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ivor Fernandez Vs. Management of Stanes Motors (Southern India) Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.P. No. 4240 of 1978
Judge
Reported in(1982)IILLJ155Mad; (1982)1MLJ406a
ActsIndustrial Disputes Act, 1947 - Sections 2; Constitution of India - Article 226
Appellantivor Fernandez
RespondentManagement of Stanes Motors (Southern India) Ltd. and anr.
Cases ReferredEngineering Construction Corporation Ltd. v. Additional Labour Court Madras
Excerpt:
.....article 226 of constitution of india - petitioner was principally and substantially discharging work of supervisor though he had nomenclature of foreman - conclusion has been rightly reached by respondent that though petitioner employed in supervisory capacity but as he was drawing salary exceeding rs. 500 at relevant point of time he would be hit by exemption under section 2 (s) - petitioner would be excluded from definition of workmen. - - exhibit m-2 among other things, states as follows :you are expected to manage the workshop side of our business thoroughly and efficiently to the satisfaction of the management and our valuable customers without any complaints. m-9 reads as follows :consequent to your posting to ootacamund as foreman, the reasons for which have already been..........be required at any time due to exigencies of work, only after getting prior permission from the branch manager you will proceed on leave. the branch manager has the right to cancel your leave applied for and ask you to report for duty if there is any emergency due to exigencies of business. 3. you will test the vehicles and for this purpose a test report form is enclosed herewith. this form must be maintained and submitted to the branch manager weekly for his scrutiny and remarks. the testing time alone per vehicle should not exceed 15 minutes at anytime whatsoever. 4. before sub-contracting jobs for machining or painting, etc., you must consult the branch manager get his approval first and only then proceed. 5. you will talk to the customers with patience and politeness and on no.....
Judgment:

1. The petitioner in the writ petition claiming himself to be a workman within the meaning of S. 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), raised a dispute over his non-employment by the first respondent. The dispute was referred to the second respondent and the matter was taken up for adjudication by the second respondent in I.D. No. 55 of 1977. Apart from justifying the non-employment of the petitioner on other grounds, the first respondent put forth a contention that the petitioner would not come within the meaning of 'workman' under S. 2(s) of the Act, because he was employed at the relevant point of time in a supervisory capacity drawing wages exceeding Rs. 500 per mensem and thus the petitioner would be excluded from the definition of 'workman'.

2. The second respondent went into the question as to whether the petitioner would come within the meaning of 'workmen' under S. 2(s) of the Act and on an assessment of the materials placed before him, came to the conclusion that the petitioner was employed in a supervisory capacity and was drawing wages exceeding Rs. 500 per mensem and accordingly he would fall within the exemption set out under S. 2(s)(iv) of the Act. The second respondent further found that the termination of the services of the petitioner by the first respondent is tenable, since the first respondent acted bona fide taking into consideration relevant factors which justified such termination. In that view the second respondent passed an award dismissing the claim of the petitioner. The petitioner challenges the awards of the second respondent in the present writ petition.

3. The primary question was argued before me by Mr. P. R. Govindaswami Iyer, the learned counsel appearing for the petitioner is that the finding of the second respondent that the petitioner is not a workman within the meaning of S. 2(s) of the Act the he will be hit by the exemption under S. 2(s)(iv) of the Act is in ignorance of the factual materials placed in this case. It is needless to point out that the decision relating to the status of the workman which touches the jurisdiction of the Labour Court can be reviewed by this court under Art. 226 of the Constitution of India if the error is an error of law apparent on the face of the record. This obliges me to consider the question as to whether the second respondent committed any error of law when he adjudicated that the petitioner comes with in the exemption under S. 2(s)(iv) of the Act. The petitioner was entertained by the first respondent at its Trivandrum branch by order, dated 13th November, 1963, marked in this case as Ext. M-1. Exhibit M-2 is the order of confirmation passed by the first respondent, with regard to the employment of the petitioner on 21st August, 1954. The petitioner was working in different branches of the first respondent and at the relevant point of time he was working at Ooty Branch of the first respondent. By Ext. W-16, dated 1st July, 1976, the services of the petitioner were terminated by the first respondent with effect from the close of work on 5th July, 1976. The last drawn wages of the petitioner admittedly exceeded Rs. 500 per mensem. Exhibits M-1 and M-2 do not throw much light on the nature of the duties allocated to the petitioner. The employment of the petitioner was in the category of a foreman. Exhibit M-2 among other things, states as follows :

'You are expected to manage the workshop side of our business thoroughly and efficiently to the satisfaction of the management and our valuable customers without any complaints. You are to carry out all instructions and directions given to you by the management from time to time and all jobs are to be taken up only after getting the permission. You are responsible and plant and tools in the workshop and with workmen.'

Exhibit M-9 is dated 20th March, 1975, and it contains the list of duties assigned to the petitioner for his general guidance. Ext. M-9 reads as follows :

'Consequent to your posting to Ootacamund as foreman, the reasons for which have already been clearly indicated to you vide our transfer order No. DO 438, dated 7th March, 1978, we hereby append below the list of your duties for your general guidance. It addition to those the management reserves the right to utilise your services in any fashion and in any capacity as they deem fit depending on exigencies of work.

1. As a foreman, you will be generally in charge of maintenance of the shop, floor cleanliness and discipline. To achieve this object, first of all you must discipline yourself as indicated in our director's letter No. JAK 844, dated 8th June, 1971.

2. You shall not take leave or absent yourself which are not in accordance with the leave rules of the company. As your services may be required at any time due to exigencies of work, only after getting prior permission from the branch manager you will proceed on leave. The branch manager has the right to cancel your leave applied for and ask you to report for duty if there is any emergency due to exigencies of business.

3. You will test the vehicles and for this purpose a test report form is enclosed herewith. This form must be maintained and submitted to the branch manager weekly for his scrutiny and remarks. The testing time alone per vehicle should not exceed 15 minutes at anytime whatsoever.

4. Before sub-contracting jobs for machining or painting, etc., you must consult the branch manager get his approval first and only then proceed.

5. You will talk to the customers with patience and politeness and on no account there should be complaint from customers for rude behaviour, careless answering, etc.

6. You will conduct yourself in a good manner both with the staff and workers so that there will be no complaint whatsoever about your behaviour from anybody.

7. On no account you should disclose any failure, etc., on new vehicle to customers or involve in anti propaganda as it will affect the reputation of of the company. If there should be any such instance brought to our notice, disciplinary action will be taken against you.

8. You should be punctual in attending to your duties as that is expected of you.

9. You will report tot he branch manager daily and keep him appraised of the progress in the workshop from time to time.

10. You will assure that all vechiles coming in have a job cart made out and before delivery consult the billing department and effect delivery of the vehicles after attention in consultation with and approval of the branch manager.

11. You have no right to decide whether any repairs should be done not or charge, etc., except that you can put in your recommendations to the branch manager.

12. On no account, you will interfere with the billing department or inform the customers and release the vehicles assuming that the repairs, are free of cost. It there is any such instance, such cost of repairs etc., is likely to be deducted from the salary payable to you.

13. Above all, it is most important that you strictly obey the orders of the branch manager and co-operate with him to the utmost extent to achieve the desired results without putting forth excuses.

You are hereby required to acknowledge receipt of this letter and confirm having noted the instructions by signing and returning the duplicate copy to the branch manager for onward transmission to this office.'

Exhibit M-13 is a letter from the Branch Manager, Ooty, of the first respondent to the petitioner and it is dated 2nd January, 1976, and this letter sets out detailed instructions as to the discharge of the duties by the petitioner. Exhibit M-13 reads as follows.

'This is to confirm the discussions the writer had with you today regarding the existing procedures adopted in the workshop and also regarding the labour turnover achieved so far. As pointed out during the discussion, your primary responsibility will be to supervise all repair activities of cars, trucks, tractors and motor cycles and to clear off the old defects and achieve the labour sales target laid for the branch for this year ending March, 1976.

In the process of discharging your duties you will have to road-test vechiles before and after repairs, allot work to men, handle them tactfully and get the best out of them. Customers satisfaction is our aim and this is to be achieved with a team effort and you should set an example by politely and, courteously handling the customers. You will report to the undersigned the day to day activities of the workshop, progress of work and your suggestions in improving the quality of work and turnover will be given due attention.

Since, there has been some complaints in the past regarding the activities in the workshop, with effect from 5th January, 1976, you are instructed to strictly implement the following :

1. You will arrange for : (i) complete cleaning of the shop floor, segregating the scraps from usable materials; and (ii) making on the bays for cars, trucks, tractors and motor cycles in line with, the discussions the writer had with you, before 5th January, 1976.

2. You will take out a list of available tools with the mechanics and other wise and also list our your barest minimum requirement of tools and submit to the undersigned before 10th January, 1976.

3. Only you should road-test the vechiles and trade plate must be used. In case the trade certificate is otherwise engaged only on those occasions and if road testing is absolutely essential you may take out the vehicle for trial for a short run with utmost caution.

4. Only stipulated trial route should be used and the road testing form will have to be duly filled in for every vehicle. Considering the cost of petrol trail runs must be made only if necessary and that too diagnosing must be done in a short run as far as possible.

5. In your absence, mechanic Krishnan can be asked to look after the shop and also to road test vechiles.

6. When the vehicle is taken out for a trial run only one assistant is to be taken and only if absolutely essential the mechanic should go.

7. As far as possible direct contract between mechanics and the customer is to be avoided and workshop staff should meet and take care of the customers.

8. A separate work allocation is issued for Mr. Reghuraman and Mr. Cyril Rozario and you are expected to supervise and co-ordinate their activities.

9. You should attempt to take in other makes of vechiles than Ambassadors and also entertain more repairs of trucks.

10. Your request for more men in receiving our attention and this will be justified if you show substantial improvement only in labour turnover.

11. You must be fully conversant with the latest service bulletin issued by our principals and you must educate mechanics.

With you background and your service in the organisation, the management hopes that your will rise upto the occasion and your performance will be watched with interest during the ensuring months.'

4. The second respondent considered these documents along with the other documents placed by the parties and summed up the principle and main duties of the petitioner as a foreman as follow :

'1. The general control and supervision over workers of the department.

2. Allocation and re-allocation of work to workers.

3. Instructing the workers as to how to proceed with the work of repair or maintenance of the vehicles; guiding them as to how the job is to be done; and giving them necessary directions.

4. Going round the shop floor to see how the jobs are being done by the workmen, inspect the progress made, ensuring that repair Schedules are adhered to and instructing change of parts.

5. Reporting on the performance of the workmen under him to superiors for necessary action.

6. Recommending sanction of leave to the workers.

7. Making suggestions to the management regarding possible improvements in the upkeep and maintenance of the shop floor and about the performances and potentialities of the workmen.'

5. The petitioner examined himself as W.W. 1 and he stated that his main works were wheel alignment, brakes and engine tuning and incidentally he had to supervise the work of the other workmen. He did not dispute the correctness of the allocation of duties as set out in Exts. M-9 and M-13. Apart from the ipso dixit of the petitioners as W.W. 1. Nothing is brought out form records that the petitioner was principally and substantially discharging the work of a mechanic in the services of the first respondent. The learned counsel appearing for the petitioner is not in a position to dispute the summary of the principal and main duties as set out about made by the first respondent. In Burmah Shell Co. v. Burmah Shell Management Staff Association, : (1970)IILLJ590SC , the Supreme Court points out that the principle is now well-settled that for the purpose of finding out as to in which classification a person is employed to do, and if it is supervisory work it would be held that the person was employed to do supervisor's work even though he may be also be doing some technical, clerical or manual work. In that case the Supreme Court was examining the questions as to whether a foreman (Chemicals) under the management in that case would come within the category of a workman or he should fall within the exception under S. 2(s)(iv) of the Act. The following observations found at pages 603 and 604 of the Report are worthwhile nothing :

'The foreman (chemicals) examined is M. D. Daniel. The claim of the Association was that he was employed essentially to do technical and manual work. In this evidence, he first described the work done by a chemist which was a post held by him earlier. Giving the duties of the foreman (chemical) he stated that he main part of his duties as foreman is to be responsible for the blending of the chemicals. He admitted, that the work of packing, capping and filling is done by laborers under his supervision. He himself makes only random checks in order to ensure that the labourers are doing the work properly. He admitted that he allots the work to the workmen under him who are 20 in number. Further, he had another 20 workmen under him for filling of furnace oil. Though he denied that he was responsible for their disciplines, he admitted that he makes reports to the officer incharge (chemicals) whenever an occasion arises. He signs gate passes and material vouchers. He recommends promotions of the men working under him and he is entitled to select a person for acting in a higher capacity for the day when the person occupying the higher job is absent. It is his duty to enasure utilisation of man-power. Like Nathai, he also signed chits for leave not exceeding 18 days as I/C department; but he has also pleaded that this signature was made in token of recommendation and not sanction. The workmen working under him in the chemical department include checkers, general workmen, packers and chemical mixer. These duties, which are performed by Daniel, on the face of it, are primarily and substantially those of a suprevisory nature. His own manual work is only incidental and forms a small part of his duties. In dealing with his case, the Tribunal got slightly mixed up inasmuch as the facts relating to duties of chemists were also taken into account. Daniel who is now foreman (chemicals) was earlier a chemist. The work performed by a chemist should not, therefore, have been taken into account when determining what work Daniel is employed to do. The duties mentioned above clearly show that his principal duties are of a suprevisory nature and the manual work done by him personally is only incidental. Since he also draws a salary in excess of Rs. 500 per mensem, he must be held not to be a workman under exception (iv).'

6. The facts of the present case not more less similar to the case dealt with by the Supreme court. The learned counsel for the petitioner submits that the petitioner has been trained with regard to certain techniques connected with repairs of motor vehicles and this is evident from Exs. W-13 and W-14 and hence the workman must be deemed to have discharged principally the duties of a workman in the category of a mechanic. A reading of these documents does no convey any such meaning. Exhibits M-9 and M-13 taken along with other documents considered by the second respondent in detail leave no room for doubt that the petitioner was principally and substantially discharging the work of a supervisor, though he had the nomenclature of a foreman. The learned counsel for the petitioner draws my attention to the judgment of a Division Bench of this Court consisting of Ramanujam and Padmanabhan, JJ., in Engineering Construction Corporation Ltd. v. Additional Labour Court Madras : (1980)IILLJ16Mad in support of his submission that merely because the petitioner was designated as a foreman, it cannot be concluded that he was doing work of a supervisory nature of the work and not the nomenclature which is the criterion for the purpose of deciding the question as to whether a person is a workman or not within the meaning of the Act. Nobody disputes this principle. But, on analysing the jurisdictional facts in this case in my view the conclusion has rightly been reached by the second respondent that the petitioner was employed in a supervisory capacity and since he was drawing wages exceeding Rs. 500 per mensem at the relevant point of time he will be hit by the exemption under S. 2(s) of the Act and agitate for the reliefs by was of an industrial Dispute under the Act. Since this question is answered against the petitioner it is unnecessary to go into the other question as to whether the non-employment of the petitioner by the first respondent is justified or not. In this view I do not find any warrant for interference in writ proceedings and accordingly the petition fails and the same is dismissed. There will be no order as to costs.

7. Petition dismissed.


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