Anand
Regional Co. Op Oil S. Union Ltd. Vs. Shaileshkumar Harshadbhai Shah [2006] Insc
478 (8 August 2006)
S.B.
Sinha & Dalveer Bhandari
(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:
-
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.
-
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.
-
The respondent
also threatened Shri Shreedharani by stating inter alia that 'if he does not
leave directly then they will show him the way'.
-
The respondent
crushed paper into ball and threw towards Shri Shreedharani.
-
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:
"Thus,
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:
"In
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].
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:
-
he had worked
for 18 years;
-
his presence was
not proved even by the Disciplinary Authority;
-
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—
-
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
-
who is employed
in the police service or as an officer or other employee of a prison; or
-
who is employed
mainly in a managerial or administrative capacity; or
-
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:
-
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.
-
There must exist
a relationship of employer and employee.
-
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" 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:
"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 Hai",
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." 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 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.
Back
