Managers cannot be termed workmen, the Bombay High Court has held, in a significant verdict that throws light on a vexed issue on who constitutes a workman in the post-liberalisation era. Observing that Industrial law must keep pace with times, the Court also held that managerial organisation today is radically different from the pre-liberalisation era.“Managers do not become workmen because their decisions are structured by processes and approvals. Absolute autonomy is not a norm in managerial decision-making. Nor does a law insist on absolute discretion or absolute autonomy for a person to be a manager”, observed Justice D Y Chandrachud.
Justice Chandrachud gave the verdict that could have a bearing on the contemporary corporate world while upholding the claim of Standard Chartered Bank that its sacked employee Vandana Joshi was in managerial cadre and not a clerk.
“Tests appropriate to a society 30 years ago have become relics of an era which India left behind in annals of history”, he said.
Joshi was appointed as personal finance manager of the bank on May 2, 2006 but her services were terminated seven weeks later on June 23 on account of “deficiency in service”. She challenged her removal saying she was doing clerical duty falling within the definition of workman under Industrial Disputes Act.
“The fact that decisions of an employee are subject to verification or subject to a system of controls and balances does not establish that the employee is a workman within the meaning of Section 2(s) of Industrial Disputes Act”, Justice Chandrachud remarked.
This is my own case. I am in SLP No 4217-18 of 2011 before the Hon’ble Supreme Court. Just read the below, This will tell the winning formula.
As per the rules, each and every Advocate, makes a declaration and undertakes that –
He shall uphold the constitution of India and Laws.
As per Article 142 of Indian Constitution, The Law Declared by Supreme Court shall be binding on all courts within the territory of India.
The Ration Decidendi of a judgment is required to be culled out from reading the judgement in it’s entirely and not the part of it.
Hence based on the above undertaking, it can be concluded that the Advocates are bound by citing a judgement which has a similar Ration Decidendi with the current case.
Ration Decidendi
Ratio of a case can be extended to the other identical situation, Factual and legal but not mechanically discarding the rationality of that case, Deena V Union of India, AIT 1983 SC 1155: (1983) 4 SCC 545.
Invalid Decision:
A decision based on misrepresentation of vital facts vitiates and becomes invalid. A.I. Ranjane V Ravindra Ishwardass Sethna (2003) 1 SCC 379: AIR 2003 SC 300.
Mukesh K. Tripathi’s Vs. Senior Divisional Manager, LIC and Others. 2004 III CLR 534
1) Mukesh K. Tripathi was appointed as Apprentice for a period of one year. In Current Case the Appellant nature of Appointment was Permanent in Nature. As confirmed by the way of the offer Letter and Appointment Letter.
2) Mukesh K. Tripathi was getting a Stipend of Rs. 1250/- Per Month. In the Current case the Appellant “Workman” was getting a Guaranteed Pay Including PF, Gratuity and Super annuation.
3) Mukesh K. Tripathi “On completion of the apprenticeship period, if your work and conduct are found satisfactory, you will be appointed as development officer on Probation of monthly basic pay of Rs.700/- and such other allowances with staff regulations. In the Current case the Appellant was not under the Apprentice Act, 1961 but it was permanent in nature and there was no probation period.
4) Mukesh K. Tripathi being an Apprentice Development Officer is a person recruited for Training and subsequent appointment to the cadres of development officer. The period of apprenticeship is not counted as service for any purpose including seniority, increments, Gratuity, etc. In the Current case the “Appellant” was appointed as PFC and was executing Stereotype jobs which were clerical. The period of service was accounted for Seniority, Increments, Gratuity etc.
5) In Mukesh K. Tripathi Case Mr. Mukesh K Triptahi had raised a contention that his status has been changed from apprentice to a workman. In the Current Case, There is no change in the status of the Workman. As from day one the Workman was employed on permanent post and she never raised any contention on the change of status. However in the current case the “Appellant” in her Rejoinder had pleaded that duties performed by her were clerical in Nature.
The Current case has no ratio’s similar to the case of Mr. Mukesh K. Tripathi and hence this Authority could not have come to the Rescue of the Respondent Bank.
Ganga Kisan Sahkari Chini Mills Ltd’s. Case (Supra)
1) In Ganaga Kisan Chini Mills Ltd’s the respondent – Workman was engaged in Stop-gap arrangement only for the Trail Season after inviting Applications from the Public at Large, In which respondent concerned was not selected. Concerned respondent had not filed any appointment letter to show that his appointment was made against any permanent post. In the Current case the Appellant “ Workman” had successfully discharged the burden of Proof that She was appointed for a Permanent post by way of filling the Offer Letter and Letter of appointment.
2) Hence It is Evidently clear from the above “Facts” the Appellant has successfully discharged the Burden of Proof and in any case both the Cited cases by Respondent bank have no ratio similar with the current case and hence these Judgment cannot be used for reference in the current case.
3) It is pertinent to note that the Importance of Burden of Proof gets loosened when parties gives their evidence – When evidence has been led by the litigating parties, the gist of the case must be visible on evidence of parties- Abstract consideration burden of Proof need not be shown importance. The Question of burden of proof is important in early stages of the case it may assume importance where no evidence is lead on question in dispute by opposite side. In such an event the party on which the burden lies to prove a fact has fail where evidence has lead by contesting parties, burden of proof are out of transfer of the case. Above all it is well settled law of Hon’ble Supreme Court of India “ If Both the sides lead evidence, question of burden of proof pales into significance. Case Laws to be referred during the time of arguments.
In the Current case the Evidence, Both documentary and oral was led by parties before the CGIT and based on these evidence the Learned Judge (CGIT) rightly concluded that the appellant is a workman.
C.Gupta’s case (Supra),
The Judgment which the learned counsel has referred is totally different from the current case. The said Judgment was challenged in the Apex court vide Appeal (civil) 6543-6544 of 2004 and in the final verdict dated: 25th May 2004, the judgment passed by the learned single judge and DB was restored. However this case does not have any ratio proportion similar to the current case.
1) Page No 953: Para 2. “The selected candidate will advise the Corporate Personnel Department and through it, various establishments of the company on all matters relating to Labour Laws, prepare various applications and claims and appear selectively before Labour authorities such as Conciliation Officers, Labour Courts and Industrial Tribunals. “ The Person appointed in this case should at least have First Class law Degree Preferably a Master Degree”. This means that the Appellant was holding a Law Degree and was advising the management. In the current case the Appellant performing clerical and stereo type duties and had never advised anything to anyone and the same has been admitted by Management Witness -2 The Appellant was not even the final authority even in account opening.
2) Page No 955: Para 3. “The main contention pressed on behalf of the appellant was that the appellant was a qualified legal person. The principal nature of his duties, work and functions were to advice the management of the company. This work required knowledge of law, techniques of interpretation, creativity in formulating legal opinions and views in matters arising out of the affairs of the company for onward submission to the management for its consideration”. In the current case the appellant was performing clerical duties. She was supposed to open and close the Saving and Current accounts as per the KYC Norms. (As Per the Order passed by CGIT) and there is no evidence produced by the Respondent Bank that the Appellant “Workman” was doing any creative job. Neither the “Workman” was allowed to advice.
3) Page No 959/960 “We must record that it has not been argued before us that the appellant was doing “clerical”, “manual” or “supervisory work”. The Only contention raised was that the appellant was doing “ Technical Work”. In this case the Appellant has argued and proved before the Tribunal and the Single Bench that she was doing clerical work.
4) Page No: 963 “ Now what is to be noted is that once it is seen that predominant nature of the activities of the appellant was to provide advice and guidance in industrial matters, his duties would fall overwhelmingly in the managerial cadre, May be in the lower level thereof. In the Current case the appellant was not providing advice and guidance to any one on the contrary she was doing clerical duties of opening and closing the saving and current account as per the KYC Norms. In her evidence MW-2 had admitted that the it was the managerial staff of the respondent bank who attending the meeting to control the cost. The cost Budget was decided by the Regional Head. This proves that the Appellant “Workman” was not having powers to advise anyone and was not in the Managerial Staff.
5) Page No “965” In the Evidence submitted by the management it is submitted and proved that the appellant was not required to sign the muster roll/punch in, as workmen are required to do. He was notified as a Manager understanding the standing orders and empowered to exercise all powers there under.” In the current case the management has not been able to produce even a shred of evidence to prove anything.
6) Page No “965” That for the purpose of carrying out his Managerial duties he was also provided with stenographer and clerical assistance. Since these employees worked under him, he appraised them in merit rating form in his capacity as their superior. All expenses vouchers of these employees were also sanctioned by him and would be paid only if they bore his signatures and endorsement as having authorized and approved expenditure. He also sanctioned leaves. As management staff grade II, he was also empowered to authorize payments of substantial amounts for various purposes enumerated in the then current expenditure control procedure. Mr. Guptta represented the company before various conciliation officers and other quassi judicial authorities at branches and locations, the responsibility to present the case properly was his. He would be accompanied by a local personal officer, who was in the lower grade than hin, for assistance on points of facts.” In the current case the appellant was not performing any of the above duties and she was not sanctioning the leaves, neither she approved any sought of expenditures and nobody reported or assisted her while doing her clerical duties.
7) Page No 966 “ He admitted in his evidence that even apart form giving advise to the management form time to time, he had other independent functions such as preparing draft enquiry report in domestic enquiry and conducting domestic enquiries. In our view , these were duties pertaining of the maintenance of discipline amongst the employees which is a part and parcel of managerial process of the company. In the Current case the appellant was not doing any of these duties and she did not have any body reporting to her and neither she was responsible for maintenance of discipline amongst the employees.
8) Page No 966 “ He admitted that he was notified as a manager under standing orders which were produced by the company in evidence and marked at Exhibit (U-15). In the current case the appellant was performing the clerical duties.
In lieu of the above facts discussed, it is proved the appellant in the current case was discharging the duties and responsibilities which are entirely different from the duties and responsibilities mentioned in the referred Judgment. Hence the case does not have any similarity in the ratio and proportion of the current case. Therefore this citation becomes irrelevant in the current case.
M.G. Bhide Vs. Britannia Industries Limited
The Judgment cited by the learned Advocate is irrelevant in the current case as the MW-2 had accepted (In Cross) the existence of DSR . This DSR Curriculum which is a new piece of Evidence makes it clear that the Appellant was not doing any sales and hence the authority cited is irrelevant in the current case.
It is erroneous to consider The Judgment of Intru Noronha’s and colgate Palmolive india ltd and consider that the swift evolution of technology has led to change in Business Environment. It is true that the Swift evolution of technology has led to increase in the speed of doing business but with reference to above Judgments the Clerks are yet to graduate to Lower management Cadre. The Current case is of Banking Industry and not of Software, Bio-genetics or Business at cutting edge of technology. In banking industry a person employed to open and close the Saving and Current Accounts is using the technology to speed up the transaction and using of technology does not takes a workman out of the purview of the ID Act, 1947. In earlier days Banks used to have Big registers and Files in which the Forms Filled and documents submitted were kept. However as the industrialization evolve, along with the lines of Human evolution. The same job is being done by way of Computers. It is pertinent to note that the same procedure is being followed and now the application written and signed by the customers are being punched into the computer and finally loaded in the server. While making the transaction (banking) of tallying the signatures the clerk now is tallying the signatures using the scanned documents which is in computer server and has been linked to account of the customer. It is proved that the Banking industry is using the Technology for the speeding up the transaction and not for converting the clerks to managers. The Clerk employed in Bank in earlier days was recording the transaction manually but now they are doing the same on computers but still they are performing the stereotype Duties. It will be an error to equate the Banking industry with Software and Bio-genetics industry as it is not the banking industry which is making the software, it is the software companies like wipro, Infosys etc are in the business of innovation and creativity. The Biotechnology industry deals with R&D, in which the Scientist is using creative and innovative methods to develop the Medicines for Protecting Human Life. In this industry (Biotech) the Scientist first indentifies the Solution to the Existing diseases in R&D and then they scale up the same for Production. This is being explained by way of the examples. “Indian Agriculture Institute of India, New Delhi had developed a Particular Variety of Rice which can grow in the Salty Water. This was done by the way of Identification of the Gene in the Mangrove trees which are growing near the Sea/Ocean. This gene which is responsible for the life of these trees in salty water was identified in R&D and then it was transferred into the Rice Gene. Thus it is proved that this industry is working on Innovation and Creative and the rules of this industry cannot be used for the Banking Industry.