Writ Petition No. 25553 of 2014 · The High Court
Case Details
- 1 - NC: 2025:KHC:11081 WP No. 25553 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 25553 OF 2014 (L-TER) BETWEEN: SRI MIR MOHAMMED ISMAIL ALI S/O SRI MIR MAHAJI ALI, AGED ABOUT 51 YEARS, R/A.NO.82/5, 1ST FLOOR , 6TH CROSS, OFFICIAL COLONY, BAIRASANDRA JAYANAGAR, 1ST BLOCK EAST, BANGALORE 560011. (BY SRI. V S NAIK .,ADVOCATE) AND: THE MANAGEMENT OF M/S HIMALAYA DRUG COMPANY MAKALI, BANGALORE 562123 REPRESENTED BY HEAD- HUMAN RESOURCES. …PETITIONER (BY SRI. S.N. MURTHY, SENIOR ADVOCATE FOR SMT.ROOPASHREE.,ADVOCATE) …RESPONDENT THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO- CALL FOR THE ENTIRE RECORDS FROM THE I ADDL. LABOUR COURT, BANGALORE PERTAINING TO ANNX-K; Digitally signed by VANAMALA N Location: High Court of Karnataka - 2 - NC: 2025:KHC:11081 WP No. 25553 of 2014 QUASH THE AWARD DATED 2.9.2013 PASSED BY THE I ADDL. LABOUR COURT, BANGALORE, IN REF. NO.38/2008, THE CERTIFIED COPY VIDE ANNX-K; DIRECT THE RESPONDENT TO REINSTATE THE PETITIONER INTO HIS ORIGINAL POST WITH ALL CONSEQUENTIAL BENEFITS. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD ORAL ORDER The petitioner, who was in employment with the respondent as an Executive - Stores in E-3 Grade as of the date of termination from service, has called in question the Award dated 02.09.2013 on the file of the I Additional Labour Court, Bengaluru [for short, 'the Labour Court']. The Labour Court by the impugned Award has rejected this Reference under Section 10 of the Industrial Disputes Act, 1947 [for short, 'the ID Act']. The Reference by the Government of Karnataka is by the order dated 23.08.2008, and the Reference is for adjudication on [a] whether the petitioner is a workman, and [b] whether the - 3 - NC: 2025:KHC:11081 WP No. 25553 of 2014 petitioner is justifiably removed by the termination order dated 22.02.2008. 2. The respondent employed the petitioner on 03.07.1985 as a Typist-cum-Clerk, and it
Legal Reasoning
confirmed his services w.e.f. 01.04.1986. The respondent has promoted the petitioner as a Storekeeper on 03.06.1994. The promotion order reads that the respondent reposes faith in the petitioner and looks forward to a superior level of performance from him. The petitioner has continued as a Storekeeper until the year 2003, when the petitioner is informed by the Communication dated 16.05.2003 that, consequent to restructuring and based on the assessment of his performance during the financial year 2002-2003, his designation will be Executive - Stores in E-3 Grade. The petitioner is also informed that the change is in tune with the changes across the sector and for matching the actual job with the designation. - 4 - NC: 2025:KHC:11081 WP No. 25553 of 2014 3. The petitioner has filed an undertaking with the respondent on 19.05.2003 [Ex.M.1] stating that he has received a copy of the revised Service Conditions Applicable to the Management Staff [Ex.M.2] with the respondent stating that he has read and understood the Service Conditions and he agrees to abide by them. The petitioner's performance is appraised in the years preceding the termination. The appraisal for the year 2004-05, which is signed by the petitioner, records inter alia that ‘he has extracted work from the workmen'. However, the petitioner is found ineligible for annual increment in view of his poor performance otherwise and attitude. 4. On 22.02.2008, the respondent has issued termination order recording that [i] the petitioner’s appraisal reports for years 2004-05 and 2006-07 are very poor, [ii] he remains habitually absent without authorization, [iii] has a poor attitude towards the workforce and [iv] it has lost confidence - 5 - NC: 2025:KHC:11081 WP No. 25553 of 2014 in him. The respondent, along with this termination order, has enclosed a cheque for Rs.18,100/- in lieu of one month’s notice. The petitioner has not en- cashed the amount, and in fact, he has returned it to the respondent to raise a dispute which has resulted in the subject Reference with the Labour Court. The petitioner is served with the Termination Order dated 22.02.2008 without being issued with the show cause notice or holding an enquiry. 5. These are the undisputed facts and circumstances, and the merits of the petitioner's grievance with the Labour Court's impugned Award is in the light of these undisputed facts and circumstances, the rival submissions and the reasons offered by the Labour Court given the limited expanse of enquiry that should be under Article 226 of the Constitution of India. 6. The petitioner has examined himself as W.W.1 and marked Exhibits W.1 to W.5, which are - 6 - NC: 2025:KHC:11081 WP No. 25553 of 2014 the Appointment Order, Confirmation Order, the Order of Termination and his Communication dated 27.02.2008 addressed to the Assistant Labour Commissioner. The respondent has examined one of its Manager as M.W.1 and marked Exhibits M.1 - M. 103. These exhibits are the petitioner’s Undertaking dated 19.05.2003, the Service Conditions for Management Staff Book, Out passes/Internal passes signed by the petitioner for certain workmen with the respondent, Log-sheets, Notes on receipt of raw materials and issue of raw material for production, Leave Applications, Performance Appraisal and such other documents. 7. The Labour Court, while answering the Reference, has framed Issues on whether the respondent proves that the petitioner had remained absent for 12 and 34 days respectively during 2006 and 2007 and whether it has lost confidence in the petitioner. The Labour Court has firstly answered the - 7 - NC: 2025:KHC:11081 WP No. 25553 of 2014 Reference on whether the petitioner is a workman as contemplated under Section 2(s) of the ID Act, and next has answered the additional Issues. If the Labour Court's answer on the Reference is in the Negative, its answer on the Additional Issues is in the Affirmative.
Legal Reasoning
8. Sri. V. S. Naik, the learned counsel for the petitioner, submits that this Court must examine whether the Labour Court is justified in its conclusion that the petitioner is not a workman, and if this Court opines that the Labour Court is not justified in its conclusion, then examine whether the Labour Court is correct in opining that the respondent has established unauthorized absence and that the respondent is justified in terminating petitioner's service on loss of confidence. Sri. S. N. Murthy, the learned Senior counsel for the respondent, submits that the outcome in this petition must turn on whether the petitioner, who asserts - 8 - NC: 2025:KHC:11081 WP No. 25553 of 2014 that he is a workman, has discharged the burden of establishing the same. 9. On the question of law, Sri. V.S. Naik submits that the petitioner’s designation will not be the determinative factor on whether a particular person is a workman or not and it is the actual nature of the duties discharged, and that if a person is called upon to discharge multiple duties, it is the predominant or a primary duty that will be material in deciding whether such person is a workman. Sri. S.N. Murthy does not contest these propositions. 10. This Court must therefore observe that Sri. V. S. Naik and Sri. S. N. Murthy are unanimous on the law and that this Court must examine whether the Labour Court's conclusion on facts is perverse or it is based on factors that are not relevant or extraneous to the dispute. This Court, in exercise of jurisdiction under Article 226 of the Constitution of India, will not re-appreciate evidence and will only - 9 - NC: 2025:KHC:11081 WP No. 25553 of 2014 scrutinize the material on record to ensure that there is no perversion in the decision and that the decision is not for extraneous reason or based on irrelevant circumstances1. 11. Sri. V. S. Naik submits that the petitioner, who was promoted as a Storekeeper in the year 1994, continued to discharge the same set of duties even after 16.05.2003 when he was re-designated as Executive - Stores. The learned counsel argues that the order dated 16.05.2003 is not an order granting promotion to the petitioner in the Managerial Cadre but is only a re-designation, and as such, the respondent cannot draw any strength from the petitioner being designated as Executive - Stores. 12. Sri V. S. Naik next submits that the respondent's witness has listed the different works purportedly assigned to the petitioner, but the crucial 1 State of Haryana and Others Vs. Devi Dutt and Others reported in [2006] 13 SCC 32 - 10 - NC: 2025:KHC:11081 WP No. 25553 of 2014 question is, whether the petitioner was indeed called upon to discharge such responsibilities, and the learned counsel argues the following to bolster his case that the petitioner was not entrusted with such duties [i] The Labour Court has accepted the testimony of the respondent's witness that the petitioner could grant leave and issue Out - Internal passes to the workmen working under him but without considering the cross examination The respondent's witness in the cross examination has admitted that the petitioner has processed applications for leave but the actual sanction is by the Head of the Department. [ii] If the petitioner has only received [or processed] applications, it cannot be inferred that the petitioner had administrative control over the workmen. [iii] The Labour Court has failed to consider that the respondent's witness has - 11 - NC: 2025:KHC:11081 WP No. 25553 of 2014 admitted in the cross examination that the Out - Internal passes have been issued by the petitioner only on occasions when the designated persons were not available. [iv] If these two responsibilities [granting of leave and using Out - Internal Passes] are not part of the primary duties assigned to the petitioner, the petitioner's primary duty was to receive raw materials and issue thereof for production and due maintenance of log books in that regard. This duty, when it is obvious, is not combined with any administrative or financial or disciplinary powers, will not make the petitioner a part of the Managerial Cadre. 13. Sri V. S. Naik lastly, while submitting that the petitioner's declaration dated 19.05.2003 [Ex.M.1] to be bound by the Service Conditions for the Management and Staff [Ex.M.2] will not be crucial in deciding whether he was a workman, submits that the Labour Court could not have relied upon the - 12 - NC: 2025:KHC:11081 WP No. 25553 of 2014 appraisal of performance as it is routinely done by the respondent across all employees and the records demonstrate that the petitioner has not signed the appraisal for the year ending 2007. 14. Sri. S. N. Murthy submits that the Labour Court has rightly relied upon the petitioner's testimony in admitting that [i] he has issued passes on his own to the workmen, [ii] that he was admitted to canteen used by the Managerial Staff, [iii] that he has availed Pick-up and Drop facilities [which are extended only to the Managerial Staff] and the workmen are extended the drop facility only during the night shifts, [iv] that he has never worked in the night shifts, [v] that he has signed the leave applications [Ex.M.11 to Ex.M.81] under the heading 'Signature and date of the Supervisor'. The learned counsel argues that these circumstances establish that the petitioner was part of the Managerial Cadre and not a workman. - 13 - NC: 2025:KHC:11081 WP No. 25553 of 2014 15. Sri S.N. Murthy underscores that the petitioner has not denied the Performance Appraisal and Review as per Ex.M.82 or the refusal of the increments, and that the petitioner is categorical in admitting that he has been denied increment because of the appraisal of a poor performance during year 2005. The learned Senior Counsel also canvasses that a workman, unlike a managerial staff whose performance is appraised for the decision on the salary and emoluments to be paid, is paid wages as per the Standing Orders or the settlement and that petitioner admits that he is not a member of a Trade Union. 16. On the nature of the petitioner’s duties as an Executive - Stores, Sri S. N. Murthy submits that the documents produced and the petitioner's ocular evidence establish beyond doubt that he had control and supervision over the workmen, that until a certain period prior to his termination had used his - 14 - NC: 2025:KHC:11081 WP No. 25553 of 2014 powers to extract good works and that he was also in- charge of Stores ensuring proper maintenance of log book for receipt of raw materials and issue thereof for production and these circumstances establish, even on the scale of the dominant test, the petitioner is part of the Managerial Cadre. 17. The first set of circumstances that the Labour Court has considered is the unique privileges that the petitioner has admittedly received. The petitioner does not dispute that he was admitted to a canteen maintained for the Managerial Staff, that he has availed Pickup and Drop facilities, and that unlike the workmen he did not wear a uniform. The Labour Court has next considered that the petitioner has admitted that he has received leave applications as per Ex.M.11 to Ex.M.81 and he has signed as the supervisor. 18. Indeed, Sri V. S. Naik canvasses that the cross examination of the respondent's witness show - 15 - NC: 2025:KHC:11081 WP No. 25553 of 2014 that the petitioner has only received the applications for leave but leave is sanctioned by the Head of the Department. However, the Labour Court has rightly observed that the applications relate to the period between 2005 and 2007 and that he has processed those applications depending on the manpower available in his section for the final decision by the administrative unit based on the leave available to a particular workman. This consistent discharge of responsibilities, in this Court's considered view, when considered along with other circumstances would not be extraneous for the decision on whether the petitioner is a workman or part of the Managerial Cadre. 19. The crucial material on record is the Appraisal Form as per Ex.M.82. This appraisal includes the self appraisal signed by the petitioner. The petitioner, amongst his achievements, has listed that there were no untoward incidents or accidents in - 16 - NC: 2025:KHC:11081 WP No. 25553 of 2014 his department, that he had ensured no wastage of material, that he had exercised good control over the workmen and that he had extracted work from the lower manpower assigned to his department. The Reviewing Officer has also opined that the petitioner is able to get work done by the workmen, and on the areas that the petitioner must improve, the officer appraising has opined that the petitioner must improve upon his attendance, leadership qualities, communication skills and adopt change management. 20. This material indeed establishes that the petitioner's primary duty involved both administrative and disciplinary control over the workmen assigned to the department overseen by him, and thus the determinative test is answered in favour of the petitioner being part of the Managerial Cadre. As such, this Court must conclude that the Labour Court's impugned award does not suffer from any - 17 - NC: 2025:KHC:11081 WP No. 25553 of 2014 perversity or is rendered infirm because of the consideration of relevant circumstances. Hence, there cannot be interference, but this Court must observe that the respondent must pay the petitioner a sum of Rs.18,100/- which is offered in lieu of the one month's salary with interest at 6% per annum admitting to all statutory benefits as it remains undisputed that the petitioner has not received such amounts. Therefore, the following
Decision
ORDER [A] The petition is disposed of confirming the Labour Court's impugned Award dated 02.09.2013 [Annexure-K] but directing the respondent to pay to the petitioner a sum of Rs.18,100/- along with interest at 6% per annum and admit the petitioner to all statutory benefits including the gratuity that would be payable under the Payment of Gratuity Act, 1972. - 18 - NC: 2025:KHC:11081 WP No. 25553 of 2014 [B] The respondent is called upon to ensure that these amounts are paid to the petitioner, or the relevant papers in case they are necessary are processed within four [4] weeks from the date of receipt of a certified copy of this order. The petitioner is reserved with liberty to file a certified copy of this order within four [4] weeks from the date of receipt thereof. Sd/- (B M SHYAM PRASAD) JUDGE RB/SA