Case Law Details
Venkatesh Seena Naidu Vs Netel India Limited & Anr. (Bombay High Court)
Predominant Nature of Duties Determines Workman Status under Industrial Disputes Act, 1947.
Bombay High Court, in Venkatesh Seena Naidu Vs Netel India Limited & Anr., examined whether the petitioner qualified as a “workman” under Section 2(s) of the Industrial Disputes Act, 1947. The petitioner, formerly Manager-Development at Netel India, contested his termination, claiming technical duties as his predominant role. The Labour Court initially rejected his claim, ruling that his duties were supervisory, thereby excluding him from the Act’s definition of “workman.” The petitioner’s appeal sought to challenge this conclusion.
The petitioner argued that his work was technical rather than managerial or supervisory, with no decision-making authority. He contended that incidental supervisory tasks should not override the predominant nature of his technical responsibilities. The company countered, highlighting his designation and pay scale as indicative of supervisory duties, further substantiated by evidence of overseeing multiple employees. Despite the petitioner’s reliance on precedents emphasizing the importance of primary duties over titles, the Labour Court’s decision remained unfavorable to him.
A significant aspect of the case was the six-year delay in filing the petition. The court noted the petitioner’s lack of explanation for the delay, deeming it a reason to dismiss the plea on procedural grounds. Moreover, the petitioner had resumed employment elsewhere post-termination, which further diluted his claim.
The judgment reiterated that predominant duties, rather than designation or salary, determine workman status under the Industrial Disputes Act. However, the court found insufficient grounds to challenge the Labour Court’s conclusion that the petitioner performed supervisory duties.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. The challenge in the present petition is to the Order dated 12 February 2016 passed by the Presiding Officer, 8th Labour Court, Mumbai answering the Reference filed by the Petitioner in negative by holding that Petitioner is not a ‘Workman’ within the meaning of Section 2(s) of the Industrial Disputes Act (I.D. Act), 1947.
2. The Petitioner was appointed in Respondent No.1-Company as Assistant Manager-Projects (WWT) vide appointment order dated 25 April 2005. He came to be confirmed in service by redesignating him on the post of Manager-Development (WWT) vide Order dated 25 February 2006. According to Petitioner, his job involved predominantly discharging duties of technical nature. It is Petitioner’s case that, he was subjected to harassment, mental agony and torture at the instance of his superiors and by letter dated 19 April 2006 (erroneously transcribed as 19 April 2004), his services were terminated with immediate effect.
3. Petitioner approached Deputy Commissioner of Labour (Conciliation), Mumbai and filed Statement of Justification dated 19 August 2006. Upon failure of conciliation proceedings, The Deputy Commissioner of Labour (Conciliation) made a reference of the dispute regarding termination of services of the Petitioner and his claim for reinstatement to 8th Labour Court, Mumbai for adjudication. Petitioner filed his Statement of Claim. Respondent No.1 resisted the claim by filing its written statement inter alia raising a defence that Petitioner is not a “Workman” within the meaning of Section 2(s) of the Industrial Disputes Act. It also justified termination of services of Petitioner on merits. The Labour Court framed total 8 issues. Issue No.1 is about Petitioner fitting within the definition of the term ‘Workman’ under Section 2(s) of the I.D. Act. By its judgment and Order 12 February 2016, the Labour Court answered Issue No.1 in negative and held that Petitioner is not a Workman. Therefore, no occasion arose for answering Issues No.2 to 8. The Labour Court has answered the Reference in negative by its Award dated 12 February 2016, which is the subject matter of challenge in the present petition.
4. Mr. Shaikh, the learned senior advocate appearing for the Petitioner would submit that the Labour Court has erred in holding that Petitioner is not a Workman within the meaning of Section 2(s) of the Act. According to Mr. Shaikh, the Petitioner performed duties predominantly of technical nature. That he did not have any decision making authority and his decision did not bind the Company in any manner. That several admissions are given in the cross-examination of witness of Respondent No.1 which are ignored altogether by the Labour Court. That Respondent No.1 did not produce the duty list of the Petitioner nor produced any material to disprove the contents of paras-2 and 3 of Affidavit of examination-in-chief. That no documentary evidence was filed to prove that any employee was working under the supervision of the Petitioner. Mr. Shaikh would therefore submit that after considering the deposition of the Management witness in cross-examination, the entire theory of Petitioner working in supervisory capacity got demolished. That in absence of any documentary evidence being produced, the Labour Court has erred in relying on mere oral deposition of management witness.
5. Mr. Shaikh would submit that the test of predominant nature of duties is required to be applied. That it is a settled law that if the predominant duties are of technical nature, merely because a person occasionally performs supervisory duty, the same would not take him out of the purview of definition of the term ‘Workman’. Taking me through the definition of the term ‘Workman’ under Section 2(s) of the I.D. Act, Mr. Shaikh would submit that Petitioner was performing neither managerial, administrative nor supervisory duties. That mere designation of the employee is not indicative of the exact nature of duties performed by him/her. That on the basis of the duty list provided by the Petitioner, it is proved that predominant nature of duties performed by him are of technical nature. Mr. Shaikh would submit that despite inviting attention of the Labour Court to the decisions of the Apex Court in The Spices & Oils Seed Exchange Ltd.1, Arkal Govind Raj Rao2, H.R. Adyanthaya3 and Vandana Joshi4, the Labour Court has erred in not applying the predominant test and has merely gone on designation of the Petitioner and the wages drawn by him. Additionally, Mr. Shukla would rely upon the Judgment of the Apex Court in Ananda Bazar Patrika (P.) Ltd5 and May and Baker6.
6. Per-contra Mr. Mookhi the learned counsel appearing for Respondent No.1 would oppose the petition and support the order passed by the Labour Court. He would submit that the petition deserves to be dismissed for the reasons of gross delay and laches in filing the same. That the Award of the Labour Court is passed on 12 February 2016 and the present petition is filed in April 2022 without offering any justification for the gross delay in filing the same. He would submit that even though no period of limitation is applicable in filing a Writ Petition under the provisions of Article 226 and/or Article 227 of the Constitution of India, it is equally well settled that the same must be filed within a reasonable period.
7. Inviting my attention to the definition of the term ‘Workman’ under Section 2(s) of the I.D. Act, Mr. Mookhi would submit that no straight jacket formula can be applied for determining whether a person is Workman or not. That it depends on nature of duties performed by a person. In the present case, Petitioner was appointed as Assistant Manager, Projects and was redesignated upon his confirmation on the post of Manager-Development. That there was upward movement from the post of Assistant Manager to the post of Manager-Development as there was a rise in the basic pay. Inviting my attention to the findings recorded by the Labour Court, Mr. Mookhi would submit that performance of predominant supervisory nature of duties is proved. That though designation alone cannot determine whether Petitioner is workman or not, the nomenclature of designation coupled with the evidence of supervising 10 to 15 employees was sufficient to hold that the predominant nature of duties performed by the Petitioner is of supervisory in nature. In support of his contention, Mr. Mookhi would rely upon the Judgment of the Apex Court in Burmah Shell7.
8. Rival contentions of the parties now fall for my consideration.
9. The first ground on which dismissal of the petition is sought by the Respondent is delay and laches in filing the present petition. The impugned Award of the Labour Court is passed on 12 February 2016 and the present petition is filed on 23 April 2022. The petition is thus filed after undue delay of six long years. The only explanation given in this regard is to be found in para-9 of the Petition which reads thus :
9. The Petitioner states and submits that the impugned Order was passed on 12/02/2016 and, therefore, the Writ Petition which is filed today has been done as expeditiously as it was possible for the Petitioner.
10. Thus no explanation is offered by Petitioner for filing the present petition six years after passing the impugned Award. Though no period of limitation applies for filing of the present petition, which is shown to have been filed under the provisions of Article 226 of the Constitution of India, it cannot be said that Petitioner can wake up at any point of time and approach this Court with a stale grievance. Petitioner ought to have given explanation for gross and inordinate delay of six long years in filing the present petition. No explanation is pleaded, which means that no explanation is available. Apart from delay, it must be observed that Petitioner is seeking grievance with regard to termination of his services. Any employee, who is terminated, is bound to be vigilant of remedy to be exercised in respect of such termination. In the present case however, Petitioner has slept over the issue for 6 long years and has filed this petition without giving any justification for delay. Petitioner has been apparently employed in another organization after his termination. These laches on the part of the Petitioner is yet another reasons why Petition cannot be entertained. Thus Petitioner is guilty of both delay as well as laches and this itself is a fit ground for this Court declining to exercise jurisdiction under Article 226 of the Constitution of India. Petition therefore deserves rejection on grounds of delay and laches.
11. Even if the objection of delay and laches was to be ignored, in my view, no case is made out even on merits for interference by this Court in exercise of writ jurisdiction. Since extensive submissions are made by the learned counsel appearing for rival parties on merits, I proceed to deal with the same by momentarily ignoring the issue of delay and laches.
12. The short issue involved in the present petition is about the correctness of the findings recorded by the Labour Court holding that Petitioner is not a ‘workman’ within the meaning of Section 2(s) of the I.D. Act. There can be no doubt to the proposition that mere designation of an employee cannot be determinative of his status as workman or otherwise. It is also equally settled that what is important is the predominant nature of duties and incidental performance of supervisory duties would not make an employee a person employed in supervisory capacity. The law in this regard is well settled by various judgments relied upon by Mr. Shaikh in The Spices & Oils Seed Exchange Ltd., Arkal Govind Raj Rao, H.R. Adyanthaya, Vandana Joshi (supra).
13. The Apex Court in Burmah Shell (supra) had laid down tests in cases where employees perform more than one kind of work for the purpose of determining whether he fits into the definition of the term ‘workman’. The Apex Court took note of its judgment in Ananda Bazar Patrika and May and Baker, on which reliance is placed by Mr. Shaikh, and held that if a person is mostly doing supervisory work and, incidentally or for a fraction of time, also does some clerical work, he is employed in a supervisory capacity and conversely if the main work done is of clerical nature and the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of work done by him will not convert his employment as a clerk into the one in a supervisory capacity. The Apex Court held in paras-5, 6 and 7 as under :
5. For an employee in an industry to be a 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. Mr. Chari on behalf of the Association, however, put forward the argument that this definition is all comprehensive and contemplates that all persons employed in an industry must necessarily fall in one or the other of the four classes mentioned above and, consequently, the Court should proceed on the assumption that every person is a workman; but he may be taken out of the definition of workman’ under the four exceptions contained in the definition. The two exceptions with which we are primarily concerned are Exceptions (iii) and (is). Under Exception (iii), even a workman, who is employed mainly in a managerial or administrative capacity, goes out of the definition of ‘workman’, while under Exception (iv), persons, who are employed in a supervisory capacity, go out of the definition, provided they either draw wages exceeding Rs. 500/- per mensenm or exercise, by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature.
6. We are unable to accept this submission. In the case of May and Baker (India) Ltd. v. Their Workmen, this Court had to consider the correctness of a decision of a Tribunal which had held that one Mukerjee, an employee in an industry, was a workman under the Act, because he was not employed in a supervisory capacity. The Court held.
“The Tribunal seems to have been led away by the fact that Mukerjee had no supervisory duties and had to work under the directions of his superior officers. That, however, would not necessarily mean that Mukerjee’s duties were mainly manual or clerical. From what the Tribunal itself has found it is clear that Mukerjee’s duties were mainly neither clerical nor manual. Therefore, as Mukerjee was not a workman, his case would not be covered by the Industrial Disputes Act and the Tribunal would have no jurisdiction to order his reinstatement.”
In that case, the Court thus held Mukerjee not to be a workman on the ground that his work was neither clerical nor manual which was the nature of the work envisaged in the definition to make an employee a workman. It is true that that decision was given on the definition of “workman” as it stood before the amendment of 1956 when the words “supervisory” and “technical” did not occur in the definition. Mr. Chari’s submission is that the amendment in 1956 introduced the words “supervisory” and “technical” with the object of making the definition all-comprehensive; but, on the face of it, it cannot be so. If every employee of an industry was to be a workman except those mentioned in the four exceptions, these four classifications need not have been mentioned in the definition and a workman could have been defined as a person employed in an industry except in cases where he was covered by one of the exceptions. The specification of the four types of work obviously is intended to lay down that an employee is to become a nan only if he is employed to do work of workman one of those types, while there may be employees who, not doing any such work, would be out of the scope of the word “workman” without having to resort to the exceptions. An example, which appears to be very clear, will be that of a person employed in canvassing sales for an industry. required to do any paper work, nor may he be required to He may not be have any technical ing the work of any other employees, nor knowledge He may nay not be supervising the would he be doing any skilled or unskilled manual work. He would still be an employee of the industry and, obviously, such an employee would not be a workman, because the work, for which he is employed, is not covered by the four types mentioned in the definition and not because he would be taken out of the definition under one of the exceptions.
7. The next aspect that has to be taken notice of is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In cases where an employee is employed to do purely skilled or unskilled manual work, or supervisory work, or technical work, or clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work, or he may be doing clerical work as well as supervisory work. He may be doing technical work as well as clerical work. He may be doing technical work as well as supervisory work. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of “workman” under the exceptions. The principle is now well-settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work. In the case of May and Baker India Lid. (supra), the Court, in the quotation cited above, noticed the fact that Mukerjee’s duties were mainly neither clerical nor manual. The significance attaches to the word “mainly”, because Mukerjee’s duties did involve some clerical and manual work, yet, he was held not to be a workman.
14. Section 2(s) of the I. D. Act defines the term ‘workman’ as under :
(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(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 (Ten Thousand Rupees) per mensem or exercises, either by the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
15. Thus any person employed in an Industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work becomes Workman. Some exceptions are identified which include a person employed mainly in managerial or administrative capacity or who, being employed in a supervisory capacity draws wages Rs.10,000/- per month. Thus, mere performance of supervisory work does not take a person out of the definition of the term ‘Workman’. For that purpose, what is required to be proved is not supervisory nature of work but employment in supervisory capacity.
16. So far as the present case is concerned, the Labour Court has held that the nature of predominant duties of Petitioner are combination of technical, administrative and supervisory. The Labour Court has also taken note of his designation as Manager possibly to suggest that the nature of duties were also managerial. Petitioner was employed in the capacity as Assistant Manager, Projects (WWT) and was paid basic salary of Rs.10,000/- per month in addition to various other allowances grossing his monthly salary to Rs.18,655/-. Clause-4.1 places his services in ‘Management Grade, MG-4’. On 25 February 2006, an Order confirming the services was issued on 25 October 2005. His designation was changed to that of Manager-Development (WWT), w.e.f. 1 February 2006. He was given a rise in basic salary which was fixed at Rs.11,000/-with monthly gross payment of Rs.29,400/-. According to Respondent No.1, this is a promotion granted to Petitioner to the post of Manager-Development. Though Petitioner’s designation alone cannot be indicative of the nature of duties performed by him, it must be borne in mind that both the designations attached to the Petitioner are of Manager. It has come in the evidence that 10 to 15 employees were working under the supervision of the Petitioner including Environment Engineer, Process Monitors and Erection Engineer. It has also come in the evidence that Petitioner’s nature of duties and responsibilities included finalizing the drawings, directly dealing with customers of the company, taking decisions on behalf of the company by paying site visits to the customers, etc. Considering all these aspects, the Labour Court has arrived at a conclusion that the employment of the Petitioner was in supervisory capacity.
17. I have gone through the nature of duties listed by the Petitioner in para-3M of the petition. The same are relied upon to prove that the predominant nature of duties are technical in nature. However, there is no escape from the position that 10 to 15 employees were supervised by the Petitioner during the course of performance of his duties. Petitioner has admitted in his cross-examination that customers of the Company used to directly deal with him by sending emails to him. That he used to take part in various discussions of the Company about various projects of the Company. That he used to approve the drawings etc. Additionally, the Company produced documentary evidence to show that the Petitioner used to directly deal with the patrons of the Company for finalizing the business deals. Thus, the finding of the Labour Court that predominant nature of duties was supervisory in nature, cannot be found fault with. Mere performance of technical duties incidentally would not make the Petitioner a ‘Workman’ as held by the Apex Court in Burmah Shell. The Labour Court has also held that being employed in supervisory capacity, Petitioner was drawing monthly salary of Rs.29,400/- and therefore he cannot fit into the definition of the term ‘workman’ under Section 2(s) of the I.D. Act. No patent error is traced in the findings recorded by the Labour Court.
18. I therefore found the impugned Award of the Labour Court to be unexceptionable. Petitioner is also guilty of delay and laches. The Writ Petition is therefore dismissed with no order as to costs.
Notes:
1 The Spices & Oils Seeds Exchange Ltd. V/s. Suhas Anant Kulkarni & Ors. 1986 II CLR 479.
2 Arkal Govidn Raj Rao V/s. Cona Geigy of India Ltd. Bombay, 1985 II LLJ 401 (S.C.)
3 H.R. Adyanthaya etc. V/s. Sandoz (India) Ltd. 1995 LAB. I.C. 1051 (S.C.)
4 Vandana Joshi, D/o. K.D. Joshi, Thane V/s. Standard Chartered Bank Ltd. 2011 II LLJ 261
5 Ananda Bazar Patrika (P) Ltd. V/s. The Workmen, 1970(3) SCC 248
6 Management of M/s. May and Baker (India) Ltd V. Their Workmen AIR 1967 SC 678
7 Burmah Shell Oil Storage and Distribution Company of India Ltd. V/s. The Burma Shell Management Staff Association and Ors. 1970 (3) SCC 378.
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