Full Judgment Text
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PETITIONER:
ARKAL GOVIND RAJ RAO
Vs.
RESPONDENT:
CIBA GEIGY OF INDIA LTD., BOMBAY
DATE OF JUDGMENT06/05/1985
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
KHALID, V. (J)
CITATION:
1985 AIR 985 1985 SCR Supl. (1) 282
1985 SCC (3) 371 1985 SCALE (1)927
ACT:
Industrial Disputes Act 1947, Section 2(s.)- ’Workman’-
Who is-Tests for determination-Ascertainment of primary,
basic or dominant nature of duties.
Labour Laws: Employee-Recruited as Stenographer-cum-
Accountant- Promoted as Assistant-Designated ’Group Leader’-
Whether employed in ’managerial’ or ’supervisory’ capacity.
Words & Phrases: ’ Workman’-Meaning of-Section 2(s.)-
Industrial Dispute ,Act 1947.
HEADNOTE:
The appellant joined as a Stenographer-cum-Accountant
with the respondent company. Subsequently he was promoted as
Assistant and continued as such till October 1972 when his
services were terminated, The Deputy Commissioner, Labour
(Administration), referred the dispute to the Labour Court
for adjudication. The respondent-employer contended that the
appellant was not a workman under the Act.
Rejecting the reference, the-Labour court held that
even though the appellant was doing clerical work, he was
also doing supervisory and administrative work and other
work like checking bank reconciliation etc. which was not
clerical work and, therefore, he was not a workman but in
fact an officer of the Covenanted Contractual Staff Cadre.
The writ petition filed by the appellant was dismissed
in limine.
The appellant appealed to this Court.
Allowing the appeal.
^
HELD: 1. The appellant was a workman within the meaning
of the expression ‘workman’ as defined in s. 2(s) of the
Industrial Disputes Act. The definition shows that the
person concerned would not cease to be a workman if he
performs some supervisory duties but he must be a person who
must be engaged in a supervisory capacity. The Labour Court
after rightly holding that primarily the duties of the
appellant were of a clerical nature misled itself into an
erroneous conclusion by drawing an impermissible inference
and recorded a perverse finding. The award of the Labour
Court declaring the appellant not
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to be a workman is quashed and set aside. The judgment of
the High Court also quashed and set aside and the matter
remanded to the Labour Court for A disposal according to
law. [289 F; 286 H; 290 G-H]
2. The test to be employed is what was the primary,
basic or dominant nature of duties for which the person
whose status is under enquiry was employed. A few extra
duties would hardly be relevant to determine his status. The
words like ’managerial’ or ’supervisory’ have to be
understood in their proper connotation and their mere use
should not detract from the truth.
[290 E-F1]
3. The comparison between an Assistant and a Clerk
would not make the Assistant an officer. Difference in
salary is hardly decisive, nor the designation of a clerk by
itself is decisive. Focus has to be on the nature of the
duties performed and in this behalf the Labour Court itself
was of the opinion that primarily for all practical purposes
the duties performed by the appellant were of a clerical
nature. 1289 A-B]
4. Where an employee has multifarious duties and the
question is raised whether he is a workman or not the Court
must find out what are the primary and basic duties of the
person concerned and if he is incidentally asked to do some
other work, not necessarily in tune with the basic duties,
these additional duties cannot change the character and
status of the person concerned.
[285 H; 286 A]
In the instant case, the Labour Court landed itself
into an erroneous conclusion by drawing impermissible
inference from the evidence and over looking the primary
requirement of the principal and subsidiary duties of the
appellant. On appreciation of evidence, the Labour Court
itself found that there is not much dispute that the
appellant was doing all the work narrated by the sub-Manager
of the Respondent-company and most of this work was just
clerical work. It was also observed that all the duties
performed by the appellant were clerical duties and that the
appellant was performing these duties as a clerk, and that
the duties of the appellant were more or less clerical and
at best it can be said that they were performed by an
efficient and experienced clerk.
[286 B; D-E]
5. The appellant after his promotion in 1966 as
Assistant was designated as Group Leader. The Labour Court
drew inference from this fact that the work of Group Leader
is undoubtedly mainly supervisory though he is also required
to work himself, and in view thereof the duty of the
appellant became primarily supervisory. No doubt the
appellant was working as Group Leader and therefore, over
and above his work he also supervised the work of the
persons working in his group. It is erroneous to draw the
inference that his duties thus became mainly supervisory.
[286 F-H]
In the instant case, the evidence shows that the
appellant even as a Group Leader primarily continued to work
and perform the same duties which have been found to be
clerical but alongwith others in the Group he also
incidentally looked after the work of other members of the
group who were
284
only two in number. It is, therefore, not possible to concur
with the inference A drawn by the Labour Court contrary to
the record that functioning as Group Leader would make the
appellant a person employed in supervisory capacity. The
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work distribution among three persons of a clerical nature
would not cease to be clerical because one of the three is
asked to see that all the three of them performed the duties
efficiently. The reconciliation of bank statement is one of
the most mechanical types of clerical work. [287 C-D; H]
M/s. Kirloskar Brothers Ltd. v. Labour Court, (1) l9,6
L.I.C. 918 and S.K. Verma v. Mahesh Chandra and Another,
[1983] 3 SCR 799 and Ved Prakash Gupta v. Delton Cable India
(P) Ltd., [1984] 2 SCR 569, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2638 of
1980.
From the Judgment and Order dated 30.1.1980 of the
Bombay High Court in Writ Petition No. 2853 of 1979.
N.B. Shetye, R. Ramachandran and Mukul Mudgal for the
Appellant .
H.S. Parihar for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. The appellant Mr. Arkal Govind Raj Rao joined
service with M/s Ciba Geigy of India Ltd. (employer for
short) as Stenographer-cum-Accountant with effect from
January 18, 1956. On January 1, 1966 he was appointed as
Assistant and continued to render service in that post till
his services came to be terminated on October 10, 1972. The
termination of service led to an industrial dispute being
raised and ultimately the Deputy Commissioner Labour
(Administration). Bombay made a reference to the Labour
Court at Bombay for adjudicating upon the industrial dispute
involving the question of the validity and legality of the
Order of termination of service. The reference also required
the Labour Court to enquire whether the appellant is to be
re-instated with full back wages and continued in service
with effect from October 10, 1972.
Numerous preliminary objections were raised by the
employer, amongst them being one that the appellant is not a
workman within the meaning of the expression in the
Industrial Disputes Act, 1947 (Act for short).
Evidence was led by both the parties and numerous
documents were placed on record. On appreciation of evidence
the Labour
285
Court held that even though the appellant was doing some
clerical work, he was also doing supervisory and
administrative work and A other work of checking bank
reconciliation etc. which was not clerical work and
therefore he was not a workman within the meaning of the
expression in the Act but in fact he was an officer of the
Covenanted Contractual Staff Cadre. Accordingly, an award
was made rejecting the reference.
The writ petition filed by the appellant in the Bombay
High Court was dismissed in limine. Hence this appeal by
special leave.
Broadly accepting the appreciation of evidence and the
finding of facts recorded by the trial court, could it be
said that the conclusion reached by drawing impermissible
inference from the evidence would justify a finding that the
appellant was not a workman within the meaning of the
expression in the Act. The expression ’workman’ is defined
in Section 2(s) of the Act reads as under:
"Workman means any person (including an apprentice)
employed in any industry to do any skilled or unskilled
manual, supervisory technical or clerical work for hire or
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reward, whether the terms of employment be expressed or
implied and for the purposes of any proceeding under this
Act in relation to an industrial dispute, includes any such
person who has been dismissed, discharged or retrenched in
connection with, or as a consequence of that dispute or
whose dismissal, discharge or retrenchment has led to that
dispute but does not include any person-
(i) who is subject to the Army Act, 1950 (XLVI of
1950), or the Air Force Act, 1950 (XLV of 1950) or
the Navy (Discipline) Act 1934 (XXXIV of 1934); or
(ii) ...
(iii)...
(iv) who, being employed in a supervisory capacity draw
wages exceeding five hundred rupees mensent or
exercise, either by the nature of the duties
attached to the office or by reason of the powers
vested in him, functions mainly of a managerial
nature".
Where an employee has multifurious duties and a
question is raised whether he is a workman or someone other
than a workman
286
the Court must find out what are the primary and basic
duties of the A person concerned and if he is incidentally
asked to do some other work, may not necessarily be in tune
with the basic duties these additional duties cannot change
the character and status of the person concerned. In other
words, the dominant purpose of employment must be first
taken into consideration and the gloss of some additional
duties must be rejected while determining the status and
character of the person. Appreciation of evidence by Labour
Court cannot be faulted but it landed itself into an
erroneous conclusion by drawing impermissible inference from
the evidence and overlooking the primary requirement of the
principal and subsidiary duties of the appellant.
The Labour Court recapitulated the documentary evidence
as also the oral evidence of Sitaram, the Sub-Manager in the
Finance Department of the Company examined on behalf of the
employer. In para 14 of the award the Court made a very
important observation that, "there is no much dispute that
Shri Raj Rao (appellant) was doing all the work narrated by
Shri Sitaram. Most of this work, in my opinion, was just
clerical work". The Court also referred to some of the
admissions made by Shri Sitaram in his cross-examination
which led the Court to observe that all the duties performed
by the appellant were clerical duties and that the appellant
was performing these duties as a clerk. The Court then
concluded that in general, the duties of the appellant
mentioned by Shri Sitaram were more or less clerical and at-
best it can be said that they were performed by an efficient
and experienced clerk.
The Labour Court then took note of the fact that in
1966 appellant was promoted as Assistant and that he was
designated as Group Leader. Ex. 16/6 was referred to as
specifying the duties of the Group Leader of Group II. The
Court concluded that the aforementioned document would show
that the appellant was a Group Leader and that he accepted
that position by putting his initials on the document. The
inference drawn by the Court from this document is that the
work of Group Leader is undoubtedly mainly supervisory
though he is also required to work himself. However, in the
view of the Labour Court at this stage the duty of the
appellant became primarily supervisory. While it is true
that the appellant was working as Group Leader and,
therefore, over and above his work be supervised the work of
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persons working in his group, it is erroneous also to draw
the inference that his duties became mainly supervisory.
287
The definition of the expression workman herein before
extracted clearly shows that the person concerned would not
cease to be a workman if he performs some supervisory duties
but he must be a person who must be engaged in a supervisory
capacity. Even as a Group Leader of Group II, the evidence
produced would show that primarily he continued to work and
perform the same duties which have been found to be clerical
but along with others in the group he also incidentally
looked after the work of other members of the group who were
only two in number. It is, therefore, not possible to concur
with the inference drawn by the Labour Court contrary to the
record that while functioning as Group Leader of Group II,
even though appellant was performing his clerical duty the
incidental supervisory duties performed by him would make
the appellant a person employed in supervisory capacity. Let
it be recalled that in Group II over and above the
appellant, there were only two other persons, namely, Shri
Swami and Shri Sawant. The distinction drawn between the
duties performed by Swami and Sawant and that of the
appellant was that as Group Leader the appellant was to
ensure That the work allotted to the Group is completed
within the scheduled time. In other words, work distribution
among three persons of a clerical nature would not cease to
be clerical because one of the three is asked to see that
all the three of them performed the duties efficiently to
complete the task. The Labour Court completely misled itself
and observed that since then the duties of the appellant
became supervisory.
The Labour Court then proceeded to examine another
circumstance to determine the status of the appellant. It
was submitted on behalf of the employer that the appellant
had also to do the work of preparing bank reconciliation
statements. It was observed that the reconciliation of
statements cannot be regarded as skilled or unskilled,
manual or clerical but one requiring creativeness,
imagination and application of mind and therefore, any one
doing such work would not be a workman. This approach
betrays lack of understanding of what constitutes bank
reconciliation statements. When a party opens an account, it
goes on making credits and withdrawals. The bank maintains a
recurring account. The party opening the account for its
continuous watch may open a corresponding account on its own
books. In order to see that there are no errors in credits
and withdrawals and the balance is drawn at regular
intervals, reconciliation of figures in the accounts of both
the parties is undertaken. This is one of the most
mechanical types of
288
clerical work. However, the Labour Court fell into an error
when A after taking note of the fact that the appellant was
asked to prepare banks reconciliation statements, looked
into the decision in M/s Kirloskar Brothers Ltd. v. Labour
Court,(l) wherein preparation of budgetary statements was
regarded as work requiring creativeness, and the Labour
Court after referring to that judgment of budgetary
statement applied it to the case of a man who had nothing to
do with preparation of budgetary statements but merely to do
the wholly mechanical work of bank’s reconciliation
statements and recorded a wholly perverse conclusion. This
is a serious error apparent on the face of the record
committed by the Labour Court which has influenced our
thinking.
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The Labour Court in para 25 of its decision observed
that there are numerous documents which positively show that
the appellant was performing supervisory and administrative
duties. A number of letters were produced by the employer to
show that the appellant was doing some administrative work
such as putting up indent for printed stationery which bears
the endorsement that the appellant requested his three
colleagues Shri Sawant, Shri Khedhar and Shri Pradhan to
give their requirements to him. If the department collects
the details from every employee working in the department
and one of them undertakes the same, it hardly makes any
difference, in the status and character of the employee.
There are other letters especially Ex. 16/33 to 16/38 by
which the appellant had directed other clerks to take note
of certain documents and report them to him. This cannot be
said to be either managerial or supervisory function but in
fact clerical in as much as he as part of his duty asked
other clerks to take note of certain circulars and return
the documents to him because that was part of his duty.
Firm reliance appears to have been placed on letter Ex.
16/31 which purports to be an extract of the minutes of the
meeting of Board of Directors dated June 2, 1970, The
appellant made an endorsement on this extract and requested
other colleagues to take note of the same. This is the work
of the clerk attached to the department connected with
meeting of the board. There are similar other documents but
in our opinion they would hardly support the case of the
employer at all.
It was next urged before the Labour Court that the
benefit received by the officers and clerks materially
differ. The Labour
(1) 1976 L.l.C.918.
289
Court has drawn up a chart in para 30 of its award. The
chart has left us guessing and we fail to appreciate how the
comparison between an Assistant and a Clerk would make the
assistant an officer. Difference in salary is hardly
decisive, nor the designation of a clerk by itself is
decisive. Focus has to be on the nature of the duties
performed and in this behalf the Labour Court itself was of
the opinion that primarily for all practical purposes the
duties performed by the appellant were of a clerical nature.
Lastly it was submitted that the appellant belonged to
what is called Covenantal Contractual Staff Cadre. The
expression ’covenated’ has an imperial flavour such as
covenanted civil service. This small company seems to have
adopted a nomenclature which was prestigious under the
British Rule. Clerks and Assistants could hardly be elevated
to the rank of officer by being miscalled covenanted
contractual staff cadre. These high-sounding nomenclatures
are adopted not only to inflate the ego of the employer but
primarily for avoiding the application of the Act. They
apart from being mis- leading are not in tune with free
India’s Constitution culture. We remain unimpressed by these
high sounding labels.
Having examined in meticulous details the award of the
Labour Court we are satisfied that the Tribunal after
rightly holding that primarily the duties of the appellant
are of a clerical nature misled itself into an erroneous
conclusion by drawing an impermissible inference and
recorded a finding which we regret to style as perverse. In
fact, the Labour Court ignored the correct perspective in
evaluating the evidence viz., that when primary or basic
duties of a person are shown to be clerical but some stray
assignments are made to create confusion, the gloss has to
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be removed to pursue the reality and that is all what we
have done. The appellant was undoubtedly a workman with the
meaning of the expression of the Act.
Before we conclude we must refer to two decisions on
which reliance was placed on behalf of the appellant. In S.K
Verma v. Mahesh Chandra and Another(l), this Court examined
whether a Development Officer employed by the Life Insurance
Corporation is a workman within the meaning of the
expression in the Act. After referring to the multifarious
duties assigned to a Development Officer, this Court
concluded that the principal duty of the appellant in that
(1) [1983] 3 S.C.R. 799.
290
case appeared to be to organise and develop the business of
the Corporation in an area allotted to him and for that
purpose to recruit active and reliable agents and to train
them to canvass new business and to render best service to
policy-holders. Even though the Development Officer had
power to recruit agents and supervise their work yet his
duties were held to be primarily clerical. The contention
that it was administrative or managerial was rejected. The
case before us is much stronger than that of a Development
Officer.
In Ved Prakash Gupta v. Delton Cable India (P) Ltd.(’)
it was contended that the appellant was not a workman. This
Court after taking note of the fact that the work of the
appellant consisted of looking after the security of the
factory and its property by deputing watchmen working under
him to work at the factory gate or sending them to watch
towers or around the factory or to accompany visitors to the
factory and making entries in the visitors’ register as
regards the visitors and in the concerned registers as
regards materials entering or going out of the premises of
the factory held that it would not make the nature of duties
either managerial or supervisory. What to say of the
appellant in the present appeal who is an Assistant.
The test that one must employ in such a case is what
was the primary, basic or dominant nature of duties for
which the person whose status is under enquiry was employed.
A few extra duties would hardly be relevant to determine his
status. The words like managerial or supervisory have to be
understood in their proper connotation and their mere use
should not detract from the truth.
Accordingly, the appeal succeeds and is allowed and the
award of the Labour Court declaring the appellant not to be
a workman is quashed and set aside. The judgment of the High
Court is also quashed and set aside. The matter is remanded
to the Labour Court for disposal according to law. The
Labour Court must dispose of the matter within a period of
three months from today and it shall not entertain any more
preliminary objections even if raised, on behalf of the
employer.
(1) [1984] S.C.C. 569.
291
The employer shall pay salary for a period of six
months at the rate of last pay drawn by the appellant and
the acceptance of it A would be without prejudice to any
contention on either side. The respondent, employer shall
also pay the cost of the appellant which is quantified at
Rs. 3,000.
A P.J Appeal allowed.
292