# '' BURMAH SHELL OIL STORAGE & DISTRIBUTION CO. OF INDIA v. BURM.All SHELL MANAGEMENT STAFF ASSOCIATION & ORS

- **Citation:** [1971] 2 S.C.R. 758
- **Court:** Supreme Court of India
- **Decided:** 1970-11-12
- **Case number:** Civil Appeals Nos. 1477 B c & 1478 of 1970
- **Bench:** S. M. Sikri, V. Bhargava, 1. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/burmah-shell-oil-storage-distribution-co-of-india-v-burm-all-shell-management-5117
- **Pages:** 32

## Headnote

Industrial Disputes. Act, 1941-Section
:(s)-'Workman', tests for determining who is.
The members of the Burmah Shell Management Staff Association,
designated as junior management staff, raised an industrial dispute. The
Govermitent referred the dispute to the Industrial Tribunal. The reference was confined to the members of the junior Management staff working
in the Maharashtra region.
At the time of referern:e the lowest Sllsic
salary drawn by a member of the Association was Rs. 535/-. On behalf
of the company a preliminary objection was 'raised that none of the members of the association was a workman. The Tribunal gave art interim
award. The members of the aS>ociation were classified into various categories. Out of these, members of six categories were held to be workmen,
namely (I) Transport ;Engineer (2) District Engineers (3) Foreman
(Chemicals) (4) Fueling Superintendents (5) Chemists and (6) Sales
Engineering Representatives.
Members belonging to four. categories were
helrl not to be workmen, .namely, (I) Llending Supervisors (2) Foremen
( 3) Depot Superintendents and ( 4) District Sales Representatives. The
Company challenged the decision of the Tribunal in respect of the six
categories held to be workmen and the Association challenged the decision
in respect of the four. categories held not to be workmen. The Association contended that whenever a technical man was employed in an industry it had to be held he was employed to do technical work irl'espective
of the .manner in which and the occasions on which the technical lmowledge of that person was actually brought into use and to_ hold otherwise
would result in making the word 'technical' redundant in lhe definition
of 'workman' in section 2(s) of the Industrial Disputes Act, 1947 as
amended. by Act 36 of 1956 .
. HELD : Of the members of six categories held to be workmen (I)
Transport Engineer (2) District Engineer (3) Foreman (cbemicals) and
( 4) Sales Engineering Representative must be held not to be workmen;
and of the members of four categories held not to be workmen, the t.Tjbunal
elTQd with resjrect to Blending Supervisors working in the Wadilube plant.
A workman must be held to be employed to do that work which is the
main work he is required to do, even though he may be incidentally doing
other types of work. Therefore, in determining w.hich of the employees
in the various categories are covered by the definition of 'workman' one
has to see what is the main ·or substantial work which they are employed
to do. [766 CJ
A
B
c
D
E
F
G
May & Baker (India) Ltd. v. Their Wprkmen, [1961] II L.L.J. 94,
H
South Jndi'ln Bank Ltd. v. A.R. Chacko. (1964] 5 S.C.R. 625, Ananda
Bazar Patrika (P) Ltd. v. Its Workmen, [1969] ·II .L.L.J. 670, Re. Dairymen's Foremen & Re. Tailors' Cutters, (1911-12) 28 T.L.R. 587, Reid v.
BURMAH SHELL CO. V. STAFF ASSOCIATION
759
A
British and Irish Steam Packet Co. Ltd., [1921] 2 K.B.D. 219, Jaques v.
Owners of Steam Tug Alexendrt1, [1921) 2 A.C. 339, J. & F. Stone Light"
ing & Rildio Ltd, v. Haygarth, [1968) A.C. Pt. 3, 157, refer'red to.
(i) The major part of the work done by a Transport Engineer is that
of supervision of the work of repair, maintenance, sefvicing_ and fabrication which is actually carried on by machanics, fitters and other 'skilled
or unskilled workmen working under him. Even if the Transport .EngiB
neer uses his technical knowledge it is used primarily for the purpose ot
supervising the work done by the skilled manual labourers. If a person
is merely employed in supervising the work of others the fact that for
the purpose of proper supervision he is required to' have technical kn,1wlcdge will not convert his supervisory work into technical work; the work
of giving advice and guidance cannot be held to be an employment to do
technical work.
c
D
E
F
G
(ii) The principal work for which a District Engineer is employed
is to supervise work done by others instead of doing the work himself.
ll;is dulles consist of assessing suita

## Text

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758
''
BURMAH SHELL OIL STORAGE & DISTRIBUTION CO.
OF INDIA
v.
BURM.All SHELL MANAGEMENT STAFF ASSOCIATION
& ORS.
November 12, 1970
[S. M. SIKRI, V. BHARGAVA AND 1. D. DuA, JJ.]
Industrial Disputes. Act, 1941-Section
:(s)-'Workman', tests for determining who is.
The members of the Burmah Shell Management Staff Association,
designated as junior management staff, raised an industrial dispute. The
Govermitent referred the dispute to the Industrial Tribunal. The reference was confined to the members of the junior Management staff working
in the Maharashtra region.
At the time of referern:e the lowest Sllsic
salary drawn by a member of the Association was Rs. 535/-. On behalf
of the company a preliminary objection was 'raised that none of the members of the association was a workman. The Tribunal gave art interim
award. The members of the aS>ociation were classified into various categories. Out of these, members of six categories were held to be workmen,
namely (I) Transport ;Engineer (2) District Engineers (3) Foreman
(Chemicals) (4) Fueling Superintendents (5) Chemists and (6) Sales
Engineering Representatives.
Members belonging to four. categories were
helrl not to be workmen, .namely, (I) Llending Supervisors (2) Foremen
( 3) Depot Superintendents and ( 4) District Sales Representatives. The
Company challenged the decision of the Tribunal in respect of the six
categories held to be workmen and the Association challenged the decision
in respect of the four. categories held not to be workmen. The Association contended that whenever a technical man was employed in an industry it had to be held he was employed to do technical work irl'espective
of the .manner in which and the occasions on which the technical lmowledge of that person was actually brought into use and to_ hold otherwise
would result in making the word 'technical' redundant in lhe definition
of 'workman' in section 2(s) of the Industrial Disputes Act, 1947 as
amended. by Act 36 of 1956 .
. HELD : Of the members of six categories held to be workmen (I)
Transport Engineer (2) District Engineer (3) Foreman (cbemicals) and
( 4) Sales Engineering Representative must be held not to be workmen;
and of the members of four categories held not to be workmen, the t.Tjbunal
elTQd with resjrect to Blending Supervisors working in the Wadilube plant.
A workman must be held to be employed to do that work which is the
main work he is required to do, even though he may be incidentally doing
other types of work. Therefore, in determining w.hich of the employees
in the various categories are covered by the definition of 'workman' one
has to see what is the main ·or substantial work which they are employed
to do. [766 CJ
A
B
c
D
E
F
G
May & Baker (India) Ltd. v. Their Wprkmen, [1961] II L.L.J. 94,
H
South Jndi'ln Bank Ltd. v. A.R. Chacko. (1964] 5 S.C.R. 625, Ananda
Bazar Patrika (P) Ltd. v. Its Workmen, [1969] ·II .L.L.J. 670, Re. Dairymen's Foremen & Re. Tailors' Cutters, (1911-12) 28 T.L.R. 587, Reid v.
BURMAH SHELL CO. V. STAFF ASSOCIATION
759
A
British and Irish Steam Packet Co. Ltd., [1921] 2 K.B.D. 219, Jaques v.
Owners of Steam Tug Alexendrt1, [1921) 2 A.C. 339, J. & F. Stone Light"
ing & Rildio Ltd, v. Haygarth, [1968) A.C. Pt. 3, 157, refer'red to.
(i) The major part of the work done by a Transport Engineer is that
of supervision of the work of repair, maintenance, sefvicing_ and fabrication which is actually carried on by machanics, fitters and other 'skilled
or unskilled workmen working under him. Even if the Transport .EngiB
neer uses his technical knowledge it is used primarily for the purpose ot
supervising the work done by the skilled manual labourers. If a person
is merely employed in supervising the work of others the fact that for
the purpose of proper supervision he is required to' have technical kn,1wlcdge will not convert his supervisory work into technical work; the work
of giving advice and guidance cannot be held to be an employment to do
technical work.
c
D
E
F
G
(ii) The principal work for which a District Engineer is employed
is to supervise work done by others instead of doing the work himself.
ll;is dulles consist of assessing suitability of sites for depots from the
point of view .of technical and en$ineering aspects, suggestmg lay-out for
constructing depots or service stations, seeing that the estimates prepared
by the draughtsman arc correct from the technical point of view, scruti·
nising tenders for construction, checking the construction work given to
the contractor, certifying bills submitted by contractors for the work done
by them and preparing estimates for maintenance in respect of depots.
Even though he has to use his technical knowledge for the purpose of
properly carrying on supervision, it cannot be held that a District Engineer
IS employed to do technical work.
(iii) The duties 'which are performed by Foreman (Chemicals) are
primarily and
su~stantially those of a supervisory
nature.
His
own
manual work is only incidental and forms a small part of bis duties.
In dealina with this case, the Tribunal erred in taklna into account the
duties of chemists.
(iv) The main and substantial work which ·a Fuelling Superintendent
does is not that of supervisina the work done by the few workmen who
ns1ist him, but is hi1 own manual work which he carries out at the depot
us well 11 when dellverlna oil to the aircraft.
The fact ihat a Fuelling
Superintendent is a leader of the team which carries out the work of
fuellina cannot convert his work into that of a supervlaory nature, The
tribunal was, therefore, correct in holdina that a Fudlllna Superintendent
was a workman,
(v) The Chemists, no doubt, ensure that the workman assistlnJ them
d, their work properly; but that small amount of supervision IS only
incidental to their own technical work of testln¥ and 1iving the mulls
of the tests to the company. The.,uidance and direction to the laboratory
attendant and analysts is only ancillary to the main work which is done
by the Chemists themselves. The Chemists have therefore b~en riahtly
held to be workmen.
(vl) The mal!I work performed by the Sales Enaineerina Representative la promotion of sales which are conva11ed primarily by Olstrlct Sale•
Repreientati\11,
This the Sales EnalneerlnJ
Repreaentative
doos by
H
glvlna technical advice, holding demonstrations and suagestlna methods
for making be~t use of the products sold.:, .He Is not empfo~ed on cl~rical
or manual work and the amount of techn1CA! work he does 1s all ancillary
to his chief duty of promoting sales and giving advice.
760
SUPREME COURT REPORTS
[1971} 2 S.C.R.
ivii) The Blending Supervisor who works in the· Wadilube plant is a
A
person employed on manual work and have to be held to be workman.
His supervisory work is a very minor part of his duties. The 1najor part
of his duties consists in himself operating various parts of the inachincry
an<l ensuring that oils are blended properly. The decision of the Tribunal
in rclipect of such blending supervisor is therefore, incorrect.
(a) The principal work of another set of Blending Supervisors who
are employed at a stage where the blending of oils has already
B
been completed and the oils have been transferred to the
settling tanks is that of seeing that the barrels and other containers arc properly filled up by the larger number of workmen placed under their charge who actually carry out the
physical work for that purpos.c.
Their duties are thus, p'rimarily supcrvi.sory, and the tribunal's decision that Blending
Supervisors doing the \vork of this nature arc not workmen
is co'rrcct.
C
(b) the work <lone
bv the third type of blending
supervisors
described as supervisors (Small Packages Filling) is primarily
supervisory and consequently the deciSlon of ~he Tribunal . ,
in respect of them is also correct.
t' iii) Of the three types of duties performed by the Foreman (Tank
F:irm and Pump House), viz .. Technical, skilled mannual and supervisory,
D
hi' ;upcrvisory duties arc the main and substantial part of his work while
oth~r duties are only incidental.
The Tribunal was, therefore, right in
hoJ.ling these Foremen not to he workmen.
t ix) The other class of Foreman (Tank Lorry Loading Tank Wagon
Loading and Tank Wagon Unloading) are no doubt responsible for proper
loading and unloading; hut this duty is discharged by supervising the work
of manual labourers who actually perform the work of loading and tinE
loading.
The Tribunal's decision therefore, that these Foremen are not
\Vorkmcn is correct.
(x) On the facts found by the tribunal it is clear that the principal
duties of Depot Superintendents are of supervising and managerial while
the clerical duties arr only incidental.
Consequently the decision given
by the Tribunal that Depot Superintendent• "'c employed on managerial
or supervisory work and are not workmen is correct.
Burmah Shell Oil Stora11e & Di.<tributin11 Co. of. India, Madra< v.
Their Employee.<, [1954] I L.L.J. 21 and Burmah Shell Oil Storage &
Di.<tri/111ti11g Co. of India Ltd., Madra.< v. Labour Appellc.te Tribunal of
India and two. Ors, [1954] 2 L.L.J. 155 (Madras H.C.), held inapplicable.
· B11rmah ,,Shell Oil Storage & Di.<trib111i1w Co. of llldia Ltd.. M<1tlra.1
""" Hyderabad
Brc.nche.\'
v. Their Workmen, [1955] 2 LLJ. 153
(L.A.T.) and Burmah Shell Oil Storage & Distributing Co. of India Ltd.,
Madrt1.\' Brancf1, Mysore & Travancore Cochin St.ates v. Their Work111en.
[1955] 2 L.L.J. 228 (L.A.T.), referred to.
(xi) The case of District Sales Representative is clearly that of a
person who cannot fall within any of the four classes mentioned in '·
2(s) because his work cannot be held to be either manual, clerical, teehni·
cal or supervisory. The work of investigating and promoting sales cannot
be incl_uded in any of these four classifications.
He is, therefore. not a
workman.
, ..
F
G
H
BURMAH SHELL co. v. STAFF ASSOCIATION (Bhargava, J.) 761
A
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1477
B
c
& 1478 of 1970.
Appeals by special leave from the Award dated January 9,
I 970 of the Industrial Tribunal, Maharashtra, Bombay in Ref.
(IT) No. 378 of 1967.
S. D. Vimad/a/, F. N. Kaka and /. N. Shroc, for the appellant
lin C.A. No. 1477 of 1970) and respondent No. 1 (in C.A. No.
1478 of 1970).
A. S. R. Chari, H. K. Sowani, K. Rajendra Chaudhuri and
Pratap Si11gh, respondent No. 1 (in C.A. No. 1477 of 1970).
The Judgment of the Court was delivered by
Bhargava, J. These two connectrd appeals by special kavc;
are directed against an interim award of the Industrial Tribunal.
Maharashtra, Bombay, in a dispute referred by the Government,
D
relating to the revision of scales and grade.s of pay, dearness allowance, overtime payment, duty allowance, other allowances, and
bonus for the year 1965-66, between the employers, Messrs Burmah Shell Oil Storage and Distributing Company of India Ltd ..
Bombay (hereinafter referred to as "the Company") and a set
of employees who were designated as junior management staIT
and were members of the Burmah Shell Management Slaff
E Association registered as a trade union. The reference was confined to th~ members of the junior iμanagement staff working in
Maharashtra region. The main business of the Company is marketing of petroleum products and oils and the Marketing Area is
the whole of India which is divided into four areas, viz., Bombay.
Calcutta. Madras and Delhi. The reference related to the BomF bay area. The organisation and management of each area is divided into four function, Marketing, Distribution, Personnel
and Finance. Each one of the four Areas is itself divided into
several Marketing Divisions and each Division is further
subdivided into five or seven sales dist.ricts as the case may be. For
the sale of commodities, in which the Company deals, there are
G various outlets, such as petrol pumps, storage depots, etc.
ThC'
Company also undertakes the work of fuelling of aircraft at the
Airfields which work is done by the Airfield Service Stations.
For purposes of storage and distribution of products handled
by the Company, the Company maintains port installations as wcli
as upcountry depots. The staff concerned in this reference is employed at the installations or the depots in the Maharashtra
H region.
Though the members of the Association are described
n>
junior management staff, they claimed that they were work-
762
SUPREME COURT REPORTS
[1971] 2 S.C.R.
men as defined in the Industrial Disput•.::s Act No. 14 of A
1947 (hereinafter referred to as ":the Act") and, on thaot basis,
raised an industrial dispute relating to salary, etc., as mentioned
above. The Association served a charter of demands on the
Company on 29th November, 1966. The Government ref~rred
the dispu·te to the Indu~trial Tribunal on 28th October, 1967
On
2nd December, 1967, the Association put forward its statement
B.
of claim before the Tribunal. On behalf of the Company, a preliminary written statement was filed on 15th January, 1968, contending that none of the members of the Association was a workman, so that the reference was incompetent.
In this written
statement, it was stated that the Company would request the
Tribunal to decide this que>tion as a preliminary issue and that c
~ ~ri!ten statement on merits would only be filed . subsequently,
if it is he1d that all or any of members of the Association are
workmen within the Act. A rejoinder statement was filed on
behalf of the Association on 27th March, 1968. The Tribunal
gave it3 finding on the preliminary issue as an interim award on
9th January, 1970. The members of the Association were classified into various categories of whom we need mention only 10
D
which are involved in these two appeals.
Out of these 10,
members of 6 categories were held to be workmen and
these
are:
( 1) Transport Engineer
( 2) District Engineers
(~) Foreman (Chemicals)
( 4) Fuelling Superintendents
(5) Chemists
( 6) Sales Engineering Representatives.
Members belonging to 4 categories were held not to be workmen. These categories are :-
( 1) Blending Supervisors
E
F
(2) Foremen
G
( 3) Depot Superintendents
( 4) District Sales Representatives.
Civil Appeal No. 1477 of 1970 has been brought up by the
Company challenging the decision of the Tribunal in respect of
the '6 categories held to be workmen, while Civil Appeal No.
H
1478/1970 has been filed by the Association challenging the correhness of the decision of the Tribunal in respect of the 4 cnte·
~cries held not to be wqrkmen.
'
'
BURMAH SHELL co. v. STAFF ASSOCIATION (Bhargava, J.) 763
. A
Some general features with regard to the members of .the
Assocation \nvolved in these appeals may be stated. At the tune
of the reference, the lowest basic salary drawn by the member
of the Association was Rs. 535/ - per mensem, while the highest
was Rs. 1500/. per mensem. In addition, the members of the
Association are paid dearness allowance equal to 30 per cent of
B basic salary, House-rent allowance, leave fare assistance, and
bonus.. Medical benefits are also provided for them and their
families. The Company contributes to the P1ovident Fund of the
mell!bers at 10 per cent of basic salary and these members on
retirement are also entitled to pension which varies between 30
per cent and 50 per cent and 50 per cent of basic salary. The
C number of persons involved in the reference in the Maha·
rashtra region is 140.
The effect of
the
decision
of
the
Triburial is that 98 employees belonging to 4 categories have been
held not to be workmen, while 42 employees belonging to 6 cate·
gories have been held to be workmen. The decision in these
appeals can, however, have wider repercussions because, in the
whole of India, the total number of persons belonging to these
D categories would be 648. If the Tribunal's decision is upheld
154 of them
would
be workmen
and 494
would
be
non-workmen.
it may also be noticed that the majority
of the .persons· concerned in this
reference originally started
at a salary of Rs. 100/-
to Rs. 200/-
per mensem and it
is only as a result of promotions; revision of salaries and length
E of service that they are now drawing basic pay at the rates mC\ll·
tioned above. All persons appointed to the posts now held by
them were originally described as Supervisors or 1ield staff; but,
in the year 1962, they came to be designated as junior manage·
ment staff. The Association got itself registered under the name
"Bunnah Shell Management Staff Association".
F
G
H
In order to decide whether the decision of the Tribunal with
re&pect to the various categories is correct, it is necessary to con·
sider the definition of "workman" in the Act as amended by In·
dustrial Disputes Amendment Act 36 of 1956. That definition is
reproduced below :-
"2. (s) "workman" means llny person (including an
apprentice) employed in any industry to do any skilled
or unskilled manual, supervisory, technical or clerical
work for hire or reword, whether the terms of employment be express or implied, and for the purpose of
any proceeding under this Act in relation to an indus.
trial dispute, includes any such person who has been dis·
missed, discharged or retrencked in connection with, or
as a consequence of, that dispute, or whose dismissal,
764
s1;PREMF COUR'l REPORTS
[1971] 2 S.C.R.
discharge. or retrenchment has led ·to that dispute, but
d<Jv• not mclude any 1td1 person-
(i) who is mbject to the Army Act, 1950, or the
Air Force Act, 1950, or the Navy (Discipline)
Ac<, 1934; or
(ii) who is ~mμloyed in the poli~e service or as an
officco· o;- other employee of a pri_son or
(iii) who is emrlo)crl m~inly in a managerial or adminisirative capacity; or
A
B
(iv) who, being employed in a supervisary capacity,
C
draws w~ges exceeding five hundred rupees per
rnensP.m or exercises, either by the nature of the
duties attached to the office or by reasan of the
powers vested in him, functions mainly of a
managerial nature."
For an employee in an industry to be workman under this
definition, it is manifest that he must be employed to do skilled
D
or unskilled manual work, supervisory work, technical work or
clerical work. If the work done by an employee is not of such
a nature, he would not be a workman. Mr. Chari on
behalf of the Association, however, put forward the argument that
E
this definition is al! comprehensive and, contemplates that all per-
-sons employed i11 an industry must necessarily fall in one or the
other of the four classes mentioned above and, consequently, the
Court should pr~ceed on the assumpticm that every person is a
workman; but he may be taken out of the definition of 'workman'
under the four exceptions contained in the definition. The two
F
exceptions with which we are primarily concerned are exceptions
(iii) and (iv).
Uin:der exception (iii). even :a workman, who is
employed mainly in a managerial or administrative capacity,
goes out of the definition of 'workman' while under exception (iv),
persons, who are employed in a supervisory capacity, go out. of
the definition, provided they either draw wages
ex9eeding . ·Rs.
G
500/ · per mensem or exercise, by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature.
We are unable to accept this submission. In the case
of
May and Baker (India), Ltd. v. Their Workmen(!), this Court had
to consider the currectness of a decision of a Tribunal which had
H
11eld that one Mukerjee, ·an employee in an industry, was a work-
(!) [19611llL.L.J.94.
A
B
c
0
E
F
H
BURMAH SHELL co. v. STAFF ASSOCIATION (IJhargava, !.) 765
man under the Act because he was not employed in a su,1ervisory
capacity. The Court held :-
"The Tribunal seems to have been led away by the fact
that Mukerjee had no supervisory duties and had to work
under the directions of his superior officers. That, however, would not necessarily mean that Mukerjee's duties
were mainly manual or clerical. From what the tribunal
itself has found it is clear that Mukerjee's duties were
mainly neither clerical nor manual.
Therefore, as
Muker.iee was not a workman, his case would not be
covered by the Ir.dustrial Disputes Act and the tribunal
would have no jurisdiction to order his reinstatement."
In that case, the Court thus held Mukerjee not to be a workman
on the ground tha:t his work was neither clerical nor maraml which
was the nature of the work envisaged in the definition to mak~
an employee a workman.
It is true that that decision wtis giv~n
on the definition of "workman" as it stood before the Amendment
o! 1956 wh..:n the words "supervisory" and "technical" did not
occur in the definition. Mr. Chari's submission is that the amendment is 1956 in1roduced the words "supervisory" and "technical''
with the object of making the definition ali-comprehensiw" hut.
on the face of it, it cannot be so. If every employee of an
indu:;try was to be a workman .excep\- those mentioned in th~ four
exceptions, these four classifications ne.ed not have been mentioned in the definition and a workman could have been dclincd as a
person employed in an industry except in cases where he
was
covered by one of the exceptions.
The specification 0[ th~ tour
types of work obviously is intended to lay down that 8n cmpJO)'~'"
is to become a workman only if he is employ.ed to do work nr one
of those types, whil·~ there may be employees who, not doin~ any
such work, would be out of the scope of the wore' "work!nan"
having to resort to the exceptions.
An example, which appears
to be very clear, will be that of a person employed in cannssi1lg
sales for an industry. He may b.e required to do any paper work.
nor may he required to have any technical knowledge. H>: may be
doing any sk1iled or unskilled manual work.
He would >till be
an employee of the industry and, obviously; such an employee
would not be a workman, because the work, for which he is employed, is not covered by the four types mentio .1ed in the definition and not because he would be taken out of lb e definition under
one of the exceptions.
. The. next aspect that has to be taken notice of is that, in prac·
tree. quite a larg·~ number of employees are employed in industries to do work of more than one of tt,e kinds mentioned in the definition. Jn cases where an employee is employ~d to
766
SUPREME COURT REPORTS
[ l 971 ]2 S.C.R.·
do purely >killed or unskilled manual work, or supervisory
work, or technical work, or clerical work, there would be no diffi·
culty in holding him to be a workman under
the
appropriate
classification.
Frequently, however, an employee is required to
do more than one kind of work. He may be doing manual work
as well as supervisory work, or he may be doing clerical work
as well as supevisory work.
He may be doing tech1nical work
as well as clerical work.
He may be doing technical work as
well as supervisory work. In such cases, it would be necessary tq
determine under which classification he will fell for the purpose of
finding out whether he does or does not go out of the definition
. of "\\·orkman" under the exceptions.
The principle is now wellsettled that, for this purpose, a workman must be held to be-employed to do that work which is the main work he is required
to do, even though he may be incidentally ., doing other type of
work.
In the case of May & Baker (India) Ltd. (1), the
Court. in the quotation cited above, notiCed the fact that Mukerjee's duties were mainly neither clerical nor manual. The signicance attaches to the word "mainly'', because Muker;ee's duties
did illvolve some clerical and manual work; y.~t, he was held not
to be a workman.
In South Indian Bank Ltd. v. A. R. Chacko("),
the Court
applied a similar test when it held :
,
"We can find no mistake in the approack of the
Labour Court to the question nor can we see any justi-
'fication for interfering with its conclusion on the evidence in th.e case. All the relevant documents produced
have been duly considered by the Labour Court in the
light of the oral evidence given; a:nd on such considern.
tion it has come to the conclusion that though on paper
certain rights and powers were assigned to him and
occasionally he acted in the place of the Agent when the
Agent was absent, such duties did not form part of I*
principal and main duties."
The Court, thus, approved of the test of findinf! out which duti~s
were the principal and main duties.
In Ananda Bazar Patrlka (Private) Ltd. v. Its Worl<me11( 3 ),
this Court clearly enunciated the principle by stati,ng.
"The principle which should be followed in deciding
the question whether a person is employed m a supervisory capacity or on clerical work is that if a person
is mainly doing supervisory work but incidentally or for :i
(il [1961] JlL.L,J. 94,
f"l 11964) S S.C.I<. (,~;.
(3) [1969] II L.L.J. 670:
A
B
c
I>
F
G
II
llURMAH SHELL co. v. STAFF ASSOCIATIOI" (Bhargava, J,) 767
A
fraction of the time also does some clerical work, i•
would have to be held ~hat he is employed in supervisory capacity, and. convetsely, if the main work done
is of clerical natur.e, the mere fact that some supervisory
duties are also carried out incidentally or as a s'lrnll
fraction of the work done by him will not convert his
B
employment as a clerk into one in superv!sory capacity."
Dealing with the facts of that case., the Court found that G'.!pta,
the employee concerned, was emp!oyed on clerical work and not
in supervisory capacity. The principal work that Gupta was c!oing
was that of maintaining and writing the cash-book and of prepare ing various returns. Being the senior-most clerk, he was put in
charge of the provident fund section and was
giv~n a small
amount of control over the other clerks working in his section.
The only powers he could exercise over them was to allocate
work between them, to permit th~m to leave during office hours,
and to recommend their leave applications.
These few minor
duties of a supervisory nature could not conveq his office of senior
D
clerk in charge ~nto that of a supervisor.
Assistance in this matter is also available from decisions by
Courts in England where, in connection with the applicability of
the Factories Act, and other Acts, the Courts had to decide
whether an employee was employed on manual labour or not.
E
The earliest case is Re Dairmen's Foremen and Re Tailors' Cutters(1).
After referring to decisions on the Employers and Workmen's and Compensation Acts, Swinfen Eady, J., held that those
cases really afforded assistance in determining the true meaning of
this statute. In his opinion, although they might perform manual
labour, the question was whether that was the real substantial emF ployment for which they were engaged or whether it was not incidental or necessary to it. Applying this principle to the case of
Tailors' Cutter, it was held :-
"The actual labour of cutting out cloth might be
ma1nual labour, but the position be really occupied was
a manager of a business department. His duties therefore
G
substantially were not th.ose involving manual labour and
he was not within the Act."
In Reid v. Eritish and Irish Steam Packet Company Limited(').
~eference was made to an earlier decision by that very Court in
Jaques v. Owners of the Tug Alexandra(•) which decision was
remdered on November 18, 1920, and in which the Court adopted
H
the definition which was given by the late Master of the Rolls sitting
as a Judge of first instance, of the meaning of "employed otherwise
(I) [1911-12] 28 Times Law Reports 587.
(2) [1921] 2 K.B.D. 319.
768
SUPREME COURT REPORTS
(1971 J 2 S.C.R.
than by way of manual labour." That meaning was approved by
A
saying :--
"What that learned judge said was, that the question
whether a person is employed otherwise than by way of
manal Jabour within the meaning of that section is to be
determined by considering whether any manual Jabour
that he may do in the course of his· service is the real
substantial work for which he is engaged, or whether it
is only incidental or accessory
thereto; if it be the
latter, the employment is not in manual labour."
B
This principle was also later approved by the House of Lords in
the appeal, which came before it against the decision in the case
C
of Jaques v. Owners of Steam Tug Alexandm, decided on July 4
1921 ( 1), where Lord Buckmaster in his speech said :
"The difficulty that arises in the construction
of
the statute is due to the number oi employments in which
it is impossible to assert that the employment is solely/
manual Jabour or is solely exclusive of manual Jabour,
and it has been held in a series of cases approved in
the present instance by the Court of Appeal that in
these circumstances the real test is
the
substantial
nature of the employment. If that be manual Jabour
the fact that there are other duties
performed
that
could not be so described does not take the employee
outside the benefit of the statute. If, on the other hand,
the substantial part of the employment cannot be des~
cribed as "manual" labour, the fact that manual work
has to be performed does not brir.g him within.
This
test, which in my opinion is the only reasonable one
that ca,n be applied to the statute is, I think, the one that
:vas accepted by the learned county court judge, and
1f that be so, unless the proved facts are of such a
character that it was not open to him to hold that by
their proper application the deceased was excluded from
the Act, his finding 1s condusive and cannot be questioned."
A similar principle was indicatecl by Lord Wrenbury in the following words :-
D
E
F
G
"The qu.~,tion t'.l be answered I think is this : When
the employer offered and the man accepted the employment, was it substantially an offer of manual labour
H
although it involved some other work, or was it an
(r) [!921) 2 A.C. 339.
A
BURMAH SHELL cc. v. S'l'AFF ASSOCIAT!ON (Bhargava, J.) 769
olfet of 0ther work although there was attached to it
a11 obligation to do some manual labour?
To put
this patticular case : Was the employment that of master of the tug with the duties and responsibilities attaching to that office but coupled with an obligation to
take part with the crew in the manual work, or was
B
the employment that of 11 manual labourer who was to
be rnsponsible for the tug as a senior man among the
crew.,,,
In /. & F. Stone Lighting & Radio Ltd. v. Hargarth, 1 ), the
same test of the substatial nature of the employment was applied
in interpreting the
words "employed in manual labour" in th.e
C
Factories Act.
Thus, in the
present case also, in determining
which of the employees in the various categories are covered by
the definition· of "workman", we have to see what is the main
or substantial work which they are employed to do ? If it . is
supervisory work, it would be held that they were employed
to do supervisory work even though they may also
be
doing
D
some technical, clerical or manual work. If, on the other hand,
the supervisory work be incidental to the main or substantial.
work of any other type,
viz.,
clerical, manual or technical, the
employmeint would not be in a supervisory capacity.
It is in the
light of these principles that we shall now proceed to examine
the correctness of the decision of the Tribunal in respect
of
E
various·categories of workmen involved in this reference. We
shall take them up in the order in which they were discussed by
the counsel for parties in the course of their arguments.
1. Transport Engineer :
The Transport Engineer works. in the Central Garage at
Sewree Installations which is maintained for the purpose of reF
pairs and maintenance of all motor vehicles owned by the Compapy as well as for fabrication of bodies of lorries. The Tribunal
in its award has mentioned various · duties carried on
by
the
Transport Engineer, after considering the evidence
given
by
Mathai who is working as a Transport Engineer and was examined as a witness by the Association, as well as the evidence
G
of Varkie, the witness examined on behalf of the Company, and
who was in charge of the Sewree Installations as a whoie. It
appears that Mathai obtained some technical qea!ifications
by
working as an apprentice in the Bombay Garage at Santa Crm.
for a period of four years and, thus, gaining knowledge as an
automobile mechanic.
He worked as Fitter,
Mechanic
and,
later, Assistant Foreman in the Bombay Garage.
Aft~r that,
H
he worked in the Bombay Electric Suoply and Transport Undertaking as a Foreman. He was appointed as Transport Engineer
(1) [1968] A.C. Pt. 3, 157.
7-L694Sup.Cl/71
770
SUPREME COURT REPORTS
[I 97lj 2 ·S.C.R.
in the Company in 1951.
Previously; there ~sed !'>. be ilir~e A
Transport Engineers in the Central Garag.: with
about
.1;15
workmen under them.
Since a period of six months pret:~dmg
the order of reference, Mathai was the sole Transport Engmeer
posted in the Central Garage ·ain.d he admitted that he was the
senior most Officer in it.
According to him,
the
Transport
Engineer is responsible for the ~nfire work of repairing, servicing
B
and maintenance of vehicles as well as for the work of modification and fabrication cf motor lorries.
In that connection,
he himself checks the vehicles that are brought to the Central
. Garage for repairs, has to locate faults by actually driving the
vehick: for a road test, and then explains the manner in which
the fault is to be removed or repaired to the workmen working c
under him.
He has to see that the work of repair, servicing
and maintenance is properly carried out by the mechanics, fitters,
etc.
After the work is ·completed, he has himself to inspect
and check the vehicle and thereafter certify its road-worthiness.
Origina!ly when there were three Transport Engineers in the Central Garage, they had 115 workmen carrying on the work of repair,
0
servicing and maintenance and fabrication, etc.
From the time
that Mathai has been the sole Transport Engineer, the persons
working under him are 58· in number. Amongst these 58 workmen are 13 Mechanics, 22 Fitters in three different grades, 3
Turners, 2 Welders, 5 Auto-electricians, 2 Carpenters, 3 Painters
and remaining 8 are semi-skilled or unskilled Mazdoors. All
these men work as direct subordinates of Mathai. Mathai admits
E
that he has to guide them as to how the job is to be done, though -
he adds that, in fact, he works with them. He gives them directions as to how the work is to be done if it is not being carried
out properly. He allocates the job to the workmen and also reallocates the jobs when necessary. Every-day, there are roughly
15 to 20 jobs to be carried out. He goes round to see how the
F
jobs are being done by the workmen. The work of dismantling,
repairing, etc. is general!y done by skilled or highly sldlled workmen and it is only when the work is of a special technical character that he himself has to attend to it. Varkie's evidence, as reproduced by the Tribunal in the award, shows that Mathai supervises the work of the mechanics, fitters, .etc. and ensures that reG
pair schedules are adhered to by them. Varkie also stated that
Mathai instructs and guides the workmen in diagnosing the defects
as and when necessary, so that he parJy contradicts Mathai who
stated that defects in all vehicles are first diagnosed by him. Varkie
also stated that the Transport Engineer maintains discipline in his
department, initiates disciplinary action as and when necessary,
ensures that operations in the Garage are carried out efficiently, H
reports on the performance of the workmen working under him,
and sanctions leave in the case of labour staff working under him,.
BUB.MAH SHELL co. v. STAFF ASSOCIATION (Bhargava, /.} 771
A · while, in some other cases, he recommends leave to be granted to
a workman. The statement of .Varkie that, Mathai sanctions
leave is denied by Mathai in his evidence.
The Tribunal has
not recorded a clear finding accepting the version ·of one witness
or the other.
Some documentary evidence was produced to
show that, in cases where the leave asked for did not exceed 18
B days, the chits were signed by Mathai as In-charge Department
which, accorc;ling to Mathai, indicated that he was recommending leave and not sanctioning leave.
In this connection, our
attention was also drawn to Rule 19(b) of the Standing Orders
of· the Company under which only the Manager. was authorised
to grant leave, except in cases where he may delegate his authoC
rity to some other officer.
Varkie stated that he had delegated
his authority to Foreman working under him and equated a
Transport .Engineer with a Foreman; but no written authority
was produced.
We shall, therefore, proceed on the basis that,.
in the matter of leave, all that is established is that Mathai had
to recommend leave applications and, as admitted by him, his
recommendatioll$ were almost invariably accepted. It is not neD
QeS$11ry to give further details of other minor duties carried on
by Mathai; but the above facts relied upon by tlie Tribunal show
that the major part of the work done by Mathai is that of supervision of the work of repair, maintenance, servicing and fabrication which is actually carried on by mechanics,
fitters and
other skilled or unskilled·workmen working under him.
His own
E
perSonal work comes in at the first stage when he may have .to
diagnose the defect by actually driving a vehicle, if necessary,
and, again, when he himself tests the vehicle after the work on
it has been completed and certifies it as road-worthy.
As many .
as 15 to 20 jobs are carried on in a day simultaneously and it is
1
obvious that he could not himself perfonn those jobs personally.
F In respect of these jobs, all he could do was to supervise the work
being done by the skilled and unskilled workmen to ensure that
the jobs were properly done, On the face of it, the major part
of his duties, thus, consists of supervisory work rather than his
owii personal technical work which is only incidental to the main
work of repair, servicing, maintenance and fabrication inasmuch· ·
as, in his supervisory capacity, he diagnoses the defects and
G later on inspects the work done, makes his personal test anct
certifies that it has been properly carried out.
Despite· these facts, the Tribunal held the Transpon Engineer to be a workman on the ground that he was employed because of his technical knowledge and, even in supervising the·
H work of the workmen, he is required to make use of his technical knowledge, and, consequently, rejected the plea of the Company that the Transport Engineer cannot be said to be employed
to do supervisory work. It appears to us that,
in giving this
772
SUPREME COU&T REPORTS
[1971) 2 s.c.R.
decision, the Tribunal misdirected itself.
Even if the Transport A
Engineer uses his technical knowledge, it is used primanly for
the purpose of supervising the work done by the: skilled manual
labourers who carry out the actual repairs, do the servicing or
maintenance or complete the fabrication.
The other supervisory
duties, mentioned above, have been ignored by the Tribunal O!l
the ground that, in the matier of allocation of work, the TransB
port Engineer does it on equitable basis, that it is his duty to get
the.job done in a proper manner, that, in distributing or allocating or reallocating the work,
the main cqnsideration which
weigh with the Transport Engineer is whether the work is exec.uted efficiently from a technical point of view.
These appear
to us to be no grounds for holding that the main and substantial
work being done by the Transport 5ngineer is not supervisory in
<:haracter.
c
In this connection, we may take notice of the argument advanced by Mr.