Dismissed

The Purbanchal Education Welfare Society Pews v. the State of Assam and 2 Ors.

Gauhati HC3 Sept 2019WP(C)/6956/2017

Case brief

AI extract

What is this about?

This writ petition challenged the Labour Court award reinstating a hostel superintendent. The petitioner argued the respondent was a supervisor excluded from the definition of a workman. The Court held the finding was based on evidence and fact, not perverse, thus the writ petition was dismissed.

What did the court decide?

Writ petition dismissed; Labour Court award upheld; no interference with finding that respondent is a workman.

The Purbanchal Education Welfare Society Pews… — Labour and Industrial Disputes | Gauhati HC (2019)

¶1

Page No.# 1/10

¶2

GAHC010049452017

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C) 6956/2017

¶5

1:THE PURBANCHAL EDUCATION WELFARE SOCIETY PEWS

¶6

A REGISTERED SOCIETY BEARING REGISTRATION NO. RS/KAM/240/R/201 OF 2003-04 UNDER THE SOCIETIES REGISTRATION ACT, XXI OF 1860, HAVING IT'S OFFICE AT R.G. BARUAH ROAD, OPP. GAUHATI COMMERCE COLLEGE, GUWAHATI-781003, IN THE DIST. OF KAMRUP M, ASSAM. REP. BY IT'S SECRETARY, SRI RAMENDRA KUMAR CHAMUAH.

¶7

VERSUS

¶8

1:THE STATE OF ASSAM and 2 ORS.

¶9

REP. BY THE4 SECRETARY TO THE GOVT. OF ASSAM, LABOUR AND EMPLOYMENT, DISPUR, GUWAHATI, ASSAM.

¶10

2:THE PRESIDING OFFICER LABOUR COURT ASSAM GUWAHATI-781003.

¶11

3:JAYANTA SAIKIA S/O. SRI SADHAN CHANDRA SAIKIA HOUSE NO. 5 NARIKAL BASTI 4TH BYE LANE JAYA PATH GUWAHATI-781024 IN THE DISTRICT OF KAMRUP M ASSAM

¶12

Advocate for the Petitioner : MR.A DHAR

¶13

Advocate for the Respondent :

¶14

Page No.# 2/10

¶15

BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN

¶16

ORDER

¶17

Date : 03-09-2019

¶18

Heard Mr. A Dhar, learned counsel for the petitioner and Mr. A Dasgupta, learned Senior Counsel for respondent No.3. Also heard Mr. D Nath, learned Government Advocate, Assam.

¶19

Petitioner is the management and respondent No.3 is the workman.

¶20

By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of award dated 18.09.2017, passed by the Labour Court, Guwahati in Ref. Case No.3/2017 whereby the reference was answered in favour of the workman with a direction to the management to reinstate the workman with full back wages from the date of his suspension till his reinstatement.

¶21

Respondent No.3 was appointed as Hostel Superintendent by the petitioner vide Ext-2 appointment letter dated 30.08.2013. As per the terms of appointment, respondent No.3 was provisionally selected temporarily and appointed on contractual basis with consolidated pay of Rs.8,200.00 per month. It appears that there were some complaints by students against respondent No.3 which led to suspension of respondent No.3 w.e.f. 17.02.2016 followed by holding of inquiry. There is some dispute regarding presence of respondent No.3 in the inquiry. While according to the petitioner, respondent No.3 did not respond to the show cause notices and failed to appear, on the other hand respondent No.3 contended that he had appeared before the petitioner.

¶22

Be that as it may, an order was passed on 13.08.2016 whereby respondent No.3 was terminated from service. This led to raising of industrial dispute by respondent No.3 leading to conciliation proceedings before the Assistant Labour Commissioner, Assam at Guwahati. When conciliation proceedings failed, the matter was referred to the appropriate government i.e., Government of Assam in the Labour and Welfare Department. A notification dated 07.04.2017 was issued by the Labour and Welfare Department, Government of Assam referring the industrial dispute under Section 10 (1) of the Industrial Disputes Act, 1947 to the Presiding Officer, Labour Court at Guwahati for adjudicating the two questions as per the schedule which is as under: -

¶23

Page No.# 3/10

¶24

“ 1. Whether the management is justified in terminating the service of Shri Jayanta Saikia?

¶25

If not whether he is entitled to reinstatement along with full back wages?”

¶26

On receipt of the reference, Reference Case No.3/2017 was registered before the Labour Court. Written statements were filed by the parties and evidence adduced. After hearing the matter, Labour Court passed the award dated 18.09.2017 answering the reference in favour of the workman in the terms already discussed above.

¶27

Aggrieved, present writ petition has been filed.

¶28

On 15.11.2017, this Court had issued notice and passed an interim order staying the impugned award.

¶29

Respondent No.3 filed an interlocutory application under Section 17B of the Industrial Disputes Act, 1947 (Industrial Disputes Act) which was registered as IA(C) No.889/2018. This Court by order dated 09.01.2019 allowed the said application by directing the petitioner i.e., the management to grant respondent No.3 i.e., the workman full wages last drawn by him along with admissible allowances, if any, at the time of termination of his service.

¶30

Basic ground of challenge as urged by Mr. Dhar, learned counsel for the petitioner is that respondent No.3 was appointed as a Supervisor and was discharging supervisory functions. As such, he cannot be treated as workman within the meaning of Section 2 (s) of the Industrial Disputes Act. Therefore, the very foundation of the reference and consequently the award becomes untenable and is liable to be set aside.

¶31

On the other hand, Mr. Dasgupta, learned Senior Counsel appearing for respondent No.3, the workman, submits that mere designation of respondent No.3 as a Supervisor would not take him out of the purview of the definition of workman as defined under Section 2 (s) of the Industrial Disputes Act. He submits that Labour Court had returned the finding that respondent No.3 is a workman, which is a finding of fact and therefore calls for no interference by the High Court in exercise of the power of judicial review.

¶32

Learned counsel for the parties also referred to and relied upon a number of

¶33

Page No.# 4/10

¶34

decisions.

¶35

Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.

¶36

From the materials on record, it is seen that the aforesaid two questions were referred by the appropriate government for adjudication by the Labour Court. Sum and substance of the reference is justification or otherwise of the termination of service of respondent No.3 and his entitlement to reinstatement along with full back wages. As already discussed above, the reference was answered in favour of the workman. The ground on which the award has been assailed is that respondent No.3 could not be construed as a workman, he being a supervisor and, therefore, the very foundation for adjudication by the Labour Court would be without jurisdiction.

¶37

At this stage, it would be appropriate to advert to the provisions of Section 2 (s) of the Industrial Disputes Act which is extracted hereunder: -

¶38

“ (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 –

¶39

(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

¶40

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

¶41

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

¶42

(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.”

¶43

Page No.# 5/10

¶44

From a careful analysis of the provisions contained in Section 2 (s) of the Industrial Disputes Act, it would go to show that a workman means any person including apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether terms of employment be express or implied, and for the purposes of any proceeding under the Industrial Disputes Act in relation to an industrial dispute, including 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 that does not include any such person who is employed in a supervisory capacity drawing wages exceeding Rs.10,000.00 per mensem or exercises functions which are mainly managerial in nature.

¶45

From the above what is discernible is that the definition of workman is quite elastic has been and given a wide meaning. One of the exceptions is carved out in Clause 2 (s) (iv). From a minute examination of sub-clause (iv) what transpires is that for such exclusion from the definition of workman, there are three conditions which must be fulfilled. These three conditions are:-

¶46

i) employment in a supervisory capacity;

¶47

ii) drawing wages exceeding Rs.10,000.00 per month; and

¶48

iii) exercises functions mainly of a managerial nature.

¶49

The requirements of being employed in a supervisory capacity and drawing wages exceeding Rs.10,000.00 are conjoint whereas the requirement of exercising functions mainly of a managerial nature is disjunctive as would be evident by use of the word ‘or’ before the requirement.

¶50

Having noticed the above, let us examine the evidence on record and thereafter the finding returned by the Labour Court.

¶51

Management witness No.1 was Sri Ramendra Kumar Chamuah, Secretary of Purbanchal Education Welfare Society. According to his evidence-in-chief, respondent No.3

¶52

Page No.# 6/10

¶53

was appointed as a Hostel Superintendent on temporary basis for a consolidated pay of Rs.8,000.00 per month. Duty of Hostel Superintendent was mainly of supervisory nature i.e., to maintain discipline in the hostel and to ensure that the premises of the boarding house are kept in a clean and sanitary condition. Thereafter the evidence relates to conduct of respondent No.3, with which this proceeding is not concerned for the moment.

¶54

His cross-examination does not throw much light on the supervisory nature of work of respondent No.3.

¶55

Management witness No.2 Sri Dulal Bora, Administrative Officer, also stated that respondent No.3 was appointed as a Hostel Superintendent on temporary basis initially for a period of six months at a consolidated pay of Rs.8,200.00 w.e.f. 23.07.2013. Thereafter, the evidence is silent regarding the supervisory nature of work rendered by respondent No.3.

¶56

In his evidence-in-chief, respondent No.3 referred to the averments made by him in paragraphs 5, 6 and 7 of his written statement. In those paragraphs of the written statement, besides highlighting his temporary nature of work, it was also stated that respondent No.3 was basically working as Attendant-cum-Clerk with power to recommend in matters of leave and absence and wage advance of the hostel staff. He also had to look after the accommodation, arrival and departure of students staying in the hostel.

¶57

On the basis of such evidence on record, Labour Court discussed the issue as to whether respondent No.3 was a workman or not within the meaning of Section 2 (s) of the Industrial Disputes Act as under: -

¶58

“ Before going to the crux of the main issues, let us discuss whether Sri Jayanta Saikia is a workman as defined under Section 2 (S) of the Act and whether the PEWS is an Industry as defined by Section 2 (J) of the Act. Learned Advocate for the Management has contended before this Court that Sri Jayanta Saikia is not a workman because he was recruited as a supervisor of the Hostels run by the Management of PEWS. It has come in the Annexure (A) to the written statement submitted by the workman Sri Jayanta Saikia that Sri Jayanta Saikia, S/o. Sadhan Chandra Saikia, Kampur, Nagaon, Assam has been appointed as the Hostel Superintendent of the Hostels run by the PEWS Group of Institutions on temporary basis for a period of six months with a consolidated salary of Rs.8000/- per month w.e.f. 23.07.2013. Exhibit annexed in the written statement

¶59

Page No.# 7/10

¶60

submitted by Sri Jayanta Saikia shows that on 25.07.2013 Administrative Officer, Dulal Bora of PEWS Group of Institution issued an order entrusting the charge of all the hostels under PEWS Group of Institutions to newly appointed Superintendent Sri Jayanta Saikia.

¶61

Learned Advocate for the Management has argued that since duty of Jayanta Saikia was supervisory in nature, therefore, he cannot be considered as a workman under Section 2 (S) of the Act. Section 2 (S) (IV) states that a person being employed in a supervisory capacity, draws wages exceeding one thousand five hundred per month 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 is not a workman.

¶62

In our case, it is proved that the workman Jayanta Saikia was entrusted to a supervisory duty of all the hostels run by the PEWS Group of Institutions and his salary was Rs.8000/- per month. But to exclude Sri Jayanta Saikia from the purview of the definition of Section 2 (c) (IV) of Industrial Disputes Act, 1947 another clause must be fulfilled. That, his functions must be managerial in nature. It has not come before this Court that duty of Sri Jayanta Saikia was not managerial duties. Annexure-B to the written statement submitted by Sri Jayanta Saikia will be sufficient to draw a conclusion here. As per Annexure-B, Sri Jayanta Saikia was directed to keep in touch with hostel managers and hostel wardens and maintain a daily diary of his visit to the hostels.

¶63

The Management of the PEWS did not entrust any managerial work to Sri Jayanta Saikia. Therefore, Sri Jayanta Saikia can be kept (sic) outside the purview of the definition of workman as defined under Section 2 (c) (iv) of Industrial Disputes Act, 1947.”

¶64

This finding of the Labour Court was based on appreciation of the evidence tendered by the witnesses and the general stand taken by the parties in their written statements.

¶65

In Ananda Bazar Patrika (P) Ltd. Vs. The Workman , reported in 1970 (3) SCC 248 Supreme Court held that the question as to whether a person is employed in a supervisory capacity or on clerical work would depend upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work, it would have to be held that he is employed in supervisory capacity and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity.

¶66

Page No.# 8/10

¶67

This position was reiterated and highlighted in National Engineering Industries Ltd. Vs. Shri Kishan Bhageria , reported in 1988 (Supp) SCC 82 wherein Supreme Court referred to the dictionary meaning of the word ‘supervisor’ and held that the question as to whether a person was performing supervisory or managerial work was a question of fact to be decided bearing in mind the correct principle. The principle is that one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor.

¶68

At this stage, it would also be apposite to see how the term supervisor is defined. Black’s Law Dictionary, Sixth Edition, defines the term supervisor as under: -

¶69

“ In a broad sense, one having authority over others, to superintend and direct.

¶70

The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

¶71

In SK Maini Vs. M/s Carona Sahu Company Ltd. , reported in (1994) 3 SCC

¶72

510 , which was relied upon by Mr. Dhar, learned counsel for the petitioner, Supreme Court held that the question as to whether an employee is a workman within the meaning of Section 2 (s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such a question is required to be determined with reference to the facts and circumstances of the case and materials on record; it is not possible to lay down any strait-jacket formula. It was further held that the word supervise and its derivatives are not words of precise import and must often be construed in the light of context. Designation of an employee is not of much importance; what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. Explaining further, Supreme Court held that words, such as, ‘supervisory, managerial and administrative’ are

¶73

Page No.# 9/10

¶74

advisedly loose expressions with no rigid frontiers. It was held that in view of amendment to Section 2 (s) enlarging the ambit of the classification of various types of workmen except managerial force, entire labour force has been included within the definition of workman under Section 2 (s) but here also if the principal function is of supervisory in nature, the employee concerned will not be a workman only if he draws a particular quantum of salary as indicated in Section 2 (s).

¶75

This issue again cropt up in Anand Regional Coop. Oil Seeds Growers’ Union Ltd. Vs. Shailesh Kumar Harshadbhai Shah , reported in (2006) 6 SCC 548 wherein Supreme Court after minutely examining the provisions of Section 2 (s) of the Industrial Disputes Act held that for determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations. Supervision contemplates direction and control. An undue importance need not be given for the designation of an employee. Elaborating the matter, further it has been held that a person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion etc. The work involves exercise of tact and independence.

¶76

In view of the above context and judging by the said standard, Court is of the view that respondent No.3 would not come within the purview of the exclusionary clause of the definition of workman. From the evidence on record, it cannot be said that respondent No.3 had the power of control or supervision in regard to recruitment, promotion, etc. in the institutions run by the management. On the basis of the submissions made and evidence on record, Labour Court had returned a categorical finding that respondent No.3 did not perform duties of managerial nature. Management did not entrust him any managerial work. Therefore, final conclusion was that respondent No.3 cannot be kept outside the purview of the definition of workman as defined under Section 2 (s) (iv) of the Industrial Disputes Act. This is a finding of fact. Such a finding of fact cannot be said to be de hors the evidence on record and therefore a perverse finding. Supreme Court has held in several cases and followed by this Court that interference by the High Court with the award of Industrial Tribunal or Labour Court would not be justified unless there is patent illegality or perversity in the finding returned by the Industrial Tribunal or Labour Court. As already discussed above,

¶77

Page No.# 10/10

¶78

the finding of the Labour Court is based on the evidence on record and is a finding of fact. By no stretch can it be said to be a perverse finding.

¶79

In such circumstances, interference by the Court under Article 226 of the Constitution of India would not be justified. Since no other issues were argued to assail the award of the Labour Court, further deliberation is not called for.

¶80

Accordingly and in the light of the above, Court finds no merit in the writ petition. Writ petition is dismissed.

¶81

JUDGE Biplab

¶82

Comparing Assistant

The Purbanchal Education Welfare Society Pews v. the State of Assam and 2 Ors.

Case brief

What is this about?

What did the court decide?

The Purbanchal Education Welfare Society Pews v. the State of Assam and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Apurba Talukdar Vs Thaneswar Malakar, I.A.S. and Anr.

Anjuara Begum Vs the State of Assam and 5 Ors.

Kameswar Talukdar Vs the State of Assam and 5 Ors.

The Union of India and 4 Ors. Vs Rajib Kumar Dholua and 11 Ors.

Arup Jyoti Karmakar Vs Union of India and 5 Ors.

Sri Bhaben Roy Vs the State of Assam and 4 Ors.