Accountant and Cleark Are WorkmanPunjab-Haryana High Court Sanjeev Kumar Gupta vs Presiding Officer, Labour Court on 1 November, 2000 Equivalent citations: 2001 (89) FLR 483, (2001) IILLJ 35 P H Author: S Sudhalkar Bench: S Sudhalkar, M S Gill
Punjab-Haryana High Court
Sanjeev Kumar Gupta vs Presiding Officer, Labour Court on 1 November, 2000
Equivalent citations: 2001 (89) FLR 483, (2001) IILLJ 35 P H
Author: S Sudhalkar
Bench: S Sudhalkar, M S Gill
JUDGMENT
S.S. Sudhalkar, J.
1. This petition has been filed by the employee challenging the award of the Labour Court dated 7.4.1999 (copy Annexure P/6) vide which the Labour Court held that the petitioner is not covered under the definition of "workman" as provided under Section 2(s) of the Industrial Disputes Act (hereinafter referred to as "the Act") had disposed of the reference on the preliminary finding, however, advising the petitioner to seek remedy in theCivil Court.
2. The petitioner contends that he was appointed as Senior Accounts Assistant on 29.10.1988 vide appointment order (Annexure P/1) by M/s Kelvinator of India Ltd. According to the petitioner, he completed his probation period of six months and was thereafter confirmed. It is the contention of the petitioner that in the year 1995 Kelvinator of India Ltd. was taken over by M/s Whirlpool of India Ltd. i.e. respondent No. 2 with all assets, liabilities, men, material, management, administration and functional control. The service conditions of the petitioner remained the same. It is further the contention of the petitioner that his post was re-designated as Accounts Executive vide order dated 16.10.1995 w.e.f. 1.8.1995 by respondent No. 2 with the same status, position, duties and in the same department of accounts. The petitioner was removed from service on 3.9.1996. He challenged the termination and gave a demand notice and ultimately the dispute was referred by the Labour Court which gave the findings as mentioned above.
Punjab-Haryana High Court
Sanjeev Kumar Gupta vs Presiding Officer, Labour Court on 1 November, 2000
Equivalent citations: 2001 (89) FLR 483, (2001) IILLJ 35 P H
Author: S Sudhalkar
Bench: S Sudhalkar, M S Gill
JUDGMENT
S.S. Sudhalkar, J.
1. This petition has been filed by the employee challenging the award of the Labour Court dated 7.4.1999 (copy Annexure P/6) vide which the Labour Court held that the petitioner is not covered under the definition of "workman" as provided under Section 2(s) of the Industrial Disputes Act (hereinafter referred to as "the Act") had disposed of the reference on the preliminary finding, however, advising the petitioner to seek remedy in theCivil Court.
2. The petitioner contends that he was appointed as Senior Accounts Assistant on 29.10.1988 vide appointment order (Annexure P/1) by M/s Kelvinator of India Ltd. According to the petitioner, he completed his probation period of six months and was thereafter confirmed. It is the contention of the petitioner that in the year 1995 Kelvinator of India Ltd. was taken over by M/s Whirlpool of India Ltd. i.e. respondent No. 2 with all assets, liabilities, men, material, management, administration and functional control. The service conditions of the petitioner remained the same. It is further the contention of the petitioner that his post was re-designated as Accounts Executive vide order dated 16.10.1995 w.e.f. 1.8.1995 by respondent No. 2 with the same status, position, duties and in the same department of accounts. The petitioner was removed from service on 3.9.1996. He challenged the termination and gave a demand notice and ultimately the dispute was referred by the Labour Court which gave the findings as mentioned above.
Accountant and Cleark Are WorkmanPunjab-Haryana High Court Sanjeev Kumar Gupta vs Presiding Officer, Labour Court on 1 November, 2000 Equivalent citations: 2001 (89) FLR 483, (2001) IILLJ 35 P H Author: S Sudhalkar Bench: S Sudhalkar, M S Gill
Punjab-Haryana High Court
Sanjeev Kumar Gupta vs Presiding Officer, Labour Court on 1 November, 2000
Equivalent citations: 2001 (89) FLR 483, (2001) IILLJ 35 P H
Author: S Sudhalkar
Bench: S Sudhalkar, M S Gill
JUDGMENT
S.S. Sudhalkar, J.
1. This petition has been filed by the employee challenging the award of the Labour Court dated 7.4.1999 (copy Annexure P/6) vide which the Labour Court held that the petitioner is not covered under the definition of "workman" as provided under Section 2(s) of the Industrial Disputes Act (hereinafter referred to as "the Act") had disposed of the reference on the preliminary finding, however, advising the petitioner to seek remedy in theCivil Court.
2. The petitioner contends that he was appointed as Senior Accounts Assistant on 29.10.1988 vide appointment order (Annexure P/1) by M/s Kelvinator of India Ltd. According to the petitioner, he completed his probation period of six months and was thereafter confirmed. It is the contention of the petitioner that in the year 1995 Kelvinator of India Ltd. was taken over by M/s Whirlpool of India Ltd. i.e. respondent No. 2 with all assets, liabilities, men, material, management, administration and functional control. The service conditions of the petitioner remained the same. It is further the contention of the petitioner that his post was re-designated as Accounts Executive vide order dated 16.10.1995 w.e.f. 1.8.1995 by respondent No. 2 with the same status, position, duties and in the same department of accounts. The petitioner was removed from service on 3.9.1996. He challenged the termination and gave a demand notice and ultimately the dispute was referred by the Labour Court which gave the findings as mentioned above.
Sanjeev Kumar Gupta vs Presiding Officer, Labour Court on !ovember, "###
$%uiva&ent citations' "## ()*+ ,L- .)/, ("##+ 00LL1 /2 P H 3uthor' S Sudha&4ar 5ench' S Sudha&4ar, 6 S Gi&& 178G6$!9 S:S: Sudha&4ar, 1: : 9his petition has been fi&ed by the emp&oyee cha&&enging the a;ard of the Labour Court dated <:.:*** (copy 3nne=ure P>?+ vide ;hich the Labour Court he&d that the petitioner is not covered under the definition of @;or4man@ as provided under Section "(s+ of the 0ndustria& 8isputes 3ct (hereinafter referred to as @the 3ct@+ had disposed of the reference on the pre&iminary finding, ho;ever, advising the petitioner to see4 remedy in theCivi& Court: ": 9he petitioner contends that he ;as appointed as Senior 3ccounts 3ssistant on "*:#:*)) vide appointment order (3nne=ure P>+ by 6>s Ke&vinator of 0ndia Ltd: 3ccording to the petitioner, he comp&eted his probation period of si= months and ;as thereafter confirmed: 0t is the contention of the petitioner that in the year **2 Ke&vinator of 0ndia Ltd: ;as ta4en over by 6>s Ahir&poo& of 0ndia Ltd: i:e: respondent !o: " ;ith a&& assets, &iabi&ities, men, materia&, management, administration and functiona& contro&: 9he service conditions of the petitioner remained the same: 0t is further the contention of the petitioner that his post ;as re-designated as 3ccounts $=ecutive vide order dated ?:#:**2 ;:e:f: :):**2 by respondent !o: " ;ith the same status, position, duties and in the same department of accounts: 9he petitioner ;as removed from service on /:*:**?: He cha&&enged the termination and gave a demand notice and u&timate&y the dispute ;as referred by the Labour Court ;hich gave the findings as mentioned above: /: !otice of motion ;as issued and respondent !o: " has appeared and contested the c&aim of petitioner by fi&ing a ;ritten statement: 3ccording to respondent !o: ", the tota& emo&uments of the petitioner ;ere -s: .,2)?>- per month, the basic pay being -s: ",**#>- per month: 0t is their contention that the petitioner ;as &ast&y ;or4ing as 3ccounts $=ecutive since :):**2 and ;as dra;ing the sa&ary of -s: 2#.:?# per month and as an 3ccounts $=ecutive his job ;as to reconci&e and correct the 3ccounts ;hich are essentia&&y the jobs or supervisory in nature: 0t has further averred that any 3ccounts $=ecutive, in the e=ercise of his duties, ;ou&d carry out the corrections and reconci&iations of 3ccounts and may a&so prepare che%ues ;hich is a job pertaining high degree of confidentia&&y and responsibi&ity because the che%ues are to be issued to the supp&iers and therefore, these functions are not c&erica& in nature: 0t is further averred that the petitioner, ;hen he ;as appointed as 3ccounts 3ssistant in the Grade #) his emo&uments ;ere -s: ?":"2 per month and he ;as promoted as 3ccounts Officer in Grade #* ;ith the sa&ary of -s: )2":<: 0t is further contended that ;hi&e being posted as $=ecutive in the $=ecutive Cadre, his month&y emo&uments ;ere enhanced to -s: .,2)?>-: 0n addition to that, he ;as entit&ed to medica& reimbursement: Leave 9rave& 3ssistant (L9C+ and that these emo&uments are not admissib&e to Grade # officers of the Company ;hich is the &ast grade for Officers: 0t has further contended that if the respondent ;as to ta4e duties of c&erica& nature from the petitioner, then the petitioner ;ou&d not have been promoted to such a high post: .: 8efinition of @Aor4man@ is in Section "(s+ of the 3ct, ;hich is as under '- @Aor4man@ means any person (inc&uding an apprentice+ emp&oyed in any industry to do any manua&, uns4i&&ed, technica&, operation, c&erica& or supervisory ;or4 for hire or re;ard, ;hether the terms of emp&oyment be e=press or imp&ied, and for the purposes of any proceeding under this 3ct in re&ation to an industria& dispute, inc&udes any such person ;ho has been dismissed, discharged or retrenched in connection ;ith, or as a conse%uence of, that dispute, or ;hose dismissa&, discharge or retrenchment had &ed to that dispute, but does not inc&ude any such person '- (i+ == === (ii+ == === (iii+ Aho is emp&oyed main&y in manageria& or administrative capacityB or (iv+ Aho, being emp&oyed in a supervisory capacity, dra;s ;ages e=ceeding one thousand si= hundred rupees per mensem or e=ercises, either by the nature of the duties attached to the office or by reason of the po;ers vested in him, functions main&y of a manageria& nature:@ 2: 0f the petitioner ;as emp&oyed in a supervisory capacity, he ;ou&d have stood e=c&uded from the definition of the ;ord @;or4man@ in vie; of the emo&uments, he ;as receiving: Ho;ever, if ;e see the definition of @;or4man@ as a ;ho&e, supervisory ;or4 is one of the duties ;hich the ;or4man has to do: 9here are other types of ;or4 such as c&erica&, technica&, operationa& etc: ,or those types of ;or4, there is no &imit so far as earning capacity is concerned for e=c&uding them from the definition of ;or4man: 9he arguments advanced before us are on the point ;hether the duties of the petitioner ;ere c&erica& or ;ere e=ecutive in nature: ?: Counse& for the petitioner has cited the case of 3r4a& Govind -aj -ao v: Ciba Geigy of 0ndia Ltd:, 5ombay reported as 30- *)2 SC *)2, 0t has been he&d therein that ;here an emp&oyee has mu&tifarious duties and the %uestion is raised ;hether he is a @;or4man@ or some one other than the ;or4man, the Court must find out ;hat are if the primary and basic duties of the person concerned and he is incidenta&&y as4ed to so some other ;or4, it may not necessari&y be in tune ;ith the basic dutiesB these additiona& duties cannot change the character and status of the person concerned: 0t is further observed therein that the dominant purpose of emp&oyment must be first ta4en into consideration and the g&oss of some additiona& duties must be rejected ;hi&e determining the status and character of the person: 0t is further observed that a person sha&& not cease to be a @;or4man@ if he performs some supervisory duties but he must be a person ;ho is engaged in a supervisory capacity: <: 0n the present case, 6A- Shri 8:S: 5hatia has stated in his deposition, copy of ;hich has been produced at 3nne=ure P><, that the petitioner ;as re- designated as $=ecutive: 9he hierarchy of the officers, according to the ;itness is as under '- 8irectors of 3ccounts Sr: 6anager (3ccounts+ 6anager (3ccounts+ 8y: 6anager (3ccounts+ Sr: $=ecutive 3ccounts $=ecutive 3ccounts 1unior $=ecutive ): 0t has been stated by 6A- in his cross-e=amination that the nature of petitionerCs duty ;as to &oo4 after supp&iersC &edger etc: and had independent supervision: He used to prepare che%ues but ;as not authoriDed to sign the che%ues and prepare vouchers and ;ou&d sign on the vouchers: He does not 4no; as to ;hom the che%ues ;ere to be submitted for signatures: He has further stated that junior $=ecutive does c&eri-: fica& ;or4 in the Company: 3ccording to this ;itness $=ecutivesC duties ;ere to supervise the &edger and to reconci&e: He did not 4no; ;ho did the verification ;or4: He has further stated that in the company on&y 6anager is authoriDed to ta4e discip&inary action and on appointments, &eave etc: He has further stated that the petitioner has no po;er or authority to appoint>terminate any body or ta4e discip&inary action: 6A-" Shri 8:P: Sharma, in his deposition (Copy 3nne=ure P>)+ has stated that the petitioner ;as not a c&er4 but his duty ;as to prepare vouchers, detai&s of payment of che%ues: He has no manageria& or administrative po;ers and he did not have any supervisory po;ers: So far as the ;or4 of preparing the ban4 reconci&iation statement is concerned, in the case of 3r4a& Govind -aj -ai (supra+ it is observed in Para !o: * of the 1udgment as under '- @*: 9he Labour Court then proceeded to e=amine another circumstance to determine the status of the appe&&ant: 0t ;as submitted on beha&f of the emp&oyer that the appe&&ant had a&so to do the ;or4 of preparing ban4 reconci&iation statements: 0t ;as observed that the reconci&iation of statements cannot be regarded as s4i&&ed or uns4i&&ed, manua& or c&erica& but one re%uiring creativeness, imagination and app&ication of mind and, therefore, any one doing such ;or4 ;ou&d not be a ;or4man: 9his approach betrays &ac4 of under- standing of ;hat constitutes ban4 reconci&iation statements: Ahen a party opens an account, it goes on ma4ing credits and ;ithdra;a&s: 9he ban4 maintains a recurring account: 9he party opening ihe account for its continuous ;atch may open a corresponding account in its o;n boo4s: 0n order to see that there are no errors in credits and ;ithdra;a&s and the ba&ance is dra;n at regu&ar interva&s, reconci&iation of figures in the accounts of both the parties is underta4en: 9his is one of the most mechanica& types of c&erica& ;or4: Ho;ever, the Labour Court fe&& into an error ;hen after ta4ing note of the fact that the appe&&ant ;as as4ed to prepare ban4s reconci&iation statements, &oo4ed into the decision in Kir&os4ar 5rothers Ltd: v: Labour Court, *<? L0C *) (8e&hi+ ;herein preparation of budgetary statements ;as regarded as ;or4 re%uiring creativeness, and the Labour Court after referring to that judgment of budgetary statement app&ied it to the case of a man ;ho had nothing to do ;ith preparation of budgetary statements but mere&y to do the ;ho&&y mechanica& ;or4 of ban4Cs reconci&iation statements and recorded a ;ho&&y perverse conc&usion: 9his is a serious error apparent on the face of the record committed by the Labour Court ;hich has inf&uenced our thin4ing:@ *: 9he appointment>promotion order vide ;hich the petitioner ;as given the a&&eged $=ecutive post is dated ?:#:**2, copy of ;hich is at 3nne=ure P>/: !ature of ;or4 ;hich the petitioner ;as re%uired to do has not been specified in the order: On&y mention is there that he ;as positioned in the $=ecutive cadre of the OrganiDation: 9he condition mentioned therein is regarding the pay and per4s and not the nature of ;or4: !othing is sho;n from any -u&es>0nstructions>-eso&ution>direction that a particu&ar ;or4 is to be done by the $=ecutive, the post to ;hich the petitioner ;as promoted: Counse& for respondent !o: " has referred to the averments made in the ;ritten statement that the petitioner ;as entit&ed to medica& reimbursement upto -s: .,###>- per month and L:9:3: and that these emo&uments are not even admissib&e to Grade # Officer of the company ;hich is the &ast grade of officers and if respondent !o: " ;as on&y to ta4e the c&erifica& duties from the petitioner, then the petitioner ;ou&d not have been promoted to such a higher position ;ith higher emo&uments: He has a&so argued that high degree of confidentia&ity is to be e=pected from the post of the petitioner ;hich cannot be treated as duty of a c&erica& nature: 0t is a&so argued by him that the petitioner ;as doing supervisory duties as per the statements of their ;itnesses: #: 0n the deposition, the peiitioner Sanjeev Kumar: AA-" (Copy 3nne=ure P>#+ has stated in his cross-e=amination that even his juniors ;ere preparing the che%ues>vouchers: He has admitted that there is some difference in the a&&o;ances of staff and other ;or4ers: He has stated that he has no 4no;&edge ;hether the ;or4ers ;ere getting 83 and other incentives, mi&4, cyc&e, specia& %ua&ities a&&o;ances, vegetab&e and other incentives etc: He has further stated that he did not 4no; if the staff ;as a&so getting some incentives or not but he has admitted that he is not getting the said incentives>a&&o;ances: : 0t ;i&& be dangerous to adjudge the nature of ;or4 from the a&&o;ances a man is getting: !ature of ;or4 is a&&o;ed to him by virtue of his post: Ahat has come in evidence of respondent is that the petitioner ;as doing the ;or4 of preparing vouchers>detai&s of che%ues and that he had no manageria&>administrative po;ers: 0t is not sho;n by respondent !o: " as to ;hat specific the ;or4 of the petitioner ;as: 9his being so and from the ;or4 a&&eged&y a&&otted to the post of the petitioner, coup&ed ;ith the princip&e &aid do;n by the Supreme Court in the case of 3r4aE Govind -aj -ao (supra+ the conc&usion that has to be dra;n is that the petitioner ;as a @;or4man@ as covered under Section "(s+ of the 3ct: Ae, therefore, do not agree ;ith the finding of the Labour Court: ": 3s a resu&t the a;ard of the Labour Court is set-aside: Petitioner is he&d to be a ;or4man: 9he case is remanded to the Labour Court to ta4e decision in accordance ;ith &a; on the other aspects of the case: 0f any party ;ants to adduce evidence, if app&ication is made in a reasonab&e time, the Labour Court shou&d consider the same: Parties to remain present before the Labour Court on /#::"###: 9his ;rit petition is a&&o;ed in the above terms: /: Petition a&&o;ed