Oral Judgment:
1. Heard Mr G.K. Sardessai, along with Ms Smrati Bangera, learned Counsel for the Petitioners in both the Petitions, and Mr Shivraj Gaonkar, along with Mr S. Prabhudessai, learned Counsel for the Respondents.
2. The learned Counsel for the parties state that the issue involved in both these Petitions is the same, both on the facts and on the law. Therefore, they agree that by the common judgment and order, this Court can dispose of both these Petitions by treating Writ Petition No.326 of 2010 as the lead Petition.
3. By both these Petitions, the Petitioner (Employer) challenges the awards made by the Labour Court at Panaji holding inter alia that the Respondent (Employee) answers the definition of "workman" under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act') and that the termination of such Employees was not legal and justified. After recording a finding that the terminations were in breach of the mandatory provisions under Sections 25(F), 25(G) and 25(H) of the said Act, direct the reinstatement of the employees with full back wages, continuity of services and all the consequential benefits.
4. Mr G.K. Sardessai, learned Counsel who appears along with Ms S. Bangera, learned Counsel for the Employer in both these Petitions, submits that there was overwhelming evidence on record that the Employees were not "workman" as defined under Section 2(s) of the said Act but were, as their designation suggested, "Senior Accounts Supervisors". He submitted that, admittedly, the Employees earned a salary of more than Rs. 1,600/- (Rupees One Thousand Six Hundred only) and, therefore, could not be regarded as workmen. He submitted that the functions and duties of the Employees were predominantly supervisory and managerial in nature.
5. Mr Sardessai submitted that a finding on whether the Employees were workmen or not is a jurisdictional fact. He submitted that, since the Labour Court did not correctly decide this jurisdictional fact, there is a jurisdictional error which vitiates both the awards and warrants this Court's interference in the exercise of its extraordinary jurisdiction under Articles 226 and/or 227 of the Constitution of India.
6. Mr Sardessai referred to paragraph 5 of the Employer's Written Statement before the Labour Court, in which a list of duties of the Employees was enumerated. He pointed out that the Employees, in their evidence before the Labour Court, categorically admitted to performing the duties mentioned in paragraph 5 of the Written Statement. He submitted that, given this clear and categorical admission, there was no scope to hold that the duties discharged by the Employees were either manual or clerical. He submitted that this crucial evidence was not appropriately considered by the Labour Court, thereby vitiating the impugned awards.
7. Mr Sardessai submitted that there was overwhelming evidence about at least five named employees/staff working under the Employees. He submitted that apart from the admission in pleadings, there was oral and documentary evidence to establish this fact. He submitted that even this crucial evidence has not been adequately considered, thereby vitiating the impugned awards.
8. Mr Sardessai submitted that there was evidence about the Employees recommending leave at least in respect of the five employees/staff working under them. He submitted that there was an admission that the Employees were preparing indents, etc., which again points to the supervisory and/or managerial functions the Employees were discharging. He submitted that even this evidence has not been adequately considered by the Labour Court, warranting interference in the impugned award.
9. Mr Sardessai submitted that it is never sufficient for the Employees to establish that they were not discharging any supervisory or managerial duties; they must positively prove that they were employed in any manual, unskilled, skilled, technical, operational, or clerical work. He submitted that the Employees have failed to establish this critical aspect, thereby vitiating the impugned awards. He submitted that the Labour Court has failed to adopt the correct approach in such matters and also reversed the burden of proof. He submitted that this is also an additional ground which warrants interference with the impugned awards.
10. Mr Sardessai relied upon the decisions in the case of Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi V/s. Their Workmen, represented by District Secretary((2019) 18 SCC 814), UVI Holidays Ltd. V/s. Agnelo C. Coutinho and Anr.(2009 (Supp.) Bom.C.R. 767), Kendriya Vidyalaya Sangathan and Anr. V/s. S.C. Sharma((2005) 2 SCC 363), Mukesh K. Tripathi V/s. Senior Divisional Manager, LIC and Ors.((2004) 8 SCC 387), Shrikant Vishnu Palwankar V/s. Presiding Officer of First Labour Court and Ors.(1992 I CLR 184), Sonepat Cooperative Sugar Mills Ltd. V/s. Ajit Singh((2005) 3 SCC 232), Standard Chartered Bank V/s. Vandana Joshi and Anr.(WP No.975/2009 decided on 17.12.2009) in support of his above contentions and submitted that the law laid down in these decisions has been overlooked and/or incorrectly applied by the Labour Court, thereby warranting interference with the impugned awards.
11. For all the above reasons, Mr Sardessai submitted that the impugned awards be set aside and the Rule be made absolute in both these Petitions. He submitted that under the interim orders of this Court, the employees/their legal representatives were permitted to withdraw an amount of Rs. 10,00,000/- (Rupees Ten Lakhs only) in each of these Petitions. He pointed out that this was subject to their undertaking to return this amount should the Petitions succeed. He submitted that appropriate directions are liable to be issued for the recall of these amounts with interest that may have accrued thereupon before this Court.
12. Mr Gaonkar, learned Counsel for the Employees, defended the impugned awards based on the reasoning reflected therein. He pointed out that Writ Petition No. 326 of 2010, the Employee expired pending the adjudication of this Petition, and that his widow and two daughters now pursue the matter. He submitted that the Employee in Writ Petition No.217/2010 is presently 71 years old.
13. Mr Gaonkar submitted that in the pleadings, the so-called admission has been duly and adequately considered by the Labour Court. He submitted that the even the duties referred to in paragraph 5 of the Employer's WrittenStatement are mainly clerical or manual duties, establishing that the Employees were indeed workmen as defined under Section 2(s) of the said Act.
14. Mr Gaonkar submitted that, in the context of Section 2(s) of the said Act, supervision means supervision over men, not over materials or machinery. He pointed out that, according to him, the evidence on record demolishes the Employer's case that the Employees undertook any supervisory functions or duties. He also referred to the inherent contradictions in the evidence of the Employer's witness Digambar Phadte.
15. Mr Gaonkar submitted that the Labour Court has recorded its findings of fact, and those findings are supported by overwhelming evidence on record. He submitted that there was no perversity involved, and the Labour Court has applied the correct principles. He, therefore, submitted that this is not a case where this Court should exercise its extraordinary jurisdiction and interfere with the well-reasoned awards made by the Labour Court.
16. Mr Gaonkar submitted that the Employees clearly deposed that they were unemployed despite making efforts to secure employment after their termination. He submitted that the Employer led no evidence to rebut this evidence. Besides, he submitted that this was a case of malafide termination because the termination was not preceded by even minimum compliance with principles of natural justice and fair play and, further, in breach of mandatory provisions of 25(G), Junior Employees were retained, but the Respondent Employees were terminated. Accordingly, he submitted that the Labour Court was justified in directing reinstatement with full back wages.
17. Mr. Gaonkar relied on Chandrashekhar Chintaman Vaidya V/s. National Organic Chemical Industries Ltd., Akola(2010 (3) MhL.J. 434) and Damodar Mangueshkar V/s. Cidade De Goa and Ors.(2021(6) MhL.J. 677). He also relied upon Deepali Gundu Surwase V/s. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors.((2013) 10 SCC 324) in support of his submissions.
18. Mr Sardessai, by way of rejoinder, pointed out how the decision in Deepali Gundu Surwase (supra) was distinguished and explained by the Hon'ble Supreme Court in Management of Regional Chief Engineer (supra). He also relied on Kendriya Vidyalaya Sangathan and Anr. (supra). He relied on both these decisions in the context of the plea for full back wages and submitted on a demurrer that this was not a fit case for the award of full back wages. He pointed out that the Employees' evidence was sketchy and provided no details whatsoever about the efforts, if any, made by the Employees to secure alternate employment. He submitted that it was inconceivable that the Employees would remain unemployed for this length of time.
19. The rival contentions now fall for determination.
20. Since the learned Counsel for the parties have requested that Writ Petition No.326 of 2010 be treated as the lead Petition, some reference to the basic and material facts in the said Petition would be appropriate. The Learned counsel for the parties submitted that there was no substantial difference between the material facts in this petition and the connected petition.
21. The Employee Ramesh Babani Naik (since deceased, and now represented by his widow and two daughters) was appointed by the Employer, which operates a residential hotel having 210 well-appointed air-conditioned rooms, restaurants, bars, club saude, banqueting facilities, shopping arcades, etc., as a 'Trainee Accounts Assistant' on 30.121.1981. After this, Ramesh was appointed as 'Accounts Assistant' on certain terms and conditions.
22. Ramesh was confirmed to the above post, and on 01.01.1983, he was promoted to the post of 'Senior Accounts Assistant'. After that, Ramesh was further promoted to the post of 'Senior Accounts Supervisor' with effect from 01.01.1988. The petitioner has also placed on record the Certificate of Merit dated 01.03.1990 and the Performance Award dated 01.04.2004, both appreciating Ramesh's services, his valuable contribution, and his commitment towards the Employer.
23. Ramesh's services were terminated by the Employer by order dated 21.04.2005, with effect from 26.04.2005. The termination letter is on page 100 of the paper book, and the same reads as follows:
"21" April, 2005
To,
Shri. Ramesh Naik,
Sr. Accounts Supervisor,
Employee Code: 1416
Sir,
We regret to state that we do not require your services.
Please therefore, take notice that your services stand terminated with effect from 26/04/2005.
You are hereby paid one month's pay in lieu of notice in addition to your salary up to date and other dues, as follows:
| a) Notice Pay | Rs. 11007.00 |
| b) Gratuity | Rs. 155181.00 |
| c) Salary from 01/04/2005 to 26/04/2005 | Rs. 9540.00 |
| d) Unpaid leave salary (112 days) | Rs. 25189.00 |
| TOTAL PAYABLE | Rs. 200917.00 |
| LESS: Amount deducted towards PF contributions from item c) & d) | Rs. 3724.00 |
| NET PAYABLE | Rs. 197193.00 |
You are directed to hand over charge of all the Company's records, documents, files and any other property in your possession or entrusted to your care to Mr. Felix Fernandes, Sr. Clerk (Stores), on 21/04/2005.
You are requested to return the duplicate of this letter duly signed dated by you in token of the receipt of the original.
For CIDADE DE GOA,
Unit FOMENTO RESORTS & HOTELS LIMITED,
Sd/-
JAWAID AFRIDI
PERSONNEL MANAGER"
24. The termination letter dated 21.04.2005, as transcribed above, neither contains any reasons for the termination nor was it preceded by even minimal compliance with the principles of natural justice or fair play. Of course, the Employer's case is that Ramesh was not a workman and, therefore, there was no requirement to hold any departmental inquiry or otherwise comply with the principles of natural justice or fair play before terminating his services.
25. The crucial issue urged on behalf of the Employers in both these Petitions, therefore, is that the Employees were not "workmen" as defined under Section 2(s) of the said Act. The Employer contends that they were engaged in discharging supervisory and/or managerial duties. Accordingly, at their behest, no industrial reference was competent, and the Labour Court lacked jurisdiction over the subject matter. Primarily, on this ground, the Employer contends that the impugned awards deserve to be set aside.
26. Section 2(s) of the said Act reads as follows:
"2(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); ог
(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."
27. The rulings in Mukesh K. Tripathi (supra), Sonepat Cooperative Sugar Mills Ltd. (supra), and other cases relied upon by Mr Sardessai, establish that a person must be engaged in any of the categories-manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward to be regarded as a workman under the said Act. This requirement applies even if the individual does not perform managerial or supervisory duties. It is insufficient for an employee to simply fall outside any of the four exceptions specified in the statutory definition. These rulings clarify that the decision of the Constitution Bench in H.R. Adyanthaya V/s. Sandoz (India) Ltd.((1994) 5 SCC 737), which follows the ratio of May and Baker (India) Ltd. V/s. Workmen(3 AIR 1967 SC 678), remains valid. In contrast, the contrary positions in S.K. Verma V/s. Mahesh Chandra((1983) 4 SCC 214), Ved Prakash Gupta V/s. Delton Cable India (P) Ltd.((1984) 2 SCC 569), and Arkal Govind Raj Rao V/s. Ciba Geigy of India Ltd.((1985) 3 SCC 371) are not considered good law. Furthermore, the decisions cited by Mr. Sardessai also affirm that the burden of proving that the person is employed to perform any of these categories-manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward is on the party asserting that fact.
28. Therefore, it is apparent that the issue of whether the Employees involved in these two Petitions are "workmen" as defined under Section 2(s) of the said Act will have to be considered by applying principles laid down in the above decisions relied upon by Mr Sardessai. If, as contended by Mr Sardessai, it is found that the Labour Court has not examined the matters from these perspectives or by applying these principles, then it could be said that the impugned awards are vitiated by a jurisdictional error warranting interference in the exercise of extraordinary jurisdiction under Articles 226 and/or 227 of the Constitution.
29. In these cases, however, the critical examination of the impugned awards demonstrates that the Labour Court has analysed and evaluated the evidence on record and applied the correct legal principles. Therefore, for reasons discussed hereafter, no case is made out to warrant any interference with the impugned awards.
30. Ramesh, in the Statement of Claim, in the context of the nature of duties performed by him, at paragraphs 3 to 6, has pleaded as follows:
"3. The party I submits that though he was designated as Senior Accountant Supervisor he was doing the work of clerical nature as mentioned herein below:
a) Receiving the material and taking physical verification of the material.
b) Preparation of indents.
c) Checking Item.
(d) Checking of requisition.
e) Posting the entries in the computer.
f) Manually issuing the material from the store after verifying the requisitions.
4. The Party I submits that the work was assigned to him daily by his superior and as per his instruction he was doing the work.
5. The Party 1 submits that though he was designated as supervisor his normal work was to do the clerical work as assigned by his superior.
6. The Party I submits that though he was designated as accounts supervisor he was not the sanctioning authority of any leave of the any workmen working in his department."
31. The Employer, in paragraph 5 of its Written Statement, while raising a preliminary objection that Ramesh was not a workman within the meaning of Section 2(s) of the said Act, has pleaded the following:
"5. It is stated that as a 'Senior Accounts Supervisor', the job responsibilities of the Workman and nature of duties attended by him were as under:
a) Every morning by 9.30 a.m. critical & NA items to follow up with purchase. (Food store / S & S store & perishables)
b) Daily MRN/issue posting, if required.
c) Maintain store record up to date.
d) Maintain availability of items in general stores (Food, S&S Fabric and Crockery).
e) Check Quality & Quantity, FIFO system of issue.
f) Daily Vegetable stock report to Chef. (M/K by lp.m.latest).
g) To send Order sheet meat items to Chef on Tuesday & Friday.
h) To send non-moving item report to respective department by 5th of every month.
i) Managing Director's residence consumption file every Wednesday.
j) Stock Statement/Consumption report by 3rd of every month to be submitted to Accounts.
k) AMC file (Actual Monthly Consumption) Food /S&S items update every month by 5th latest.
l) To keep inventory turnover ratio high.
m) To check re-order levels.
n) To control fabric and crockery store.
o) To ensure that perpetual inventory is carried out in both stores.
p) Tagging of dates of items in DF 2& 3/Cold Room -ensure compliance by staff.
q) Issue of store items against authorized store requisition.
r) To supervise the general store over all.
s) To check the indented quantity and approve the Indents of Food Store and S&S Store.
t) Discipline and grooming of staff.
It is stated that the Workman was responsible for maintaining and signing the following documents i.e.
a) Store indents, b) Consumption Report in respect of Managing Director, c) Stock Statement & Consumption Statement and d) Leave Cards of Staff.
It is stated that 5 Employees / Staff were working under the Workman.
It is stated that the Workman was Reporting to Mr. Ajit Baretteo / Mr. Ramesh Moorthy Financial Controller of the Workman."
32. In support of their rival positions, Ramesh examined himself, and the Employer examined Digambar Phadte and Zarine Lobo. Both parties presented their oral testimonies and documentary evidence before the Labour Court.
33. Ramesh, in his affidavit in place of examination-in-chief, reiterated the statements made by him in his Claim Statement, inter alia, on the issue of the nature of his duties. In his cross-examination, however, Ramesh stated as follows:
"I say that there were around five junior workers working in the Accounts Department of the Party-II. Their names are Sarvesh, Felix, Michael, Sumati and Carlos, however I cannot tell their designations. I say that most of my duties were clerical in nature. It is true that I was performing the duties mentioned in para 5 of the Written Statement filed by the Party-II in the present case while in the employment with the Party-II."34. The above portion from Ramesh's evidence elicited during his cross-examination is transcribed because this was one of the main grounds urged to contend that Ramesh, having admitted to the nature of duties that he was performing, had virtually conceded that he was employed in a supervisory and/or managerial capacity at the time when he was terminated from services.
35. The Tribunal has examined the above contentions in substantial detail. The Tribunal has listed the various duties which Ramesh admitted he was discharging and concluded that most of these duties had nothing to do with any supervisory or managerial functions and that they were mainly manual or clerical functions, notwithstanding the nomenclature of Ramesh's post. Incidentally, there was no dispute raised that the mere nomenclature of the post is not decisive in such matters. The nature of duties is what must be examined to determine whether the person indeed answers the definition of "workman" under Section 2(s) of the said Act. This is also the import of the various precedents relied upon by the learned counsel for the parties.
36. Ramesh has positively deposed that, although he was designated as a "Senior Accounts Supervisor", he was performing work of a manual and clerical nature. He has deposed precisely to the works which he was discharging, i.e. (a) Receiving the material and taking physical verification of the material, (b) Preparation of indents, (c) Checking Item, (d) Checking of requisition, (e) Posting the entries in the computer, (f) Manually issuing the material from the store after verifying the requisitions. Further, Ramesh has deposed that he would perform the work assigned to him daily by his superior, and that such work was carried out as per the superior's instructions. He has also deposed that he was not authorised to sanction leave to any other workman in his department.
37. Since Ramesh admitted that he was discharging the duties referred to in paragraph 5 of the Employer's Written Statement, the question is whether such admission amounts to a concession that Ramesh was not a workman within the meaning of Section 2(s) of the said Act. For this, it is necessary to refer to the nature of duties referred to in paragraph 5 of the Employer's Claim Statement. If those duties are predominantly manual or clerical, then surely, the admission will not make Ramesh a workman as defined under Section 2(s) of the said Act. Only if those duties, on a cumulative or overall consideration, constitute supervisory and/or managerial functions, as contended by the Employer, could it be said that Ramesh was not a workman under Section 2(s) of the said Act.
38. Most of the works referred to in paragraph 5 of the written statement are hardly supervisory or managerial. In fact, most of the works Ramesh personally undertook would fall under manual and clerical categories. None of the works involved serious supervision over "men". The evidence chiefly shows that Ramesh was supervising general stores and materials, as well as preparing consumption reports, inventory, etc. The mention of "Discipline and grooming of staff", when read in context, was certainly not a primary duty performed by Ramesh. Therefore, based on Ramesh's admission that he was performing the duties mentioned in paragraph 5 of the Written Statement, there is no reason to conclude that Ramesh was undertaking any supervisory or managerial responsibilities to be excluded from the definition of "workman" under Section 2(s) of the said Act.
39. Mr Gaonkar pointed out that the admission related to clauses (a) to (d) in paragraph 5 of the Written Statement. He submitted that the admission did not relate to the further statements in paragraph 5. However, even if this contention is not accepted, still Ramesh's predominant duties continue to be manual and clerical.
40. Furthermore, the statement in paragraph 5 that five employees or staff worked under the workman, namely Ramesh, cannot be considered an unambiguous admission by Ramesh. It also does not indicate that Ramesh exercised any supervisory authority or powers over those five employees. Moreover, the Tribunal has considered other evidence on record, including clear and categorical admissions from the Employer's witnesses, which entirely rebut the supposed admission regarding the five employees or staff working under Ramesh.
41. The Tribunal has correctly referred to the evidence of Digambar Phadte, who was the main witness examined by and on behalf of the Employer and only upon whose testimony emphasis was led by Mr Sardessai, the learned Counsel for the Employer. Incidentally, no reference or argument was made by Mr Sardessai to Zarine Lobo's testimony. In any event, such testimony does not further the Employer's case.
42. Digambar Phadte, in his cross-examination, resiled from his statement in the evidence-in-chief and deposed that he, i.e., Digambar Phadte, was overall in charge of the sales of the accounts department, and that even Ramesh was working under his control. Digambar Phadte further deposed that it was he, i.e, Digambar Phadte, who had the power of supervision over the staff working in the said Department, after Mr A.B Baretto, who was the Purchase Manager at the relevant time. He categorically deposed that even Ramesh was working under his control, i.e. Digambar Phadte's control.
43. Digambar Phadte further deposed that Ramesh performed his own duties as per his job description and, most crucially, did not supervise any other workman/employee of the Employer. He further deposed that the five employees referred to in paragraph 9 of his affidavit in evidence were performing duties independently and that they had no connection with Ramesh's duties.
44. In the context of the Employer's contention that Ramesh had the authority to recommend leave for the five employees/staff members referred to in paragraph 5 of his Written Statement, apart from Digambar Phadte's oral testimony, even documentary evidence was produced by the Employer. Mr Sardessai invited attention to this documentary evidence at pages 110 to 113 of the paper book of this Petition.
45. This evidence is in the form of leave application forms. There is a column titled "Dept. Head Sign". Signatures of Ramesh and Mr Barretto, the Purchase Manager, who was admittedly the Departmental Head, appear in this column. It was not even the Employer's case that Ramesh was the leave-sanctioning authority. Ramesh has categorically deposed that he used to forward only leave applications and had no authority to recommend leave or otherwise.
46. Digambar Phadte, in his cross-examination, admitted that the final sanctioning authority of the leave was the Head of the Department and not even himself, i.e., Digambar Phadte, "or any other person", had the power to recommend or sanction leave, although such a person may have signed in the column "Dept. Head Sign" of the leave application. Thus, there is no evidence that Ramesh had the power, even to recommend leave applications for the five employees, much less to grant them. This is evident from both the oral and documentary evidence emanating from the Employer.
47. As stated above, the Labour Court examined each duty that Ramesh performed, carefully assessed the oral and documentary evidence on record, and concluded that Ramesh and Falkar were mainly engaged in manual and clerical duties and functions. There was no element of creativity involved. There was no supervision of others or significant activity. They lacked the authority to make decisions on important matters or to recommend or approve leave. The Labour Court did not disproportionately focus on just one or two aspects supporting either party but, based on a comprehensive analysis of the evidence, recorded findings of fact. These findings were made after considering the relevant legal principles and precedents on the subject. Besides, both parties were given a full opportunity, and there is no complaint on this score. Thus, no case is made out to interfere with the Labour Court's well-reasoned awards. The precedents relied upon by Mr Sardessai do not assist the Employer's case.
48. Mukesh K. Tripathi (supra) was concerned with the issue of whether an Apprentice Development Officer with the LIC of India should be regarded as a "workman" under Section 2(s) of the said Act. The Hon'ble Supreme Court, after clarifying the legal position, analysed the evidence on record and held that such an Apprentice Development Officer could not be regarded as a workman. The Court also considered the provisions of the Apprentices Act, 1961, for reaching this conclusion.
49. In Sonepat Cooperative Sugar Mills Ltd. (supra), the issue was whether a Legal Assistant with a degree in law and a practising licence could be regarded as a "workman" under Section 2(s) of the said Act. Again, after explaining the legal position, the Court held that such a Legal Assistant was not a workman.
50. In Standard Chartered Bank (supra), the question which arose before the learned Single Judge of this Court was whether a "personal financial consultant of the bank could be regarded as a "workman" under Section 2(s) of the said Act. The Court, after noting that the 'Personal Financial Consultant was allocated business targets for selling consumer banking products, generate new business via sales, promotions, generate action plans for meeting targets, ensuring high level customer service, ensuring compliance with internal and external guidelines and ensure minimal comments in audits and other inspections, ensuring transactions are processed with a high level of accuracy and commitment in order to satisfy customer needs, ensuring validity and completeness of transactions processed and ensure concessions relative to exchange rate, fees, charges, etc. are authorized/overridden by appropriate authorities, taking responsibility for general reconciliation and control activities, finding ways to improve operational efficiency and control costs to meet cost budgets, gathering/preparing statistics for service quality and productivity indicators, etc. held that the "personal financial consultant cannot be regarded as a workman.
51. In the above case, the Court held that the fact that an employee is not vested with the power to sanction leave or to initiate disciplinary proceedings is not conclusive of whether the work performed by the employee falls within one of the categories stipulated in Section 2(s). The Court held that the balance, however, must be drawn based on the overall nature of the duties and responsibilities performed and the dominant nature of the work that an employee performs. The Court also held that the Managers do not become workmen because processes and approvals structure their decisions. Absolute autonomy is not the norm in managerial decision-making. Nor does the law insist on absolute discretion or absolute autonomy for a person to be a manager. Basically, the answer to the question must depend upon the dominant nature of the duties and responsibilities.
52. The decision in Standard Chartered Bank (supra) is entirely distinguishable because the facts in that case have no parallel in the present case. The work and the work responsibility assigned to Ramesh and Falkar are nowhere comparable to the work of a Personal Financial Consultant with which the Standard Chartered Bank's case was concerned. The principles in the said case have been duly applied. The findings of fact are not based solely on the fact that the employees involved in the present matters had no authority to recommend or sanction leave or to initiate disciplinary proceedings. The entire evidence is considered critically, and the predominant duties test has been duly applied.
53. In Shrikant Vishnu Palwankar (supra), the learned Single Judge of this Court was concerned with a Foreman, and again based on the nature of duties, that the Foreman was required to be discharged. This Court held that he could not be regarded as a workman. There is a reference to indenting the material needed by different operators working under the Foreman in the Job Department, i.e. just one of the circumstances and not some predominant circumstances based upon which the Foreman was held to be discharging supervisory functions. Again, this decision, which turns on its peculiar facts can be of no assistance to the Employer in the present case.
54. In UVI Holidays Ltd. (supra), this Court considered the position of a Deputy Manager at an international travel agency. Again, after referring in detail to the nature of the duties, the Court held that its manager was indeed involved in discharging managerial functions and was therefore not a workman.
55. In Vinayak Baburao Shinde (supra), this Court was concerned with an employee who was promoted from the Work Supervisor to Workshop Foreman. The Court held that the word "supervision" means to oversee, that is, to look after the work done by other persons. The word "supervision" occurring in Section 2(s) of the Industrial Disputes Act means supervision in relation to work or in relation to persons. The essence of supervision is overseeing the work of others by a single person. This involves a power in the person overseeing to direct and control the work done by the persons over whom he is supervising. The Court held that if a workman does not perform work correctly, the supervisor has no power to take disciplinary action. In the case of leave applications, a supervisor can only recommend them, not sanction or reject them; the latter is within the jurisdiction of a manager.
56. The observations in Vinayak Baburao Shinde (supra) support the employees' case rather than the employers. When the evidence on record is examined, considering the principles established in this decision, it clearly indicates that the respondents were not performing any supervisory or managerial roles but mainly undertaking clerical and manual tasks that did not involve any substantial level of creativity or supervisory responsibility.
57. None of these decisions assists the Employer's case. The fact situation therein is no comparable to the established facts in the present matters. The legal principles in these decisions have, in fact, been applied by the Labour Court. No doubt, Mr Sardessai, relying upon the above decisions, submitted that the power to grant or recommend leave is not an essential prerequisite to the discharge of supervisory duties. The Labour Court has never regarded this as an essential prerequisite. The Labour Court has only answered the Employer's contention that Ramesh's duties should be treated as supervisory because Ramesh had the power to recommend leave at least in respect of the five employees/staff members, who were allegedly working under him.
58. On critical evaluation of the oral and documentary evidence, the Labour Court concluded that Ramesh or Falkar had no such authority. This is not a case where the Labour Court held that Ramesh was not exercising supervisory duties solely because Ramesh was not the Authority for recommending leave or for taking any discriminatory proceedings against the five employees. The decisions, therefore, do not assist the Employer in any manner.
59. The Labour Court, in this case, has considered practically each of the duties referred to in paragraph 5 of the Employer's Written Statement and concluded that there was no element of supervision involved in those duties. The Labour Court has not merely gone by the process of elimination but has also recorded positive findings that most of these works were predominantly manual or clerical in nature. The Labour Court has considered oral and documentary evidence on record in the proper perspective, and on an overall consideration of such evidence, concluded that Ramesh's and Falkar's duties were predominantly manual and clerical. The aspects of preparing indents or reports have been considered in some detail. Finally, on analysing the evidence in the context of the law as laid down by the several decisions on the subject, the Labour Court has recorded a finding of fact that Ramesh and Falkar predominantly discharged manual and clerical duties.
60. There is no perversity whatsoever in the record of this finding of fact. This finding is supported by overwhelming evidence on record. In fact, it is consistent with the weight of the evidence on record. The correct legal principles have been applied. Therefore, considering the limited jurisdiction of this Court in interfering with findings of fact, there is no case made out to warrant interference.
61. In fact, in this case, this Court has virtually scanned the evidence on record as if re-appreciation or re-assessment of such evidence was expected. Even upon undertaking such an exercise, which is typically not required to be undertaken while exercising the power of judicial review, there is no case made out to interfere with the finding of fact recorded by the Labour Court, after a detailed and cogent analysis of the oral and documentary evidence on record.
62. With respect to back wages, the employees have pleaded and deposed that they were not gainfully employed after their termination. They also deposed that, despite their attempts, they were not obtaining any alternative employment. The Employer, despite the opportunity, led no evidence which could disprove or even make a dent in the statements made by the Employees on oath in their testimony. The fact that these Employees did not produce any documentary evidence of the efforts they made cannot, in this case, be a good enough reason to deprive them of any portion of the back wages.
63. In Deepali Gundu Surwase (supra), the Hon'ble Supreme Court has held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. This rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
64. The Hon'ble Supreme Court held that ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, it has to plead and lead cogent evidence to prove that the employee/workman was gainfully employed and was drawing wages equal to those he/she was drawing prior to the termination of service.
65. The Court explained that this is so because it is settled law that the burden of proving the existence of a particular fact lies on the person who makes a positive averment of its existence. It is always easier to prove a positive fact than a negative one. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
66. The Court further held that in cases where the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. The Court held that even for the delay on the part of adjudicating authorities' payment of back wages should not be denied or curtailed.
67. No doubt in Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi (supra), the decision in Deepali Gundu Surwase (supra) was explained, but the decision was neither overruled nor even diluted. The Court held only that the observations therein had to be read in juxtaposition with para 38, which culled out the ratio of all the case laws on the subject. Incidentally, the above-quoted portion in this judgment is also from para 38 of Deepali Gundu Surwase (supra), which is the ratio of all the case laws on the subject.
68. In Kendriya Vidyalaya Sangathan and Anr. (supra), on facts, it was held that the employee was not entitled to full back wages. The Court also held that the initial burden was on the employee to show that he was not gainfully employed. If he places materials in that regard, the employer can bring on record materials to rebut the claim. In the said decision, the employee neither pleaded nor placed any material in that regard. Besides, that was the case where the employee was declared as an 'absconder', and the CAT had issued directions to take departmental proceedings and complete them within a time-bound period.
69. In the present case, the Labour Court has held that the termination of the Employees' services was in gross violation of the statutory provisions contained under Section 25(F), 25(G), 25(H). Besides, this is a case where the principles of natural justice and fair play were also not complied with. Therefore, Mr Sardessai's contention that the observations in paragraph 38.5 of Deepali Gundu Surwase (supra) would apply only in cases of victimisation of an employee and not in other cases cannot be accepted.
70. Here, the evidence on record shows that persons junior to the Employees were retained in service, thereby openly flouting the rule of "last come, first go" as statutorily incorporated in Section 25(G) of the said Act. The mandatory requirements of Section 25(F & H) were also openly flouted. There was no inquiry, and consequently, principles of natural justice were also flouted. No reasons were given in the termination letters for the Employees' termination, even though in the past they had been given certificates recognising their work. Given all these circumstances, the Labour Court has correctly awarded the Employees reinstatement with continuity of services and full back wages. The discretion has been exercised reasonably and consistently with the applicable legal principles.
71. These Petitions were dismissed for non-prosecution. While restoring these Petitions, the coordinate Bench (Manish Pitale, J.), by his order dated 08.12.2021, restored the Petitions after recording the statement made on behalf of the Employer that they were depositing Rs. 10,00,000/- (Rupees Ten Lakhs only) in each of these Petitions. The Employees were permitted to withdraw these amounts.
72. The above deposits were against the total dues of Rs. 16,58,378/-(Rupees Sixteen Lakhs Fifty-Eight Thousand Three Hundred and Seventy-Eight only) in Writ Petition No.217/2010 and Rs. 17,23,829/- (Rupees Seventeen Lakhs Twenty-Three Thousand Eight Hundred and Twenty-Nine only) in Writ Petition No.326 of 2010. These figures were reflected in the Recovery Certificates already issued in the matter, consequent upon the dismissal of the Petitions for non-prosecution. Thus, hardly a sum of Rs. 6,00,000/- (Rupees Six Lakhs) to Rs. 7,00,000/- (Rupees Seven Lakhs) remains payable towards full back wages in each of these Petitions.
73. As was pointed out by Mr Gaonkar, the Respondent in Writ Petition No. 217 of 2010 is today 71 years old, and the Respondent in Writ Petition No. 326 of 2010 has already expired and is now represented by his widow and two daughters. In these circumstances, without there being any case made out by the Employer, there is no question of interfering with the discretion exercised by the Labour Court in awarding full back wages.
74. In paragraph 38.5 of Deepali Gundu Surwase (supra), the Hon'ble Supreme Court has held that a superior Court should not exercise power under Article 226 and interfere with one passed by the Labour Court merely because there is possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. Besides, as noted earlier, this is a case of wrongful/illegal termination of service where the Employer has acted in gross violation of the statutory provisions and principles of natural justice and fair play.
75. For all the above reasons, both these Petitions are liable to be dismissed and are hereby dismissed. The Petitioner-Employer is now directed to pay the remaining back wages along with interest at @ six per cent per annum from the dates of the impugned awards until actual payment is made to the employees or their legal representatives within six weeks of the uploading of this order, without requiring them to resort to other lengthy procedures for recovery of this amount.
76. There is no point in prolonging the workmen's misery any longer. As it is, the direction for reinstatement stands frustrated because one of the employees has already expired, and the other employee is well past the age of superannuation. The Petitioner, by taking advantage of the pendency of these Petitions and the unfortunate circumstance that one of the workmen [Suresh Falkar] is well past the superannuation age, and the other [Ramesh Babani Naik] has expired, has got away without paying any compensation in lieu of reinstatement.
77. The Rule in both these Petitions is discharged. However, there shall be no order for costs.
78. All concerned must act on an authenticated copy of this order.