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2014 Supreme(Guj) 115
Gujarat High Court
Hon’ble Mr. Justice Jayant Patel
Premani Products
Versus
Mukundbhai M. Yagnik
Special Civil Application No. 2534 of 2007—Decided on 07/04/2014
Appearance :
Mr. Dipak R. Dave, Advocate for the Petitioner No. 1.
Mr. Yogi Gadhia for Mr. K.V. Gadhia, Advocate for the Respondent No. 1.
Point in Issue :
Whether in the facts and circumstances of the case respondent is workman is entitled to relief under the Act.
Headnote:Head Note :
Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 2(5) — Workman — Whether respondent is workman and award passed by Labour Court in his favour is sustainable — Finding of — One who is employed in supervisory capacity draws wages exceeding Rs. 1600/- per annum or exercises duty as per the power vested in him in Managerial capacity is not covered under definition of workman — The documents produced by petitioner and admitted by respondent clearly shows that respondent had functioned in Managerial as well as supervisory capacity — The position of the respondent falls under Clause IV of Section 2(5) of the Act so as to take him out side the scope of the definition of the workman — He is therefore not entitle to protection under the Act and Labour Court has no jurisdiction to extend the protection under the Act — Under the circumstances impugned award passed by the Labour Court is not sustainable — It is quashed and set aside.
Held :
Court has considered various evidences which were produced before Labour Court and are produced with the compilation of the Special Civil Application. The documents produced by the list at Exh. 11 are in majority admitted by the respondent in his cross-examination at Exh. 8. He has admitted his signature in the documents at Mark 11/1 to 11/10 and 11/15 to 11/23. In his further cross-examination, the respondent has also stated that he has signed in the said documents because they were falling in his authority or duty. If the said admission of the respondent workman is considered with the documents at Exh. 11/1, 2 and 3, it is apparent that he had functioned in managerial as well as supervisory capacity. There are also other correspondence at Exh. 11/4 to 11/10 which may show that the respondent had worked in the supervisory capacity. If the aforesaid evidence is considered, the position of the respondent would fall under Clause (iv) of Section 2(s) so as to take him outside the scope of the definition of the workman. If one is not the workman within the meaning of provisions of Section 2(s) of the I.D. Act, the protection under the Act would neither be available to him nor a Labour Court will have the jurisdiction to extend the protection under the Act. [Para 8]
Law Laid Down :
One who is employed in supervisory capacity draws exceeding Rs. 1600/- per annum or exercises duty in managerial capacity would be excluded from the definition of workman.
Jayant Patel, J.—The present petition is directed against the judgment and award dated 21.06.2006 passed by the Labour Court in Reference (LCA) No. 972 of 1992 whereby the Labour Court had directed for reinstatement with 20% back-wages.
2. The short facts of the case appear to be that as per the petitioner, the respondent was appointed as Supervisor from 10.12.1968. He continued service and then he was promoted as Production In-charge. As per the petitioner, the respondent started business of manufacturing of the same product which was being sold by the petitioner on the name of his wife and nephew and there was an attempt on the part of the respondent to divert the business of the petitioner. The petitioner lost the confidence upon the respondent and thereafter on 27.05.1991, the service of the respondent was terminated. The dispute was raised by the respondent under the Industrial Disputes Act, 1947 (hereinafter referred to as “the I.D. Act”) and such dispute was thereafter referred to the Labour Court for adjudication being Reference (LCA) No. 972 of 1992. The Labour Court at the conclusion of the adjudication process passed the above referred judgment and award. Under the circumstances, the present petition before this Court.
3. I have heard Mr. Dipak Dave, learned counsel appearing for the petitioner and Mr. Yogi Gadhia for the respondent.
4. Learned counsel appearing for the petitioner contended that the respondent was working in managerial as well as supervisory capacity and his salary was exceeding Rs. 1,600/which was the limit at the relevant time under Section 2(s) of the I.D. Act and therefore, he could not be said as workman under the Act and consequently the protection would not be available to him under the Act and hence outside the jurisdiction of the Labour Court. It was submitted that even otherwise also the respondent was doing the business of manufacturing of a product which was being manufactured by the petitioner on the name of his wife and nephew and such had resulted into loss of confidence and therefore, his services were rightly terminated. The Labour Court has committed error in recording in the judgment that no evidence is led in spite of the fact that number of documents were produced showing the functioning of the petitioner in managerial capacity and supervisory capacity. It was therefore submitted that the award passed by the Labour Court be quashed and set aside.
5. Whereas Mr. Gadhia, learned counsel appearing for the respondent submitted that admittedly no inquiry whatsoever was held before termination and therefore the termination would be illegal as per the provisions of the Act. He submitted that the documents which are produced by the management were signed by the respondent because of the insistence of the petitioner since he was working in a small factory and could not resist the insistence of the employer. He submitted that as such the respondent was working neither in a managerial capacity nor in supervisory capacity but could be said as doing the activity which would fall within the meaning of Section 2(s) of the I.D. Act and the protection would be available and the Labour Court will have the jurisdiction. He submitted that if the Labour Court had the jurisdiction and when the termination was without holding any inquiry, the Labour Court has rightly directed for reinstatement with 20% back-wages and therefore, this Court may not interfere with the award passed by the Labour Court.
6. It is an admitted position that no inquiry was held before termination and therefore on the said aspects, I do not find that any discussion is required to be made. However, the point which goes to the root of the matter is whether the respondent could be said as workman within the meaning of Section 2(s) of the I.D. Act or not and if the answer is in negative, the Labour Court will not have any jurisdiction and consequently, the award would fall to ground for the relief under the Act.
7. As the termina
