P.D. Sharma vs M/S Reva Enterprises & Anr.

KIRTI SINGH, J. (ORAL)

This order shall dispose of CWP-9784-2016 and CWP-447-2018, filed by the same petitioner, namely, Prithvi Dhar Sharma, also referred to in the later proceedings as P.D. Sharma, against the same respondent-management, M/s Reva Enterprises, Faridabad. Both petitions raise a common question regarding the status of the petitioner as a ‘workman’ within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, ‘the Act’). For facility of reference, the facts are primarily noticed from CWP-447-2018, which arises from the substantive industrial reference, while the facts peculiar to CWP-9784-2016 are noticed separately.

In CWP-447-2018, the petitioner has further sought issuance of a writ in the nature of certiorari for quashing the award dated 04.10.2017 passed by the learned Industrial Tribunal-cum-Labour Court, Faridabad, in Reference No.09 of 2014, whereby the claim of the petitioner for reinstatement with continuity of service and full back wages was declined. In CWP-9784-2016, the petitioner seeks quashing of the order dated 15.01.2016 passed by the same Tribunal in Application No.79 of 2013, whereby the application filed by the petitioner under Section 33-C(2) of the Act for computation and recovery of Rs.4,02,082/- towards arrears of salary, leave encashment, overstay compensation, part loss of provident fund, bonus/ ex-gratia and other benefits for the period 2011-2013, along with interest at the rate of 18% per annum, was dismissed.

As per the pleaded fact, the petitioner was engaged by the respondent-management with effect from 01.08.2011 as an All Rounder Clerk-cum-Assistant and, according to him, was performing predominantly clerical duties, including marking attendance of production workers, maintaining the Daily Production Register, calculating piece-rate payments, recording inward and outward movement of material, taking dictation, preparing challans and bills and filling ESI/PF forms, including pension withdrawal forms. No written appointment letter was issued to him at the time of his initial engagement. His name was not entered in the attendance register from 01.08.2011 to 31.10.2012. On his complaint dated 15.10.2012 to the Labour Inspector, Circle-10, Faridabad, Memo No.256 dated 15.10.2012 was issued to the management and his name was thereafter entered on the rolls with effect from 01.11.2012. The petitioner further pleaded that on 12.08.2013, Mr. Indu Raj Goyal, Partner of the management, directed him to submit his resignation and, on his refusal, his services were terminated with immediate effect. He served a demand notice dated 16.08.2013, leading to conciliation proceedings. During conciliation, the management took the stand that the petitioner had been appointed as ‘Manager’/‘Personal Manager’ with effect from 01.11.2012 and relied upon an appointment letter dated 30.08.2012. The dispute was thereafter referred by the appropriate Government to the Industrial Tribunal-cum-Labour Court, Faridabad, vide order dated 16.12.2013 and registered as Reference No.09 of 2014. The petitioner filed his claim statement reiterating that his duties were clerical and sought reinstatement with continuity of service and full back wages. During the pendency of the Reference, he also filed an application under Section 33-C(2) of the Act for recovery of Rs.4,02,082/- with interest at 18% per annum. The management, in its written statement before the Tribunal, disputed the petitioner’s description of his duties and maintained that he had been appointed as Manager-HR. It was further pleaded that the petitioner represented the management before the ESI, PF and Labour authorities, initiated disciplinary action and was competent to make statements and settlements on behalf of the management. Issues, including the question of the petitioner's status as a ‘workman’, were framed by the learned Tribunal on 13.08.2014. In the Reference, the petitioner examined himself as WW-1 and also examined Sh. Jawala Singh, Assistant in the Office of the Labour Commissioner, Haryana, as WW-2. He further examined the management's Assistant Manager (Personnel/HR), Sh. Sachin Tewatia, as WW-3. The latter produced challan books, Form-38 road permits, bills, annual returns and ten purported full-and-final settlement forms of workmen. Of these, the petitioner accepted Ex. WW-3/2, relating to Mukteshwar Kumar, as genuine and disputed the remaining nine. Consequently, he moved an application dated 10.08.2016 under Sections 67 and 73 of the Indian Evidence Act, 1872, seeking summoning of Mr. S.K. Mishra in relation to the disputed documents. The said application remained undecided. The management also examined Sh. Sachin Tewatia as MW-1 and produced a photocopy of the appointment letter dated 01.11.2012 and a photocopy of the June 2013 salary register bearing the annotation ‘MGR’ against the petitioner's name. In cross-examination, the witness was questioned regarding his own employment with the respondent, the attendance registers for October 2012 and October 2013 and the absence of the designation ‘Manager’ from the salary records for November and December 2012 and January to May 2013. A complaint under Section 340 Cr.P.C. was also stated to have been instituted against him. In his cross-examination, he admitted that certain communications bore his signatures prefixed with the expression ‘for’ the Manager and explained that he had signed them when the factory Manager, Sh. B.K. Batra, was on leave. He also stated that he was not the HOD of his department and had no disciplinary authority. At the same time, he admitted that he used to represent the respondent-establishment before the Labour Officer and Labour Court. More specifically, in the Section 33-C(2) proceedings, he admitted that he was authorised to appear on behalf of the management before various statutory authorities, including the Assistant Director, Safety and Health, MCF, Labour Welfare, Training, Chief Inspector of Factories and Labour Court, and to take decisions, though he stated that he did so as per the decision of the management.

Vide order dated 15.01.2016, the learned Tribunal dismissed the petitioner's application under Section 33-C(2) of the Act on the ground that he had failed to establish his status as a workman. In the substantive Reference, the petitioner's application dated 20.07.2016 for additional evidence was dismissed on 04.01.2017. His application dated 10.08.2016 under Sections 67 and 73 of the Evidence Act remained undecided. Thereafter, on 04.10.2017, the learned Tribunal concluded the Reference and passed the impugned award holding that the petitioner was not a workman. The petitioner subsequently moved an application dated 31.10.2017 seeking recall of the award, which also remained undecided.

Learned counsel for the petitioner submits that the learned Tribunal fell into error in treating the petitioner as a Manager merely on the basis of the designation reflected in certain documents, without examining the predominant nature of the duties actually performed by him. It is submitted that the two appointment letters dated 30.08.2012 and 01.11.2012 were identical in substance and were never produced in original. According to learned counsel, the circumstances brought on record through the RTI proceedings and the testimony of WW-2 cast serious doubt upon their genuineness and provenance.

It is further submitted that the evidence of Mr. Sachin Tewatia is wholly unreliable, as he failed to establish his own employment with the respondent-management, failed to produce the relevant attendance registers and had been proceeded against on the petitioner's complaint under Section 340 Cr.P.C. It is argued that the Form-38 record, challan books, annual returns and the admitted genuine settlement form establish that the petitioner was essentially performing clerical work. The isolated instances of signing documents ‘for’ the Manager or appearing before statutory authorities, according to learned counsel, could not alter the predominant clerical nature of his employment, particularly when there was no evidence that the petitioner possessed disciplinary or independent supervisory authority over any employee. A further submission is that the award dated 04.10.2017 is vitiated by violation of principles of natural justice, inasmuch as the learned Tribunal proceeded to conclude the Reference without deciding the petitioner's pending application dated 10.08.2016 under Sections 67 and 73 of the Evidence Act and without affording him an opportunity to address final arguments.

Per contra, learned counsel for respondent No.1 supports the impugned award as well as the order dated 15.01.2016. It is submitted that the learned Tribunal arrived at its conclusion after considering the evidence led by both sides and that the finding is supported not merely by the disputed appointment letters but also by the petitioner's own testimony. Particular emphasis has been placed upon the petitioner's admission that he represented the management before the Labour Officer, Labour Court and other statutory authorities and was authorised to appear and take decisions on behalf of the management in such proceedings. It is further submitted that the application under Sections 67 and 73 of the Evidence Act related to the disputed settlement forms and was primarily directed towards questioning the credibility of the management witness. According to the respondent, the said evidence was not determinative of the petitioner's status, which could independently be examined on the basis of his own testimony and the other material already on record. It is, thus contended that no prejudice has been caused to the petitioner and that no ground for interference is made out in the limited supervisory jurisdiction of this Court under Articles 226/227 of the Constitution.

I have heard learned counsel for the parties and perused the material on record.

The principal question which arises for consideration is whether the finding recorded by the learned Tribunal that the petitioner was not a ‘workman’ within the meaning of Section 2(s) of the Act calls for interference by this Court in exercise of its jurisdiction under Articles 226/227 of the Constitution. It is well settled that the status of an employee under Section 2(s) of the Act is to be determined by the dominant nature of the duties actually performed and not merely by the designation assigned to him. At the same time, while exercising supervisory jurisdiction, this Court does not sit as an appellate Court to re-appreciate the entire evidence and substitute its own view merely because another view may be possible. Interference would be justified where the finding is perverse, based on no evidence, or suffers from an error of law apparent on the face of the record.

The petitioner is undoubtedly correct to the extent that the nomenclature of his post, by itself, could not have determined his status. However, there is also material on record which lends support to his case that he performed clerical duties. The Form-38 road permits, challan books, bills and annual returns produced through WW-3, as also the genuine settlement form Ex.WW-3/2, were admittedly prepared in his handwriting. The petitioner also asserted that he had no disciplinary authority and was not the HOD of his department. Further, the two appointment letters relied upon by the management were disputed by him and were not produced in original, while the entry ‘MGR’ in the salary register was also subjected to challenge in cross-examination. The credibility of Mr. Sachin Tewatia was likewise questioned on several grounds.

However, the aforesaid circumstances cannot be considered in isolation. There is material of a different character which the learned Tribunal was also entitled to take into consideration. Most significantly, it is the petitioner's own testimony which assumes importance. He admitted that he used to represent the respondent-establishment before the Labour Officer and Labour Court. In the proceedings under Section 33-C(2), he further admitted that he was authorised to appear on behalf of the management before various statutory authorities, including the Assistant Director, Safety and Health, MCF, Labour Welfare, Training, Chief Inspector of Factories and Labour Court, and to take decisions there, though he clarified that he did so as per the decision of the management.

The aforesaid admission cannot be brushed aside merely because the petitioner also performed clerical duties. The test is one of the dominant nature of functions, and an employee may perform clerical work while also being entrusted with functions of a different character. The petitioner's admission establishes that his role was not confined to preparing challans, forms, registers or other routine documents. He was also entrusted with the function of representing the management before statutory and quasi-judicial authorities and participating in such proceedings on its behalf. The fact that he acted in accordance with the instructions of the management may be relevant while assessing the degree of authority actually exercised by him; nevertheless, it does not render his admitted role of representing the employer before statutory authorities wholly irrelevant to the determination of his status.

Viewed thus, the material before the learned Tribunal was not one-sided. On the one hand, there was evidence of clerical work and material relied upon by the petitioner to dispute the designation of Manager. On the other hand, there was his own testimony regarding the functions entrusted to him in representing the management before statutory authorities. The learned Tribunal was required to assess this evidence as a whole. This Court may, on a fresh appreciation, possibly attach greater weight to one part of the evidence than the other, but that by itself would not justify interference under Articles 226/227. The question is whether the conclusion reached by the learned Tribunal was a view reasonably open on the evidence. Having regard particularly to the petitioner's own admissions, this Court is unable to hold that the conclusion that he was not a workman was a view which no reasonable Tribunal could have taken.

It is also significant that, for sustaining the impugned finding, this Court need not place decisive reliance upon the disputed appointment letters, the ‘MGR’ endorsement in the salary register or the nine disputed settlement forms. The genuineness or otherwise of those documents, therefore, need not be finally determined in these proceedings. Likewise, no finding is required to be returned regarding the allegations made by the petitioner against Mr. Sachin Tewatia or the proceedings stated to have been initiated under Section 340 Cr.P.C. Even if the aforesaid disputed material is kept out of consideration, the petitioner's own testimony regarding the nature of functions entrusted to him remains part of the record and constitutes material upon which the Tribunal could reasonably have reached the conclusion it did.

The further grievance regarding the non-disposal of the petitioner's application dated 10.08.2016 under Sections 67 and 73 of the Evidence Act also does not persuade this Court to interfere. There is substance in the submission that the pending application ought to have been dealt with before the Reference was finally concluded. However, the question is whether its non-disposal has resulted in prejudice sufficient to vitiate the award. The application was directed towards summoning Mr. S.K. Mishra in relation to the authorship of nine of the ten settlement forms produced through Mr. Sachin Tewatia. The one document relied upon by the petitioner as genuine, Ex.WW-3/2, was already on record. More importantly, the evidence which weighs with this Court in upholding the Tribunal's conclusion, namely, the petitioner's own admissions regarding his representation of the management before statutory authorities, was wholly independent of the evidence sought through the said application. Thus, even if the application had been allowed and the proposed witness examined, the petitioner's own admissions would remain unaffected. The petitioner has, therefore, failed to demonstrate that the non-disposal of the application caused prejudice going to the root of the finding regarding his status.

The contention regarding denial of an opportunity to address final arguments also does not warrant setting aside the award in the facts of the present case. The petitioner had already led his evidence, placed his stand regarding the nature of his duties before the learned Tribunal and contested the material relied upon by the management. No specific prejudice has been shown by identifying any material contention or evidence which, if addressed at the stage of final arguments, could have altered the conclusion regarding his status. The procedural irregularity, if any, therefore, does not warrant reopening the entire adjudication in exercise of supervisory jurisdiction.

Consequently, this Court is unable to find any perversity, jurisdictional error or error of law apparent on the face of the record in the finding recorded by the learned Tribunal. The possibility of another view on appreciation of the evidence cannot, by itself, furnish a ground for interference under Articles 226/227. The challenge to the award dated 04.10.2017 in CWP-447-2018, therefore, fails.

The petitioner's application under Section 33-C(2) of the Act was founded upon his claim to an enforceable monetary entitlement under the Act. The learned Tribunal dismissed the said application on the ground that the petitioner had failed to establish that he was a ‘workman’. Since the finding regarding his status has been upheld herein and no interference is called for with the award in the substantive Reference, the foundation of the petitioner's claim under Section 33-C(2) of the Act also does not survive. The order dated 15.01.2016, therefore, cannot be said to suffer from any illegality or jurisdictional infirmity warranting interference by this Court.

For the reasons recorded above, this Court finds no merit in either of the writ petitions.

Both the writ petitions i.e. CWP-447-2018 and CWP-9784-2016 are, accordingly, dismissed.

Pending miscellaneous application(s), if any, also stand disposed of.