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Judgment
Ruma Pal, J.—This appeal relates to the finding of the Tribunal that the Respondent No. 3 workman of the Appellant No. 1. The finding was given while disposing of an application for interim relief in an industrial dispute raised by the Respondent No. 3, The dispute was raised because the Respondent No. 3 had been dismissed from service by the Appellant. The dispute was referred by the State Government to the 4th Industrial Tribunal for adjudication.
The application filed for interim relief by the Respondent No. 3 was u/s 15(2)(b) of the Industrial Disputes Act, 1947 (as incorporated by the West Bengal Amendment). A preliminary issue was raised by the Appellant that the reference itself was not maintainable because the Respondent No. 3 was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act).
Oral and documentary evidence was led by both parties before the Tribunal. The Tribunal came to the conclusion on the basis of the evidence that the Respondent No. 3 was a workman and accordingly directed the payment of interim relief to the Respondent No. 3 at the rate of 75% of his last wages with effect from the date of filing of the application u/s 15(2)(b) month by month till disposal of the case subject to filing of an undertaking by the Respondent No. 3 before the Tribunal within one week to the effect that in case he lost ultimately he would be bound to refund the amount of interim relief so received by him from the Appellant.
The order of the Tribunal was challenged by the Appellant by an application under Article 226. The Learned Single Judge gave directions for filing of affidavits but no interim order was passed. Being aggrieved, the Appellant preferred this appeal. The Division Bench by an order dated October 3, 1994 directed the Appellant to pay the amount as directed by the Tribunal with effect from April 1994 and to go on paying the same month by month until the disposal of the stay application. The payment was to be made without prejudice and the undertaking given before the Tribunal was directed to continue. The stay application was disposed of by confirming the interim order and on February 19, 1997 the appellate Court directed that the writ application itself would be heard along with the appeal.
The case of the Appellant before the Tribunal was that the Respondent No. 3 ''though designated as Stenographer was vested with the powers of supervision and control of work of others employee/workman employed under him''.
Before considering the facts the principles which emerge from the several decisions cited by the parties before us may be summarised as follows:
(1) The designation of the employee does not determine whether he is a workman or not. This would depend upon the actual duties discharged by the employee. See S.K. Maini Vs. M/s. Carona Sahu Company Limited and others, and H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc.,
(2) Where an employee discharges both clerical and managerial/supervisory duties the principal duty carried out would determine in what capacity the employee was employed. See Ananda Bazar Patrika (P) Ltd. Vs. The Workmen,
(3) Where the determination by the Tribunal pertains to jurisdictional facts it is subject to judicial review.
Nevertheless the Courts will not in this process substitute its judgment for that of the Tribunal unless it can be shown that the decision was perverse. Perversity would include a determination contrary to the evidence on record as well as a determination which is irrational or speculative. See Vasudeo Vishwanath Saraf Vs. New Education Institute and Others, D.P. Mohan v. Delhi Administration AIR 1984 S.C. 153 : 1983 S.C.C. 527 : 1983 (4) C.L.J. 425, Sadhu Ram Vs. Delhi Transport Corporation, and Indian Aluminium Company Ltd. v. The 3rd Industrial Tribunal 1989 C.L.R. 395.
(4) A person is employed in a supervisory capacity when he is in a position to supervise the work of others working under him. See Blue Star Limited Vs. N.R. Sharma and Others, S.B. Kulkarni Vs. Indian Red Cross Society and others, and Bombay Dyeing and Manufacturing Company Ltd. v. R.A. Bidoo 1989 (2) C.L.R. 248 (Bom.).
While the first three propositions were accepted by both parties there was no such consensus in respect of the fourth proposition enunciated above. We are therefore left with the question as to what is meant by the phrase ''supervisory capacity'' used in Section 2(s) of the Act and whether there was any evidence before the Tribunal which would justify the Tribunal in arriving at the decision it did.
The importance of the phrase ''Supervisory capacity'' stems from the definition of the work ''workman'' in Section 2(s) of the Act:
[(s) ''workman'' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person --
(i) who is subject to the Air Force Act 1950 (45 of 1950), or the Army Act, 1950 (45 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison ; or
(iii) who is employed mainly in a managerial or administrative capacity ; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises. Subject to the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
In terms of the definition of workman, therefore, any person who works in a supervisory capacity and earns more than Rs. 6,500.00 per month by way of wages is not a workman.
At the time of his dismissal the Respondent No. 3 was holding the post of a Stenographer. According to the Respondent No. 3 his work was primarily clerical. According to the Appellant the Respondent No. 3 discharged duties which were supervisory. Admittedly, the Respondent No. 3 was earning Rs. 6,000.00 per month. The question is was he working in a supervisory capacity ?
The definition itself would give some indication as to when an employee acts in a supervisory capacity. Firstly, supervisory work is not manual or unskilled or skilled or technical or operational or clerical work. This implies that where the task is performed by the person himself there is no question of that employee acting in a supervisory capacity. It follows that when a task is supervised it must be performed by others. The task of supervision would also imply the ability to control the method in which the work which is being supervised is carried out and the ability to correct, rectify and direct the performance of such task.
The definition in Section 2(s) also indicates that the words ''Supervisory'' has been used in contradistinction to the words managerial or administrative in Section 2(s)(iii).
This analysis is in accordance with the dictionary meaning of the word ''supervise'' - namely; to superintendent the execution of the performance of a task, etc. or oversee the action or work of a person and a supervisor is a person who supervises a person, a task etc. Thus a person is appointed in a supervisory capacity if he performs the function on supervising a person, task etc. (See: Shorter Oxford English Dictionary, 1993 Edn.).
In Black''s Law Dictionary the word ''Supervisor'' has been defined as:
''Supervisor.
***
In a broad sense, one having authority over others, to superintend and direct.
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....
In our view, therefore the definition of supervisory capacity as used in Section 2(s)(iv) can fairly be stated to be overseeing th work of others with the ability to control, direct and correct such persons or the mode of performance of such work. This is also the view expressed by the Delhi and Bombay High Courts in the decisions noted above.
The Appellant had initially proceeded on the basis that the Respondent No. 3 was a workman. The procedure adopted by the Appellant for dismissing the Respondent No. 3 by holding a domestic inquiry suggests that the Appellant saw the Respondent No. 3 as a workman. Furthermore, in the written statement as originally filed by the Appellant before the tribunal the Appellant had not raised the issue at all and had described the Respondent No. 3 as a workman. A second written statement was filed by the Appellant which raised the issue of the Respondent No. 3 not being a workman for the first time.
The documents placed before the Tribunal by the Appellant show that the Respondent No. 3 may have indeed discharged duties which could not be called clerical but that does not mean that the duties were therefore supervisory. The documents at the highest might prove that the Respondent No. 3 was acting independently in matters, and on occasion even representing the Appellant before Government authorities. Nevertheless, the Appellant did not adduce any documentary evidence to establish that the Respondent No. 3 was acting in a supervisory capacity in the sense of the phrase used in Section 2(s)(iv) of the Act. It would not be open to the Appellant at this stage to justify its stand that the Respondent No. 3 was not a workman by restating its case u/s 2(s)(iii). Apart from the fact that this would be contrary to the pleadings, the only issue before this Court is whether the Tribunal on the basis of the pleadings was justified in holding that the Respondent No. 3 was a workman, see also R.G. Makwana v. Gujrat State Road Transport Corporation (Guj.) 1989 (I) L.L.J. 172.
As far as the oral evidence is concerned, the only witness of the Appellant had this to say:
Sri P.S. Lakshmanan was vested with the powers to supervise the works of the employees working under him and he could take independent decision within the limit authority given to him. Shri S.K. Nayak, Despatch Assistant used to work under Shri Lakshman relating to Printing and Stationary matters. Shri Netai Bijali, peon used to work under Shri Lakshman in respect of motor vehicle. Regional Transport Office matters. Shri Bans Bahadur Singh was a driver of our company whose duty was allotted by Sri Lakshmanan while he was handling transport matters.
No documents were produced by the Appellant to establish this statement. As opposed to this was the evidence of the Respondent No. 3 himself. He categorically denied that any one worked under him. He said that his main job was to take dictation from his boss or other Officers and to type out the same and that he also dealt with filing work. The Tribunal accepted the Respondent No. 3''s version.
Where there was some evidence, albeit oral, that the Respondent No. 3 was primarily discharging clerical duties, and where there was no documentary evidence in support of the Appellant''s case the decision of the Tribunal cannot be said to be irrational, speculative or perverse.
For the reasons aforesaid the writ and the appeal are both dismissed. There will be no order as to costs.
Devendra Kumar Jain, J.
I agreed.