IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 171 of 1996 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA =========================================================
========================================================= CHIMANLAL KHUSHALDAS CHANDISA Petitioner(s) Versus PREMIER TYRES LTD & 1 Respondent(s) ========================================================= Appearance :
MS MO NARSINGHANI for Petitioner(s) : 1, SERVED BY AFFIX.(N) for Respondent(s) : 1, MS JIRGA D JHAVERI for Respondent(s) : 1, MR GK PATEL for MR VIPUL S MODI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 27/07/2012 CAV JUDGMENT
1. By way of this petition, the petitioner has challenged the judgment and award dated 5.7.1995 passed by the Presiding Officer, Labour Court No.4, Ahmedabad in Reference (LCA) No.1092 of 1987 and has also prayed for a declaration that the petitioner is a workman for the purpose of Section 2(S) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) and further directing the respondents to reinstate the petitioner with full back wages and continuity of service. The petitioner has also in the alternative prayed for remand of the matter for conducting an inquiry to the effect that the petitioner is a workman under Section 2(S) of the Act.
2. The facts which can be culled out from the record of the petition are that the petitioner was working as Delivery mancumGodown keeper in Ahmedabad branch office of respondent No.1. It is the case of the petitioner that the petitioner was appointed on 1.3.1964 and was thereafter given promotions in the nature of redesignation. It is the case of the petitioner that inspite of such redesignation, his duties and position in the hierarchy branch remains the same. It transpires from the record that the petitioner came to be removed from service on 12.3.1987. After departmental inquiry, the petitioner raised a dispute and as the conciliation failed, the same was referred to the Presiding Officer, Labour Court, Ahmedabad which came to be registered as Reference (LCA) No.1092 of 1987, wherein the petitioner claimed reinstatement with full back wages and continuity of service. The petitioner as well as respondent No.1 Company adduced evidence before the Presiding Officer, Labour Court and the Labour Court after considering the said evidence as well as documentary evidence on record by the impugned judgment and award dated 5.7.1995 has come to a conclusion that as the petitioner was working as Senior Assistant and as he was drawing salary of more than Rs.1,600/ per month and as the work undertaken by the petitioner is of supervisory in nature, the petitioner does not fall within the definition of workman as defined under Section 2(S) of the Act and the Presiding Officer of the Labour Court has also come to the conclusion that the order of dismissal passed by respondent No.1 after departmental inquiry is legal and proper and thereby, the Presiding Officer, Labour Court No.4, Ahmedabad dismissed the aforesaid reference. Being aggrieved by the same, the petitioner has filed the present petition.
3. Heard Ms. Manisha Narsinghani, learned advocate for the petitioner, Ms. Jirga Jhaveri, learned advocate for respondent No.1 and Mr. G.K. Patel, learned advocate for Mr. Vipul Modi for respondent No.2.
4. The learned advocates appearing for the respective parties have taken this Court through the factual matrix of the matter and have made their submissions.
5. Ms. M.O. Narsinghani, learned advocate for the petitioner submitted that the petitioner used to write inward bill number, name of the party, place of destination and the name of respondent No.1 on the jute cloth used for packing. It is submitted that whether a particular person is a workman or not is to be determined on the basis of the nature of his duties and not on the designation or name of his post. It is pointed out that the conclusion arrived at by the Presiding Officer of the Labour Court that the petitioner cannot be termed as workman within the ambit of Section 2(S) of the Act is perverse and contrary to the evidence on record. Learned advocate for the petitioner has relied upon the judgments in the case of (i) Triveni Engineering and Industries Ltd. Vs. Jaswant Singh & Anr., reported in AIR 2010 SC 2939 (Para 16), (ii) Sharad Kumar Vs. Govt. of NCT of Delhi, (2002) 4 SCC 490 (Paras 20 & 31), and (iii) Mayank Desai Vs. Sayaji Iron & Engg Co. Ltd., reported in (2010) 0 GLHELHC 224384 (Paras 16 & 17) and submitted that in view of ratio laid down in the aforesaid judgments, the Labour Court has committed an error in coming to the conclusion that the petitioner is not a workman as provided under Section 2(S) of the Act.
6. Learned advocate for the petitioner further submitted that the action of respondent No.1 in forfeiting the gratuity on the basis of the alleged misconduct is illegal and the punishment which is imposed upon the petitioner is excessive and disproportionate. Learned advocate for the petitioner has further relied upon (i) Umesh Kumar Sinha Vs. State of Bihar & Ors., reported in (2010) 6 SCC 718 (Paras 6 & 7) and (ii) Jehangir Textile Mills Vs.
Sahebsingh Chotesingh, reported in (2011) 2 LLJ 242 (Paras 6 & 7) to contend that the findings arrived at by the Presiding Officer of the Labour Court are erroneous. It is submitted that the inquiry was also conducted without giving a proper opportunity of being heard to the petitioner and even the petitioner was not permitted to crossexamine the witnesses. It is submitted that the finding that the petitioner has misappropriated the sum of Rs.3,416/ is also based on mere statement of respondent No.1 without there being any documents to show that the aforesaid sum was misappropriated by the petitioner. It is, therefore, submitted that the order impugned is bad and illegal and the same deserves to be quashed and set aside. Alternatively, it is submitted that the matter requires to be remanded back to the Labour Court for fresh hearing as the findings arrived at by the Labour Court that the aforesaid sum of Rs.3,416/ has been misappropriated is without any evidence on record. It is further submitted that considering the fact that respondent No.1 unit is already closed and the petitioner cannot be reinstated, respondent No.1 be, however, directed to pay to the petitioner back wages with interest and amount of gratuity. It is, therefore, submitted that the petition deserves to be allowed as prayed for.
7. Per contra, Ms. Jirga Jhaveri, learned advocate for respondent No.1 submitted that by a notice dated 2.7.1982, respondent No.1 had warned the petitioner on his misconduct. It is submitted that the petitioner sold two tyres of one Mr. J.N. Panchal of Palanpur on 26.8.1985 and collected amount of Rs.5,416/, however, did not deposit the said money. As the money was not received, inquiry was made by respondent No.1 with Mr.
J.N. Panchal. On coming to know that the said money has already been paid to the present petitioner, the petitioner was questioned about the same on 29.5.1986 and thereafter, the petitioner deposited a sum of Rs.2,000/, however, kept with him the further amount of Rs.3,416/ and ultimately, on 14.8.1986, the said money was deposited by the petitioner. It is a matter of record that Mr. J.N. Panchal also wrote a letter to the petitioner on 9.9.1986. It is pointed out that a show cause notice came to be issued to the petitioner for the misconduct alleged on 20.9.1986. It is submitted that by an order dated 24.9.1986, the petitioner was chargesheeted and was suspended from service and at that point of time, the petitioner was drawing salary of Rs.1,951.70 per month. It is submitted that the petitioner gave reply to the show cause notice on 29.9.1986. It is pointed out that a further letter was written to the petitioner on 7.10.1986 and thereafter, the original papers were presented before the inquiry officer on 18.10.1986. It is submitted that the petitioner asked for time on 18.10.1986 in the inquiry proceedings which was granted and the matter was thereafter adjourned to 29.10.1986. Again on the said date, the petitioner sought time and therefore, the inquiry proceedings were adjourned to 8.11.1986. Even on the said date, the petitioner sought time and the inquiry proceedings were adjourned to 14.11.1986 and thereafter, it was further adjourned to 29.11.1986. It is submitted that on 29.11.1986, inquiry proceedings were fixed for hearing but no request for adjournment was made, however, in the interest of justice the inquiry proceedings were adjourned to 20.12.1986. It is submitted that on 20.12.1986, the petitioner sought adjournment on the ground that the President/ representative of the union was not available and hence, the matter was adjourned to 27.12.1986. It is pointed out that on 27.12.1986, inquiry was conducted in presence of the petitioner, statements of witnesses – Prakash and Dilip were recorded and the petitioner was also asked to crossexamine the said witnesses, but he refused. The petitioner also informed that the union President/representative did not wish to cross examine those witnesses and therefore, the inquiry was further adjourned to 5.1.1987. It is submitted that on 5.1.1987, the inquiry was conducted in presence of the petitioner. The petitioner informed the inquiry officer that the petitioner or the representative of the union is not desirous of crossexamining the earlier witnesses Prakash and Dilip and therefore, next witness J.N. Panchal was crossexamined by the petitioner. However, the petitioner refused to sign the deposition inspite of crossexamination. Ultimately, the inquiry officer submitted his report after the petitioner gave purshis to close oral evidence on 27.1.1987. It is submitted that on the basis of the inquiry report, a show cause notice came to be issued by the District Manager of respondent No.1 on 30.1.1987 as the misconduct alleged against the petitioner stood proved. It is submitted that respondent No.1 also wrote a letter to the petitioner on 9.2.1987. Ultimately, the petitioner also gave reply to the show cause notice on 27.2.1987. Considering all these materials, the order of dismissal was passed by the competent authority i.e. the Managing Director on 12.3.1987. It is submitted on the basis of the aforesaid factual background that it is not true that the domestic inquiry was not conducted properly. It is submitted that the dismissal order is legal and proper and does not require any interference by this Court. It is submitted that the Labour Court has committed no error much less any error which requires interference of this Court. Learned advocate for respondent No.1 has drawn attention to the affidavit in reply filed by respondent No.1 and pointed out that respondent No.1 was declared a sick unit and on reference to BIFR, the scheme for rehabilitation of respondent No.1 Company was sanctioned. It is pointed out that in fact the name of respondent No.1 has been changed to PTL Enterprises Limited with effect from 31.5.2005. It is submitted that respondent No.2 was the operating agency as per the orders passed by the BIFR, however, even the said unit is closed down and therefore, there is no question of reinstatement of the petitioner. It is pointed out that the action of respondent No.1 in forfeiting the gratuity is also legal and proper. It is pointed out that the finding arrived at by the Labour Court to the effect that the petitioner is not a workman as defined under Section 2(S) of the Act as the nature of duties performed by the petitioner were of supervisory in nature is correct and therefore, the Labour Court has come to the conclusion that the petitioner is not a workman as defined under the Act and thereby, has rightly rejected the reference. Learned advocate for respondent No.1 relied upon the Division Bench judgment of this Court in the case of Umakant S. Deshpande Vs. G.E.B., reported in 2001 (3) GLH 36 as well as the Division Bench judgment of this Court in the case of Bata (India) Limited Vs. S.K. Chawla, reported in 2005 (3) GLH 145 and submitted that the nature of work handled by the petitioner was of such a nature that the petitioner cannot be termed as workman as defined under Section 2(S) of the Act. It is also pointed out that the order of dismissal is neither disproportionate nor harsh and the petitioner against whom the guilt has been proved in the domestic inquiry is not entitled to even any sympathy from this Court. It is, therefore, submitted that the petition is devoid of any merits and the same deserves to be dismissed.
8. Mr. G.K. Patel, learned advocate for Mr. Vipul Modi for respondent No.2 has adopted the arguments of Ms. Jirga Jhaveri, learned advocate for respondent No.1 and has submitted that the petition deserves to be dismissed.
9. No further submissions are made by the learned advocates appearing for the respective parties.
10. Before reverting to the contentions raised by the learned advocates for the parties and submissions made by them, it would also be appropriate to refer to the findings given by the Presiding Officer of the Labour Court.
11. The Labour Court, as can be seen from the impugned award, has considered the evidence laid by the petitioner as well as the witnesses of the employer. As far as the allegation of misconduct is concerned, after relying upon the statements made by the witnesses and more particularly, on the basis of the record produced before the Labour Court, the Presiding Officer of the Labour Court has come to the conclusion that there is no defect in the inquiry and the punishment imposed is not disproportionate and that the petitioner had deposited only Rs.2,000/, whereas rest of the amount of Rs.3,416/ were not deposited. On appreciation of the aforesaid evidence, the Labour Court has come to the conclusion that the respondent as an employer has lost confidence in the petitioner workman. Considering the fact that the petitioner was engaged in the supervisory work, the Labour Court has come to the conclusion that the petitioner cannot be termed as workman as defined under Section 2(S) of the Act and on the basis of recording of the findings of fact as regards the inquiry and sufficiency of the punishment as well as on the fact that the petitioner cannot be termed as workman within the definition of Section 2(S) of the Act, the Presiding Officer of the Labour Court has passed the impugned award rejecting the reference made by the petitioner.
12. Considering the submissions made by the learned advocate for the petitioner who has mainly harped upon the fact that the finding arrived at by the Presiding Officer of the Labour Court to the effect that the petitioner is not a workman as defined under Section 2(S) of the Act is erroneous. As far as this contention is concerned, the petitioner has relied upon the case of Triveni Engineering and Industries Ltd. (supra), wherein the Hon'ble Supreme Court has held thus: “16. Whether or not a person is a workman is a matter that relates primarily to facts and circumstances of the case. The same has nothing to do with the application and interpretation of the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue is the nature of job performed by the concerned person, duties and responsibilities vested on him and other such relevant material. In our considered opinion, the Division Bench of the High Court committed a mistake in determining the said issue as an ancillary to that of the applicability and interpretation of the Standing Order. A perusal of the earlier Writ Petition filed by the respondent No.1 numbered as Writ Petition No. 8630 of 2008 would indicate that what was also challenged in the said writ petition was the order of termination passed against the respondent. The order of termination also could not have been examined and scrutinized as such power and jurisdiction is not vested with the Labour Commissioner.”
13. Learned advocate for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court in the case of Sharad Kumar (supra), wherein the Hon'ble Supreme Court has held as under: 20. The latter part of the section excludes 4 classes of employees including a person employed mainly in a managerial or administrative capacity, or a person employed in a supervisory capacity drawing wages exceeding Rs. 1600/ per month or exercises functions mainly of a managerial nature. It has to be taken as an accepted principle that in order to come within the meaning of the expression 'workman' in Section 2(s) the person has to be discharging any one of the types of the works enumerated in the first portion of the section. If the person does not come within the first portion of the section then it is not necessary to consider the further question whether he comes within any of the classes of workmen excluded under the latter part of the section. The question whether the person concerned comes within the first part of the section depends, upon the nature of duties assigned to him and/or discharged by him. The duties of the employee may be spelt out in the service rules or regulations or standing order or the appointment order or in any other material in which the duties assigned to him may be found. When the employee is assigned a particular type of duty and has been discharging the same till date of the dispute then there may not be any difficulty in coming to a conclusion whether he is a workman within the meaning of Section 2(s). If on the other hand the nature of duties discharged by the employees is multifarious then the further question that may arise for consideration is which of them is his principal duty and which are the ancillary duties performed by him. In such a case determination of the question is not easy at the stage when the State Government is exercising the administrative jurisdiction vested in it for the limited purpose of satisfying itself whether the dispute raised is an industrial dispute within the meaning of Section 2(k) of the Act. While deciding the question, designation of the employee is not of much importance and certainly not conclusive in the matter as to whether or not he is a workman under Section 2(s) of the Act.
31. Testing the case in hand on the touchstone of the principles laid down in the decided cases we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/22 April, 1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the Section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable.”
14. Learned advocate for the petitioner has further relied upon the judgment of this Court in the case of Mayank Desai (supra), wherein this Court has observed thus: “[17] The interpretation of Section 2(s) of the I.D. Act and the question as to whether a person is a workman or not has come up before the Court, time and again and certain guiding principles are laid down for determination of the said question by this Court as well as by the Apex Court. Some of the judgments on this issue are already referred to in earlier part of this judgment. The nature of duty performed by the petitioner when he was in the employment of the respondent–establishment is also narrated. The question before the Court is, therefore, to decide as to whether looking to the duty assigned to him and work performed by him, whether he is entitled to be called as workman. There is no dispute as to the proposition that the definition of workman given in Section 2(s) of the I.D. Act is an inclusive and exclusive definition. The section refers to the term supervisory twice in this Sub Section. However, at both the places, the said term is used in different context. In the first place, in the main Section 2(s) itself, the word used in the context of a person doing supervisory work for hire or reward. The nature of such work may either be manual, unskilled, skilled or technical, operational, clerical or supervisory. In short, it is an inclusive definition, however, in Sub Clause (iv) of Section 2(s), the word “supervisory” is used and it denotes that any person who is employed in such supervisory capacity and draws wages exceeding Rs.1,600 per month and exercises the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. Thus, Sub Clause (iv) of Section 2(s) lays down two requisites for excluding a person from the definition of workman. Firstly, he must be a person drawing wages of more than Rs.1600 per month and secondly, his duties and functions are mainly of a managerial nature. These are cumulative prerequisites and if both the conditions are satisfied, in that case, the person may not be considered to be a workman.
[18] Keeping this definition in mind and the nature of the duties and functions performed by the petitioner, if one examines the finding recorded and conclusion drawn by the Labour Court that the petitioner is a workman, one would immediately come to the conclusion that the Labour Court has not correctly applied the test for determination of the issue regarding the petitioner's status. There is no dispute about the fact that the petitioner was drawing wages for more than Rs.1600 per month. However, the evidence on record clearly indicates that he was not assigned the duties and functions mainly of a managerial nature. It is true that the petitioner was appointed as a Design and Development Engineer. It is also true that he is highly qualified person possessing M.Tech Degree. However, he was not a head of the Design Department, he had to work under the Senior Design Engineer Mr.Navinbhai Shah, and in his absence, another Senior Designer, Mr.Shankarbhai Prajapati. He has no authority to appoint any person, to sanction leave of anybody, or to take any disciplinary action against any one. No one was reporting to him. Though he was checking certain drawings prepared by the draftsmen, it is not its function to approve such drawings. He was not having any managerial control over anybody. Attending Quality Control Meeting would not change the nature and character of his position in the respondent – Establishment. Thus, the judgments relied on by the petitioner would certainly lead the Court to believe that he is a workman. In Anand Bazar Patrika (P) Limited's case (Supra), the Court held, in no uncertain terms that the few minor duties of a supervisory character cannot convert the office of senior clerk in charge to that of supervisor. In the case of National Engineering Industries Limited (Supra), a person was appointed as an Internal Auditor on a monthly salary and his main function is reporting and checking on behalf of the management. He had, however, no any independent right or authority to take decision and his decision did not bind the Company. The court, therefore, took the view that the checker on behalf of the management or employer is not a supervisor. Herein the present case, the petitioner who was simply checking drawings prepared by the draftsmen could not make him the supervisor so as to exclude him by invoking Clause (iv) of Section 2(s) of the I.D. Act. In the case of Gujarat Electricity Board Vs. Electricity Employees Union (Supra), the Division Bench of this Court has examined this issue from the angle that a person had no power to appoint, demote any employee, to take any disciplinary action against him, he could not take any decisive step even though he sat before Selection Committee. Considering this aspect of the matter, the Court took the view that he was a workman within the definition of Section 2(S) of the I. D. Act. In the case of Sunita B. Vatsaraj Vs. Karnataka Bank Limited (Supra), the lady employee was a Branch Manager. Though her duties were to check various accounts and she worked in supervisory and managerial cadre. The Court took the view that the duties performed by her would not make her supervisor or manager and she was held to be a workman.
In the case of Keshod Nagar Palika Vs. Pankajgiri Javergiri (Supra), this Court has interpreted Sub Clause (iv) of Section 2(s) of the I. D. Act and held that it imposes two conditions and both the conditions are to be simultaneously satisfied, in order that the concerned person is excluded from the definition. Unlike the said case, the respondent establishment had failed to lead any evidence that the petitioner was engaged wherein the nature of his duties was of a supervisory capacity or the functions discharged by him were mainly the functions of a managerial nature.
[19] As against plethora of decisions cited and relied on by the petitioner, on behalf of the respondent only two judgments were relied on. In Vimalkumar Jain’s case (Supra), the person was having the power to grant leave, initiate disciplinary proceedings etc. He has also power to make temporary appointments and in that context, the Labour Court held that he was not workman and ultimately that finding was confirmed by the Apex Court. In the present case, the petitioner has no power to grant leave, he has no power to initiate disciplinary proceedings, he has no power to make temporary appointment. The case cited is, therefore, distinguishable on facts. In the case of Ramesh s/o. Ramrao Wase Vs. Commissioner, Revenue, (Supra), the Bombay High Court has recorded the finding that the petitioner supervised the work done by the workman, there was an element of inspection by him and he has an authority over the workmen and labourers by reasons of his post and he had power to prepare the bills and work out the valuation of the completed work. He was to take judgment as to whether the work is completed as per the standards laid down by the contract. He had also authority to sit over and pass the judgment about the work. After recording this finding the Bombay High Court took the view that the nature of his work gets the label of supervision because of the said authority and ultimately held that the said work cannot be of a technical job but has to be dubbed as a work of supervisory in nature. None of these functions has to be discharged by the petitioner in the present case and hence, this case is totally distinguishable on facts.
[20] In view of the above discussions, the petitioner cannot be said to be a supervisor and his case would squarely fall within the ambit of Section 2(s) of the I.D. Act and is held to be workman within the definition of Section 2(s) of the I.D. Act. The finding recorded by the Labour Court is, therefore, required to be reversed and it is accordingly reversed.”
15. At this juncture, it would also be advantageous to refer to the judgment of the Hon'ble Supreme Court in the case of Devinder Singh Vs. Municipal Council, Sanaur, reported in (2011) 6 SCC 584.
“12. Section 2(s) contains an exhaustive definition of the term 'workman'. The definition takes within its ambit 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 and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term 'workman'.
13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full time and parttime employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing wholetime job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of 'workman'.”
16. Ms. Jirga Jhaveri, learned advocate for respondent No.1 has relied upon the Division Bench judgment of this Court in the case of Bata (India) Limited (supra) and in the case of Umakant S. Deshpande (supra), but the same would not be applicable in the facts of this case. As can be seen from the award impugned, no such evidence is adduced by the employer that the petitioner was in a managerial capacity and only by nomenclature of “Senior Assistant”, it cannot be said that the petitioner was doing managerial work.
17. It is true that the scope of interference of the findings of fact by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India is though limited on considering the findings of fact arrived at and on examination of the impugned award, except the fact that two persons were working under the petitioner, no such finding is arrived at which would lead to the conclusion that the petitioner was in a managerial capacity and therefore, the conclusion arrived at by the Labour Court that the petitioner is not a workman as defined under Section 2(S) of the Act is erroneous.
18. However, rest of the part of the impugned award does not require any interference by this Court. As can be seen from the impugned award and on appreciation of evidence, it appears that the petitioner received an amount of Rs.5,416/ from J.N. Panchal who purchased tyres from the respondent employer and it is also proved beyond doubt that the petitioner had deposited only amount of Rs.2,000/ on 29.5.1986 and the rest of the amount of Rs.3,416/ were deposited afterwards. The contention that the petitioner was not given proper opportunity in the departmental inquiry is also meritless. The contention raised on behalf of the petitioner that he was not permitted to crossexamine the witnesses is also contrary to the record. The findings of fact arrived at by the Presiding Officer of the Labour Court are based on the correct appreciation of evidence before it and this Court does not find any error much less any error apparent on the face of the record which requires interference in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India.
19. The contention raised on behalf of the petitioner that the finding to the effect that the petitioner is not a workman, though found to be erroneous, the other alternative prayer prayed for by the petitioner that the matter may be remanded back is not required to be entertained. As observed above and on going thorough the impugned award, the reference has been rejected not only on the sole ground that the petitioner is not a workman as defined under Section 2(S) of the Act, but the Labour Court has examined the evidence on record and arrived at the finding of fact which does not require interference.
20. As far as the other limb of argument put forward by the petitioner as regards the amount of gratuity which has been forfeited by the employer does require consideration. The contention raised by the petitioner that the amount of gratuity payable is wrongly forfeited without any notice or formal order is a matter of fact. The learned advocate for the petitioner has rightly relied upon the judgment of Jehangir Textile Mills Vs. Sahebsingh Chotesingh & Anr., reported in 2011 (2) LLJ 242 and the order passed in the case of Mapin Publishing Pvt. Ltd. through Director Bipin Shah Vs. Hena Chaitanyabhai Jani & Anr. of this Court (Coram: M.R. Shah, J.) in Special Civil Application No.7665 of 2010, wherein in similar set of circumstances, it has been held that the amount of gratuity cannot be forfeited dehors Section 4(6) of the Payment of Gratuity Act.
21. This Court in the case of Jehangir Textile Mills (supra) in para 7 has observed thus: “7. Even otherwise on merits also the petitioner has no case. It is to be noted that the amount of gratuity can be forfeited only as provided under subsection (6) of Section 4of Payment of Gratuity Act. Admittedly, neither any order of forfeiture of amount has been passed nor any damage is quantified, which can be recovered from amount of gratuity. In the case of Devendrabhai Mulvantrai Vaidya (Supra) the learned Single Judge has categorically held that amount of gratuity cannot be withheld by the employer except in the eventualities envisaged in the provision of sub section (6) of Section 4. Similar view has been expressed by this Court in unreported decision of this Court rendered in Special Civil Application No.7665 of 2010 and Special Civil Application No.4252 of 2004. The amount of gratuity can be t forfeited only as provided under Section 4(6) of the Payment of Gratuity Act. As per Section 4(6) of the Act, before forfeiting the amount of gratuity, an employee is required to be given an opportunity and a specific order is required to be passed with respect to forfeiture of amount of gratuity. No such order forfeiting the amount of gratuity has been passed. Even otherwise, as stated above petitioners has never challenged the original order passed by the Controlling Authority under the Payment of Gratuity Act.”
22. Similarly, in the case of Mapin Publishing Pvt. Ltd. (supra), this Court in paras 5 and 6 has observed thus: “5. Heard the learned advocates appearing on behalf of respective parties at length. It is not in dispute that respondent has tendered the resignation as an Accountant in the year 2007 and is permitted to resign by the petitioner. It is an admitted position that no departmental inquiry and/or inquiry has been initiated against the respondent and his resignation came to be accepted without any further condition. It is not in dispute that neither the respondent has been served with any showcause notice and/or is called upon to show cause why the amount of gratuity shall not be forfeited. It cannot be disputed that the amount of gratuity can be forfeited only as provided under Section 4(6) of the Payment of Gratuity Act. As per Section 4(6) of the Act, before forfeiting the amount of gratuity, an employee is required to be given an opportunity and a specific order is required to be passed with respect to forfeiture of amount of gratuity. In the present case, no such order has been passed by the employer forfeiting the amount of gratuity as provided under Section 4(6) of the Act. Under the circumstances, it cannot be said that the Appellate Authority has committed any error in allowing the Appeal preferred by the respondent and directing the Controlling Authority to calculate the amount of gratuity and to pay the same to the respondent. Merely because some proceedings are pending, that does not entitle the petitioner to forfeit the amount of gratuity dehors Section 4(6) of the Gratuity Act.
6. Now, so far as reliance placed upon the decision of Hon'ble Supreme Court in The Delhi Cloth and General Mills Co. Ltd. (Supra) is concerned, in the facts and circumstances of the case, the same shall not be applicable as, admittedly in the present case, neither any showcause notice has been issued upon the respondent to show cause why amount of gratuity should not be forfeited nor any order against the respondent forfeiting the amount of gratuity.”
23. In the present case also, the amount of gratuity has been forfeited dehors the provisions of Section 4(6) of the Payment of Gratuity Act. The Labour Court has committed an error in not considering these facts. The respondent employer has not been able to show before this Court also that any show cause notice was served upon the petitioner and thus, the action of the respondent employer as regards forfeiture of gratuity amount is dehors Section 4(6) of the Payment of Gratuity Act.
24. In view of the above discussion, though it is held that the petitioner is a workman as defined under Section 2(S) of the Act, the award of the Labour Court as regards the order of dismissal of the petitioner workman is confirmed. However, the award in relation to forfeiture of amount of gratuity is concerned, the same is quashed and the respondent employer is directed to calculate the amount of gratuity along with interest payable to the petitioner workman within four weeks from the date of the receipt of this judgment and pay the same to the petitioner within seven days thereafter. The award stands modified to the aforesaid extent.
25. In view of the above, the petition is partly allowed in the above terms. Rule is made absolute to the aforesaid extent only. Parties to bear their own costs.
[R.M.CHHAYA, J.] mrpandya