1. The writ petition is for certiorari to quash the award of the Additional Labour Court, Madras rendered in I.D. No. 256 of 1975. The dispute in the award relates to the non-employment of the first respondent, an Engineering Graduate, who was working as a development officer of the petitioner-company due to discharge simpliciter as he was un-co-operative in his work, and irregular in his attendance. As a result of this, he lost the confidence of the management. Without giving an opportunity to the first respondent to defend, these allegations of un-co-operative nature and irregularity in attendance, which are all false, and in the guise of discharge he was punished by way of dismissal without any enquiry as required under law. The writ petitioner-management contended that the first respondent was not a workman within the meaning of S. 2(s) of the Industrial Disputes Act (hereinafter referred to as the Act). He belonged to the administrative or managerial cadre, though a technical person. On these pleadings three issues were posed for determination by the Labour Court, which are as follows :
(1) Whether the petitioner is a workman under S. 2(s) of the Industrial Disputes Act
(2) Whether action in discharging the petitioner's service is a colourable exercise of power of the respondent as the motivation behind it was to dismiss the petitioner
(3) To what relief
2. On the first issue he came to the conclusion that the first respondent herein was doing only technical work, i.e., he was functioning in his technical capacity alone and so he is workman under S. 2(s) of the Act. On issue No. 2 it was concluded that it was not a bona fide discharge. The management wanted to get rid of the workman from its services for reasons best known to it and got rid of him by discharging him. It is a colourable exercise of the power of the respondent as it is dismissal guised in discharge. As a result, an award was passed directing reinstatement of the first respondent with backwages till 26-8-1977 from which date he is employed elsewhere and which he has agreed to give up continuity of service and other attendant benefits. Thus, the writ petition.
3. Mr. S. Govindaswaminathan, appearing for the management, states that the first respondent was a graduate apprentice. On 1-12-1962 he was appointed as a Senior Foreman (Machine Shop) till 30-11-1971 and on that date he was appointed as a Development Officer, carrying a salary of Rs. 1,050 as basic and Rs. 210 as dearness allowance. By a reading of the award, it will be seen that the Labour Court had completely misdirected itself. The first respondent signed all the correspondence not in his administrative or managerial capacity, but only in his technical capacity. That is clearly against the tenor of the various documents.
4. The definition of the workmen under S. 2(s) of the Act will not take kin a person who functions in his administrative capacity. Because of his technical knowledge, the approach of the Labour Court is just the reverse. The decision reported in Burmah Shell Oil Storage and Distributing Co. V. Management Staff Association, : (1970)IILLJ590SC , is clearly in his favour, paragraphs 14 and 15 of the said judgment will completely decide the issue in favour of the petitioner. The Labour Court has approached the question in a reverse way. Merely because the first respondent was working as a chief buyer, he did not cease to be a workman, because he himself was working under the Managing Director. The charge in relation to the employees attached to Ext. W. 5. will show that the first respondent was part of the administrative set up. The correspondence, Exts. M. 12, M. 32, M. 37 were marked to show the administrative capacity in which the first respondent was functioning. Looked at from this point of view the award is wholly ununderstandable. To say that because the first respondent was a technical man, he ceases to be in administrative capacity is an error of law which this Court is well entitled to correct under certiorari jurisdiction and it is not a factual finding that is canvassed. In support of this submission, Pabbojan Tea Co. v. Labour Court, Assam, 1977LabIC721 at 731, is relied on.
5. Mr. G. Vasantha Pai, learned counsel for the first respondent, submits first and foremost that though the first respondent was called a development officer, he was working under the chief buyer and he had no independent right to take a decision. As a matter of fact, in the counter filed before the Labour Court, in paragraph 2 it is clearly stated that the first respondent was reporting to the chief buyer of the supply division. The circumstances under which he came to be appointed as a development officer are traced in paragraph 3 of the said counter. The petitioner, after completing his apprenticeship was appointed as a foreman in the machine shop. He could not manage the labour properly and he himself requested for a transfer to some other department. As a matter of fact, he was contemplating even to resign, so that he could take care of his family business. At first he was transferred from Steel Forging line to the West Shop Casting line and subsequently to the Supply Department, as he could not discharge his duties properly in the machine shop. That being so, to say that the first respondent was an administrator or the manager is wrong. It is some what surprising that though the first respondent is stated to be in charge of contract works for several lakhs, no one in connection with the same has tendered evidence. Curiously an apprentice who had hardly put in three years of service is examined, For reasons best known to the management the chief buyer or Ezhumalai was not examined. The findings of the Tribunal are based upon appreciation of oral evidence and that cannot be interfered with under Art. 226 of the Constitution of India. Originally the management came forward with a case that the first respondent was working in a supervisory capacity and not, as it know stated, in his administrative or managerial capacity. Hence, grounds 3 and 4 stated in support of the writ petition have to be rejected as seeking to introduce a new case. The factual findings cannot be interfered with under Art. 226 of the Constitution. In support of this submission Andhra Scientific Co. Ltd. v. Seshagiri Rao and another, : (1961)IILLJ117SC , particularly the passage at 119 is relied one.
6. The various letters that have been marked on the side of the management do not say that the first respondent could take a decision by himself. These letters are incomplete. As to the tests for management they could be culled out from the decisions of S.V.O.C. v. Commissioner of Labour, : (1959)IILLJ771Mad and Prem Sagar v. S.V.O.C., : (1964)ILLJ47SC at 53. In this case, not one of the tests could be applied effectively so as to hold the first respondent to be in charge of the management. Exhibit W. 5 makes it abundantly clear that this respondent must work under the chief buyer. In such a case, he is undoubtedly a workman. In support of this submission Punjab Co-op Bank Ltd. v. R. S. Bhatia, : (1975)IILLJ373SC , is relied on.
7. Lastly, it is submitted the decision in B.S.O.S. & D. Co., v. Management Staff Association, : (1970)IILLJ590SC , cited by the other side. Will have no application to the facts of this case, having regard to the various distinguishing features in this case, as contended above.
8. Having regard to the above arguments, the one and the only question that arises for my determination is whether the first respondent is a workman within the meaning of S. 2(s) of the Industrial Disputes Act
Section 2(s) of the Act contains the following definition :
'Workman means any person (including an apprentice) employed in any industry to any skilled or unskilled manual, supervisory, technical or clerical 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 retrenchement has led to that dispute but does not include any such person -
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who, is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five 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'.
9. It is the case of the writ petitioner management that the first respondent was working in either administrative or managerial capacity and merely because he was obliged to report to the chief buyer, it does not mean that he ceases to be function in a managerial or administrative capacity. I may now refer to some of the letters marked by the Labour Court. One feature which cannot escape the attention of any body is the letters from the third parties. They are either directly addressed to the first respondent, or his attention is drawn. When the letters emanate from the petitioner's company, in so far as they relate to his department, the first respondent signs them. According to Mr. Govindaswaminathan, learned counsel for the petitioner, the letters like Exts. M. 11, M. 32 and M. 37 are marked to show how the first respondent was working in an administrative capacity, while Mr. G. Vasantha Pai, learned counsel for the first respondent says that in so far as the first respondent had no independent right to take a decision and further he was working under the chief buyer and was reporting to him is clear to show that he cannot come under the administrative or managerial capacity.
10. Before I go to deal with the respective contentions advanced on the basis of these documents a look at the relevant law may be highly useful. In B.S.O.S. & D. Co. v. Management Staff Assn. : (1970)IILLJ590SC at 599 in paragraphs 14 and 15 it was observed thus :
'Despite these facts, the Tribunal held the Transport Engineer to be a workman on the ground that he was employed because of his technical knowledge and even in supervising the work of the workman, he is required to make use of his technical knowledge, and, consequently rejected the pleas of the company that the Transport Engineer cannot be said to be employed to do supervisory work. It appears to us that, in giving this decision the Tribunal misdirected itself. Even if the Transport Engineer uses his technical knowledge, it is used primarily for the purpose of supervising the work done by the skilled manual laborers who carry out the actual repairs, do the servicing or maintenance or complete the fabrication. The other supervisory duties, mentioned above, have been ignored by the Tribunal on the ground that, in the matter of allocation of work, the Transport Engineer does it on equitable basis, that it is his duty to get the job done in a proper manner, that, in distributing or allocating or reallocating the work, the main consideration which weighs with the Transport Engineer is whether the work is executed efficiently from a technical point of view. These appear to us to be no grounds for holding that the main and substantial work being done by the Transport Engineer is not supervisory in character.
In this connection, we may take notice of the argument advanced by Mr. Chari on behalf of the Association that, whenever a technical man is employed in an industry, it must be held that he is employed to do technical work irrespective of the manner in which and the occasions on which the technical knowledge of that person is actually brought into use. The general proposition put forward by him was that, if a technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and not supervisory work. He elaborated this submission by urging that, if we hold the supervisory work done by a technician as not amounting to his being employed to do technical work, the result would be that only those persons would be held to be employed on technical work who actually do manual work themselves, According to him, this would result in making the word technical redundant in the definition of workman even though it was later introduced to amplify the scope of the definition. We are unable to accept these submissions. The argument that, if we hold that supervisory work done by a technical man is not employment to do technical work, it would result in only manual work being held to be technical work, is not at all correct. 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 Maschek; in re Tyrrell, 1938 I All E.R.20, are helpful, because, there also, the nature of the 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 faculties 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.'
After referring to Murugalli Estate, Hardypet v. Industrial Tribunal, Madras, 1964 II L.L.J.164, it was concluded :
'This case, thus, recognises that a person with technical qualifications can on that account, be employed in a supervisory capacity and, in such a case, he will be held to be employed to do supervisory work, so that, in order to be a workman, he must not be exempted under exception (iv).'
How such a conclusion was arrived at, can be seen from paragraph 16, which is as follows :
'We may, to clarify, this aspect, take an example of a qualified technical Engineer who is concerned with manufacture of machines. If he himself creates a machine with the use of his technical knowledge, he will, certainly be held to be employed to do technical work. On the other hand, if the machine is being made by others and all he does is to give advice or guidance, the actual technical work will have to be held to be done by the machines carrying on the work, while his duty will only be supervisory. A more clear illustration which may be useful is that of a painter. If a person is employed to paint walls of a house or paint furniture, it would clearly be employment to do manual labour. 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. There can be a third case where a good artist may have pupils working under him who paint artistic pictures and he only guides their work. He may, on occasions, even make some improvements by retouching the work done by the pupils. On the face of it, such a person cannot be held to be employed to do technical work; he would be a technical supervisor. These examples clearly indicate that, in the case of the Transport Engineer, whose principal duties are to see that the work is properly done by the skilled and unskilled workmen working under him, he is really employed to do supervisory work and not technical work.'
So, the facts in this case are clear enough to warrant the finding that the transport engineer was employed in a supervisory capacity. The tests for management have been laid down in S.V.O.C. v. Commissioner of Labour, : (1959)IILLJ771Mad at page 777. In that case, when the meaning of a person employed in a position of management within the meaning of S. 4(1)(a) of the Madras Shops and Establishments Act, came up for discussion, the learned Judge held :
'In order to be in a position of management within the meaning of S. 4(1)(a) of the Madras Shops and Establishments Act it is not necessary that the individual should be at the top of the hierarchy or that he should have absolute power in any respect; for except in dictatorship there is always someone over everybody. It is not even necessary that the individual should be in sole control or charge of a territory or branch of an organisation or of a department of that organisation. The control or charge may be vested in a committee or board, or it may be divided among a number of individuals. Section 4(1)(a) itself contemplates that there can be a distribution of managerial power because it speaks of persons employed in an establishment in a position of management. It will be noticed that the words used are not the manager of an establishment or 'a person employed in an establishment as its manager' but of persons employed in any establishment in a position of management. The words postulate that there can be a plurality of persons in an establishment who are in a position of management.
Though the section seeks of persons in a position of management, it does not say of what they have to be in management. But it is not difficult to see that the management which the section envisages and with which a person may be entrusted may be in respect of matters pertaining to a particular area or territory, or it may be in respect of matters falling within a department, sector or compartment. It would not be right to say that a person is not in a position of management unless he has jurisdiction over any definite territory; managerial position can be attained also inside a department.
It is not necessary that in order to be in a position of management the individual concerned should have absolute power in respect of any matter. An appeal may lie from his decisions or he may have to obtain previous sanction in certain matters. It is not necessary again that before a person can be in a position of management he should have the power of making appointments.
Nor again it is necessary that before a person could be said to be in a position of management he should have the power to dismiss any employee.
Further the fact that the concerned employee had no power of attorney or authority to enter into agreements on behalf of the management would not make it clear that he was not in a position of management, nor the fact that his power to incur expenditure was limited, or the fact that he had no power to appoint, dismiss or punish any employee, should be considered to be decisive in this regard.
If an individual has Officers subordinate to him whose work he is required to overlook, if he has to take decisions and also the responsibility for ensuring that the matters entrusted to his charge are efficiently conducted and an ascertainable area or section of work is assigned to him, one would ordinarily be justified in saying that he is in a position of management.'
11. This decision was taken up in appeal and a Division Bench of this Court, reversed the decision of the learned single Judge. Thereupon Civil Appeals were preferred to the Supreme Court, which is reported in Prem Sagar v. S.V.O.C., : (1964)ILLJ47SC At page 53 it has been held :
'That takes us to the question as to whether the appellant is an employee whose case falls under the category of exempted cases provided for by S. 4(1)(a). Section 4(1)(a) refers to persons employed in any establishment in a position of management, and so, the question is when can a person be said to have been employed by the respondent in a position by the respondent in a position of management. It is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question as several considerations would naturally be relevant in dealing with this problem. It may be enquired whether the person had a power to operate on the bank account or could he make payments to third parties and enter into agreements with them on behalf of the employer, was he entitled to represent the employer to the world at large in regard to the dealings of the employer with strangers, did he have authority to supervise the work of the clerks employed in the establishment, did he have control and charge of the correspondence, could he make commitments on behalf of the employer, could he grant leave to the members of the staff and hold disciplinary proceedings against them has he power to appoint members of the staff of punish them; these and similar others tests may be usefully applied in determining the question about the status of an employee, in relation to the requirements of S. 4(1)(a). The salary drawn by the employee may have no significance and may not be material, though it may be treated the oratically as a relevant factor - vide Chandra (T.P.) v. Commissioner for Workmen's Compensation, Madras and another, 1957 I L.L.J.55 and Salem Sri Ramaswami Bank Ltd. v. Additional Commissioner for Workmen's Compensation and another, : (1956)IILLJ40Mad .
12. These are the tests according to Mr. Vasantha Pai which required to be applied in deciding whether the first respondent is a workman. In none of the correspondence there is anything to show that the first respondent could take a decision by himself. Mr. Govindaswaminathan, learned counsel for the petitioner, drawn my attention to Ext. M. 17 and says that the he could take decisions because the samples sent by M/s. J. Stead and Co. India (P) Ltd. Madras, had been rejected by the first respondent for certain stated defects. However, it requires to be noted that the first respondent merely reiterates the rejection by the Inspection Department and he did not take an independent decision, because it is stated there under :
The sample of the Tube to Part No. 322953 and Flange to Part No. 520690 also been rejected by Inspection Department due to reasons mentioned above.'
13. As rightly contended by Mr. G. Vasantha Pai, none of the tests adumbrated in Prem Sagar v. S.V.O.C. [1964-I L.L.J. 47] : : (1964)ILLJ47SC at 53 could be validly applied here. The correspondent are incomplete. In my considered view, one of the vital documents which has to be borne in mind is Ext. W. 5. That lays down the norms relating to the supply division. The company directive states :
'Price Negotiation Committee :
The price negotiation Committee under the Chairmanship of Mr. K. S. Ramaswami Executive Director, will continue to function in the present manner and comprise of Mr. S. Sankaranarayanan. Executive Director, Mr. K. K. Ramachandran, Manager, Technical Division and remain to examine and resist price revision claims submitted by Manager, Supply Division, and to make final recommendation to the Managing Director. Licence Policy Direction :
Overall licence Policy Direction will continue to be the responsibility of Mr. K. S. Ramaswami, Executive Director. Manager Supply Division : Mr. S. N. Kuba is appointed Manager, supply Division and will be responsible to the Managing Director for all supply activities including shipping and licensing with special emphasis on buying at the most advantageous prices and ensuring that production requirements are not regarding the question and quality of deliveries. This includes very strict control of purchases within budget limits and supply price reductions.
14. Admittedly the first respondent was working under. Mr. Kuba and why none of the persons connected with the supply department i.e. either Kuba or Ezhumalai, was examined is not explained. M.W. 1 cannot and does not have any personal knowledge because his length of service is only three years as apprentice. If really the first respondent was dealing with contracts amounting to several lakhs of rupees and was taking independent decisions, the management ought to have let in better evidence and it has failed miserably to do so. The decision in B.S.O.S. & D. Co. v. Management Staff Association : (1970)IILLJ590SC cannot advance the case of the petitioner, because I have already extracted paragraph 15 of the judgment, by reasons of which the only conclusion possible was Transport Engineer was working in a supervisory capacity. I may also state that there is a shift in the stand of the management. Originally, the stand was taken that the first respondent was working in his supervisory capacity, but later, as seen from grounds Nos. 3 and 4 of the write petition, an argument is put forth as if he was working in an administrative or managerial capacity. None of the letters produced would support the argument that the first respondent was working in an administrative or managerial capacity. It is true that the third parties addressed letters to the first respondent, or at least his attention was drawn but so long as he does not decide and is obliged to work under the chief buyer, as clearly stated in paragraph No. 2 of the counter of the management before the Labour Court, he cannot be held to be either working in his managerial or administrative capacity. I am also unable to appreciate the stand of the management that merely because Mr. Kuba is also obliged to work under Managing Director, he cannot be called a workman. That will depend upon the nature of duties allocated and the right to take independent decision. For the sake of administrative convenience letters are addressed or attention of the first respondent was drawn without he being in a position to take independent decisions. Even as the incomplete correspondence would show the first respondents position cannot be compared with that of Mr. Kuba. In this connection it will not be out of place to refer to paragraph 3 of the counter statement of the management before the Labour Court, which reads :
'Without prejudice to the above contention this respondent submits that the petitioner has absolutely no case on merits also. As alleged in paragraph 3 of the claims statement, the petitioner after completing his apprenticeship was appointed as a Foreman in the Machine Shop. He could not manage the labour properly and he himself requested for a transfer to some other department and at one stage he even wanted to resign from the company, to take care of the family business. In the light of the request made by him, he was transferred from steel forging line to the west shop casting line and then subsequently to the Supply Department as he could not discharge his duties properly in the machine shop and the management really wanted to give an opportunity to the petitioner to show his skill in another filed.'
15. This is an added point to be put in favour of the first respondent in that he could not manage the workmen, and therefore, he was transferred to this department.
16. The vehement attack of Mr. Govindaswaminathan against the award is on paragraph 10, which is as follows :
'All these correspondences were signed by the petitioner as Development Officer, not in his administrative of managerial capacity and only in his technical capacity. Just because he has signed correspondence or correspondences went in his name, was he administering or managing. As a technical person he dealt with the subject of technical parts. The specification on requirements. The suggestion regarding the process of manufacture, rejection of the materials supplied under reasons stated, the suggestion regarding the improvements to be made all these would have been done by the petitioner purely as an engineer, i.e. development engineer called development officer, Just because his designation carried along with the word, 'development' the word 'Officer', i.e., he does not cease to be a technical officer. The Chief Buyer may decide the non technical matters. Even in his technical capacity he was not administering of managing. The correspondence and discussions to and fro in the name of the development officer i.e. the petitioner was in the technical capacity as the contents thereto would reveal. In the result, I find that the petitioner was doing only technical work i.e. he was functioning in his technical capacity alone, and so he is a workman under S. 2(s) of the Industrial Disputes Act.'
It is true as a general proposition of law, as laid down in B.S.O.S. & D. Co. v. Management Staff Association [1970-II L.L.J. 590] : : (1970)IILLJ590SC , where a person is employed by reason of his technical qualifications is a supervisor or a manager or even an Administrator he cannot claim to be a workman because he would fall under the exempted category, But, the facts here are entirely different, as seen above. Thus I conclude that the first respondent was working only in his technical capacity. But not either in his administrative capacity of managerial capacity. The factual findings arrived at why the Labour Court is unassailable and such a finding as laid down in Andhra Scientific Co., Ltd. v. Seshagiri Rao and another. [1961-II L.L.J. 117] : : (1961)IILLJ117SC at 119, cannot be interfered with under Art, 226, of the Constitution because it is stated thereunder :
'What functions were actually being performed by the employee is a question of fact and the High Court has rightly pointed out that when the Labour Court has on a consideration of the evidence come to a conclusion as regards these functions and has on the basis thereof held that the employee comes within the definition of workman in S. 2(s) of the Act, the High Court, would not interfere under Art, 226 except in cases where there is clear error on the face of the record.'
However, Mr. Govindaswaminathan, would drawn my attention to Pabbojan Tea Co. v. Labour Court, Assam, that passage reads.
'On a consideration of the nature of the duties entrusted to the respondent we have no hesitation on to hold that in all his activities he represents the management. The Supreme Court in Secy. M.G.C. Employees' Unions v. Management, : (1967)IILLJ720SC , observed :
The Labour force includes manual or technical workmen but not only also those whose services are necessary or considered ancillary to the productive labour of others but does not include anyone who, in an industrial sense, will be regarded by reason of his employment or duties as ranged on the side of the employers. Such are person working in a managerial capacity or highly paid supervisors.' 'In the instant case considering the type of the business of the petitioner, the nature of duties, the terms of employment, the designation. The pay and employments of the respondent, we have no hesitation to hold that his work was supervisory in nature and that being so, he goes out of the definition of workman was his salary exceeds rupees five hundred per month. Even is his work is not supervisory, the respondent being employed mainly for the purpose of giving advice and guidance, as held by the Labour Court and which finding is not disputed, he does not come within the definition of workman at all.'
But, here on the fact see no warrant for holding that the first respondent was either working in his supervisory or administrative or even managerial capacity.
17. For all these reasons, I find no difficulty in upholding the in impugned award. According the write petition is dismissed. No costs.