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Judgment
K. Chandru
These two writ petitions were filed against an award passed by the Industrial Tribunal in I.D.No.27 of 2004 dated 13.4.2007. By the impugned
award, the 1st respondent Industrial Tribunal dismissed the industrial dispute raised by the petitioner trade union in W.P.No.34626 of 2007 and
did not grant any relief. W.P.No.31022 of 2007 is filed by one M.Murugan and 11 others challenging the award and also seeks for a
consequential direction to reinstate them. That writ petition was admitted on 25.9.2007. Thereafter, the trade union which raised a dispute filed a
writ petition in W.P.No.34626 of 2007 challenging the same award and after setting aside the same seeks for a direction to reinstate the workers
with full backwages and continuity of service. The second writ petition was admitted on 6.11.2007. On notice, the 2nd respondent management
appears through counsel.
Heard the arguments of Mr.K.M.Ramesh, learned counsel for Mr.K.V.Shanmuganathan, learned counsel for the petitioner in W.P.No.31022
of 2007 and appearing for Mr.M.D.Thirunavukkarasu, learned counsel for the petitioner in W.P.No.34626 of 2007 and Mr.S.Ravi for M/s.Gupta
and Ravi Associates appearing for the 2nd respondent management.
It is the case of the trade union that the factory of the 2nd respondent was started in the year 1979. Though it was making huge profits, they
declared lock out with effect from 1.5.2002. In that lock out notice, the management listed out the names of 114 employees who according to
them were covered by the lock out notice. The list contains clerical staff, workmen and security staff. The trade union sent a letter to the 2nd
respondent objecting to the lock out. During the year 1999, the management introduced voluntary retirement scheme in which 90 workers went on
voluntary retirement scheme. Subsequent to the lock out, the company was carrying on the same work in the name of another company, namely
Teagu Toc"" with Israel collaboration in Plot Nos.119 and 120 in Bommasundra Industrial Area in Bangalore.
In the dispute raised by the trade union, conciliation proceedings were held by the Conciliation Officer. The management took the stand that the
company was at a loss. But the union disputed the same to show that actually there was no loss, but on the contrary, there was diversion of funds
and draining of the company by the Directors. It was also brought to the notice that the same activities are being held at Bomachandra Industrial
area in the name and style of another company, namely ""Taegu Toc"". Lock out taken by the management continued. The lock out was made to the
workers to surrender their rights and agree to work for a lesser wage.
The management subsequently on 2.5.2002 put up closure notice offering to close the unit with effect from 30.6.2002. No prior permission was
obtained from the Government of Tamilnadu for the closure as required u/s 25-O of the I.D.Act.
On the dispute raised, since the failure report was sent to the State Government by the Conciliation Officer, a reference was made by the State
Government vide G.O.(D).No.684, Labour and Employment Department dated 15.6.2004 referring the dispute for adjudication by the Industrial
Tribunal, Chennai. The order of reference reads as follows:
i. Whether the act of the Management in shopping production from the Mid Night of 2.5.2002 is ""Lock out"" or ""closure""?
ii.Whether the management of Indicarb Ltd., is covered by Chapter V-B of the Industrial Disputes Act, 1947 and
iii.To what relief the workers who are affected by the non-functioning of the establishment from 1.5.2002 are entitled to And to pass appropriate
orders.
The Industrial Tribunal registered the dispute as I.D.No.27 of 2004 and issued notice to both parties. An additional affidavit was filed by the
trade union to which the management filed a counter statement on 13.10.2004. Before the Tribunal, on behalf of the workman, M.Murugan, 1st
petitioner in W.P.No.31022 of 2007 was examined as W.W.1. On the side of the management, one witness namely K.S.Kthotia was examined as
M.W.1. The Industrial Tribunal examined another witness, namely Dr.S.Chandrasekaran as C.W.1, who was the Professor and Head of
Automobiles Engineering, Chennai. The workmen filed 29 documents, which were marked as Ex.W. 1 to Ex.W.29. On the side of the
management, 372 documents were filed and marked as Ex.M.1 to Ex.M.372. The Tribunal marked one document as Ex.C.1, which was the
report of the Technical Expert/Assessor.
The assessor appointed by the Tribunal gave a report dated 22.12.2006 and his opinion reads as follows:
As such, the Expert/Assessor is of the opinion that the products listed in the Catalogues, Ex.M.6 can be manufactured in the same way as the
corresponding items shown in the Catalogues. Ex.M.344 and M.345. The same type of machinery is to be used in all these cases. The process is
one and the same.
Before the Tribunal the Union concentrated on proving that the 2nd respondent factory is covered by Chapter V-B of the I.D.Act. Once it is
proved that it is a case of coverage under Chapter V-B, it is necessary for the management for closing the factory that they should have obtained
prior permission from the competent authority. Therefore, the contention of the workmen was that there were more than 100 workers at the
relevant time so as to bring it within the coverage of section 25-K of the I.D.Act, whereas the management contended that they were having less
than 100 workers. The Tribunal held that the onus of proving that the factory is covered by Chapter V-B lies on the workmen and therefore on the
basis of the evidence, it can be concluded that there were only 92 workers and hence it is not an establishment covered by Chapter V-B of the
I.D.Act, whereas the stand of the workmen was that there were more than 100 workers and that is sought to be proved by evidence adduced.
The Industrial Tribunal found that initially it was a case of lock out and it was justified and finally it was the case of closure and it found that
closure is also justified and the question of any prior approval is not required as it is not an industrial establishment covered by Chapter V-B of the
I.D.Act. It found that the report of C.W.1 may have persuasive value. Once there is a closure of industry is found to be valid, the question of
seeking relief from some other company will not arise. In that view of the matter, the Tribunal dismissed the Industrial Dispute.
Mr.K.M.Ramesh, learned counsel for the petitioners stated that his clients will be satisfied with reference to the second issue in the order of
reference. Once it is in favour of the workers, the workers will work out their rights before the appropriate forum through enunciating proof that
there were 100 workmen employed by the management.
In fact, during the pendency of the dispute, the management filed a Civil Suit in O.S.No.87 of 2002, on the file of the District Court against the
management. In paragraph NO.4, they had averred as follows:
... The plaintiff submits that it has employed about 100 permanent workmen, apart from supervisory and management staff. There are security
personnel also. All the workers and security staff are represented by the defendants union and all the workers are members of the defendants
union...
Therefore having taken a stand that they were having more than 100 permanent workers, they cannot resile from the said statement and they
cannot argue that there were less than 100 workers.
Without prejudice to their statement, the learned counsel for the petitioner Mr.K.M.Ramesh referred to the oral evidence of W.W.1. He had
stated that there were 73 Operators, 13 Security Persons and 28 Clerks. But in the same cross-examination he had agreed that several persons in
the said list were either non-workers being Supervisors or the management staff.
The learned counsel for the petitioners also filed a common order passed by the Labour Court, Salem in C.P.Nos.181 to 184 of 2003, 186,
188, 190 of 2003 dated 17.1.2002, for contending that the Labour Court found that the petitioners in those Claim Petitions were workmen and
not the Supervisors as contended by the management. Though in that case, the Court declined to grant any relief by stating that since the dispute is
pending for adjudication, the workers are made to work out their rights depending upon the outcome of the award passed by the Tribunal.
Mr.K.M.Ramesh, learned counsel for the petitioners in this context referred to certain decisions with reference to the test to be adopted in
finding as to whether the person is a workman who comes within the meaning of Section 2(s) of the I.D.Act.
He referred to the judgment of the Supreme Court in S.K. Maini Vs. M/s. Carona Sahu Company Limited and others, . In paragraph No.9, it
was held as follows:
After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties,
it appears to us that whether or not an employee is a workman u/s 2(s) of the Industrial Disputes Act is required to be determined with reference
to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case
and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and
functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of
workman u/s 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial
or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes
necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of
workman or goes out of it.
Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical
work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the
mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to
some supervisory works, the employee will come within the purview of _workman_ as defined in Section 2(s) of the Industrial Disputes Act.
Thereafter, he referred to the decision of the Supreme Court in Anand Regional Co-op. Oil Seedsgrowers Union Ltd. Vs. Shaileshkumar
Harshadbhai Shah, . In paragraph 15, it was observed as follows::
Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the
matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class
to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove
that there were some persons working under him whose work is required to be supervised. Being in charge of the section alone and that too it
being a small one and relating to quality control would not answer the test.
Since it is the stand of the management that the initial burden is on the workmen, in order to prove that the management shall not discharge the
burden, he referred to the judgment of the Supreme Court i The Punjab Co-operative Bank Ltd. Vs. R.S. Bhatia (Dead) through Lrs., . In
paragraph No.5, it was held as follows:
5.... Moreover, we find that even apart from the previous order operating as res judicata, practically there was no evidence on behalf of the
appellant in support of its case that the respondent was not a workman. The only evidence of MW 1 was that in his capacity as an Accountant the
respondent used to sign the salary bills of the, staff including himself. But then he further stated that these bills used to be submitted to the Head
Office of the bank. The Accountant is supposed to sign the salary bills of the staff even while performing the duties of a clerk. That did not make
the respondent _employed mainly in a managerial or administrative capacity_, within the meaning of sub-clause (iii) of clause (s) of Section 2 of the
Act.
He further referred to the judgment of the Supreme Court in State of Punjab vs. M/s.Modern Cultivators 1964 II Madras Law Journal page
185 to contend that if the management did not produce the documents in possession, then the Rule of Res Ipsa Loquitur will apply.
He further referred to the judgment of the Division Bench of Bombay High Court in Chandrashekar Chintaman Vaidya vs. National Orgnaic
Chemical Industries Ltd., Akola reported in 2011(1) LLJ 200 (Bom) to contend that it is not nomenclature that is relevant but the predominant
duties are relevant.
He also stated that an Accountant doing supervisory work cannot be ceased to be a workman. In support of his contention, he referred to the
judgment of the Supreme Court in South Indian Bank Ltd. Vs. A.R. Chacko, . In paragraph No.11, it was held as follows:
The Labour Court appears to have taken proper note of this distinction between accountants who are really officers and accountants who are
merely senior clerks with supervisory duties and on a consideration of the evidence on the record as regards the duties actually performed by the
respondent Chacko has come to the conclusion that he was merely a senior clerk, doing mainly clerical duties, and going by the designation
accountant and was in reality a workman as defined in the Industrial Disputes Act and doing an element of supervisory work.
He further referred to the judgment of the Bombay High Court in Gwalior Investment Company Private Ltd., v. K.M.Desai, Member,
Industrial Court and others reported in 1983(1) LLJ 127 for contending that the fundamental nature of job is the criterion to decide whether a
person is a workman or not. When the workman did not exercise any supervisory power, he cannot be said to be a workman.
23.Similar is the judgment in Management of Christian Medical College and Hospital, Vellore vs. Presiding Officer, Labour Court, Vellore
reported in 2003 (2) LLN 21, wherein this Court held that an Accounts Officer, who was essentially carrying on duties as as Accounts Assistant,
is a workman, who comes within the meaning of Section 2(s) of the I.D.Act.
He also referred to the judgment of the Calcutta High Court in Titaghur Paper Mills Company Limited vs. First Industrial Tribunal, West
Bengal and others reported in 1982 (2) LLJ 288 for contending that if a person is required to render his technical knowledge in the matter of
production along with other workers as directed by other superiors, then he cannot be said to be exercising supervisory work and/or administrative
work. Therefore, the learned counsel for the petitioners stated that the Tribunal has committed a grave error in not appreciating the nature of the
work done by some of the workmen and merely carried away by the nomenclature of the persons.
Mr.S.Ravi, for M/s.Gupta and Ravi, learned counsel for the 2nd respondent management referred to the following decisions:
i.1995 (II) LLN 178
ii.2006 (IV) LLN 12
iii.2001 (III) LLN 550
iv.2004 (II) LLN 68
v.2006 (VII) SCC 330
for contending that the question as to whether a person is a workman or not is essentially a question of fact and this Court should not interfere on
the question of finding of fact.
The only question that arises for consideration is whether the finding recorded by the Tribunal in respect of number of workers employed by
them is 100 or less. The relevant documents were also not considered by the Tribunal and the entire issue clinches upon the numbers. This Court
finds that as per the order passed by the Labour Court, Salem in C.P.Nos.181 to 184 of 2003, 186, 188, 190 of 2003 dated 17.1.2002, it is
clear that there were 8 workers. Even 92 workers found by the Tribunal was taken along with these 8 workers, it must become 100 workers.
Hence, Chapter V-B is clearly attracted. Though this document was filed as Ex.W.23, the Tribunal did not consider the legal effect of the said
document.
All that this Court finds is that the Tribunal has not appreciated the correct finding whether certain persons are workmen or not, but went by
the nomenclature. Since it is essentially a matter to be decided on materials, it is not a fit case where the award passed by the Industrial Tribunal
should be set aside and remanded for fresh disposal in accordance with law.
Hence, the Writ Petition filed by the union in W.P.No.34626 of 2007 stands allowed and the matter is remanded back to the Industrial
Tribunal. The Industrial Tribunal is directed to adjudicate the matter in respect of issue No.2 as to whether the 2nd respondent management is
covered by the provisions of Chapter V-B of the Industrial Disputes Act and if the answer is in positive, then for what relief, the workmen are
entitled to.
Since the dispute is of the year 2004 and more than 8 years have lapsed, the Industrial Tribunal shall give preference for the disposal of the
same and also take evidence if necessary and in any event shall dispose of the same within a period of six months from the date of receipt of this
order after giving due notice to the parties. Since W.P.No.34626 of 2007 stands allowed and the union is party before the Industrial Tribunal, it is
for the workers to to make out appropriate application individually before the Industrial Tribunal. Hence, W.P.No.31022 of 2007 is dismissed
with liberty to the workmen to approach the Tribunal with appropriate application as to the issue raised by them is also the issue covered by the
Writ Petition in the Writ Petition No.34626 of 2007 and their interest is protected by the order passed in W.P.No.34626 of 2007. No costs. The
connected Miscellaneous Petitions are closed.