Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Letters Patent Appeal No.130 of 2009
IN
Writ Petition No.4980 of 2008 [decided]
Chandrashekhar Chintaman Vaidya,
aged about 51 years,
occupation – nil,
resident of 55,
Vidyanagar, Akola. .... Appellant.
Versus
National Organic Chemical
Industries Ltd.,
Akola, through its Deputy
General Manager, Purchase,
Personnel & Administration,
C.I.M.I.D.C., Akola. .... Respondent.
*
Mr. Siddhesh Kotwal with Mr. A.C. Dharmadhikari, Advs.
For the appellant.
Mr. R.B. Puranik, Adv., for respondent sole.
*
CORAM : A.H. JOSHI AND
P.B. VARALE, JJ.
Reserved on : 23rd February,2010.
th
Pronounced on : 26 February,2010.
ORAL JUDGMENT [Per A.H. Joshi, J]:
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1. Admit. Learned Adv. Mr. R.B. Puranik waives
service for respondent sole.
Taken up for final hearing by consent.
F a c t s
2. The appellant/complainant had filed a complaint
before Labour Court under Section 28 read Item 1 of
Scheduled IV of the Maharashtra Recognition of Trade Unions
& Prevention of Unfair Labour Practices Act, 1971, against
th
April, 2003,
alleged illegal termination by order dated 14
which was in the nature of dismissal on account of
misconduct.
The appellant is hereinafter referred to as
“complainant.”
3. In the complaint, he had set up a plea that he was
a workman under provisions of Section 2 (s) of the
Industrial Disputes Act, though his appointment was as a
Supervisor.
The employer denied the plea and raised a
Preliminary Objection as to the status of the complainant
to be a workman.
4. The complainant examined himself and produced
certain documents and sought production of documents from
the employer. He has denied having done any managerial
duties, and stated that he was doing the work of clerical
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nature and scrutiny of supplies received pursuant to orders
placed by superiors. The employer did not lead any
evidence, also did not produce the documents which
complainant had sought from the employer. The respondent
even did not file affidavit about existence, or otherwise,
of documents sought to be produced and reasons towards
failure or inability to produce those.
5. The case has proceeded on a common belief that the
burden of proof to prove the fact that complainant is a
workman was on the complainant. Labour Court, Industrial
Court and Single Judge of this Court have recorded the
finding that the workman / complainant has failed in
proving his status, and, therefore, employer had nothing
to prove by way of rebuttal.
6. Having failed in all Courts, the complainant is
before this Court by way of present Letters Patent Appeal.
7. Heard learned Advs. Mr. Siddhesh Kotwal with Mr.
A.C. Dharmadhikari for the appellant and learned Adv. Mr.
R.B. Puranik for the respondent.
8. Perused the record annexed to the appeal.
Appellant had produced, at the time of hearing, the copy of
orders passed by Labour Court on the application for
direction for production of documents filed by complainant,
so also copy of cross-examination of the complainant, which
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documents were not the part of paper-book.
Appellant's Submissions
9. Submission of the appellant is that the findings
of all Courts are based on totally erroneous test of facts
required to be proved.
According to appellant:-
[a] Courts were required to see “what are
predominant duties of the complainant,”
however, Courts got misdirected on the
nomenclature of the post on which the
complainant was appointed.
[b] Courts also got misdirected due to six
documents which, in fact, did not prove
predominant duties discharged and work
performed by the complainant.
Respondent's Submissions
10. The respondent has strongly denied that primary
burden of proof was discharged by the complainant and,
therefore, that the onus did not shift. It is then urged
that the admissions of complainant were sufficiently
destructive of his claim, and, therefore, the appeal was
meritless and deserves dismissal.
Case Law
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11. Learned Advocates for the parties have placed
reliance on various citations. The Judgments along with
purpose for which those are relied are as follows:-
[A] Appellant's citations and propositions :-
[1] Hussain Mithu Mhasvadkar Vs. Bombay Iron &
Steel Labour Board & another[ (2001) 7 SCC
394].
Proposition :-
Primary duties of an employee, purpose, aim
and object of the employment, i.e., predominant nature
of duties performed by person claiming to be a workman
under Section 2 (s) of the Industrial Disputes Act,
will be the true test to find out the status as a
workman.
[2] Mukand Ltd. Vs. Mukand Staff & Officers'
Association[ 2004 AIR SCW 3731].
Proposition :-
The question of class to which the employees
belong is to be decided not on the basis of grade in
which they were placed, but on the basis of their
duties, responsibilities and powers as laid down in
Section 2 (s) of the Industrial Disputes Act.
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[3] D. P. Maheshwari Vs. Delhi Administration
& ors.[ (1983) 4 SCC 293].
Proposition :-
Occasional entrustment of supervisory,
managerial or administrative work will not take a
person mainly discharging clerical duties out of
purview of Section 2 (s) of the Industrial Disputes
Act.
On facts of the case, Hon'ble Supreme Court
had interfered with the Judgment of High Court where
the Judgment was rendered without dealing with the crux
of the matter involved.
[4] Malabar Industrial Co. Ltd. Vs. Industrial
Tribunal, Trivandrum[ AIR 1958 Kerala 202
(V.45 C 74)].
Proposition :-
Whether the employee concerned is a workman
being a jurisdictional fact and issue, it can be
scrutinized in proceedings under Article 226 of
Constitution of India.
Main feature, pith and substance of his
employment must be manual or clerical before the
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definition of 'workman' under Section 2 (s) is
attracted.
[5] S.K. Maini Vs. M/s. Carona Sahu Co. Ltd. &
ors.[(1994) 3 SCC 510].
Proposition :-
Predominant nature of work is to be seen, and
entrustment of some supervisory or other work, which is
incidentally done - only a fraction of his entire work,
will bring the employee within the purview of
definition of the 'workman' under Section 2 (s) of the
Industrial Disputes Act.
[6] Standard Chartered Bank Vs. Andhra Bank
Financial Services Ltd. & ors.[ (2006) 6
SCC 94].
Proposition :-
When entire evidence has come on record,
burden of proof, whether it shifts etc., becomes
immaterial.
Moreover, this judgment does not render any
direct guidance on the facts of the case.
[7] State of Punjab Vs. M/s. Modern
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Cultivators[ AIR 1965 SC 17 (V.52 C 4)].
Proposition :-
Failure to produce documents would lead to
only conclusion that if produced, those would have gone
against the party who has withheld the documents and
hence adverse inference against such party is liable to
be drawn.
[8] Badat & Co., Bombay Vs. East India Trading
Co.[ AIR 1964 SC 538 (V 51 C 68)].
This judgment is not relevant. Hence it is
not referred.
[B] Respondent's citations and the Propositions
therein :-
1. Somnath Tulshiram Galande Vs. Presiding
Officer, IInd Labour Court, Pune &
others[2008 I CLR 656].
Proposition :-
Onus to prove that the claimant is a workman
and to prove the test to satisfy all essential
ingredients lies on one who claims said status. Unless
proof of such a fact is emerging from evidence, it
cannot be held that he is a workman.
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2. Sonepat Co-operative Sugar Mills Ltd. Vs.
Ajit Singh[ (2005) 3 SCC 232].
Proposition :-
A person, principally a workman, should be
employed in an industry, and must be performing manual,
skilled, unskilled, technical, operational, clerical or
supervisory work and merely because the employee has
not been performing any managerial or supervisory
duties, ipso facto he would become a workman.
3. Northcote Nursing Home Pvt. Ltd. Bombay &
another Vs. Zarine H. Rahina (Dr.) (Mrs.)
and another[ (2005) 3 SCC 232].
Proposition :-
Burden of proving that a person is a workman
lies on the person who claims to be a workman.
4. H.R. Adyanthaya etc. etc. Vs. Sandoz
(India) Ltd. Etc. etc.[ 1994 II CLR 552].
Proposition :-
Even if it is proved that the complainant does
not do any managerial or supervisory work, unless it is
proved that he does work of the nature of manual,
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supervisory, technical and clerical, he does not become
a workman under Section 2 (s) of the Industrial
Disputes Act.
5. Mukund Staff & Officers' Association Vs.
Mukund Ltd.[ 2007 III CLR 296].
Proposition :-
The burden to prove that a person is a workman
lies on the workman. The basic rule that who approaches
the Court should prove the case is not departed in any
of the provisions of Industrial Disputes Act.
6. Electronics Corporation of India Ltd. Vs.
Electronics Corporation of India Services
Engineers Union[ 2006 III CLR 704],
7. Bank of Baroda Vs. Ghemarbhai Harjibhai
Rabari[ 2005 II CLR 279],and
8. Arvind Anand Gaikwad Vs. Uni Abex Alloy
Products Ltd. & ors.[ 1988 I CLR 26].
Proposition :-
The onus of proof was on the workman, though
the employer had raised a dispute about his status.
12. In order to appreciate the facts and points
involved, it is necessary to have a look at the pleadings,
facts and evidence.
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THE PLEADINGS
13. Relevant pleading / averment, which is crucial to
the issue as to whether the appellant is a Workman, is
contained in Para 1 of the complaint, which is quoted for
ready reference:-
“1. The complainant as appointed by the
Respondent on 17.8.1988 and he was confirmed on
1.9.1989 by letter dtd. 31.8.1989. The
complainant was appointed in purchase
Department. He was being given work not more
than a clerk. No work was given to him in
managerial or administrative capacity. His job
was to scrutinize the purchase orders, which
were signed by the controlling officer and
lateron he was to post it manually.”
[Quoted from page no.51 of the Appeal paper-book].
14. The respondent-employer had filed reply to
application under Section 30 (2) of the Maharashtra
Recognition of Trade Unions & Prevention of Unfair Labour
Practices Act for interim relief, however, had not filed a
Written Statement to the Complaint.
The employer had adopted the reply to the
application for interim relief as Written Statement.
15. Application for interim relief is at page 55 of
the appeal paper book. This application does not contain
factual averments. It contains a statement that the
contents of the complaint be treated as part and parcel of
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this application, and based on those pleadings on which the
complainant had prayed for interim relief.
16. In Para 5 of the reply to the application for
interim relief, the employer has dealt with the aspect of
status of the complainant as a workman, which reads as
follows:-
“5] It is submitted that the complainant
has filed the complaint before this hon'ble
court, wherein he himself submitted that he was
appointed as a purchase supervisor initially by
the N.A. According to the N.A. the complainant
was part of managerial staff therefore, he
would not be a workmen as per the definition
U/S 2 [S] of Industrial Disputes Act, 1947.
Moreover the complainant exercises his
direction in the best interest of the Non
Applicant Company; the complainant had been
drawing salary exceeding Rs.1600/-.
It is submitted that the complainant
being managerial staff [i.e., Managerial cadre]
was not getting the benefits of agreement of
settlement carried out by the company with the
union.
Thus Section 2 Clause [S] would
clearly bring the case of complainant out of
the purview of the I.D. Act.
It is submitted the complainant
enjoyed certain special privilege and benefit,
which benefit is not available to non-
supervisory staff.
Therefore it is crystal clear from the
above facts that the present complainant was
employed in supervisory capacity.
The complaint of the complainant is
not all maintainable in the eye of law and so
also is not within the jurisdiction of this
Hon'ble court, therefore, this Court has no
jurisdiction to entertain or to decide the
complaint of the complainant and hence on this
count also the complaint of the complainant
deserves to be dismissed.”
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[Quoted from page no.60 of the Appeal paper-book. Sub-
paragraphing is done for convenience of reference].
17. The employer's pleading that the complainant is
not a workman is in summary based on following points:-
[1] complainant was appointed as a
supervisor;
[2] his salary was Rs.1600/-;
[3] he was not given benefit of Agreement
entered with workers, as he was for all
times treated as Managerial Staff;
[4] he was enjoying certain “special
privileges and benefits”, which are not
available to non-supervisory staff, and
[5] he was performing supervisory and
managerial duties.
As to production of Documents
nd
18. The complainant had filed an application dated 2
July, 2005 seeking production of documents from the
employer. The Labour Court had passed order on the said
application and directed production of documents, and in
the alternative to file an affidavit, if the documents
called by the complainant cannot be filed.
Admittedly, the employer has not produced the
documents sought for and ordered. The employer has not
filed affidavit to bring on record a fact that these or
such documents do not exist or for explaining and stating
any reasons as to why the documents cannot be produced.
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Complainant's Evidence
19. In order to prove the claim, the appellant has led
his own evidence by way of affidavit.
In para 1 of the Affidavit, complainant has stated
as regards his working. Relevant portion is quoted below
for ready reference:-
“1. ......................................
.........I was working in the Purchase
Department.
My work is of clerical nature. I was
not at all entrusted with any managerial or
Administrative powers.
I have never supervised the work of
any worker or no subordinate working under me.
The job entrusted to me was of
entirely clerical nature.
I have to scrutinize the purchase
order and enter into the register and took the
follow-up the purchase order which are signed
by the controlling officer, as such my nature
of duties were of clerical nature only, even
though I was appointed in the supervisory cadre
but I was not doing any work of supervisory
nature.”
[Quoted from page no.78 of the Appeal paper-book. Sub-
paragraphing is done for convenience of reading].
20. The complainant was cross-examined. In the cross-
examination, he has admitted that:-
[a] He was not getting the benefits which the
workers who were party to agreement with
the employer were getting.
[b] The Supervisors are managerial staff.
[c] He had signed gate passes for non-
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supervisory employees, which are Exhs.34
and 35.
[d] He has signed as auditee the audit
reports [Exhs.40 and 41].
Employer's Evidence
21. Respondent-employer filed documentary evidence
which was got proved in the cross-examination of the
complainant, but did not lead any oral evidence.
The Judgments of Labour Court & Industrial Court
22. The learned Judge of the Labour Court by Judgment
nd
August, 2008 held that the complainant
and Order dated 2
was not a workman and hence dismissed the complaint.
The Labour Court did not address on other issues,
namely Issue Nos. 2 to 4 which pertained to legality of
termination, and the relief sought.
23. The Judgment of the Labour Court was maintained by
th
the Industrial Court by its Judgment and Order dated 26
June, 2008 in Revision [ULP] No. 116 of 2006, and by
learned Single Judge in Writ Petition No. 4980 of 2008.
Aggrieved by all the three orders, the appellant is before
this Court.
24. Judgments impugned were read over to us by both
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parties, and we have ourselves read and discretely
scrutinized all three judgments.
The Writ Petition before Single Judge of this Court
It is seen that learned Single Judge of this Court
has taken a brief resume of challenge as argued, i.e.,
burden of proof, which was the sole point of thrust.
25. In the background of said submission about burden
of proof urged with emphasis, it appears that Single Judge
has omitted to enter in the arena of scrutinizing the facts
and testing the jurisdictional fats and findings thereon.
26. The moot question involved in the case, in fact,
and requiring analysis, is as to whether predominant nature
of duties of complainant is proved?
This question really got side tracked while
learned Single Judge heard and decided the case.
27. On consideration of Judgment impugned, what
emerges is that learned Single Judge has not exerted on the
scrutiny of jurisdictional facts as to the complainant's
status and the predominant duties performed by him.
28. This Court has, therefore, to see what Industrial
Court has done. The learned Industrial Court also addressed
itself on taking summary look of the findings, confirmed
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those, without addressing on predominant nature of duties.
29. It is, thus, evident that all three Courts got
themselves misdirected on the real yardstick.
Therefore, this Court has to examine whether
evidence brought on record by the complainant proves the
predominant nature of duties.
30. It is, therefore, necessary and useful to advert
to the findings recorded by Labour Court.
The points on which the learned Judge of Labour
Court held that the complainant is not a workman are seen
discussed in paragraph no. 14 to 21 of judgment.
Discussion on fact-finding by Labour Court and its
analysis
31. It would be sufficient to cull out and note down
the points on which the learned Judge of the Labour Court
held that from the evidence on record brought by the
complainant, as to how he has failed to prove that he is
not a workman. These points are as follows:-
[a] Complainant's name appears in the
Attendance-cum-Wage Register maintained
by Company which is separate for
supervisors.
[b] In the Show-cause-Notice / letter dated
th
March, 2001 [Exh.38] addressed to
27
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the complainant, he is shown as
Supervisor.
[c] The complainant admits that he has
issued Gate Passes to persons
categorized as Non-supervisory staff
which at Exhs.34 and 35. The
complainant had signed these Gate Passes
in the capacity of Head of the
Department.
[d] Complainant signed Delivery Challans-
cum-Gate Passes as Head of the
Department, as can be seen from said
Exhs.34 and 35.
[e] Audit Reports [Exhs.40 and 41 are signed
by complainant in the capacity as an
auditee.
[f] Complainant was not a member of Union of
the workers, and the category of non-
supervisory staff alone could have
become members.
[g] Complainant has not explained as to why
he did not become a member of Union.
[h] In the background of a long duration of
complainant's designation as a
Supervisor, it was necessary for him to
prove that he was doing a clerical job,
which he has not proved.
[i] Complainant has admitted in cross-
examination that the allowance called
“DQ” payable quarterly to all workers is
not paid to the managerial staff.
32. When this appeal was argued, it was a common
ground that the questions, which were to be considered and
decided by the Labour Court, were:-
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[a] Whether the status of complainant
being a workman was proved on legal
evidence, if any brought by the
complainant?, And,
[b] Whether the facts, if any, proved
by the complainant were disproved
by the evidence brought by the
employer?
33. At the cost of repetition, it needs to be referred
that in the evidence led by the complainant, he has deposed
in specific terms that:-
[a] He was doing the clerical work.
[b] He was not entrusted or invested with
managerial and administrative powers.
[c] He has never supervised the work of any
other worker or subordinate to him.
[d] He used to do the work of scrutinizing
the purchase orders and make entries
thereof into the register.
[e] He used to follow up purchases ordered by
his controlling officer.
[f] Except the nomenclature as a supervisor,
he had no supervisory duties.
34. It is apparent that the cross-examination does not
aim at “predominance of duties.” The cross-examination
also does not aim at isolating any ministerial, menial or
clerical portion of the work of complainant to be
marginally available or extremely low in volume or
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magnitude and main work to be that of supervisor or
Manager.
35. As it is noted earlier, the employer's thrust of
bringing the complainant outside the purview of status of
workman and fitting him within the cadre of manager or
supervisor is based on:-
[i] Pleading that complainant was appointed
as a Supervisor, and performed managerial
duty.
[ii] That, since he was not part of the
persons who were beneficiaries of
benefits gained by the workmen being
party to the settlement entered between
the Management and the workmen.
[iii] The complainant did not perform any work
which was clerical in nature and was
actually a supervisor and performed
managerial powers and functions.
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 on the material and not on the men.
[c] The predominant nature of duties
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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.
37. This Court has, therefore, to see through the
aspects as to what was the duty performed by the
complainant referred to in each of the paras of the
Judgment of the Labour Court, which are classified below:-
Paragraph number Nature of duties, if discu-
of the Judgment -ssed, from page 88 onwards
of Labour Court. of the appeal paper-book.
14 Duties not discussed.
15 Clerical. Scrutinizing the
purchase orders, though
complainant was appointed as
a Supervisor, and did not
perform any supervisory functions.
16 No details of duties are
discussed.
17 Complainant's name is shown in
the separate muster maintained
for those in supervisory
category along with other six
persons.
There is no discussion
about duties.
18 Discussion about attendance
sheets [Exhs.32 and 33] which
pertain to those working in
supervisory category.
Authorization Slips [Exhs.34
and 35] are signed by the
complainant in capacity of
Authorization Officer.
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19. In the letter of unsatisfactory
performance, complainant is
described as Supervisor.
20 Gate Passes [Exhs.34 & 35] and
Delivery Challan-cum-Gate
Pass [Exh.39] are signed by
the complainant as Head of
the Department.
Exhs.40 and 41 are Audit
Memos / reports where the
complainant is shown as
Auditee.
21. The complainant is not a member
of Workers' Union. Complainant
has not explained as to why
he has not become a member if
he does not belong to
supervisory category.
22. Quarterly DQ Allowance payable
to workers is not paid to those
who are managerial staff.
Complainant further admits that
supervisors belong to
managerial cadre.
23 All supervisors do not work
on computers. As the
complainant did not work on
computer, it is not meant
that he is not a supervisor.
38. Now this Court finds that what the Labour Court
has done is to see the evidence of the workman in totally
one-sided manner, namely the Labour Court has scrutinized
the evidence not to search as to what are the predominant
duties, but to search what appears from the documents
produced by the respondent.
39. The questions, which really go to the root of case
without which the question as to whether the appellant is a
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'workman', cannot be decided, can be formulated as
follows:-
[a] What is the quality and volume of
evidence, or of proof of facts required to
be brought by a person claiming to be a
workman to discharge the burden of proof,
and to have the onus of proof shifted on
the employer who denies jurisdiction of
the Court on account of the factual status
of the complainant urging that he is not
the workman?
[b] While the provisions of Indian Evidence
Act do not apply in totality to the
proceedings and the process of hearing and
decision before the Tribunals / Courts
under Industrial & Labour Laws, is it not
the basic rule that facts are to be proved
by legal evidence?
[c] Whether the basic doctrine incorporated in
Section 106 of Evidence Act applies to the
adjudication under Labour Laws, though the
provisions of Evidence Act have not been
made applicable?
Of proof of fact as to nature of duties or work performed.
40. It is also well settled as to what is required to
be done by a party is to prove a fact.
A party is required is to bring on record the
proof of crucial facts on the basis of which existence or
non-existence of a fact should be regarded as in existence
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or not in existence. If he succeeds qualitatively in
leading to formation of opinion about existence of fact
propounded, and in reversing the burden and letting the
opponent to disprove what was proved by the party pleading
a particular story.
41. Upon such reversal of burden, additional facts
which are exclusively within power and control of party
denying the fact propounded by a claimant is to be brought
by the opposite party.
42. As it is seen on record, the workman has proved
various facts as to nature of duties, namely he has
asserted what exact work he was doing. He has also
asserted that he was not entrusted with managerial or
administrative duties. He has also proved that alleged
supervisory function was an isolated and solitary instance.
43. In the contrast with what evidence was brought by
the workman, now it was the turn of the management to
disprove what the workman had proved.
44. The employer could have produced, had it possessed
record of such other evidence within its possession and
control to prove its specific plea, namely that the
predominant nature of duties of the workman was managerial,
though some of the works done by the complainant may have
been ministerial, clerical etc.
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45. It would be useful to advert to what Management
has proved. Management has brought on record in all six
documents [Exhibits 32 to 35 and 39 to 41], which are
referred to in cross-examination of the workman.
46. It is pertinent to note that in the long span of
more than five years' service, documents relied upon by the
Management pertaining to nature of work, according to
management, are [1] Attendance Sheet, [2] Authorization
Slip, and [3] Pay Slip, which pertain to year 2003. The
period, during which the complainant was appointed and has
th
August, 1988.
been serving, is from 17
47. Had the complainant been working in supervisory
capacity, it would be shocking to believe that he has
signed only four documents referred to in paras 14 to 23,
which are Exhs.32, 33, 34, 35, 39, 40 and 41 only.
Stray suggestions as to few documents filed by the
Management do not amount to proving predominance of work.
48. Even on construing and interpreting each and every
document in favour of the management, it would not be
possible to reach a conclusion that these six documents
are liable to be described as 'stray pieces of evidence' in
the background of long five years' service of the
appellant. This evidence does not lead to suggest that
nature of predominant duties of complainant was that of
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managerial and administrative, much less to prove said
positively raised plea of the Management that the
complainant was not a workman.
49. It was quite open to the Management-employer to
have brought evidence of those subordinates who were
supervised by the appellant, and superiors to depose as to
who amongst that class, the appellant had supervised, in
the entire hierarchy in employment.
The hierarchy could have been proved by the
employer which would have thrown adequate light on the
status and nature of duties of the appellant and made his
position vivid the way Management-employer considers it to
be.
50. As to points noted in foregoing Paras, this Court
holds that proof of facts as to nature of duties done by
the complainant rose to adequate height and sufficient
degree to hold that the predominant nature of duties of
complainant was proved to be clerical in nature. It was
also proved by him that he does not perform any managerial
functions, and supervisory duty, if any, done by him was
microscopic in extent and magnitude.
51. This Court holds that extent of evidence or proof
required to be brought by complainant was to be of such
extent that the onus of proof shall be shifted – reversed
to the employer. This burden was discharged by the
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27
complainant satisfactorily. The employer has brought stray
pieces of evidence, and failed to bring substantive
evidence. Best evidence in its possession was withheld /
not produced in spite of order.
The employer had, therefore, to suffer the adverse
inference that had said evidence been produced, it would
have gone against the employer.
52. Though provisions of Evidence Act have not been
made applicable, application thereof is not even excluded.
In this background, it would be useful for this Court to
seek appropriate guidance from the provisions of Evidence
Act as to the basic test of proof, disproof, burden of
proof and duty to prove special knowledge, as is found by
this Court in following reported judgments:-
[1] Kanpur Electricity Supply Company Ltd. Vs.
Shamim Mirza[(2009) 1 SCC 20], and
[2] Sub-Divisional Engineer, Irrigation
Project, Yavatmal Vs. Sarang Marotrao
Gurnule[2008 (4) Mh.L.J. 514].
53. These judgments were brought to notice of
Advocates for parties on the last date of hearing and they
have nothing to address on these citations.
54. This Court finds from assessment and appreciation
of evidence done by the Labour Court in para nos. 14 to 23
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of its Judgment, what is seen is that what dominated the
mind of the Labour Court is the designation of the
complainant. Second factor, which has gone hand in hand
with the first aspect of designation, is the documents
where the complainant was described as Supervisor, or has
signed the documents as Head of the Department. This Court,
therefore, holds on Points [a], [b] and [c] in para 39 in
favour of the complainant / appellant.
55. The result that follows is that the findings of
Labour Court and Industrial Court, as confirmed by learned
Single Judge, are based on erroneous foundation, namely
nomenclature of the post than predominant nature of duties.
56. The Judgments and orders impugned based on the
findings referred and discussed above deserve to be
reversed, and are hereby set aside. This Court answers
Issue No.1 as framed by Labour Court in favour of
complainant, holding that he is a workman within the
compass of the term as defined under Section 2 (s) of the
Industrial Disputes Act.
57. The complaint is remanded to the Labour Court for
hearing and disposal on remaining issues within three
months from the date of receipt of the order of this Court.
Parties are directed to appear before the Labour Court on
nd
March, 2010.
22
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29
58. In the result, the appeal succeeds. Rule is made
absolute in terms of Paras 55,56 and 57.
59. The costs of appellant are quantified at Rs.5000-
00 [rupees five thousand only], which be paid by the
respondent by depositing the same in this Court within one
month with liberty to Advocate for appellant to withdraw
it. Respondent shall bear own costs.
JUDGE JUDGE
-0-0-0-0-
|hedau|
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Letters Patent Appeal No.130 of 2009
IN
Writ Petition No.4980 of 2008 [decided]
Chandrashekhar Chintaman Vaidya,
aged about 51 years,
occupation – nil,
resident of 55,
Vidyanagar, Akola. .... Appellant.
Versus
National Organic Chemical
Industries Ltd.,
Akola, through its Deputy
General Manager, Purchase,
Personnel & Administration,
C.I.M.I.D.C., Akola. .... Respondent.
*
Mr. Siddhesh Kotwal with Mr. A.C. Dharmadhikari, Advs.
For the appellant.
Mr. R.B. Puranik, Adv., for respondent sole.
*
CORAM : A.H. JOSHI AND
P.B. VARALE, JJ.
Reserved on : 23rd February,2010.
th
Pronounced on : 26 February,2010.
ORAL JUDGMENT [Per A.H. Joshi, J]:
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2
1. Admit. Learned Adv. Mr. R.B. Puranik waives
service for respondent sole.
Taken up for final hearing by consent.
F a c t s
2. The appellant/complainant had filed a complaint
before Labour Court under Section 28 read Item 1 of
Scheduled IV of the Maharashtra Recognition of Trade Unions
& Prevention of Unfair Labour Practices Act, 1971, against
th
April, 2003,
alleged illegal termination by order dated 14
which was in the nature of dismissal on account of
misconduct.
The appellant is hereinafter referred to as
“complainant.”
3. In the complaint, he had set up a plea that he was
a workman under provisions of Section 2 (s) of the
Industrial Disputes Act, though his appointment was as a
Supervisor.
The employer denied the plea and raised a
Preliminary Objection as to the status of the complainant
to be a workman.
4. The complainant examined himself and produced
certain documents and sought production of documents from
the employer. He has denied having done any managerial
duties, and stated that he was doing the work of clerical
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nature and scrutiny of supplies received pursuant to orders
placed by superiors. The employer did not lead any
evidence, also did not produce the documents which
complainant had sought from the employer. The respondent
even did not file affidavit about existence, or otherwise,
of documents sought to be produced and reasons towards
failure or inability to produce those.
5. The case has proceeded on a common belief that the
burden of proof to prove the fact that complainant is a
workman was on the complainant. Labour Court, Industrial
Court and Single Judge of this Court have recorded the
finding that the workman / complainant has failed in
proving his status, and, therefore, employer had nothing
to prove by way of rebuttal.
6. Having failed in all Courts, the complainant is
before this Court by way of present Letters Patent Appeal.
7. Heard learned Advs. Mr. Siddhesh Kotwal with Mr.
A.C. Dharmadhikari for the appellant and learned Adv. Mr.
R.B. Puranik for the respondent.
8. Perused the record annexed to the appeal.
Appellant had produced, at the time of hearing, the copy of
orders passed by Labour Court on the application for
direction for production of documents filed by complainant,
so also copy of cross-examination of the complainant, which
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documents were not the part of paper-book.
Appellant's Submissions
9. Submission of the appellant is that the findings
of all Courts are based on totally erroneous test of facts
required to be proved.
According to appellant:-
[a] Courts were required to see “what are
predominant duties of the complainant,”
however, Courts got misdirected on the
nomenclature of the post on which the
complainant was appointed.
[b] Courts also got misdirected due to six
documents which, in fact, did not prove
predominant duties discharged and work
performed by the complainant.
Respondent's Submissions
10. The respondent has strongly denied that primary
burden of proof was discharged by the complainant and,
therefore, that the onus did not shift. It is then urged
that the admissions of complainant were sufficiently
destructive of his claim, and, therefore, the appeal was
meritless and deserves dismissal.
Case Law
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11. Learned Advocates for the parties have placed
reliance on various citations. The Judgments along with
purpose for which those are relied are as follows:-
[A] Appellant's citations and propositions :-
[1] Hussain Mithu Mhasvadkar Vs. Bombay Iron &
Steel Labour Board & another[ (2001) 7 SCC
394].
Proposition :-
Primary duties of an employee, purpose, aim
and object of the employment, i.e., predominant nature
of duties performed by person claiming to be a workman
under Section 2 (s) of the Industrial Disputes Act,
will be the true test to find out the status as a
workman.
[2] Mukand Ltd. Vs. Mukand Staff & Officers'
Association[ 2004 AIR SCW 3731].
Proposition :-
The question of class to which the employees
belong is to be decided not on the basis of grade in
which they were placed, but on the basis of their
duties, responsibilities and powers as laid down in
Section 2 (s) of the Industrial Disputes Act.
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[3] D. P. Maheshwari Vs. Delhi Administration
& ors.[ (1983) 4 SCC 293].
Proposition :-
Occasional entrustment of supervisory,
managerial or administrative work will not take a
person mainly discharging clerical duties out of
purview of Section 2 (s) of the Industrial Disputes
Act.
On facts of the case, Hon'ble Supreme Court
had interfered with the Judgment of High Court where
the Judgment was rendered without dealing with the crux
of the matter involved.
[4] Malabar Industrial Co. Ltd. Vs. Industrial
Tribunal, Trivandrum[ AIR 1958 Kerala 202
(V.45 C 74)].
Proposition :-
Whether the employee concerned is a workman
being a jurisdictional fact and issue, it can be
scrutinized in proceedings under Article 226 of
Constitution of India.
Main feature, pith and substance of his
employment must be manual or clerical before the
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definition of 'workman' under Section 2 (s) is
attracted.
[5] S.K. Maini Vs. M/s. Carona Sahu Co. Ltd. &
ors.[(1994) 3 SCC 510].
Proposition :-
Predominant nature of work is to be seen, and
entrustment of some supervisory or other work, which is
incidentally done - only a fraction of his entire work,
will bring the employee within the purview of
definition of the 'workman' under Section 2 (s) of the
Industrial Disputes Act.
[6] Standard Chartered Bank Vs. Andhra Bank
Financial Services Ltd. & ors.[ (2006) 6
SCC 94].
Proposition :-
When entire evidence has come on record,
burden of proof, whether it shifts etc., becomes
immaterial.
Moreover, this judgment does not render any
direct guidance on the facts of the case.
[7] State of Punjab Vs. M/s. Modern
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8
Cultivators[ AIR 1965 SC 17 (V.52 C 4)].
Proposition :-
Failure to produce documents would lead to
only conclusion that if produced, those would have gone
against the party who has withheld the documents and
hence adverse inference against such party is liable to
be drawn.
[8] Badat & Co., Bombay Vs. East India Trading
Co.[ AIR 1964 SC 538 (V 51 C 68)].
This judgment is not relevant. Hence it is
not referred.
[B] Respondent's citations and the Propositions
therein :-
1. Somnath Tulshiram Galande Vs. Presiding
Officer, IInd Labour Court, Pune &
others[2008 I CLR 656].
Proposition :-
Onus to prove that the claimant is a workman
and to prove the test to satisfy all essential
ingredients lies on one who claims said status. Unless
proof of such a fact is emerging from evidence, it
cannot be held that he is a workman.
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2. Sonepat Co-operative Sugar Mills Ltd. Vs.
Ajit Singh[ (2005) 3 SCC 232].
Proposition :-
A person, principally a workman, should be
employed in an industry, and must be performing manual,
skilled, unskilled, technical, operational, clerical or
supervisory work and merely because the employee has
not been performing any managerial or supervisory
duties, ipso facto he would become a workman.
3. Northcote Nursing Home Pvt. Ltd. Bombay &
another Vs. Zarine H. Rahina (Dr.) (Mrs.)
and another[ (2005) 3 SCC 232].
Proposition :-
Burden of proving that a person is a workman
lies on the person who claims to be a workman.
4. H.R. Adyanthaya etc. etc. Vs. Sandoz
(India) Ltd. Etc. etc.[ 1994 II CLR 552].
Proposition :-
Even if it is proved that the complainant does
not do any managerial or supervisory work, unless it is
proved that he does work of the nature of manual,
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supervisory, technical and clerical, he does not become
a workman under Section 2 (s) of the Industrial
Disputes Act.
5. Mukund Staff & Officers' Association Vs.
Mukund Ltd.[ 2007 III CLR 296].
Proposition :-
The burden to prove that a person is a workman
lies on the workman. The basic rule that who approaches
the Court should prove the case is not departed in any
of the provisions of Industrial Disputes Act.
6. Electronics Corporation of India Ltd. Vs.
Electronics Corporation of India Services
Engineers Union[ 2006 III CLR 704],
7. Bank of Baroda Vs. Ghemarbhai Harjibhai
Rabari[ 2005 II CLR 279],and
8. Arvind Anand Gaikwad Vs. Uni Abex Alloy
Products Ltd. & ors.[ 1988 I CLR 26].
Proposition :-
The onus of proof was on the workman, though
the employer had raised a dispute about his status.
12. In order to appreciate the facts and points
involved, it is necessary to have a look at the pleadings,
facts and evidence.
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THE PLEADINGS
13. Relevant pleading / averment, which is crucial to
the issue as to whether the appellant is a Workman, is
contained in Para 1 of the complaint, which is quoted for
ready reference:-
“1. The complainant as appointed by the
Respondent on 17.8.1988 and he was confirmed on
1.9.1989 by letter dtd. 31.8.1989. The
complainant was appointed in purchase
Department. He was being given work not more
than a clerk. No work was given to him in
managerial or administrative capacity. His job
was to scrutinize the purchase orders, which
were signed by the controlling officer and
lateron he was to post it manually.”
[Quoted from page no.51 of the Appeal paper-book].
14. The respondent-employer had filed reply to
application under Section 30 (2) of the Maharashtra
Recognition of Trade Unions & Prevention of Unfair Labour
Practices Act for interim relief, however, had not filed a
Written Statement to the Complaint.
The employer had adopted the reply to the
application for interim relief as Written Statement.
15. Application for interim relief is at page 55 of
the appeal paper book. This application does not contain
factual averments. It contains a statement that the
contents of the complaint be treated as part and parcel of
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this application, and based on those pleadings on which the
complainant had prayed for interim relief.
16. In Para 5 of the reply to the application for
interim relief, the employer has dealt with the aspect of
status of the complainant as a workman, which reads as
follows:-
“5] It is submitted that the complainant
has filed the complaint before this hon'ble
court, wherein he himself submitted that he was
appointed as a purchase supervisor initially by
the N.A. According to the N.A. the complainant
was part of managerial staff therefore, he
would not be a workmen as per the definition
U/S 2 [S] of Industrial Disputes Act, 1947.
Moreover the complainant exercises his
direction in the best interest of the Non
Applicant Company; the complainant had been
drawing salary exceeding Rs.1600/-.
It is submitted that the complainant
being managerial staff [i.e., Managerial cadre]
was not getting the benefits of agreement of
settlement carried out by the company with the
union.
Thus Section 2 Clause [S] would
clearly bring the case of complainant out of
the purview of the I.D. Act.
It is submitted the complainant
enjoyed certain special privilege and benefit,
which benefit is not available to non-
supervisory staff.
Therefore it is crystal clear from the
above facts that the present complainant was
employed in supervisory capacity.
The complaint of the complainant is
not all maintainable in the eye of law and so
also is not within the jurisdiction of this
Hon'ble court, therefore, this Court has no
jurisdiction to entertain or to decide the
complaint of the complainant and hence on this
count also the complaint of the complainant
deserves to be dismissed.”
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[Quoted from page no.60 of the Appeal paper-book. Sub-
paragraphing is done for convenience of reference].
17. The employer's pleading that the complainant is
not a workman is in summary based on following points:-
[1] complainant was appointed as a
supervisor;
[2] his salary was Rs.1600/-;
[3] he was not given benefit of Agreement
entered with workers, as he was for all
times treated as Managerial Staff;
[4] he was enjoying certain “special
privileges and benefits”, which are not
available to non-supervisory staff, and
[5] he was performing supervisory and
managerial duties.
As to production of Documents
nd
18. The complainant had filed an application dated 2
July, 2005 seeking production of documents from the
employer. The Labour Court had passed order on the said
application and directed production of documents, and in
the alternative to file an affidavit, if the documents
called by the complainant cannot be filed.
Admittedly, the employer has not produced the
documents sought for and ordered. The employer has not
filed affidavit to bring on record a fact that these or
such documents do not exist or for explaining and stating
any reasons as to why the documents cannot be produced.
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Complainant's Evidence
19. In order to prove the claim, the appellant has led
his own evidence by way of affidavit.
In para 1 of the Affidavit, complainant has stated
as regards his working. Relevant portion is quoted below
for ready reference:-
“1. ......................................
.........I was working in the Purchase
Department.
My work is of clerical nature. I was
not at all entrusted with any managerial or
Administrative powers.
I have never supervised the work of
any worker or no subordinate working under me.
The job entrusted to me was of
entirely clerical nature.
I have to scrutinize the purchase
order and enter into the register and took the
follow-up the purchase order which are signed
by the controlling officer, as such my nature
of duties were of clerical nature only, even
though I was appointed in the supervisory cadre
but I was not doing any work of supervisory
nature.”
[Quoted from page no.78 of the Appeal paper-book. Sub-
paragraphing is done for convenience of reading].
20. The complainant was cross-examined. In the cross-
examination, he has admitted that:-
[a] He was not getting the benefits which the
workers who were party to agreement with
the employer were getting.
[b] The Supervisors are managerial staff.
[c] He had signed gate passes for non-
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15
supervisory employees, which are Exhs.34
and 35.
[d] He has signed as auditee the audit
reports [Exhs.40 and 41].
Employer's Evidence
21. Respondent-employer filed documentary evidence
which was got proved in the cross-examination of the
complainant, but did not lead any oral evidence.
The Judgments of Labour Court & Industrial Court
22. The learned Judge of the Labour Court by Judgment
nd
August, 2008 held that the complainant
and Order dated 2
was not a workman and hence dismissed the complaint.
The Labour Court did not address on other issues,
namely Issue Nos. 2 to 4 which pertained to legality of
termination, and the relief sought.
23. The Judgment of the Labour Court was maintained by
th
the Industrial Court by its Judgment and Order dated 26
June, 2008 in Revision [ULP] No. 116 of 2006, and by
learned Single Judge in Writ Petition No. 4980 of 2008.
Aggrieved by all the three orders, the appellant is before
this Court.
24. Judgments impugned were read over to us by both
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parties, and we have ourselves read and discretely
scrutinized all three judgments.
The Writ Petition before Single Judge of this Court
It is seen that learned Single Judge of this Court
has taken a brief resume of challenge as argued, i.e.,
burden of proof, which was the sole point of thrust.
25. In the background of said submission about burden
of proof urged with emphasis, it appears that Single Judge
has omitted to enter in the arena of scrutinizing the facts
and testing the jurisdictional fats and findings thereon.
26. The moot question involved in the case, in fact,
and requiring analysis, is as to whether predominant nature
of duties of complainant is proved?
This question really got side tracked while
learned Single Judge heard and decided the case.
27. On consideration of Judgment impugned, what
emerges is that learned Single Judge has not exerted on the
scrutiny of jurisdictional facts as to the complainant's
status and the predominant duties performed by him.
28. This Court has, therefore, to see what Industrial
Court has done. The learned Industrial Court also addressed
itself on taking summary look of the findings, confirmed
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those, without addressing on predominant nature of duties.
29. It is, thus, evident that all three Courts got
themselves misdirected on the real yardstick.
Therefore, this Court has to examine whether
evidence brought on record by the complainant proves the
predominant nature of duties.
30. It is, therefore, necessary and useful to advert
to the findings recorded by Labour Court.
The points on which the learned Judge of Labour
Court held that the complainant is not a workman are seen
discussed in paragraph no. 14 to 21 of judgment.
Discussion on fact-finding by Labour Court and its
analysis
31. It would be sufficient to cull out and note down
the points on which the learned Judge of the Labour Court
held that from the evidence on record brought by the
complainant, as to how he has failed to prove that he is
not a workman. These points are as follows:-
[a] Complainant's name appears in the
Attendance-cum-Wage Register maintained
by Company which is separate for
supervisors.
[b] In the Show-cause-Notice / letter dated
th
March, 2001 [Exh.38] addressed to
27
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the complainant, he is shown as
Supervisor.
[c] The complainant admits that he has
issued Gate Passes to persons
categorized as Non-supervisory staff
which at Exhs.34 and 35. The
complainant had signed these Gate Passes
in the capacity of Head of the
Department.
[d] Complainant signed Delivery Challans-
cum-Gate Passes as Head of the
Department, as can be seen from said
Exhs.34 and 35.
[e] Audit Reports [Exhs.40 and 41 are signed
by complainant in the capacity as an
auditee.
[f] Complainant was not a member of Union of
the workers, and the category of non-
supervisory staff alone could have
become members.
[g] Complainant has not explained as to why
he did not become a member of Union.
[h] In the background of a long duration of
complainant's designation as a
Supervisor, it was necessary for him to
prove that he was doing a clerical job,
which he has not proved.
[i] Complainant has admitted in cross-
examination that the allowance called
“DQ” payable quarterly to all workers is
not paid to the managerial staff.
32. When this appeal was argued, it was a common
ground that the questions, which were to be considered and
decided by the Labour Court, were:-
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19
[a] Whether the status of complainant
being a workman was proved on legal
evidence, if any brought by the
complainant?, And,
[b] Whether the facts, if any, proved
by the complainant were disproved
by the evidence brought by the
employer?
33. At the cost of repetition, it needs to be referred
that in the evidence led by the complainant, he has deposed
in specific terms that:-
[a] He was doing the clerical work.
[b] He was not entrusted or invested with
managerial and administrative powers.
[c] He has never supervised the work of any
other worker or subordinate to him.
[d] He used to do the work of scrutinizing
the purchase orders and make entries
thereof into the register.
[e] He used to follow up purchases ordered by
his controlling officer.
[f] Except the nomenclature as a supervisor,
he had no supervisory duties.
34. It is apparent that the cross-examination does not
aim at “predominance of duties.” The cross-examination
also does not aim at isolating any ministerial, menial or
clerical portion of the work of complainant to be
marginally available or extremely low in volume or
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magnitude and main work to be that of supervisor or
Manager.
35. As it is noted earlier, the employer's thrust of
bringing the complainant outside the purview of status of
workman and fitting him within the cadre of manager or
supervisor is based on:-
[i] Pleading that complainant was appointed
as a Supervisor, and performed managerial
duty.
[ii] That, since he was not part of the
persons who were beneficiaries of
benefits gained by the workmen being
party to the settlement entered between
the Management and the workmen.
[iii] The complainant did not perform any work
which was clerical in nature and was
actually a supervisor and performed
managerial powers and functions.
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 on the material and not on the men.
[c] The predominant nature of duties
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21
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.
37. This Court has, therefore, to see through the
aspects as to what was the duty performed by the
complainant referred to in each of the paras of the
Judgment of the Labour Court, which are classified below:-
Paragraph number Nature of duties, if discu-
of the Judgment -ssed, from page 88 onwards
of Labour Court. of the appeal paper-book.
14 Duties not discussed.
15 Clerical. Scrutinizing the
purchase orders, though
complainant was appointed as
a Supervisor, and did not
perform any supervisory functions.
16 No details of duties are
discussed.
17 Complainant's name is shown in
the separate muster maintained
for those in supervisory
category along with other six
persons.
There is no discussion
about duties.
18 Discussion about attendance
sheets [Exhs.32 and 33] which
pertain to those working in
supervisory category.
Authorization Slips [Exhs.34
and 35] are signed by the
complainant in capacity of
Authorization Officer.
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22
19. In the letter of unsatisfactory
performance, complainant is
described as Supervisor.
20 Gate Passes [Exhs.34 & 35] and
Delivery Challan-cum-Gate
Pass [Exh.39] are signed by
the complainant as Head of
the Department.
Exhs.40 and 41 are Audit
Memos / reports where the
complainant is shown as
Auditee.
21. The complainant is not a member
of Workers' Union. Complainant
has not explained as to why
he has not become a member if
he does not belong to
supervisory category.
22. Quarterly DQ Allowance payable
to workers is not paid to those
who are managerial staff.
Complainant further admits that
supervisors belong to
managerial cadre.
23 All supervisors do not work
on computers. As the
complainant did not work on
computer, it is not meant
that he is not a supervisor.
38. Now this Court finds that what the Labour Court
has done is to see the evidence of the workman in totally
one-sided manner, namely the Labour Court has scrutinized
the evidence not to search as to what are the predominant
duties, but to search what appears from the documents
produced by the respondent.
39. The questions, which really go to the root of case
without which the question as to whether the appellant is a
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23
'workman', cannot be decided, can be formulated as
follows:-
[a] What is the quality and volume of
evidence, or of proof of facts required to
be brought by a person claiming to be a
workman to discharge the burden of proof,
and to have the onus of proof shifted on
the employer who denies jurisdiction of
the Court on account of the factual status
of the complainant urging that he is not
the workman?
[b] While the provisions of Indian Evidence
Act do not apply in totality to the
proceedings and the process of hearing and
decision before the Tribunals / Courts
under Industrial & Labour Laws, is it not
the basic rule that facts are to be proved
by legal evidence?
[c] Whether the basic doctrine incorporated in
Section 106 of Evidence Act applies to the
adjudication under Labour Laws, though the
provisions of Evidence Act have not been
made applicable?
Of proof of fact as to nature of duties or work performed.
40. It is also well settled as to what is required to
be done by a party is to prove a fact.
A party is required is to bring on record the
proof of crucial facts on the basis of which existence or
non-existence of a fact should be regarded as in existence
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24
or not in existence. If he succeeds qualitatively in
leading to formation of opinion about existence of fact
propounded, and in reversing the burden and letting the
opponent to disprove what was proved by the party pleading
a particular story.
41. Upon such reversal of burden, additional facts
which are exclusively within power and control of party
denying the fact propounded by a claimant is to be brought
by the opposite party.
42. As it is seen on record, the workman has proved
various facts as to nature of duties, namely he has
asserted what exact work he was doing. He has also
asserted that he was not entrusted with managerial or
administrative duties. He has also proved that alleged
supervisory function was an isolated and solitary instance.
43. In the contrast with what evidence was brought by
the workman, now it was the turn of the management to
disprove what the workman had proved.
44. The employer could have produced, had it possessed
record of such other evidence within its possession and
control to prove its specific plea, namely that the
predominant nature of duties of the workman was managerial,
though some of the works done by the complainant may have
been ministerial, clerical etc.
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45. It would be useful to advert to what Management
has proved. Management has brought on record in all six
documents [Exhibits 32 to 35 and 39 to 41], which are
referred to in cross-examination of the workman.
46. It is pertinent to note that in the long span of
more than five years' service, documents relied upon by the
Management pertaining to nature of work, according to
management, are [1] Attendance Sheet, [2] Authorization
Slip, and [3] Pay Slip, which pertain to year 2003. The
period, during which the complainant was appointed and has
th
August, 1988.
been serving, is from 17
47. Had the complainant been working in supervisory
capacity, it would be shocking to believe that he has
signed only four documents referred to in paras 14 to 23,
which are Exhs.32, 33, 34, 35, 39, 40 and 41 only.
Stray suggestions as to few documents filed by the
Management do not amount to proving predominance of work.
48. Even on construing and interpreting each and every
document in favour of the management, it would not be
possible to reach a conclusion that these six documents
are liable to be described as 'stray pieces of evidence' in
the background of long five years' service of the
appellant. This evidence does not lead to suggest that
nature of predominant duties of complainant was that of
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managerial and administrative, much less to prove said
positively raised plea of the Management that the
complainant was not a workman.
49. It was quite open to the Management-employer to
have brought evidence of those subordinates who were
supervised by the appellant, and superiors to depose as to
who amongst that class, the appellant had supervised, in
the entire hierarchy in employment.
The hierarchy could have been proved by the
employer which would have thrown adequate light on the
status and nature of duties of the appellant and made his
position vivid the way Management-employer considers it to
be.
50. As to points noted in foregoing Paras, this Court
holds that proof of facts as to nature of duties done by
the complainant rose to adequate height and sufficient
degree to hold that the predominant nature of duties of
complainant was proved to be clerical in nature. It was
also proved by him that he does not perform any managerial
functions, and supervisory duty, if any, done by him was
microscopic in extent and magnitude.
51. This Court holds that extent of evidence or proof
required to be brought by complainant was to be of such
extent that the onus of proof shall be shifted – reversed
to the employer. This burden was discharged by the
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complainant satisfactorily. The employer has brought stray
pieces of evidence, and failed to bring substantive
evidence. Best evidence in its possession was withheld /
not produced in spite of order.
The employer had, therefore, to suffer the adverse
inference that had said evidence been produced, it would
have gone against the employer.
52. Though provisions of Evidence Act have not been
made applicable, application thereof is not even excluded.
In this background, it would be useful for this Court to
seek appropriate guidance from the provisions of Evidence
Act as to the basic test of proof, disproof, burden of
proof and duty to prove special knowledge, as is found by
this Court in following reported judgments:-
[1] Kanpur Electricity Supply Company Ltd. Vs.
Shamim Mirza[(2009) 1 SCC 20], and
[2] Sub-Divisional Engineer, Irrigation
Project, Yavatmal Vs. Sarang Marotrao
Gurnule[2008 (4) Mh.L.J. 514].
53. These judgments were brought to notice of
Advocates for parties on the last date of hearing and they
have nothing to address on these citations.
54. This Court finds from assessment and appreciation
of evidence done by the Labour Court in para nos. 14 to 23
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of its Judgment, what is seen is that what dominated the
mind of the Labour Court is the designation of the
complainant. Second factor, which has gone hand in hand
with the first aspect of designation, is the documents
where the complainant was described as Supervisor, or has
signed the documents as Head of the Department. This Court,
therefore, holds on Points [a], [b] and [c] in para 39 in
favour of the complainant / appellant.
55. The result that follows is that the findings of
Labour Court and Industrial Court, as confirmed by learned
Single Judge, are based on erroneous foundation, namely
nomenclature of the post than predominant nature of duties.
56. The Judgments and orders impugned based on the
findings referred and discussed above deserve to be
reversed, and are hereby set aside. This Court answers
Issue No.1 as framed by Labour Court in favour of
complainant, holding that he is a workman within the
compass of the term as defined under Section 2 (s) of the
Industrial Disputes Act.
57. The complaint is remanded to the Labour Court for
hearing and disposal on remaining issues within three
months from the date of receipt of the order of this Court.
Parties are directed to appear before the Labour Court on
nd
March, 2010.
22
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58. In the result, the appeal succeeds. Rule is made
absolute in terms of Paras 55,56 and 57.
59. The costs of appellant are quantified at Rs.5000-
00 [rupees five thousand only], which be paid by the
respondent by depositing the same in this Court within one
month with liberty to Advocate for appellant to withdraw
it. Respondent shall bear own costs.
JUDGE JUDGE
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