A senior accountant challenged denial of relief on the ground that he was not a workman. The Court held that he fell outside Section 2(s) of the Industrial Disputes Act, found no infirmity in the Labour Court award, and dismissed the petition and accompanying application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 12.07.2017 Judgment Pronounced On: 01.05.2019
W.P.(C) 8280/2014
TRILOKI NATH CHAUDHARY
..... Petitioner
Through: Mr. Sarfaraz Khan and Mr. Mirza Amir Baig, Advocates.
Versus
SHRI HARI OVERSEAS (P) LTD.
..... Respondent
Through: Mr. Yogesh Swaroop & Mr. Prashant Kumar Mittal, Advocate.
CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA
J U D G M E N T
ANU MALHOTRA, J.
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Rs.24,000/- per month and his services were terminated on 16.06.2012, which the petitioner contended were illegally and unjustifiably terminated without any notice and without the petitioner having been paid the salary for the month of June 2012, bonus and other service benefits to the workman for which the petitioner is indicated to have served a legal notice to the management on 22.06.2012 calling upon the management to pay the salary for the month of June 2012 with bonus and service benefits, to which a reply dated 27.06.2012 was sent on behalf of the respondent. It was stated by the respondent that it was the petitioner who was not coming to the office from 16.06.2012 and had not even informed his superiors nor the HR Department and reliance was placed by the respondent on clause 11 of the appointment letter issued by it to the petitioner on 09.06.2011 wherein it had been stated to the effect:-
"That absence for a continuous period of 7 days without leave (including the case when leave though applied for is not granted by the company) and if there is over stay by 8 days, it will be taken as you have left the service. If you, by presenting on ninth day satisfied the management, then management has right to take you back on work. But if you will not present on work on even ninth day then nothing will be considered if you are ill"
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as he had not been able to claim any employment after the illegal termination of his services by the respondent. The respondent/ management filed its written statement and contended that the petitioner did not fall within the definition of ‘ workman’ under Section 2(s) of the Industrial Disputes Act, 1947 in as much as he was a Senior Accountant and had been discharging mainly managerial and administrative functions and had been reporting directly to the In-charge of the Finance and Accounts department of the company and the petitioner was drawing a salary of Rs.24,000/- per month and could not be held to be a ‘workman’ under the Industrial Disputes Act, 1947 and that the predominant nature of his duties were administrative or managerial and to some extent supervisory in nature. The respondent/ management further contended that whether or not an employee fall within the definition of Section 2(s) of the Industrial Disputes Act, 1947 was required to be determined with reference to the principal nature of duties and functions of the employee and such question was required to be determined with reference to the facts and circumstances of the case and materials on record and it was not possible to lay down any strait-jacket formula which could decide the dispute as to the real nature of duties and functions being performed by an employee and that the determinative factor was the main duties of the employee concerned and not some works incidentally done and that in substance, the work which the petitioner was employed to do was that, that had to be looked into and thus, as the petitioner was mainly doing supervisory work but incidentally or for a fraction of time also did some manual or clerical work, he could not be held to be not doing supervisory work.
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statutes and that he was fully conversant with all the regulations in force with regard to consolidation of accounts for the purpose of statutory audit, filing returns for direct taxes, indirect taxes and local taxes and all these functions were administrative and managerial and that the principal function of the petitioner was of administrative and managerial nature invested with the power of supervision in contrast to the stereotypical work of a clerk and that the petitioner occupied a position of command or decision and was authorized to act in certain matters within the limits of his authority.
“1. Whether the claimant is a ‘workman’ within the definition of section 2(s) of the I.D.Act? OPW
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2. Whether the workman has remained absent and abandoned the job of his own? OPM.
3. Whether the services of the workman have been terminated by the management illegally and/or unjustifiably? OPW.
4. Relief.”
“12. The workman was cross-examined by Ld. AR for management and in cross- examination he deposed that his job profile in the management was voucher entry, voucher making, accounting on tele base system on computer entry of sale and purchase bills in books of accounts, balance outstanding of various customers, bank reconciliation, branch reconciliation and he was even sent sometimes to the banks. he was also asked to prepare details of sales tax, again said details of the sales. He further deposed that he was not primarily entrusted with the job like preparation of tax details of the management lime services tax, VAT or sales tax and he was reporting regarding my duties to the Accounts Manager. He further deposed that no subordinate was provided to him for assisting him in his work. He denied to the suggestion that he was reporting his duties to Ms. Sonal Gupta, C.E.O.”
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had been directly reporting to the In-charge of the finance and accounts department in the company with the monthly salary of Rs.24,000/- and was not a ‘ workman’ in terms of Section 2(s) of the Industrial Disputes Act, 1947. To similar effect was the testimony of MW-1 on cross-examination conducted on behalf of the petitioner.
“17. The workman in his cross-examination admitted that his job profile in the management was voucher entry, voucher making, accounting on tele base system on computer, entry of sale and purchase bills in books of accounts, balance outstanding of various customers, bank reconciliation, branch reconciliation and he was even sent sometimes to the banks and he was also asked to prepare details of sales. The functions being performed by the workman itself appears to be of administrative and managerial in nature. In view of evidence of the workman and definition of section 2 (s) of' I.D. Act, the court is of the opinion that the claimant is not a
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'workman' within the definition of section 2(s) of the Industrial Disputes Act and as such it is held that the workman has failed to prove this issue. Issue no.1 is decided against the workman.”
and thus, concluded that the petitioner did not fall within the category of a workman under Section 2(s) of the Industrial Disputes Act, 1947, in as much as the functions performed by him appeared to be administrative and managerial in nature.
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“Subject: Appointment letter for the post of Sr. Accountant
Dear Sir,
1. This appointment is with effect from 09.06.2011 subject to confirmation of your joining report and signed copy of appointment letter.
2. That you will be paid an Annual CTC of Rs.240.000 (Two Lacs Forty Thousand Only) consolidated.
3. That your probation period will be for 3 months after three months by the recommendation of your HOD & Management, you will become a permanent employee of the company.
4. That you will be eligible for leaves and other benefits as per the service rule of the Company as in vogue or altered from time to time. The company has right to amend the rules, which shall be applicable to you.
5. That you will observe strict secrecy in respect of information, formula and working of Office & Plant in particular and procedure practices adopted by the Company. You will not divulge any information to anyone.
6. That during the tenure of your employment, you are expected to devote whole heatedly for work of the company and will not take-up any other employment, allocation, trade, business or self-employment in your own name or in the name of your family members without seeking prior written permission from the employer. Violation of this clause will render you for swear disciplinary action. It is further clarified that you cannot engage yourself even without enumeration. This
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is strictly for the reason so that the work of company may not suffer.
7. That you will carry out such duties as assigned to you from time to time and you will not refuse to carry out any such duty. The management has inherent right to charge your designation without notice but while doing so your remuneration cannot be adversely affected.
8. That your head quarter for present is at New Delhi but it can be changed to such other place that may be decided by the organization and communicated to you. Thus, your headquarter is likely to be changed.
9. That your can be transferred to one section from other section from one department to other and from one shift to another keeping in view the exigency of the work without any notice. You will not refuse to carry out such orders.
10. That company is competent to transfer you anywhere in India as the company has the broad base and branches all over India. You cannot refuse to carry out the order of transfer and after transfer you will become the employee of the place where you stand transferred. The company has right to transfer you without affecting any change in remuneration, allowances or other benefits.
11. That absence for a continuous period of 7 days without leave (including the case when leave though applied for is not granted by the company) and if there is over-stay by 8 days, it will be taken as you have left the service. If you, by presenting on ninth day satisfied the Management then Management has right to take you on work. But if you will not present on work on even ninth day then nothing will be considered if you are ill.
12. In case of gross negligence insubordination, fraud, disobedience of order, misbehavior with your seniors or any misconduct alleged against you or breach of any terms and conditions of this agreement, you will be liable
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for suspension pending any enquiry for which no wages shall be paid to you. If you are found guilty your services will be terminated forthwith and you shall not be entitled to any notice or Compensation.
13. Notwithstanding the condition in paragraph 18 above, if at any time in our opinion, which will be final in the matter, you are found indulging in any conduct considered by us detrimental to our interest or of violation of one or more terms and conditions of the letter, you services can be terminated without notice and compensation.
14. If at any time the company finds that the information supplied by you at the time of appointment or later on is false, it would entail automatic termination of your service without notice or compensation.
15. The written notice of termination of this contract of employment for Permanent employee will be One (1) months by either party or One months' gross salary in lieu of notice period. In case you (permanent employee) leave your employment without giving requisite notice, no relieving order will be issued and settlement of dues will be at the discretion of the Management. The Management reserves the right to deduct, as liquidated damages, an amount equal to One months' gross salary from any amount that may be due to you and if the same is not available or is insufficient then the Management shall have the right to recover such amount as found due from you in any manner deemed fit.
16. At the time of leaving the company, you have to return the all documents/articles/Any Assets (like Laptop, Data Card, Mobile Phones etc) or ay other things of the company.
17. You will not do any act publically, which affects the image of the company and other employees.
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18. You will not take your grievances, disputes or anything else related with company publically or to any lawful authority and will not do any? act which will hamper the work of company in any kind before taking them to the machinery appointed by company for the settlement of disputes and grievances or anything else, you also have to give reasonable time to company.
19. Company can take you performance test periodically. In case you fail in these tests, management can take action against you what it feel deem fit.
20. Your conviction by any criminal court for offence which involves moral status will make an end your employment with us.
21. Kindly sign the duplicate copy of this letter and return the same to us as token of your acceptance of the appointment on the above terms and conditions.
22. All the Legal Cases related to employment will be settled in Delhi jurisdiction.”
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Disputes Act, 1947. The petitioner further submits that it is not the designation which is material but rather the nature of duties that the petitioner performed which had essentially to be considered by the learned Labour Court-IX and also submitted that the duties performed by the petitioner of up keep of books of accounts, re-conciliation of accounts, data entry in books of accounts, reconciliation of accounts related to inter branch ledger account, creditors account, debtors account and details necessary for preparation of sale tax return cannot be said to be administrative, managerial nor supervisory in nature. Inter alia the petitioner submitted that the forged and fabricated letters/notices dated 27.06.2012 and 02.07.2012 had been placed on record by the respondent and an adverse inference was necessarily to be drawn against the respondent.
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conditions of the contract of service applicable to his job and thus, he could not be reinstated nor could he claim any back wages.
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& Anr.” [110 (2004) Delhi Law Times 101], to submit that the term “ Industry” , “ workman” and “industrial dispute” are not to be interpreted so as to whittle down the object of the enactment.
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learned Labour Court has already decided the issue against the respondent which has not been challenged by any cross counter petition filed by the respondent herein and is thus, been held to have been admitted to the extent of termination of the services of the petitioner illegally.
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voucher entry, voucher making, accounting on tele base system on computer, entry of sale and purchase bills in books of accounts, balance outstanding of various customers, bank re-conciliation, branch re-conciliation and he was even sent sometimes to banks and he was also asked to prepare details of sales but he stated that he was not entrusted primarily with the job of preparation of tax details of the management like service tax, VAT or sales tax for which there was a Chartered Accountant to deal with the tax matters. He stated that he was reporting in relation to his duties to the Accounts Manager and no subordinate was provided to him for assisting him in his work. He denied that he was reporting for his duties to Ms. Sonal Gupta CEO. MW-1, Ms. Poorva, Executive, HR with the respondent who was examined on behalf of the respondent, stated that the petitioner was appointed on the post of the Senior Accountant and was doing managerial works and administrative works. Though, she stated that she did not have any documentary evidence to prove that the petitioner was doing managerial and administrative work but volunteered that it was obvious that since his post was of a Senior Accountant, he would have doing managerial and administrative work.
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as for instance, it decides questions without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. However, as observed by the Hon’ble Supreme Court in the said verdict vide para 7 thereof, though, a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court and this limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings and an error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be and that in regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding and similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari and that a Court must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings by a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding and the adequacy or sufficiency of evidence led on a point and the inferences of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court and that it is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.
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“8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon
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the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”
“7. The arguments advanced on behalf of the petitioner workman, if entertained, would amount to interfering with the findings of facts as arrived at by the Labour Court after due appreciation of evidence. Law is well settled in this respect that the Labour Court is the final court of facts and it is not appropriate for this Court, while exercising jurisdiction under Article 226 of the Constitution, to reappreciate evidence or to interfere with the findings of facts as arrived at by the Labour Court. The jurisdiction exercised by the writ court under Article 226 is supervisory and not appellate in nature. Reappraisal of evidence without sufficient reason in law, to arrive at a finding of fact contrary to those arrived at by the Subordinate Court, is not the intent of exercising the powers of judicial review. Reliance in this regard can be placed on the following judgments of the Supreme Court:
(i) Harbans Lal v. Jagmohan Saran
(ii) B.C. Chaturvedi v. Union of India
(iii) Indian Overseas Bank v. I.O.B. Staff Canteen Workers? Union AIR 2000 SC 1508
(iv) P.G.I. of Medical Education and Research Chandigarh v. Rajkumar (2001) 2 SCC 54.
(v) Municipal Corporation of Delhi v. Asha Ram and Anr.”
and thus, in that case where it was observed that that findings of the Labour Court were based on an appreciation of the material placed on the record
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which findings were neither perverse nor arbitrary nor capricious, it was held that it did not warrant any interference.
“19. Viewed in this background of the legal position, it is necessary to determine whether the Petitioner performed duties of a clerical nature as contended by his learned counsel or not. A perusal of the duties performed by the Petitioner, as stated by him in response to a Court question suggests that his duties were only, if not primarily, clerical in nature. He was required to write accounts and prepare related statements of accounts. He was also required to make entries of the vouchers in the
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account books. While he was performing accountancy work in Delhi, it was only on the basis of and according to the guidelines issued by the Chief Accountant and the Chartered Accountant who used to come from Patna. The activities that the Petitioner performed in relation to cash, that is, to deposit cash in the bank or to withdraw it, were under the supervision of the Technical Director. The daily accounts of the cash in hand prepared by the Petitioner were checked and signed by the Technical Director. It was only after the Technical Director authorised the issue of vouchers for payments that they were entertained by the Petitioner. In other words, there was little work that the Petitioner could do on his own. Most of the accounting work was done by him on the basis of guidelines issued by the Chief Accountant or the Chartered Accountant. The day-to-day work in relation to cash or cheques was done by the Petitioner under the supervision of the Technical Director. Quite clearly, the work done by the Petitioner fell in the category of clerical work and nothing more.”,
to submit that the facts and circumstances of the said case relied upon are in pari materia with the facts and circumstances of the instant case. The petitioner also similarly places reliance on the verdicts “Anand Regional Co.Op Oil S. Union Vs. Shailesh Kumar Harshadbhai Shah” [2006] (6) SCC 548, “Ananda Bazar Patrika (P) Ltd. V. Workmen”[(1970) 3 SCC 248], “National Engineering Industries Ltd. Vs Shri Kishan Bhageria & Ors.” AIR 1988 SC 329, “Muralidharan K. Vs. The Management of M/s Circle Freught Intl (India) P. Ltd.”[ILR (2007) II Delhi 312], K.H. Pandhi Vs. The Presiding Officer, Addl. Labour Court & Anr.” [110 (2004) Delhi Law Times 101].
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matters. He had stated however, that there was no subordinate provided to him for assisting him in his work.
“3. The Deponent on oath deposes that the applicant was appointed to the post of senior accountant and used to discharge managerial and administrative functions and had been reporting directly to the In-Charge of the Finance and Accounts department of the Company, the Applicant was drawing a salary of 24,000 per Month and the predominant duties of the applicant were managerial in nature. The applicant was always part of the strategic team responsible for the framing of corporate strategy of the Company. The Applicant was required to keep and maintain proper books of accounts of the Company as per the requirement of the various statutes. The Applicant was required to keep himself fully conversant with all the regulations in force which may come into force from time to time with regard to, consolidation of Accounts for the purposes of statutory audit, filing returns for Direct Taxes, Indirect Taxes, and Local Taxes and/or for complying the requirement of any other local regulation applicable to the Management. Further the Applicant had the responsibility to co-ordinate with the Bankers of the Company and to safeguard the interest of the Company against levy of any fine/penalty imposed and/or prosecution launched against the Company. The principal function of the appellant was of administrative and managerial nature invested with the power of supervision in contradistinction to the stereotype work of a clerk and was occupying a position of command or decision and was authorized to act in certain matters within the limits of his authority. Therefore, the application shall be dismissed with cost.”
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ANU MALHOTRA, J.
MAY 1st , 2019/NC
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2 issues framed by the court
Whether the senior accountant fell within the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947.
Whether the Labour Court's determination of workman status warranted interference under Article 226.
Colour shows how this judgement treated each authority
Anand Regional Co.Op Oil S. Union Vs. Shailesh Kumar Harshadbhai ShahRelied on¶100
“Anand Regional Co.Op Oil S. Union Vs. Shailesh Kumar Harshadbhai Shah” [2006] (6) SCC 548 · Who else cites this
Ananda Bazar Patrika (P) Ltd. V. WorkmenRelied on¶100
“Ananda Bazar Patrika (P) Ltd. V. Workmen”[(1970) 3 SCC 248] · Who else cites this
National Engineering Industries Ltd. Vs Shri Kishan Bhageria & Ors.Relied on¶100
“National Engineering Industries Ltd. Vs Shri Kishan Bhageria & Ors.” AIR 1988 SC 329 · Who else cites this
Muralidharan K. Vs. The Management of M/s Circle Freught Intl (India) P. Ltd.Relied on¶101
“Muralidharan K. Vs. The Management of M/s Circle Freught Intl (India) P. Ltd.”[ILR (2007) II Delhi 312] · Who else cites this
K.H. Pandhi Vs. The Presiding Officer, Addl. Labour Court & Anr.Relied on¶138
[110 (2004) Delhi Law Times 101]
Umakant S. Deshpande Vs. Gujarat Electricity BoardReferred¶106
“Umakant S. Deshpande Vs. Gujarat Electricity Board” 2001 GLH (3) 36
Narayan Chandra Paul Vs. Union of India and Ors.Distinguished¶107
“Narayan Chandra Paul Vs. Union of India and Ors.” [2013 (137) FLR820]
Amarjeet Singh Vs. Management of National Thermal Power Corporation Ltd.Referred¶111
“Amarjeet Singh Vs. Management of National Thermal Power Corporation Ltd.” 2012 LawSuit (Del) 3205
Parshuram Shah Vs. Govt. of NCT of Delhi and AnrRelied on¶127
“Parshuram Shah Vs. Govt. of NCT of Delhi and Anr”
Jaswinder Singh Vs. The Regional Manager, Punjab National Bank and Anr.Referred¶111
“Jaswinder Singh Vs. The Regional Manager, Punjab National Bank and Anr.”
Syed Yakoob Vs. K.S. Radhakrishnan and Ors.Relied on¶116
“Syed Yakoob Vs. K.S. Radhakrishnan and Ors.” AIR 1964 SC 477 · Who else cites this
2 provisions across 2 enactments
TRILOKI NATH CHAUDHARY
SHRI HARI OVERSEAS (P) LTD.
ANU MALHOTRA
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
