Karnataka High Court

M/S Bharati Airtel Limited vs Sri. A S Raghavendra on 31 March, 2022

Bench: Alok Aradhe, S Vishwajith Shetty

                              1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF MARCH 2022

                        PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

   THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

             W.A. No.4067 OF 2019 (L-TER)
                          IN
             W.P. No.13842 OF 2018 (L-TER)
BETWEEN:

M/S. BHARATI AIRTEL LIMITED
NO.55, DIVYA SREE TOWERS
BANNERGHATTA ROAD
BENGALURU 560029
REP. BY ITS LEGAL MANAGER AND
AUTHORISED REPRESENTATIVE
SRI. SIDDAVEER CHAKKI.
                                             ... APPELLANT
(BY MR. K. KASTURI, SR. COUNSEL FOR
  MRS. YESASWINI, ADV.,)

AND:

SRI. A.S. RAGHAVENDRA
AGED ABOUT 47 YEARS
S/I SRI. A.G. SRINIVAS ROAD
RESIDING AT HOUSE NO.111
DHARMASHREE 1ST H CROSS
2ND MAIN ROAD, 3RD STAGE
4TH BLOCK, SHARAHDA COLONY
BASAVESHWARANANAGAR
BENGALURU 560079.
                                      ... RESPONDENT
(BY MR. C.G. GOPALASWAMY, ADV.,)
                                 2




     THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE
LEARNED SINGLE JUDGE DATED 29.11.2019 IN WRIT PETITION
NO.13842/2018 (L-TER) AND CONSEQUENTLY UPHOLD THE
AWARD DATED 05.09.2017 REF. NO.21/2013, ANNEXURE -S
PASSED BY THE SECOND ADDITIONAL LABOUR COURT,
BENGALURU AND PASS SUCH OTHER APPROPRIATE ORDERS AS
DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.

     THIS W.A. COMING ON FOR FURTHER HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This intra court appeal has been filed against the order

dated 29.11.2019 passed by learned Single Judge, by which

writ petition preferred by the respondent has been allowed in

part and the award dated 05.09.2017 passed by the second

Additional Labour Court, Bangalore, rejecting the reference

under Section 10(1)(c) of the Industrial Disputes Act, 1947

(hereinafter referred to as 'the Act' for short) has been set

aside and the matter has been remitted to the labour court

for deciding the other issues within a period of three months.

2. Facts giving rise to filing of this appeal in nutshell

are that the appellant is a leading global telecommunication

company and provides mobile services and tele media

services in 18 countries. The respondent was appointed as

Senior Manager on 22.06.2019 and was posted in

Government Vertical Business Department of the appellant.

It is the case of the respondent that he was looking after the

tender related works with the Central Government relating to

'Machine Mode Project'. The respondent tendered resignation

on 24.03.2011. The respondent thereupon raised an

industrial dispute before the Deputy Labour Commissioner

and Conciliation Officer, Bengaluru on the ground that

resignation was obtained from him under coercion and

duress. The appellant filed statement of objections.

3. However, the Conciliation ended in failure and

the Government of Karnataka referred the dispute under

Section 10(1)(c) of the Act for adjudication to the Labour

Court. The respondent filed a statement of claim, whereas,

the appellant filed a counter statement. The respondent

examined himself as a witness and was cross examined. A

witness viz., Siddaveer Chakki (MW1) was examined as

witness on behalf of the Management. The Labour Court by

an award dated 05.09.2017, inter alia, held that the

respondent is not a workman within the meaning of Section

2(s) of the Act. Accordingly, the reference was rejected.

4. The award passed by the Labour Court was

challenged before the learned Single Judge, who by an order

dated 29.12.2019, inter alia ,held that the respondent is a

'workman' within the meaning of Section 2(s) of the Act. It

was further held that the Labour Court did not record any

finding regarding the issue whether the respondents

purported resignation being a product of coercion, amounts

to retrenchment or not. The learned Single Judge therefore,

set aside the award dated 05.09.2017 passed by the Labour

Court and remitted the matter to the Labour Court for

adjudication on the other issue within an outer limit of three

months. In the aforesaid factual background, this appeal has

been filed.

5. Learned Senior counsel for the appellant

submitted that there is no pleading in the statement of the

respondent that he was a 'workman' and therefore, in the

absence of any pleading, no evidence can be led to prove

that respondent is a workmen. Our attention has been

invited to the job profile submitted by the respondent as well

as to the order of appointment of the respondent and it is

submitted that the respondent was appointed on the post of

Senior Manager and was performing managerial functions.

Learned Senior counsel has also referred to the e-mails sent

by the respondent in support of the contention that the

respondent is not a workmen within the meaning of Section

2(s) of the Act. It is pointed out that the resignation tendered

by the respondent was due to coercion and was taken after a

period of one and half years and therefore is an afterthought.

It is contended that after tendering the resignation, the

respondent worked for a period of 45 days and could have

withdrawn his resignation. It is further contended that a

person in charge of sales cannot be termed as 'workman'. It

is urged that on the basis of material available on record, if

two views are possible, this court in exercise of powers under

Article 226 of the Constitution of India cannot act as a court

of appeal, especially in the absence of the finding, that

findings recorded by the labour court is perverse. In support

of aforesaid submissions, reliance has been placed on

decisions of Supreme Court in AGNANI VS. BADRIDAS

AND OTHERS', 1963 (1) LLJ 684, 'MANAGEMENT OF

M/S MAY AND BAKER (INDIA) LTD. VS. THEIR

WORKMEN', AIR 1967 SC 678, 'MUKESH K TRIPATHI

VS. SENIOR DIVISIONAL MANAGER, LIC AND OTHERS',

(2004) III LLJ 212, 'HAKEEM KHAN AND OTHERS VS.

STATE OF MADHYA PRADESH', (2017) 5 SCC 719 and

division bench decision of HIGH COURT OF MADRAS in

THE MANAGER, THE SCIENTIFIC FERTILIZER COMPANY

PVT. LTD. VS. PRESIDING OFFICER, LABOUR COURT

AND ORS., (2007) 6 MLJ 1723 and division bench

decision of High Court of Bombay in 'VANDANA JOSHI

VS. STANDARD CHARTERED BANK LTD.,', 2011-II LLJ

261 (BOM.).

6. On the other hand learned counsel for the

respondent submitted that even though the respondent has

not used the expression 'workmen' expressly but has

mentioned the nature of duties performed by the respondent.

It is also urged that the terms of reference are clear and

therefore, no prejudice has been caused to the appellant. It

is submitted that respondent was part of sales department

and the appellant in the memo of appeal itself in para 7 has

mentioned the nature of duties performed by the respondent.

It is also submitted that the respondent was neither involved

in any managerial function nor had any managerial

responsibility. It is pointed out that the appellant did not file

statement of objections before the learned Single Judge and

it is not the case of the appellant either before the labour

court or before the Single Judge that the respondent is a

sales employee. In this connection, reference has been made

to the evidence adduced by the parties.

7. We have considered the submissions made on both

sides and have perused the record. The Government of

Karnataka vide order dated 27.06.2013 referred the points of

dispute between the parties for adjudication. The points of

reference read as under:

1) Whether the first party, Sri AS Raghavendra, aged about 45 years, residing at No.111, 'Dharmashree'' 3rd stage. 4th block, Sharada Colony, Basaveshwaranagar, Bengaluru-79, proves that he falls under the definition of 'Workman' as per Section 2(s) of the Industrial Disputes Act, 1947?

2) Whether the second party management, Bharathi Airtel Limited, Prestige Technology Park, Jupiter Tower, 1st Floor, Kadabesasnhalliu, Marathhalli, Outer Ring Road, Bengaluru-103, is justified in obtaining the

resignation dated 09.05.2011 from the first party Mr.AS Raghavendra, residing at No.111, 'Dharmashree'' 3rd stage. 4th block, Sharada Colony, Basaveshwaranagar, Bengaluru-79 and imposing punishment of removal from service?

3) If not, what order?

8. Thus from perusal of order of reference, it is evident

that the parties were aware about the points of reference and

the main dispute between the parties was whether the

Respondent is a 'workman' as per Section 2(s) of the Act.

The appellant in Paragraph 4 to 6 of its counter statement

before the labour court has taken a specific plea that the

Respondent is not a 'workman' within the meaning of

Section2(s) of the Act. Thus, merely because the respondent

had failed to state in the statement of claim that he is a

'workman', the same does not cause any prejudice the

appellant in any manner. It is pertinent to note that the

parties knew the case of each other very well and led

evidence.

9. In the counter statement in Page 6, the appellant

has taken a stand that the post of senior manager is only a

glorified designation and does not indicate the job, duties or

work profile of the Respondent. Mr. Siddaveer Chakki was

examined on behalf of the appellant and MW1 who in

Paragraph 20 of his cross-examination has admitted that as

'Government Vertical Employee' the Respondent was

required to liaison with the Government. In Paragraph 5 of

the affidavit of the aforesaid witness filed before the Labor

Court, has stated that 'it is clear from his job profile that he

was accountable for ensuring and achieving sales targets'.

The aforesaid witness has also admitted that appellant had

not issued any letter regarding the nature of duties of the

Respondent and there no document to show that he is an

assessing manager. Learned Single Judge has also held that

the Respondent was also looking after the tender related

works with Central Government relating to 'Machine Mode

Project'. The nature of duty of the Respondent does not

involve any managerial or supervisory or decision making

activity. In so far as the award and recognition given to

Respondent No.2 is concerned, it is the stand of the appellant

that the respondent was given the award for being part of

the team.

10. It is pertinent to take note of the averments made

about the nature of duties performed by the Respondent in

Paragraph 7 of the memo of this appeal which is extracted

below for the facility of reference:

7. The Respondent was looking after tender work of Central Government regarding machine mode project pertaining to the appellant company in 4 southern states. The ender process was being intimated by the Respondent to the Delhi Head Office. The Respondent had to see release of budget in the concerned department, explore business opportunities for Airtel and after release of tender form, inform the same to the Head Office. The respondent was also required to go and visit the concerned persons n the Government Department like IAS Officers, Secretaries, General Mangers of the Corporate world in the 4 Southern states.

11. It is pertinent to note here that salary is not he

criteria to determine whether an employee is a 'workman' or

not. The learned Single Judge has taken into the following

material on record to hold that the respondent was not

employed in supervisory/managerial cadre which read as

under:

(i) Exs. M7 (Annexure-J) & Ex.8 (Annexure-K) mentions petitioner as Assessing Manager, one Mr. Harjinder Singh Kohli is described as Reporting Manager; this document does not reflect as to how and by whom it is

generated; the Management Witness in his cross- examination dated 14.02.2017 admits that when the petitioner was in the employment, the said Harjinder Singh Kohli was not working with the Management at all in the cross-examination dated 5.4.2017, the said witness has denied the suggestion that all the five documents are doctored and manipulated; in these circumstances, this document does not advance the case of the respondent - Management that petitioner was in the supervisory/managerial cadre;

(ii) the Exs. M10, M11 & M12 respectively at Annexures L, M & N specifically mention name of the petitioner with the designation "worker" but arguably, they may assist the case of the petitioner; this apart, these are the documents generated from the computer of the employer as admitted by the Management Witness in his cross-examination dated 5.4.2017 therefore, these documents do not advance the case of the Management at all;

12. The learned Single Judge has thereafter

distinguished the decisions on which reliance has been placed

on behalf of the appellant and it has further been held that

even though an issue whether the resignation of the

respondent amounts to retrenchment, was framed, no finding

has been recorded on the aforesaid issue. Therefore, the

matter has been remitted the Labor Court to adjudicated the

other issues.

13. Undoubtedly, it is true that this Court in exercise of

powers under Article 226 of the Constitution of India cannot

act as a court of appeal. However, it is well settled in law

that the issue whether a person is workman or not need to