineer used to supervise the function of junior Civil Engineer and he used to visit the factory and while visit, Junior Engineer was accompanying the Executive Engineer. Further, the reports were being prepared by the Executive Engineer and he was also supervising the function of subordinate staff. If any misconduct was committed, he had to report to the higher officer and further, tour programmes were also being finalised by him. We are conscious of the fact that while exercising power under Article 226 and/or 227 of the Constitution, this Court may not undertake the exercise of re- appreciation of the evidence, but at the same time, if the findings of fact is recorded by the

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Tribunal without their being any evidence, it could be said that such findings are perverse to the record for which the interference under Articles 226 and 227 of the Constitution can be made. Even if the evidence is appreciated and re- appreciated, we do not find that it could be said that the appellant was not discharging the work in supervisory capacity. Merely because the appellant was having technical qualification, is not the ground to conclude that he was a technical person and not working in supervisory capacity. At this stage, we may profitably extract the observations made by the Apex Court in the case of Burmah Shell Oil Storage and Distribution Co. of India Ltd. Vs. The Burma shell Management Staff Association & Ors. reported in 1970 (3) SCC 378 and more particularly, the observations made at para 16, which reads as under

"16. We may, to clarify this aspect, take an example of a qualified technical Engineer who is concerned with manufacture of machines. If he himself creates a machine with the use of his technical knowledge, he will certainly be held to be employed to do technical work. On the, other hand, if the machine is being made by others and all he does is to give advice or guidance, the actual technical work will have to be held to be done by the mechanics carrying on the work, while his duty will only be supervisory. A more clear illustration which may be useful is that of a painter. If a person is employed to paint walls of a house or paint furniture, it would clearly be employment to do manual labour. If, on the other hand, he is an artist who paints works of art as a result of his own creative and

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imaginative faculty, he would be held to be employed on technical work, 77 4 even though, in creating the work, he will all the time be using his own hands to paint the picture. There can be a third case where a good artist may have pupils working under him who paint artistic pictures and he only guides their work. He may, on occasions, even make some improvements by retouching the work done 'by the pupils. On the face of it, such a person cannot-be held to be employed to do technical work; be would be a technical supervisor. These examples clearly indicate that, in the case of the Transport Engineer, whose principal duties are to see that the work is properly done by the skilled and unskilled workmen working under he is really employed to do supervisory work and not technical work.

7. The aforesaid shows that even if the person is a technical person or qualified as technical engineer, but if he supervising work of other technical persons and also of other staff, the work undertaken by him can be said as supervisory work and not technical work. Further, if the evidence as observed hereinabove is considered, it can be said that the appellant was also discharging work in managerial capacity since he had to only supervise the work of subordinate staff, but also had to take important decisions in managerial capacity.

8. Apart from the above, we need to emphasize that the appellant was Class-I officer with the designation of Executive Engineer. The word executive would suggest the managerial capacity to be discharged by way of supervising the work and to manage the administration of the work to

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be performed of the Deputy Engineer and in turn the Deputy Engineer had also to supervise the work of subordinate staff, may be work-charge and other lower staff.

9. In our view, it cannot be said that the learned Single Judge has committed error in recording the finding referred to hereinabove. We are also of the view that even if the evidence is considered, the finding recorded by the Tribunal that the appellant was workman can be said as perverse to the record. On the contrary, the Tribunal lost sight of the important aspect of the functions to be discharged by the appellant in managerial capacity of supervising the work of subordinate staff coupled with the aspect that in any case, the salary of the appellant was above the minimum prescribed limit. In view of the aforesaid, we find that no case is made out for interference.

10. Before parting with, we may record that Mr.Vasavada, learned counsel for the appellant, at 11.00 AM, had requested the Court to call for the other cognate appeals which were lying for office objection, but the point involved in those appeals is the same as to be decided in the present appeal since the learned Single Judge had passed common judgment and order.

11. With the consent of the learned advocates appearing for both the sides, we had called for those papers and as the issue is covered by the present matter, separate order is passed in those proceedings.

12. In view of the above, no case is made out for interference. Hence, the appeal is dismissed.

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Accordingly, Civil Application would not survive and shall stand disposed of accordingly."

4. In view of the above quoted judgment, no fault

can be found with the award of the Industrial

Tribunal.

5. Petition is dismissed.

(BIREN VAISHNAV, J) ANKIT SHAH