C.K. Ravindaran v. New Horizon Sugar Mills LimitedRepresented by its General ManagerAriyurPondicherry2

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:06.03.2007CORAM:THE HONOURABLE MR. JUSTICE V. DHANAPALANW.P. No.4239 of 2003C.K. Ravindaran.. Petitionervs.1New Horizon Sugar Mills LimitedRepresented by its General ManagerAriyurPondicherry2The Presiding OfficerLabour CourtPondicherry..RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for a writ of certiorarified mandamus as statedtherein.For petitionerMr. D. Bharatha ChakravarthyFor 1st respondentMs. S. Vidya for M/s. S. Ramasubramanian & AssociatesR2: Court O R D E RThe petitioner, aggrieved by the order dated 01.07.2002, inCP NO. 33/2000 passed by the second respondent Labour Court, hasfiled this writ petition, seeking to quash the same and to directthe first respondent Management to pay him the death-cum-retirement gratuity (DCRG) as per the settlement dated 11.10.1995between the first respondent Management and its workmen and alsoto pay him the bonus and ex-gratia payment for the accountingyears 1998-99 in full and for the year 1999-2000 proportionate tothe months of April and May 1999 at the same rate as was paid tothe other workmen of the first respondent Management.2.The petitioner was appointed in the first respondent mill on24.09.1969 as a Draughtsman to prepare designs and drawing underthe supervision of Deputy Chief Engineer. By an order of thefirst respondent, he was re-designated as Junior Engineer(Designs) sans any change in the grade, scale of pay and dutiesand responsibilities and he continued to perform the functions ofa Draughtsman till his retirement. By an office order dated https://hcservices.ecourts.gov.in/hcservices/

27.08.1996, his scale of pay was revised from Rs.1,700/- toRs.3,350/- and he was subsequently transferred to work inside thefactory to supervise the overhauling works, besides attending tothe drawing office work whenever required, by an order dated27.06.1997; but he was not having any decision-making oradministrative power to control the workmen under him. The firstrespondent, by its order dated 22.09.1997, revised his pay in thescale of pay of Rs.4000-5550 and by an order dated 19.04.1999, hewas superannuated on 11.05.1999. 3.On 11.10.1995, a settlement was entered into between thefirst respondent Management and its workmen under Section 12(3) ofthe Industrial Disputes Act, 1947 (in short “the Act”) accordingto which each workman was required to contribute to the Death-cum-Retirement Gratuity (in short "DCRG") and the former agreed to paya sum of Rs.30,000/- to each workman so contributing at the timeof his retirement and thus, a total sum of Rs.994/- was recoveredfrom the petitioner’s salary till his retirement. On hisretirement, he was paid only a sum of Rs.994/- and there was abalance of Rs.29,006/- payable to him as per the settlement.Further, the first respondent had declared a bonus of 8.33% and anex-gratia of 19.67% for the accounting year 1998-99 by which thepetitioner was entitled to receive Rs.11,760/- as bonus for theaccounting year 1998-99 and proportionate bonus for the accountingyear 1999-2000. As against these dues, he was paid only a sum ofRs.3,500/- towards full and final settlement of bonus for theaccounting year 1998-99. 4.With his efforts to get his claims in vain, he filed aclaim petition before the second respondent Labour Court underSection 33C(2) of the Act for determination and payment of theamount due to him and the said petition was dismissed by thesecond respondent Labour Court, vide its order dated 01.07.2002 onthe ground that he cannot be termed as a workman and as such, thesettlement is not applicable to the petitioner and consequently,he cannot claim the balance of Rs.29,004/- so also the bonus forthe respective years. This order of the second respondent LabourCourt is impugned in this writ petition.5.The main ground of challenge in the writ petition isthat though the petitioner was upgraded on various occasions, hisnature of job remained the same and he was never playing asupervisory role, though designated as such and hence, the findingof the second respondent Labour Court that the petitioner cannotbe termed to be a workman is perverse.6.According to the first respondent, the petitioner waspromoted on a number of occasions and his last promotion was asSupervisor in 'C' grade and he was performing supervisory dutiesin the factory by looking after the overhauling work in shopfloor; on his superannuation, all his dues were settled which wereaccepted by him in full and final settlement of his claim byissuing a stamped receipt and since he was in the supervisorycadre, he was precluded from claiming any benefit under theSettlement which is applicable only to "workmen". It is thefurther case of the first respondent that the finding of thesecond respondent Labour Court is in no way infirmed since it has https://hcservices.ecourts.gov.in/hcservices/ rightly come to the conclusion that the petitioner did not fallunder the category of a "workman" and as such, not entitled to hisclaim.7.Heard Mr. Bharatha Chakravarthy, learned counsel for thepetitioner and Ms. S. Vidya for M/s. S. Ramasubramaniam &Associates, counsel for the first respondent.8.The learned counsel for the petitioner would contendthat the Labour Court, by accepting the averment of the firstrespondent without going into the nature of work performed by thepetitioner, has come to an erroneous conclusion that thepetitioner is not a workman, though he was all along performingthe same duties of drawing designs and plans involving skilled andtechnical functions. In this connection, it would be his earnestsubmission that only the actual nature of work performed by anemployee should be given preference rather than the designationoffered to him, while deciding his status as to whether he is aworkman or not. It would be his further argument that the firstrespondent did not contend with regard to the status of thepetitioner while recovering Death-cum-Retirement Gratuity but onlywhen paying the same to the petitioner, it contended that thepetitioner did not fall under the category of a 'workman' and assuch, this fluctuating stand of the first respondent is notjustifiable. 9.In support of his contention that only the nature ofduties and responsibilities performed by an employee has to betaken cognizance of and not his designation, while determining hisstatus as a workman or not, the counsel for the petitioner wouldrely on a judgment of the Supreme Court reported in AIR (2002) SC1724 in the case of Sharad Kumar v. Govt. of NCT of Delhi & othersand the relevant para reads as under (para 29)"Testing the case in hand on thetouchstone of the principles laid down in thedecided cases, we have no hesitation to holdthat the High Court was clearly in error inconfirming the order of rejection of referencepassed by the State Government merely takingnote of the designation of the post held by therespondent i.e. Area Sales Executive. As notedearlier, determination of this question dependson the types of duties assigned to ordischarged by the employee and not merely onthe designation of the post held by him. We donot find that the State Government or even theHigh Court has made any attempt to go into thedifferent types of duties discharged by therespondent with a view to ascertain whether hecame within the meaning of Section 2(s) of theAct. The State Government, as noted earlier,merely considered the designation of the postheld by him which is extraneous to the mattersrelevant for the purpose. From the appointmentorder dated 21/22 April, 1983 in which areenumerated certain duties which the appellantmay be required to discharge, it cannot be heldtherefrom that he did not come within the first https://hcservices.ecourts.gov.in/hcservices/ portion of the Section 2(s) of the Act. We areof the view that determination of the questionrequires materials including oral evidence willhave to be considered. In such a matter, theState Government could not arrogate on toitself the power to adjudicate on the questionand hold that the respondent was not a workmanwithin the meaning of Section 2(s) of the Act,thereby terminating the proceedingsprematurely. Such a matter should be decidedby the Industrial Tribunal or Labour Court onthe basis of the materials to be placed beforeit by the parties. Thus, the rejection orderpassed by the State Government is clearlyerroneous and the order passed by the HighCourt maintaining the same is unsustainable.”10.Per contra, the counsel for the first respondent wouldcontend that the petitioner's basic salary was fixed at Rs.3,200/-with effect from 01.09.1996 and the same was increased toRs.4,200/- with effect from 01.09.1997 and he was allotted dutiesand responsibilities giving due consideration to his designationand the petitioner himself has admitted in his affidavit that hewas an operator of higher grade and hence, the contention of thepetitioner that he is a workman does not have legs to stand. Thelearned counsel for the first respondent would further contendthat when the sum of Rs.994/- which was, due to a clerical error,recovered from the petitioner's salary towards DCRG, was returnedto him, his claim that he is entitled to receive the balanceamount of Rs.29,006/- is baseless and hence, should be brushedaside. Finally, the counsel for the first respondent wouldcontend that the claim of the petitioner for bonus and exgratia onpar with other workmen is not at all tenable particularly, when hehad accepted a sum of Rs.3,500/- in full and final satisfaction ofhis claim towards bonus.11.In support of her contention that the status of anemployee has to be decided only as per Section 10(1) and not under33C(2) of the Industrial Disputes Act, the learned counsel for thefirst respondent has relied on a First Bench judgment of thisCourt 1976 II LLJ 218 in the matter of R. Krishnaswami Reddiar,etc., etc. vs. Labour Court, Madurai & another etc., etc. and therelevant para reads as under:“We are of the opinion that any incidentalquestion which may be brought within the scope ofSection 33C (2) will have to be inherentlyrelated to the problem of computation. Butstatus is not one such question just as a defencewhen disputed, could not be decided under Section33C(2). They are questions which have to bedecided by raising industrial disputes underSection 10(1) of the Industrial Disputes Act.”12.With regard to her contention that it is only for thepetitioner to prove his claim, the learned counsel for the firstrespondent has placed reliance on a judgment of this Courtreported in 1964 II LLJ 86 in the matter of Rathinaswami Nadar https://hcservices.ecourts.gov.in/hcservices/ (E.C.P.) vs. Labour Court, Madurai & another and the relevantportion reads as below:“It must be remembered that this is a claimwhich was put forward by the employee andnormally, it is for the person putting forwardthe claim to establish the facts andcircumstances supporting the claim”13.The only short point involved in this case is whetherthe petitioner falls under the definition of a “workman” ascontemplated under Section 2(s) of the Act which reads as follows:“workman” means any person (including anapprentice) employed in any industry to do anymanual, unskilled, skilled, technicaloperational, clerical or supervisory work forhire or reward, whether the terms of employmentbe express or implied, and for the purposes ofany proceeding under this Act in relation to anindustrial dispute, includes any such person whohas been dismissed, discharged or retrenched inconnection with, or as a consequence of , thatdispute or whose dismissal, discharge orretrenchment has led to that dispute, but doesnot include any such person—iwho is subject to theAir Force Act, 1950 (45 of 1950)or the Army Act, 1950 (46 of1950), or the Navy Act, 1957 (62of 1957); oriiwho is employed in thepolice service or as an officer orother employee of a prison; oriiiwho is employed mainlyin a managerial or administrativecapacity; orivwho, being employed in asupervisory capacity, draws wagesexceeding one thousand six hundredrupees per mensem or exercises,either by the nature of the dutiesattached to the office or byreason of the powers vested inhim, functions mainly of amanagerial nature.”14.To decide the above issue, it is necessary to take intoconsideration the materials placed by the petitioner to prove thathe is a workman under Section 2(s) of the Act. From Ex.A1,appointment order marked before the Tribunal, it is clear that hewas appointed as a Draughtsman with a basic pay of Rs.200-10-250-EB-10-300. This post was re-designated as Junior Engineer(Designs) by an office order dated 11.02.1991 marked as Ex.A.2,the scale of pay remaining the same. Further, as per thesettlement reached between the employees and the first respondent, https://hcservices.ecourts.gov.in/hcservices/ his pay was refixed at Rs.2,825/- with effect from 01.10.1993 andenhanced to Rs.3,200/- with effect from 01.09.1996. At the timeof retirement, he was receiving a basic salary of Rs.4,200/-.From this, it is clear the petitioner who was working in thesupervisory capacity was drawing more than Rs.1,600/-, the amountover which an employee should not draw if he is to be called as a“workman” as per Section 2(s) extracted above. Further, his natureof duties as Junior Engineer (Designs) such as supervising theoverhauling work and his basic salary of Rs.4,200/- amply provethat his functions are of a managerial nature and he does not fallunder the category of a workman as referred to in Section 2(s) ofthe Act. Also, the work of a Junior Engineer (Designs) isundoubtedly a skilled work and it is not a manual work. Thus, thelogical reasoning given by the Labour Court that the petitioner isnot a workman, based on the materials placed before it by theparties, is in conformity with the legal principles and there isno perversity in arriving at such a conclusion. His designation,salary drawn and the nature of duties and office orders areconclusive proof to show that the petitioner was in a supervisorycapacity involving managerial or administrative task. Therefore,I am of the considered view that he is not a workman coming underthe definition of Section 2(s) of the Act and as such, he cannotseek any relief which can be claimed only by a person in thestatus of a workman. In that view of the matter, this Court holdsthat the petitioner cannot claim DCRG which is applicable only toworkmen. 15.Secondly, coming to the claim of the petitioner withregard to bonus and exgratia, I am not able to find any infirmitywith the order of the Labour Court holding that it is untenable onthe part of the petitioner to claim bonus and exgratia on par withworkmen, when admittedly, the petitioner had acknowledged thereceipt of a sum of Rs.3,500/- in full and final satisfaction ofhis claim for bonus.Having regard to the facts and circumstances of the case, thesubmissions made by the counsel on either side and the judgmentsrelied on by them and in view of the above findings, I am of theconsidered view that the writ petition does not deserve anyconsideration. Accordingly, it is dismissed without any order asto costs.CadSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding OfficerLabour CourtPondicherry2. The Record Keeper, VR Section,High Court, Madras+ one cc to M/s. Sai Bharath and Ilan, Advocate sr no. 13785+ one cc to M/s. S. Ramasubramanian, Associates, sr no. 14344GV(Co)NM(16.03.07)W.P. No.4239 of 2003