2006 Supreme(SC) 709

2006(6) Supreme 455
SUPREME COURT OF INDIA
(From Gujarat High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Anand Regional Co-op. Oil Seedsgrowers Union Ltd. — Appellant
versus
Shaileshkumar Harshadbhai Shah — Respondent
Civil Appeal No. 3417 of 2006
(Arising out of SLP (C) No. 18951 of 2005)
Decided on 8-8-2006
Counsel for the Parties :
For the Appellant : L.N. Rao, Sr. Advocate, Sanjay Kapur, Rajiv Kapur, Ms. Shubhra Kapur and Ms. Arti Singh, Advocates.
For the Respondent : Ramesh P. Bhatt, Sr. Advocate, Ms. Tanuja Sheel, Mukesh Kumar and Chirag M. Shroff, Advocates.

IMPORTANT POINT
Industrial Court will not interfere with quantum of punishment unless there existed sufficient reasons therefor.

Headnote:Industrial Disputes Act, 1947 — Section 2(5) — Workman — For determining whether a person employed in an industry is a workman or not, not only nature of work performed but also terms of appointment in that job performed are relevant considerations — Respondent was working as an Assistant Executive in the Quality Control Department of appellant Co-operative Society — In his evidence Respondent stated that he was the Head of the Department but was not authorised to initiate any departmental proceedings against his subordinates — Respondent did not come within purview of exclusionary clause of the definition of workman.

       Held : The ingredients of the definition of workman must be considered having regard to the following factors:

       (i)Any person employed to do any skilled or unskilled work, but does not include any such person employed in any industry for hire or reward.

       (ii)There must exist a relationship of employer and employee.

       (iii)The persons inter alia excluded are those who are employed mainly in a managerial or administrative capacity.

       For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also terms of the appointment in the job performed are relevant considerations. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the section alone and that too it being a small one and relating to quality control would not answer the test.(Paras 13 to 15)

       In the disciplinary proceeding while asserting that he did not take part, the Respondent in his evidence stated that he was the Head of the Department and there was no officer superior to him except the Managing Director. To a query made, whether the employees named by him were under his control; he, however, stated that as a senior he gives guidance. He, however, did not state that he was authorized to initiate any departmental proceedings against his subordinates.(Para 11)

       Judging by the said standard, we are of the opinion that the First Respondent did not come within the purview of the exclusionary clause of the definition of workman. Ananda Bazar Patrika (supra) was followed by the court in a large number of cases.(Para 18)

       (ii) Industrial Disputes Act, 1947 — Section 11A — Dismissal from service — Enquiry Officer found respondent guilty of misconduct — Labour Court directed reinstatement with 25% backwages — High Court upheld order in writ — Appeal — Labour Court though had jurisdiction to consider question in regard to quantum of punishment but had a limited role to play — Wrong test was applied by Labour Court that if nature of offence was grave, he could have been inflicted punishment of stoppage of increments — However there were identical allegations against seven more persons and management did not take serious note of misconduct by others although they were similary situated — They were allowed to take benefit of voluntary retirement — Respondent also be given benefit of voluntary retirement scheme and award modified.

       Held : The learned Presiding Officer, Labour Court in his award did not assign any reason as to how the findings of the Enquiry Officer were perverse. There may or may not be any specific allegation. The question which arose for consideration before the Labour Court was as to whether an officer having enormous responsibilities could have behaved in such a manner. The Labour Court did not advert to the said question. The learned Single Judge of the High Court also without any material on record opined that the Respondent – workman was not involved in the incident. The Division Bench of the High Court did not consider these aspects of the matter at all. The Labour Court although has jurisdiction to consider the question in regard to the quantum of punishment but it had a limited role to play. It is now well-settled that the industrial courts do not interfere with the quantum of punishment unless there exists sufficient reasons therefor.(Paras 23 to 25)

       A wrong test was applied herein by the Labour Court in observing "If the nature of the offence is grave he could have been inflicted punishment of stoppage of the increments". On what premise the said observations were made is not known. There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The Management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirement scheme. The First Respondent might not have opted therefor. However, having regard to the peculiar facts and circumstances of this case, he should be, in our opinion, treated on a similar footing. In view of the fact that the First Respondent has succeeded in the Labour Court and the learned Single Judge as also the Division Bench; we are of the opinion that having regard to the overall situation, the interest of justice would be subserved if the award of the Labour Court dated 31.1.2003 as affirmed by the High Court is substituted by a direction that the First Respondent shall also be given the benefit of voluntary retirement scheme from the month in which the other workmen were given the benefit thereof.(Paras 27 to 29)