Food Corporation of India v. Govt. of India & Ors.

10. Pursuant to the order of reference by Respondent No.1, both the Petitioner and Respondent No.3 filed their Statements of Claims dated 15.03.1981 and Written Statement dated August 1983 respectively. Respondent No.3/Union vide its Statement of Claims set forth its case as follows:

(i) The Bajpai Committee Norms introduced in 1977 are unjustified and illegal and the pre-emergency godowns norms in the Food Corporation of India in respect of its workmen be restored.

(ii) Payment of compensation in the form of night allowance to category II, III and IV be granted from 01.01.1969 in the following manner. (a) For working between 6 PM to 10 PM one hour of night duty be treated as equivalent to one hour and 20 minutes of duty performed during day time and proportionate monetary compensation be paid by reckoning gross emoluments of the employees for this purpose. (b) For working between 10 PM to 6 AM one hour of night duty be treated as equivalent to one hour and 40 minutes of duty performed per day and proportionate monetary compensation be paid by reckoning gross emoluments of the employees for this purpose.

(iii) Selection Grades for FCI employees be created in the following manner:

(a) The pay of the employees who have remained in the same post for 8 years should automatically be fitted in the scale applicable to the next higher grade by applying the fitment formula in the FCI in case of promotion. (b) An employee who has been granted the benefit of fitment in the higher scale will continue to do the functions and duties applicable to them prior to such fitment but will be designated as selection grade Assistant Grade I, Selection Grade Assistant Manager and so on. (c)The date of implementation of the scheme should be 01.11.1971.

(d) The benefit of the scheme should accrue to the employees who have retired from service also.

(iv) Arrears of HRA be awarded from 01.11.1973.

11. The Petitioner/Management howbeit, in its Written Statement opposed the claims of Respondent No.3/Union and inter-alia raised a preliminary objection covering the demand for selection grade to Category II. It was claimed by the Petitioner that Category II employees being Managers/Supervisors are not covered under the definition of workmen under Section 2 (s) of the I.D. Act and the issue was beyond the jurisdiction of the learned Labour Court. Further, a rejoinder was also filed by Respondent No.3/Union.

12. On the basis of the pleadings of the parties, the learned Labour Court framed the following issues: “1. As is terms of reference.

2. Whether reference is bad?

3. Whether reference does not raise an "Industrial Dispute”?

4. Whether category class II employees referred are not "workmen''?

5. Whether reference Is vague/ultra vires of Government Powers?

6. Whether Central Government Industrial Tribunal cannot interfere in power of FCI to make regulations?”

13. The Petitioner/Management examined three witnesses whereas Respondent No.3/Union examined 8 witnesses before the learned Labour Court.

14. Learned Labour Court vide the Impugned Award decided three out of four disputes in favour of Respondent No.3/Union. Those three disputes are: (1) payment of night allowance to Chowkidar and other staff employed at night; (2) introduction of selection grade for category II, III and IV employees; and (3) payment of arrears of House Rent Allowance on revised scales from 1st of November 1973.

15. The Petitioner preferred the present Writ Petition challenging the Impugned Award dated 10.05.1988 limited only to (a) introduction of selection grade for Category II, III and IV employees; and (b) payment of arrears of House Rent Allowance on revised scales from 1st of November 1973.

16. As discussed herein above, during the pendency of the present proceedings, the parties resolved most of the issues. The only issue which requires adjudication is whether the Assistant Managers can be treated as Workmen for the purpose of I.D. Act and if the answer is yes, whether they are entitled for the selection grade w.e.f. 01.11.1971 or not.

SUBMISSIONS ON BEHALF OF THE PETITIONER

17. Learned counsel for the Petitioner, Mr. Ajit Pudussery, initiated his arguments by submitting that the Impugned Award is liable to be quashed for being perverse, vitiated by non-application of mind and also on account of jurisdictional errors on the part of the learned Labour Court.

18. It is the contention of the learned counsel for the Petitioner that the learned Labour Court while giving its conclusion with respect to the issue of “Whether category class II employees referred are not "workmen?”, ignored the other cadres of Assistant Managers and has held that „Assistant Managers Depot‟ are „workmen‟. The Assistant Managers are predesignated as Managers in Petitioner/Management in various cadres viz. Depot, General Administration, Accounts, Civil Engineering, Technical Movement and Electrical Engineering. He submitted that this has created an invidious situation and the Impugned Award is not possible to be implemented in FCI because while one cadre of Assistant Managers has been held to be „workmen‟, the other cadres of Assistant Managers are held not to be „workmen‟. This basic flaw in the Impugned Award renders the finding liable to be quashed and set aside.

19. It is the contention of the learned counsel for the Petitioner that the findings rendered by the learned Labour Court that the job description filed before it by the Petitioner/Management was printed in 1975 and would not apply to the demands raised by Respondent No.3/Union which according to it were allegedly raised in 1973 amounts to total non-application of mind. A perusal of the Statement of Claims filed by Respondent No.3 itself shows that there is a categorical admission therein that the charter of demands covering the issues in the adjudication was raised/served only on 26.03.1978 on the Petitioner. Further, the learned counsel for the Petitioner also submitted that the learned Labour Court also failed to appreciate that the real and substantive reason for which the members of Respondent No.3/Union were engaged and were performing its functions were of supervisory, administrative, directional and controlling in nature. He submitted that whatever clerical duties they performed were negligible.

20. He further submitted that this Court in the matter of Food Corporation of India v. K.K. Sharma and Ors. in W.P.(C) No 1041/1982 considered the very same job description as contained in Exhibit M-1 in the present case. After considering the same, this Court held that the Assistant Manager was employed in a managerial or administrative capacity and hence cannot be considered as an employee under the Payment of Gratuity Act,

1972. Learned Labour Court vide the Impugned Award in the present case has held that the very same job description does not show that they are performing jobs of managerial nature but only some elements of supervision is there. He submitted that this finding is liable to be set aside as being contrary to the aforesaid Judgment of this Court and on account of being perverse. Further, learned Labour Court also committed a jurisdictional error in concluding merely because the booklet mentions that the job description can be supplemented/amended, the duties mentioned therein are neither actual nor exhaustive and cannot be taken to be forming part of the terms and conditions of employment of „Assistant Managers‟.

21. Mr. Pudussery further submitted that the learned Labour Court has also committed gross error in ignoring Exhibit M-1, the booklet containing the job description which was the only primary source of evidence before it on the issue. The finding of the learned Labour Court that „Assistant Managers Depot‟ are „workmen‟ is based on the bald and self-supporting testimony of some Assistant Managers while evidence to the contrary has been ignored. Further, he submitted that in terms of the law settled, the burden of proof is on Respondent No.3 to establish that „Assistant Managers‟ are „workmen‟ within the meaning of Section 2(s) of the I.D. Act. It is his contention that other than the oral testimony of some interested witnesses, no evidence was led to establish that the Assistant Managers were performing manual, unskilled, skilled, technical, operational, clerical work. Since there is no evidence to show that they are performing manual, unskilled, skilled, technical, operational or clerical work, the Impugned Award is liable to be set aside on this ground alone.

22. The other reason given by the learned Labour Court for holding that Assistant Managers in Category II are workmen is that in a circular dated 08.03.1984 (Ex. MW3/1), Category I employees are termed as “officers” while Categories II and III are called “officials”. It is submitted that the finding of the learned Labour Court that the difference in terminology of two sets of employees makes it abundantly clear that the Petitioner/Management has been clubbing Assistant Managers with class III employees meaning thereby that the Petitioner itself has not been treating them as “officers”. With regard to the same, learned counsel for the Petitioner submitted that the dictionary meaning of both the words “officers” and “officials” is same.

23. Even otherwise, from the perusal of the order of the Hon‟ble Supreme Court in Food Corporation of India Staff Union v. Food Corporation of India & Ors. in Civil Appeal No. 2336 (NL) of 1985 with W.P (C) 534 of 1985, it can be seen that even Respondent No.3/Union has taken a stand that only Category III and IV employees were entitled to vote in the elections for assessing the representative character of the Unions. Thus, the Union is estopped from taking the stand that Category II employees are also workmen.

24. He furthered his submissions by submitting that Respondent No.3/Union had also only been espousing the causes of Category III and IV in the matter of wage revision and not of Category II employees in FCI. The claim of selection grades from the past date is not permissible, as the claim has already been settled under the memorandum of settlement and the benefit has already been granted to Respondent No.3/ Union in respect of selection grade to the category –III & IV employees. He further submitted that in fact the major staff unions including Respondent No.3 had signed the settlement with the Management/Petitioner on 06.11.1992 under Sections 2 (P) & 18 (1) of the I.D. Act as amended and the said settlement inter alia provided the clause of selection Grade Scheme to Category III & IV employees to be introduced w.e.f. 01.12.1987 for all the category III & IV employees. As regards Selection Grades to Category-II, the Petitioner/Management introduced the scheme for Assistant Managers, now Managers w.e.f. 13.08.2001 onwards.

25. The learned counsel for the Petitioner further submitted that during the pendency of the present Writ Petition, the Respondent No.3/Union, in exercise of the powers conferred under Section 45 of the Food Corporation Act, 1964 (37 of 1964) and with the previous sanction of the Govt. of India, re-designated the existing post of “Assistant Manager” to “Manager” by making suitable amendments in the Food Corporation of India (Staff) regulations 1971, published in the Gazette of India extraordinary Part-Ill, Section-IV, New Delhi, dated 29.10.2005.

26. It is his submission that the Assistant Managers (Category II officers) constitute more than 85% of the sanctioned strength of the managerial work force (Category I & II) to manage nearly 34,000 staff workers (Category III and IV). Further, pay revision of Assistant Managers (now re-designated as Mangers) is carried out as per DPE Guidelines along with Category I officers whereas wage revision of unionized employees (Category III & IV) is done through settlements with Staff Unions. The very fact that Category II employees are included along with Category I means that in the PSUs under the Central Government, Category II employees are considered as being in the Managerial/Administrative Cadre. It will be rather odd if one Cadre out of the 6 Cadres of Managers in FCI are treated as „workmen‟. Further, despite not being unionized employees for the purpose of wage revision, the Assistant Managers participate in union activities like strike etc. on the strength of Impugned Award which severely disrupts food distribution and jeopardizes the interests of below poverty line families and farmers, who depend on Respondent No.3 for their life and livelihood.

27. Further it may be submitted that with a view to mitigate the stagnation and as a part of man power management a Career Progression Scheme was introduced in consultation with the Staff Unions. It was under the said Career Progression Scheme (CPS) that administrative orders had been issued in some cases with a stipulation that the promoted employees may have to discharge the job responsibilities without link to the cadre/grade. Howbeit, this does not absolve or dilute the job responsibilities of the Manager (Category-II) who are working in the Junior Management position, but who may have to discharge the duties of the lower grade at times.

28. Learned counsel for the Petitioner assertively submitted that the powers to appoint, transfer, initiate disciplinary proceedings etc. are vested in holder of only a very few posts viz. Divisional Manager, General Manager (Region), Executive Director (Zone) and Managing Director while the other officers occupying even the senior most positions in the cadres of Accounts, Legal, Engineering, General Administration etc. posted in different branches including Headquarters do not enjoy such powers. Ergo, a manager cannot claim to be a „workman‟ merely on the ground of not being vested with the above powers. Hence, the Impugned Award is liable to be quashed and set aside on the ground of being perverse as there is no evidence led before it as to the nature of jobs being performed by Assistant Managers Depot.

29. Learned counsel for the Petitioner further bolstered its submissions by relying on the judgments in Kirloskar Brothers Ltd v. Presiding Officer reported as ILR (1976) 1 Delhi 565, Burmah Shell Oil Storage and Distribution Company of India Ltd v. Burmah Shell Management Staff Association reported as (1970) 3 SCC 378, M/s Ircon International Ltd. v UOI reported as 2015(6) AD Delhi 375, GM Electrical Rengali HEP Orissa v. Giridhari Sahu & Ors. reported as (2019) 10 SCC 695, H.R. Adyanthaya v. Sandoz (India) Ltd., reported as (1994) 5 SCC 737, Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh reported as (2005) 3 SCC 232.

SUBMISSIONS ON BEHALF OF RESPONDENT NO.3

30. Mr. Bahar U. Barqi, learned counsel for Respondent No.3 while relying on the Impugned Award submitted that there is no perversity in the findings of the learned Labour Court as it is based on appreciation of evidence. Further, he submitted that the learned Labour Court has categorically dealt with the evidence led by the parties. It has returned its findings that the pamphlet (Exhibit M-1) relied upon by the Petitioner/Management was not exhaustive in describing the duties of Assistant Manager and Supervisor, hence, the findings were returned as such. Further, even the cross-examination conducted by the Petitioner/Management against the Workman Witnesses/Respondent No.3 could not demolish the case of Respondent No.3. Relevant part of the findings of the learned Labour Court is reproduced hereinbelow for reference: “...On the other hand the workman have led evidence to prove that the Assistant Managers are not performing any administrative or managerial functions. WW[2] Shri M.M. Bakshi who is a Assistant Manager stated that he had no managerial powers in respect of appointment, discharge, dismissal or disciplinary action. He had no financial or administrative powers. He had no transfer powers about the staff. He was doing the same job which Assistant Grade - I Deport and Assistant Grade - II Depot are doing in their depots with lesser capacity. He did all ministerial and clerical work himself and had no steno. This statement of the witness has gone unchallenged. In his cross examination it was elicited that from Assistant Grade II to I is promotion and similarly from Assistant Grade I to Assistant Manager is a promotion. The fact that it is a promotion from Grade 1 to Assistant Manager Depot does not mean that the Assistant Manager had acquired administrative and managerial functions. It was got elicited from WW[3] R.S. Dhull that his casual leave was sanctioned by the Assistant Manager.........Taking into consideration all the facts and circumstances, I have no hesitation in holding that the Assistant Manager Depot employed in the FCI answer the description of Workmen as defined in Section 2(s) of the I.D. Act. Hence this issue is answered against the Management.” Hence, it was proved from the side of the Respondents that the Assistant Managers were not, in fact, performing any administrative or managerial functions.

31. Learned counsel for Respondent No.3 on another point regarding grant of selection grade submitted that the learned Labour Court rightly held that Assistant Managers were not discharging any managerial functions. Taking into consideration, the total job description and the work performed by the Assistant Managers in view of the evidence led by Respondent No.3, it was rightly held by the learned Labour Court that Assistant Managers were not performing any supervisory function. He further also substantiated his arguments by relying on the order of the Single Bench of this Hon‟ble Court dated 05.08.2011.

32. Further, learned counsel for Respondent No.3 argued that the members of Respondent No.3/Union privy to the present dispute are covered under the definition of „workman‟ under Section 2 (s) of the I.D. Act. With regard to that, he submitted that the broad attributes regarding being a workman, is the dominant purpose of his duties are to be taken into consideration and not his designation of the post. Furthermore, he also submitted that in judging the nature of duties, it is to be further seen as to whether his decisions can be supervisory, directory or administrative in nature which may bind the establishment/management especially any disciplinary action or financial sanctioning or any transfer or punishment including suspension, termination or removal from service.

33. To buttress his argument further, learned counsel for Respondent No.3 relied upon Dunlop (India) Ltd v. Delhi Administration reported as 1973 LAB I.C. 640 (V 6 C 144), Bharat Kala Kendra Pvt Ltd v. R.K. Baweja reported as 1981 LAB I.C. 893, Sharad Kumar v. Government of NCT of Delhi reported as AIR 2002 Supreme Court 1724, Anand Regional Co. Opposite Party Oil S. Union v. S. Harshadbhai Shah reported as 2006 (7) SCALE, Muralidharan K v. Management of M/s Circle Freight Intl reported as 2007 (96) DRJ 14, Ranbaxy Laboratories Ltd v. State of West Bengal reported as 2014 LAB I.C. 362.

34. Learned counsel for Respondent No.3 lastly submitted that it is settled law that the scope of Article 226 & 227 of the Constitution of India relating to Section 2(s) of the I.D. Act is that Writ Court cannot interfere with the findings of whether an employee is a workman or not unless the findings are vitiated, suffer from the error apparent on the face of record or perverse. With regard to the same, he referred to the decision of the Andhra Pradesh High Court at Hyderabad in Coromandal Fertilizers Ltd. Vizagapatnam v. P. Venugopal & Ors. reported as Writ Petition No. 11548/84.

LEGAL ANALYSIS

35. This Court had heard the arguments advanced by the learned counsels for both the parties and perused the documents on record and Judgments relied upon by the parties.

36. The only issue which requires adjudication is whether the Assistant Managers can be treated as Workmen for the purpose of I.D. Act and if the answer is yes, whether they are entitled for the selection grade w.e.f 01.11.1971 or not.

37. There are mainly 3 reasons on the basis of which the learned Labour Court rendered a finding that „Assistant Managers Depot‟ employed in Petitioner/Management are „workmen‟ under Section 2 (s) of the I.D Act. i. The job description filed before the learned Labour Court by the Petitioner/Management (Exhibit M-1), was printed in the year 1975 and hence the learned Labour Court held that the said document would not apply to the demands raised by the Respondent No.3/Union which allegedly were raised in the year1973. ii. Based on the evidence adduced by the parties, the learned Labour Court held that the Assistant Managers are not performing any administrative or Managerial functions. iii. The difference in the terminology used as „Officers‟ and „Officials‟, of the two sets of employees (Category I and Category II & III respectively) in the circular letter dated 08.03.1984 makes it abundantly clear that the Management itself has not been treating Category II Assistant Managers as „Officers‟.

38. Before adverting to the rival contentions of the parties, it is expedient to expound Section 2(s) of the I.D Act, which reads as under:

39. The perusal of the definition of „workman‟ indicates that a person would come within the purview of Section 2(s) of the I.D. Act if he is employed in an industry and performs any manual, unskilled, skilled, technical, operational, clerical or supervisory work. Further, the definition also indicates exceptions as to when a person would not be covered in the aforementioned definition. It inter alia states that a person would not be covered under the definition if (i) he is employed in a managerial or administrative capacity or (ii) 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.

40. Now in the present case, this Court would like to deal with the reasons given by the learned Labour Court one by one.

41. The job description filed by the Petitioner/Management was printed in the year 1975 and would not apply to the demands raised by Respondent No.3/Union which allegedly were raised in the year 1973. Relevant part of the Impugned Award is reproduced here for reference: “It is the contention of the Management that category II employees representing the Assistant Manager and Supervisors do not answer the description of the word ''workman" as defined in clause 's' of section '2' of the Act. The Management has placed on record a pamphlet Ex.M-1 showing the Job description of various categories of employees including the Assistant Managers. The Union has taken objection to this Pamphlet as having been brought forth unilaterally because it was not in exercise in 1973 when the demands were raised by the Union. There is some force in this objection of the workmen because as the management in its written statement has taken the stand that the job description was issued and the same was submitted before the Bajpai Committee which was set up in the year 1976. The Pamphlet Ex.M-1. itself shows that it was printed in May, 1975 or there abouts. Even this pamphlet contains an article which goes to show that the status of Assistant Manager was subject of dispute. The Management has not been able to show that the Job description as contained in Ex. M-l were actually communicated to any of the Assistant Managers. Even the duties and functions enumerated in this job prescription do not go to show that the Assistant Managers performing functions mainly of managerial nature. Some elements of supervision in the duties and functions would not convert them into functions mainly of managerial nature. Even the introduction which serves as a prologue to it in Ex.M-l, reveals that the alleged duties and responsibilities are illustrative and only broadly defined. It further says that the officers in the headquarters as well as other officers may, “supplement/amend these job descriptions to suit the requirements of work. This means that the alleged responsibilities and duties were neither actual nor exhaustive and these could be supplemented at the sweet will of superior officers. Hence the job description as contained in Ex. M-l cannot be taken as forming part of the terms and conditions of employment of Assistant Managers…”

42. The Petitioner Management had placed on record Exhibit M-1, the job description of Assistant Managers. The burden is on the Respondent to prove that they were doing different work than what is explained in the job description. The Respondent failed to provide any evidence to prove this fact. The learned Labour Court ought to have appreciated that the date of printing of the pamphlet is not important, the actual job performed by the Assistant Manager is more important.

43. It is necessary to peruse the job description in order to understand the nature of work performed by the Assistant Managers. “The duties of Assistant Managers” Generally, the duties and the powers enjoyed by the Assistant Managers are as under: General: Applicable to all Assistant Managers irrespective of their Cadre.

(i) The Assistant Managers are competent to grant casual leave to the employees working under them. (ii)They make the performance appraisal of the Categories III and IV staff working under them, (iii)They scrutinise the incoming and outgoing communications, distribute them with directives wherever required to personnel subordinate to them for action.

(iv) They have to allocate work to their subordinates and ensure proper coordination in their work.

(v) They guide and advise the personnel working in their sections.

(vi) They check registers and records maintained in the section to ensure proper maintenance. (vii)Perform house-keeping functions such as estimating a section's inventory needs. (viii)They ensure maintenance of up-to-date reference books, office orders, guard files etc. (ix)They maintain disciplinary control over their subordinates" check attendance and to ensure that due output is given by all concerned.”

44. A perusal of the duties performed by the Assistant Managers shows that they are of diverse nature and include not only granting casual leave to employees but also making a performance appraisal of staff working under an Assistant Manager. It also shows that an Assistant Manager is also required to allocate work to his subordinates and ensure cooperation in their work. He is also required to guide and advise personnel and maintain disciplinary control over his subordinates. It is also relevant to mention that the perusal of the job description (Exhibit M-1) shows that Category II Assistant Managers had all along been exercising Managerial, Administrative and Supervisory duties.

45. Further, this Hon‟ble Court examined the identical issue in the matter of Food Corporation of India v. K.K. Sharma and Ors. in W.P(C) No.1041 of 1982 and held that an Assistant Manager was not an employee under the Payment of Gratuity Act, 1972 and that he is employed in a managerial or administrative capacity. The relevant portion reads, inter alia, as follows: “A perusal of the duties performed show that they are of a varied nature and include not only granting casual leave to employees but also making a performance appraisal of staff working under an Assistant Manager. An Assistant Manager is also required to allocate work to his subordinates and ensure cooperation in their work. He is also required to guide and advice personnel and maintain disciplinary control over his subordinates. In addition to supervision of accounts, he is also required to give financial advice, control budget allocation and exercise observance of financial discipline in a District Office. The duties of an Assistant Manager, as reproduced above, clearly show that it is not as if his function is only supervisory in nature. He is clearly more of a manager than a supervisor and it is difficult to uphold the view of the authorities under the Act that no managerial functions were performed by the Respondent. The duties reproduced above speak for themselves. Under the circumstances, the impugned orders are set aside and it is held that the Respondent was working in a managerial capacity while functioning as an Assistant Manager and as a Senior Assistant Manager with the Petitioner.”

46. Learned Labour Court based on the evidence led by the workmen, held that the Assistant Managers are not performing any administrative or managerial functions. Relevant part of the Impugned Award is reproduced hereunder: “…On the other hand the workmen have led evidence to prove that the Assistant Managers are not performing any administrative or managerial functions. WW[2] Shri M.M. Bakshi who is a Assistant Manager stated that he had no managerial powers in respect of appointment, discharge, dismissal or disciplinary action. He had no financial or administrative powers. He had no transfer powers about the staff, he was doing the same job which Assistant Grade I Depot and Assistant Grade II Depot are doing in their depots with lesser capacity. He did all ministerial and clerical work himself and had no steno. This statement of the witness has gone unchallenged. In his crossexamination it was elicited that from Assistant Grade II to I is promotion and similarly from Assistant Gr. I to Assistant Manager is a Promotion. The fact that it is a promotion from Gr.I to Assistant Manager Depot does not mean that the Assistant Manager had acquired administrative and managerial functions. It was got elicited from WW[3] R.S. Dhull that his casual leave was sanctioned by the Assistant Manager. It has been contended by the Union that the Management played mischief by putting these questions to Shri R.S. Dhull who was not an Assistant Manager and did not put any such question to WW[2] M.M. Bakshi, and WW[5] Shri Wanjani Narain who were actually functioning as Assistant Managers and were in a better position to answer this question. Shri M.K. Raghupati WW[1] the President of the Union has categorically stated that the Assistant Managers cannot sanction casual leave and this statement of the witness has gone unchallenged. WW[5] Shri Wanjani Narain has also stated that although he is an Assistant. Manager he has no administrative or financial duties and he has no managerial power. The delegation of powers of the management is only to the Deputy Manager and above and not to officers lower down…”

47. As observed by the learned Labour Court, WW-3, Sh. R.S Dhul, who was working as an AG-II categorically stated that his casual leaves were sanctioned by Assistant Managers. WW-3 was the Respondent‟s witness. Shri M.K. Raghupati, WW-1 was the President of the Union and hence he has no first-hand information regarding the duties performed by the Assistant Managers. Sh. R.S Dhul was Respondent‟s Witness and was working as AG-II. He was deposing based on his personal knowledge. This Court finds Sh. R.S Dhul‟s evidence more reliable than WW-1.

48. From the precedents cited by the Petitioner/Management, it is seen that Hon‟ble Supreme Court in the matter of Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh, reported as (2005) 3 SCC 232 summarizes the ambit of a „workman‟ under Section 2 (s) of the I.D. Act.

50. There is one more aspect which is necessary and has been categorically seen that the Assistant Managers are in Category II and performing managerial functions. Even if they are held to be supervisory jobs since they were drawing salaries exceeding Rs. 10,000/- per month they were not part of the definition of „workman‟ under Section 2(s) of the I.D. Act. The ceiling of wages prescribed from time to time under the I.D. Act and the salaries of the Managers are reproduced hereunder: Year Monetary ceiling of Workmen Salaries of Managers 1988 Rs.1600/- Basic pay of Rs. 2000/- in the CDA pattern of Pay scale plus Other allowances. 2021 Rs.10,000/- Basic pay of Rs. 40,000/- plus Other allowances.

51. Learned Labour Court observed that from the difference in the terminology used as „Officers‟ and „Officials‟, of the two sets of employees (Category I and Category II &III respectively) in the circular letter dated 08.03.1984 makes it abundantly clear that the Management itself has not been treating Category II Assistant Managers as „Officers‟. Relevant part of the Impugned Award is reproduced hereunder for reference: “…The Union has placed on record a document Ex.MW3/l which is a circular letter dated 8th March, 1984 pertaining to delegation of powers regarding hiring of office accommodation. An extract from this circular is reproduced below: S.No. Cat. of officers Entitlement of office space

1. Managers &Above 240 sq.ft.

2. Regional Managers 175 sq.ft.

3. Cat.I Officers other than R.Ms. 150 sq.ft.

4. All other Cat. II & III officials (excluding class IV employees). 40 sq. ft. A perusal of this letter makes the difference of terminology conspicuous. The category I employees are called officers, while for the employees of category II and III the terminology used is "Officials''. This difference in terminology of the two sets of employees makes it abundantly clear that the Management has been clubbing Assistant Managers with class III employees meaning thereby that the Management itself has not been treating them as officers….”

52. From the perusal of the Concise Oxford English Dictionary submitted by the learned counsel for the Petitioner, it is seen from the dictionary meaning of both “officers” and “officials” is the same. The word “Officer” has been defined as a person holding a public office or having official duties while an “Official”, has been defined as a holder of a public, civil or ecclesiastical office. Hence, this Court is of the opinion that this finding of the learned Labour Court needs to be repelled.

53. Respondent No.3 has also placed reliance on the order of this Hon‟ble Court dated 05.08.2011 vide which the present writ petition was dismissed on merits. This Court is of the view that the reliance of Respondent No.3/Union is misplaced. The Hon‟ble Division Bench vide order dated 16.07.2015 in LPA 697 of 2012 had set aside the order of the learned Single Judge dated 05.08.2011 and remanded back for fresh adjudication. Further, order dated 16.07.2015 was upheld by the Hon‟ble Supreme Court in SLP (C) 30357 of 2015. While passing the order dated 05.08.2011, no assistance was provided to the learned Single Judge as none appeared for the parties. However, learned Counsel for the parties assisted this Court in understanding the real controversy between the parties. In order to bring the subsequent developments, the Petitioner placed on record additional Affidavit with the permission of this Court. Hence, this Court is entitled to examine the present matter afresh.

54. On the conspectus of the decisions and material on record and in the absence of the fact that Respondent No. 3 had not disclosed anywhere the true nature of duties performed by the Assistant Managers, this Court would like to hold that Category II Assistant Managers are not „workmen‟ within the meaning of Section 2 (s) of the I.D. Act. Further, nature of duties as mentioned in the Job description (Exhibit M-1), it is clear that the dominant nature of the work of the Category II Assistant Managers was managerial in nature. From the above discussion, it is apparent that the learned Labour Court has erred in its finding while reaching to the conclusion that „Assistant Manager Depot‟ was workman.

55. Learned Counsel for the Respondent has raised an objection that the decision of the learned Labour Court is based on an appreciation of evidence and finding of fact. Even if that finding is incorrect this Court cannot interfere with the decision under Article 226 of the Constitution.

56. The law regarding jurisdiction of the High Court to interfere with decisions of Tribunals in exercise of jurisdiction under Article 226 & 227 of the Constitution is now well-settled. This Court in the matter of Delhi Transport Corporation v. Delhi Administration, reported as 1973 (1) Delhi 838 (2), after a very exhaustive review of the case law held as under: “Held, that here is a difference between the scope of the judicial review of jurisdictional finding of fact and a finding of fact on the merits of the case. While the former is fully reviewable, the review of the latter is a restricted one. The finding of the Labour Court that an Industrial Dispute existed though one of fact, is one of jurisdictional fact. In reviewing such a finding, the High Court can arrive at an independent conclusion. But in reviewing of a fact within the jurisdiction of a quasi-judicial tribunal the High Court cannot arrive at an independent conclusion as to it. Thus a finding of fact on the merits of the case would be reviewable if it is either baseless i.e. not supported by any evidence at all, or is perverse, i.e. is such as not reasonable person would arrive at. If it is neither, then it cannot be reviewed.”

57. In the present case, the Petitioner has raised an objection to the jurisdiction before the learned Labour Court. Hence, there cannot be any doubt that the finding of the learned Labour Court is subject to judicial review as that finding raises the basic question of the jurisdiction of the learned Labour Court to adjudicate upon the dispute referred to it or one may say the very basic question as to whether the reference to the learned Labour Court is at all an „industrial dispute‟ within the meaning of the I.D. Act. To answer this question, it is imperative for this Court to appreciate the meaning and scope of Section 2(s) of the I.D. Act and the evidence adduced by the parties to prove that the concerned workman is covered within the meaning of Section 2(s) of the I.D. Act. This Court, therefore, negative the objection raised on behalf of Respondent No.3 as to the maintainability of the petition.

58. In view of the detailed discussions held herein above, this Court is of the considered view that Category II Assistant Managers are not „workmen‟ within the meaning of Section 2 (s) of the I.D. Act and hence the Industrial Tribunal has no jurisdiction to issue any directions qua their service conditions. In view thereof, the direction issued by the learned Labour Court for the grant of the selection grade to the Category-II employees of the Petitioner Management are hereby set aside. The other directions issued by the learned Labour Court are already resolved by the parties themselves. This Court appreciates the efforts made by both the sides to resolve their disputes amicably and upholds the same. This Court is not inclined to interfere with the decision of the parties regarding these aspects and learned Labour Court‟s directions which are not inconsistent with the settlement between the parties are hereby set aside. With these observations, the present writ petition is disposed of. No order as to costs.

GAURANG KANTH, J. DECEMBER 12, 2022