Humboldt Wedag India Private Ltd. vs Eighth Industrial Tribunal

Amitava Lala, J.—This writ petition is arising out of an order being No. 75 dated September 15, 2003 passed u/s 15(2)(b) of the Industrial Disputes Act, 1947, West Bengal Amendment. In the order the company was directed to pay interim relief to the concerned workman at the rate of 50 % of his last drawn salary for the first three months from the date of order of reference and thereafter 75% of last drawn salary till the disposal of this reference. Such order is challenged, by filing this writ petition only on May 21, 2004''. The private Respondent''s case before the Tribunal was that Respondent No. 4 was a senior engineer of the company and was a General Secretary of the Union under reference. By way of victimization he was dismissed from the service during the pendency of the conciliation proceeding without any approval u/s 33(2)(b) of the Industrial Disputes Act, 1947. His last drawn salary was Rs. 7020.40. After dismissal from the service he was not gainfully employed elsewhere. Due to this hardship in passing the days with his family he is entitled for the interim relief. The Petitioner company contended that the industrial dispute is not maintainable because at the relevant point of time he was not workman as defined under the law. His functions were administrative and managerial in nature. Post of .senior engineer is ah executive post. He cannot represent the union either. Under certain compulsion the management had to sit with him along with other office bearers of the union for setting the issues. The Respondent workman was dismissed from the. service after being found guilty of gross misconduct in a properly held domestic enquiry. As his salary was more than Rs. 1600/ - per mensem as required u/s 2(s) of the Industrial Disputes Act, 1947 the application for interim, relief is liable to be dismissed.

The Tribunal firstly entered upon the point of controversy whether the contesting Respondent is workman or not. The Tribunal found that the Petitioner joined as a Trainee Diploma Mechanical Engineer. He had to work for execution, inspection and other, sales services. Beside that he had to inspect fabrication, casting, mechinising item as per drawing and matching with finished products. He had to attend to despatching the finished products made by the suppliers, writing challans, forwarding the bills. Besides that he had to perform different paper work for the company. He had no authority to create any machine or any design in the company. He was promoted as senior engineer (inspection) in the year, 1988, but the nature of his, job was not altered by such promotion. He had no authority to manage or supervise any employee of the company or to take any disciplinary action against any workman. The union was formed in the year. 1993. Since then he is General Secretary of the union. He had to sit with management in respect of certain disputes - charter of demand, retrenchment, opening of P.F. facilities etc. A termination order was withdrawn by the management on the basis of the discussion held with him. A tripartite settlement was executed between themselves.

On March 15, 1999 a show cause notice was issued to which a reply was given by him. Thereafter charge-sheet was issued against him and ultimately a domestic enquiry was held. The person concerned who issued the chargesheet was the Presenting Officer who adduced evidence in the domestic enquiry. Name of the Enquiry Officer was not disclosed by the management before the commencement of the enquiry. Several witnesses we''re examined on this point by the Tribunal, According to the Tribunal, one of the vital witnesses of the company while giving evidence before this Tribunal stated that from the post of Assistant Manager, the Managerial cadre starts. According to Exh. P/1 the Senior Manager in any stream is non-managerial staff.

Mr. R.N. Das, Learned Senior Counsel, appearing before this Court on behalf of the Petitioners, contended on the basis of the High Court judgment Mcleod and Co. v. Sixth Industrial Tribunal, Mcleod and Co. Vs. Sixth Industrial Tribunal, West Bengal and Others, that a supervisor need not be a Manager or Administrator. Upon going through the judgment it is crystal clear that the word ''supervisor'', ''Manager'' or ''Administrator'' and/ or functions under such category/categories should be loosely taken. There is no rigid formula to apply the same. If something is applied it will be theoretical and not practical. It has. to be broadly interpreted from a common sense point of view where the test will be simple both on theory and its application. Now the question relevant for the purpose of due consideration before this Court is whatever has been stated in the law is theory but what has to be decided by the Tribunal is its application. Such application is nothing but factual analysis and finding. Therefore, unless it is perverse, there is hardly scope, of judicial review by the writ Court, particularly in respect of grant of interim relief to an employee pending finality by the Tribunal. This is normal circumstance to determine the dispute between the employer and employee who are at unequal bargaining position. Any exception or departure is dependent upon the exceptional circumstance which has to be proved beyond doubt by the employer.

In the instant case,. I find the order of reference is as follows:

1) Whether the dismissal of service of Shri Prabir Mukherjee with effect from December 6, 1999 is justified ?

2) What relief, if any, is he entitled to ?

If I go on the basis of the order of reference alone it will be understood that whether the employee is ''workman'' or not is already resolved Therefore, there might be two possibilities. Either there is no dispute or having dispute it was not raised by the employer. Order of reference was made as far back as on January 15, 2001. The company did not challenge the reference. Therefore, at this stage can it be said that interim order is perverse finding ?

u/s 2(s) of the Industrial Disputes Act, 1947 definition of ''workman'' is given. ''Workman'' means any person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. The only exceptions are clauses included therein. Out of Clauses (i) and (ii) are not applicable hereunder. Therefore, there are two other categories. The earlier one is in respect of workman employed mainly in a managerial or administrative capacity and the latter one is in respect of the, workman being employed in a supervisory capacity drawing wages exceeding Rs. 1600/- per mensem or exercising, either by the nature of duties in the office or by reason of the powers vested in him, functions mainly of a managerial nature. The Supreme Court in Birla Corporation Limited v. Rajeshwar Mahato 2001 (7) S.L.R. 65 held in so many words that unless the order of the Tribunal is not set aside as being frivolous or without evidence in respect of coming to a conclusion whether one is workman or not it is difficult to come to an appropriate conclusion only on the; basis of the definition u/s 2(s) of the Industrial Disputes Act, 1947.

According to me, in such case, the Tribunal held that one is managerial or supervisory staff. Here there is no such finding. The ratio of the Supreme Court judgment is that High Court should not go only on the basis of the definition but also on the facts whether finding of the Tribunal is frivolous or without any evidence. There is no such case herein.

In Sadanand Ramesh Samsi v. Kirloskar Cummins Ltd., Pune and Ors. 2002 (8) S.L.R. 369 Single Judge of the Bombay High Court held that the evidence on the point of workman was held by the Labour Court superficially without applying its mind to the important aspects of the duties of the workman. However, the High Court held therein that the findings of the Tribunal is perverse. Then Mr. Das cited a judgment in Navin Fluorine Industries, Surat v. B.M. Shah 2003 (7) S.L.R. 415, whereunder he relied upon paras. 11,16,17,19 of such judgment. In para. 11 of such judgment it has been found that extract of the submission of the Petitioner is that whether one is workman or not is to be proved by the .workman and not by the establishment. From para. 16 I find that Learned Counsel appearing for the Respondent workman contended in view of the earlier judgment that a question whether the Respondent is a workman or not is partly a finding of fact and partly a question of law. Court observed that the Learned Judge (Industrial Tribunal/Labour Court) did not take the trouble to find out what duties were performed by the workman as ''main duties and ''incidental duties'' and whether, taking into consideration the totality of the same, they can be held to be supervisors. In para. 17, learned Counsel appearing for the workman, contended that the Learned Judge (Industrial Tribunal/Labour Court) recorded a finding that duties to have supervisory nature were only incidental and were not primary or basic duties to be performed by the workman/workmen. In para. 19 I find, Learned Counsel appearing for the workman, contended that the scope of the Writ Court in the matter wherein a finding is recorded on a question of fact is very limited and that once the Learned Judge of the Labour Court (Industrial Tribunal herein) has recorded a finding on the aspect of the Respondents being workmen, that no interference is called for. Ultimately the Single Judge relied upon a decision of the Supreme Court in the matter of The Range Forest Officer Vs. S.T. Hadimani, wherein it was held that the Learned Judge of the Labour Court therein did not approach to the problem in the manner it was expected as laid down by the decision of the Apex Court as aforesaid. In that judgment I find the Supreme court held that it is for the workmen who led evidence to show that they had, in effect, worked for 240 days. Learned Single Judge of the Gujrat High Court held by applying such ratio whether the workman works 240 days in a year preceding his termination is to be established by the evidence of the workman. Thereby following such principle in the case, whether the nature of work was supervisory or not is to be established by the workmen by their evidence before the Tribunal. He also cited another judgment of the Delhi High Court Tata Sons Ltd. v. S. Bandyopadhyay and Anr. 2004 L.L.R. 506. There it was held that as per the ratio of H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc., an employee is to be covered by the definition of ''workman'' if he must be employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work. If he falls within these categories, it has then to be seen whether he" comes within any of the four excluded categories mentioned in Section 2(s) of the Act. The Constitution Bench noticed certain earlier decisions where the initial determination was whether an employee falls within any of the excluded categories or not. If he did not fall within any excluded category, then it was held that he was a workman within the meaning of Section 2(s) of the Act. The Constitution Bench found this approach is incorrect. The Learned Single Judge sitting in .the Writ Court held that normally Industrial Tribunal or Labour Court decides the question as to whether an employee is workman or not. Writ Court held in so many words that whether an employee is workman or not is a mixed question of law and. fact but in that particular case the Labour Court not having followed the Supreme Court judgment made an error which is clearly a question of law. Ultimately the Learned Counsel appearing for the Petitioners contended that for coming to the conclusion whether contesting Respondent is workman or not on the basis of the fact that he is General Secretary of the employees'' union is perverse.

Mr. S. Majumdar, Learned Counsel appearing for the Respondent No. 4/workman, contended that the test one is workman or not is the pre-dominant nature of activity. From the written statement of the establishment before the Industrial Tribunal it appears that the nature of the job of such Respondent was alleged to be administrative and purely managerial in nature, in one other place of such written statement it has been indicated that is as follows:

It will further appear from the record that it was only Prabir Mukherjee who was not a workman, tried to mislead the employees, so that the employees may not enjoy their reasonable benefits which they are entitled. It was further be noted that Memorandum of . understanding dated October 14, 1939 was also signed by Sri Mukherjee was demands himself as the General Secretary of the said Union not being a workman.

In further in the para. 12 of the affidavit-in-reply before this Court they have stated as follows:

The evidences recorded before the Learned Tribunal clearly establish that the nature of the duties attached to the office of the Respondent No. 4 and by reason of the power vested in him, his function was of . the mainly managerial in nature.

Therefore, it appears that the categorical case of the management of the establishment is that the nature of the job of the Respondent No. 4 at the relevant point of time was administrative and purely managerial in nature and thereby hit by Section 2(s)(iii) of the Industrial Disputes Act, 1947. The Petitioners wanted to develop their case by showing an application or disclosing certain documents during the period of witness action that the nature of the job of the said Respondent No. 4 was partly administrative, partly managerial and partly supervisory in nature. Such application was verified on May 7, 2003 and a final order was passed by this Court on April 29, 2003 in the matter of W.P. No. 471 of 2003. In such case, the question was whether the Petitioner can individually fight for the cause before the Tribunal or his cause will be espoused by the union. The management of the establishment never called upon this Court to decide the issue as to whether the contesting Respondent is a workman or administrative/managerial staff although the issue was prevailing at the material point of time. But subsequent to such order they wanted to attract the scope of Section 2(s)(iii) to iv) on the application of disclosure of other evidences. Good, bad, indifferent, the Industrial Tribunal did not refuse to accept further disclosure. It appears to this Court that as per Rule 15 of the West Bengal Industrial Disputes Rules 1958 Tribunal may accept, admit or call for evidence at any stage of the proceedings before it/him in such manner as it/he may think fit. However, provision of inspection of the documents is available under 20(c) therein. At the present moment I am not inclined to go to the controversy of proper disclosure and/or opportunity or inspection because from the ultimate order before this Court ho dispute as regards disclosure is reflected. In effect, the Industrial Tribunal passed an order in a proceeding u/s 15(2)(b) of the West Bengal Amendment (Industrial Disputes) Act, 1947 as regards fixation of quantum of interim relief to be given to the private Respondent. Incidentally,, it has held two prima-facie cases: (i) the Respondent No. 4 is a workman; (ii) he did not get an appropriate opportunity to put his case before the Enquiry Officer.

Although it is a prima facie case but there cannot be any material distinction in between the prima facie and final determination as regards the preliminary point of maintainability as to whether the contesting Respondent was workman or not. If an issue goes to the root of the jurisdiction of the Tribunal and if the Tribunal holds either expressly or impliedly in this regard by granting an interim relief it goes without saying that such prima facie determination is final determination which cannot be reopened. Therefore, the contesting Respondent cannot be excused by holding that the case of the Petitioner as to whether he is a workman or not is a prima facie determination by the Tribunal, therefore, the Writ Court only on that ground may turn down the cause of the writ Petitioners instead of going into the controversy as to whether the Tribunal rightly decided that the contesting Respondent is workman or not. I find the Tribunal called upon the management of the establishment to give the evidence on the point as to whether the Respondent No. 4''is workman or not. It has also called upon the workman to prove his case. Documentary evidences were produced. Oral evidence was adduced. The Tribunal came to a finding from the evidence that the contesting Respondent was not working .in the company in a managerial and administrative post. It had observed that the onus lies upon the company to prove that Sri Prabir Mukhsrje used to work in the managerial and administrative post or not. Therefore, the Tribunal rightly arrived at a conclusion on the evidential strength that the Respondent was neither managerial nor administrative staff. Therefore, neither the Tribunal committed, any grave error as regards question of law nor failed to discharge appropriate duty to determine the- onus. Therefore, no perversity lies apparently in the judgment and order passed by the Industrial Tribunal to set it aside.

An important point arose hereunder that the Respondent can be deeclared as supervisory staff independent of declaration as managerial or administrative staff. I do not find any disclosure of further documents. A specific case was taken in the application of the management that the Respondent was a supervisory staff and the nature of the work is independent of managerial or administrative work. On the other hand, it is stated that even in such application before the Tribunal the nature of the work was partly administrative, partly managerial and partly supervisory in nature. But the establishment did not strictly rely upon such submission but contended even in the affidavit-in-reply to this High Court that such Respondent was employed as, ''higher than Supervisor/Senior Supervisor/Superintendent''. Therefore, from the beginning till this date the specific stand has been taken by the Petitioners that the contesting Respondent/workman was administrative/managerial staff. Supervisory work, if any, is incidental to such administrative/managerial work but hot dependent on such work. Hence, the case is tried to be made by the establishment on the exemption Clause (iii) u/s 2(s) of the Act. If iris so, Clause (iv) under such Section that an employee discharging the function as a Supervisor and his gross wages exceeding Rs. 1600A per mensem etc. is disjunctive with "the other part of the Clause (iv) itself ''exercise, either by the nature of duties attached to the office by reason of the power vested in him, functions mainly of a managerial nature''. Therefore, when the present law has prescribed by the interpretation of the Constitution Bench of the Supreme Court that the case of a workman is to be considered on the basis of the primary Clause and not by the exceptional Clause decision of the Industrial Tribunal cannot be held to be improper application of mind.

Factually, the Tribunal held that the Respondent worked in the company as Senior Engineer from 1988 to 1999. The management produced only few challans to establish that he worked as an in-charge of the Department or he approved bills on behalf of some other Officers. It appears to be that he signed those documents on behalf of his superior Officer with his approval when such Officer was not present. He was not formally authorized for the same.'' He was looking after the technical aspects of the fabrication. The managerial cadre from the post of Assistant Manager to the Senior Manager is not managerial staff. Such person, is unionized staff. Incidentally he is General Secretary of the Union. One Sri Goutam Basu was the head of the Department. His work is to be considered on the basis of the nature of the work but not on the nomenclature. Exhibit ''P/1'' categorically says that Senior Engineer is non managerial staff. Some documents were annexed to the affidavit-in-opposition of the Respondent/workman, (find in a Memorandum of Settlement u/s 68 of the West Bengal Industrial Disputes Act, 1958 that he was shown as General Secretary of the Union. Upon persuing Sub-rule 2 I find that a Settlement is to be signed by the employer on one hand and by the workmen on the other hand. The Petitioner signed the Settlement as one of the representatives of the Union. From such Memorandum of Settlement I find that the post of Senior Engineer (any stream) seems to be in the category of staff drawing allowance from Rs. 1800/- to 3975/ by way of periodical increments. Therefore, it appears at the relevant point of time that his salary was marginally ahead of Rs. 1600/- per mensem but not Rs. 7020.40. Possibly some other allowances were added .to show such figure. However, the case of the Petitioner whether he is workman or not cannot be independently adjudged on the basis of the purported salary of Rs. 7020.40. In other place, in another document annexed to the affidavit-in-opposition being ''R-3'' as'' also Exhibit ''2''. It appears that revised basic-pay after fixation in the scale of pay and considering increment effect from April 1, 1995 the Respondent''s salary as Senior Engineer was shown as Rs. 2775/-. From ''R-6'' to the affidavit-in-opposition being Exhibit ''17'' it appears that by the office order dated November 12, 1995 the Respondent workman was to report to one Sri Goutam Basu, General Manager. From Annex.''R-11'' being Exb.''O'' it appears that sub staff and staff employed in the company in its Calcutta establishment.

Hence, it appears to this Court that the nature of the work being the pre-dominant feature to determine the question as to whether one is ''workman or not'' as per Section 2(s) of the Industrial Disputes Act, 1947 has been categorically determined by the Tribunal without any element of perversity. It is true to say that there might be two possible views. It is also true to say that Writ Court would have, come to a different conclusion had there been "a vested power to investigate the facts. But those are not the elements .of perversity. When after about a year the writ jurisdiction is invoked challenging, such order I do not find any reason to disbelieve that the approach of the establishment is not free from any suspicion although sometimes getting certified copy belatedly cause the delay. But no such case has been made out hereunder.

The Respondent workman relied upon a judgment of the Supreme Court in Mukand Ltd. v. Mukand Staff and Officers'' Association 2004 (2) L.L.J. 327 to establish that it is a well-settled law that in absence of any plea no amount of evidence laid in relation thereto can be looked into.

But at the same time I find the distinguishing feature in the self-same judgment that the Tribunal has no jurisdiction to entertain and decide the dispute which covered in its fold ''persons who are not workmen''. However, there the High Court found that the material, on record as regards the comparable concerns was admittedly ''sketchy'' and ''incomplete'', I do not find any such case is available hereunder. In fact, in that judgment the Tribunal considered the cases of the ''workmen'' and ''non-workmen'' by putting themselves into one community. However, the Supreme Court held by modifying or altering the award taking into account both ''workmen'' and ''non-workmen'' that the High Court has committed an error. It was further held that ''workmen'' and ''non-workmen'' being in the same grade did not imply that the distinction between the two categories ceases to exist or that they belong to the same class. Ultimately the Supreme Court remitted back the disputes of the workmen to the Industrial Tribunal for adjudication according to law within the prescribed time.

Therefore, the real analysis is ''workman or not'' is necessary to be determined at first by the Tribunal. In absence of such determination, whether a community or the class of people is ''workmen or not'' cannot be adjudicated. This is the legal bar. However, reference of this judgment will not help either way but it will determine that whether one is workman or not is a fundamental issue which is hidden in the cause and Tribunal should not be debarred from determining the issue before determining other issues. In coming to conclusion on the factual investigation, if arrived at properly, the same will not be investigated afresh by the writ Court as a Fact Finding Court unless and until there is a strong prima facie case or the order of award appears to be perverse. Since I do not find any of such cases I cannot pass any order in favour of the Petitioners.

Therefore, the writ petition stands dismissed. Interim relief as directed by the Tribunal will be continued until and unless further order or orders passed by the Tribunal. Subsistence allowance which was directed to be deposited by this Court by an interim order dated June 11, 2004 with the Advocate-on-record of the Petitioner by treating him Receiver for holding such sum, be released in favour of the Petitioner within a period of seven days from the date of communication of this order. Upon releasing such sum to the protanto satisfaction of the contesting Respondent the Advocate-on-record of the Petitioner will stand discharged from further acting as Receiver without security and without rendering any, account. Accrued interest, if any, for such short term fixed deposit in the name of the Receiver for the period from June 11, 2004 be adjusted as the remuneration of the Receiver. The Bank A/c. if any, will also be closed by the Receiver. However, no order is. passed as to costs.

However, this order will not in any way debar the Tribunal in considering further material, if any, in connection with this issue at the time of final disposal to eliminate any amount, of discrepancy regarding the prima facie view particularly to avoid jurisdiction error.

Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.