Sulzer Pumps India Private Limited v. Jayendra Arun Jog

13. The aforesaid submissions now fall for consideration.

14. To begin with, uncontroverted facts. Indisputably, the complainant came to be appointed as a trainee Marketing Assistant on 25th May, 1992. Incontrovertibly, the appointment order dated 25th May, 1992 contains condition of transferability to any of the employer’s department or sister concern. There is not much dispute over the fact in the year 2011 the complainant was designated as, “Supervisor as CSS-SAP Data Management in RES Department”, though the parties are at issue over the import of the said purported promotion and designation as Supervisor. By and large, the fact the complainant was involved in Union activities could not be converted. There is no dispute over the issue of transfer order on 30th October, 2020, whereunder the complainant was transferred to regional office 5 1970 (II) LLJ 590. at Chennai and in addition to normal RES responsibility, the complainant was also to be responsible for cash collection in the regional office and act as a Credit Controller/Cash Collector.

15. In the backdrop of the aforesaid rather uncontroverted facts, the questions as to whether the complainant was a workman and whether the transfer order was mala fide exercise of managerial authority crop up for consideration.

16. The learned Memmber, Industrial Court, was persuaded to hold that the material and evidence on record would indicate that, though designated as supervisor, the complainant was, in fact, discharging duty of a workman. The learned Member, Industrial Court, was of the view that absence of a single instance of transfer since 1992 from Mumbai to Chennai coupled with the intent of the employer to curb the Union activities, indicated that the transfer was actuated by mala fide. Whether this approach of the learned Member, Industrial Court, is justifiable?

17. At the outset, it is necessary to keep in view the nature of the jurisdiction exercised by this Court. Undoubtedly the writ jurisdiction is of plenary nature. However, this Court does not sit in appeal over the decision of the Industrial Adjudicater. Whether the Industrial Court has committed a patent error of law or the view taken by the Industrial Court is such that no reasonable person, on the basis of the material available on record, could have come to such conclusion, merits consideration. Reappraisal of the evidence as a Court of appeal, is not at all warranted.

18. With this clarity as to the remit of the enquiry, I propose to delve into the twin questions of status of workman and transfer being vitiated by mala fide, in seriatum.

19. On the aspect of determination of status of workmen, within the meaning of Section 2(s) of the ID Act, 1947, the legal position is fairly crystalized. Such determination must be based on the appreciation of the nature of the duties performed by the employee. Nomenclature of the post, which the employee holds, is not of decisive significance. The description of the nature of the duties also does not furnish a surer foundation for determination. Use of grandstanding expressions and management jargon to describe otherwise ordinary and normal functions, is not uncommon. It is, therefore, necessary to correctly appreciate the nature of the core duties discharged by a person whose status is questioned.

20. Section 2(s) of the ID Act, 1947 defines the expression workman to mean any person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. In the case of H.R. Adyanthaya and ors. vs. Sandoz (India) Ltd.6, the Constitution Bench of the Supreme Court enunciated that to be qualified to be workman under Section 2(s), the person must be employed to do the work which falls in any of the specified categories, manual, unskilled, skilled, technical, operational, clerical or supervisory. To put it in other words, it is not enough that a person is not covered by any of the four exceptions to the definition. It is also fairly well settled that the burden is on the person, who asserts the status of the workman under Section 2(s) to establish with reference to the dominant nature of his duties that the work which the said person performs falls within one of the specified categories under Section 2(s).

21. In the case of Burmah Shell (supra) the Supreme Court adverted to a situation where an employee is entrusted to discharge multifarious duties. In such cases, the Supreme Court held, it would be necessary to determine under which classification the employee will fall for the purpose of finding out whether he does not go out of the definition of “workman” under the exceptions. The principle is now well settled that for this purpose, a workman must be held to be employed to do that 6(994) 5 Supreme Court Cases 737. work which is the work he is required to do, even though he may be incidentally doing other types of work. The Supreme Court referred to its earlier decision in the case of Ananda Bazar Patrika (P) Ltd. Vs. Workmen[7], where the principle was enunciated as under: “3. The question whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere act that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity. ….” (emphasis supplied)

22. In the case of Arkal Govind Raj Rao vs. CIBA Geigy and, another three-judge Bench of the Supreme Court reexposited the principle in the following words, “6. where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman 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, 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 taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. …...” 71970(3) SCC 248.

23. The aforesaid enunciation indicates that it is the dominant nature of work or duties which determines the status and not the incidental work, which an employee may be called upon to perform. Herein lies the task before the industrial adjudicator or Court to decipher the dominant nature of duties and remove the gloss. Often the industrial adjudicator and Court come across a verbose and labyrinth description of the duties. Still an effort is warranted to remove the gloss and find out the dominant nature of the duties.

24. In the case at hand, it was the stand of the employer that the complainant was responsible for creating, modifying and maintaining BOM’s (Bill of Material), equipment masters and material masters to support the PRN (Parts, Retrofit and Nuclear) Organization. In paragraph 5(d) the employer furnished the description of the predominant duties performed by the complainant. It would be contextually relevant to note that there is evidence to indicate what the terms ‘BOM’, ‘RES’ and ‘material masters’ signify. Mr. Unnadha Raja, witness of the employer, who was in-charge of RES Department, informed the Court that RES means Rotating Equipment Services and it supported after sales of pump equipments sold by the employer. BOM means Bill of Material and that was a structure of individual part required to produce components or equipments. Master of Material means identification of material, specification, unit of measure, price, tax, varieties of produce and suppliers name etc. details.

25. In the backdrop of aforesaid nature of duties entrusted to the complainant, Mr. Cama would urge that, the complaint conceded in no uncertain terms that he was appointed as a Supervisor – SAP Data Management and one of his duty was relating to BOM (Bill of Material) and he was required to load data in the SAP system. In the face of these admissions, Mr. Cama would urge, it was for the complainant to establish that he was still a workman.

26. I am unable to persuade myself to accede to the submission that since the complainant conceded that he was appointed as supervisor SAP, the issue ought to have been decided against the complainant. As indicated above, neither the nomenclature is decisive nor the description of the duties. It is the core function which is of determinative significance.

27. In the case at hand, there is material to indicate that the complainant neither supervised work of any other employee nor any machine. The nature of the work performed by the complainant was that of maintaining and updating a Bill of Material (BOM), primarily. The said BOM was in essence record of the spare parts used or procured for a particular pump. As noted above, the RES Department in which the complainant was employed was entrusted with after sales spare parts business of the employer. That remained the core function of the complainant. Use of the various expressions to describe the incidental or peripheral work does not dilute or affect that dominant nature of duty which the complainant was expected to discharge.

28. It is true, the fact that the complainant had no power to sanction leave or initiate disciplinary proceeding is not of conclusive significance and could not have weighed in deciding the status of the complainant. Reliance placed by Mr. Cama on the decision of this Court in the case of Standard Bank (supra) wherein it was enunciated with the fact that an employee is not vested with power to sanction leave or to initiate disciplinary proceeding is not conclusive of the question as to whether the work that was performed by the employee falls within one of the categories stipulated in Section 2(s), is well founded. However, in the case at hand, there is material to show that the complainant in fact did not supervise the work of any other employee much less had the authority to sanction leave or initiate disciplinary proceeding.

29. An endeavour was made to bank upon an admission in the cross-examination of the complainant that he was nominated as a Project Leader for 1701 new ERP Plant Creation, to draw home the point that the complainant was indeed discharging supervisory functions. This admission, even if construed to be one, does not advance the cause of the employer. Mr. Unnadha Raja, employer’s witness, informed the Court that the complainant was nominated as the Project Leader for 1701 new ERP Plant Creation to define all transaction codes with respective functions and associated trainings. That exercise was necessarily one of carving out a different plant code 1701 from

1700. The core function, however, remained the same. Maintenance and updation of BOM. Mr. Unnadha Raja conceded in the cross-examination that there was a proposal to start manufacturing of spare parts business at Rabale and the said proposal was referred as roll out of 1701.

30. The upshot of the aforesaid consideration is that the learned Member, Industrial Court, was justified in returning a finding that the essential work of the complainant was that of data entry as per the values made available to the complainant, and the employer failed to demonstrate as to how the said work involved the element of managerial or supervisory functions.

31. This leads me to the aspect of the transfer being mala fide and an act of victimization. Where transferability is a term of employment, the Industrial Tribunal or Court cannot interdict the transfer unless it is found to be mala fide or in violation of the statutory prescription.

32. In the case of Pearlite Liners (supra) the Supreme Court enunciated that unless there is term to the contrary in contract of service, a transfer order is a normal incidence of service.

33. In Gobardhan Lal (supra), which arose out of transfer of a Government employee, the Supreme Court enunciated that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are appellate authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on the concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

34. Under Item 3 of Schedule-IV of the Act, 1971, the act of transfer of an employee would amount to an unfair labour practice if the transfer is actuated by mala fide. The concept of mala fide has two facets; one, malice in law and the other, malice in fact. The term mala fide has a definite juridical connotation. It envisages want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose.

35. It is equally well recognized that the allegations of mala fide are easy to make than prove. The Tribunal or Court must bestow a thoughtful consideration before interdicting a transfer on the ground of mala fide. All the attendant circumstances must enter the judicial determination. It is more so, where there is an express term of transferability.

36. In the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another[9], the Supreme Court, observed that the determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.

37. Following the aforesaid Judgment in the case of State of Bihar (Supra), the Supreme Court in a recent pronouncement in the case of Rajneesh Khajuria Vs. Wockhardt Ltd and Others10 observed that in terms of the provisions of the Act, 1971, the transfer by itself can not be said to be an act of unfair labour practice unless it is actuated by mala fide. Therefore, to sustain a plea of mala fide, there has to be an element of personal bias or an oblique motive.

38. In the case of Union Of India and Others Vs. Ashok Kumar and Others11, the Supreme Court enunciated in clear terms that it cannot be overlooked that burden of establishing mala fide is very heavy on the person who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.

39. Readverting to the facts of the case, the following factors assume importance. No other employee was ever transferred out of the employer’s Dighi establishment to Chennai. Surely, that cannot be the basis of attributing mala fide to the employer. However, the attendant circumstances and correlation of the transfer order thereto may render the exercise of the managerial authority vulnerable. It cannot be controverted that the complainant had specifically asserted in the complaint that after the new management took over, there was a hostile attitude towards the Union activities. The complainant claimed to have filed a writ petition being Criminal Writ Petition (St) no.2486 of 2020 in respect of demolition of the Union office allegedly by the employer illegally and unlawfully. The said writ petition was disposed of on 26th September, 2020 with liberty to avail an appropriate remedy as available in law. The complainant thereafter instituted a suit being Special Civil Suit No.330 of 2020 before the Civil Court at Thane. Even before the institution of the said writ petition the complainant had signed a caveat filed on behalf of the Union in the Industrial Court on 8th September, 2020.

40. What is of critical salience is an order passed by the learned Member, Industrial Court, in Complaint (ULP) No.1421 of 2020 dated 5th March, 2021, filed by the Union against the employer. After extracting the correspondence addressed on behalf of the employer, the learned Member, Industrial Court, inter alia, observed as under: “18. The company not only is making allegations against the Union leadership but has also making serious efforts to cut away members from the Union. It is seem to have succeeded in taking away the white-collared persons and the same is apparent, as it is alleged that as soon as the SEUGC claims existence, same white-collared group want to join the same Union. This, itself prima-facie shows involvement of the management to bring about a financial crunch to the Union by stopping of contribution of white collared persons.

19. Another attempt is to stop the levy and contributions payable to the Union. For arguments it could be considered that it is incorrect, considering the conflict of interest to take deposits in persona name, but there is specific remedy to it. Sudden withdrawal of such levy or contributions agreed upon was only with an intention to cause financial crunch to the complainant Union as till it was an issue of ego. Another attempt is seen to be made to cause financial crunch through SEUGC to say that they have approved that no levy will be taken from the bonus for the Union and thus, may be deprived the Union of one of the sources of income.

20. Thus, the company has tried prima-facie to (a) make allegations against Union leadership, (b) grant additional funds for opting out of Union, (c) stop finances of the Union.

21. The aspect that company wants to control the Union is also clear from the facts that the company calls out the workers to change the Union leadership as is apparent from the above letters. They not only call the Union leadership a ‘Ravana’ and ‘Meghnath’, but also want them to be removed and actively promote their removal. They quote such plan as “joint moto”, thus in my view prima-facie certainly exceeds to the boundaries of the limits of management and Union.”

41. Holding thus the learned Member restrained the employer and its officers from issuing letters and circulars, making verbal or personal statements, suggestions and allegations in respect of discouraging the workers for their membership with the complainant’s Union and from indulging in the propogation or advocating for any particular Committee or members or against any particular Committee or members or office bearers of the Union.

42. The aforesaid observations indicate that there was prima facie a concerted effort to break a particular Union and set up a rival one, which the employer found more favourable.

43. Mr. Cama attempted to salvage the position by asserting that no other office bearer of the Union had been transferred. If the employer intended to victimize the office bearers, it could have proceeded against others as well.

44. I find it difficult to accede to this submission. As noted above, in close proximity to the withdrawal of the writ petition and institution of the suit by the complainant, the latter was visited with the transfer order. Evidently, the complainant was at the forefront in picking the cudgels on behalf of the Union. The management would not have been naive enough to transfer all the office bearers of the Union and instantaneously risk the charge of mala fide. If the entire material on record is cumulatively considered, the mala fide design, with which the transfer was actuated, becomes explicitly clear.

45. The learned Member, Industrial Court, was also justified in holding that at the place of transfer the complainant was proposed to be entrusted with additional duties, which he had never performed. He was supposed to be the Credit Controller/ Cash Collector. The employer could not bring material on record to show that the said duty was ever performed by the complainant while being posted at Digha. Mr. Unnadha Raja conceded that he had not known whether the complainant ever performed the duties of cash collector and credit controller and the complainant had the experience of the said work. Prima facie, entrustment of the said duty constituted a change in the service condition.

46. For the foregoing reasons, I am persuaded to hold that the learned Member, Industrial Court, committed no error in holding that the employer engaged in unfair labour practices under Items 3 and 9 of Schedule IV of the Act, 1971 and quashing and setting aside the transfer order. Thus, no interference is warranted with the impugned order in exercise of writ jurisdiction.

47. Before parting, it must be clarified that the apprehension of Mr. Cama that if the impugned order is not set aside the employer will be precluded from exercising the managerial authority in respect of any other employee, does not seem to be well founded. As and when the question of justifiability of the transfer arises; undoubtedly, it would be required to be determined on the basis of the attendant facts and circumstances, prevailing situation and the circumstances peculiar to the employee concerned.

48. The petition, therefore, deserves to be dismissed.

49. Hence, the following order:: O R D E R:

(i) Petition stands dismissed.

(ii) Rule discharged.

(iii) In the circumstances of the case, there shall be no order as to costs.