Nishita Mhatre, J.@mdashThis Petition arises from an award of the Industrial Tribunal rejecting the reference made to it for adjudication of the dispute between the original petitioner R.A. Gonsalves (for short, ''employee'' and the first Respondent. The employee has expired during the pendency of this petition and, therefore, by an order of 7.10.2002, his heirs had been brought on record.
2. The limited issue involved in this Petition is whether the original petitioner was a workman as defined u/s 2(s) of the Industrial Disputes Act. The employee was working as a. Handyman w.e.f. 13.1.1972 with Respondent No. 1 and was later promoted from time to time. He was designated as a Supervisor w.e.f. 1.4.1977. His services came to be terminated by an order dated 24.8.1981 with immediate effect under the provisions of Clause 21 of the Model Standing Orders. Aggrieved by this decision of Respondent No. 1, the employee raised an industrial dispute which was referred for adjudication before the Industrial Tribunal. After the pleadings were complete, issues were framed. The first two issues are as follows:
1) Is the concerned employee Shri R.A. Gonsalves is workman?
2) Is the Reference maintainable?
3. Since the first two issues were answered in negative, the Tribunal did not consider the remaining issues pertaining to the merits of the case. The Petition impugns the award of the Tribunal''s finding that the employee was not a workman as defined u/s 2(s) of the Industrial Disputes Act.
4. Mr. Ganguli, learned Advocate for the Petitioners, submits that there is overwhelming evidence on record which establishes the fact that employee was in fact a workman as defined u/s 2(s) of the Industrial Disputes Act. According to the learned Advocate, the employee was doing the work which was mainly of manual and clerical or skilled nature. If at all the workman was required to supervise the other persons who worked as a team alongwith him, the supervision was negligible as the dominant nature of work was manual, clerical and skilled. The learned Advocate submits that the Tribunal has completely misdirected itself by concluding that since the employee was designated as a senior supervisor, he could not be called a workman. It is also urged that the Tribunal has taken a very narrow view of the definition of workman while coming to the conclusion that the employee did not fall within the purview of the definition contained in Section 2(s) of the Industrial Disputes Act. The learned Advocate places reliance on the judgments of the Supreme Court in the cases of
5. Let us first consider the work that the employee was performing. The Tribunal has culled out certain portions of the evidence which indicate the kind of tasks that the employee was performing. The employee was required to work in shifts. The work in the general shift was different from the work performed in the other shifts. The employee was required to punch his attendance card while reporting for duty. The employee was expected to attend to departure and arrival of flights. Certain documents in the form of requisitions, bond requisitions, ICU and other indents required for a particular flight were to be filled by him. He was under the control of supervision of the duty officer. After collecting the items indented for, these items were issued by him for various departments for pre-flight preparations. When the flight was pre-set" the employee was expected to fill another set of forms in respect of the meals required on board the flight. He was then expected to ensure that the required meals weer loaded properly on the aircraft. While handing over the meals, he used to hand over other equipments and ancillary items as well for use in different galleys on the aircraft. After the departure of the flight, he was expected to fill in the flight departure report. These were the main duties he performed during the various shifts. When the working in the general shift under the duty officer, he was required to check status of crockery, cutlery, glassware, trolley carte, even cages on arrival. These items were to be drawn from the bonded stores or local stores when the need arose and were to be counted by him physically in order to be issued to different departments as per their requirement. It has been stated in the deposition of the witnesses that the employee had no power to appoint any staff of the lower category or to remove any workman from service or to take any disciplinary action against the workman. The employee was not in a position to grant leave or to exercise any financial powers in relation to his duties. Overtime also could not be granted to other workmen by him. Another very relevant fact which was brought on record was that the employee was paid wages in accordance with the settlement which was signed by the Union and the management. In fact, the witness of Respondent No. 1 has stated that employees upto the grade of supervisors were paid overtime wages at double the rate from regular work in accordance with the settlement with the Union and that the employee also used to get overtime wages.
6. On an assessment of evidence as culled out by the Tribunal in its judgment, it is difficult to accept the reasoning of the Tribunal that the employee Gonsalves was not a workman as defined u/s 2(s) of the Industrial Disputes Act. According to the Tribunal, the clerical work which was required to be performed by the workman was only for about 1.1/2 to 2 hours a day and dun no the rest of the time, he was expected to supervise the work of his staff as well as supervising of the loading and unloading work on the aircraft. Despite the evidence of the witness for Respondent No. 1 which indicates that the employee Gonsalves was expected to supervise the work of off-loading the trays, cutlery, glasses, etc., the Tribunal has held that the work done by him was of a supervisory nature. According to the Tribunal, the work of the employee was to supervise over others who were working in the shift alongwith him.
7. In my view, the job description and the nature of the work performed by the employee was none other than that of manual and clerical nature. It may be that on certain occasions, the employee was required to supervise over others who worked alongwith him but that was not the dominant nature of his work. Incidental supervision of others working alongwith him could not lead to the conclusion that the employee was not covered by the definition of workman. There is no doubt that the employee was paid wages in accordance with the settlement signed by the Union representing the workman employed and the management. If he was paid in accordance with the settlement, it would lead to the conclusion that he was a workman and therefore, was paid wages under that settlement. Merely because he was designated as supervisor it would not mean that he was not covered by the definition of the workman. Nomenclature or designation is not the test to be used to ascertain whether an employee fails within the purview of Section 2(s) of the Industrial Disputes Act.
8. In S.K. Verma v. Mahesh Chandra (supra), the Supreme Court has held thus:-
The words ''any skilled or unskilled manual, supervisory, technical or clerical work are not intended to limit or narrow the amplitude of the definition of workman''; on the other hand they indicate and emphasise the broad sweep of the definition which is designed to cover all manner of persons employed in an industry, irrespective of whether they are engaged in skilled work or unskilled work, manual work, supervisory work, technical work or clerical work. Quite obviously the broad intention is to take in the entire ''labour force'' and exclude the ''managerial force''. That of course, is as it should be.
9. Similarly, in the case of D.P. Maheshwari v. Delhi Administration (supra), the Supreme Court has considered that the work of the appellant in that case who was designated as an accountant was in fact clerical in nature. Therefore, he was covered by the definition of the ''workman''. In the case of Arkal Govind Raj Rao (supra), the Apex Court considered the approach to be adopted for determining whether an employee is a ''workman''. The Supreme Court held thus:
6. Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant.
10. The dominant nature of work performed by the employee must be the first test for consideration as to whether an employee is a workman or not as defined u/s 2(s) of the Industrial Disputes Act. In the present case, the evidence establishes the fact that the Petitioner was in fact doing the work which was manual and clerical in nature and it was only by way of an additional duty that he was required to supervise over some of his colleagues. There is no doubt that he was required to supervise the loading and unloading of the required items at the time of arrival and departure of flights but this does not lead to the conclusion that he was supervising men and not doing the work himself also at the same time. Therefore, in my view, the Tribunal has clearly erred in coming to the conclusion that employee was not a workman and that the Reference, therefore, was not maintainable.
11. In the circumstances, the award of the Tribunal is set aside. The reference is remanded for adjudication as to whether the order of termination was legal and proper and whether the heirs of the workman who are brought on record are entitled to any monetary benefit flowing out of the award.
12. Rule made absolute in the aforestated terms.
13. Writ Petition is disposed of.
