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Seraikella Glass Works Ltd. v/s 2nd Industrial Tribunals

    Matter Appeal No. 176 of 1992

    Decided On, 01 September 1992

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE PARITOSH KUMAR MUKHERJEE

    For the Appearing Parties: ------------



Judgment Text

PARITOSH KUMAR MUKHERJEE, J.


(1) THE present writ petition is directed against an order dated November 2, 1991, passed by the learned second Industrial Tribunal, whereby an application under Section 15 (2) (b) of the Industrial Disputes (Second Amendment) Act, 1980 filed by the respondent workman was allowed.


(2) BY the said order, the learned Tribunal, inter alia, held that "the employee" concerned was entitled to get interim relief from the date of dismissal and in view of the decision reported in EMP IR (V. 7) 1990 page 614 and in the facts of the present case, the learned Tribunal was inclined to grant "interim relief" to the employee concerned Sushil Kumar Dey from the date of dismissal, i. e. , from November 23, 1989.


(3) FURTHER, the learned Tribunal held that the employee concerned would get 50% of Rs. 2,005. 59 for the first three months from November 23, 1989 and thereafter i. e. , from February 23, 1990, he would get interim relief @75% of Rs. 2. 005. 59. The application was disposed of on contest with costs of Rs. 75/- to be paid to the concerned workman.


(4) REGARDING the validity of the domestic enquiry, the learned Tribunal fixed the next date of hearing on December 16, 1991. When, this writ petition was admitted by Kalyanmoy Ganguli, J, of this Court on March 20, 1992, his Lordship granted an unconditional interim order and thereby restrained the respondents from giving any effect or further effect to the impugned order till April 10, 1992, and it was further ordered if within that time the petitioner furnishes renewable Bank Guarantee on a nationalised bank to the tune of Rs. 10,000/- with the Registrar, Original Side of this Court, then the interim order was directed to be extended till the disposal of the application. It is not disputed by the parties that the said Bank guarantee has been furnished in favour of the Registrar, Original Side of this Court.


(5) MR. Prafulla Kumar Roy, learned Advocate, appearing on behalf of the company at the final hearing of the writ petition submitted that the learned Tribunal failed to consider the meaning and scope of the expressions "workmen", "supervisor" and "managerial" and "administrative Staff" under the provisions of Industrial Disputes Act, 1947.


(6) IT was also contended on behalf of the petitioner that the Tribunal failed to consider the admitted nature of job that the respondent employee used to perform. It was also contended that the learned Tribunal failed to consider that nowhere the said respondent employee stated in his evidence that he had to do the same job which the other workmen used to do under him.


(7) MR. Roy further contended that the learned Tribunal also failed to consider the nature of job being a question of fact was entitled to go by the admission of the respondent employee that he was a "supervisor" and his designation was that of a "supervisor" and he used to draw a salary of Rs. 2,005/- at the time of dismissal from service.


(8) IT was also submitted by Mr. Roy that the Tribunal failed to consider that in order to get "interim relief", under the provisions of Section 15 (2) (b) of the said Act, one has to prove his case that he (workman) is not a "supervisor" and his pay was not in excess of Rs. 1,600/- per month.


(9) MR. Roy further submitted that the learned Tribunal made confusion between the expression "supervisory function" and "managerial duties" as both of them are quite distinct and separate.


(10) IN support of his contention, Mr. Roy placed strong reliance on a single bench decision of Bombay High Court in the case of Srikant Vishnu Palwankar v. Presiding Officer of First Labour Court and Anr. reported 1992-II-LLJ-378.


(11) IN the said case, it has been held that since the employee has exercised some supervisory functions, the evidence showed that his main function was that of a qualified Printing Technologist, the employee had to examine the composed material of blocks received from the respective Departments for correctness and, if any mistake was found, they had to be returned to the respective Departments for necessary correction. In the said case it was contended that this was the predominant nature of the job of the employee and supervision, if any, was only incidental part thereof. Consequently the employee ought to have been held to be carrying out mainly technical work and, therefore, he ought to have been held to be a "workman" in the submission of the learned Advocate.


(12) IT has been held in the said case that in carrying out the main duty as "supervisor", he was required to do various jobs like assignment of work, allocation of jobs, indenting of materials required for his Department, recommendation of leave and work appraisal of the workmen working under him. It was only on this basis that the facts are capable of satisfactory logical explanation. Therefore, the Tribunal was unable to accept the argument of the learned Advocate for the petitioner that he was employed mainly in the capacity of a technical workman and incidentally was doing "supervisory duties".


(13) REFERRING to the cross-examination of the respondent employee, in the present case, Mr. Roy submitted that the said respondent admitted that he was working as a "supervisor" (Sorting and Packing) in the said company since 1967. He also admitted that he mentioned his designation as "supervisor" (Sorting and Packing) in the letter which has been marked as Exhibit "a".


(14) ACCORDING to Mr. Roy, the respondent employee also admitted that his salary was Rs. 1,900/- and something at the time of his suspension and the salary became Rs. 2,005/- at the time of dismissal froms service. He (workman) also admitted none of the employees of his department could leave the Department without his permission. Further, it has been admitted by the said employee that his duty was to place indent for the supply of the materials from the stores of the said company. Other than him there was no other person, who could submit such indent and his further duty was to allow overtime vouchers of the employees of his Department. The employee also admitted that he had participated in conference and/or observed the direction in the Department as "supervisor"


(15) MR. Roy submitted that in order to come within the definition of "workman" one has to come within the provisions of Section 2 (S) of the Industrial Disputes Act, 1947, which is set out hereinbelow:-


(16) "workman" means any persons (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical, sales promotion or clerical work for hire or reward whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment had led to that dispute, but does not include any such person;


(i) who is subject to the Army Act, 1950 (46 of 1950), of the Air Force Act, 1950 (45 of 1950), or the Navy Discipline Act, 1934 (34 of 1934), or (ii) who is employed mainly in a managerial or administrative capacity; or (iii) who is employed in the police service or as an officer or other employee of a prison; 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.


(17) ACCORDING to Mr. Roy, respondent employee Sushil Kumar Dey was not a "workman" within the meaning of Section 2 (S) of the Industrial Disputes Act and he was a supervisory staff and getting a salary in excess of Rs. 1,600/-per month, and, as such, he is not a "workman".


(18) MR. Pranab Kumar Chatterjee learned Advocate appearing on behalf of the respondent workman, submitted that there is no infirmity in the order passed by the learned Tribunal as admittedly the respondent employee is coming within the definition of "workman" within the provisions of Section 2 (S) of the said Act.


(19) MR. Chatterjee submitted that the learned Tribunal by the order dated November 2, 1991 arrived at the necessary conclusion after appraisal of the evidence that the employee concerned Sushil Kumar Dey is "a workman", within the meaning of Section 2 (S) of the said Act. The learned Tribunal further came to the conclusion that although the employee concerned was subsequently designated as a "supervisor" nonetheless he had "no managerial duty": to perform and that he had no power to take any disciplinary action against any employee who worked directly under him and he merely recommended for leave of the employees working under him and that he had no independent power to grant their leave. So, it must be said that the workman S. K. Dey is a workman and as he has been admittedly dismissed from his service, he is entitled to get interim relief, as prayed for.


(20) IN reply, however, Mr. Roy learned Advocate appearing for the company, submitted that the aforesaid conclusion of the Tribunal is not only erroneous but also the Tribunal committed an error on facts in assimilation of evidence, which was brought on record by way of cross-examination. Mr. Roy further submitted that he has misquoted the ruling referred to in the said impugned order in the facts of the present case and as such the impugned order passed on November 2, 1991 is liable to be set aside and the matter may be remanded back for passing appropriate award after reassessing the evidence as to whether the respondent employee is a "workman" within the meaning of Section 2 (s) of the Industrial Disputes Act.


(21) I have considered the rival submissions of both sides at length and I am prima facie of the view that the nature of

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the duties performed by the respondent employee is managerial and in carrying out the main duty as Supervisor and he was required to do various jobs like assignment of work, allocation of jobs, indenting of materials, recommendation of leave and work appraisal of the workman working under him and, more so, he is getting salary above Rs. 1,600/- and, as such, he cannot prima facie claim the benefit of "workman" within the meaning of Section 2 (s) of the said Act and also is not entitled to interim relief under Section 15 (2) (b) of the said Act. (22) ACCORDINGLY, this Court directs that the matter should be remanded back to the learned Tribunal for rehearing of the entire matter afresh and the learned Tribunal is directed to pass award accordingly. It is desired that the learned Tribunal should conclude the hearing and pass award as expeditiously as possible preferably within a period of six months from the communication of this order. The petitioner is discharged from Bank Guarantee, already furnished by order of this Court. The writ petition is allowed as indicated above. There will be no order as to costs.
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