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PETITIONER:

ARKAL GOVIND RAJ RAO

Vs.

RESPONDENT:

CIBA GEIGY OF INDIA LTD., BOMBAY

DATE OF JUDGMENT06/05/1985

BENCH:

DESAI, D.A.

BENCH:

DESAI, D.A.

ERADI, V. BALAKRISHNA (J)

KHALID, V. (J)

CITATION:

1985 AIR 985 1985 SCR Supl. (1) 282

1985 SCC (3) 371 1985 SCALE (1)927

ACT:

Industrial Disputes Act 1947, Section 2(s.)- 'Workman'-

Who is-Tests for determination-Ascertainment of primary,

basic or dominant nature of duties.

Labour Laws: Employee-Recruited as Stenographer-cum-

Accountant- Promoted as Assistant-Designated 'Group Leader'-

Whether employed in 'managerial' or 'supervisory' capacity.

Words & Phrases: ' Workman'-Meaning of-Section 2(s.)-

Industrial Dispute ,Act 1947.

HEADNOTE:

The appellant joined as a Stenographer-cum-Accountant

with the respondent company. Subsequently he was promoted as

Assistant and continued as such till October 1972 when his

services were terminated, The Deputy Commissioner, Labour

(Administration), referred the dispute to the Labour Court

for adjudication. The respondent-employer contended that the

appellant was not a workman under the Act.

Rejecting the reference, the-Labour court held that

even though the appellant was doing clerical work, he was

also doing supervisory and administrative work and other

work like checking bank reconciliation etc. which was not

clerical work and, therefore, he was not a workman but in

fact an officer of the Covenanted Contractual Staff Cadre.

The writ petition filed by the appellant was dismissed

in limine.

The appellant appealed to this Court.

Allowing the appeal.

^

HELD: 1. The appellant was a workman within the meaning

of the expression `workman' as defined in s. 2(s) of the

Industrial Disputes Act. The definition shows that the

person concerned would not cease to be a workman if he

performs some supervisory duties but he must be a person who

must be engaged in a supervisory capacity. The Labour Court

after rightly holding that primarily the duties of the

appellant were of a clerical nature misled itself into an

erroneous conclusion by drawing an impermissible inference

and recorded a perverse finding. The award of the Labour

Court declaring the appellant not

283

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to be a workman is quashed and set aside. The judgment of

the High Court also quashed and set aside and the matter

remanded to the Labour Court for A disposal according to

law. [289 F; 286 H; 290 G-H]

2. The test to be employed is what was the primary,

basic or dominant nature of duties for which the person

whose status is under enquiry was employed. A few extra

duties would hardly be relevant to determine his status. The

words like 'managerial' or 'supervisory' have to be

understood in their proper connotation and their mere use

should not detract from the truth.

[290 E-F1]

3. The comparison between an Assistant and a Clerk

would not make the Assistant an officer. Difference in

salary is hardly decisive, nor the designation of a clerk by

itself is decisive. Focus has to be on the nature of the

duties performed and in this behalf the Labour Court itself

was of the opinion that primarily for all practical purposes

the duties performed by the appellant were of a clerical

nature. 1289 A-B]

4. Where an employee has multifarious duties and the

question is raised whether he is a workman or not the Court

must find out what are the primary and basic duties of the

person concerned and if he is incidentally asked to do some

other work, not necessarily in tune with the basic duties,

these additional duties cannot change the character and

status of the person concerned.

[285 H; 286 A]

In the instant case, the Labour Court landed itself

into an erroneous conclusion by drawing impermissible

inference from the evidence and over looking the primary

requirement of the principal and subsidiary duties of the

appellant. On appreciation of evidence, the Labour Court

itself found that there is not much dispute that the

appellant was doing all the work narrated by the sub-Manager

of the Respondent-company and most of this work was just

clerical work. It was also observed that all the duties

performed by the appellant were clerical duties and that the

appellant was performing these duties as a clerk, and that

the duties of the appellant were more or less clerical and

at best it can be said that they were performed by an

efficient and experienced clerk.

[286 B; D-E]

5. The appellant after his promotion in 1966 as

Assistant was designated as Group Leader. The Labour Court

drew inference from this fact that the work of Group Leader

is undoubtedly mainly supervisory though he is also required

to work himself, and in view thereof the duty of the

appellant became primarily supervisory. No doubt the

appellant was working as Group Leader and therefore, over

and above his work he also supervised the work of the

persons working in his group. It is erroneous to draw the

inference that his duties thus became mainly supervisory.

[286 F-H]

In the instant case, the evidence shows that the

appellant even as a Group Leader primarily continued to work

and perform the same duties which have been found to be

clerical but alongwith others in the Group he also

incidentally looked after the work of other members of the

group who were

284

only two in number. It is, therefore, not possible to concur

with the inference A drawn by the Labour Court contrary to

the record that functioning as Group Leader would make the

appellant a person employed in supervisory capacity. The

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work distribution among three persons of a clerical nature

would not cease to be clerical because one of the three is

asked to see that all the three of them performed the duties

efficiently. The reconciliation of bank statement is one of

the most mechanical types of clerical work. [287 C-D; H]

M/s. Kirloskar Brothers Ltd. v. Labour Court, (1) l9,6

L.I.C. 918 and S.K. Verma v. Mahesh Chandra and Another,

[1983] 3 SCR 799 and Ved Prakash Gupta v. Delton Cable India

(P) Ltd., [1984] 2 SCR 569, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2638 of

1980.

From the Judgment and Order dated 30.1.1980 of the

Bombay High Court in Writ Petition No. 2853 of 1979.

N.B. Shetye, R. Ramachandran and Mukul Mudgal for the

Appellant .

H.S. Parihar for the Respondent.

The Judgment of the Court was delivered by

DESAI, J. The appellant Mr. Arkal Govind Raj Rao joined

service with M/s Ciba Geigy of India Ltd. (employer for

short) as Stenographer-cum-Accountant with effect from

January 18, 1956. On January 1, 1966 he was appointed as

Assistant and continued to render service in that post till

his services came to be terminated on October 10, 1972. The

termination of service led to an industrial dispute being

raised and ultimately the Deputy Commissioner Labour

(Administration). Bombay made a reference to the Labour

Court at Bombay for adjudicating upon the industrial dispute

involving the question of the validity and legality of the

Order of termination of service. The reference also required

the Labour Court to enquire whether the appellant is to be

re-instated with full back wages and continued in service

with effect from October 10, 1972.

Numerous preliminary objections were raised by the

employer, amongst them being one that the appellant is not a

workman within the meaning of the expression in the

Industrial Disputes Act, 1947 (Act for short).

Evidence was led by both the parties and numerous

documents were placed on record. On appreciation of evidence

the Labour

285

Court held that even though the appellant was doing some

clerical work, he was also doing supervisory and

administrative work and A other work of checking bank

reconciliation etc. which was not clerical work and

therefore he was not a workman within the meaning of the

expression in the Act but in fact he was an officer of the

Covenanted Contractual Staff Cadre. Accordingly, an award

was made rejecting the reference.

The writ petition filed by the appellant in the Bombay

High Court was dismissed in limine. Hence this appeal by

special leave.

Broadly accepting the appreciation of evidence and the

finding of facts recorded by the trial court, could it be

said that the conclusion reached by drawing impermissible

inference from the evidence would justify a finding that the

appellant was not a workman within the meaning of the

expression in the Act. The expression 'workman' is defined

in Section 2(s) of the Act reads as under:

"Workman means any person (including an apprentice)

employed in any industry to do any skilled or unskilled

manual, supervisory technical or clerical work for hire or

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reward, whether the terms of employment be expressed or

implied and for the purposes of any proceeding under this

Act in relation to an industrial dispute, includes any such

person who has been dismissed, discharged or retrenched in

connection with, or as a consequence of that dispute or

whose dismissal, discharge or retrenchment has led to that

dispute but does not include any person-

(i) who is subject to the Army Act, 1950 (XLVI of

1950), or the Air Force Act, 1950 (XLV of 1950) or

the Navy (Discipline) Act 1934 (XXXIV of 1934); or

(ii) ...

(iii)...

(iv) who, being employed in a supervisory capacity draw

wages exceeding five hundred rupees mensent or

exercise, either by the nature of the duties

attached to the office or by reason of the powers

vested in him, functions mainly of a managerial

nature".

Where an employee has multifurious duties and a

question is raised whether he is a workman or someone other

than a workman

286

the Court must find out what are the primary and basic

duties of the A person concerned and if he is incidentally

asked to do some other work, may not necessarily be in tune

with the basic duties these additional duties cannot change

the character and status of the person concerned. In other

words, the dominant purpose of employment must be first

taken into consideration and the gloss of some additional

duties must be rejected while determining the status and

character of the person. Appreciation of evidence by Labour

Court cannot be faulted but it landed itself into an

erroneous conclusion by drawing impermissible inference from

the evidence and overlooking the primary requirement of the

principal and subsidiary duties of the appellant.

The Labour Court recapitulated the documentary evidence

as also the oral evidence of Sitaram, the Sub-Manager in the

Finance Department of the Company examined on behalf of the

employer. In para 14 of the award the Court made a very

important observation that, "there is no much dispute that

Shri Raj Rao (appellant) was doing all the work narrated by

Shri Sitaram. Most of this work, in my opinion, was just

clerical work". The Court also referred to some of the

admissions made by Shri Sitaram in his cross-examination

which led the Court to observe that all the duties performed

by the appellant were clerical duties and that the appellant

was performing these duties as a clerk. The Court then

concluded that in general, the duties of the appellant

mentioned by Shri Sitaram were more or less clerical and at-

best it can be said that they were performed by an efficient

and experienced clerk.

The Labour Court then took note of the fact that in

1966 appellant was promoted as Assistant and that he was

designated as Group Leader. Ex. 16/6 was referred to as

specifying the duties of the Group Leader of Group II. The

Court concluded that the aforementioned document would show

that the appellant was a Group Leader and that he accepted

that position by putting his initials on the document. The

inference drawn by the Court from this document is that the

work of Group Leader is undoubtedly mainly supervisory

though he is also required to work himself. However, in the

view of the Labour Court at this stage the duty of the

appellant became primarily supervisory. While it is true

that the appellant was working as Group Leader and,

therefore, over and above his work be supervised the work of

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persons working in his group, it is erroneous also to draw

the inference that his duties became mainly supervisory.

287

The definition of the expression workman herein before

extracted clearly shows that the person concerned would not

cease to be a workman if he performs some supervisory duties

but he must be a person who must be engaged in a supervisory

capacity. Even as a Group Leader of Group II, the evidence

produced would show that primarily he continued to work and

perform the same duties which have been found to be clerical

but along with others in the group he also incidentally

looked after the work of other members of the group who were

only two in number. It is, therefore, not possible to concur

with the inference drawn by the Labour Court contrary to the

record that while functioning as Group Leader of Group II,

even though appellant was performing his clerical duty the

incidental supervisory duties performed by him would make

the appellant a person employed in supervisory capacity. Let

it be recalled that in Group II over and above the

appellant, there were only two other persons, namely, Shri

Swami and Shri Sawant. The distinction drawn between the

duties performed by Swami and Sawant and that of the

appellant was that as Group Leader the appellant was to

ensure That the work allotted to the Group is completed

within the scheduled time. In other words, work distribution

among three persons of a clerical nature would not cease to

be clerical because one of the three is asked to see that

all the three of them performed the duties efficiently to

complete the task. The Labour Court completely misled itself

and observed that since then the duties of the appellant

became supervisory.

The Labour Court then proceeded to examine another

circumstance to determine the status of the appellant. It

was submitted on behalf of the employer that the appellant

had also to do the work of preparing bank reconciliation

statements. It was observed that the reconciliation of

statements cannot be regarded as skilled or unskilled,

manual or clerical but one requiring creativeness,

imagination and application of mind and therefore, any one

doing such work would not be a workman. This approach

betrays lack of understanding of what constitutes bank

reconciliation statements. When a party opens an account, it

goes on making credits and withdrawals. The bank maintains a

recurring account. The party opening the account for its

continuous watch may open a corresponding account on its own

books. In order to see that there are no errors in credits

and withdrawals and the balance is drawn at regular

intervals, reconciliation of figures in the accounts of both

the parties is undertaken. This is one of the most

mechanical types of

288

clerical work. However, the Labour Court fell into an error

when A after taking note of the fact that the appellant was

asked to prepare banks reconciliation statements, looked

into the decision in M/s Kirloskar Brothers Ltd. v. Labour

Court,(l) wherein preparation of budgetary statements was

regarded as work requiring creativeness, and the Labour

Court after referring to that judgment of budgetary

statement applied it to the case of a man who had nothing to

do with preparation of budgetary statements but merely to do

the wholly mechanical work of bank's reconciliation

statements and recorded a wholly perverse conclusion. This

is a serious error apparent on the face of the record

committed by the Labour Court which has influenced our

thinking.

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The Labour Court in para 25 of its decision observed

that there are numerous documents which positively show that

the appellant was performing supervisory and administrative

duties. A number of letters were produced by the employer to

show that the appellant was doing some administrative work

such as putting up indent for printed stationery which bears

the endorsement that the appellant requested his three

colleagues Shri Sawant, Shri Khedhar and Shri Pradhan to

give their requirements to him. If the department collects

the details from every employee working in the department

and one of them undertakes the same, it hardly makes any

difference, in the status and character of the employee.

There are other letters especially Ex. 16/33 to 16/38 by

which the appellant had directed other clerks to take note

of certain documents and report them to him. This cannot be

said to be either managerial or supervisory function but in

fact clerical in as much as he as part of his duty asked

other clerks to take note of certain circulars and return

the documents to him because that was part of his duty.

Firm reliance appears to have been placed on letter Ex.

16/31 which purports to be an extract of the minutes of the

meeting of Board of Directors dated June 2, 1970, The

appellant made an endorsement on this extract and requested

other colleagues to take note of the same. This is the work

of the clerk attached to the department connected with

meeting of the board. There are similar other documents but

in our opinion they would hardly support the case of the

employer at all.

It was next urged before the Labour Court that the

benefit received by the officers and clerks materially

differ. The Labour

(1) 1976 L.l.C.918.

289

Court has drawn up a chart in para 30 of its award. The

chart has left us guessing and we fail to appreciate how the

comparison between an Assistant and a Clerk would make the

assistant an officer. Difference in salary is hardly

decisive, nor the designation of a clerk by itself is

decisive. Focus has to be on the nature of the duties

performed and in this behalf the Labour Court itself was of

the opinion that primarily for all practical purposes the

duties performed by the appellant were of a clerical nature.

Lastly it was submitted that the appellant belonged to

what is called Covenantal Contractual Staff Cadre. The

expression 'covenated' has an imperial flavour such as

covenanted civil service. This small company seems to have

adopted a nomenclature which was prestigious under the

British Rule. Clerks and Assistants could hardly be elevated

to the rank of officer by being miscalled covenanted

contractual staff cadre. These high-sounding nomenclatures

are adopted not only to inflate the ego of the employer but

primarily for avoiding the application of the Act. They

apart from being mis- leading are not in tune with free

India's Constitution culture. We remain unimpressed by these

high sounding labels.

Having examined in meticulous details the award of the

Labour Court we are satisfied that the Tribunal after

rightly holding that primarily the duties of the appellant

are of a clerical nature misled itself into an erroneous

conclusion by drawing an impermissible inference and

recorded a finding which we regret to style as perverse. In

fact, the Labour Court ignored the correct perspective in

evaluating the evidence viz., that when primary or basic

duties of a person are shown to be clerical but some stray

assignments are made to create confusion, the gloss has to

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be removed to pursue the reality and that is all what we

have done. The appellant was undoubtedly a workman with the

meaning of the expression of the Act.

Before we conclude we must refer to two decisions on

which reliance was placed on behalf of the appellant. In S.K

Verma v. Mahesh Chandra and Another(l), this Court examined

whether a Development Officer employed by the Life Insurance

Corporation is a workman within the meaning of the

expression in the Act. After referring to the multifarious

duties assigned to a Development Officer, this Court

concluded that the principal duty of the appellant in that

(1) [1983] 3 S.C.R. 799.

290

case appeared to be to organise and develop the business of

the Corporation in an area allotted to him and for that

purpose to recruit active and reliable agents and to train

them to canvass new business and to render best service to

policy-holders. Even though the Development Officer had

power to recruit agents and supervise their work yet his

duties were held to be primarily clerical. The contention

that it was administrative or managerial was rejected. The

case before us is much stronger than that of a Development

Officer.

In Ved Prakash Gupta v. Delton Cable India (P) Ltd.(')

it was contended that the appellant was not a workman. This

Court after taking note of the fact that the work of the

appellant consisted of looking after the security of the

factory and its property by deputing watchmen working under

him to work at the factory gate or sending them to watch

towers or around the factory or to accompany visitors to the

factory and making entries in the visitors' register as

regards the visitors and in the concerned registers as

regards materials entering or going out of the premises of

the factory held that it would not make the nature of duties

either managerial or supervisory. What to say of the

appellant in the present appeal who is an Assistant.

The test that one must employ in such a case is what

was the primary, basic or dominant nature of duties for

which the person whose status is under enquiry was employed.

A few extra duties would hardly be relevant to determine his

status. The words like managerial or supervisory have to be

understood in their proper connotation and their mere use

should not detract from the truth.

Accordingly, the appeal succeeds and is allowed and the

award of the Labour Court declaring the appellant not to be

a workman is quashed and set aside. The judgment of the High

Court is also quashed and set aside. The matter is remanded

to the Labour Court for disposal according to law. The

Labour Court must dispose of the matter within a period of

three months from today and it shall not entertain any more

preliminary objections even if raised, on behalf of the

employer.

(1) [1984] S.C.C. 569.

291

The employer shall pay salary for a period of six

months at the rate of last pay drawn by the appellant and

the acceptance of it A would be without prejudice to any

contention on either side. The respondent, employer shall

also pay the cost of the appellant which is quantified at

Rs. 3,000.

A P.J Appeal allowed.

292