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

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1982)1MLJ406
Appellantivor Fernandez
RespondentThe Management of Stanes Motors (Southern India) Ltd. and anr.
Cases ReferredEngineering Construction Corporation Ltd. v. Additional Labour Court
Excerpt:
.....will be no complaint whatsoever about your behaviour from anybody. 7. on no account you should disclose any failure etc. as pointed out during the discussion, your primary responsibility will be to supervise all repair activities of ears, 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 vehicles before and after repairs, allot work to men, handle them tactfully and get the best out of them. well-settled that for the pupose of finding out as to in which classification a person would fall, we have to see what is the main or substantial work which that person is employed to do; like nathai, he also signed chits..........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 mechining 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:
ORDER

S. Nainar Sundaram, J.

1. The petitioner in this writ petition claiming himself to be a workman within the meaning of Section 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 Section 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 'workman' under Section 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 Section 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 bom fide taking into consideration relevant factors which justified such termination, In this view the second respondent passed an award dismissing the claim of the petitioner. The, petitioner challenges the award of the second respondent in the present writ petition.

3. The primary question that 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 Section 2(s) of the Act and he will be hit by the exemption under Section 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 Article 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 within the exemption under Section,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 Exhibit M-l. 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 Exhibit 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 to look after the machinery 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. Exhibit 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 genera guidance. In addition to these 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. JAKJ844, 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 mechining 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 propoganda as it will affect the reputation 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 expected of you.

9. You will report to the Branch Manager daily and keep him appraised of the progress in the workshop from time to time.

10. You will assure that all vehicles coming in have a job card 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 free of 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. If 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 ears, 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 vehicles 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 (') 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 otherwise and also list out your barest minimum requirement of tools and submit to the undersigned before 10th January, 1976.

3. Only you should road-test the vehicles 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 trial 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 vehicles.

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 contact between mechanics and the customer is to be avoided and the workshop staff should meet and take care of the customers.

8. A separate work allocation is issued for Mr. Reghuraman and Mr. Oyril Rozario and you are expected to supervise and coordinate their activities.

9. You should attempt to take in other makes of vehicles 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 bullentin issued by our principals and you must educate mechanics.

With your background and your service in the organisation, the Management hopes that you will rise up to the occasion and your performance will be watched with interest during the ensuing months.

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

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 other workmen. He did not dispute the correctness of the allocation of duties as set out in Exhibits M-9 and M-13. Apart from the ipso dixit of the petitioner as W.W. 1, nothing is brought out from 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 above 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 pupose of finding out as to in which classification a person would fall, we have to see what is the main or substantial work which that 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 question as to whether a foreman (Chemicals) under the management in that case would come within the category of a workman or he would fall within the exception under Section 2(s)(iv) of the Act. The following observations found at pages 603 and 604 of the Report are worthwhile noting:

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 his 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 the 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 labourers 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 discipline, he admitted that he makes reports to the 'Officer in charge, 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. Tt is his duty to ensure 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 mixers. These duties, which are performed by Daniel, on the face of it, are primarily and substantially those of a supervisory nature. His own manual work is only incidental and forms a small part of his duties. The 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 supervisory 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 are more or 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 Exhibits 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 not 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) 2 L.L.J. 16 : 56 F.J.R. 408, 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 and it is the 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 Section 2(s)(iv) of the Act and hence he cannot characterise himself as a workman within the meaning of Section 2(s) of the Act and agitate for the reliefs by way 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 T do not find any warrant for interference in writ proceedings and accordingly the writ petition fails and the same is dismissed. There will be no order as to costs.


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