Punjab-Haryana High Court
Baldev Singh vs Presiding Officer Industrial Tribunal … on 11 December, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:172215-DB
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CM-7736-37-LPA-2024 in/and
LPA-3141-2024
114
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CM-7736-37-LPA-2024 in/and
LPA-3141-2024
Date of Decision: December 11, 2024
BALDEV SINGH .....Appellant
Versus
PRESIDING OFFICER INDUSTRIAL TRIBUNAL LUDHIANA AND
ANR ..... Respondents
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE SUKHVINDER KAUR
Present: Mr. Ravi Gakhar, Advocate for the appellant.
****
LISA GILL, J.
CM-7736-LPA-2024
1. For the reasons mentioned in the application as well as arguments
addressed, delay of 77 days in filing the appeal is condoned.
2. Application is, accordingly, disposed of.
LPA-3141-2024 (O&M)
1. Prayer in this appeal is for setting aside order dated 29.07.2024
passed by learned Single Bench whereby writ petition filed by present
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appellant, seeking setting aside of order dated 22.04.2022 passed by Industrial
Tribunal has been dismissed.
2. It is the case of appellant (writ petitioner) that he had been
appointed Store Keeper/Store Manager on 14.02.2012 by respondent –
Establishment. His services were, statedly, terminated illegally without any
notice, charge sheet or inquiry on 04.02.2017 whereas his juniors were
retained in service. Industrial Dispute was raised. Learned Industrial Tribunal,
Ludhiana vide Award dated 22.04.2022 found no merit therein and
accordingly, dismissed the Reference. It was concluded that appellant was
working in Supervisory capacity, therefore, did not fall under definition of
Workman under Industrial Disputes Act. CWP No. 17483 of 2024 was filed
by appellant challenging said Award. This writ petition was also dismissed by
learned Single Bench finding no merit therein. Aggrieved therefrom, present
appeal has been filed.
3. Learned counsel for appellant vehemently argues that both
learned Tribunal as well as learned Single Bench have erred while rendering
decision dated 22.04.2022 and 29.07.2024. Appellant did not have any power
to appoint or dismiss any employee and as per evidence on record he did not
exercise any supervisory power. Reference was made to the appointment letter
(Ex.W1) as well as Personal Particulars Form (Ex.M1). Learned counsel also
referred to statement of representative of management – Maninder Singh
(MW1) to substantiate the said argument. It was vehemently argued that MW1
– Maninder Singh, Assistant Manager, Human Resource of Establishment
specifically stated that there is no record on court file to show that appellant
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had any power to take any decision against any worker. In case of any
managerial duties being performed, appellant was only carrying out specific
directions issued by employer. Therefore, it cannot be said that he was
working in managerial or supervisory capacity. Reference has been made to
judgment of Hon’ble the Supreme Court in Ved Prakash Gupta vs. Delton
Cable India (P) Ltd. (1984) SCC (L&S) 281 and H.R. Adyanthaya Vs.
Sandoz (India) Ltd. Etc. (1994) 5 SCC 737,
4. We have heard learned counsel for appellant and have perused
the file as well as record of Labour Court which was produced by learned
counsel during the course of hearing.
5. Admittedly, as per appointment letter (Ex.W1), appellant was
appointed as Manager (Stores) while drawing salary of Rs.30,000/-. Learned
Labour Court did not find any merit in the Reference claiming termination of
appellant to be illegal and arbitrary. It was concluded that appellant did not
fall within the definition of Workman. It was further observed that appellant
had himself tendered his resignation on 17.01.2011.
6. Question which arises for consideration in this matter is whether
appellant, appointed as Manager with Establishment falls within the definition
of Workman or not and whether an incorrect decision has been rendered by
learned counsel and the writ Court. Section 2(s) of I.D. Act defines
‘Workman’ as under:-
“(s) “workman” means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or3 of 9
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4CM-7736-37-LPA-2024 in/and
LPA-3141-2024implied, 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 such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950),
or the Army Act, 1950 (46 of 1950), or the Navy Act,
1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or
other employee of a prison, or
(iii) who is employed mainly in a managerial or
administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws
wages exceeding [ten thousand rupees] per mensem or
exercises, 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.
7. As per affidavit dated 23.07.2018 submitted by appellant by way
of his evidence before the learned Labour Court it is stated that he had joined
with respondent – Establishment on 14.02.2012 styled as M/s New Swan
Enterprises (Agro Division), Focal Point, Ludhiana. In August 2015, after 3½
years, respondent – employer transferred him to another of its concern i.e. M/s
New Swan Multitech Limited, Kohara Machhiwara road Heeran Ludhiana.
Appellant claimed to be working as Store Manager receiving a salary of
Rs.48,500/-. He worked continuously from 14.02.2012 to 04.02.2017 without
enjoying any power to appoint, terminate or take any action against any other
employee. Violation of provisions of Section 25(g) and (h) were claimed.
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Appellant in his cross examination revealed that details of his earlier
appointments as clerk from 2003 to about 2006 with one Hybrid Cycles as
Store Clerk and thereafter with M/s Hero Cycles at Mangli as Store Clerk
from where he resigned in December, 2010 to work as Store Manager with
M/s New Swan Enterprises, Ludhiana. Relevant part of cross examination of
the appellant WW1 reads as under:
” I have seen personal particular form alongwith my Bio
Data and personal particular form is signed by me, copy of
which is Ex. M/1. It is correct that I had been working with
M/s. New Swan Enterprises as Manager Store. I have brought
the original of Ex. W/1. After about 3 and half years of my
working with M/s. New Swan Enteprises, new company M/s
New Swan Multitech Limited was formed by the respondent. I
was not given any letter by M/s New Swan Enterprises
regarding transfer of my job with M/s New Swan Multitech
Limited because the whole plant was shifted to Village Raian.
Rest of the cross-examination is deferred for want of original
documents.
RO&AC Presiding officer
21.01.2019"
” It is correct that I was store incharge with the
respondent. It is correct that there were 3 employees
working in the store under my supervision (emphasis
added). For the last one year of my employment with
respondent attendance was marked through biometric system.
It is correct that as store manager I had been using mail id on
the website namely store/[email protected]. The material
was firstly used to be received at main gate/security department
where it was counted and thereafter, the bill was received by
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me after preparation of MR (material received memo).
Volunteered, I was just receiving the material and not counting
the same. I have seen the originals of Ex. M/2 to Ex. M/15 and
the same bears my signatures. Besides me there are signatures
of the person who received and counted the goods. Again
stated I use to verify bills received (emphasis added). It is
correct that I had received an email from Human Resource
Department regarding my transfer from Ludhiana to New
Swan Multitech Limited village Vithlapur, Mandal, District
Ahmdabad. It is correct that alongwith the email I had received
an attachment dated 17.01.2017 where I was asked to join my
duty on village Vithlapur on or before 25.01.2017, copy of
which is Ex. M/16. Volunteered, after receipt of the transfer
order I had personally talked to Mr. Bhatt and informed
him that I am not in a position to join at Vithlapur on
account of ill-health of my father(emphasis added). Further
voluntarily stated that I was told by Mr. Bhatt that the
management is not interested in keeping me in the employment
and this order has been passed only to harass me. I was further
told that I should resign my job. It is incorrect to suggest that
there was no talk as stated by me with Mr. Bhatt. It is further
wrong that Mr. Bhatt never informed me regarding dis-
interestness of respondent in my employment. It is correct
that I had sent an email on 19.01.2017 to the company that
I am unable to move to Ahmdabad, so please give me one
month notice to search for a new job. Copy of the email is
Ex.M/17. It is correct that as per this email, I was supposed
to work upto 19.02.2017(emphasis added). It is incorrect to
suggest that I worked upto 04.02.2017. Volunteered, when I
went to the — (line missing) — I do not know whether
05.02.2017 was Sunday or not. It is incorrect to suggest that
my services were not terminated by the respondent on
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04.02.2017, rather I worked on that day. It is further wrong that
I did not join my duty w.e.f 06.02.2017 to complete the notice
given by me. I have not mentioned in the demand notice,
statement of claim and my affidavit the details of my
conversation with Mr. Bhatt after the issuance of my transfer
order. It is wrong that I have concocted the conversation with
Mr. Bhatt and the same is after thought.
I am married. I have no children. I had given an
application for seeking employment after about 4 months of
my unemployment. I had applied for job with M/s. Hero
Echotech Ltd., Mangli and got the same and I worked there
from 04.05.2017 tο 10.11.2018 and I was getting Rs. 34,000/-
basic alongwith other allowances. My gross salary was Rs.
45,000/-. I had left the job of M/s. Hero Echotech Ltd. after
resigning the same. Volunteered, I was called by HR and he
asked me to submit resignation as I have filed a case against
the respondent. It is incorrect to suggest that I am still gainfully
employed. It is further wrong that I am not a ‘workman’ under
the ID Act as my duties were of supervisory and managerial
nature and that I was getting salary more than Rs. 10,000/-. It is
further wrong that I have filed a false case. I am ready to join
duties at Vithlapur, Ahmdabad provided I am given
residence and conveyance. I am not ready to join without
back wages (emphasis added). It is incorrect that I have filed a
false affidavit.
RO&AC Presiding officer
14.03.2019"
8. In the given factual matrix, learned Labour Court as well as
learned Single Bench have correctly observed that appellant was not only
performing supervisory duties over three employees but was also getting
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salary of Rs.48,500/-, therefore, he did not fall within the definition of
Workman under Section 2(s) of I.D. Act. Reliance by learned counsel for
appellant on judgment of Hon’ble the Supreme Court in Ved Prakash
Gupta‘s case (supra) is of no avail inasmuch as appellant therein was proved
to be working as Security Inspector at the gate of factory premises with said
employment not being managerial or supervisory in nature. Similarly, the case
of H.R. Adyanthaya (supra) which had been relied upon by learned counsel
for appellant does not come to his aid.
9. Argument raised by learned counsel for appellant that as
appellant did not have any power to appoint or dismiss any employee, it
cannot be held that appellant was working in a managerial or supervisory
capacity is devoid of any merit, hence rejected. Hon’ble the Supreme Court in
M/s Bharti Airtel Limited versus A.S. Raghavendra (2024) 6 SCC 418 has
negated such argument by holding as under:-
“25. That being said, in our considered view, mere absence of
power to appoint, dismiss or hold disciplinary inquiries against
other employees, would not and could not be the sole criterion
to determine such an issue. Holding otherwise would lead to
incongruous consequences, as the same would, illustratively,
mean that, employees in high-ranking positions but without
powers to appoint, dismiss or hold disciplinary enquiry would
be included under the umbrella of “workman” under Section
2(s), ID Act.”
10. It is, thus, apparent that appellant is not covered under definition
of Workman under I.D. Act. At this stage, we also take note of factum of
resignation submitted by appellant. Learned counsel is unable to point out any
material on record to indicate that said resignation was due to any compulsion
which he faced from Establishment. Apart from the same, it is not established
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that appellant falls under the definition of ‘Workman’. Controversy has been
correctly appreciated and decided by learned labour Court as well as learned
Writ Court and brooks no interference.
11. Learned counsel for appellant is unable to point out any
illegality, infirmity or irregularity in impugned order dated 29.07.2024 which
calls for interference.
12. No other argument has been raised.
13. This appeal is, accordingly, dismissed with no order as to costs.
(LISA GILL)
JUDGE
(SUKHVINDER KAUR)
December 11, 2024 JUDGE
Rts
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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