Jk Tyre And Industries Limited vs Sushil Kumar (2023/Rjjd/012497)
2023 Latest Caselaw 3714 Raj

[2023/RJJD/012497]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11762/2019

Jk Tyre And Industries Limited, A Public Limited Company Duly Incorporated Under The Companies Act, 1956, Having Its Head Office At Patriot House 3, Bhadur Shah Zafar Marg, New Delhi- 110002 And Having Its Unit At Jay Kay Gram, Post Office- Tyre Factory Kankroli- 313342 (Rajasthan), Through Its General Manager (Commercial) Mr. Anil Mishra S/o Yogendra Nath Mishra, Aged About 54 Years, Resident Of A-7, Jay Kay Colony, Kankroli, District- Rajsamand (Rajasthan).

----Petitioner Versus Sushil Kumar S/o Late Shri Nakshtra Kumar Mehta, Aged About 56 Years, Resident Of 31-D, Bapu Nagar, Senti, District- Chittorgarh (Rajasthan).

----Respondent Connected With S.B. Civil Writ Petition No. 14172/2019 Sushil Kumar S/o Late Shri Nakshtra Kumar Mehta, Aged About 56 Years, Resident Of 31-D, Bapunagar, Senti, District Chittorgarh.

----Petitioner Versus

1. J.K. Tyres And Industries Ltd., Through Chief Managing Director, 3, Bahadurshah Jafar Marg, Link House, New Delhi- 110002.

2. J.K. Tyres And Industries Ltd., Through Chief General Manager, 3, Bahadurshah Jafar Marg, Link House, New Delhi- 110002.

----Respondents

For Petitioner(s) : Mr. Vikas Balia, Senior Counsel assisted by Mr. Dinesh Pal Singh, Mr. Sachin Saraswat, Mr. Lalit Parihar, Mr. Sharad Kothari For Respondent(s) : Mr. R.S. Choudhary

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JUSTICE DINESH MEHTA Order

27/04/2023

I.A. No. 02/2019:

1. The present application under Section 17-B of the Act of

1947 has been rendered infructuous, as the respondent has

attained the age of superannuation.

2. The application is dismissed having been rendered

infructuous.

I.A. No. 01/2019:

3. The matter has been placed for consideration of the

application under Article 226(3) of the Constitution of India also,

by which the respondent has prayed that the interim order dated

14.08.2019 be vacated.

4. Apart from the contentions on the correctness of the findings

of the Tribunal, fundamental issue of Tribunal's jurisdiction has

also been raised in the present petition.

5. On 14.08.2019, a co-ordinate Bench of this Court granted

interim order considering various submissions made by learned

counsel for the petitioner, including that the respondent - Sushil

Kumar, who was appointed as Supervisor and drawing salary of

Rs.45,000/- per month, cannot be treated to be workman within

the meaning of Section 2(s) of The Industrial Disputes Act 1947

(hereinafter referred to as the 'Act of 1947')

6. Mr. Balia, learned Senior Counsel invited Court's attention

towards the respondent's initial appointment order dated

24.09.1996 and highlighted that the respondent was appointed as

Supervisor (Inspection/Testing). Thereafter he navigated the Court

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through Annexure-3, encapsulating the responsibilities of the

respondent and highlighted that all the key activities which the

respondent was required to discharge treads him out of sweep of

the definition of 'workman'.

7. The Court's attention was also drawn towards the last salary

slip (Annexure-7) in order to buttress his stand. He pointed out

that not only the respondent's designation has been shown as

Senior Service Engineer but also his salary has been shown as

Rs.45,000/- (more than the upper ceiling given under clause (iv)

of Section 2(s) of the Act of 1947) in a bid to bring home his

argument that the respondent was not a 'workman' at any point of

time.

8. Having invited Court's attention towards the documents

aforesaid, learned Senior Counsel argued that the learned Labour

Court has committed an error of law in not deciding petitioner's

preliminary objection in accordance with law. He argued that the

Tribunal has held the respondent to be a workman, simply by

recording a finding that there was no employee working under him

and he had no authority to grant leave etc., which cannot be a

decisive factor as has been held by the Supreme Court in the case

of S.K. Maini vs. M/s. Carona Sahu Company Ltd. : (1994) 3

SCC 510.

9. Per contra, Mr. Choudhary, learned counsel appearing for the

respondent submitted that merely because the respondent's

appointment order shows him to be a Supervisor, he cannot be

treated to be a person other than a workman. He argued that

according to judgments of Hon'ble the Supreme Court and other

High Courts, the Tribunal / Court is required to examine the

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documentary and oral evidence to ascertain as to whether the

claimant has worked as a Supervisor or in managerial capacity.

10. Learned counsel invited Court's attention towards the

promotion order (Annexure-3) of the respondent, in which he has

been shown as Senior Service Engineer / Service Engineer and

argued that at the time of his termination, the respondent was

Senior Service Engineer / Service Engineer and not Manager or

Supervisor, neither any person was working under him nor was he

having any supervisory role. He thus, argued that the respondent

was covered by the definition of 'workman' and the claim filed by

him was maintainable under the Act of 1947.

11. Learned counsel cited judgment of Karnataka High Court in

the case of Pam Network Limited vs. Sri B. Balakrishna

Nayak reported in (2011) 1 LLJ 596, in order to give strength to

his stand.

12. Having heard the learned counsel for the parties and upon

perusal of the material available on record, more particularly, the

appointment order dated 24.9.1996 (Annexure-2), whereby the

respondent has been appointed as 'Supervisor'

(Inspection/Testing), this Court is of the prima-facie view that the

respondent having been appointed as a Supervisor, drawing a

salary of Rs.3,500/-, was not a workman as he was drawing salary

of more than Rs.1600/-.

13. When the respondent was terminated, he was working as

Senior Service Engineer/Service Engineer and was getting salary

of more than Rs. 45000/- and thus, he cannot be termed as a

'workman'.

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14. The moot question, which has been raised in the present writ

petition is as to whether the respondent drawing salary of

Rs.45,000/- at the time of termination and working as Senior

Service Engineer/Service Engineer can be treated to be a

workman so as to be covered by the provisions of the Act of 1947?

15. For the present purpose, the definition of 'workman' given

under Section 2(s) of the Act of 1947 needs to be borne in mind,

which is reproduced hereunder:-

"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 [ten thousand 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."

16. A careful reading of the definition shows that it is a

restrictive definition and not inclusive one. Not only the opening

words of the definition, which uses expression "means" limits the

scope, even the closing words makes the definition more

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restrictive by use of expression "does not include". If the nature of

duties of employees used in the definition are taken into

consideration, they are essentially meant for the personnel,

working in lower rung of an industry. So far as personnel working

on supervisory work are concerned, though they have been

included, but their inclusion too has been capped on the basis of

wages they draw (Rs.1,600/- upto 15.09.2010 and Rs.10,000/-

thereafter, as the case may be).

17. Clause (iii) of the definition in no ambiguous terms excludes

personnel working mainly in a managerial or administrative

capacity, while clause (iv) excludes the persons employed in

supervisory capacity and draws wages exceeding Rs.10,000/-.

18. It is noteworthy that even clause (iv) meant for persons

employed in supervisory capacity also uses the expression

"wages" and not salary.

19. It is only supervisor, which has been included in the

definition of workman that too in the case where he draws salary

less than Rs.1600/- upto 15.09.2010 and less than Rs.10,000/-

thereafter.

20. In view of the aforesaid, in the prima-facie opinion of this

Court, the respondent having worked as Senior Service Engineer /

Service Engineer cannot be brought within the ambit of 'workman'

as defined under Section 2(s) of the Act of 1947.

21. Though various judgments have been cited by the rival

counsel but the same are not exactly on the point involved in the

present case. The question is of great significance and relates to

the very jurisdiction of the Tribunal to entertain and decide case

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filed by the respondent and other persons alike him and thus,

detailed hearing is required.

22. The application (I.A. No. 01/2019) is thus, rejected.

23. Admit. Issue notice.

24. Mr. R.S. Choudhary accepts notice on behalf of the

respondent.

S.B. Civil Misc. Stay Application No. 11737/2019:

25. Heard the learned counsel for the parties on stay application.

26. The interim order dated 14.08.2019 passed by this Court is

confirmed to last till disposal of the writ petition.

27. Stay application stands disposed of, accordingly.

(DINESH MEHTA),J 62-Mak/-

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