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PETITIONER: VED PRAKASH GUPTA

       Vs.

RESPONDENT: DELTON CABLE INDIA (P) LTD.

DATE OF JUDGMENT08/03/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1984 AIR  914            1984 SCR  (3) 169  1984 SCC  (2) 569        1984 SCALE  (1)474  CITATOR INFO :  F          1985 SC 985  (15)  RF         1988 SC 329  (8)

ACT:      Industrial  Disputes  Act,  1947  S.2(s)-Definition  of Workman-Scope of-Covers  an employee  whose substantial duty is of a security inspector at the gate of factory premises.      Industrial  Disputes  Act,  1947-S.2(ra)-Definition  of unfair labour  practice-Scope of-Dimissal  on flimsy ground- Whether amounts  to victimization  or unfair labour practice by management.      Natural  Justice-Principle.   Of-Enquiry  officer   not summoning necessary  witnesses-Whether findings  of  enquiry officer perverse.

HEADNOTE:      The appellant,  an  employee  of  the  respondent,  was charged for  abusing some  fellow worker  or officer  of the management  within  the  premises  of  the  factory  of  the respondent. In  domestic enquiry  the Enquiry  officer found the appellant guilty of the charge. The management dismissed the appellant.  On a  reference being made under s. 10(i)(c) of the  Industrial Disputes Act, 1947  the Labour Court held on preliminary  issue that  the reference  was  bad  in  law because the appellant was not a workman under s. 2(s) of the Act. The  Labour Court’s  findings were  challenged  by  the appellant in a writ petition which was dismissed by the High Court in  limine On  a special leave petition being filed by the appellant  from which  this appeal  arises,  this  Court directed the  Labour Court to try the other issues before it on the  basis that  the appellant  was a workman. The Labour Court held  that the  finding of  the  Inquiry  officer  was perverse; the  punishment of  dismissal was disproportionate to the  gravity of the charge and the appellant was entitled to reinstatement  with full  back wages  and  continuity  of service. The  management filed  a writ  petition in the High Court challenging  the findings  of the  Labour Court.  This writ petition was transferred to this Court.      Allowing the appeal and dismissing the writ petition, ^      HELD:  A   perusal  of  the  evidence  shows  that  the

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substantial part  of the  work of the appellant consisted of looking after  the security  of the factory and its property by deputing  the 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 material entering or, going  out of the premises of the factory. The appellant could never  appoint or  dismiss any  workman or  order  any enquiry against any workman. In these circumstances 170 it is  held that  the substantial  duty of the appellant was only that of a Security Inspector at the gate of the factory premises and  that it was neither managerial nor supervisory in nature  in the  sense in which those terms are understood in industrial  law. Therefore  he clearly  falls within  the definition of  workman under  s.2(s)  of  the  Act  and  the reference of  the dispute  under s.  10(i)(c) of  the Act is valid in law. [177B-C, E-G]      It is  seen from  the judgment of the Labour Court that though the appellant had produced before the Enquiry officer 5 sheets  of papers with the signatures of about 100 workmen of  the  factory  in  support  of  the  statement  that  the appellant had  not abused  anyone in  the factory during the course of  his service and the management had produced Exts. M-6, a list of 90 persons before the Enquiry officer, he had not called  any of  those persons  to  ascertain  the  truth regarding the  alleged abuse  by the  appellant. It  is also seen  from  the  judgment  of  the  Labour  Court  that  the appellant was not given a list of the management’s witnesses before the  commencement of  the domestic  enquiry. In these circumstances, the  conclusion of  the Labour Court that the Enquiry officer  had not  acted properly  in the proceedings and that  he had not given full opportunity to the appellant as required  by law  does not  call  for  any  interference. [178C-E]      The punishment  awarded to  the appellant is shockingly disproportionate regard  being  had  to  the  charge  framed against him.  No responsible  employer would  ever impose in like  circumstances  the  punishment  of  dismissal  to  the employee, and  victimization or unfair labour practice could well be  inferred from  the conduct  of  the  management  in awarding the  extreme punishment  of dismissal  for a flimsy charge of  abuse of some worker or officer of the management by the appellant within the premises of the factory.[178G-H, 179A]      Therefore termination  of the  appellant’s  service  is invalid and unsustainable in law. [179A]      Llyods Bank  Ltd. v.  Panna Lal  Gupta &  others (1961) LLJ. 18  and Construction  and Engineering  Company Ltd.  v. Their Workmen (1965) LLJ. 462, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1673 of 1982.      Appeal by  Special leave  from the  Judgment and  order dated the  11th January, 1982 of the Punjab and Haryana High Court in Civil Writ Petition No. 26 of 1982.      O.P. Malhotra,  and N.S. Das Bahl and Pawan K. Bahl for the Appellant.      Shanti Bhushan and V.P. Chaudhary for the Respondent.      The Judgment of the Court was delivered by      VARADARAJAN, J.  This civil  appeal by special leave is

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directed against  the judgment  delivered  by  the  Division Bench of the Punjab 171 & Haryana  High Court on 11.1.1982 dismissing in limine Writ Petition No.  26  of  1982  which  had  been  filed  by  the appellant Ved  Prakash Gupta.  The appellant was an employee of the  first respondent  M/s. Delton  Cable India  (P) Ltd. Faridabad, Haryana.  He was  given  a  charge-sheet  by  the management  on   5.8.1979  and  dismissed  from  service  on 13.9.1979 after  having been  found guilty  of the charge in the domestic  enquiry conducted  by the  Enquiry officer who has been examined as one of the witnesses on the side of the management before  the Labour  Court at a later stage. There was a  reference of the dispute arising out of the dismissal of the appellant to the Labour Court, Faridabad in Reference No. 143  of 1980  under s.  10 (i)  (c)  of  the  Industrial Disputes Act,  hereinafter referred  to as  the  ’Act.’  The Labour Court framed the following issues.      (i)  Whether the claimant Shri Ved Prakash Gupta was in           the position  of a  workman under  the  Industrial           Disputes Act? If so, to what effect?      (ii) Whether the reference is bad in law in view of the           objections raised in the written statement? If so,           to what effect?     (iii) Whether proper and valid domestic enquiry has been           .. conducted? If so, to what effect?      (iv) Whether  the termination  of the  service  of  the           workman is proper, justified and in order? If not,           to what relief is he entitled?      Issues 1  and 2 were tried as preliminary issues by the Labour Court.  The Labour Court held on issue no. 1 that the appellant is  not  a  workman  within  the  meaning  of  the definition of  workman contained  in s.  2(s)  of  the  Act. Consequently, it was held that the reference is bad in law i n the  light of  the objections  raised by the management in the written  statement. The Labour Court held that there was no need to consider the other two issues and passed an award against the  appellant. It  was against  that award that the appellant filed the writ petition which was dismissed by the Division Bench  of the  High Court  in limine  on 11.1.]982. This Court  granted special  leave  to  appeal  against  the judgment of  the High  Court and  later directed  the Labour Court to  try  the  other  issues  on  the  basis  that  the appellant is  a workman  as per  the Act.  The Labour  Court accordingly tried  the other two issues and held that though the domestic enquiry 172 was fair  and proper  the finding of the enquiry officer was perverse. The Labour Court has observed:           "The Enquiry  officer should  have given  findings      according to  the evidence  before him  in the  enquiry      proceeding. He  has neglected  M-4 and M-6 while giving      the findings  in the  enquiry. He also failed to summon      the necessary witnesses and rejected the request of the      workman for challenging those witnesses."      The Labour Court found that the punishment of dismissal awarded to the appellant was disproportionate to the gravity of the  charge framed against him and that he is entitled to reinstatement  with   full  back  wages  and  continuity  of service.      The management  filed Writ Position No. 4567 of 1982 in the High Court against the order of the Labour Court holding that the  finding of  the Enquiry  officer was  perverse and that the  appellant is  entitled to  reinstatement with full back wages  and continuity of service. The writ petition has

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been withdrawn  to this  Court by order dated 9.7.1983 to be heard along  with the  civil appeal.  This is  how the civil appeal and Writ petition have come up before us.      Arguments were advanced before us by Mr. O. P. Malhotra appearing  for   the  appellant  and  Mr.  V.  P.  Choudhary appearing for  management on two points viz. (1) whether the appellant was a workmen at the relevant time and (2) whether his dismissal is valid in law      The charge framed against the appellant was as follows:           "You were  on duty on 31.7. 1979 and 1.8.1979 from      8 a.m. to 4 p.m. It was reported against you as under:           On 31.7.1979  a person  from  M/s.  Gurumukh  Dass      (building material  supplier) came  to  IMI  department      with two  copies of challan No. 105 dated 15.7.1979 for      obtaining the  signature of  the  person  concerned  in      token of having received 2000 bricks. The copies of the      challan were  having the gate entry. Shri Durg Singh on      instructions of  Mr. S.K.  Bagga, junior Engineer, went      to the gate for confirming whether the bricks have been      received in the factory premises as per the challan. It      was found that the gate entry for the 173      supply of  2000 bricks as per the challan aforesaid had      been A  cancelled ill  the gate register. You, however,      took the challan (both copies) from Shri Durg Singh and      cancelled the  gate entry from the challan and returned      both the copies to the person of M/s. Gurumukh Dass.           That on  1.8.1979 as  per the  instructions of IMI      department  one   Mr.  Hira  Lal,  the  worker  of  IMI      department was  sent to  the gate  office in connection      with a challan of a water pump. As the worker i.e. said      Mr. Hira  Lal did  not come  back to IMI department for      quite some  time Mr. S.K. Bagga, Junior Engineer of IMI      department personally went to the gate office. He (S.K.      Bagga) apprised  Mr. Deep Chand Senior Security officer      of the  irresponsible manner in which you delivered the      challan to  the person of M/s. Gurumukh Dass instead of      to IMI department. When Mr. Deep Chand further verified      this fact  from you   showed  ignorance and demanded to      know the  name of  the person  who had  said  so.  When      informed that it was Durg Singh you without any . rhyme      and reason  or provocation  abused Shri Durg Singh in a      filthy manner  saying (translated  in English as I fuck      the mother  of Durg Singh; bring him). You were advised      that  being   a  responsible   employee  and  that  too      belonging to  the security  department you  should  not      abuse any  employee but you continued in hot temper and      demanded Mr.  Durg Singh  to  be  called  in  the  gate      office. When  Shri Durg  Singh was  brought    in  your      presence he  once again  confirmed and  reiterated that      you had  given  the  challan  to  the  person  of  M/s,      Gurumukh Dass  you lost  all your  senses  and  started      abusing Shri  S.K. Bagga  left and  right in  a filthy,      derogatory and  abusive manner. You said (translated in      English as  you should  try hard  to  your  gandh;  you      cannot do anything wrong to me. You may go to Ram Kumar      or you  may go  to Vijay  Kumar). The  above conduct of      yours is  gross mis  conduct as you have lost the basic      courtesy which  you were  supposed  to  extend  to  the      employees as  a  responsible  member  of  the  security      staff. The  charges if proved will result in total loss      of confidence in you."      The two  questions arising for our consideration in the civil appeal and writ petition are:      (i)   whether the  appellant was  a workman  within the

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         meaning of s. 2 (s) of the Act ?; and 174      (ii) whether the termination of the appellant’s service           is proper ?      On the  first question  there is  evidence of  only the appellant examined  as WW-1 on his side and of the Personnel Manager examined  as MW-1 on the side of the management. The evidence WW-l  shows that  he was originally- recruited as a clerk on  a salary  of Rs. 160/- per mensem. It was admitted by MW-1  that at  the time of the termination of his service WW-1 was drawing total emoluments of Rs. 581/- per mensem as Charge man  security equivalent  to a  security Inspector as stated in  the appellant’s  claim statement.  He was working under the  Security  officer  and  various  other  heads  of departments of  the management.  He has deposed that he used to perform  the duty  of a  Chowkidar whenever  one left the place temporarily  for taking  tea etc.  He has also deposed that he  used to accompany accounts branch people as a guard whenever they  carried money.  He has  stated  that  he  was ordered to  fill up leave application forms of other workmen and counter-sign  them before  they  were  approved  by  the Security officer.  It has been elicited from him that he has filled up  duty registers  of workmen  and that  some  small store items  like torch-cells  were issued  from the  stores under his signatures. It is seen from his evidence that such store  items   could  be  got  from  the  stores  under  the signatures of  even watchmen.  On the  other hand,  MW-1 has stated in  his evidence  that Exts. M-l to M-7 are copies-of leave applications  of  workmen  containing  the  appellants signatures  and   that  Exts.  M-50  and  M-51  bearing  the appellant’s signatures  are identity  cards  issued  by  the management to  workmen. He  has  stated  that  the  Security Inspector is  provided with  a chair  and a  table and three telephones one  of them  an intercom, one connected with the factory and  the third  connected with  the exchange  of the telephone department  and that  the appellant was an officer of the  first rank  in the respondent’s factory. There is no doubt whatsoever  that MW-1  is  exaggerating  the  position which the appellant was holding in the respondent’s factory. He has  admitted that  the  telephone  is  provided  in  the Security  Inspector’s  room  at  the  gate  of  the  factory premises only  to pass  on immediate  information  to  other places from the gate of the factory. The telephones provided in the  Security Inspector’s room at the gate of the factory premises are  not intended  for the  Security  Inspector  to carry on  any managerial  function. MW-1 has admitted in his evidence that  the Security  Inspector could  not appoint or dismiss or  even take  any disciplinary  action against  any workman  of  the  establishment.  He  has  stated  that  the Security Inspector has control 175 Over 5  watchmen, drivers,  Rickhaw-pullars and  sweepers-16 persons   in all  and is  in overall  charge of  the factory during the  first and  third shifts  which cover  the period from 12 mid-night to 8 a.m. while the important second shift is from  8 a.m.  to 5 p.m. According to the evidence of MW-1 the Security  Inspector allots  duties  to  persons  working under him  by way of retaining them at the factory’s gate or sending them  to  watch-towers  or  for  moving  around  the factory or  accompanying visitors  to the  factory. He could order his  subordinates to  come for overtime duty, sanction leave for  them and  recommend for  advances and  for  their promotion. He could issue identity cards like Exts. M-50 and M-51 to  workmen and  draw small  items of  stores and issue them to  the  security  staff.  He  has  admitted  that  the

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Security Inspector  has writing  work  for  only  10  to  30 minutes in  the second  shift and  almost no writing work at all in  - the  first and  third shifts  and that the writing work consists  of entering  the names  of  visitors  in  the visitors’ register  and making  entries in  respect  of  in- coming and out-going materials in the concerned registers. D      S. 2(s) of the Act describes a workman and reads:           "workman’ means  any person (including 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 purpose      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 176           (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 duties attached to the office or by reason of      the  powers  vested  in  him,  functions  mainly  of  a      managerial nature."      The respondent-management  can at best contend that the appellant would  fall under s. 2(s) (iii). That has been its attempt before  the Labour Court and also in this Court. The management’s endeavour  is to  show that  the appellant  who admittedly was  drawing total  emoluments of  only Rs. 581/- per mensem at the relevant time was employed in a managerial or administrative  capacity and  was therefore not a workman who could raise a dispute under the Act.      This Court  has stated in Llyods Bank Ltd. v. Panna Lal Gupta and  others that  though it would be legitimate to say that the  work done in the audit department is important for the proper and efficient functioning of the bank it would be idle to  elevate that  work to  the status  of officers  who supervise the  work of  everybody concerned  with the bank’s establishment. It  would  be  useful  to  remember  in  this connection what  this Court  had stated in Hind Construction and Engineering Company Ltd. v. Their workmen. It is this:           "The tribunal’s  Power has  been  stated  in  this      Court in  a large number of cases and it has been ruled      that the  tribunal can only interfere if the conduct of      the employer  shows lack of bona fides or victimization      of employee or employees or unfair labour practice. The      tribunal may  in a  strong case  interfere with a basic      error on  a point  of fact or a perverse finding but it      cannot substitute its own appraisal of the evidence for      that of  the officer  conducting the  domestic  enquiry      though it may interfere where the principles of natural      justice or  fair play  have not  been followed or where      the enquiry  is so  perverted in  its procedure  as  to      amount to  no enquiry  at all..  The  tribunal  is  not      required to  consider the  propriety or adequacy of the      punishment or  whether it  is excessive  or too severe.      But where the punishment is shockingly disproportionate

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    regard being had to the 177      particular conduct and the past record or is such as no      reasonable  employer   would  ever   impose  in-   like      circumstances, the tribunal may treat the imposition of      such punishment  as  itself  showing  victimization  or      unfair labour practice."      A perusal  of the  evidence of  WW-l and MW-1 regarding the nature  of the  duties performed  by the appellant shows that the  substantial part  of the  work  of  the  appellant consisted of  looking after  the security of the factory and its property  by deputing  the 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. It must be  noted that  MW-1 has  admitted in his evidence that there is  nothing in  writing to  show what duties are to be carried out by the appellant. Placed in such a situation the appellant might  have been doing other items of work such as signing identity  cards of workmen, issuing some small items of stores like torch-cells etc. to his subordinate watchmen, which can  be got  from the stores even under the signatures of watchman  and  filling  up  application  forms  of  other workmen and  counter-signing them  or recommending  advances and loans or for promotion of his subordinates. It must also be remembered  that the evidence of both WW-1 and MW-1 shows that the  appellant  could  never  appoint  or  dismiss  any workman or  order any  enquiry against any workman. In these circumstances we  hold that  the  substantial  duty  of  the appellant was  only that of a Security Inspector at the gate of the  factory premises and that it was neither. managerial nor supervisory  in nature in the sense in which those terms are understood  in industrial  law.  In  the  light  of  the evidence p  and the  legal position referred to above we are of the opinion that the finding of the Labour Court that the appellant is  not a workman within the meaning of s. 2(s) of the Act  is perverse  and could  not be  supported.  On  the evidence available  on record  we hold  that  the  appellant clearly falls  within the definition of a workman in s. 2(s) of the  Act and that the reference of the dispute under s.10 (i) (c) of the Act is valid in law.      The finding  of the  Labour Court  that the enquiry was fair and  proper in  the light  of its  own finding that the enquiry officer failed to summon the necessary witnesses and rejected the  request of  the appellant  for challenging the witnesses could  not be  stated to be correct. On the merits some witnesses  were examined  on the side of the management before the Labour Court and they are S.K. 178 Bagga, MW-2,  Hira Lal,  MW-3, Deep  Chand, MW-4  and  Laxmi Chand, MW-5  an Accountant  of M/s.  Gurumukh Dass, MW-2 has deposed about the appellant abusing Durg Singh who according to the  appellant was  the Secretary of a Labour Union while the appellant  and others  were trying to canvass membership for a  rival trade  union. MW-3  and 4  are stated  to  have corroborated  the   evidence  of  MW-2.  MW-5  is  the  only independent witness  examined on the side of the management. It is seen from the judgment of the Labour Court relating to the merits  of the  case that MW-5 who has deposed about the challans Exts.  M-7 and  M-8 having  been  returned  to  the person who  accompanied him  from the maintenance department had not  supported the  management that the appellant abused Durg Singh  or any  other person  within the premises of the

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factory. It  is also  seen from  the judgment  of the Labour Court that  though the  appellant had  produced  before  the Enquiry officer  5 sheets  of papers  with the signatures of about 100 workmen of the factory in support of the statement that the  appellant had  not abused  anyone in  the  factory during the  course of  his service  and the  management  had produced Exts.  M-6, a list of 90 persons before the Enquiry officer, he had not called any of those persons to ascertain the truth regarding the alleged abuse of Durg Singh and S.K. Bagga by the appellant. It is also seen from the judgment of the Labour  Court that the appellant has not given a list of the management’s  witnesses before  the commencement  of the domestic enquiry.  In these  circumstances, we  are  of  the opinion that  the conclusion  of the  Labour Court  that the Enquiry officer  had not  acted properly  in the proceedings and that  he had not given full opportunity to the appellant as required  by law  does not call for any interference. The charge levelled  against the  appellant is not a serious one and it  is not  known-how the  charge even  if proved  would result in  any much  less total  loss of  confidence of  the management in  the appellant as the management would have it in the  charge. It was argued in the Labour Court that there was no  previous adverse remark against the appellant. There is nothing  record to  show that any previous adverse remark against the  appellant had  been taken into consideration by the management for awarding the extreme penalty of dismissal from service  to the appellant even if he had in fact abused in filthy  language  Durg  Singh  and  S.K.  Bagga.  We  are therefore of  the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge  framed against  him. We  are also of the opinion that no  responsible employer  would  ever  impose  in  like circumstances the  punishment of  dismissal to  the employee and that  victimization or unfair labour practice could well be inferred from the conduct of the management in 179 awarding the  extreme punishment  of dismissal  for a flimsy charge  of  A  abuse  of  some  worker  or  officer  of  the management by  the appellant  within  the  premises  of  the factory. We  therefore hold  that  the  termination  of  the appellant’s service is invalid and unsustainable in law, and that he  is entitled  to reinstatement  with full back wages and other  benefits including  continuity  of  service.  The appeal is  allowed accordingly  with costs quantified at Rs. 1,000. The writ petition is dismissed without costs. H.S.K.                                       Appeal allowed. 180