Full Judgment Text
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CASE NO.:
Appeal (civil) 3417 of 2006
PETITIONER:
Anand Regional Co. OP Oil S. Union Ltd.
RESPONDENT:
Shaileshkumar Harshadbhai Shah
DATE OF JUDGMENT: 08/08/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 18951 of 2005)
S.B. SINHA, J.
Leave granted.
The Respondent was working as an Assistant Executive in the Quality
Control Department of the Appellant Cooperative Society. On an allegation
that he had committed a misconduct, a disciplinary proceeding was initiated
against him. The disciplinary proceeding was initiated relying on or on the
basis of a letter dated 16.9.1993 of Shri Shreedharani, the then Chief
Executive working in the Appellant’s, addressed to the Chairman
complaining about the serious misconduct committed by certain employees
including the Respondent on 15.9.1993. In the departmental proceeding Shri
Shreedharani and other persons were examined as witnesses. The Enquiry
Officer found the Respondent guilty of the alleged misconduct on his part,
holding:
(a) the respondent held a meeting in the lawns of Appellant without
permission and levelled false allegations against his Senior Officer
Mr. Shreedharani and behaved badly with him.
(b) The respondent alongwith his other colleagues forcibly entered
into the cabin of Mr. Shreedharani who was at that point of time in
serious discussions with his accountant despite his raising
objections to the same.
(c) The respondent also threatened Shri Shreedharani by stating inter
alia that ’if he does not leave directly then they will show him the
way’.
(d) The respondent crushed paper into ball and threw towards Shri
Shreedharani.
(e) The Respondent misbehaved, shouted slogans against Shri
Shreedharani and also closed the AC switch of the room where
Shri Shreedharani was sitting.
Punishment of dismissal from service was imposed upon him. An
industrial dispute was raised culminating in a reference made by the
appropriate Government to the Labour Court, Anand on 25.10.1996. Before
the Labour Court, the Appellant inter alia raised a contention that in view of
the nature of duties performed by the Respondent herein he does not fall
within the definition of ’workman’ as contained in Section 2(s) of the
Industrial Disputes Act, 1947 (for short "the Act"). The Labour Court
negatived the said contention of the Appellant.
In regard to the quantum of punishment, the Labour Court, however,
having regard to the manner in which the incident took place as also the
alleged extent of participation of the Respondent therein, opined:
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"\005Thus, looking to the facts as aforesaid, even if
the concerned workman has committed some
offence, even then the punishment imposed on the
concerned workman on the basis of the findings
recorded by the Inquiry Officer is excessive/
exorbitant. If the offence committed was the first
offence of the concerned workman, the concerned
workman ought to have been inflicted lighter
(minor) punishment. The concerned workman
could have been inflicted punishment of non-
payment of wages. If the nature of offence is
grave, he could have been inflicted punishment of
stoppage of two increments with future effect (on
permanent basis). However, in the present case,
the concerned workman has been imposed
punishment which is disproportionate to the nature
of offence as he has been suspended from service/
employment with effect from 17.09.1993. Thus,
the punishment imposed on the concerned
workman of suspending him from employment, is
excessive/ exorbitant."
He was directed to be reinstated with 25% backwages.
A writ petition was filed thereagainst by the Appellant and a learned
Single Judge of the High Court in his judgment opined that the Labour Court
having found that the workman was not involved in the incident, it did not
commit any illegality in passing the award in question and, thus, no
interference therewith was called for.
An intra-court appeal taken by the Appellant was also dismissed
holding:
"\005In our considered opinion, when an allegation
is made against the Inquiry Officer that the
findings recorded by him are perverse, then the ld.
Labour Court is obliged to reconsider the entire
evidence and re-record the findings not as an
appellate Court but as a Court having distinct and
separate jurisdiction taking into consideration that
whether the findings can validly survive as judicial
finding or an administrative finding based upon
due appreciation of the evidence. It is also true
that the principles of Evidence Act would not
apply to the inquiry proceedings but the basic
principles of appreciation cannot be sacrificed
especially in a case where the findings are
lopsided, ex-parte and without taking into
consideration the say of the other side. In the
present case, we are unable to hold that the ld.
Labour Court committed any wrong in re-
recording the finding. Under these circumstances,
Letters Patent Appeal No. 117 of 2005 arising out
of Special Civil Application No. 8971 of 2003 is
dismissed."
Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf
of the Appellant took us through the records of the case and submitted that
having regard to his own admission in the departmental proceedings that the
Respondent was not only the Head of the Department but also had been
supervising the works of nine assistants, the Tribunal committed an error in
opining that he was a workman. Strong reliance in this behalf has been
placed on Heavy Engineering Corporation Ltd v. Presiding Officer, Labour
Court and Others [(1996) 11 SCC 236].
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It was contended that in any view of the matter, the Labour Court
committed a manifest error in exceeding its jurisdiction under Section 11-A
of the Act as having regard to the facts and circumstances of this case it
could not have interfered with the quantum of punishment.
Mr. Ramesh P. Bhatt, learned senior counsel appearing on behalf of
the Respondent, on the other hand, contended that the jurisdiction of the
Labour Court in terms of the Act being plenary in nature, it could interfere
with the quantum of punishment awarded against the Respondent having
regard to the fact that:
(i) he had worked for 18 years;
(ii) his presence was not proved even by the Disciplinary Authority;
(iii) except naming the Respondent as one of the seven persons entering
into his Chamber, Shri Shreedharani in his letter dated 16.9.1993
did not attribute any specific overt act against him.
It was further contended that the finding of the Labour Court that the
Respondent is a workman being a finding of fact, this Court should not
interfere therewith.
In the disciplinary proceeding while asserting that he did not take part,
the Respondent in his evidence stated that he was the Head of the
Department and there was no officer superior to him except the Managing
Director. To a query made, whether the employees named by him were
under his control; he, however, stated that as a senior he gives guidance. He,
however, did not state that he was authorized to initiate any departmental
proceedings against his subordinates.
Section 2(s) of the Industrial Disputes Act defines ’workman" as
under:
""workman" means any person (including an
apprentice) employed in any industry to do any
manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward,
whether the terms of employment be express 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 such person--
(i) who is subject to the Air Force Act, 1950 (45 of
1950), or the Army Act, 1950 (46 of 1950). or the
Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an
officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory
capacity, draws wages exceeding one thousand six
hundred rupees per mensem or exercises, 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."
The ingredients of the definition of ’workman’ must be considered
having regard to the following factors:
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(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.
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 terms of the appointment in the job performed are relevant
considerations.
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
incharge of the section alone and that too it being a small one and relating to
quality control would not answer the test.
The precise question came up for consideration in Ananda Bazar
Patrika (P) Ltd. v. Workmen [(1970) 3 SCC 248] wherein it was held:
"The question, whether a person is employed in a
supervisory capacity or on clerical work, in our
opinion, depends upon whether the main and
principal duties carried out by him are those of a
supervisory character, or of a nature carried out by
a clerk. 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\005"
A person indisputably carries on supervisory work if he has power of
control or supervision in regard to recruitment, promotion, etc. The work
involves exercise of tact and independence.
Judging by the said standard, we are of the opinion that the First
Respondent did not come within the purview of the exclusionary clause of
the definition of workman. Ananda Bazar Patrika (supra) was followed by
the court in a large number of cases.
The ratio in Heavy Engineering Corporation Ltd. (supra) to which our
attention was drawn by Mr. Nagewhwara Rao must be held to be confined to
the fact of the said case. In that case the Respondent No. 2 was not only
supervising the work of the sweeper, etc., he had also been counter-signing
on the casual leave register. The ingredients of a workman as deliberated
upon in Ananda Bazar Patrika (supra) had not been taken into consideration
therein. The ratio of the said decision, therefore, cannot be said to be
attracted in the present case.
The First Respondent, however, was working as Assistant Executive
in the Quality Control Department. Allegations against him made by Shri
Shreedharani are serious in nature. The allegations were proved against him
in the departmental proceedings.
The Enquiry Officer found:
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"That on 15.9.1993, Shri Shaileshbhai Shah, in
collusion with his co-employees Shri Rameshbhai
Gokalbhai Patel, Rajendrakumar N. Shah,
Rajendrasingh, Rashmibhai M. Patel, Manubhai B.
Patel, Gulam Haider A. Pathan, held meeting at
11.00 A.M. in the garden which is situated just
adjacent to the office building. In the said meeting,
staff members were called. No permission was
obtained from the management for convening the
said meeting.
In the said meeting Shri Shaileshbhai Shah made
allegations against the Chief Executive of the
Institution Shri Shreedharani and stated that
"Shreedharani does not know anything in oil
business. By making non-technical persons as
Chief Executive, reputation of the Institution has
been spoiled/ tarnished. He is issuing every day
now orders. He is not doing the work which he is
required to do. He is not bringing any business. If
he leaves, then Institution will prosper/ progress
and so he should leave at the earliest opportunity.
We will not take rest without obtaining his
resignation."
On the date of incident, at about 12.00 noon, Shri
Shaileshbhai Shah alongwith his co-employees/
co-workers Shri Rameshbhai Patel, Rajendrakumar
Shah, Rashmibhai, Manubhai, Pathan all of them
rushed into the cabin of Shreedharani when
discussion on some important aspects was going
on between Shreedharani and Shri R.N. Shah,
Account Consultant of the Institution and so
Shreedharani objected to their entry in the manner
in the cabin by all of them and so at that time, Shri
Shaileshkumar Shah told Shreedharani that "you
are a bogus Chief Executive. After your joining
the Institution has progressed towards bottom. If
you leave, then, only the Institution will prosper/
progress. You have thrown the Institution into
loss. From where such non-sense people arise. If
you do not leave straight way, we will show you
the way (to leave). You are enjoying cooling by
sitting here and so you are showing power." By
telling so, Shri Shaileshbhai Shah switched off the
switch of A.C. machine and by preparing small
ball from piece of papers, he threw it at
Shreedharani. After said incident, by raising fists
and by shouting slogans "Shreedharani Hai \005
Hai\005", he took the staff with him outside the
cabin.
Thus, without obtaining permission from the
management, meeting was held in the lawn on
15.9.1993. That by making allegations against and
behaving in an impolite / rude manner with his
superior officer i.e. Chief Officer Shri
Shreedharani he has committed misconduct.
Thus, all the misconducts enumerated in the show
cause notice dated 16.10.1993, issued to Shri
Shaileshbhai Shah, have been established and
proved beyond doubt."
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The said findings inter alia were based not only on the basis of the
statement of Shri Shreedharani but also on the basis of the statements of Shri
Ramanlal Nathjidas Shah, Shri Nirbhaykumar Rana, Shri Babubhai
Mangalbhai Patel besides other evidences.
The learned Presiding Officer, Labour Court in his award did not
assign any reason as to how the findings of the Enquiry Officer were
perverse. There may or may not be any specific allegation. The question
which arose for consideration before the Labour Court was as to whether an
officer having enormous responsibilities could have behaved in such a
manner. The Labour Court did not advert to the said question.
The learned Single Judge of the High Court also without any material
on record opined that the Respondent \026 workman was not involved in the
incident. The Division Bench of the High Court did not consider these
aspects of the matter at all.
The Labour Court although has jurisdiction to consider the question in
regard to the quantum of punishment but it had a limited role to play.
It is now well-settled that the industrial courts do not interfere with the
quantum of punishment unless there exists sufficient reasons therefor. [See
North Eastern Karnataka R.T. Corpn. V. Ashappa, 2006 (6) SCALE 89 State
of U.P. v. Sheo Shanker Lal Srivastava and Others, (2006) 3 SCC 276, A.
Sudhakar v. Post Master General, Hyderabad & Anr., JT. 2006 (4) SC 68,
Mahindra and Mahindra Ltd. v. N.B. Narawade, (2005) 3 SCC 135, M.P.
Electricity Board v. Jagdish Chandra Sharma, (2005) 3 SCC 401, Hombe
Gowda Educational Trust and Another v. State of Karnataka and Others,
(2006) 1 SCC 430, and Chairman & M.D., Bharat Pet. Corpn. Ltd. & Ors. v.
T.K. Raju, 2006 (2) SCALE 553].
A wrong test was applied herein by the Labour Court in observing "If
the nature of the offence is grave he could have been inflicted punishment of
stoppage of the increments". On what premise the said observations were
made is not known.
There is, however, another aspect of the matter which cannot be lost
sight of. Identical allegations were made against seven persons. The
Management did not take serious note of misconduct committed by six
others although they were similarly situated. They were allowed to take the
benefit of the voluntary retirement scheme.
The First Respondent might not have opted therefor. However,
having regard to the peculiar facts and circumstances of this case, he should
be, in our opinion, treated on a similar footing. In view of the fact that the
First Respondent has succeeded in the Labour Court and the learned Single
Judge as also the Division Bench; we are of the opinion that having regard to
the overall situation, the interest of justice would be subserved if the award
of the Labour Court dated 31.1.2003 as affirmed by the High Court is
substituted by a direction that the First Respondent shall also be given the
benefit of voluntary retirement scheme from the month in which the other
workmen were given the benefit thereof.
The impugned judgment is modified to the aforementioned extent.
This appeal is allowed in part and to the extent mentioned hereinbefore.
There shall be no order as to costs.