IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 13842 OF 2018 (L-TER) BETWEEN:
A S RAGHAVENDRA AGED ABOUT 46 YEARS, S/O SRI A G SRINIVASA RAO, R/AT HOUSE NO.111, "DHARMASSHREE", IST "H" CROSS, 2ND MAIN ROAD, 3RD STAGE, 4TH BLOCK, SHARADHA COLONY, BASAVESHWARANAGAR, BENGALURU-560079 … PETITIONER (BY SRI. V S NAIK, ADVOCATE) AND:
M/S BHARATI AIRTEL LIMITED (A COMPANY REGISTERED UNDER THE COMPANIES ACT,1956) HAVING ITS OFFICE AT NO.55, DIVYA SREE TOWERS, BANNERGHATTA ROAD, BANGALORE-560029 REPRESENTED BY ITS LEGAL AND REGULATORY REPRESENTATIVE … RESPONDENT (BY MISS ROOPASRI, FOR SRI. SOMASHEKAR, ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS FROM THE PRESIDING OFFICER, II ADDL. LABOUR COURT AT BENGALURU, PERTAINING TO ANNEXURE-S; AND ETC., THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner – workman is invoking the writ jurisdiction of this Court for assailing the judgment & award dated 05.09.2017, a copy whereof is at Annexure-S, whereby the learned judge of the II Additional Labour Court, Bengaluru, having rejected the Reference made under Section 10(1)(c) of the Industrial Disputes Act, 1947 (‘Act’ hereafter) declined relief to him on the sole ground that, he does not fall within the definition of ‘workman’ given under Section 2(s) of the Act.
2. After service of notice, the respondent – Management having entered appearance through its counsel resists the writ petition by filing the Statement of Objections.
3. Learned counsel for the petitioner contends that the impugned judgment & award are bad in law inasmuch as, there is a wealth of material which establishes the credentials of the petitioner as a workman; the labour Court even after holding that the petitioner is not a workman ought to have recorded a finding on the second issue as to the purported resignation being involuntary and coercive; he banks upon the decisions of the Apex Court in support of his case, which are discussed hereinafter.
4. Per contra, learned counsel for the respondent – Management, Smt. Roopasri vehemently contends that the impugned judgment & award are unassailable; whether an employee is a workman as defined under Section 2(s) of the Act or not, being a pure question of fact, the Writ Court would not undertake a deeper examination of the said issue since it is not an appellate authority; going by the facts borne out by record, by no stretch of imagination, petitioner can be held to be a workman; the labour Court having answered the jurisdictional issue i.e., whether the petitioner answers the definition of workman in the negative, there was no need for the labour Court to expend time & energy in deciding the other issue, which if decided would have been ideal, being beside the point. She too banks upon certain rulings in support of her version, which are adverted to hereafter.
5. Having heard the learned counsel for the parties and having perused the petition papers and the original LCR, this Court is of a considered opinion that, reprieve needs to be granted to the petitioner for the following reasons:
(a) petitioner after interview was selected & appointed as a “Senior Manager” on 22.06.2009, he had no managerial and supervisory powers nor he had the authority to make appointment; none was working under him; he had the glorious designation of “Senior Manager”; after all the nomenclature of the post/position is not much important nor is the salary which admittedly was Rs.22 Lakh per year; he was looking after the tender related works with Central Government relating to “MACHINE MODE PROJECT” of the employer; his job inter alia included enhancing the sale quantum and increasing the revenue target; by no stretch of imagination, it can be denied that he is a workman as defined under Section 2(s) of the Act;
(b) in the Counter Statement, the respondent – Management at para no.4 has taken up the pleadings to the effect that petitioner falls within the exclusionary part of the definition of workman given under Section 2(s) of the Act; this to some extent amounts to admitting that the petitioner falls within the first part of the definition but, is excluded because of the other part; to prove that the petitioner falls within the exclusionary part, the Management has banked upon five documents as under:
(i) Exs. M7 (Annexure-J) & Ex.8 (Annexure-K) mentions petitioner as Assessing Manager; one Mr. Harjinder Singh Kohli is described as Reporting Manager; this document does not reflect as to how and by whom it is generated; the Management Witness in his cross- examination dated 14.02.2017 admits that when the petitioner was in the employment, the said Harjinder Singh Kohli was not working with the Management at all; in the cross-examination dated 05.04.2017, the said witness has denied the suggestion that all the five documents are doctored and manipulated; in these circumstances, this document does not advance the case of the respondent – Management that petitioner was in the supervisory/managerial cadre;
(ii) the Exs. M10, M11 & M12 respectively at Annexures L, M & N specifically mention name of the petitioner with the designation “worker”; but arguably, they may assist the case of the petitioner; this apart, these are the documents generated from the computer of the employer as admitted by the Management Witness in his cross – examination dated 05.04.2017; therefore, these documents do not advance the case of the Management at all;
(c) the Apex Court in the case of VEDA PRAKASH GUPTA VS. DELTON CABLE INDIA PRIVATE LTD., LAWS (SC) 1984 3 26, at para 12 has discussed about the indicia of managerial cadre; absence of power to appoint or dismiss or hold disciplinary enquiry against other workmen is one of the indicators that he does not belong to the managerial category; the reliance of the Management on the decision of the Apex Court in the case of CHAUHARYA TRIPATHI & ORS VS. L.I.C. OF INDIA, 2015 LLR 452, does not much come to its aid inasmuch as, the Development Officers in LIC who are held not to fall within the definition of workman since their principal duty was to organize & develop the business and for that purpose to recruit agents and to train/guide them; it hardly needs to be stated that these officers discharge statutory functions under the provisions of the Life Insurance Corporation Act 1956 which is referred to at para 12 of the said decision; the facts of the petitioner’s case and those of the Development Officers are poles asunder;
(d) similarly, the reliance of the respondent – Management on the Full Bench decision of the Bombay High Court, in the case of VANDANA JOSHI VS. STANDARD CHARTERED BANK LTD., LAWS (BOM) 2010-10-50 again does not much advance its case; at para no.7, the Court observed that the question as to whether a person is a workman or not, needs to be decided with reference to the nature of the duties performed by him, the nomenclature of the position/post being insignificant; the Court referred to another decision in the case of INTHRU NORONHA VS. COLGATE PALMOVLIVE INDIA LTD., LLJ (2005) 3 LLJ 95, and held that the appellant a bank employee who had power to sanction leave and initiate disciplinary proceedings was a workman; in fact, this decision could be banked upon by the petitioner in this Writ Petition also;
(e) although the labour Court had framed other issue as to petitioner’s purported resignation being a product of coercion, his termination amounts to retrenchment, no finding is recorded in this regard; the petitioner banks upon the decision of the Apex Court in the case of Dr. PRABHA ATRI VS. STATE OF UP AND OTHERS, (2003) 1 SCC 701 to contend that his so called resignation was a product of coercion and therefore, the same amounts to retrenchment, inasmuch as, the letter of resignation needs to be unconditional and voluntary; per contra, learned counsel for the respondent – Management submits that there was no need for the labour Court to decide this issue since it had rightly held the petitioner as not answering the definition of workman; since this Court has now disagreed with the finding of the labour Court as to the status of the petitioner, it is desirable to remand the matter for deciding the nature of resignation, in a time bound manner, without expressing any opinion on the said question.
In the above circumstances, this writ petition succeeds in part; the impugned judgment & award are quashed; the petitioner having been held to be a workman under Section 2(s) of the Act, the matter is remitted back to the labour Court for deciding the other issue preferably within an outer limit of three months, after hearing both the stake-holders, in accordance with law.
No costs.
Sd/- JUDGE Snb/