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Marshal Braganza Vs. S.R. Samant, Presiding Officer, First Labour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMisc. Petition No. 47 of 1972
Judge
Reported in(1975)IILLJ189Bom
ActsIndustrial Disputes Act, 1947 - Sections 2 and 33C(2)
AppellantMarshal Braganza
RespondentS.R. Samant, Presiding Officer, First Labour Court and anr.
Excerpt:
.....whether employee employed to do skilled, unskilled, technical or clerical work - execution of work of cameraman involves special technical knowledge - held, petitioner was workman under section 2 (s). - - another helpful illustration given by him of the contrast between the two types of cases was in the following words :if one finds a man employed because he has the artistic faculties which will enable him to produce something wanted in the shape of a creation of his own, then obviously although it involves a good deal of manual labour, he is employed in order that the employer may get the benefit of his creative faculty. according to the petitioner, he had worked as director of photography in 10 pictures of the 2nd respondent, and if a picture was adjudged best, an award was..........it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. if the work done by an employee is not of such a nature, he would not be a workman, .......' their lordships further observed thus : 'there is a clear distinction between technical work and manual work. similarly, there is a distinction between employments which are substantially for manual duties, and employments where the principal duties are supervisory or other type, though incidentally involving some manual work. even though the law in india is different from that in england, the views expressed by branson, j., in appeal of gardner : in re mascheck : in re tyrrell, [1958] 1 all e.r. 20, are helpful, because, there also, the nature of work had to.....
Judgment:

1. In this writ petition under Art. 226 of the Constitution of India, the petitioner seeks to quash the order dated 29th March, 1971 passed by the learned Presiding Officer, 1st Labour Court, Bombay, in Application (IDA) No. 538 of 1963.

2. The facts giving rise to the dispute are that the petitioner was employed by the 2nd respondent, Filmistan Private Limited in the year 1943. He was working mainly, according to the petitioner, as a cameraman on a salary of Rs. 1,150. By a notice dated 30th June, 1960, the 2nd respondent retrenched the petitioner with effect from 1st July, 1960. The petitioner had put in 17 completed years of service with the 2nd respondent. In these circumstances, the petitioner filed an application on 12th March, 1963 before the Labour Court under S. 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), seeking to recover from the 2nd respondent a sum of Rs. 15,525 by way of retrenchment compensation, bonus, earned wages and leave wages. The 2nd respondent, by its written-statement, raised various contentions and one of the contentions was that the petitioner was not a workman within the definition of the word 'workman' given in S. 2(s) of the Act. The learned Presiding Officer, 1st Labour Court, - the 1st responding before me - confined himself to the issue as to whether the petitioner was a workman or not within the said definition and proceeded to decide that issue alone. In this connection, the petitioner made an affidavit dated 14th November, 1964 and on the basis of this affidavit he was cross-examined on behalf of the 2nd respondent. On behalf of the 2nd respondent an affidavit was made, but ultimately the deponent was not available for cross-examination and in the circumstances, it appears that Shri Tolaram Ram Kumar Jalan, the Director of the 2nd respondent's company, gave evidence before the 1st respondent. On consideration of the material on record, the 1st respondent came to the conclusion that there was no sufficient evidence to show as to whether the petitioner was doing any supervisory work. There was also no evidence to show that the petitioner was employed in a managerial or administrative capacity. The 1st respondent took the view that photography is an art and the work of the petitioner can be compared with that of an artist. In taking this view, it appears that the 1st respondent was guided by the observation in the decision reported in Advertising Corporation of India, Calcutta v. Barendra Chandra Nag and others, Labour Appeal Cases 1955, page 634. In the circumstances, the 1st respondent held that the petitioner was not a workman, and in view of this finding, he did not consider it necessary to decide the various other points. In the result, the application was dismissed.

3. Mr. Nadkarni, the learned counsel appearing for the petitioner, has challenged the correctness of this order. He submitted that by nature of the main work and duties of the petitioner as a cameraman, the petitioner is a technician and, therefore, he falls within the definition of the word 'workman'. In support of his contention Mr. Nadkarni has relied upon two decisions. The first is a reference bearing I.T. No. 170 of 1958, decided on 5th August, 1958 by the Industrial Tribunal, Bombay in the matter between Prabhat Brass Band and their workmen. The question as to whether the musicians engaged by the firm were 'workmen' as defined in S. 2(s) of the Act came for consideration and the Tribunal observed that musicians who know the 'mode of artistic execution of music' who, in other words possess the 'technique' of music, are technical persons pertaining to the art of music. In coming to this conclusion, the Tribunal distinguished a decision in the case of Thomas D'souza and others v. Filmistan Ltd., Bombay reported in 1953 II L.L.J. 416, in which case it was held that musicians were not workmen. The plain and simple distinguishing feature of the earlier case was that that decision was based on the definition of the word 'workman' before its amendment on 29-8-56. The definition which was in force the amendment did not incorporate the word 'technical.' The word 'technical' was added to the definition and a large number of workmen were sought to be brought within the term 'workmen' who were considered to be outside that definition before the amendment. In my opinion, these observation are not very helpful in deciding the case of the petitioner as to whether the work executed by him is of a technical nature or not so as to bring his case within the definition of the word 'workman.'

4. The second decision is reported in Burmah Shell Oil Storage & Distribution Company of India Ltd., and the Burmah Shell Management Staff Association and others and vice versa, : (1970)IILLJ590SC . After referring to the amended definition of 'workman', Their Lordships of the Supreme Court observed thus :

'For an employee in an industry to be workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature, he would not be a workman, .......'

Their Lordships further observed thus :

'There is a clear distinction between technical work and manual work. Similarly, there is a distinction between employments which are substantially for manual duties, and employments where the principal duties are supervisory or other type, though incidentally involving some manual work. Even though the law in India is different from that in England, the views expressed by Branson, J., in Appeal of Gardner : In re Mascheck : In re Tyrrell, [1958] 1 All E.R. 20, are helpful, because, there also, the nature of work had to be examined to see whether it was manual work. As examples of duties different from manual labour, though incidentally involving manual work, he mentioned cases where a worker (a) is mainly occupied in clerical or accounting work, or (b) is mainly occupied in supervising the work of others, or (c) is mainly occupied in managing a business or a department, or (d) is mainly engaged in salesmanship, or (e) if the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special mental or artistic faculty or the application of scientific knowledge as distinguished from manual dexterity. Another helpful illustration given by him of the contrast between the two types of cases was in the following words :

'If one finds a man employed because he has the artistic faculties which will enable him to produce something wanted in the shape of a creation of his own, then obviously although it involves a good deal of manual labour, he is employed in order that the employer may get the benefit of his creative faculty.' 'The example (e) given above very appropriately applies to the case of a person employed to do technical work. His work depends upon special mental training or scientific or technical knowledge. If the man is employed because he possesses such faculties and they enable him to produce something as a creation of his own, he will have to be held to be employed on technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work.'

In connection with the example of an artist, the following observation was made :

'If on the other hand, he is an artist who paints works of art as a result of his own creative and imaginative faculty, he would be held to be employed on technical work, even though in creating the work he will all the time be using his own hands to paint the picture.'

5. Mr. Mehta, the learned counsel appearing for the 2nd respondent, cited two cases. The first is reported in IX Factories Journal Reports 1955-56 page 324 - S. A. Phenany and others v. J. Walter Thompson Co. (Eastern) Ltd., Bombay. This decision cannot be of any assistance as it is based on the definition as it stood before its amendment which came into force on 29th August, 1956. We are concerned with the present definition which embraces the word 'technical.' The other decision is the one which was cited before the 1st respondent. This is reported in Advertising Corporation of India v. Barendra Chandra Nag and others, 1955 II L.L.J. 448. This case was also decided before the amendment of the definition and is not helpful.

6. It is settled that the test of substantial work performed by the employee concerned is to be applied to find out as to whether the employee is employed to do skilled, unskilled manual work, supervisory work, technical work or clerical work, etc. It is the nature of the duties which an employee has to perform primarily and not his designation that can determine whether he is a workman of a particular category or not.

7. Now, it is not in dispute that the petitioner joined the service of the 2nd respondent in 1943 and from 1947 he began to work as a cameraman or director of photography. Shri Jalan says that the petitioner could be called a cameraman because a cameraman is equivalent to a director of photography. According to the petitioner, since 1947 his work, duties and responsibilities were entirely that of a cameraman as he had to concentrate upon the work of camera and production of photographic effects in films assigned to him. When a film was assigned to the petitioner for camera work, he had to do the work under the direction, supervision and control of the director-in-charge of the film. His duty as a cameraman was to discuss some technical points with the director, but the petitioner used to take final decisions. Shri Jalan also admitted that all technical decisions regarding creating effects were taken by the petitioner. The decision regarding what angle was to be taken was also to be taken by the camera man. According to the petitioner, he had worked as Director of Photography in 10 pictures of the 2nd respondent, and if a picture was adjudged best, an award was given to the Cameraman among others. It is the duty of the Cameraman to translate the ideas of the Director and to produce the necessary effects in the film. The evidence of Shri Jalan shows that the Director of Photography has to produce the necessary effect on the screen according to the script and in every picture Photography Director is one of the most important persons. Persons like Director, Assistant Director, Music Director and Photography Director work in a team but they do independent work. The Director of a film has no control or supervision over the Director of Photography. Shri Jalan denied that the petitioner was operating the camera. He also denied that the work of the petitioner consisted of giving light effects as directed by the Director, and at the same time he also denied that the Director given directions to the cameraman if he does not like the light effects given by the cameraman. In his examination-in-chief Shri Jalan had accepted the position that Director of Photography has to produce the necessary effect on the screen according to the script. In spite of such denials, there is no dispute between the parties that the petitioner was working as a Cameraman and all technical decisions about the camera work were taken by the petitioner and that the petitioner was the Cameraman in about 10 pictures produced by the 2nd respondent. The evidence shows that the petitioner's main functions and duties were that of a Cameraman. Among other duties of the petitioner as a Cameraman, he had to do physical checking of camera, operate the camera to see that the filters are correctly used and diffusers are adjusted to give a desired effect. It is the duty of the cameraman to interpret the ideas of the Director and produce all necessary effects in the film.

8. In support of his submission, Mr. Nadkarni urged that the very nature of the work of judging the light effects involves the handling of the camera, observing the effects of scheme of lights through lens in a particular shot and this observation has to be meticulously followed from the movement of the artist and to ascertain that the given shot projects the correct visual image at desired angles and desired strength of light and shade and that the shot as a whole forms a harmonious composition for presentation on the screen. The cameraman has to take all technical decisions to bring out the visual image. If any of the shots does not come up to the requirement of the cameraman, he calls for a retake. Retake is a very responsible decision which only the cameraman can take and, therefore, he has to be on the job of camera. He submitted that camera work is essentially a technique of translating the thematic contents of script into a visual image to synchronize with the theme of a picture. It is mainly a technical process and creative and imagination faculties come full into play.

9. Mr. Nadkarni relied upon the following passage from 'Professional Cinematography' written by Mr. Charles G. Clarke and published by the American Society of Cinematographers, 1964 edition. This passage is from the introduction of the book :

'To some it might first appear that all that is necessary is to set up a camera and obtain a correct exposure. Needless to say, the requisite qualifications are much more than this. A director of photography has to have a sense of composition, a complete knowledge of optic and film materials - what they can do and how far he can extend them, and a full under standing of the art of lighting. He must be an expert in color and color psychology, a craftsman in cinema staging methods, and among still other things, have an ability to get along with, and utilize, the potentials of his fellow workers. Of all the cinematic craftsmen, he is unique in being the creative artist-technician.'

He next referred to the book under title 'The Five C's of Cinematography' written by Joseph V. Mascelli and published by Cine/Graphic Publications, Hollywood, 1965 edition. The passage relied upon is from the introduction on page 11, which reads thus :

'A motion picture is made up of many shots. Each shot requires placing the camera in the best position for viewing players setting and action at the particular moment in the narrative. Positioning the camera - the camera single - is influenced by several factors. Solutions to many problems involving choice of camera angles may be reached by thoughtful analysis of story requirements. With experience, decisions can be made almost intuitively. The camera angle determines both audience viewpoint and area covered in the shot. Each time the camera is moved to a new set-up, two question must be answered : What is the best viewpoint for filming this portion of the event How much area should be included in this shot

A carefully-chosen camera angle can heighten dramatic visualization of the story. A carelessly-picked camera angle may distract or confuse the audience by depicting the scene so that its meaning is difficult to comprehend. Therefore, selection of camera angles is a most important factor in constructing a picture of continued interest ......... the director has the prerogative of choosing his own angles in accordance with his interpretation of the script. Since the cameraman positions the camera, it is he who usually makes final decision on viewpoint and area, based on the director's wishes. Directors vary in their approach to the camera angle question : many will leave the final decision up to the cameraman once their request is made. Others may be more camera-oriented and work more closely with the cameraman in arriving at the precise camera placement for each shot.'

The other book on which reliance is placed is 'The Television Program - Its Direction and Production' published by Hill and Wang, New York 4th edition. The following passages are from Chapter 4 - Camera Concepts : Shots and Lenses - on pages 50 and 51 under the sub-title 'Field on View' :

'This is the most convenient way, in most instances, for a director to describe a shot that he wants to the cameraman who must get it for him. The widest possible shot would be the Extreme Long Shot. As we move closer, we get the more familiar Long Shot. Moving steadily in, we come to Medium Long Shot, Medium Shot, Medium Close-up and Close-up.

The close-up is, perhaps, the tool for which television should be most graceful to film making. It is one of the best compensations for the small size of the television screen. It is most essential in creating intimacy and in getting the viewer to see clearly what is transpiring on even the larger television screens. The director will use it for many purposes, but the most common is to direct the viewer's attention to a specific object or facial expression. An important number on the door of a hotel room; a forgotten letter; an incriminating bit of evidence left behind by the criminal, later to be found by the great detective - all these can be shown in close up, and the writer need not hesitate to write action which will call for such a shot. But let the writer not call for four successive close-ups of objects at opposite corners of a room, when his director will have only two cameras at his disposal ! Once again, good judgment and common sense replace any arbitrary rule.

The terms 'tight-close-up' and 'big close-up' are used to describe a shot which includes an even more limited area than that of the close-up. A common example is an actor's head which entirely fills the screen.

When the camera approaches even closer to the subject and we see, for example, only a portion of the face, the shot is usually called an 'extreme close-up'

10. As against this, Mr. Mehta argued that the petitioner was an artist whose job was mainly creative and imaginative. Photography of cinema films is a creation and imagination of the cameraman that he wants to make realism into the scene projected on the screen. Cinematography is meeting point between Art and Technology. In the case of photographer his creative process begins and ends with split second action of the shutter. He further urged that while camera eve catches the essence of the scene and the film taken by the operating cameraman under the Director of Photography has an inherent eloquence of his own imagination. The film photography has to establish communion with nature and human beings. Photographer has double skill that he has to be an artist as well as he has to work on machine, but the major part of his work is imaginative and creative to establish communion with the nature and human beings. Even among artists this creative and imaginative talents varies from man to man and picture produced by one artist though on the same subject, are likely to bear the impression of the individuality of the artist. The photography of two artist are unlikely to be the same or identical as in the case of clerical or mechanical work. The work of an artist requires some amount of visualisation. This gives originality to his work.

11. The approach of the 1st respondent in deciding the matter was with reference to the meaning of the word 'photography' as given in the Chamber's Twentieth Century Dictionary that 'photography' means an art of producing pictures by the action of light on a chemically prepared surface. According to the first respondent, it is difficult to describe such work as manual or technical. The first respondent took the view that photography is an art and cannot bed considered to be merely technical work. It may be that in the narrow sense photography is an art but it is a highly developed science. As against ordinary photography which one comes across in every walk of life based on correct exposure, we have astronomical underwater and aerial photography which requires high qualifications for the job. The instant case concerns the nature of the work of a cameraman in motion pictures industry. It is the cameraman who has to produce the necessary effect on the screen according to the script. He interprets the ideas of the Director. The Director does not have exclusive control or supervision over the cameraman. In operating the camera, the cameraman make take the assistance of others in operating the camera which does not remain stationary but moves in relation to the movements of the characters. Camera follows a character, dolling ahead or following in profile because the character is walking.

The ideal aimed at by the cameraman is that the audience should never be aware of the camera moving. Camera may dolly up to the face of the character for emphasis. The cameraman is required to show reality. He makes use of the camera to give appearance of visible reality. The passages cited from various books relating to cinematography and television also show that the work of a cameramen depends on special mental training and technical knowledge. He achieves the aim of reality by his imaginative faculty as well. Functions like camera angles, lighting the scene, composition, long shot, medium long shot, medium shot, medium close-up, close-up would be technical and not merely the work of an artist as urged on behalf of the 2nd respondent. In my judgment, the execution of the work of a cameraman involves special technical knowledge. The nature of the work of the cameraman indicates that for the successful creation of reality in a motion picture he depends upon the display of his imagination and the exercise of artistic faculty and the application of technical knowledge as distinguished from manual dexterity. In reaching this conclusion I am guided by the observations made by their Lordships of the Supreme Court in the case of Burmah Shell quoted above. I therefore, hold that the petitioner would fall within the meaning of the definition of the word 'workman' as defined in S. 2(s) of the Act.

12. Mr. Mehta raised an objection that the petition is liable to be rejected on the ground of gross delay. In this connection, he relied upon the decisions reported in Chandra Bhushan v. D. I. R. of Consolidation, : [1967]2SCR286 , Mongey v. Board of Revenue, : AIR1957All47 and Tilok Chand v. H. B. Munshi : [1969]2SCR824 . This objection was taken by the 2nd respondent in its affidavit dated 17th January 1975. The petitioner has made an affidavit dated 21st January, 1975 in which he has explained that he had been to Rewa in Madhya Pradesh in connection with the location in hunting and shooting for the picture 'Bindya Aur Bandook' of M/s. Apollo International, Bandra, Bombay, and he was there from April, 1971 to December, 1971 and that it was not easy for the petitioner to contact his lawyer from Rewa. The petitioner returned to Bombay in the end of December, 1971 when he could contact his lawyer and thereafter he filed the petition on 17th January 1972. I am satisfied with the explanation given by the petition and, therefore, I do not find any merit in this contention.

13. The 1st respondent, after having come to the conclusion that the petitioner was not a workman, did not decide the other points, with the result that the matter will have to go back. The application was made in 1963 and, therefore, it would be in the fitness of things that the application is disposed of expeditiously by the Labour Court concerned.

14. In the result, I make the rule absolute in terms of prayer (a) and direct that Labour Court should dispose of the matter expeditiously. The 2nd respondent to pay to the petitioner costs of this petition.


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