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2005 Supreme(Cal) 2
High Court Of Calcutta
Amitava Lala
JHONSON AND JHONSON LIMITED - Appellant
Versus
THIRD INDUSTRIAL TRIBUNAL - Respondent
W. P. 171 Of 2004
Decided On : 01/06/2005
ARIJIT BANERJI, D.K.Pal, K.H.Dasan, MALA CHAKRAVARTY, P.S.SENGUPTA
An employee who is responsible for organizing and developing the business of the company, assessing the performance of other employees, and making suggestions to the higher authority for taking decisions is not a workman under the definition of the Industrial Disputes Act, 1947.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - WORKMAN - MANAGERIAL CAPACITY - Whether the employee was holding the post of managerial nature or not - Held, that the employee was not a workman under the definition of Industrial Disputes Act, 1947.
Fact of the Case:
The employee, Subir Guhathakurta, was terminated from his employment as Zonal Manager (Pharma Division) of the petitioner company on 19th September, 1996. He challenged the termination before the Industrial Tribunal, which held that he was entitled to reinstatement with full back wages and other consequential benefits. The employer challenged the award before the High Court.
Finding of the Court:
The High Court held that the Tribunal erred in finding that the employee was not working in a managerial or supervisory capacity. The Court found that the employee was responsible for organizing and developing the business of the company in the area allotted to him, and that he assessed the performance of the MSRs and made suggestions to the higher authority for taking decisions on this count. The Court also found that the employee had the power to sanction L.T. applications and to certify tour programmes of MSRs.
Issues: Whether the employee was a workman under the definition of the Industrial Disputes Act, 1947.
Ratio Decidendi: The High Court relied on the judgment of the Supreme Court in S. K. Maini vs. Carona Sahu Company limited and Ors., AIR 1994 SC 1824, which held that a manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. The Court also relied on the judgment of the Division Bench of the Calcutta High Court in Collector of Customs, Calcutta and Ors. vs. Biswanath Mukherjee, 1974 CLJ 251, which held that the finding of a Tribunal on a question of fact can be set aside if it is perverse.
Final Decision: The High Court set aside the award of the Industrial Tribunal and quashed the office order/notification dated 10th September, 2003.
( 1 ) IN this writ petition award of the learned Judge, Third industrial Tribunal, West Bengal dated 29th August, 2003 has been challenged by the employer. Such award was published by an office order of the Deputy secretary, Government of West Bengal dated 10th September, 2003. The issues before the Tribunal were as follows : (1) Whether the termination of service of Shri Subir Guhathakurta w. e. f. 19. 09. 96 is justified? (2) To what relief, if any, is he entitled?
( 2 ) FROM the penultimate paragraph of the judgment in support of the award i find that the learned Judge held that the respondent No. 3/employee is able to establish his case and on the other hand the employer has failed to discharge its onus that the employee was working in managerial or supervisory capacity in the company. It has been decided that the employee is entitled to all reliefs claimed. He is entitled to be reinstated in service with full back wages and other consequential benefits from the date of termination.
( 3 ) THEREFORE, it is apparent that a preliminary issue arose as to whether the employee comes within the definition of workmen of the Industrial Disputes act, 1947 or whether he was holding the post of managerial nature or not additionally with the dispute as regards merit. It is reflected from the judgment of the Third Industrial Tribunal that no issue was settled about such preliminary point. However, power of the Industrial Tribunal in this State under Rule 20d of the West Bengal Industrial Disputes Rules, 1958 can be applied in considering such preliminary point as incidental or additional or subsidiary issue without enlarging the scope of the points referred for adjudication on the merits and also without adding any number. Hence no mistake has been committed by the learned Judge in considering such issue.
( 4 ) THE employee contended through his Counsel before the Tribunal that whether the employee was working as supervisory or managerial capacity is for the employer to prove.
( 5 ) MR. Partha Sarathi Sengupta, learned Senior Counsel, as appearing in this case contended on behalf of the petitioner/employer that from the judgment it is apparent that in so many places the employee stated "i was instructed to. . . . . . . . . . . . . . . . . . . " or "i was directed it. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ". Such evidences cannot be proved in negative by the petitioner/management on the plea that the onus is lying upon them to prove whether the employee was working as supervisor or manager. The petitioner/management will only prove affirmatively in accordance with law whether such person was working as supervisor or manager.
( 6 ) I find that on behalf of the petitioner/management five witnesses were produced for the purpose of examination out of which the evidence of O. P. W. 1 has been expunged for his non-appearance. On the other hand, the employee himself was examined as P. W. 1. An independent witness, Sri Tapan Kumar ganguly, was examined as P. W. 2 for the purpose of production of conciliation file on behalf of the Assistant Labour Commissioner. It is undisputed that the employee was holding the post of Zonal Manager (Pharma Division) of the petitioner company with a monthly salary of Rs. 10,000/- at the time of termination of his employment on 19th September, 1996. The termination was caused due to loss of confidence, for making false report and false claiming of expenses. He was an appointee by the then Chief Executive. From the body of the judgment it transpires that O. P. W. 2, a Senior District Manager stated that expenses incurred by MSRs during the tour programme was sanctioned by the Regional Sales Manager after certification by District Manager, The district Manager sanctioned leave of the MSRs. The District Manager also recommended the loan application of MSRs. He also used to assess their performance once a year and also recommended their promotion. The respondent herein, being th
