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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.