THE HONOURABLE MR v. The Management of Ashok Leyland Ltd., Ennore, Madras.2.The Presiding Officer, III Additional

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.3.2007CORAM:THE HONOURABLE MR.JUSTICE DHARMARAO ELIPEANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWRIT APPEAL No.2228 OF 2000K.P.Subramaniam... Appellant/PetitionerVs.1.The Management of Ashok Leyland Ltd., Ennore, Madras.2.The Presiding Officer, III Additional Labour Court, Madras... Respondents/RespondentsWrit Appeal preferred under Clause 15 of the Letters Patent againstthe Order of this Court dated 7.8.1998 made in W.P.No.15389 of 1989.WP.15389/89 : This Writ Petition filed under Article 226 of theConstitution of India to issue a Writ of Certiorari to call for therecords of the 2nd respondent in I.D.654 of 1984 and to quash the awardpassed by the 2nd respondent 23.05.1989 and published in the gazette.For appellant: Mr.V.Prakash, Senior Counsel for Mr.M.RamamurthiFor R.1: Mr.Sanjay Mohan, Senior Counsel for M/s.Ramasubramaniam AssociatesJUDGMENT(Judgment of the Court was delivered by DHARMARAO ELIPE, J.)Aggrieved by the Order of the learned single Judge of this Courtdated 7.8.1998 made in W.P.No.15389 of 1989, this Appeal has beenpreferred by the appellant/writ petitioner. https://hcservices.ecourts.gov.in/hcservices/

2. The appellant herein studied upto 7th standard and joined the 1strespondent Management in the year 1955 as an unskilled worker.Thereafter, the appellant/petitioner was promoted as Maintenance Engineerand on 20.3.1984, he was terminated from his services and a cheque forRs.1,995/- towards his one month's salary was also sent to him.Thereafter, by the letter dated 23.3.1984, the appellant/petitionerdisputed his termination and also returned the cheque sent by theManagement further requiring to reinstate him in service immediately withcontinuity of service and treat the period of absence since 21.3.1984 asone on leave. The said request of the appellant/petitioner was turneddown by the 1st respondent Management on the ground that as per theconditions of service, the Management is not bound to give any reason andthat the services of the appellant/petitioner are liable for termination.It was also informed by the Management that they have ceased to reposeconfidence in the appellant/petitioner on account of his activitiesinvolving the issuance of circular to executives and that his continuedpresence in the company will not be in the interest of the company.3. Aggrieved, the appellant/petitioner raised an industrial disputein I.D.No.654 of 1984 before the Labour Court, praying to hold his non-employment as illegal and reinstate him with continuity of service andfull back wages. The 1st respondent Management filed a counter stating thatthe appellant/petitioner is not a 'workman' within the meaning of Section2(s) of the Industrial Disputes Act and prayed to dismiss the claimpetition filed by the appellant/petitioner.4. The Tribunal, after conducting an enquiry, hold that theappellant/petitioner was working only in the supervisory capacity and asper exception (iv) to Section 2(s) of the Industrial Disputes Act he isnot a 'workman' and dismissed the claim petition filed by theappellant/petitioner. 5. As against the said Award of the Tribunal, theappellant/petitioner filed W.P.No.15389 of 1989 before this Court. Thelearned single Judge, relying on Exs.M.3 to M.70, which are all break downrequisition slips wherein the appellant/petitioner had signed as'Maintenance Supervisor' and further relying on Exs.M.6, M.9, M.11, M.12and M.77 wherein the appellant/petitioner had informed to the Managementabout the performance of various persons working under him and otherparticulars including his opinion as to their promotion, has dismissed thewrit petition filed by the appellant/petitioner on the ground that he washolding only a managerial post. The learned single Judge also held thatin the light of the overwhelming evidence with regard to the nature ofwork, it is unnecessary for him to refer to the decisions cited by thelearned counsel for the appellant/petitioner since it is settled law thatwhen the facts are clear and sufficient for arriving at a conclusion,there is no need to go for a decision. As against the said order of thelearned single Judge, this Appeal has been preferred by theappellant/petitioner. https://hcservices.ecourts.gov.in/hcservices/

6. The learned senior counsel for the appellant has contended thatthe the Labour Court has not applied the test as to what are thepredominant duties of the appellant before holding him not a 'workman'within the meaning of Section 2 (s) of the Industrial Disputes Act. It isalso contended that the learned single Judge failed to see that the Awardof the Labour Court is perverse, inasmuch as in deciding the status of theappellant and the Labour Court ought to have exhaustively analysed theduties and responsibilities and the work done by the appellant/petitionerin the factory and after such analysis ought to have seen what are thepredominant duties and responsibilities of the appellant and had theLabour Court gone through such an exercise, the reasonable conclusion thatwould have been possible is that the appellant is a 'workman' within themeaning of Section 2(s) of the Industrial Disputes Act. 7. The learned senior counsel for the petitioner/appellant furthertaking us through the materials placed on record, including the break downslips, has submitted that signing in the break down slips does not meanthat the appellant/petitioner is attending the managerial works. Thelearned senior counsel for the petitioner/appellant would extensivelyargue on the point that supervising a work, does not mean that he ishaving control over the workers. To fortify his argument that the natureof the duties of the appellant/petitioner does not fall within the ambitof 'managerial post' but squarely and amply falls only within the meaningof 'workman' as defined under Section 2(s) of the Industrial Disputes Act,the learned senior counsel for the petitioner/appellant has relied onvarious decisions of the upper forums of law, including the Apex Court,which we will advert to infra.8. On the contrary, the learned counsel for the 1strespondent/Management submitted that the Labour Court, after conducting athorough enquiry and in proper appreciation of the materials placed onrecord, has arrived at the conclusion that the appellant is not a'workman' within the meaning of Section 2(s) of the Industrial DisputesAct but was working only in the managerial capacity and the learned singleJudge also, after analysing the entire case from proper perspective, hasarrived at an irresistible conclusion that the appellant/petitioner is nota 'workman' within the meaning of Section 2(s) of the Industrial DisputesAct, which needs only confirmation from this appellate forum since thereis no need to interfere with the well reasoned findings of both the LabourCourt and the learned single Judge. On such grounds, the learned seniorcounsel for the 1st respondent has prayed to dismiss the writ appeal. Thelearned senior counsel for the 1st respondent Management would strenuouslysubmit that the decisions relied on by the appellant/petitioner are not atall applicable to the facts of the case and hence needs no considerationfrom this Court. https://hcservices.ecourts.gov.in/hcservices/

9. In the light of the above submissions, the point that arises forconsideration is 'whether the appellant/petitioner is a 'workman' withinthe meaning of Section 2(s) of the Industrial Disputes Act and if so,whether he is entitled to the relief sought for in the claim petitionbefore the Labour Court?'10. Section 2(s) of the Industrial Disputes Act defines the term'workman' as follows:""workman" means any person (including an apprentice) employedin 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 forthe purposes of any proceeding under this Act in relation to anindustrial dispute, includes any such person who has beendismissed, discharged or retrenched in connection with, or as aconsequence of, that dispute, or whose dismissal, discharge orretrenchment has led to that dispute, but does not include anysuch person -(i) who is subject to the Air Force Act, 1950 (45 of 1950) orthe Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of1957); or(ii) who is employed in the police service or as an officer orother employee of a prison; or (iii) who is employed mainly in a managerial or administrativecapacity; or(iv) who, being employed in a supervisory capacity, draws wagesexceeding one thousand six hundred rupees per mensem orexercises, either by the nature of the duties attached to theoffice or by reason of the powers vested in him, functionsmainly of a managerial nature."11. It is the admitted case of both parties that as on the date oftermination i.e. on 20.3.1984, the appellant/petitioner was working as aMaintenance Engineer, having joined the 1st respondent Management in theyear 1955 as an unskilled Labour. In Paras 20 to 26 of the counter filedby the 1st respondent Management before the Labour Court, the functions ofMaintenance Engineers are narrated as follows:"20. Maintenance Engineers are in charge of personal supervisionof actual work performed by the various categories of workmenworking under them and also to assess the performance of theworkmen and recommend promotion, increments, etc. accordingly.Since the shop floor area is very large and in order tofacilitate better supervision, they were given one JuniorExecutive under them to help in the supervision of the workmen.Whenever Junior Executives are not posted, the chargehands wereto assist the supervision. Chargehands were promotees from thepost of skilled higher workmen. https://hcservices.ecourts.gov.in/hcservices/

21. In 1984, at the time of petitioner's termination fromservice, he was a Maintenance Engineer attached to shop V andone Junior Executive and six workmen were under his directsupervision. The general nature of work of MTR in Shop V are asfollows: There were about 298 various types of machines in shopV, at the time of petitioner's termination in 1984. Some of thetypes of machines and their cost are as per Annexure III."22. A sample of the nature of breakdown/repair/maintenance workthat would arise on some of the machines are given in AnnexureIV.23. The actual physical work of repairing, replacing, servicingetc., of the machines were personally carried out by the workmenreferred to above and not by any Maintenance Engineer or JuniorExecutive. Junior Executive's duties were to go round the shopfloor and personally supervise to himself. In the course ofsupervision the Maintenance Engineer such as the petitioner wasrequired to see that the workmen were actually carrying outtheir duties correctly and to the requirements of the machinesand in respect of the nature of the breakdown or maintenancerequirements.24. The petitioner having a fair understanding as to the natureof work to be performed, allocate the workmen who were postedunder him namely six workmen along with Junior Executive toattend to various types of work and would decide the priority inwhich they should be attended to.25. As per practice, breakdown requisitions from the shop floorsupervisors would be sent to the petitioner who wouldacknowledge them and allot any group out of these six workmenunder him to attend to the jobs in question. During the courseof the work, if any spare parts were required, he would assessthe requirement and raise necessary requisitions for the same.26. In view of the fact that he was supervising the entireworkmen who do actual physical labour and also since he was in abest position to know the output of the workmen and conduct ofthose workmen, the petitioner was recommending annual incrementsand promotions for these workmen. He was also recommendingabsorption of certain casual employees into regular categories.The petitioner was also submitting attendance details of workmenunder him to the central planning for effecting wage out etc."12. The learned senior counsel for the 1st respondent/Managementreferred to some communications emanated from the appellant/petitioner tothe 1st respondent, recommending increments to some of the employees andwould submit that the appellant/petitioner was only in the 'managerialpost' and hence falls within the exception clause (iv) of Section 2(s) ofthe Industrial Disputes Act and thus he is not a 'workman'. The learnedsenior counsel for the appellant/petitioner would pooh-pooh the saidargument of the learned senior counsel for the 1st respondent Management onthe ground that though the appellant/petitioner recommended increments https://hcservices.ecourts.gov.in/hcservices/ etc., the power to take decision does not lie with him and it vests onlywith the Management and mere recommending does not mean that he is in themanagerial post. The learned senior counsel for the appellant/petitionerwould further submit that recommending persons for promotions orincrements or to allocate work to some of the employees etc. are onlyincidental to the principal work of the appellant/petitioner and hence itcannot be said that he is not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act. To fortify his submissions, thelearned senior counsel for the petitioner took us through thecommunications between the appellant/petitioner and the 1st respondent,wherein the recommendations of the appellant/petitioner were negatived bythe 1st respsondent Management.13. In ANANDA BAZAR PATRIKA (PRIVATE) LTD. vs. ITS WORKMEN [1969-II-LLJ 670], the Supreme Court has held:"The principle which should be followed in deciding the questionwhether a person is employed in a supervisory capacity or onclerical work is that if a person is mainly doing supervisorywork but incidentally or for a fraction of the time also doessome clerical work, it would have to be held that he is employedin supervisory capacity, and conversely, if the main work doneis of clerical nature, the mere fact that some supervisoryduties are also carried out incidentally or as a small fractionof the work done by him will not convert his employment as aclerk into one in supervisory capacity.The facts, in the instant case, showed that the employee'sprincipal work was maintaining and writing the cash book andpreparing various returns. Being the senior-most clerk, he wasput in charge of the provident fund section and was given asmall amount of control over the other clerks working in hissection. The only power he could exercise over them was toallocate work between them, to permit them to leave duringoffice hours and to recommend their leave applications. Thesefew minor duties of a supervisory nature, cannot, in ouropinion, convert his office of senior clerk in charge into thatof a supervisor. The labour court was, therefore, right inholding that Gupta was a workman on the date of his retirementand that an industrial dispute did, in fact, exist."14. In LLOYDS BANK LTD vs. PANNA LAL GUPTA AND OTHERS [1961-I-LLJ18], a Three Judge Bench of the Supreme Court has observed that 'thesupervisor or officer should occupy a position of command or decision andshould be authorized to act in certain matters within the limits of hisauthority without the sanction of the manager or the supervisors.' It wasalso held 'the designation of the employee is not decisive; whatdetermines the status is a consideration of the nature and duties of thefunction assigned to the employee concerned...' It has further been held: https://hcservices.ecourts.gov.in/hcservices/ "The checking up work is primarily a process of accounting andthe use of the word "checking" could not be permitted tointroduce a consideration of supervisory nature. The work ofchecking the authority of the person passing the voucher or toenquire whether the limit of authority has been exceeded is alsono doubt work of a checking type but such checking is purelymechanical and it could not be said to include any supervisoryfunction."15. In ASHOK LEYLAND LTD. vs. A.VIJAYAKUMAR AND ANOTHER [1988-II-LLN528], a Division Bench of this Court had the occasion to consider whethera Graduate Engineer working as a Development Officer in supply departmentof company taking orders from chief buyer of company is a 'workman'. TheDivision Bench, considering the fact that the petitioner therein wasworking only after taking orders from Chief Buyer of the company and isnot in a position to take independent decisions, has held that he is a'workman' within the meaning of Section 2(s) of the Industrial DisputesAct.16. In ANAND REGIONAL CO-OP. OIL SEEDSGROWERS UNION LTD. vs.SHAILESHKUMAR HARSHADBHAI SHAH [2006-III-LLJ 767], the Apex Court observedthat 'supervision contemplates direction and control and primary dutiesperformed need to be ascertained'.17. In S.B.KULKARNI vs. INDIAN RED CROSS SOCIETY AND OTHERS [1988-I-LLJ 411], a Division Bench of the Bombay High Court has held:"It is not the designation but the nature of duties performed byor allocated to the post which have to be examined to find outwhether the work is that of a supervisory character. To come tothe conclusion that a person is working in a supervisorycapacity, it is necessary to prove that there were atleast somepersons working under him whose work he was required tosupervise. The mere fact that a person is in charge of asection would not make him a supervisor if there was nobody elsein the section whose work was to be supervised. A clerk who hasbeen given the assistance of a peon cannot be said to beworking in a supervisory capacity. ... It is necessary to provethat the person is working in a supervisory capacity orexercising supervisory powers to say that he is not a 'workman'within the meaning of Section 2(s) of the I.D.Act."18. In the backdrop of the above legal position, now we have to seethe nature of duties of the appellant/petitioner. As could be seen fromthe duties of the appellant/petitioner, narrated by the respondent intheir counter, extracted supra, it is clear that allocation of work to thefellow workmen and recommending their promotions or increments are allonly incidental to the principal technical work of thepetitioner/appellant. Though it was the case of the 1st respondentManagement that the appellant/petitioner was recommending the promotions https://hcservices.ecourts.gov.in/hcservices/ or increments, as he did not decide matters and was obliged to work underthree superior officers of him, viz. Manager, Assistant Manager andSuperintendent, as has been narrated in the counter of the 1st respondentManagement itself, and since the petitioner/appellant was not occupyinga position of command or decision and was not authorized to act matterswithin the limits of his authority without the sanction of the Manager,Assistant Manager or the Supervisor, it cannot be said that thepetitioner/appellant is in a decision taking position. In the absence ofanything to show on record that the appellant/petitioner was occupying aposition of command or decision and was authorized to act in certainmatters within the limits of his authority without the sanction of hissuperiors viz. Manager, Assistant Manager or the Supervisor, as held bythe Apex Court in Lloyds Bank Limited case cited supra, it cannot be saidthat the appellant/petitioner was in a managerial post.19. As submitted by the learned senior counsel for thepetitioner/appellant, though the appellant/petitioner recommended incertain matters the promotion/increment to some of his colleagues like oneMr.Prakash Rao, were not accepted by the Management, which would show thathe was never in the decision taking process so as to say that he is inManagerial post. In this context, it is to be made clear that having putin more than thirty years of service, it is but natural that theappellant/petitioner was in a position to see or monitor whether theworkmen were actually carrying out their duties correctly and to therequirements of the machines and in respect of the nature of the breakdownor maintenance requirement. This kind of checking of the work of thefellow workmen cannot be termed as in the nature of managerial post, asheld by the Apex Court in Lloyds Bank Limited case cited supra. Further,by applying the principles enunciated by the Supreme Court in Anand BazarPatrika case, cited supra, it can very well be held that the fact thatthe appellant was given a small amount of control over six fellowworkmen, cannot take him away from the definition of 'workman'. 20. As rightly contended by the learned senior counsel for thepetitioner, the learned single Judge, without going into the judgmentsrelied on by the appellant, solely based on the findings arrived at by theLabour Court, had concluded that the appellant/petitioner was not aworkman within the meaning of Section 2(s) of the Industrial Disputes Act.Practically, both the Labour Court and the learned single Judge have notconsidered the issue involved in the matter with regard to the nature ofduties performed by the appellant as to what are the principal duties ofthe appellant and whether he was having any control over the decisions ofthe 1st respondent Management. The principles laid down by the upperforums of law in the above cited judgments, to determine whether a personis a workman or not, have not been followed either by the Labour Court orby the learned single Judge. As seen from the facts and circumstances ofthe case and the principal and ancillary duties of theappellant/petitioner and applying the principles laid down by the upperforums of law in the above cited judgments, we are satisfied that the https://hcservices.ecourts.gov.in/hcservices/ principal work of the appellant/petitioner is technical, whereas theincidental work is recommending promotions and grant of leave orincrements to the fellow workmen and signing the break down slips.Further more, there are three posts above the post of MaintenanceEngineer, which the appellant/petitioner is holding like Manager,Assistant Manager and Superintendent, to take policy decisions, asnarrated by the 1st respondent Management in their counter. Therefore,applying the principles enunciated by the Division Bench of this Court inAshok Leyland Limited case cited supra, since the petitioner/appellant wasnot in a position to take independent decisions, it cannot be said that heis not a workman. Therefore, we are unable to appreciate the reasonsgiven by the Labour Court and the learned single Judge in holding that theappellant/petitioner is not a 'workman' within the meaning of Section 2(s)of the Industrial Disputes Act.21. It is also made out by the appellant/petitioner that when hetried to form a Trust for the welfare of the employees and also issued acircular to all the staff members to that effect, the 1st respondentManagement has taken a decision of terminating him, which is also clearfrom the letter addressed by the 1st respondent Management to theappellant/petitioner on 27.3.1984. No enquiry was also conducted by the1st respondent Management and the stand of the Management that since theappellant/petitioner was not a workman, he was served with a terminationorder with one month's salary cannot be accepted because of our earlierfinding that the appellant/petitioner is a 'workman' within the meaning ofSection 2(s) of the Industrial Disputes Act. For this reason also, thetermination order should be held bad and unsustainable in law. As statedsupra, neither the Labour Court nor the learned single Judge haveconsidered the case in its proper perspective, applying the principlesenunciated by the upper forums of law. Therefore, this Writ Appeal isentitled to be allowed.In the result, this Writ Appeal is allowed. The orders of thelearned single Judge and the Labour Court are set aside. Theappellant/petitioner is entitled for all salary and service benefits withcontinuity of service as if he has retired on attaining the age ofsuperannuation. The 1st respondent/Management is directed to settle theabove said terminal benefits, for which the appellant/petitioner isentitled to, within a period of three months from the date of receipt of acopy of this judgment. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ RaoTo1. The Presiding Officer,III Additional Labour Court,Madras2. The Section Officer,V.R.Section, High Court, Madras1 cc To M/S.Ramasubramanian and Associates, Advocate, SR.19182. W.A.2228 of 2000SGL(CO)RVL 12.04.2007