Dismissed

A.K. Srivastava v. Presiding Officer and Anr.

Punjab & Haryana HC27 Mar 2014CWP/19208/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Labour Court award that excluded the petitioner, a shifting Assistant Spinning Master, from the definition of 'workman' due to his supervisory duties, high salary, and lack of union benefits. The court held no scope for interference.

What did the court decide?

Petition dismissed against Labour Court finding; compensation arrears remitted to petitioner within two months.

A.K. Srivastava Vs Presiding Officer… — Labour and Industrial Disputes | Punjab & Haryana HC (2014)

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CWP No. 19208 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No. 19208 of 2011 Reserved on 12.03.2014 Date of decision: 27.03.2014

A.K. Srivastava

...Petitioner(s)

Versus

Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar and another

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...Respondent(s)

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CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA

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Present: Mr. Pankaj Jain, Advocate, for the petitioner.

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Mr. R.M. Singh, Advocate, for respondent no. 2.

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G.S.SANDHAWALIA, J.

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Challenge in the present writ petition by the workman is to the award dated 21.03.2011 (Annexure P-6) whereby, the reference has been declined on the ground that the petitioner did not fall within the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947 (in short 'the Act') as he was working as Assistant Spinning Master (Maintenance) at the time of his removal.

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Counsel for the petitioner submits that the reasoning given by the Labour Court is not justified in as much as merely the designation would not ascertain the status of the workman. The test to ascertain whether the petitioner was a workman or not and fell within the definition of workman under Section 2(s) of the Act was not appreciated. The fact that the petitioner was appointed as Blow Room Foreman and was not doing any

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Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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work which was of managerial nature neither he was employed in a supervisory capacity was not taken into consideration.

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The facts of the case would go on to show that the petitioner was appointed on 01.09.1992 as a Blow Room Foreman at the initial salary of `2,750+400 as his rent allowance. He was promoted as Assistant Spinning Master (Maintenance) in May, 1998 before his services were dispensed with on 08.12.2003 (Annexure P-1) since the management took a decision to abolish the post and gave him 3 months' notice and 15 days' retrenchment compensation alongwith notice pay. He raised a demand under Section 2-A of the Act on 15.12.2003. Thereafter, the matter was referred to the Labour Court wherein, he took the plea that he had to participate actively in the activities of the Union and was also elected as Secretary of the Association. His services had been dispensed with to teach him a lesson.

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The claim was resisted by filing written statement and the plea taken was that he was drawing more than `1,600/- per month and working in managerial and supervisory cadre and was not a workman and the reference was bad. The post on which he was working was abolished for curtailing of costs of industrial organization and he was promoted from the post of Blow Room Foreman to the post of Assistant Spinning Master (Maintenance) and his peripheries of control and supervision were extended accordingly. It was denied that he was member of the Union and that the company had a number of associations in the organization pertaining to the employees of the company and the management used to negotiate with AITUC apart from other 8 unions.

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Replication was also filed wherein the contents of the written

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Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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statement were denied and that of the claim petition were reiterated.

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The Labour Court, vide the impugned Award, took into account the evidence of the witnesses including the petitioner-workman who had appeared as WW-1 and Ram Nath WW-2 on behalf of the workman. The respondent-management examined R.K. Kaushik, General Manager (P & A) as MW-1. It was noticed that the last drawn salary of the workman was 7,565/- and was exceeding 1,600/- which was the maximum limit under Section 2(s) of the Act.

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After taking into account that the determinative factor was the duty of the concerned employee and some work which was to be incidentally done and since the managerial cadre had to be excluded from the industrial cadre, it was noticed that there were two workers working under his control and supervision and he was second in command in his department. He had been promoted as Senior Foreman initially in May, 1998 and thereafter, as Assistant Spinning Master (Maintenance). He had been provided an electronic attendance card for ingress and egress from the company premises in comparison to the workers of the company who had been provided paper attendance cards, whose attendance was marked by the Time Office Department of the company. The tripartite statements made with the union of workers regarding DA which had been given to the workers union was not given to him and he was given increments from time to time which was given to supervisory and managerial staff. The increment list Ex.M-10, copy of the statements Ex.M-12 to M-14 were taken into account. It was also noticed that the workman had admitted of having filled self appraisal reports Ex.M-1 to M-6, which were reviewed by the reviewer

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and the cross examination of the workman was taken into account whereby, Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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he admitted the fact that he was not receiving the benefits of DA, which was given to the workmen of the management and no other Assistant Spinning Master had been employed in his place. Accordingly, a categorical finding of fact was recorded that he was performing duties which were supervisory in nature and he could not be held to be a workman and the reference was decided against the workman. The relevant portion reads thus:-

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“20. The aforesaid material on record clearly establishes that the workman joined the services of the respondent on 01.09.1992 as Blow Room Foreman on a salary of Rs. 2750/- as basic and that he was promoted as Assistant Spinning Master (Maintenance) and at the time of his removal, he was drawing a salary of Rs. 7565/- per month. The documents placed on record would show that the workman used to fill in the self-appraisal reports. The workman has admitted of having filled in self-appraisal reports Ex.M1 to M6, which were reviewed by the reviewer. A perusal of these reports would show that it is about job knowledge, job performance, initiative, analytical skills, planning and organizing skills, ability to work in team, decision making ability, imagination and creativity, qualify orientation and customer orientation etc. The workman has filled in these columns which suggest that he was not just a worker but performing duties which were supervisory in nature. The management has also placed on records charts of organization as Ex.M8 and M9. A perusal Ex.M9 would reveal that the workman was second in command in his department. Further, as per MW1, the supervisory and managerial staff of the company have been provided electronic attendance cards and that they have to punch their cards for ingression and egression

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Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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from the company premises whereas the workers of the company have been given paper attendance card and their attendance is marked by the Time Office Department of the company. The workman has not cross-examined the witness on this point. Further, as per the settlements entered between the management and union of workers Ex.M12 to M14, workers of the company were given benefits through tripartite settlements made from time to time with the union of workers regarding D.A., whereas the supervisory and managerial staff were not given any benefit out of these settlements. The workman has admitted in his crossexamination that he was not receiving the benefits of D.A. which was given to the workmen. The workman has also admitted that the settlements Ex.M2 to M5 do not bear his signatures. All this goes on to show that main duties performed by the applicant were of supervisory in nature and that apart he used to do incidental work attached to his post and that he salary paid to him was much higher and exceeding Rs. 1600/per month. Hence, it cannot be said that he is a workman within the meaning of Section 2(s) of the Act and his claim is thus is not maintainable. Accordingly, this issue is decided against the applicant and in favour of the management.”

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Counsel for the respondent-management has supported the

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Labour Court's decision and has submitted that it is not liable to be interfered with being a well reasoned order.

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After hearing counsel for the parties, this Court is of the opinion that there is no scope for interference in the order passed by the Labour Court. Sub-section (iii) of Section 2(s) of the Act excludes a person

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from the definition of workman who is employed in a managerial or Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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administrative capacity and similarly sub-clause (iv) also defines a person who is employed in a supervisory capacity and draws more than `1,600/and exercises similar duties. The said Section reads as under:-

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“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, dischasrge or retrenchment has led to that dispute, but does not include any such person--

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(i) xxx xxx xxx (ii) xxx xxx xxx (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.

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A three Judge Bench of the Apex Court in Lloyds Bank Ltd.,

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New Delhi vs. Pannalal Gupta, AIR 1967 SC 428 has held that the status of the workman has to be inferred from the facts. The legal inference is to be drawn regarding the status of the parties since there is a mixed question of law and fact and interference is only to be done if the conclusion arrived is manifestly and obviously erroneous.

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In the present case, there is a clear distinction as to the duties

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Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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which the petitioner was doing as he was filling in self appraisal forms and was not part of the settlement between the company and the industrial workers. He had not been given the benefit of the dearness allowance which was given to the workmen and neither he had the last pay slip. It is also a matter of fact that the post was abolished and in his place, no new Spinning Master had been recruited and he had made no complaint in the company about unfair labour practice. The management witness has categorically averred that he had to maintain and supervise the working of machines installed in the blow room sections and there were two persons namely Manna Ram and Mahabir, posted under him and he had the power to sanction the leave of the workers. In his affidavit, the fact of him having electronic attendance card, which was in distinction from the workers, was also averred. Thus, it can be safely said that the conclusion of the Tribunal that the petitioner was not a workman is correct since he had supervisory role and was incharge of the said section. The moment the employee had multifarious duties and had been placed at a higher pedestal and the workman had not been given the benefits of DA and given the advantage of separate electronic card entry and was not to stand in line to get the attendance marked at the time of ingress and outgress and he himself filling form of self appraisal, would place him at a higher scale. He was admittedly drawing as much as `7,565/- at the time his services were dispensed with. In such circumstances, the factual finding which has been recorded by the Labour Court could not be held to be erroneous in any manner.

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There is no quarrel with the proposition laid down by the Apex

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Court in Arkal Govind Raj Rao vs. Ciba Geigy of India Ltd., Bombay, 1985 (3) SCC 371 which has been relied upon by the petitioner's counsel. Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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In the said case, the Apex Court intervened as the person was working as Stenographer-cum-Accountant and thereafter was appointed as Assistant. It was held that merely because he was doing some clerical work alongwith supervisory and administrative work of checking bank reconciliations, it could not be said that he was not a workman.

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The reliance upon Devinder Singh vs. Municipal Council,

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Sanaur, 2011 (6) SCC 584 by counsel for the petitioner would be of no help since in that case, the issue which arose for consideration before the Apex Court was whether the High Court was justified in modifying the award of reinstatement in favour of the workman on the ground the appointment was contrary to the recruitment rules and Articles 14 and 16 of the Constitution of India. It was in such circumstances that Section 2(s) of the Act was examined and it was held that the source of employment would not make any difference once the workman stood employed and had been in service for more than 240 days. In the said case, there was no issue regarding whether the person was exercising supervisory or managerial functions, which is the issue in dispute in the present case. Rather, in the said case, while placing reliance upon Syed Yakoob vs. K.S. Radhakrishnan, AIR 1964 SC 477 and Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675, it was held that the powers of certiorari under Article 226 of the Constitution of India were only to be exercised where the Labour Court acted without jurisdiction by assuming jurisdiction where there existed none or in cases by over stepping or crossing the limits of jurisdiction.

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In the present case, the petitioner being placed at a higher pedestal and drawing salary of `7,565/-, could not claim to be a workman, which would entitle him for protection by the Act. His services were Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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dispensed with on account of abolition of post by giving him 3 months' notice, notice pay and 15 days' retrenchment compensation and the petitioner could not have agitated against the said abolition before the Labour Court. The present petition is accordingly dismissed. However, since the said amount had been refused by the petitioner as he was agitating his rights, it would be in the interest of justice that the said amount be remitted to him within two months from the date of receipt of certified copy of the order.

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27.03.2014 shivani

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(G.S. SANDHAWALIA) JUDGE

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Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 19208 of 2011

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Gupta Shivani 2014.04.03 12:37 I attest to the accuracy and integrity of this document High Court Chandigarh