2005 Supreme(Bom) 50

IN THE HIGH COURT OF BOMBAY
Inthru Noronha
Versus
Colgate Palmolive (India) Ltd
Decided on : JANUARY 19, 2005

Headnote:Constitution Of India, 1950 - Article 226 - Issuance of writ of certiorari. - Writ of certiorari under Article 226 of Constitution is issued for correcting gross errors of jurisdiction committed by subordinate Court. - The writ of certiorari under Article 226 is issued for correcting gross errors of jurisdiction when the subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none; or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction; or (iii) acting in flagrant disregard of law, rules of procedure or of the principles of natural justice where no procedure is specified, thereby occasioning a failure of justice. The supervisory jurisdiction is not available to a mere error of fact or law unless the error is manifest or apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law or a gross injustice has been occasioned. The order of the Industrial Court holding that the work that was performed by the petitioner was not work of a clerical nature, does not fall in any one of these special categories to warrant the exercise of jurisdiction under article 226. On a review of the material on record the conclusion of the Industrial Court was correct. 2004(1) Mh LJ (SC) 633 : (2003) 6 SCC 675 - Referred.

       Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 3(5) - Industrial Disputes Act, 1947, Section 2(s) - "Workman". - Designation are not conclusive in deciding whether an employee under Section 3(5) of MRTUPULP Act, 1971 is a workman under Section 2(s) of I.D. Act, 1947. - The essential attribute of a workman in Section 2(s) of the Industrial Disputes Act, is that a person must be employed in an industry to do manual or unskilled, skilled, technical, operational, clerical or supervisory work. The definition excludes from its ambit four categories, the third being a person which is engaged in a managerial or administrative capacity and the fourth a person who is employed in a supervisory capacity drawing wages in excess of Rs. 1,600/- per month or who exercises by the nature of the duties attached to his office or by reason of his powers functions mainly of a managerial nature. Designations, it is trite law, are not conclusive in deciding as to whether an employee is a workman. The Court must essentially be guided by the nature of duties. An employee may be required to perform duties of a varied nature, some of which may not fall strictly within the category of those duties that are performed by a workman. The Court is then guided by the dominant nature of duties performed by the employee. In the present case, the petitioner in his complaint of unfair labour practice set up the case that he was performing duties of a clerical nature. On the basis of this material on the record, it is not possible for the Court to agree with the submission of counsel for the petitioner that the work performed by the petitioner was of a clerical or operational nature. The petitioner, as the evidence in this case would show, was promoted to the executive cadre and his promotion involved a material change in his emoluments in accordance with the wage structure of the first respondent that was applicable to the executive cadre. He was informed that his gratuity would be governed by the scheme applicable to executive staff and that he would become a member of the pension scheme applicable to executive staff with effect from January, 1990. The petitioner was informed that his age of superannuation as a member of the executive staff would be 58 years. In that cadre, the salary of the petitioner was revised from time to time, something which the petitioner accepted in the course of his cross examination. Be that as it may, in order to render a full and complete adjudication in this matter, it is also necessary to determine as to whether the work that was performed by the petitioner was one in which he was employed mainly in a managerial or administrative capacity. Business in recent years has been marked by rapid organizational changes. The swift evolution of tech nology has led to a quantum change in the business environment. Modern managements have to alter the structure of organization in order to meet the exigencies of the time. Every employee in the managerial cadre may not necessarily have the power to appoint or dismiss personnel nor indeed would an employee engaged mainly in a managerial or administrative capacity always have the power to sanction leave applications. Similarly, the test of the existence of control over subordinates may be applicable in certain factual situations, but not necessarily in every conceivable case. In others, control over subordinates may not necessarily be by all personnel in the managerial cadre. The number and strength of the subordinate staff depends upon the nature of business that is being conducted. It would, for instance, be wholly inappropriate to apply the same test which would govern the organization of a traditional form of manufacturing business to a business founded on software, biogenetic or a business at the cutting edge of technology. The interpretation of Section 2(s) must be such as would not lead to stultifying innovation, development and change in managerial practice. Business managers should have a high degree of latitude to promote efficiency in a competitive business environment. Courts are of course vigilant to deal with subterfuge. The important thing for the Court is to evaluate the position of an employee with reference to the nature of his duties in the context of the business where those duties are performed. While traditional tests are undoubtedly of relevance, the weightage which is to be ascribed to each factor must necessarily vary having regard to the nature of business. Insofar as the facts of the present case are concerned, it is not possible to accede to the submission that the work which was being done by the petitioner was essentially of a clerical or operational nature. The nature of

        his work would show that the functions of the petitioner, going by what he himself described as his functions in his performance appraisal form was anything but clerical. In the circumstances, the finding which was arrived at by the Industrial Court that the petitioner was not a workman did not warrant interference under Article 226. 1994 (II) CLR 552; 1994 (II) CLR 359; AIR 1960 Mad 288; 2000 (II) CLR 644; 2004 (II) CLR 23 - Referred.