# Duncans Industries Ltd v. State of U.P. And Others

- **Citation:** (2019) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-16
- **Case number:** Writ C No. 12468 of 2002
- **Bench:** Govind Mathur, C.J. Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/duncans-industries-ltd-v-state-of-u-p-and-others-44391
- **Pages:** 19

## Headnote

A. Writ - Article 226 of Constitution -
Section 2(2) of Industrial Dispute Act,
1947 - Meaning of workmen - Record
shows
that
Supervisor/
Deputy
Superintendent
are
not
workmen
-
Authorities discussed.

B. Writ - Burden of proof - Who asserts
must prove - Initial burden is on
employees
to
proof
themselves
as
workmen - failed to discharge initial
burden. (E-1)

## Text

_Characters 0–39,811 of 61,664. This is a partial read: ask again with offset=39811 for what follows._

1 All. Duncans Industries Ltd. Vs. State of U.P. And Others
1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ C No. 12468 of 2002
Connected with
Writ C No. 37147 of 1996, 39403 of 1999, 32788
of 2000, 44848 of 2000, 53016 of 2000, 16447
of 2006.

Duncans Industries Ltd. ...Petitioner
Versus
State of U.P. And Others ...Respondents

Counsel for the Petitioner:
Sri S. Chatterjee, Sri J.N. Tiwari, Sri
Sudeep Harkauli, Sri Naveen Sinha.

Counsel for the Respondents:
C.S.C., Bushra Mariyam, Sri K.P. Agarwal,
Ms. Bushra Maryam, Sri R.P. Agarwal, Sri
S. Sirohi.

A. Writ - Article 226 of Constitution -
Section 2(2) of Industrial Dispute Act,
1947 - Meaning of workmen - Record
shows
that
Supervisor/
Deputy
Superintendent
are
not
workmen
-
Authorities discussed.

B. Writ - Burden of proof - Who asserts
must prove - Initial burden is on
employees
to
proof
themselves
as
workmen - failed to discharge initial
burden. (E-1)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. These writ petitions were earlier
decided by a common judgment and order
dated 24.2.2016 passed by the Division
Bench of this Court whereby the matters
were
remanded
back
to
Industrial
Tribunal for fresh adjudication.

2. Being aggrieved, the Supervisors
Association
preferred
Special
Leave
Petition No.1206-1208 of 2017 (Civil
Appeal No(s) 9382-9384 of 2017) before
the Hon'ble Supereme Court which were
decided on 23.2.2018 with the request to
the High Court to heard the writ petitions
on merit. The relevant part of the order is
reproduced hereinafter :- .

"The only dispute remaining
to
be
decided
is
whether
the
Supervisors/Deputy Superintendents would
be workmen or not. There are already two
conflicting views of the Labour Courts. In the
above circumstances, we do not find any
justification for the High Court remitting the
matter again to the Labour Court on the
issue. Accordingly, these appeals are
allowed. The impugned judgment is set
aside. We direct the High Court to decide the
issue finally in the true spirit of the order
dated 14.9.2010, as explained by us above
on the basis of the materials available on
record.

3. The facts in brief which are
necessary to decide the issue involved in
all these writ petitions are as follows :-

(a) The petitioner - Duncan
Industries Ltd. is a company registered under
the Companies Act, having its factory at
Kanpur, which manufactures fertilizers
commonly known as UREA. The company
has different categories of employees
comprising of Management staff, Deputy
Superintendents/Supervisors and workman.
In the year 1978, the age of retirement of
workman of the petitioner-company was
raised to 60 years subject to their being
medically
fit,
in
pursuance
of
settlement/agreement dated 7.2.1978 entered
between the Management and the Union of
Workman. As per the case of the petitioner-
2 INDIAN LAW REPORTS ALLAHABAD SERIES
company, the said settlement/agreement was
not made applicable to Supervisors/Deputy
Superintendents of the company on the
ground that they were not workman.

(b) The Management of the
company took decisions on various issues
after meeting with the representatives of
IEL Supervisors Association, Kanpur on
28.5.1985 including the decision regarding
the retirement age of the Supervisor which
remained unaltered at 58 years.

(c)
The
IEL,
Supervisors'
Association claimed that their age of
superannuation should be fixed as 60
years as done in the case of workman and
raised a industrial dispute which finally
referred under Section 4-K of the U.P.
Industrial Disputes Act, 1947 (hereinafter
referred as 'the Act of 1947') to the
Industrial Tribunal (III) U.P. Kanpur and
was registered as Adjudication Case no.11
of 1988. The term of the reference of the
said industrial dispute was as follows :-

"Kya Sevajojakon Dwara Apne
Pratishthan
Ke
Sabhi
Deputy
Superintendents Evam Supervisors Ki
Seva Nivriti Aayu 58 Varsha Ke Sthan
Par Shramikon Ki Bhanti 60 Varsha Na
Karna Uchit Tatha Vaidhanik Hai ? Yadi
Nahin to Sambhandhit Shramik Kya
Laabh/Anutosh Relief Pane Ke Adhikari
Hai Tatha Anya Kis Vivran Sahit ?"

(d) The industrial dispute was
contested by the rival parties and written
statements, rejoinder affidavits were also
exchanged. Statements of witnesses of
both side were recorded and they were
cross-examined
also.
The
Industrial
Tribunal after considering the material
and submissions, passed an award dated
29.4.1999, whereby it was held that the
Deputy Superintendents/Supervisors are
also
entitled
for
increase
of
their
retirement age from 58 years to 60 years
as done in the case of workman.

(e) The Industrial Tribunal (III)
sent the award for the publication on
30.7.1999 to the State, however the same
was recalled by the Tribunal before
publication and the matter was posted for
re-hearing.

(f) Being aggrieved, the IEL
Supervisory has filed Writ Petition
No.39403 of 1999 with the prayer for
publication of the award dated 23.4.1999
passed
by
the
Industrial
Tribunal.
Apparently, no interim order was passed
by this Court in the said writ petition.

(g) The Industrial Tribunal
again heard the parties and passed the
fresh award and sent the same for
publication on 16.6.2000 to the State
Government.

(h)
The
IEL
Supervisor
Association again approached this Court
by way of filing Writ Petition No.32788
of 2000 with the prayer for restraining the
State Government from publishing the
fresh award dated 16.6.2000. Apparently,
no interim order was granted by this
Court in the said writ petition also.

(i)
The
State
Government
instead of publishing the award sent for
publication on 16.6.2000, referred the
same dispute which was earlier registered
as Adjudication No.11 of 1988 in
Industrial Tribunal (VIII) Lucknow, vide
order dated 30.9.2000.

(j) The Duncan Industries Ltd.
being aggrieved by the order dated
30.9.2000
preferred
Writ
Petition
No.44848 of 2000 before this Court
wherein the following order was passed
on 18.10.2000.

"Heard Sri J.N. Tewari, Senior
Advocate assisted by Sri S.Chatterjee
learned counsel for the petitioner.
1 All. Duncans Industries Ltd. Vs. State of U.P. And Others
3

The grievance of the petitioner
is that the State Government has made a
second
reference
in
the
Industrial
Disputes Act. The Original reference was
made on 14th March, 1998 which gave
rise to I.D. case No.11 of 1998.

In this case the evidence of the
parties was recorded and the award was
prepared.
The
award
was
not
a
convenient approach and made a second
reference on the same term and condition
on 30.9.2000. The learned counsel for the
petitioner
urged
that
the
State
Government was not empowered to make
second reference and to withdraw the
award made earlier. The matter requires
scrutiny.

Issue notice to respondent no.4
who may file counter affidavit within six
weeks. The learned standing counsel may
also file counter affidavit on behalf of
respondent no.1, 2 and 3 within the same
period.

List thereafter.

In
the
meantime
further
proceedings pursuant to the reference
dated 30.9.2000 shall remain stayed."

(k)
I.E.L.
Supervisor
also
challenged the reference order dated
30.9.2000 by way of filing Writ Petition
No.53016 of 2000.

(l)
Meanwhile,
the
State
Government published the award dated
29.4.1999 passed in Adjudication Case
No.11/1988
which
was
sent
for
publication on 30.7.1999 on 7.1.2002
whereby Supervisors were also held to be
workmen. The Duncan industries then
approached this Court by way of filing
another Writ Petition No.12468 of 2002.
During the pendency of abovementioned
writ petitions, the Industrial Tribunal (I)
U.P. at Allahabad in another Adjudication
Case No.32 of 2001 wherein the industrial
dispute 'whether the concerned employee
of the Duncan Industries who was
employed in the capacity of a Supervisor,
was a workman or not, and if so then,
whether
denial
of
increment
of
Rs.10,000/- to him was justified and legal
and if not, then whether the workman was
entitled to the said relief'? was referred,
held that the employee was a workman
and he was not discharging managerial
functions and held that Supervisor was
entitled to receive increment. The said
award dated 21.5.2005 is under challenge
in Writ Petition No.16447 of 2006 by the
Duncans Industries.

(m) Earlier the Labour Court
(IV), U.P. Kanpur in Industrial Dispute
No.146/1991 between the Management
and IEL Supervisor Associations has
passed award dated 26.9.1996 wherein it
was held that Deputy Superintendent
working in the Duncan Industries are not
liable for increment as they are not
workmen. The said award was also
challenged by individuals in Writ C
No.37147 of 1996.

(n) A Single Bench of this Court
decided the Writ Petition No.39403 of 1999,
32788 of 2000, 4484 of 2000 and 53016 of
2000, vide order dated 7.9.2004, wherein it
was held that employer could not placed on
record any fact which might authorize the
Supervisor to do managerial and supervisory
functions. In the other writ petition bearing
Writ Petition No.37147 of 1996 wherein the
petitioners therein have challenged the finding
that they were not declared workmen was
however dismissed.

(o) The abovementioned orders
dated 7.9.2004 and 22.7.2010 were
challenged before the Hon'ble Supreme
Court by way of filing Civil Appeal
Nos.351-355 of 2006 and Civil Appeal
No.8023 of 2010, which were allowed by
the Hon'ble Supreme Court vide order
4 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 14.9.2000 and the matter was
remanded back to High Court for fresh
consideration. The relevant part of the
order is quoted hereinbelow :-

"In
the
circumstances,
therefore, and keeping in view the fact
that the Labour Court has taken two
different views in the two references made
to it as regards the status of Supervisors
and Deputy Superintendents, we are of
the view that the matters need to be
remanded back to the High Court to
enable both the sides to argue the matter
afresh and also the High Court to
examine
the
issues
that
arise
for
determination.

We, accordingly, allow these
appeals, set aside both the impugned
orders and remit the matters back to the
High Court for a fresh disposal in
accordance with law."

(p) After remand, abovementioned
writ petitions were finally decided by this
Court vide order dated 24.2.2016 whereby the
adjudication cases were remanded back to the
Tribunal to decide afresh two different views
were taken regarding the working of
Supervisor and Deputy Superintendent. One
being
declaring
Supervisor/Deputy
Superintendent as workman and other being
not a workmen by the Labour Tribunal. The
operative part of the order dated 24.2.2016 is
quoted hereinafter :-

"Writ Petition No.44848 of
2000 was dismissed earlier by judgment
and order dated 17 September 2004.
Learned Counsel for the parties have not
made any submissions. Thus, for all the
reasons stated in the judgment and order
dated 17 September 2004, Writ Petition
No.44848 of 2000 is liable to be dismissed
and is, accordingly, dismissed.

Writ Petition No.12468 of 2002,
Writ Petition No.37147 of 1996 and Writ
Petition No.16447 of 2006 are disposed of.
The Tribunal concerned shall now proceed
to hear the adjudication cases bearing
Adjudication
Case
No.11
of
1998,
Adjudication Case No.146 of 1991 and
Adjudication Case No.32 of 2001 afresh. It
shall, however, be open to the parties to
bring on record the subsequent facts that
may have taken place. This should be done
within one month. The Tribunal concerned
shall proceed to make the award(s)
expeditiously and within a period of four
months from the date a certified copy of the
order is produced before the Tribunal by
either of the parties.

Writ Petition No.39403 of 1999
and Writ Petition 32788 of 2000 are
dismissed as having become infructuous.

Learned counsel for the parties
also did not make submissions in Writ
Petition No.53016 of 2000. The said writ
petition was earlier allowed by judgment
and order dated 17 September 2004 and
the reference order dated 30 September
2000
was
quashed.
This
petition,
therefore, stands allowed for the reasons
contained in the judgment and order
dated 17 September 2004."

4. As mentioned earlier, the
order passed by this Court on 24.2.2016
was challenged by way of filing Civil
Appeal No.9382-9384 of 2017 arising out
of S.L.P. (Civil) Nos.1206-1208 of 2017
titled as I.E.L. Supervisors' Association
Etc. Etc. vs. Duncan Industries Ltd. &
Another, whereby the Apex Court vide
order dated 23.2.2018 has remanded the
matter back to this Court to decide afresh
on the basis of the material available on
record.
1 All. Duncans Industries Ltd. Vs. State of U.P. And Others
5

5. In this background, this Court has
heard learned counsel for the parties at
length and perused the record and
considered the various judgments placed
before this Court by the parties.

6. The issue before this Court is "Whether
the
Deputy
Superintendents/Supervisors
working in company would fall under the
definition of workmen as contemplated
under Section 2(Z) of the U.P. Industrial
Disputes Act, 1947 on the basis of evidence
produced before the Labour Tribunal to
show that they were functioning in a
managerial or administered capacity or not"?

7. We have scanned the entire
records and the materials placed before
the Labour Tribunal by the parties, which
are as follows :-

(i)Written statement on behalf
of
M/s.
I.E.L.
Ltd.
(Fertilizers
Division),Panki, Kanpur) -By way of this
written statement, the company has
submitted that there is no industrial
dispute as contemplated in the Act of
1947.
The
age
of
retirement
of
Supervisor/Deputy Superintendent fixed
as
58
years
which
is
specifically
incorporated in their appointment letters,
duly accepted by them, and as such, they
are bound by the same.

The note prepared after the
discussion between the Company and the
Supervisor Association on 24.5.1985
which is on record, the demand of
Association regarding the change of age
of retirement from 58 to 60 years has
already been rejected. Some of the
Deputy
Superintendent
have
already
moved to civil court for the similar relief,
and therefore, the reference is bad in eye
of law.

(ii) Written statement on behalf of
workmen - The workmen were initially
started working under designations of
Foreman and General Staff Grade A,
however, in or around 1974 they were redesignated as Technical Supervisors/Office
SupervisOrs. However, the basic nature of
their job remain unchanged and they
remained working as workmen. It was
further mentioned that there are only three
categories of employees in the company
namely managerial cadre, lady secretaries
and non-managerial cadre and the employees
concerned in the present dispute are put
under the category of non-managerial cadre
as reflected in the medical claim policy of the
Company. The employees are undertaking
their duties in different shifts and doing
general duties like any other workmen.

In the rejoinder affidavit, the
employees reiterated that they are born on
the muster-roller of the company just as
other categories of workmen, whereas in
the case of managerial staff, they are not
born on the muster-rolls. No definite or
distinct job assignment for the workmen
concerned in the present dispute.

(iii) Rejoinder statement on
behalf of the company - In the rejoinder
affidavit, it has been mentioned that time
to time certain general staff have been
promoted
to
the
post
of
Deputy
Superintendent and some have been
upgraded
also
and
their
jobs
and
responsibilities have been enlarged. It was
denied that drawing of similar pay or
drawing more salary by the workman then
Supervisor does not mean that Deputy
Superintendent/Supervisor are workmen
as grade and scale of pay of workers were
decided by way of bipartite negotiations.
Additional rejoinder affidavit was also
6 INDIAN LAW REPORTS ALLAHABAD SERIES
filed on behalf of the workmen to which
company has also filed reply.

(iv) Witnesses produced on
behalf of the employees :-

(a) Mr. N.K. Nigam (EW-1)
mentioned that subsequent to his redesignation as Supervisor in the year 1975
and
subsequently
as
Deputy
Superintendent in the year 1983, he
continued to perform same or similar
duties has been performed by him with
the designation of general staff which
were essentially of clerical in nature such
as maintaining personal files, preparing
annual increment letters, promotion letters
etc. It was also mentioned by him that he
does not have power to sanction leaves to
any employee and similarly did not have
power to suspend or charge sheet any
employee and he does not exercise any
supervisory functions. He was crossexamined by the Employer side wherein
he has stated that the pay scale of Office
Assistant and Deputy Superintendent are
different and they are members of
different Union. He has also denied that
he had signed Non-Managerial Staff
Assessment Form as an Assessor.

(b) Kailash Kumar (EW-2), the
second witness examined on behalf of the
employees' Association submitted that
normally he worked as Clerk, however,
sometimes he has also worked under the
supervisory capacity. He stated that he
was appointed as Technical Supervisor
and not as a Superintendent. He has also
stated that he look after security of the
entire department.

(v) Witness on behalf of the
employe :-

(a) Shri V.C. Srivastava, who
was working as Work Shop Manager
stated
that
Deputy
Superintendents/Supervisors
are
sanctioning leaves, authorizing material
requisition
and
signing
material
requisition
as
authorized
signatures.
Superintendents
are
performing
supervisory
administrative
and
managerial
nature
of
duties
which
includes sanction of leave of workmen
working
under
them,
to
appraise
performance of workmen and even they
are authorized to issue gate pass to the
workmen. He was cross-examined by the
employees side wherein he has stated that
the work of the general staff was neither
managerial
nor
administrative
nor
supervisory in nature.

(b) P.C. Jha, who was working
as Manager Security Transport, appeared
as E.W.2 has stated in his evidence that
the
cadre
of
Deputy
Superintendents/Superintendents
workmen are separate and distinct. He
also relied upon certain documents to
show that the nature of the duties
undertaken by the Supervisor/Deputy
Superintendent
are
supervisory
and
administrative in nature. He was also
cross-examined.

8. The terms and conditions of the
employment and nature of work of
Workmen vis-a-vis Supervisors/Deputy
Superintendents and Workmen placed on
record, in the form of a Superintendents
chart, which is as follows :-

Terms and conditions of
employment
of
Superintendents
Vs.
Workmen :-
Items
Supervisors

Workmen
Basic Pay
Rs.800/-
to
Rs.5000/-
(Increments
based on actual
performance
Appraisal
System.)
Grade A1
225-25-375-30555-35-1395
Grade A
200-20-320-24
464-29-1160
Grade B
1 All. Duncans Industries Ltd. Vs. State of U.P. And Others
7
171-16-267-20
387-24-915
Grade C
140-13-218-16314-19- 675
Grade D
110-12-182-14
266-16-586
Dearness
Allowance

25% OF BASIC
+ VDA + Fixed
DA of Rs.700/-
p.m.
As
per
neutralization
formula
agreed
with
the
DS
ASSOCIATION
through
Record
Note
of
Discussion.
As per provisions
of settlement.
House Rent

15% Basic + DA Rs.400/-
per
month
w.e.f.
1/10/91
Special
Allowance
Rs.375/.
-

Additional
Special
Allowance
Rs.1520
-
Factory
Allowance
Rs.200
-
Leave
Travel
Allowance
per
year
Medical
Entitlement
Basic
upto
Rs.2000/-
p.m.....Rs.4000/-
p.a.

Basic
>
Rs.2000/-
p.m.....Rs.4500/-
p.a.

Self - Unlimited
based on Actuals

Family Medical -

Basic
upto
Rs.2000/-
p.m.....Rs.5000/-
p.a.

Basic
>
Rs.2000/-
p.m.....Rs.5500/-
p.a.

Rs.2000/-p.a
(w.e.f. 5/11/93)
Self - 2 months
Basic + DA/Year
Family
.....
Rs.750/- per year
Additional
1.For chronic case
- 3 months
(Basic + DA) 3
times in service
career).
2. For Extensive
treatment
Claim minus one
month Basic+DA
but,
subject
to
maximum
3
months.
(Basic+DA)
Loans
Housing
.................
Rs.50,000/-
Housing...............
Rs.40,000/-
Hardship..............

Hardship.............
..... Rs.8,000/-

Car......................
..... Rs.35,000/-

Car
Repair
Loan........Rs.5,00
0/-

Scooter................
..... Rs.10,000/-

Furniture.............
......Rs.10,000/-

Rs.10,000/-
Scooter.................
Rs.10,000/-
Standing Orders
Not
Covered
under
certified
standing orders.
Covered
under
certified standing
orders.

Naure of work
Supervisors
(Superintendent
s)
Workmen
Nature of work
Supdt. Primarily
Supervise
the
work
of
the
workmen.
Perform skilled &
semi
skilled
manual work as
directed
by
supervisory staff.
Leave

Approve
leave
of
workmen
working
under
them.
Not applicable.
Performance
Appraisal

Appraises
the
performance of
workmen
working
under
them.
Not applicable.
Allocation
of
work
Allocates work
of the Workmen
under them.
Not applicable.
Intending
Authority
Have
authority
to
indent
material inspect
and
draw
material.

Not applicable.
Work permits
Are
authorised
to
issue
and
receive
work
permits as per
Factories
Act,
Section 36, subNot applicable.
8 INDIAN LAW REPORTS ALLAHABAD SERIES
section 2A.

Attendance
Decides
attendance,
wage deductions
if
any
of
workmen
authorises
overtime
work
of Workmen.
Not authorised.
Gate Pass

Authorised
to
issue gate passes
of workmen.
Not applicable.
Disciplinary
Action
Initiates
disciplinary
action
against
delinquent
workmen.
Does not apply.
Shift timings
7 am to 3 pm
3 pm to 11 pm
11 pm to 7 am

6 am to 2 pm
2 pm to 10 pm
10 pm to 6 am

Transportation
Are picked up
by
special
vehicles
from
their
residence
to
work
and
back.
Comes to Factory
and back by the
bus Service that
piles throughout
the city.
Canteen Facility Authorised
to
Avail food items
from the canteen
on free vouchers
Have to pay at
subsidised rate to
avail foot Items
from the canteen.

9. Certain documents such as
investigation report investigated regarding
theft by some workmen submitted by Deputy
Superintendent, recommendation made on
the issue of apprehension of miscreant to be a
contractor,
Non-Management
Staff
Assessment Forms wherein assessment has
been
conducted
by
the
Supervisor,
application for car loan etc. have been placed
on record in order to show that the
Supervisor/Deputy Superintendent were not
workmen and are working under Supervisory
capacity.

10. The labour Tribunal on the basis of
the material on record passed award dated
29.4.1999 and come to the conclusion that :-

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Thereafter, finally held that the
employees are entitled for increase in
their retirement age from 58 to 60 years.
The Award was published on 7.1.2002.

11. In another industrial disputes
(Industrial Dispute No.146/ decided on
26.9.1996), the Labour Tribunal IV U.P.,
Kanpur on the basis of the material
produced before it come to the conclusion
that the Deputy Superintendents and
Supervisors are not workmen. The Labour
Tribunal
specifically
come
to
the
conclusion that -

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LoSfPNd lsokfuo`fRr ls ysus rFkk Jh HkV~Vkpk;Z
}kjk fookn ij cy u fn;s tkus dh fLFkfr es
,d ek= lanHkkZns'k es fufgr fcUnq Jh ,l0 Mh0
xqIrk ds lEcU/k esa fuLrkfjr fd;k tkuk 'ks"k jg
tkrk gSA iz'u ;g gS fd D;k Mh0 ,l0 dk
inuke ifjofrZr inuke gS ftlesa iwoZ ukfer
inksa ds dk;Z dykiksa ls dksbZ fHkUurk ugh vkbZ
gS vFkok ;g in izksUufr dk gSA oknh ;g
izekf.kr ugh dj lds gS fd th0 ,l0 xzsM &
,@ QksjeSu] Vh0 ,l0@ vks0 ,l0 ds dk;Z dh
izd`fr Mh0 ,l0 ds dk;Z dh izd`fr ds le#i
jgh gSA blds foijhr izn'kZ bZ & 1 ds 29-2-84
1 All. Duncans Industries Ltd. Vs. State of U.P. And Others
9
ds i= ls Li"V gS fd oknh Jh xqIrk dks Mh0
,l0 ds in gsrq p;fur ,oa izksUur fd;k x;k
FkkA vr% ;g dguk fd ;g izdj.k inuke
ifjorZu dk gS] lgh ugh gSA i= es mYys[k gS
fd izkscs'ku dh vof/k esa vlarks"ktud dk;Z gksus
ij mUgsa ewy in ij izR;kofrZr fd;k tk ldrk
gSA ;g 'kCnkoyh Hkh izekf.kr djrh gS fd mUgsa
Mh0 ,l0 ds in in izksUur fd;k x;kA i= esa
Li"V mYys[k gS fd Mh0 ,l0 dk Ikn
lqijokbtjh Js.kh dk gS rFkk lkewfgd lkSnsckth
dh ifjf/k ds ckgj lEk>k tk;sxkA fu;qfDr@
izksUur i= es ewy osru] egaxkbZ HkRrs o vU;
lsok 'krkZsa dk fo'kn foospu gS ftls oknh us
Lohdkj dj vius gLrk{kj fd;s gSA

12. Learned counsel for the rival
parties
have
relied
upon
following
judgments in order to substantiate their
rival submissions :-

(a) In the matter of Anand
Regional Coop. Oil Seedgrowers' Union
Ltd. vs Shaileshkumar Harshadbhai
Shah reported at 2006 SCC (L & S) 1486;
2006 (6) SCC 548, the Hon'ble Supreme
Court has held that :-

"13.
The
ingredients
of
the
definition of 'workman' must be considered
having regard to the following factors:

(i) Any person employed to do any
skilled or unskilled work, but does not include
any such person employed in any industry for
hire or reward.

(ii) There must exist a relationship
of employer and employee.

(iii) The persons inter alia excluded
are those who are employed mainly in a
managerial or administrative capacity.

14. For determining the question as
to whether a person employed in an industry
is a workman or not; not only the nature of
work performed by him but also terms of the
appointment in the job performed are relevant
considerations.

15.
Supervision
contemplates
direction and control. While determining the
nature of the work performed by an employee,
the essence of the matter should call for
consideration. An undue importance need not
be given for the designation of an employee,
or the name assigned to, the class to which he
belongs. What is needed to be asked is as to
what are the primary duties he performs. For
the said purpose, it is necessary to prove that
there were some persons working under him
whose work is required to be supervised.
Being incharge of the section alone and that
too it being a small one and relating to quality
control would not answer the test."

(b) In the matter of S.K. Maini
vs M/s Carona Sahu Company Ltd. and
Others reported at (1994) 3 SCC 510 the
Hon'ble Supreme Court has held that :-

"11. It may be noted in this
connection that in view of the amendment
of Section2(s) enlarging the ambit of the
classification of various types of workmen
except managerial force, entire labour
force has been included within the
definition of workman under Section 2(s)
as has been indicated by this Court in
S.K. Verma v. Mahesh Chandra8. But if
the principal function is of supervisory
nature, the employee concerned will not
be workman only if he draws a particular
quantum of salary at the relevant time as
indicated in Section 2(s). In the instant
case, it, however, appears to us that Shri
Maini as Manager/In-charge of the shop
was made responsible and liable to make
good such amount of credit whether such
sale on credit had been made by him or
by any other member of the staff in
employment under him with or without his
knowledge.
Under
the
terms
and
conditions of service, he was asked to take
charge of the shop to which his service
was transferred. Mr Maini, under the
10 INDIAN LAW REPORTS ALLAHABAD SERIES
terms and conditions of service, was
required to be held responsible and liable
for any loss suffered by the Company due
to deterioration of the quality of the stock
or any part thereof and loss of any of the
otherarticles lying in the shop caused by
reason of any act of negligence and/or
omission to take any precaution by the
employees. Mr Maini was also required to
notify the Company by trunk call and/or
telegram not later than three hours after
the discovery in the said shop of any fire,
theft, burglary, loot or arson. He was
required to investigate into the matter
immediately and get the cause and
amount of loss established by local
authorities. Mr Maini as in- charge of the
shop was required to keep and maintain
proper accounts as approved by the
Company indicating the exact amount to
be paid from the receipts from the
respective staff. Under Clause XIII of the
terms and conditions of the service, Mr
Maini would remain fully responsible to
the Company for damages or loss caused
by acts or commission of the loss of 8
(1983) 4 SCC 214: 1983 SCC (L&S) 510:
(1983) 3 SCR 799 the employees of the
shop. Under Clause XV of the terms and
conditions of service, the shop in-charge
was required to keep himself fully
conversant with all the regulations in
force which may come into force from
time to time with regard to Octroi, Sales
Tax
and
Shops
and
Commercial
Establishments Act and/or any other local
regulation applicable to the shop. Clause
XXI indicates that non- compliance with
any of the local or State Acts or Central
Acts would be viewed seriously and
Manager would be held responsible for
any
fine/penalty
imposed
and/or
prosecution
launched
against
the
Company. It also appears that in the event
of a salesman being absent, the shop incharge
is
empowered
to
appoint
temporary helper for the said period to
work as acting salesman. Similarly, in the
event of helper being absent, the shop
manager is also empowered to appoint
part-time sweeper and to entrust the work
of a helper to a sweeper. Such functions,
in our view, appear to be administrative
and managerial. By virtue of his being in-
charge of the shop, he was the principal
officer-in-charge of the management of
the shop. We therefore find justification in
the finding of the High Court that the
principal function of the appellant was of
administrative and managerial nature. It
is true that he himself was also required
to do some works of clerical nature but it
appears to us that by and large Shri
Maini being incharge of the management
of
the
shop
had
been
principally
discharging
the
administrative
and
managerial work. A manager or an
administrative
officer
is
generally
invested with the power of supervision in
contradistinction to the stereotype work of
a clerk. This Court in Lloyds Bank Ltd. v.
Panna Lal Gupta has indicated that a
manager
or
administrator
generally
occupies a position of command or
decision and is authorised to act in
certain matters within the limits of his
authoritywithout the sanction of his
superior. In the instant case within the
authority indicated in the terms and
conditions of his service, Shri Maini was
authorised to take decisions in the matter
of temporary appointments and in taking
all reasonable steps incidental to the
proper running of the shop. Precisely for
the said reason, Shri Maini had signed the
statutory forms as an employer. It should
be home in mind that an employee
discharging
managerial
duties
and
functions may not, as a matter of course,
be invested with the power of appointment
1 All. Duncans Industries Ltd. Vs. State of U.P. And Others
11
and discharge of other employees. It is
not unlikely that in a big set-up such
power is not invested to a local manager
but such power is given to some superior
officers also in the management cadre at
divisional or regional level. The unit in a
local shop may not be large but
management of such small unit may fulfil
the requirements and incidences of
managerial functions. On a close scrutiny
of the nature of duties and functions of the
Shop Manager with reference to the
admitted terms and conditions of service
of Shri Maini, it appears to us that the
High Court was justified in holding that
the appellant was not a work-man under
Section 2(s) of the Industrial Disputes
Act. In the aforesaid facts, it is not
necessary to go into the question as to
whether or not domestic enquiry had been
properly conducted or the Enquiring
Officer had acted with bias. It is also not
necessary to decide for the purpose of the
disposal of the appeal (1961) 1 LLJ 18 :
AIR 1967 SC 428 as to whether or not the
Company was entitled to lead fresh
evidence in support of the domestic
enquiry before the Labour Court. The
appeal is, therefore, dismissed without,
however, any order as to cost."

(c)
In
the
matter
of
Management
of
M/s
Sonepat
Cooperative Sugar Mills Ltd. vs. Ajit Singh
reported at 2005 LLR 309; 2005 (3) SCC
232, the Hon'ble Supreme Court has held
that :-

"21. It is now trite that the issue
as to whether an employee answers the
description of a workman or not has to be
determined on the basis of a conclusive
evidence.The said question, thus, would
require full consideration of all aspects of
the matter.

22. The jurisdiction of the
Industrial Court to make an award in the
dispute would depend upon a finding as to
whether the concerned employee is a
workman or not. When such an issue is
raised, the same being a jurisdictional
one, the findings of the Labour Court in
that behalf would be subject to judicial
review.

23. The High Court furthermore
applied wrong legal tests in following
S.K. Verma (supra) in upholding the
views of the Labour Court which itself
approached the matter from a wrong
angle. The Labour Court as also the High
Court also posed a wrong question unto
themselves
and,
thus,
misdirected
themselves in law.

24.
In
Cholan
Roadways
Limited Vs. G. Thirugnanasambandam
[2004 (10) SCALE 578], this Court held:

"34.... In the instant case the
Presiding Officer, Industrial Tribunal as
also the learned Single Judge and the
Division Bench of the High Court
misdirected themselves in law insofar as
they failed to pose unto themselves
correct questions. It is now well-settled
that a quasi-judicial authority must pose
unto itself a correct question so as to
arrive at a correct finding of fact. A
wrong question posed leads to a wrong
answer. In this case, furthermore, the
misdirection in law committed by the
Industrial Tribunal was apparent insofar
as it did not apply the principle of Res
ipsa loquitur which wasrelevant for the
purpose of this case and, thus, failed to
take into consideration a relevant factor
and furthermore took into consideration
an irrelevant fact not garmane for
determining
the
issue,
namely,
the
passengers of the bus were mandatorily
required to be examined. The Industrial
Tribunal further failed to apply the
12 INDIAN LAW REPORTS ALLAHABAD SERIES
correct standard of proof in relation to a
domestic
enquiry,
which
in
"preponderance
of
probability"
and
applied the standard of proof required for
a criminal trial. A case for judicial review
was, thus, clearly made out."

(d) In the matter of Bennett
Coleman and Co. Limited (M/s) vs. Shri
Yadeshwar Kumar reported at 2007 LLR
62, the Delhi High Court has held that :-

"9. A perusal of the Award and
evidence shows that duties of the
respondent were to supervise chowkidar
and
sweepers.
He
used
to
mark
attendance of the chowkidars and security
staff working under him. He used to
forward leave and overtime slips to the
security officer although he was not
sanctioning
authority
but
he
was
recommending authority. Documents with
his recommendations were placed on
record. It was his duty to report to
administrative manager or security officer
about any untoward incident.On the other
hand the workman relied upon certificate
issued by the management that he was a
skilled printer. This certificate was of the
period when he was working as a printer.
Respondent produced another certificate
issued by the Labour Officer of the
management wherein it is mentioned that
workman is a good workman. He alleged
that he was doing 8 hours duty being a
workman whereas the administrative and
officers category persons were working
six and a half hours in a day. Because of
some supervisory work, apart from doing
his main work of a manual/ clerical or
technical in nature, he does not become a
supervisor.

10. The Tribunal on the basis of
the fact that one Chander Kant was a
senior officer to the respondent and the
work of respondent was being over seen
by
Chander
Kant
concluded
that
respondent was not a supervisor. The
Tribunal
further
observed
that
management had placed on record the
leave applications of persons working
under respondent and handled by him, but
these were not proved as per rule of
evidence. The same could not be relied
upon. The Tribunal thereafter concluded
that " in the light if the evidence led by the
workman is analysed, it is clear that he
was simply supervising the work of other
persons and his functions were not of
managerial or administrative in nature.
No doubt certain applications have been
sanctioned by Sh. Yadeshwar Kumar as
departmental head but there were two
persons who were working above him and
so he cannot be said to be working in a
supervisory capacity.

11. Obviously, the approach of
the Labour Court has been contrary to the
law laid down by the Supreme court in a
series of judgments. In order to decide
whether a person is a workman or not, the
dominant and main functions are to be
considered. A person can be called a
supervisor if he is entrusted with the job
of supervising other workmen who work
under him. There is no dispute that the
respondent was not only designated as
Night Supervisor but he was having job of
supervision
over
security
guards,
chowkidars and sweepers. He used to
forward over time claims of the persons
working under him after verifying the
same. He used to recommend leave of the
persons working under him. He was in
charge of the security of the property of
petitioner and used to supervise the work
of security guards etc. It is not necessary
that a supervisor has to be top cadre
management person. A supervisor may
occupy
a
lower
position
in
the
organisation chart of the company where
1 All. Duncans Industries Ltd. Vs. State of U.P. And Others
13
in the descending order may be CMD,
MD,
General
Managers,
Deputy
Managers,
Managers,
Administrative
Officer and supervisor etc. It has been
laid down by the Supreme Court that in
order to be a workman a person must be
performing one of the functions as
specified in Section 2(s) of the Act and it
was not sufficient that he was not
performing administrative or managerial
function. Tribunal also went in wrong in
law by observing that strict principles of
rules of evidence are required to be
followed by the Tribunal. While weighing
the material placed before the Tribunal, a
Tribunal is not to follow the strict rules of
evidence and neither has to arrive at a
conclusion by considering the proof
beyond reasonable doubt. A Tribunal has
to weigh the material placed before it by
both sides. All materials which are
logically probative for a prudent mind are
liable to be considered. There is no
allergy to hearsay evidence provided it
has reasonable nexus and credibility."

(e) In the matter of Vijay
Dattatraya Kale vs. Peico Electronics
and Electricals Ltd. reported at 2009
(121) FLR 577, the High Court of
Bombay has held that :-

"Coming to the observation of
the Labour Court in the present case, it
appears that the Labour Court has rightly
referred to the main attributes of the
petitioner's
function
which
were
supervisory in nature.