ORDER
R.M. Lodha, J.
1. The only question raised in the present writ petition and that needs consideration is: whether the petitioner John Joseph Khokar is a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947.
2. The said question arises from the facts which briefly stated are: The petitioner was appointed in the Mazgaon Dock Limited, a company registered under the Companies Act having its factory at Dockyard Road, Mazgaon, Bombay --- 2nd Respondent on 10th April, 1968 as Fitter-Weapon in the Weapon and Electronic Department. On 1-2-1970 he was promoted as Weapon Mechanic Grade II. He was then promoted as highly skilled employee on 1-6-72. Further promotion was accorded to the petitioner on 2-12-1975 in Special Marine Grade and thereafter as Mistry on 1-6-1976. The next promotional post from Mistry is Charge hand and Petitioner alleges that one post of Charge hand fell vacant on 1-4-86. On 19-11-87 Shri K.D. Lodh, the 3rd respondent waspromoted on the post of charge hand w.e.f 1-12-86 though according to petitioner, the respondent No. 3 was much junior to him and was also promoted as Mistry much later than him. The Petitioner filed the complaint before the Industrial Court, Mumbai under Item-9, Schedule-IV, of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('MRTU & PULP ACT') challenging the said action of respondent No. 2 and it was prayed that it be declared that the 2nd respondent herein has indulged in unfair labour practice and may be directed to promote the Petitioner to the post of charge hand in Weapon and Electronics Department w.e.f. 1-12-1986. The said complaint was contested by the Respondent No. 2 herein and one of the objections raised was that petitioner was not workman within the meaning of section 2(s) of the Industrial Disputes Act since he was doing supervisory work and holding supervisory post and, therefore, complaint was not maintainable and petitioner was not entitled to any relief in the complaint. After recording the' evidence the Industrial Court was persuaded by the objection raised by the respondent No. 2 herein and it held that petitioner was not workman, though on merits it held that the petitioner was senior most employee and his name was also recommended by departmental head to the authorities for giving promotion to him; but since petitioner was not held workman the complaint was dismissed.
3. Mr. Vaidya, the learned Counsel for the petitioner stoutly urged that on the basis of the evidence on record it was clear that Petitioner was technical hand and he was engaged as Mistry in Weapon and Electronics Department and with the help of the workers he used to do the job of installation of weapon equipments in various shifts and , therefore, he was workman under section 2(s) of the I.D. Act, 1947. In support of his contentions Mr. Vaidya relied upon the judgments of the Apex Court in National Engineering Industries appellant v. Shri Kishan Bhageria & Ore. respondents, (1988) 1 C.L.R. 290, and Arkal Govind Raj Rao and Ciba Geigy of India Ltd., Bombay : (1985)IILLJ401SC . He also relied upon the judgment of the learned Single Judge of this Court in Inter Globe Air Transport, A Division of Inter Globe Enterprises (Private), Ltd. and Smt. Leela Deshpande and another, : 1994(2)BomCR596 .
4. Mr. Rele, on the other hand, the learned Counsel appearing for 2nd respondent vehemently opposed the submissions of the learned Counsel for the petitioner and urged that on the face of the averments made in the complaint, the petitioner cannot be said to be workman. He referred to the complaint extensively wherein petitioner pleaded that he was doing supervisory job. He also urged that from the evidence led by the petitioner as well as 2nd respondent, it was clearly established that petitioner was not a workman and he was engaged in supervisory job. Mr. Rele, thus supported the reasoning given by the Industrial Court and to butress his argument relied upon two Division Bench judgments of this Court viz. Vinayak Baburao Shinde, petitioner v. 1. S.R. Shinde & ors. respondents, (1985) 1 C.L.R. 318, and, Bombay Dyeing and . and R.A. Bidoo and another, : (1990)ILLJ98Bom .
5. Section 2(s) of the I.D. Act, 1947 defines workman which reads thus:
'Section 2(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 or implied, and for the purpose 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, discharged or retrenchment has led to that dispute, but does not include any such person :-
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 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 one thousand six hundred 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.'
6. Under section 2(s), an employee who is employed in supervisory capacity and draws wages exceeding Rs.1600/- p.m. is excluded from being workman. Admittedly, the petitioner at the relevant time was drawing wages of Rs. 2500/- p.m., obviously exceeding Rs.1600/- p.m. and, therefore, the crucial question is whether the petitioner was engaged in supervisory work as Mistry with the 2nd respondent.
7. In All India Reserve Bank Employees Association and another v. Reserve Bank of India and anothers, : (1965)IILLJ175SC , the Apex Court was dealing with definition of workman in section 2(s) and while construing the word 'supervise' observed that the word supervise and its derivatives are not of precise import and most oftenly construed in the light of the context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and super intendance of the manual work of others.
8. In Burma Shell Oil Storage and Distribution Co. India Limited v. Burma Shell Management Staff Association and others, : (1970)IILLJ590SC , the Apex Court considered the question whether transport engineers in Burma Shell Oil Storage and Distribution of India Limited were workmen or not and held that main work done by the employee should be held to be work done by him to find out whether he is workman or not. The ratio of the judgement is succinctly expressed in the headnote of the report which reads thus :
'A person cannot be assumed to be a workman on the ground that he does not come within the four exceptions in section 2(s). The specification of the four types of work in the definition in section 2(s) obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who, not doing any such work, would be out of the scope of the word 'workman' without having to resort to the exceptions.
In practice, quite a large number of employees are employed in Industries to do work of more than one of the kinds mentioned in the definition. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of 'workman' under the exceptions. For this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even, though he may be incidentally doing other type of work.'
9. The Apex Court in National Engineering Industries v. Shrikrishna Bhageria, (supra) was seized of the question whether an internal auditor working in the company was a workman or not and after considering his main duties and the work it was held that he was not doing any kind of supervisory work. It was held that since the employee had no independent right or authority to take decision and his decision didnot bind the company and, therefore, on the basis of the evidence on record the conclusion reached by the Labour Court that he was a workman and not a supervisor affirmed by the Division Bench of the High Court did not require any interference.
10. An employee who does multifarious duties, is a workman or not, was the question raised in Arkal Govind Raj Rao (supra) and the Apex Court held that the Court must find out the primary and basic duties of the person concerned and if he is incidentally asked to do some other work which may not necessarily be in tune with the basic duties, then these additional duties cannot change character and status of the employee. The Apex Court thus highlighted dominant purpose of employment and ruled that that must be first taken into consideration and the gloss of some additional duties must be rejected while determining the statues and character of the person. It was thus ruled that the test is what is primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed, a few extra duties were hardly be relevant to determine the status and the words like managerial or supervisory may have to be understood in their proper connonation.
11. In Vinayak Baburao Shinde, the Division Bench of this Court observed that the word 'superwise' means to oversee i.e. to look after the work done by other persons, and, the word 'supervision' occuring in section 2(s) of the I.D. Act means supervision in relation to the work or in relation to the persons. According to Division Bench, the essence of the supervision consists in overseeing by one person over the work of others and this also involved power in the person overseeing to direct and control the work done by the persons over whom he was supervising.
12. In Inter Globe Air Transport, the learned Single Judge of this Court was dealing with the case of the employee who was designated as Regional Sales Manager. Looking to her predominant duties which consisted of booking of air tickets and other incidental jobs such as maintenance of lists, typing on computers, visiting travel agents, distributing time-tables and faresheets, taking on reservations, making reservations, delivering tickets, getting visas, dispatching greeting cards, etc., this Court held that the employee was workman and the mere fact that some control over other clerks was given would not change the position of clerk to that of supervisor or Manager irrespective of her designation.
13. The position that emerges from the aforesaid discussion is that in determining the question whether a person employed by the employer is workman under section 2(s) of I.D. Act or not, the Court has principally to see main or substantial work for which the employee had been employed and engaged to do. Neither the designation of the employee is decisive nor any incidental work that may be done or required to be done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employee over the employees of the lower ladder without any control may not by itself be sufficient to bring that employee in the category of supervisor, yet if the principal job of that employee is to oversee the work of employees who are on the lower ladder of the hierarchy and he has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. Each case would depend on the nature of the duties predominantly or primarily performed by such employee and whether such function was supervisory or not would have to be decided on facts keeping in mind correct principles. Where the employees possesses power of assigning duties and distribution of work such authority of the employee may be indicative of his being supervisor doing supervision. In a broad sense supervisor is one who has authority over others : Someone who superintends and direct others. An employeewho in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it correctly in accordance with norms shall certainly be a supervisor. A supervisory work may be contradistinguished form Managerial and administrative work and, so also a supervisor from manager and administrator. Supervisor's predominant function is to see that work is done by the workers under him in accordance with the norms laid down by the management; he has no power to take any disciplinary action.
14. Reverting to the facts I find that it is petitioner's own case in his complaint that as Mistry he is supposed to in fact supervise all the work done by 29-30 workmen employed in the Weapon and Electronics Department. That supervisory work, according to him, is done by him alongwith one charge hand and one more rnistry. In his complaint, therefore, a clear case is made out that he is discharging the duties of supervisor and is engaged for supervising the work of other workmen. In his affidavit also he has deposed to that effect that he alongwith one charge hand and one more mistry is required to supervise the work done by 29-30 workmen employed in that department and he does in fact supervise all the said workmen. In cross examination he admits that his job is to allocate work to the workmen given under him and to get the work done from them. He has also admitted that workmen given to work under him are allotted different works by him in connection with weapon instalment in the shifts. He has to see that job allocated to workmen are done by them. He also admits that whenever overtime is required to be taken form workmen he takes the decision as to who among the workers should be asked to do overtime. Much capital was sought to be drawn by the learned Counsel for the petitioner from the statement made by him in his cross examination that as Mistry in Weapon Mechanical Department with the help of workers under him he has done installations of weapon equipments in various shifts and in that context it is urged by the learned Counsel for the petitioner that the petitioner is workman. I am afraid the inference drawn by the learned Counsel for the petitioner from this statement in cross-examination is of no help on the face of clear admissions made by him which refer to his predominant duties and functions that he was doing supervisory job and supervising work of 29-30 workmen in the department; the allocation of work to the workmen is done by him and also do decide who of the employees should be given overtime. The job specifications of Mistry has been placed on record by the 2nd respondent and from the said job specifications it is seen that he instructs workmen wherever necessary on the correct method of carrying out the specific jobs and if necessary may demonstrate such methods. He follows up all jobs under his charge and ensures that work progresses satisfactorily. He also ensures that the correct tools and material are available to the workmen under him as required and that work is being carried out by them correctly according to his instructions. He inspects completed work and work in progress to ensure that his instructions are being carried out and that work is correct to the specifications. Obviously therefore petitioner's job is to oversee the work of the workmen under him. In other words, he supervises the work done by the other workmen and the duties and functions of the petitioner is that of supervisor. In this view of the matter, the finding recorded by the Industrial Court that petitioner is not workman cannot be faulted being based on proper appreciation of evidence on record and upon application of correct principles of law warranting no interference by this Court in extraordinary jurisdiction.
15. Writ petition accordingly has no merit and is dismissed. Rule is accordingly discharged. No costs.
16. Petition dismissed.