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IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar S.W. Puranik, JJ.
Bombay Dyeing Manufacturing Company .... Petitioner.
Versus
R.A. Bidoo another .... Respondents.
Writ Petition No. 6026 of 1987, decided on 19- 6- 1989.
Advocates appeared :
B.N. Shrikrishna with Mrs. Meena H. Doshi, for petitioner.
C.U. Singh, for respondent No. 1.
Section 3 (13) - Employee-Scope and meaning-Supervisor excluded-Employed in technical capacity-Held-A person who overseer the work of others is an overseer-In absence of any evidence he could not be held employed in technical capacity.
Supervision as correctly understood does not extend to supervision of plant or machinery. A person may check whether a machine is working properly or not, but that does not by an stretch of imagination make him a Supervisor. He is only finding out whether the machine is in working condition. If it is not in a working condition to see that it is put in a working condition. This cannot be called supervision at all. To repeat, Supervision at all. To repeat Supervision means supervision over men and not over machines. The evidence, in the instant case, does not show in the slightest degree that the respondent had any subordinate below him over whom he could or did exercise supervisory powers. The concurrent finding of the two Courts below, therefore, that the respondent was not a supervisor, is unassailable and petitioner was not able to show how that finding is erroneous.
This Court have said earlier, there is not only no evidence to show that the respondents work was of technical nature, but there is in fact, no evidence to show what the nature of his work was.
Skilled"- Meaning of.
The word "skilled" does not include "technical". Persons employed in a technical capacity should be excluded from the "skilled" employees as contained in the main part of definition. If this argument is accepted, it would mean that there are three types of employees namely (i) unskilled, (ii) skilled, and (iii) technical. The argument is unacceptable to us. The question of excluding someone does not arise unless that person is included in the main part of the definition. If a technical person is not included either in the skilled or unskilled category as mentioned in the opening part of the definition, it was not necessary for the Legislature to exclude him by mentioned that the definition does not included the said person. The question of specifying such a person, namely a person employed in a technical capacity drawing a particular salary, also would not have arisen if that person had not been included in the earlier part of the definition. In our opinion, a person employed in any of the four categories mentioned in the exclusion clause must necessarily be held to be included in earlier an unskilled category or in skilled category of employees. For obvious reasons, we hold that a person employed in a technical capacity must be deemed to be included in the category of skilled employees. In other words, the skilled employees from a larger class of which persons employed in a technical capacity from a part.
"Supervision", "Supervisor", "Overseer"-Meaning of.
As the Labour Court has right pointed out, "supervision of a plant or machine does not make that work supervisory within the meaning of Section 3 (13)" The word supervisor, though it has become a part of the English language, means a person who oversees the work of others. It means overseer. A person can be said to be a supervisor if there are persons working under him, over whose work he has to keep a watch. He is that person who examines and keeps a watch over the work of his subordinates and, if they err in any way, corrects them. It is his duty to see that the work in an industrial unit is done in accordance with a manual, if there is one, or in accordance with the usual procedure. It is not his function to bring about any innovation, it is not his function to take any managerial decisions, but it is his duty to see that the persons over whom he is supposed to supervise do the work assigned to them according to the rules and regulations. The central concept of a supervisor is the fact that there are certain persons working under him. If a person is doing any work which does not require him to look after or inspect or examine the work of persons who are subordinate to him or working under him, that person can never be said to be a supervisor. In other words the supervision is necessarily by reference to the persons working under a supervisor.
Supervision as correctly understood does not extend to supervision of plaint or machinery. A person may check whether a machine is working properly or not, but that does not by any stretch of imagination make him a supervisor. He is only finding out whether the machine is in working condition. If it is not in a working condition to see it is put in a working condition. This cannot be called supervision at all. To repeat, supervision means, supervision over man and not over machines. The evidence, in the instant case, does not show in the slightest degree that the respondent had any subordinate below him over whom he could or did exercise supervisory powers.
BOMBAY INDUSTRIAL RELATIONS ACT, 1947
Sections 3 (13), 78, 79-Snpervisory or technical capacity-When an employee can be said to be supervisor-Supervision over men or over plant and machine-Supervision means supervision over men and not over machines-A person employed in technical capacity comes under category of skilled employees -Skilled employees from larger class of which persons employed in technical capacity form a part-Camera operator is not a person employed in technical capacity.
Supervision as correctly understood does not extend to supervision of plant or machinery. A person may check whether a machine is working properly or not, but that does not by any stretch of imagination make him a supervisor. He is only finding out whether the machine is in working condition. If it is not in a working condition, to see that it is put in a working condition. This cannot be called supervision at all. To repeat, supervision means, supervision over men and not over machines. The evidence, in the instant case, does not show in the slightest degree that the respondent had any subordinates below him over whom he could or did exercise supervisory powers. The concurrent finding of the two Courts below, therefore, that the respondent was not a supervisor, is unassailable.
A person employed in a technical capacity must he deemed to be included in the category of skilled employees. In other word, the skilled employees form a larger class, of which persons employed in a technical capacity from a part.
The fact that some of the concessions and the perquisites, which are normally given to person employed in a technical capacity, were given to the respondent is not relevant or material in holding that he was employed in a technical capacity. It may be, the employers thought that the respondent was a technician and he should be given certain concessions or perquisites. It may also be that those concessions or perquisites were given to him because of the nature of the work which the respondent was doing rather than the capacity in which he was employed. Similarly, the fact that the respondent is a member of the association of technicians in the company is not of such crucial importance as to hold that the respondent is a person employed in a technical capacity. In any case, in the absence of basic material relating to the nature of the work performed by the respondent it has not been possible for us to differ from the concurrent finding given by the two Courts below that the respondent, in the instant case, is not a person employed in a technical capacity.
2. The first respondent, hereinafter referred to as "the respondent", joined the petitioner-company hereinafter referred to as "the company" as a Camera Operator on 1st of October, 1968. The respondent was promoted to the post of Departmental Assistant and ten years later in year 1978 he was further promoted to the post of Junior Assistant Master. Above him, there are two more posts, namely those of Senior Master and Engraving Master. Thus the respondent occupied a middle position in the hierarchy in this department which is called the Screen Making Department. On 28th of January, 1982, his services were terminated with immediate effect on tendering him salary for one month in lieu of notice. The salary which was offered to him was Rs. 2,157.92. This is the consolidated salary, which included the dearness allowances. Elsewhere in evidence it is noticed that the Basic salary of the respondent was 1,200 per month.
3. After his approach letter under section 42(4) of the Bombay Industrial Relations Act, hereinafter referred to as "the B.I.R. Act", was not responded to by the company, the respondent filed an application in the 6th Labour Court at Bombay under section 79 read with section 78 of the B.I.R. Act. That was Application (B.I.R.) No. 220 of 1982. In that application he asked for the quashing of the order of termination of his services of the respondent with full back wages. It should be noted that the services of the respondent were terminated by the company without assigning any reason, let alone after holding an inquiry into any act of misconduct or otherwise. In fact there is no allegation to be found in the material before us that the respondent had committed any act of misconduct which could be visited with the penalty of discharge or dismissal under the service conditions governing the respondent.
4. The company resisted the said application practically on the sole ground that the respondent was not an employee within the meaning of that term to be found in section 3(13) of the B.I.R. Act. In particular, it was contended on behalf of the company that the respondent was a person employed in a supervisory or in a technical capacity drawing basic pay , excluding allowances, exceeding Rs. 1,000 per month. That the respondent was drawing a pay exceeding Rs. 1,000 per month is in admitted position and it has been mentioned by us earlier. The question before the Labour Court was whether the respondent was a person employed in a supervisory or a technical capacity. If he was so employed and since his basic salary was above Rs. 1,000 per month, then naturally he would be excluded from the definition of "employee". Since an employee alone could file an application under section 79 read with section 78 of the B.I.R. Act, after giving a notice under section 42(4) of the said Act, an application filed by a person other than an employee would have to be dismissed.
5. In support of his case of unlawful dismissal by the company, the respondent examined himself. By way of rebuttal, the company examined one Gokuldas S. Kallapur who was, at the time when he gave evidence, the head of the section in which the respondent was working at the time of the termination of his services.
6. The Labour Court, by an elaborate and exhaustive judgment delivered on 24th of April, 1986, held that the respondent could not be regarded as being employed in a supervisory capacity because all that the evidence of the respondent suggested was that he was looking after the machines and not the men. The Labour Court also held that the respondent was not employed in a technical capacity despite the fact that the evidence suggested, to some extent, that t
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