Shaik Ali vs Commissioner (now Special Officer), Municipal Corporation of Hyderabad

Ramachandra Rao

The petitioner herein, who is employed as a Drainage Channel Inspector in the Municipal Corporation of Hyderabad, has filed this petition for the issue of a writ of certiorari and to quash the Memorandum No. 8790/Dr/A8/71/6873 dated 16-12-1971 issued from the office of the Executive Engineer, Drainage Division. Municipal Corporation of Hyderabad, retiring the petitioner from service with effect from 5-4-1972. He also seeks a further direction that he should be continued in service till he attains the age of 60 years. The relevant facts are as follows :-- The petitioner joined the service in the Drainage Department of the erstwhile Government of Hyderabad In the years 1954 the Drainage Department was abolished and the entire staff was made over to the Drainage Division of the Municipal Corporation of Hyderabad and ever since the petitioner has been working in the said Division as a Sluice Inspectoral the Drainage Disposal Works, Amberpet. At the time of filing the writ petition he was working in the maintenance Section of the Drainage Division. The petitioner states that by virtue of the provisions of section 140 of the Hyderabad Municipal Corporation Act, the Hyderabad Civil Service Rules for the time being in force relating to the appointment and conditions of service are applicable to the Municipal Service including the employees of the Drainage Division Under rule 231 of the Hyderabad Civil Service Rules hereinafter referred to as "the rules", a workman whether in superior service or in inferior service, shall ordinarily be retained in service upto the age of 60 year. The neither submits that the Drainage Division of the Corporation is an Industrial Establishment, that the petitioner is a ''workman'' employed in the said Industrial Establishment on a monthly rate of pay and that therefore he is entitled to continue in service upto the age of 60 years AS per the said rule 231. In Memorandum No, 8790/D1/A8/71/6863 dated 16-12-1971 the Executive Engineer. Drainage Division had given a notice to the petitioner that he was due to retire on 5-4-1972 on the attainment of the age of 55 years. The petitioner made representations to the concerned authority of the corporation to continue him in service till he attains the age of 60 years and that he could not be retired at the age of 55 years but no reply was received from the Corporation. He has there upon filed this writ petition for the reliefs mentioned above.

The Corporation has filed a counter-stating that the petitioner was employed in the Drainage Division. But it is stated that the drainage division is not ''an industrial Establishment'', that the petitioner is not a ''workman'', that he was appointed as a Drainage Inspector and doing only supervisory work and not manual work and that therefore he would not be entitled to continue in service up to the age of 60 years.

Sri Tej Rai Kapoor the learned counsel for the petitioner raised the following contentions:-

1) That the Drainage Division is an industrial establishment.

2) That the petitioner is a workman within the definition of Section 2 (s) of the Industrial Disputes Act and therefore he should be deemed to be a workman also within the meaning of Rule 231 of the Rules and that the explanation to the proviso to rule 23t defining a workman" conflicts with the definition of ''workman'' u/s 2 (s) of the Industrial Disputes Act and therefore the explanation is ultra vires

3) That the petitioner is a workman within the meaning of Rule 231 read with the explanation, as he was performing manual duties and not merely supervisory work and therefore he is entitled to continue in service upto the age of 60 years.

So far as the first contention is concerned, though in the counter affidavit it was denied that the Damage Division is not an industrial establishment, it is now concede by Sri M. Rammohan Rao the learned counsel appearing for the Corporating, that the Drainage Division is an industrial establishment. This is also decided by a Bench of this court on 27-6-1973 in writ appeal No. 321 of 1972, where the learned Judges held, following a decision of the Supreme Court in Nagapur Corporation v. Its Employees that the workshop of the Damage department of the Municipal Corporation is an industrial establishment within the meaning of rule 231.

The second contention of the learned counsel for the petitioner is that the explanation the proviso to rule 231 of the Rules conflicts with the definition of workman under Sec. 2 (s) of the Industrial Disputes Act. Rule 231 reads as follows:--

231 The date of compulsory retirement of a Government servant in superior and inferior service is the date on which he attains the age of 55 years and 60 years respectively. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing but a Government servant in superior service must not be retained after the age of 60 years except in very special circumstances.

Provided that a workman whether in superior or in inferior service, who is governed by these rules shall ordinarily be retained in service upto the age of 60 years. He may however, be required to retire at any time after attaining the age of 55 years after being given a month''s notice, or a month''s pay in lieu thereof on the ground of impaired health or of being negligent or inefficient in the discharge of his duties. He also may retire at any time after attaining the age of 55 years, by giving, on month''s notice in writing.

Explanation. For the purposes of this proviso a ''workman'' means a highly skilled, skilled or semi-skilled and un-skilled artisan employed on a month rate of pay in industrial and work charged establishments.

Under the proviso to this rule a workman, whether in superior or inferior service, who is governed by the said rules, shall ordinarily be retained in service upto the age of 60 years. He may, however, be required to retire after attaining 55 years on giving a month''s notice on the ground of impaired health or of being negligent or inefficient in the discharge of his duties. But in order to be a workman within the proviso, he should satisfy the requirements of Explanation which states that for the purpose of the proviso a ''workman'' means a highly skilled, skilled or semi-skilled and unskilled artisan employed on a monthly rate of pay in industrial and work charged establishments. To be a workman within the meaning of the Explanation, three things are therefore, necessary-(1) the employee should be on artisan, whether highly skilled, skilled or semi-skilled and unskilled ; (2) he should be employed on a monthly rate of pay; and (3) that employment should be in an industry or in a work-charged establishment. In the instant case the petitioner satisfies the latter two conditions, viz., that he is employed on a monthly rate of pay and that he is employed in an industrial establishment The only quest on is whether he is an artisan.

Sri Tej Rai Kapoor submits that it is not necessary to go into this question because under the definition of ''workman'' u/s 2 (s) of the Industrial Disputes Act it is sufficient if it is established that a person to be a workman is employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work and though employed in a supervisory capacity draws wages not exceeding Rs. 500/- per mensum. The argument of the learned counsel is that even if the contention of the Corporation is to be accepted that the petitioner is doing only supervisory work, still he could be a ''workman'' within the meaning of Section 2 (s) of the Industrial Disputes Act as he was drawing only less than Rs. 500/- per mensum But I do not think the petitioner can rely upon the definition of workman u/s 2 (s) of the Industrial Disputes Act for the purpose of claiming the benefit of higher age of retirement of 60 years prescribed by rule 231 of the Rules. The definition of ''workman'' in Section 2 (s) of the Industrial Disputes Act cannot be imported into the Hyderabad Civil Service Rules for the purpose of determining the age of retirement. The age of retirement of an employee of the Corporation can only be determined with reference by Rule 231. The benefit of higher age of retirement prescribed by Rule 231 for an employee of the Corporation could be claimed only if it is established that the employee is a workman within the meaning of the Explanation to the Proviso to rule 231.

But it is sought to be contended by Sri Tej Rai Kapoor that the definition of ''workman'' in the Explanation to the proviso to rule 231 conflicts with the definition of ''workman'' in section 2 (s) of Industrial Disputes Act, and that the Hyderabad Civil Service Rules having been made under the provisio to Article 309 of the Constitution, it should give way to the statutory provisions contained in the Industrial Disputes Act; and in support of this submission he relies upon the decision of the Rajasthan High Court in State of Rajasthan v. Kailash Chandra Jain 973 (1) SLR 183 But I do not think the submission can be accepted It is not the case of the petitioner that there is any provision made in the Industrial Disputes Act prescribing the retirement age for workman falling within the definition of Section 2 (s). There being no such provision in the Industrial Disputes Act, the question of rule 231, which prescribes the age of retirement for workman falling within that rule, conflicting with section 2 (s), would not arise, Therefore it cannot be said that the Explanation to the Proviso to Rule 231 is ultra vires. The second contention of the learned counsel, therefore is devoid of any merit.

The third contention raised by the learned counsel for the petitioner is that he is performing manual duties and therefore, he is an artisan and hence a ''workmen'' within the meaning of the Explanation. It is well established that the designation given to an employee is not conclusive in determining the nature of the functions assigned to and performed by him and the question whether a person is a workman has to be determined with regard to the actual work assigned to and performed by him. In the instant case the petitioner has stated in the affidavit as follows :--

Since 1954 he is working as Sluice (Maistry) Inspector and looking after various work. He has been authorised to inspect and control distribution of water for irrigation from Uppal and effluent channels and report irregularities. The nature of his work is to regulate the sluices and shutters of Uppal and effluent channels and let out water from sluices, control the distribution "of organic matters disposed of from the purification plant purified for irrigation purposes, etc. at the Purification Plant, the sewage purified after partial treatment in septic tank and dilution with fresh water, is carried in dilution chamber to effluent channel let out by effluent sluices for irrigation ; controlling of adjustable sluices which have been provided along with existing channel, so that effluent or fresh water (as the case may be) can be supplied to each cultivator, according to the area, nature and requirement of the crops controlling of double sluices at suitable intervals on both the channels with a common masonary cistern at the outlet for further dilution, if necessary, according to the need of special crops ; supervising and maintaining channels, bunds, regulate and not the guage of channel level so that water may not be wasted or go in excess. The petitioner used to supervise the processes at the purification plant and also worked at Sewage Laboratory. As he is liable to be transferred to any section of the Drainage Division he is posted in the maintenance section since 1965 Here also he supervises the existing sewer line, rectifies any fault occurring in the said line by technical methods, removes silt by using drainage apparatus, checks the connections in the sewer lines, strom water drains and monitory junctions, checks the syphons and cash pits, supervises and checks various instruments in latrines and bath-room.

But in the counter affidavit it is stated in paras 2 and 3 as follows :

The petitioner Sri Shaik Ali was previously "working as Sluice Inspector at Drainage Disposal Works. Amberpet under the Drainage Division of the Municipal Corporation of Hyderabad and the petitioner is now in Maintenance Section of the Drainage Division of the Municipal Corporation.

The duties of the petitioner are to supervise the staff posted on the channel and report any irregularities that may be found on the site to the immediate officer and also to take attendance of the staff posted on the channel. The duties of the petitioner are in nature of executive and the petitioner is actually discharging the above duties. It is incorrect to stele that the petitioner is a workman and the Drainage Department of the Municipal Corporation is an Industrial Establishment. The duties mentioned by the petitioner in paragraph III (1) are quite contrary to the duties attached to the rest and the duties performed by the petitioner. In fact, these duties are performed by superior officer namely the Superintendent and others. I submit that the nature and the duties of the Inspector posted as Inspector in Maintenance section are as follows :--

1) To supervise the staff posted under him and to report any irregularities found to his immediate superior officers :

2) To maintain the work like the removal of silt, cleaning of drainage, sluice control, cleaning of channels, controlling shutters, etc.

These are actually done by the labourers posted under the inspector. The Inspector only supervises the work as per the instructions of the higher officers. It is not correct to state that the cleaning silt, removal work etc., mentioned in the ''petition are carried by the Inspectors.

From the averments in the affidavit filed in support of the petition it is clear that the petitioner is performing not only supervisory duties, but also manual duties. It cannot be said that the duties performed by him are rarely and exclusivity of a supervisory nature. The counter affidavit does ret disclose as to the nature of the staff employed to do the various types of (sic) or works mentioned in para 7 of the petition. In the counter affidavit is stated that the nature of duties of the Inspector in the Maintenance Section are: (1) to supervise the staff posted under him and to report any irregularities found to his immediate superior officers: and (2) to maintain the work like the removal of silt clearing of drainage, sluice control, cleaning of drainage, sluice control, cleaning of channels, controlling shutters, etc. At the same time it is stated that these are actually done by the labourers posted under the Inspector and the Inspector only supervises the work as per the Instructions of the higher officers. In the reply affidavit the petitioner states as follows:--

There are only two posts of Sluice Inspectors. Even now salary is given for the same post. It is absolutely incorrect that the labourers only perform duties shown in the affidavit. The petitioner not only guides the works shown in the affidavit but he has to actually do these works, if necessary when the labour is unable to do it satisfactorily. The works are done by the petitioner technically by using instruments also. In fact the petitioner joined duty as Cleaner and worked in that capacity for about six years and as such was doing the work himself. After promotion from the post of Cleaner the petitioner worked as Sluice Maistry. The petitioner''s present grade is Rs. 80.160. The labourer''s grade is Rs. 65-100. The statement of the respondents that the Inspector only supervises the work as per the Instructions of the higher officer is completely misleading. The petitioner actually works on the site. Above the petitioner is the Supervisor who supervises the the work.

On a consideration of these averments, I am inclined to think that the petitioner also performs manual duties and not merely supervisory work. The counter does not disclose the nature of the staff employed in the Drainage Division and the nature of duties performed by each of them. No office order or instructions with regard to the distribution of work between the various members of the staff employed in the Drainage Division have been produced before me. In the circumstances, the question hat to be determined primarily with reference to the averments contained in the petition, counter affidavit and the reply. The learned counsel for the petitioner and for the Corporation cited several rulings in support of their rival contentions on the question whether the petitioner is a workman or not; but all those decisions are with respect to the definition of ''workmen'' under the Industrial Disputes Act and I do not think they can be applied in determining the question whether the petitioner is a workman within the meaning of the Explanation to the proviso to Rule 231 of the Rules.

The question to be determined under the Explanation is whether the petitioner is an ''artisan'' employed on a monthly note of pay in an industrial establishment.

Sri Tej Rai Kapoor contended that the petitioner was appointed originally as a sluice Maistry in the Drainage Division and subsequently the designation was changed to Sluice Inspector, that the changed designation would not in any manner alter the nature of work or the duties he has to perform, that a ''Maistri'' according to Wilson''s Clossory, means an artificer, a mechanic, a mason, a carpenter, etc., ahead artificer, a chief builder, a carpenter and, the like" and that therefore the petitioner is also an artificer and therefore an artisan within the meaning of the Explanation to proviso to Rule 231. He has also invited my attention to the definition of ''artisan'' in the English Dictionary by Jowitt. There appears to be some force in this contention of the learned counsel for the petitioner. In the decision cited by both the learned counsel the expression ''any person employed in any industry'' occurring in Section 2 (s) of the Industrial Disputes Act was considered. But in the present case the expression which falls for consideration is artisan employed in an industrial establishment There is thus a distinction in the wording of the two expressions and therefore the decisions cited by the learned counsel do not render much assistance in determining the question that falls for consideration in this case.

In the result, I hold that petitioner is a workman within the meaning of the explanation to the proviso to Rule 231 of the Hyderabad Civil Service Rule and so the petitioner is entitled to continue in service upto the age of 60 years. The impugned or retiring the petitioner is, therefore, illegal and cannot be enforced against the petitioner and it is liable to be quashed and is accordingly quashed.

The writ petition is allowed with costs. Advocate''s fees Rs. 100/-.