1998 Supreme(Bom) 800

IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
The Union Carbide (India) Ltd. ..... Petitioner.
Versus
Ramesh Kumbla others..... Respondents.
Writ Petition No. 2598 of 1994, decided on 15 16-12-1998.
Advocates appeared :
P.K. Rele with T.S. Shetty and Aditya Chitale, for petitioner.
S.M. Dharap, for respondent No. 1.

Headnote:Section 2(s)(iv)-Workman- The second part of sub- clause (iv) of clause (s) of Section 2 of the Industrial Disputes Act must be read independently of the first part-The word "or" appearing between the two parts of sub-clause (iv) of Section 2(s) cannot be read as "and" -It has to be read disjunctively and not conjunctively. 1985 (1) CLR 318: 1998 (II) CLR 736 Relied on.

       Section 2(s)-Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1 of 1972), Sections 3(5), 28, Schedule IV, Items 1(a), (b), (d) and (f)-Person who is employed in a supervisory capacity and drawing wages exceeding Rs. 1600/- p.m. is excluded from definition of "workman" within meaning of Section 2(s) of Act-He is outside the definition of work "employee" within meaning of Section 3(5) of MRTU and PULP Act Complaint filed by such person under Section 28 of MRTU and PULP Act, 1971 alleging unfair labour practices by said person maintainable.-A complaint alleging unfair labour practices under items l(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was filed under Section 28 of the Act. The preliminary objection as to the maintainability of the complaint on the ground of the first respondent not being a "workman" was rejected by the Labour Court holding that the petitioner employer had indulged in unfair labour practices. The order of termination as passed was set aside and reinstatement was ordered. The Industrial Court confirmed the findings of the Labour Court. The orders as made were challenged in writ petition by the employer contending that in order that the first respondent is held to be a "workman" it must be established that he falls within the main part of the definition in Section 2(s) of the Industrial Disputes Act, 1947 and is not excluded by the concluding portion. The oral and the documentary evidence on record clearly showed that the first respondent was employed in a supervisory capacity in the Electrical Maintenance Department and was drawing gross salary of Rs. 3,214 and after some deduction the salary paid was Rs. 2,715/-. The predominant nature of his work was supervisory and not technical. As a supervisor though he was required to do, at times, the work himself because of its technical nature that did not militate the first respondent being employed primarily in a supervisory capacity as a supervisor in the Electrical Department. He had power to recommend leave and authorise overtime work and over-time free meals. He enjoyed certain special privileges and benefits under the Pension Scheme and the Gratuity Scheme framed by the petitioner company, the benefits of which, were not available to "workmen". He was deputed to attend the Key Managerial Programme and attended the same.

       Held, that on the evidence that was adduced before the Labour Court, no other conclusion was possible save and except that the first respondent was not a workman within the meaning of 2(s) of the Industrial Disputes Act. The approach of the Labour Court, while passing the impugned order showed non- application of mind to the relevant evidence. While it is true that each one of the above mentioned factors indicated in support of conclusion that the first respondent was employed in a supervisory capacity may not, by itself, be conclusive and determinative of the controversy, it was wholly impermissible for the Labour Court to discard all the factors taken together. The Labour Court ought to have considered the cumulative effect each one of the factors which emerged from the oral and documentary off evidence. To say that the authorisation of over-time, by itself, was not enough or granting of certain special benefits, by itself, was not enough or sanctioning leave application, by itself, was not enough is one thing; but to ignore the cumulative effect of the various factors mentioned above would, an approach which would not only be impermissible in law, but would be wholly perverse. The cumulative effect of the factors mentioned above would indicate only one conclusion viz. that the predominant nature of duties of the first respondent showed that he was employed in a supervisory capacity. The Labour Court had discarded each of these factors by saying that, by itself, it was not enough to exclude the first respondent from the category of workman. Assuming that to be so, the Labour Court had totally erred in the exercise of its jurisdiction in not considering the cumulative effect of the factors emerged from the oral and documentary evidence on record. Such an error is an error of law apparent on face of the record and indicates an approach which is nothing short of perverse in law. The Industrial Court had also failed to exercise jurisdiction vested in it and to correct the errors of law apparent on the face of the record. Therefore, as the first respondent was not a "workman" under Section 2(s) of the Industrial Disputes Act and fell outside the purview of the definition of the word "employee" within the meaning of Section 3(5) of the MRTU and PULP Act, the complaint under Section 28 was not maintainable in law.

       Sections 28 and 44-Industrial Disputes Act, 1947, Section 2(s)Complaint under Section 28 of Act 1971 against petitioner employer having committed unfair labour practices under Act-Maintainability of complaint-Main contention whether complainant was "workman" under Section 2(s) of Act, 1947-Complainant respondent was employed in supervisory capacity and drawing wages more than prescribed limit of Rs. 1600/- p.m.-Thus he was not workman only employee within meaning Section 3(5) of Act 1971-So complaint by employee under Section 28 of Act 1971 not maintainable-Impugned orders set aside.-While Section 44 gives power to the Industrial Court to have superintendence over all the Labour Courts and pass certain orders, it must be conceded that such a power does not include the power to re-appreciate the evidence merely because a different conclusion was possible. But where the evidence on record, taken as a whole, leads to only one inference, it would be the duty of the Industrial Court, in exercise of its powers under Section 44, to examine the findings of the Labour Court and to decide whether they are vitiated either as a result of non-application of mind or perversity in approach. Where there is an error of law apparent on the face of the record and where the cumulative effect of the oral and documentary evidence lead only to one conclusion in Court view the Industrial Courts is not precluded from exercising its powers and setting aside the finding recorded by the Labour Court. One of the reasons assigned by the Industrial Court in not upsetting the finding of the Labour Court is that the first order on the preliminary issue as to whether the first respondent was workman or not was passed as far back as on date 22nd October, 1984 and one could not find fault with the order passed in the year 1984 as a result of the law laid down in a subsequent decision. While it is difficult to appreciate this approach reflected in para 50 of the order passed by the Industrial Court, in Courts view even on the law as it stood in 1984 the conclusions arrived at by the Labour Court were wholly unsustainable since they disclosed non-application of mind to the cumulative effect of the oral and documentary evidence on record and reflected an approach which was perverse in law. One cannot consider each circumstance in the evidence in isolation and discarded it without considering its context and the cumulative effect along with the other circumstances which are brought on record. That is precisely what the Labour Court had done while passing the order dated 22nd October 1984 and in Courts view, the Industrial Court failed to exercise the jurisdiction vested in it under the erroneous assumption that Section 44 of the 1971 Act does not permit an Industrial Court to correct the errors of law apparent on the face of the record which reflect not only perversity of approach but a perverse finding in law. In the circumstances, it is not possible to uphold the findings recorded by the Labour Court and the Industrial Court that the first respondent was a workman under Section 2(s) of the ID Act. In Courts view, having regard to the overwhelming evidence on record both oral and documentary, only one conclusion was possible viz. that the respondent was employed in a supervisory capacity and was drawing wages exceeding the prescribed limit, which at the relevant time was Rs. 500/- and is today Rs. 1600/- per month. In this view of the matter, it is clear that the first respondent was not an employee within the meaning of clause (5) of Section 3 of the 1971 Act. If that be so, the complaint filed by the first respondent under Section 28 of the 1971 Act would not be maintainable in law, There can be no dispute that for entertaining a complaint under Section 28 of the MRTU and PULP Act, 1971, the complainant has to be either a union or an employee within the meaning of Section 3(5) of the 1971 Act, reproduced above makes a reference to the definition of workman as defined in clause (s) of Section 2 of ID Act.

       Section 44-Power of Industrial Court to have superintendence over all the Labour Courts and pass certain orders does not include the power to re-appreciate evidence merely because a different conclusion was possible-Where, however, evidence on record, taken as a whole, leads to only one inference, it would be the duty of the Industrial Court, in exercise of powers under Section 44 to examine finding of the Labour Court and to correct errors of law apparent on the face of the record which reflect not only perversity of approach but a perverse finding in law,

       Sections 44 and 3(5)-Industrial Disputes Act, 1947, Section 2(s) (iv)-Workman-Power of Industrial Court-Supervisor drawing wages exceeding Rs. 1600/- p.m.-In view of Section 2(s)(iv) of ID Act as wages exceeded stipulated limit supervisor is not workman-Labour Court committing error of law with perverse finding and holding superior as workman-Held, thus industrial Court having powers of superintendence can correct such finding being perverse in law.