@JUDGMENTTAG-ORDER
1. This order shall govern the final disposal of Writ Petition No. 15017/2008 (Dena Bank, Bhopal v. S. K. Gaur) and Writ Petition No. 3806/2009 (S. K. Gaur v. Dena Bank, Bhopal) as both these writ petitions under Article 227 of the Constitution of India are directed against the Award passed by the Central Government Industrial Tribunal-cum-Labour Court on 01-02-2008.
2. Relevant facts are carved out from Writ Petition No. 15017/2008. Respondent (hereinafter referred to as ''employee'') while appointed as Cashier-cum-Clerk with the petitioner-Bank (hereinafter referred to as ''employer'') in June, 1978 was proceeded against and by order dated 26-09-1978 his services were terminated while he was on probation for the irregularities committed by him. Later on keeping in view the undertaking given by the employee of future good conduct, he was reappointed on 29-11-1979.
3. The employee was charge sheeted on 21-12-1982 which culminated into punishment of stoppage of one increment with cumulative effect.
4. Another charge sheet was issued to the petitioner on 20-09-1985 which resulted in stoppage of increment with cumulative effect and one increment with non-cumulative effect and debarring him from appearing in promotion test for a period of three years. Against this order, the employee raise an industrial dispute forming subject matter of case No. CGIT/LC/R/247/97 before Central Government Industrial Tribunal-cum-Labour Court.
5. That the employee later on was promoted as an Officer in Junior Manager Grade I (JMG-I) in the year 2002. That on 26-11-2005 employee was charge sheeted with the charges that he (a) failed to maintain utmost devotion, diligence and honesty while discharging his duty to take requisite steps to protect the interest of the Bank; (b) committed fraud on the Bank by claiming HRA/TA claim submitting fake and fabricated hotel bills; (c) lack of honesty and integrity and (d) doing acts unbecoming of an Officer-employee.
7. In the departmental enquiry all the charges levelled against the employee were proved which led to his dismissal from service by order dated 30-08-2006. In an appeal the order of dismissal was converted to compulsory retirement by order dated 28-02-2007 by the Appellate Authority.
8. Since the reference Case No. CGIT/LC/R/247/97 was pending on 30-08-2006 when the employee was dismissed from service, he filed an application u/s 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act of 1947'').
9. Section 33A provides that when an employer contravenes the provisions of section 33 during the pendency of proceedings before a conciliation offer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal as the case may be, an employee aggrieved by such contravention, may make a complaint in writing to such authority/Labour Court/Tribunal as the case may be. On such complaint the authority/Labour Court/Tribunal as the case may be shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, and shall submit its award in accordance with the provisions of the Act of 1947.
10. Sub-section (1) of Section 33 of the Act of 1947, which is relevant in the context, provides that :
33. Conditions of service, etc., to remain unchangedunder certain circumstances during pendency of proceedings.
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall
(a) In regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable totem immediately before the commencement of such proceeding; or
(b) For any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending."
11. The employee also questioned the order of punishment on the ground that he was not afforded proper opportunity of hearing.
12. Employers on their turn besides raising an objection as to maintainability of an application u/s 33A on the ground that the employee being an officer in Junior Manager Grade-I, was not a workman u/s 2(s) of the Act of 1947, justified punishment for the reasons that same was inflicted after affording due opportunity of hearing.
13. The Tribunal while deciding both the issues against the employer, directed the reinstatement of employee, without back wages.
14. Whereas the employer calls in question the entire Award. Grievance raise by employee is against non-grant of back wages.
15. While rejecting the plea as to maintainability of an application u/s 33A for want of his being a workman u/s 2(s), the Tribunal observes :
9....., the non-applicant could not succeed to prove by the reliable documentary evidence that the disciplinary action was initiated against the complainant, who was not covered by the definition of "workman" given in Sec- 2 of the I.D.Act. The solitary oral evidence deposed during the cross-examination of non-applicant''s witness Shri R. D. Negi is not at all sufficient to prove that the job of the complainant was of supervisory or managerial nature, in the absence of documentary evidence in that regard. Thus the non-applicant has failed to prove that the complainant was not a ''workman" as defined under Sec-2(b) (sic (s)) of the I.D.Act when the Disciplinary Action was initiated against him. It means that the non-applicant has failed to prove that this court has no jurisdiction to try this case.
16. Whether an employee is a workman or comes within the exception (iii) or (iv) of Section 2(s) depends on exact nature of his work and not designation. The nature of work can be determined from the letter of appointment/promotion, the nature of duties and other attending factors. It is the predominant duties which an employee is required to do are the factors to determine his status whether he is workman on discharging supervisory, managerial or an administrative functions. The determining factor can be gathered only n the basis of evidence.
17. In the case at hand the employee was promoted as Officer in Junior Manager Grade-I (JMG-I) in the year 2002. He was charge sheeted on 26-11-2005 while posted as an Officer in Freeganj Branch, Ujjain. In his cross-examination the employer''s witness Shri R. D. Negi deposed :
...Applicant Junior Management grade-I ke pad par the`. Inka Nature of work supervisory tha. Supervisory Nature mein D.D. Sign karna] cheque pass karna] miscellaneous vouchers ko Authorise karna] ledger posing ko Authorise karna aate hein. Applicant ka Job Administrative Capacity ka tha. Inko Power of Attorney di gayee thi. Power of Attorney pesh nahin kiya hai parantu kar sakta hoon.
18. The employee was also examined. In his cross-examination he stated "1985 mein hamari service condition Desai Award tatha Shastri Award se Govern hoti thin mujhe nahin malum ki promotion rules alag se lagu hote hein athwa nahin. Officer ke promotion hetu pariksha mein baithne hetu mujhe 3 varsh ke liye Debar kiya gaya tha. Us aadesh ke viruddha prakaran Lekha R/247/97 is Nyayadhikaran mein lambit hai. Mujhe 2001 mein officer ke pad par pronnati ki gayee thi. Promotion par meri posting Ujjain mein hui 2002 se 2006 tak meine officer ke pad par karya kiya. Mujhe nahin malum ki jab mein officer posted tha hamari service condition kis Rule ke tahat Govern hoti thi. Clerical staff ke liye sewa shartein award ke tahat hein. Officer hetu sewa shartein alag hein.
19. Admittedly, the employee was holding a post of Officer when he was served with the charge sheet on 26-11-2005. The service conditions as per his own admission were not governed by either Sastri Award or Desai Award.
20. Clerical Staff, ordinarily understood does, a ministerial work which are routine in nature and does not involve any control or supervision. The expression ''clerk'' is a noun and "is a person who works in an office, bank, or law court and whose job is to look after the records, accounts, etc. (See : Collins Cobuild English Language Dictionary Second impression Edn. 1992). On the other hand a manger, supervisor or an administrative officer is required to take decision by exercising the discretion vested into him either by appointment or promotion.
21. In the present case an officer in Junior Manager Grade-I is required to sign the Demand Draft, pass cheques, to authorize miscellaneous vouchers, to authorize ledger posting. These duties being discharged in an administrative capacity are not shown to be performed by the clerical staff. An incidental work of a clerk, i.e., written work done by an officer in JMG-I will not transform him into the status of a clerk, which can be termed as a workman.
22. In
7...In determining whether an employeeis or is not a manager, excluded from the definition of ''workman'' given in section 2(s), what is decisive is not his designationbut the nature of the work done by him. In order to come within the category of a person "who is employed mainly in a managerial or administrative capacity" excluded from the definition of ''workman'',it is essential that the predominant featureof the duties of the person employed as manager must consist in directing and controlling other employees or in discharging functions mainly of a managerial nature.
23. In view of above analysis and given facts of present case we are of the considered opinion that the Tribunal was not justified in entertaining the application u/s 33A at the instance of the employee who was not a workman. The same ought to have been rejected. As the employee being not a workman, the provisions of section 33(1) of the Act of 1947 are not attracted. The Award dated 01-08-2008 is hereby quashed.
24. In view of above, the issue as to whether the Tribunal was under obligation to have afforded an opportunity to the employer to prove the misconduct as the disciplinary enquiry was held vitiated, is not into.
25. In the result Writ Petition No. 3806/2009 by the employee directed against non-granting back wages is dismissed. Whereas Writ Petition No. 15017/2008 is allowed to the extent above. No costs.
