Manish Pitale DECISION
Manish Pitale, J.
1. The petitioner-Trust has challenged concurrent orders passed by the Labour Court and Industrial Court by filing the present writ petition. It is claimed that the relief of reinstatement with continuity of service and back wages granted in favour of respondent No. 1 deserves to be set aside. The main grievance raised on behalf of the petitioner-Trust is that respondent No. 1, who was working as hostel superintendent for students could not be said to be a workman and that, therefore, the proceedings initiated by respondent No. 1 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "Act of 1971"), before the Labour Court were without jurisdiction. The petitioner challenged the impugned orders on their merits also.
2. Respondent No. 1 was appointed as hostel superintendent by appointment order dated 23/08/1996 with effect from 02/09/1996. Respondent No. 1 continued to work on the said post till the order of termination of service was issued by the petitioner-trust on 10/10/2011. Although, initially the appointment of respondent No. 1 was approved for limited periods, subject to decision in a litigation initiated by one Mr. R.A. Bavane against the petitioner-trust, later on by order of approval dated 21/10/2005 issued by respondent No. 2-District Social Welfare Officer, the service of respondent No. 1 was approved without any such rider. As noted above, the service of respondent No. 1 was terminated by order dated 10/10/2011 by the petitioner-trust, on the ground that the litigation initiated by the said Mr. Bavane had culminated in a compromise between the petitioner and the said person, due to which he was required to be reinstated, necessitating termination of service of respondent No. 1. The said Mr. Bavane has filed an application for intervention in the present writ petition.
3. Aggrieved by the said order of termination of service dated 10/10/2011, respondent No. 1 filed complaint under section 28 of the Act of 1971 before the Labour Court at Wardha, contending that though his designation was hostel superintendent, he had no supervisory powers over other employees and that he was a workman. It was further contended that the act of the petitioner-trust in terminating the service of respondent No. 1 was illegal and unsustainable, thereby showing that the petitioner-trust had indulged in unfair labour practice. The petitioner-trust opposed the said contention raised on behalf of respondent No. 1 and contended that the Labour Court had no jurisdiction. Both the parties led evidence in support of their respective pleadings. By judgment and order dated 28/02/2014, the Labour Court allowed the complaint filed by respondent No. 1, thereby quashing and setting aside the order of termination of service dated 10/10/2011 and further granted relief of reinstatement with continuity of service and back wages. The Labour Court did not frame any issue as regards the maintainability of the complaint on the question as to whether respondent No. 1 could be said to be a 'workman'.
4. Aggrieved by the said order of the Labour Court, the petitioner filed revision application before the Industrial Court, Nagpur Bench, Nagpur. By judgment and order dated 08/03/2016, the Industrial Court dismissed the revision, thereby confirming the judgment and order passed by the Labour Court. There was no issue regarding status of respondent No. 1 as a 'workman' discussed in the judgment and order of the Industrial Court, although a contention was raised on behalf of the petitioner-trust that respondent No. 1 had a remedy of filing appeal before the appropriate authority, as the school run by the petitioner-trust was for deaf and dumb children and it was also contended that an appeal before the School Tribunal could also have been filed by respondent No. 1 instead of complaint under the provisions of the Act of 1971. The Industrial Court held that the complaint filed before the Labour Court was certainly maintainable and thereupon confirmed the order of Labour Court.
5. Mr. V.K. Paliwal, learned counsel appearing for the petitioner-trust, vehemently submitted that there was sufficient evidence and material on record to show that respondent No. 1 was not a workman and that therefore, the complaint filed by him before the Labour Court was not maintainable. On this basis, it was contended that the impugned orders were without jurisdiction and on this ground alone, they deserved to be set aside. It was contended that respondent No. 1 as hostel superintendent had supervisory control over junior employees and that there was sufficient oral and documentary evidence to show that respondent No. 1 indeed exercised such supervisory powers, thereby showing that he did not fit into the definition of workman. On merits, it was contended that the impugned orders passed by the Labour Court and the Industrial Court were unsustainable because the appointment of respondent No. 1 was subject to the decision in complaint filed by the intervener, which culminated in a compromise resulting in reinstatement of the said intervener, thereby showing that the service of respondent No. 1 was correctly terminated by the order dated 10/10/2011. It was submitted that when the appointment of the petitioner and its approval by respondent No. 2 was itself conditional, the Courts below could not have granted the relief of reinstatement with continuity of service and back wages to respondent No. 1. On this basis, it was contended that the writ petition deserved to be allowed.
6. On the other hand, Mr. A.J. Salway, learned counsel appearing for respondent No. 1, submitted that the said respondent was indeed a workman and that the complaint filed by him before the Labour Court was maintainable under the provisions of the said Act. It was pointed out that the material on record demonstrated that respondent No. 1 was not having any supervisory or disciplinary control over junior employees and that even if he had issued certain notices to the junior employees, they were on the instructions and at the behest of the Management /Trust and that therefore, it could not be said that respondent No. 1 was not a workman. It was submitted that mere nomenclature of a post being hostel superintendent could not be the basis for holding that respondent No. 1 was not a workman. It was contended that the predominant nature of duties performed by respondent No. 1 were to be analyzed and it was evident from the material on record that the predominant nature was indeed that of a workman and not of a supervisory nature. On this basis, it was contended that there was no substance in the contention raised on behalf of the petitioner-trust in this regard. On merits of the case, it was submitted that the appointment order of respondent No. 1 did not show that it was a conditional appointment or that it was subject to outcome of litigation initiated by the intervener. It was also pointed out that although initially the approval orders were for fixed periods and they did contain a clause regarding the appointment of respondent No. 1 being contingent to the outcome of litigation initiated by the intervener, the order of approval passed in favour of respondent No. 1 on 21/10/2005, demonstrated that it was no longer a contingent approval, thereby showing that the contentions raised on behalf of the petitioner-trust were unsustainable. It was submitted that both the Courts below had considered the evidence and material on record in the correct perspective while granting the relief in favour of respondent No. 1 and that no interference was warranted in writ jurisdiction. Reliance was placed by the learned counsel for respondent No. 1 on judgment of the Hon'ble Supreme Court in the case of Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay, reported in MANU/SC/0208/1985 : 1985 3 SCC 371 and judgment of Division Bench of this Court in the case of Chandrashekhar Chintaman Vaidya v. National Organic Chemical Industries Ltd. (judgment and order dated 26/02/2010 passed in Letters Patent Appeal No. 130 of 2009).
7. Mr. S.G. Ghude, learned counsel appearing for the intervener, contended that as per settled law, the intervener was necessary party because any relief granted to respondent No. 1 would result in adverse affect on his service. The learned counsel for the intervener placed reliance on the judgment of this court in the case of Parimal Hanumant Dhopte v. Mahekar Education Society of Mehekar through its Secretary and ors., reported in MANU/MH/0054/2014 : 2014 (2) Bom. CR 446 and order dated 05/04/2016 in Writ Petition No. 3307 of 2015, passed by this Court in the case of National Association for the Welfare of Physically Handicapped and another v. The Social Welfare Officer and others.
8. Ms. Archana Lanjewar, counsel holding for Mr. P.D. Meghe, counsel appeared for respondent No. 2-District Social Welfare and Mr. Shyam Bissa, learned Assistant Government Pleader appeared on behalf of respondent No. 3.
9. Heard learned counsel for the parties and perused the record. The main contention raised on behalf of the petitioner-trust, was that respondent No. 1 could not be said to be a 'workman' under the provisions of the Act of 1971 read with the provisions of the Industrial Disputes Act, 1947. It was contended that respondent No. 1 was working as a hostel superintendent and that he was clearly exercising supervisory authority over subordinate employees, thereby showing that he did not fit into the definition of 'workman' as specified in the aforesaid Acts. In support of the said contention, the learned counsel appearing for the petitioner-trust placed much emphasis on number of documents that were exhibited before the Labour Court, showing that respondent No. 1 had issued show cause notices and called for explanations from subordinate employees, like sweepers and others working in the hostel. It was pointed out that these documents were specifically put to respondent No. 1 in cross-examination and that he had conceded to the fact that he had issued such notices to the subordinate employees. It was contended that the nature of duties performed by respondent No. 1 clearly demonstrated that he could not be said to be 'workman'. As opposed to this, it was pointed out on behalf of respondent No. 1 that even if such notices were issued by respondent No. 1, they were all at the behest and on the directions of the President of the petitioner-trust and the Management. It was submitted that most of the documents placed on record pertained to accepting applications submitted by parents of students for taking the children away from the hostel for brief periods and that this was nothing but clerical work done by respondent No. 1, thereby showing that he did answer the definition of 'workman'.
10. A perusal of the provisions of the Act of 1971 read with the provisions of the Industrial Disputes Act, 1947 shows that "workman" means a person, who is doing manual unskilled, skilled, technical, operational, clerical or even supervisory work, but, in case a person employed in a supervisory capacity, if he draws wages exceeding Rs. 10,000/- per month and his functions are mainly of a managerial nature, he cannot be classified as a workman. In the present case, the petitioner-trust has relied upon documents to show that the salary paid to respondent No. 1 at the time of termination of his service on 10/10/2011 was above Rs. 10,000/- and further because respondent No. 1 was clearly doing supervisory work, he did not fit into the definition of "workman". The crucial test in the present case would be, as to whether the oral and documentary evidence on record demonstrates that respondent No. 1 was indeed carrying out supervisory work and that therefore, he could not be classified as a 'workman'. In order to apply the said test to the facts of the present case, it would be necessary to refer to the position of law in this regard. The learned counsel for respondent No. 1 has placed much emphasis on judgment of the Hon'ble Supreme Court in the case of Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay (supra). In the said judgment, it has been emphasized that the Court must examine the primary nature of duties performed by the employee. In the said case, the Hon'ble Supreme Court further emphasized that although there were certain letters on record showing that the employee therein had given certain directions to other clerks in respect of their work, it could not be said that he was working in a managerial or supervisory capacity. It was found that primarily the duties of the employee were clerical in nature and that therefore, even if some extra duties were performed by him, it could not be said that he was not a 'workman'. The test of primary or basic or dominant nature of duties was applied in the said case. In the Division Bench of this Court in the case of Chandrashekhar Chintaman Vaidya v. National Organic Chemical Industries Ltd. (supra) relied upon by the learned counsel for respondent No. 1, it was laid down as follows:-
"36. The law as to basic test as to facts to be proved for holding a person to be a workman under Section 2 (s) of the Industrial Disputes Act can be said to be settled, and can be summarized as follows:-
[a] The person does menial, ministerial or clerical work.
[b] If any of the parts of his duties involves any sort of supervision, which is one the material and not on the men.
[c] The predominant nature of duties discharged by the person, i.e., the part of supervisory duties, if any, is not predominant.
[d] What is seen to be is not the designation and/or nomenclature, but performance of duties."
11. In the case of Anand Bazar Patrika (P) Ltd. v. The Workmen, reported in MANU/SC/0306/1969 : 1970 (3) SCC 248, the Hon'ble Supreme Court laid down the following principle:-
"The principle which would be followed in deciding the question whether a person is employed in a supervisory capacity or on clerical work is that if a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work, it would have to be held that he is employed in supervisory capacity, and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."
12. The aforesaid principle was referred to and relied upon by the Hon'ble Supreme Court in the case of Burmah Shell Oil Storage and Distribution Company of India Ltd. v. The Burma Shell Management Staff Association and Others, reported in MANU/SC/0373/1970 : 1970 (3) SCC 378.
13. In the case of Anand Regional Coop. Oil Seeds growers' Union Ltd. v. Shaileshkumar Harshadbhai Shah, reported in MANU/SC/3856/2006 : (2006) 6 SCC 548, the Hon'ble Supreme Court referred to the aforesaid earlier judgments, in the context of question of supervisory function performed by an employee and held as follows:-
"13. The ingredients of the definition of "workman" must be considered having regard to the following factors:
(i) Any person employed to do any skilled or unskilled work, but does not include any such person employed in any industry for hire or reward.
(ii) There must exist a relationship of employer and employee.
(iii) The persons inter alia excluded are those who are employed mainly in a managerial or administrative capacity.
14. For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations.
15. 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."
14. The said position of law makes it clear that undue importance is not to be given to the designation of the employee and that what is to be examined, is the nature of the primary duties and the dominant nature of duties of the employee. The oral and documentary evidence in the present case will have to be appreciated by applying the said test, to determine as to whether the contention raised on behalf of the petitioner-trust that respondent No. 1 was not a 'workman', could be justified. The documents placed before the Labour Court and exhibited, show that by way of some of the documents, respondent No. 1 had called upon certain junior employees to submit explanation as regards some actions taken by them, while most of the documents were pertaining to receiving applications from parents of students for permission to take the children away for short periods during vacations, etc. Such applications were accepted by respondent No. 1 and permission was given to the parents. As regards those documents where, certain explanations were called from junior employees and others, in each one of them, it is stated that the explanation be submitted to the President of the trust. Respondent No. 1 has placed on record a document showing the list of duties of a hostel superintendent issued by the office of respondent No. 2-District Social Welfare Officer. A perusal of the same shows that the hostel superintendent is concerned with ensuring proper food, residence and hygiene for the students residing in the hostel, maintaining registers pertaining to the attendance of the students as also storage of food grains ensuring cleanliness of the hostel, the dining area, toilets, etc., ensuring that the students are engaged in fruitful activities during holidays, setting the daily work schedule of the employees of the hostel as approved by the President of the Trust.
15. Although respondent No. 1 has indeed conceded in cross-examination about having issued the aforesaid few notices to junior employees, that in itself cannot be said to be clinching evidence regarding respondent No. 1 not being a 'workman'. If the aforesaid test laid down by various judgments referred to above, is applied to the facts of the present case, it becomes clear that the primary, basic and dominant nature of duties of respondent No. 1 was not supervisory and it was essentially clerical in nature. Even if a few letters or notices were issued by respondent No. 1, the very nature of the said documents demonstrates that such communications were issued on the direction and at the behest of the President of the trust and that respondent No. 1 had no supervisory or disciplinary control or authority over the other employees of the hostel. Respondent No. 1 could certainly not be said to have a managerial or supervisory role in his service as a hostel superintendent. Hence, the main contention raised on behalf of the petitioner-trust that respondent No. 1 was not a workman and therefore, the impugned orders passed by the Courts below were without jurisdiction, is found to be unsustainable and it is rejected.
16. Insofar as the merits of the present case are concerned, the primary submission made on behalf of the petitioner-trust as well as the intervener was that, since the appointment of respondent No. 1 was contingent to and conditional upon the decision in the complaint/litigation initiated by the intervener, upon the petitioner-trust and the intervener entering into a compromise, wherein the intervener was to be reinstated, the service of respondent No. 1 was necessarily required to be terminated. A perusal of the appointment order of respondent No. 1 dated 23/08/1996 does not show that there was any clause about his appointment being subject to the aforesaid condition. The initial orders of approval issued by respondent No. 2 did show that such orders were for limited periods and that there was a clause in those orders stating that the approval was subject to the aforesaid condition, the approval order dated 21/10/2005 passed by respondent No. 2 clearly stated that the appointment /service of respondent No. 1 was approved and that no such condition was specified. The said approval order dated 21/10/2005 was not varied in any manner, thereby demonstrating that appointment/ service of respondent No. 1 stood approved without any such condition or rider. Therefore, this Court finds that there is no substance in the aforesaid contention raised on behalf of the petitioner-trust as well as the intervener.
17. A perusal of the order of termination of service dated 10/10/2011 clearly shows that the only reason stated for termination of service of respondent No. 1 was that the petitioner-trust and the intervener had entered into a compromise and that consequently the intervener was required to be reinstated, necessitating termination of service of respondent No. 1. There is no other ground stated in the order of termination of service and there are no allegations or charges levelled against respondent No. 1. Since this Court has found that the appointment and approval of respondent No. 1 on the said post of hostel superintendent could not be said to be conditional or contingent, it becomes clear that the order of termination of service dated 10/10/2011 was issued by the petitioner-trust without any justification. Respondent No. 1 worked continuously with the petitioner-trust as hostel superintendent from the date of his appointment i.e. 23/08/1996 till 10/10/2011 i.e. for a long period of about 15 years and, therefore, it becomes clear that no fault can be found with the impugned order of the Labour Court quashing and setting aside the said order of termination of service.
18. A perusal of the judgment and order passed by the Labour Court shows that the facts of the present case were correctly taken into consideration by the Labour Court and it was found that the order of termination of service dated 10/10/2011 was unsustainable. The Industrial Court also appreciated the material on record and found that no interference was warranted in the order passed by the Labour Court. This Court does not find any error or perversity in the findings rendered by the Courts below to exercise writ jurisdiction in the present case.
19. Insofar as the reliance placed on behalf of the intervener on the aforesaid judgments of this Court, suffice it to say that the said judgments pertained to the necessity to implead an affected party in proceedings before the Court. In the present case, it is contended on behalf of the intervener that since he was not made a party before the Courts below by respondent No. 1, the impugned orders were required to be set aside. But, this Court is of the opinion that the grant of relief or otherwise to respondent No. 1 in the proceedings initiated by him could not be said to be contingent upon hearing the intervener because the record shows that the appointment and the final approval of respondent No. 1 as hostel superintendent could not be said to be in place of the intervener. Therefore, there is no substance in the contention raised on behalf of the intervener that the impugned orders passed by the Courts below deserved to be set aside because he was not made a party to the proceedings before the Courts below.
20. In view of the above, this Court finds that no ground for interference has been made out by the petitioner in the present case and, therefore, the writ petition is found to be without any merit and it is dismissed. No costs.
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