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PETITIONER: ARKAL GOVIND RAJ RAO

       Vs.

RESPONDENT: CIBA GEIGY OF INDIA LTD., BOMBAY

DATE OF JUDGMENT06/05/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J) KHALID, V. (J)

CITATION:  1985 AIR  985            1985 SCR  Supl. (1) 282  1985 SCC  (3) 371        1985 SCALE  (1)927

ACT:      Industrial Disputes Act 1947, Section 2(s.)- ’Workman’- Who is-Tests  for  determination-Ascertainment  of  primary, basic or dominant nature of duties.      Labour Laws:  Employee-Recruited  as  Stenographer-cum- Accountant- Promoted as Assistant-Designated ’Group Leader’- Whether employed in ’managerial’ or ’supervisory’ capacity.      Words &  Phrases: ’  Workman’-Meaning of-Section 2(s.)- Industrial Dispute ,Act 1947.

HEADNOTE:      The appellant  joined as  a Stenographer-cum-Accountant with the respondent company. Subsequently he was promoted as Assistant and  continued as  such till October 1972 when his services were  terminated, The  Deputy Commissioner,  Labour (Administration), referred  the dispute  to the Labour Court for adjudication. The respondent-employer contended that the appellant was not a workman under the Act.      Rejecting the  reference, the-Labour  court  held  that even though  the appellant  was doing  clerical work, he was also doing  supervisory and  administrative work  and  other work like  checking bank  reconciliation etc.  which was not clerical work  and, therefore,  he was  not a workman but in fact an officer of the Covenanted Contractual Staff Cadre.      The writ  petition filed by the appellant was dismissed in limine.      The appellant appealed to this Court.      Allowing the appeal. ^      HELD: 1. The appellant was a workman within the meaning of the  expression ‘workman’  as defined  in s.  2(s) of the Industrial Disputes  Act.  The  definition  shows  that  the person concerned  would not  cease to  be a  workman  if  he performs some supervisory duties but he must be a person who must be  engaged in a supervisory capacity. The Labour Court after rightly  holding that  primarily  the  duties  of  the appellant were  of a  clerical nature  misled itself into an erroneous conclusion  by drawing  an impermissible inference and recorded  a perverse  finding. The  award of  the Labour Court declaring the appellant not 283

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to be  a workman  is quashed  and set aside. The judgment of the High  Court also  quashed and  set aside  and the matter remanded to  the Labour  Court for  A disposal  according to law. [289 F; 286 H; 290 G-H]      2. The  test to  be employed  is what  was the primary, basic or  dominant nature  of duties  for which  the  person whose status  is under  enquiry was  employed. A  few  extra duties would hardly be relevant to determine his status. The words  like   ’managerial’  or   ’supervisory’  have  to  be understood in  their proper  connotation and  their mere use should not detract from the truth.                                                   [290 E-F1]      3. The  comparison between  an Assistant  and  a  Clerk would not  make the  Assistant  an  officer.  Difference  in salary is hardly decisive, nor the designation of a clerk by itself is  decisive. Focus  has to  be on  the nature of the duties performed  and in this behalf the Labour Court itself was of the opinion that primarily for all practical purposes the duties  performed by  the appellant  were of  a clerical nature. 1289 A-B]      4. Where  an employee  has multifarious  duties and the question is  raised whether he is a workman or not the Court must find  out what  are the primary and basic duties of the person concerned  and if he is incidentally asked to do some other work,  not necessarily  in tune with the basic duties, these additional  duties cannot  change  the  character  and status of the person concerned.                                               [285 H; 286 A]      In the  instant case,  the Labour  Court landed  itself into  an   erroneous  conclusion  by  drawing  impermissible inference from  the evidence  and over  looking the  primary requirement of  the principal  and subsidiary  duties of the appellant. On  appreciation of  evidence, the  Labour  Court itself found  that  there  is  not  much  dispute  that  the appellant was doing all the work narrated by the sub-Manager of the  Respondent-company and  most of  this work  was just clerical work.  It was  also observed  that all  the  duties performed by the appellant were clerical duties and that the appellant was  performing these  duties as a clerk, and that the duties  of the  appellant were more or less clerical and at best  it can  be said  that they  were  performed  by  an efficient and experienced clerk.                                                 [286 B; D-E]      5.  The  appellant  after  his  promotion  in  1966  as Assistant was  designated as  Group Leader. The Labour Court drew inference  from this fact that the work of Group Leader is undoubtedly mainly supervisory though he is also required to work  himself, and  in  view  thereof  the  duty  of  the appellant  became   primarily  supervisory.   No  doubt  the appellant was  working as  Group Leader  and therefore, over and above  his work  he also  supervised  the  work  of  the persons working  in his  group. It  is erroneous to draw the inference that  his duties  thus became  mainly supervisory. [286 F-H]      In the  instant  case,  the  evidence  shows  that  the appellant even as a Group Leader primarily continued to work and perform  the same  duties which  have been  found to  be clerical  but   alongwith  others   in  the  Group  he  also incidentally looked  after the  work of other members of the group who were 284 only two in number. It is, therefore, not possible to concur with the  inference A  drawn by the Labour Court contrary to the record  that functioning  as Group Leader would make the appellant a  person employed  in supervisory  capacity.  The

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work distribution  among three  persons of a clerical nature would not  cease to  be clerical because one of the three is asked to see that all the three of them performed the duties efficiently. The  reconciliation of bank statement is one of the most mechanical types of clerical work. [287 C-D; H]      M/s. Kirloskar  Brothers Ltd. v. Labour Court, (1) l9,6 L.I.C. 918  and S.K.  Verma v.  Mahesh Chandra  and Another, [1983] 3 SCR 799 and Ved Prakash Gupta v. Delton Cable India (P) Ltd., [1984] 2 SCR 569, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2638 of 1980.      From the  Judgment and  Order dated  30.1.1980  of  the Bombay High Court in Writ Petition No. 2853 of 1979.      N.B. Shetye,  R. Ramachandran  and Mukul Mudgal for the Appellant .      H.S. Parihar for the Respondent.      The Judgment of the Court was delivered by      DESAI, J. The appellant Mr. Arkal Govind Raj Rao joined  service  with M/s  Ciba Geigy  of India  Ltd. (employer for short)  as   Stenographer-cum-Accountant  with  effect  from January 18,  1956. On  January 1,  1966 he  was appointed as Assistant and  continued to render service in that post till his services  came to be terminated on October 10, 1972. The termination of  service led  to an  industrial dispute being raised  and   ultimately  the   Deputy  Commissioner  Labour (Administration). Bombay  made a  reference  to  the  Labour Court at Bombay for adjudicating upon the industrial dispute involving the  question of  the validity and legality of the Order of termination of service. The reference also required the Labour  Court to  enquire whether the appellant is to be re-instated with  full back  wages and  continued in service with effect from October 10, 1972.      Numerous preliminary  objections  were  raised  by  the employer, amongst them being one that the appellant is not a workman  within   the  meaning  of  the  expression  in  the Industrial Disputes Act, 1947 (Act for short).      Evidence was  led by  both  the  parties  and  numerous documents were placed on record. On appreciation of evidence the Labour 285 Court held  that even  though the  appellant was  doing some clerical  work,   he  was   also   doing   supervisory   and administrative work  and  A  other  work  of  checking  bank reconciliation  etc.   which  was   not  clerical  work  and therefore he  was not  a workman  within the  meaning of the expression in  the Act  but in fact he was an officer of the Covenanted Contractual  Staff Cadre.  Accordingly, an  award was made rejecting the reference.      The writ  petition filed by the appellant in the Bombay High Court  was dismissed  in limine.  Hence this  appeal by special leave.      Broadly accepting  the appreciation of evidence and the finding of  facts recorded  by the  trial court, could it be said that  the conclusion  reached by  drawing impermissible inference from the evidence would justify a finding that the appellant was  not a  workman  within  the  meaning  of  the expression in  the Act.  The expression ’workman’ is defined in Section 2(s) of the Act reads as under:      "Workman means  any person  (including  an  apprentice) employed in  any industry  to do  any skilled  or  unskilled manual, supervisory  technical or  clerical work for hire or

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reward, whether  the terms  of employment  be  expressed  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 person-      (i)  who is  subject to  the Army  Act, 1950  (XLVI  of           1950), or the Air Force Act, 1950 (XLV of 1950) or           the Navy (Discipline) Act 1934 (XXXIV of 1934); or      (ii) ...      (iii)...      (iv) who, being employed in a supervisory capacity draw           wages exceeding  five hundred  rupees  mensent  or           exercise, 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".      Where  an   employee  has  multifurious  duties  and  a question is  raised whether he is a workman or someone other than a workman 286 the Court  must find  out what  are the  primary  and  basic duties of  the A  person concerned and if he is incidentally asked to  do some other work, may not necessarily be in tune with the  basic duties these additional duties cannot change the character  and status  of the person concerned. In other words, the  dominant purpose  of employment  must  be  first taken into  consideration and  the gloss  of some additional duties must  be rejected  while determining  the status  and character of  the person. Appreciation of evidence by Labour Court cannot  be  faulted  but  it  landed  itself  into  an erroneous conclusion by drawing impermissible inference from the evidence  and overlooking the primary requirement of the principal and subsidiary duties of the appellant.      The Labour Court recapitulated the documentary evidence as also the oral evidence of Sitaram, the Sub-Manager in the Finance Department  of the Company examined on behalf of the employer. In  para 14  of the  award the  Court made  a very important observation  that, "there  is no much dispute that Shri Raj  Rao (appellant) was doing all the work narrated by Shri Sitaram.  Most of  this work,  in my  opinion, was just clerical work".  The Court  also referred  to  some  of  the admissions made  by Shri  Sitaram in  his  cross-examination which led the Court to observe that all the duties performed by the appellant were clerical duties and that the appellant was performing  these duties  as a  clerk.  The  Court  then concluded that  in general,  the  duties  of  the  appellant mentioned by Shri Sitaram were more or less clerical and at- best it can be said that they were performed by an efficient and experienced clerk.      The Labour  Court then  took note  of the  fact that in 1966 appellant  was promoted  as Assistant  and that  he was designated as  Group Leader.  Ex. 16/6  was referred  to  as specifying the  duties of  the Group Leader of Group II. The Court concluded  that the aforementioned document would show that the  appellant was  a Group Leader and that he accepted that position  by putting  his initials on the document. The inference drawn  by the Court from this document is that the work of  Group  Leader  is  undoubtedly  mainly  supervisory though he  is also required to work himself. However, in the view of  the Labour  Court at  this stage  the duty  of  the appellant became  primarily supervisory.  While it  is  true that  the   appellant  was  working  as  Group  Leader  and, therefore, over and above his work be supervised the work of

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persons working  in his  group, it is erroneous also to draw the inference that his duties became mainly supervisory. 287 The definition  of  the  expression  workman  herein  before extracted clearly  shows that the person concerned would not cease to be a workman if he performs some supervisory duties but he must be a person who must be engaged in a supervisory capacity. Even  as a  Group Leader of Group II, the evidence produced would  show that primarily he continued to work and perform the same duties which have been found to be clerical but along  with others  in the  group he  also  incidentally looked after the work of other members of the group who were only two in number. It is, therefore, not possible to concur with the inference drawn by the Labour Court contrary to the record that  while functioning  as Group Leader of Group II, even though  appellant was  performing his clerical duty the incidental supervisory  duties performed  by him  would make the appellant a person employed in supervisory capacity. Let it  be  recalled  that  in  Group  II  over  and  above  the appellant, there  were only  two other persons, namely, Shri Swami and  Shri Sawant.  The distinction  drawn between  the duties performed  by  Swami  and  Sawant  and  that  of  the appellant was  that as  Group Leader  the appellant  was  to ensure That  the work  allotted to  the Group  is  completed within the scheduled time. In other words, work distribution among three  persons of a clerical nature would not cease to be clerical  because one  of the  three is asked to see that all the  three of  them performed  the duties efficiently to complete the task. The Labour Court completely misled itself and observed  that since  then the  duties of  the appellant became supervisory.      The Labour  Court then  proceeded  to  examine  another circumstance to  determine the  status of  the appellant. It was submitted  on behalf  of the employer that the appellant had also  to do  the work  of  preparing bank reconciliation statements. It  was  observed  that  the  reconciliation  of statements cannot  be  regarded  as  skilled  or  unskilled, manual  or   clerical  but   one   requiring   creativeness, imagination and  application of  mind and therefore, any one doing such  work would  not  be  a  workman.  This  approach betrays lack  of  understanding  of  what  constitutes  bank reconciliation statements. When a party opens an account, it goes on making credits and withdrawals. The bank maintains a recurring account.  The party  opening the  account for  its continuous watch may open a corresponding account on its own books. In  order to  see that there are no errors in credits and  withdrawals   and  the  balance  is  drawn  at  regular intervals, reconciliation of figures in the accounts of both the  parties   is  undertaken.  This  is  one  of  the  most mechanical types of 288 clerical work.  However, the Labour Court fell into an error when A  after taking note of the fact that the appellant was asked to  prepare banks  reconciliation  statements,  looked into the  decision in  M/s Kirloskar Brothers Ltd. v. Labour Court,(l) wherein  preparation of  budgetary statements  was regarded as  work requiring  creativeness,  and  the  Labour Court  after   referring  to   that  judgment  of  budgetary statement applied it to the case of a man who had nothing to do with preparation of budgetary statements but merely to do the  wholly   mechanical  work   of  bank’s   reconciliation statements and  recorded a  wholly perverse conclusion. This is a  serious error  apparent on  the  face  of  the  record committed by  the Labour  Court  which  has  influenced  our thinking.

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    The Labour  Court in  para 25  of its decision observed that there are numerous documents which positively show that the appellant  was performing supervisory and administrative duties. A number of letters were produced by the employer to show that  the appellant  was doing some administrative work such as putting up indent for printed stationery which bears the endorsement  that  the  appellant  requested  his  three colleagues Shri  Sawant, Shri  Khedhar and  Shri Pradhan  to give their  requirements to  him. If the department collects the details  from every  employee working  in the department and one  of them  undertakes the  same, it  hardly makes any difference, in  the status  and character  of the  employee. There are  other letters  especially Ex.  16/33 to  16/38 by which the  appellant had  directed other clerks to take note of certain  documents and report them to him. This cannot be said to  be either managerial or supervisory function but in fact clerical  in as  much as  he as  part of his duty asked other clerks  to take  note of  certain circulars and return the   documents to  him because  that was  part of his duty. Firm reliance  appears to  have been  placed on  letter  Ex. 16/31 which  purports to be an extract of the minutes of the meeting of  Board of  Directors  dated  June  2,  1970,  The appellant made  an endorsement on this extract and requested other colleagues  to take note of the same. This is the work of the  clerk attached  to  the  department  connected  with meeting of  the board. There are similar other documents but in our  opinion they  would hardly  support the  case of the employer at all.      It was  next urged  before the  Labour Court  that  the benefit received  by  the  officers  and  clerks  materially differ. The Labour (1) 1976 L.l.C.918. 289 Court has  drawn up  a chart  in para  30 of  its award. The chart has left us guessing and we fail to appreciate how the comparison between  an Assistant  and a Clerk would make the assistant  an   officer.  Difference  in  salary  is  hardly decisive, nor  the designation  of  a  clerk  by  itself  is decisive. Focus  has to  be on  the  nature  of  the  duties performed and  in this behalf the Labour Court itself was of the opinion  that primarily  for all  practical purposes the duties performed by the appellant were of a clerical nature.      Lastly it  was submitted that the appellant belonged to what is  called  Covenantal  Contractual  Staff  Cadre.  The expression ’covenated’  has  an  imperial  flavour  such  as covenanted civil  service. This  small company seems to have adopted a  nomenclature  which  was  prestigious  under  the British Rule. Clerks and Assistants could hardly be elevated to  the  rank  of  officer  by  being  miscalled  covenanted contractual staff  cadre. These  high-sounding nomenclatures are adopted  not only to inflate the ego of the employer but primarily for  avoiding the  application of  the  Act.  They apart from  being mis-  leading are  not in  tune with  free India’s Constitution culture. We remain unimpressed by these high sounding labels.      Having examined  in meticulous details the award of the Labour Court  we  are  satisfied  that  the  Tribunal  after rightly holding  that primarily  the duties of the appellant are of  a clerical  nature misled  itself into  an erroneous conclusion  by   drawing  an   impermissible  inference  and recorded a  finding which we regret to style as perverse. In fact, the  Labour Court  ignored the  correct perspective in evaluating the  evidence viz.,  that when  primary or  basic duties of  a person  are shown to be clerical but some stray assignments are  made to  create confusion, the gloss has to

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be removed  to pursue  the reality  and that  is all what we have done.  The appellant was undoubtedly a workman with the meaning of the expression of the Act.      Before we  conclude we  must refer  to two decisions on which reliance was placed on behalf of the appellant. In S.K Verma v.  Mahesh Chandra and Another(l), this Court examined whether a Development Officer employed by the Life Insurance Corporation  is   a  workman   within  the  meaning  of  the expression in  the Act.  After referring to the multifarious duties  assigned   to  a  Development  Officer,  this  Court concluded that the principal duty of the appellant in that (1) [1983] 3 S.C.R. 799. 290 case appeared  to be to organise and develop the business of the   Corporation in  an area  allotted to  him and for that purpose to  recruit active  and reliable agents and to train them to  canvass new  business and to render best service to policy-holders. Even  though  the  Development  Officer  had power to  recruit agents  and supervise  their work  yet his duties were  held to  be primarily  clerical. The contention that it  was administrative  or managerial was rejected. The case before  us is  much stronger than that of a Development Officer.      In Ved  Prakash Gupta v. Delton Cable India (P) Ltd.(’) it was  contended that the appellant was not a workman. This Court after  taking note  of the  fact that  the work of the appellant consisted  of looking  after the  security of  the factory and  its property by deputing watchmen working under him to  work at  the factory  gate or  sending them to watch towers or around the factory or to accompany visitors to the factory and  making entries  in the  visitors’  register  as regards the  visitors and  in  the  concerned  registers  as regards materials  entering or  going out of the premises of the factory held that it would not make the nature of duties either  managerial  or  supervisory.  What  to  say  of  the appellant in the present appeal who is an Assistant.      The test  that one  must employ  in such a case is what was the  primary, basic  or dominant  nature of  duties  for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The  words like managerial or supervisory have to be understood in  their proper  connotation and  their mere use should not detract from the truth.      Accordingly, the appeal succeeds and is allowed and the award of  the Labour Court declaring the appellant not to be a workman is quashed and set aside. The judgment of the High Court is  also quashed and set aside. The matter is remanded to the  Labour Court  for disposal  according  to  law.  The Labour Court  must dispose  of the matter within a period of three months  from today and it shall not entertain any more preliminary objections  even if  raised, on  behalf  of  the employer. (1) [1984] S.C.C. 569. 291      The employer  shall pay  salary for  a  period  of  six months at  the rate  of last  pay drawn by the appellant and the acceptance  of it  A would  be without  prejudice to any contention on  either side.  The respondent,  employer shall also pay  the cost  of the  appellant which is quantified at Rs. 3,000. A P.J                                        Appeal allowed. 292