Amar Singh Chouhan vs Manager, Midas Mink Optical Pvt. Ltd. and Others

By way of this intra-Court appeal, the petitioner-appellant seeks to question the order dated 13.08.2012 as passed in CWP No. 6087/2012 whereby the learned Single Judge of this Court has declined to interfere in the award dated 06.03.2012 as passed by the Labour Court, Jodhpur in Labour Dispute Case No. 47/2006. By the award aforesaid, the Labour Court, Jodhpur had answered the reference against the appellant after finding him to be not a workman under clause (s) of Sec. 2 of the Industrial Disputes Act, 1947 (''the Act of 1947'') and after further finding the term of the reference, as regards the date of alleged termination, to be incorrect. The reference made to the Labour Court had been as under:--

The Labour Court, after examining the evidence on record, particularly the admission of the appellant about his salary being in the sum of Rs. 3,800/- per month with an additional amount of Rs. 700/- per month; and job being essentially that of a Supervisor, has found him not covered in the definition of "workman" in the following:

The Labour Court further held that the date of alleged termination as 01.01.2003 in the terms of reference was incorrect, with reference to the admission of the appellant himself and for want of cogent evidence on the related facts in the following:--

Seeking to question the award aforesaid, it was submitted on behalf of the appellant before the learned Single Judge that under various communications and certificates sent to the authorities under the Payment of Gratuity Act, 1972 (''the Act of 1972'') and the Employees'' State Insurance Act, 1948 (''the Act of 1948''), the respondent-employer had shown him to be a person employed as a workman and thus, the finding of the Labour Court was not correct. The learned Single Judge has examined the definition of employee as occurring in clause (e) of Sec. 2 of the Act of 1972 and found the said definition distinct than the definition of workman under the Act of 1947 inasmuch as under the Act of 1972, even the person employed in managerial or administrative capacity was to be treated as an employee but it were not so under the Act of 1947. The learned Single Judge further observed that even under the Act of 1948, the concept of workman was different and in the term used, i.e., "employee", the person even working in managerial capacity was not excluded. The learned Single Judge endorsed the findings of the Labour Court and found no case for interference in the following:--

On the other hand, from perusal of the facts discussed in the award impugned, it is apparent that the petitioner himself accepted that he was working in managerial capacity as he was maintaining the attendance register of the workman and was looking after the work done by the labourers pertaining to production. The name of the petitioner was also registered in the register pertaining to the managerial staff. As such, I do not find any wrong with the finding arrived by the Labour Court under the award impugned that may warrant interference of this Court.

Seeking to question the award and order aforesaid, the learned counsel for the appellant has strenuously argued that the Learned Single Judge and the Labour Court have not examined all the relevant features and aspects of the case. It is submitted that the suggestion about the appellant being employed in any supervisory capacity came up from the respondents only when the matter was referred to the Labour Court and else, on the earlier occasions, the stand of the respondent-employer had been materially different. The learned counsel has particularly referred to the certificate of the employment (Ex. 5) and so also the list of employees (Annex. 26), as sent by the employer, to submit that therein, the appellant was never suggested to be a person employed in any managerial or supervisory capacity. The learned counsel has further submitted that even the statement made by the appellant has not been considered in its correct perspective and the relevant aspect of the matter given out by the appellant that he was employed as a workman but was also asked to look after the supervisory work, after one Kanti Lal left the services in the year 1998, has not acquired due attention. We are afraid, the contention as urged do not make out a case for interference.

During the course of submissions in this matter, the learned counsel for the appellant has placed before us for perusal a certified copy of the statement of the appellant, as recorded before the Labour Court. It is noticed that before the writ Court, only the affidavit forming examination-in-chief was placed on record as Annexure-10 but not the cross-examination part. Be that as it may, in the interest of justice, we have examined the certified copy of the statement of the petitioner, particularly regarding his cross-examination. Having perused the same, we are satisfied that the award made by the Labour Court does not suffer from any perversity or omission to consider any material aspect. The appellant has specifically admitted in the cross-examination thus:

It is also noticed that the appellant though alleged having sent a medical certificate about his alleged illness on 01.01.2003 but stated that the postal article came back to him with the endorsement that the establishment was closed. However, the returned envelopment was not placed before the Labour Court.

Thus, in the sum and substance, the finding that the appellant was working in managerial capacity is based on his specific admission as regards the nature of job (i.e., of a Supervisor) as well the wages paid to him (i.e., a sum of Rs. 3,800/- with additional amount of Rs. 700/- per month). At the relevant time, the provisions of clause (s) of Sec. 2 of the Act of 1947 read 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 the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Both on the nature of job and quantum of wages, the appellant did not answer to the description of a workman for the purpose of the Act of 1947.

The suggestion about the name of the appellant occurring in the communications made to the other authorities is also of no avail. The said communications were for the purpose of Payment of Gratuity Act, 1972 and for the purpose of the Employees'' State Insurance Act, 1948; and will not inure to the benefit of the appellant so far as the question involved in the matter is concerned, i.e., as to whether he was a workman under the Act of 1947 or not. The learned Single Judge has rightly dealt with the issue as raised and has rightly rejected the contentions of the appellant.

In a comprehension of the record, we find no reason to show any disagreement with what has been observed by the learned Single Judge. It may be observed that even the alleged date of termination of services, as occurring in the reference order, had not been correct nor the appellant had been able to make out any such case that his services were terminated on 01.01.2003. On the contrary, the finding as recorded by the Labour Court appears to be in accord with the record of the case.

Viewed from any angle, we are unable to find any reason to interfere in the considered award made by the Labour Court and the considered order passed by the learned Single Judge of this Court. In the result, the appeal fails and is, therefore, dismissed.