Manipal University vs Sri Suraj
2022 Latest Caselaw 2655 Kant

                         1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY FEBRUARY, 2022

                      BEFORE

       THE HON'BLE MS. JUSTICE JYOTI MULIMANI

    WRIT PETITION NO.27795 OF 2015 (L-TER)

BETWEEN:

MANIPAL UNIVERSITY
MANIPAL - 576 104,
REPRESENTED BY ITS
REGISTRAR
DR.G.K.PRABHU                        ... PETITIONER

(BY SRI S.N.MURTHY, SENIOR ADVOCATE FOR
    SRI SOMASHEKAR, ADVOCATE)

AND:

SRI SURAJ,
MAJOR,
S/O SRI RAGHAVAN,
SNEHA LAXMI, KAPRIGUDDA,
MANGALURU - 575 001                 ... RESPONDENT

(BY SRI CHETHAN B., ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED    FOR   ORDERS,   COMING   ON   FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
                                 2




                           ORDER

Sri.S.N.Murthy, learned Senior Advocate on behalf of

Sri.Somashekar, for petitioner and Sri.B.Chethan, learned

counsel for respondent have appeared through video

conferencing.

2. The facts are simply stated as under.

It is stated that the petitioner- Manipal University is

a deemed University with effect from 01.06.1963. Earlier,

the University was known as Kasturba Medical College,

Mangaluru. The respondent was appointed at K.M.C

Mangalore, a constituent Unit of Manipal University, as

Health Inspector-I to supervise sanitary work, water

supply, waste disposal, drainage and overall cleanliness of

various Institutions of University at different places. The

job responsibilities were specified by letter dated

26.08.1995. Further, by circular dated 25.01.2006, the

respondent was transferred from MAHE to KMC, Mangaluru

to supervise smooth functioning of housekeeping activities.

The letter and the Circular clearly establish that the

respondent was doing exclusively Supervisory work

throughout his career from the date of his appointment till

the date of his dismissal.

It is stated that the past records of respondent were

full blemishes. In this regard, a memo dated 10.09.1998

was issued warning him for giving certain directions

contrary to the prevailing standing instructions. It is also

stated that in another proceeding dated 24.02.1999, he

was warned for manhandling and physically pushing one

Mr.Sudhir Poojary, husband of one Sanitary worker. In

notice dated 08.09.2004, it was brought to the notice of

the respondent that the corridor was not kept clean and

tidy and toilets in each floor were dirty. Hence, he was

directed to upkeep various common areas. It is said that

there are various other memos/ notices issued to the

respondent about unsatisfactory supervision of work.

It is averred that the respondent was provided with

office space in 3rd floor of the college building. In the

month of June 2006, the University required the same to

renovate the Community Medicine Department as per MCI

guidelines. Hence, the respondent was provided

accommodation in the ground floor. In this regard, a letter

was issued on 15.06.2006 to vacate the room occupied by

him. The respondent acknowledged the letter under

protest on 17.06.2006. A reminder was also issued by a

memo dated 17.06.2006. The same was acknowledged by

the respondent on 20.06.2006. Another reminder was

issued on 24.06.2006 to vacate the office space occupied

by him. But he did not care to vacate the room occupied

by him. The respondent in spite of repeated requests did

not care to vacate the room and hence, proceedings dated

06.07.2006 was drawn by the Dean which is self-

explanatory. The Head of the Department by letter dated

22.07.2006 informed the Dean that the respondent has

not vacated the room. Hence, he was kept under

suspension by letter dated 24.07.2006.

The charge sheet dated 18.08.2006 was served to

the respondent and he submitted reply on 28.08.2006 and

the same was found not satisfactory, the domestic enquiry

was ordered by appointing one Mr.Purushothama Bhat,

Advocate, Mangaluru. The respondent participated in the

enquiry proceedings and after the conclusion of the

enquiry, the Enquiry Officer submitted a report on

05.03.2007 holding respondent guilty of charges. The

Dean issued second show cause notice dated 27.03.2007

along with a copy of the report of the Enquiry Officer. The

respondent submitted his explanation on 14.04.2007 which

was found unsatisfactory and unacceptable. Hence, the

petitioner in order to maintain sound discipline and

considering gravity of misconduct, the University

dismissed the respondent by an order dated 04.06.2007.

(It is stated that the same is erroneously typed as

27.03.2007) and the said error was informed to the

respondent vide memo dated 18.06.2007.

The respondent challenged the order of dismissal

and on failure of conciliation the same was referred to the

Central Government Industrial Tribunal-cum-Labour Court,

Bengaluru, which was registered as CR No.51/2008. Based

on the pleadings, Domestic Enquiry was tried as

Preliminary issue and the Central Government Industrial

Tribunal-cum-Labour Court by an order dated 27.10.2011

held enquiry as fair and proper.

After hearing the parties, the Central Government

Industrial Tribunal-cum-Labour Court passed award on

16.02.2015 holding that the findings of Enquiry Officer is

not perverse and the punishment order of dismissal is

disproportionate and thereby, ordered for reinstatement

with continuity of service and consequential benefits along

with 50% back wages.

Under these circumstances, the petitioner having left

with no other of alternative and efficacious remedy has

filed this writ petition under Articles 226 and 227 of the

Constitution of India.

3. Sri.S.N.Murthy, learned Senior counsel for

petitioner submits that the Central Government Industrial

Tribunal-cum-Labour Court, committed error apparent on

the face of record in concluding that the respondent is a

Workman and punishment of termination from service is

disproportionate.

Next, he submitted that the Tribunal erred in holding

that the respondent is a Workman. The respondent was

employed in a Supervisory capacity and drawing wages

exceeding Rs.1,600/- per mensem (Rupees One Thousand

Six Hundred only) i.e., he was drawing wages of

Rs.8,740/- ( Rupees Eight Thousand Seven Hundred and

Forty only) and which is less than Rs.10,000/- per

mensem specified for a Supervisor under Section 2(s) of

the Industrial Disputes Act, 1947 (for short 'the I.D. Act').

A further submission was that as on 04.06.2007

when the respondent was terminated from service

admittedly, he was drawing wages more than Rs.1,600/-

per mensem (Rupees One Thousand Six Hundred only).

Hence, he is not a Workman. It is submitted that as per

Section 2 (s) (iv) of I.D. Act, an employee employed in a

Supervisory capacity drawing wages exceeding 1,600/- per

month is not a Workman. Learned Senior counsel has

drawn the attention of the Court to Section 2 (s) (iv) of the

I.D. Act, 1947 (as it stood prior to the substitution

15.09.2010).

Learned Senior Counsel vehemently contended that

wage limit of Rs.10,000/- per mensem (Rupees Ten

Thousand only) in respect of an employee in a Supervisory

capacity is amended by Act No.24/2010 effective from

15.09.2010. The respondent was dismissed from service

on 04.06.2007. Hence, the wage limit of Rs.10,000/- is

not applicable to the facts of the present case.

It is further contended that assuming for a moment,

the respondent is a Workman, the Court having held that

the enquiry is fair and proper and the findings of the

Enquiry Officer is not perverse ought to have up held

punishment of dismissal of the respondent. It is submitted

that when the proportionality of punishment is examined

past record of the employee is also required to be taken

into consideration. In the present case, the charge sheet

clearly discloses the past record of the employee.

Therefore, non-consideration of the past record while

determining proportionality of punishment under Section

11-A of the I.D. Act is contrary to the judgment in KSRTC

v. A.RAMANNA reported in 2001 (2) LLJ 1212.

The Court found that the charge is proved and the

findings of the Enquiry Officer is not perverse and having

concluded that the respondent was responsible for

disciplinary action in not vacating the office space provided

to him in spite of repeated reminders.

Lastly, he submitted that the award passed by the

Central Government Industrial Tribunal-cum-Labour Court

lacks judical reasoning hence, the same is liable to be set

aside. Accordingly, he submitted that appropriate writ may

be issued to quash the award and the writ petition may be

allowed.

To substantiate his contentions, learned Senior

Counsel relied upon the following decisions.

1. ILR 2004 KAR 4890 - VISHAKANTAIAH T.N.

            Vs.    MANAGEMENT        OF    MYSORE   PETRO
            CHEMICALS LTD.
      2.    2005    (3)   SCC    134   -   MAHINDRA    AND
            MAHINDRA LTD. Vs. N.B. NARAWADE.

3. 2007 (2) SCC 433 - J.K. SYNTHETICS LTD.

Vs K.P. AGRAWAL. AND ANOTHER.

4. Sri.B.Chethan, learned counsel for respondent

justified the award.

Next, he submitted that the respondent has not

committed any misconduct as alleged by the University.

A further submission was made that the issue relates

to vacating the office space provided for the respondent.

Counsel vehemently submitted that the respondent was

always ready and willing to vacate. Hence, the allegation

that the respondent has not vacated the office space and

has not handed over the key is not correct.

Counsel submitted that the Court in extenso referred

to the material on record and held that the respondent is a

Workman and the punishment order of dismissal is

disproportionate. Accordingly, there was a direction for

reinstatement. Hence the award is justified.

Lastly, he submitted that the writ petition is devoid

of merits and the same is liable to be dismissed.

5. Heard the contentions urged on behalf of

respective parties and perused the writ papers with utmost

care.

The questions which fall for consideration are;

1. Whether the respondent is a Workman as defined under Section 2 (s) of the Industrial Disputes Act 1947?

2. Whether the Tribunal is justified in applying the wage limit at Rs.10,000/- per mensem by applying Act 24/2010 which came into effect from 15.09.2010 to the present facts and circumstances of the case?

3. Whether the award is sustainable?

6. The facts have been sufficiently stated. The

issue revolves around the respondent is a Workman or not.

The respondent was given the job responsibility of

Health Inspector to look after sanitation of all the K.M.C.

campus. The revised job responsibility assigned to the

respondent is at Annexure-'A'. It is dated 26.08.1995,

under which he was entrusted to supervise the work of

sanitary workers, water supply, sewage, waste disposal,

drainage and overall cleanliness to be looked into in each

campus.

He was provided with office space in the 3rd floor of

the college building. However, in the month of June 2006,

he was required to vacate the space that was provided to

him since the university required the same for renovation

as per the MCI guidelines. Hence, the respondent was

provided accommodation in the ground floor. A letter was

also issued to him on 15.06.2006 to vacate the office

space. But he did not obey the orders of the higher

Authority. This led to issue of show cause notice, issue of

articles of charge, explanation, initiation of domestic

enquiry. The charges were proved. Ultimately, he was

dismissed from service on 04.06.2007.

The respondent challenged the order of dismissal

and on failure of conciliation, the same was referred to the

Central Government Industrial Tribunal-cum-Labour Court

in CR No.51/2008.

It is significant to note that the University filed

detailed objection to the claim statement and specifically

contended that the respondent is not a Workman. Even

before this Court also, the University adhered to the

contention that the respondent is not a Workman. The

Central Government Industrial Tribunal-cum-Labour Court

has held that the respondent is a Workman.

As already noted above, the issue revolves around

the questions as to whether the respondent is a Workman

or not hence, it is relevant to refer to Section 2(s) as it

stood prior to Act 24 of 2010.

Section 2 (s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person─

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the

nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

A person doing work of a 'supervisory' nature has

been added in the definition of 'workman' by the amending

Act of 1956 but this clause excludes such a person who

being employed in supervisory capacity:

(1) draws wages exceeding one thousand six hundred rupees per mensem :or (2) exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Thus, any person employed in an Industry to do any

supervisory, technical or clerical work for hire or reward is

a 'Workman'. But clause (iv) contemplates that a person

employed in a supervisory capacity will also be a Workman

provided he does not draw wages exceeding Rs.1,600/-

per mensem. The determining factor is wage limit.

By virtue of Act 24 of 2010 Section 2 (iv) for one

thousand six hundred rupees the words 'ten thousand

rupees' has been substituted. The same is w.e.f.

15.09.2010.

If we read carefully this Section 2 (s), the definition

of Workman does not include any such person- Who being

employed in a supervisory capacity, draws wages

exceeding one thousand six hundred rupees per mensem

or exercises, either by the nature of the duties attached to

the office or by reason of the powers vested in him,

functions mainly of a managerial nature.

Reverting to the facts of the case, the respondent

was assigned the work which was supervisory in nature

and was drawing wages exceeding one thousand six

hundred rupees i.e., he was drawing wages Rs.8740/- per

mensem. The respondent was drawing wages exceeding

one thousand six hundred rupees as on the date of order

of dismissal.

It is perhaps well to observe that the word

'supervision' means to observe, to look after. Therefore,

'supervision' which is relevant in connection to Section 2 is

the supervision done by an employee. Justice Hidyatullah

in ALL INDIA RESERVE BANK EMPLOYEES'

ASSOCIATION AND ANOTHER v. RESERVE BANK OF

INDIA AND ANOTHER - AIR 1966 SC 305 has observed

as under:

"The word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the manual work of others".

It is needless to say that the words have to be

construed in the context of the definition but what

determines the question whether a person is doing

supervisory work or not is the nature of the duties and

function assigned to him.

As already noted above, the respondent was

assigned supervisory work. The finding of the Central

Government Industrial Tribunal-cum-Labour Court is also

that the respondent was assigned supervisory work.

Hence, it can be safely held that the duties and functions

assigned to the respondent was supervisory work. He was

drawing wages exceeding Rs.1600/- per mensem.

Therefore, the respondent does not come under the

definition of Workman.

However, the Central Government Industrial

Tribunal-cum-Labour Court has applied the wage limit of

Rs.10,000/- and concluded that he is a Workman. In my

considered opinion, the Central Government Industrial

Tribunal-cum-Labour Court has erred in applying Act 24 of

2010 to the facts and circumstances of the case. The

application is bad because the same was given effect to

from 15.09.2010. Whereas, the respondent was dismissed

from service in the year 2007 itself. Hence, what is to be

applied Section 2 (s) (iv) of the I.D. Act as it stood prior to

substitution. Hence, he is not a Workman within the

meaning of Section 2 (s).

Therefore, I have no hesitation in holding that the

Central Government Industrial Tribunal-cum-Labour Court

has misdirected itself and erred in holding that the

respondent is a Workman. The finding of the Central

Government Industrial Tribunal-cum-Labour Court is

unsustainable.

Having held that the respondent is not a Workman,

the award of reinstatement with 50% back wages,

continuity of service and other consequential benefits that

is awarded by the Central Government Industrial Tribunal-

cum-Labour Court is quashed.

7. In the result, the writ petition is allowed. This

Court exercising the power under Articles 226 & 227 of the

Constitution of India issues a writ of certiorari to quash

the award dated 16.02.2015 passed by the Central

Government Industrial Tribunal-cum-Labour Court in

CR No.51/2008. Accordingly, it is hereby quashed.

Sd/-

JUDGE

TKN/VMB