R.P. Sethi, C.J.
1. The purpose and object of the Industrial Disputes Act, 1947, (hereafter called 'the Act') has successfully been frustrated by the appellant by having resort to technicalities of law and procedural wrangles. The respondent has been subjected to uncalled for litigation for over a period of 17 years. All efforts have been made by the appellant-employers to force starvation upon the respondent and thereby deprive him of the benefits of the orders or award passed in his favour, though after protracted litigation. The controversy between the parties was not such which could have been permitted to prolong for a period of about two decades.
2. The only question sought to be adjudicated between the parties is as to whether the respondent, who was admittedly employed by the appellants as Geologist, was a workman or not within the meaning of Section 2(s) of the Act. Taking advantage of the loose definition of the workman it has been vehemently urged by the appellants that as the respondent was allegedly exercising supervisory powers, he could not be deemed to be a workman under the Act.
3. The facts necessary for determining the real controversy between the parties are that the respondent was appointed by the appellant as an Assistant Geologist on 2-9-1974 and was promoted to the post of Geologist thereafter. During the year 1978-79 he was held entitled to Sunday allowance, bonus and ex gratia amount as a measure of incentive. His services were terminated on 9-2-1980 on allegedly false allegations. The respondent workman raised an industrial dispute which was referred to the Labour Court vide Government Order No. SWL 300 ILD 81, dated 22-06-1981. The claim of the respondent was resisted by the appellant mainly on the ground that as he was allegedly not a workman, the Labour Court had no jurisdiction to entertain the reference or pass the award. It was submitted that the services of the respondent were terminated as he allegedly refused to attend the duties which were assigned to him and he showed disrespect to the General Manager. He was stated' to have been paid one month's salary in lieu of notice. Vide its award dated 22-12-1981, the II Additional Labour Court, Bangalore-9 allowed the reference holding that the appellant-management was not justified in terminating the services of the respondent workman. He was directed to be reinstated with continuity of service and backwages. The said order was recalled and the said Labour Court vide its subsequent award dated 29-5-1985 directed that instead of reinstatement and backwages the workman be paid a compensation of Rs. 45,000/- with costs of Rs. 100/-. Aggrieved by the said award of the Labour Court, both the workman and the management filed Writ Petition Nos. 16776 of 1986 and 12131 of 1987 which were disposed of by the learned Single Judge vide the order impugned in these appeals. The writ petition filed by the management was dismissed and the writ petition of the workman was allowed in part by modifying the award of the Labour Court directing that instead of Rs. 45,000/- he be paid a compensation of Rs. 75,000/-. The management was given the concession of making the payment of the compensation amount in two instalments, the first to be paid on or before 9-7-1995 and the balance on or before 9-10-1995. It was further directed that in case of default in the payment of amount within the stipulated time, the workman would be entitled to realize the balance amount with interest at the rate of 12% per annum from the date of the order.
4. The learned Counsel appearing for the management has referred to a number of judgments in support of her contention that the respondent-Geologist was not a workman and that the award passed by the Labour Court was without jurisdiction. It is further submitted that even if the respondent is held to be a workman, the learned Single Judge was not justified in enhancing the amount of compensation as awarded by the Labour Court.
5. Section 2(s) of the Act provides that any person employed in any industry doing any manual, unskilled, skilled, technical, operational, clerical or supervisory work is deemed to be a workman unless specifically excluded vide clauses (i) to (iv) of Section 2(s) of the Act.
6. The appellant-management being an industry is not disputed. The only question requiring determination is that as to whether the respondent Geologist could not be deemed to be a workman only because of performing technical duties which according to the learned Counsel for the appellant meant the discharge of the supervisory work.
Where the relationship of employer and employee in an industry is established, the person employed is deemed to be a workman unless found specifically excluded. The burden of proving that the person was not a workman lay upon the management when challenged in a Court of competent jurisdiction.
7. The word supervision though not defined under the Act, ordinarily means to oversee and to look after. In order to hold a person to be performing supervisory powers, it has to be established that the supervision done by such person was in a higher position over the employees in the lower position. Such supervision is the supervision of the work which is connected with the industry in question. The word supervision is not a word of precise import and has to be construed in the light of the context and the circumstances. What determines the question whether the person was discharging supervisory work or not is to be determined keeping in view the nature of duties and functions assigned to him. The essence of supervisory work is the supervision by one person over the work of others. Supervision contemplates the issuance of directions and exercise of control. The issuance of direction and the exercise of thecontrol is in relation to the man and not the machines. The determinative factor is the main duties expected to be performed by the employee and not some work incidentally done. The Supreme Court in the case of S.K. Maini v M/s. Carona Sahu Co. Ltd. and Others , has held that:
'After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned Counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straight jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in the case of Burmah Shell Oil Storage and Distribution Company of India Ltd. In All India Reserve Bank Employees' Association v Reserve Bank of India, it has been held by this Court that the word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of context for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned Counsels that the designation of an employee is not of much importance andwhat is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the concerned employee and not some works incidentally done. In other words, what is in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time does also some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in Section 2(s) of the Industrial Disputes Act'.
8. While deciding the issue pertaining to the status of the respondent being a workman, the Labour Court in its order dated 2-1-1984 referred to :-
(i) Kirloskar Brothers Ltd. v Labour Court, Delhi,
(ii) Burrnah Shell Oil Storage and Distribuation Company of India Ltd. v The Burmah Shell Management Staff Association ,
(iii) Titaghur Paper Mills Co. Ltd. v First Industrial Tribunal, West Bengal and Others, and
(iv) Ashok Leyland Ltd. v A. Vijayakumar ,
the judgments relied upon by the learned Counsel for the parties and on appreciation of the evidence led in the case concluded:--
'After location of sites the Geologist submits his report to the General Manager or the partners through the Chief Hydro Geologist. According to M.W. 1, the Chief Hydro Geologist, himself being a Geologist, heads a survey team and the work of location of sites is of a highly technical character and further the Geologist is required to interpret the data collected by the survey team. The evidence ofM.W. 1 discloses that he is an M.Sc. graduate in Geology and after initial training was promoted as a Geologist and his work consisted of location of 3 or 4 sites in any particular land for purpose of drilling bore-wells, being his technical know-how, with the assistance of instruments. The driver was only to drive and the helper, to assist the Geologist in the transportation of the instruments in the motor vehicle to the land where the sites are to be located. Therefore, the work of Sri Rajaram Bhat was technical in nature. Apart from the evidence of M.W. 1, there is no other material to show any disciplinary control exercised by the Geologist over the members of his team or sanctioning leave to them. In the case of Kirloskar Brothers Ltd., it was observed that the work of a Chartered Accountant called for creativeness, imagination and application of mind as distinguished from skilled or unskilled manual work, supervisory work and technical or clerical work. The learned Advocate for the 2nd party relied upon the definition of manager by the author in the Book 'The best of Peter Drucker' at -page 47. It appears to me that in view of the above evidence the principles in the case of Kirloskar Brothers Ltd., and also the definition of a Manager is not applicable to the facts of this case of a Geologist. In that case the work of Chartered Accountant was considered, as calling for high imagination and creativeness. In the case of Ashok Leyland Ltd., supra, an Engineering Graduate working as a developing officer was held to be a workman. In the case of Titaghur Paper Mills Co., supra, it was held that persons with technical expertise, employed in the matter of production cannot be said to be exercising supervisory work or Administrative work. In the case of Marshal Branganaza v Samant, a cameraman in motion picture industry was held to be a workman, though his work depended on special training and technical knowledge. In the case of Burmah Shell Co., supra, it was held that a person employed not to do any skilled or unskilled manual, clerical or technical or supervisory work was not a workman. It is clear from the definition of the term workman in that he answers the description of any of the persons enumerated in Section 2(s) viz., whether the nature of his duties is skilled or unskilled or technical or clerical work. To be a workman an employeein an Industry must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. Employee not required to do any one of these works does not come within the definition of a workman in Section 2(s). It is true that on the principles laid down in Burmah Shell's case, supra, that where a person was employed by reason of his technical qualifications as supervisor in the Managerial cadre or even as an Administrator, he cannot claim to be a workman because he would fall under the work of Geologist is of highly skilled and technical job which would not call for such creativeness and imagination as that of the work of a Chartered Accountant, to apply the principles in the above mentioned case of a Chartered Accountant. The evidence indicates that the report of the Geologist is sent to the General Manager or the partners through the Chief Hydro Geologist. There is also no sufficient material to show the sanction of leave by the 1st part to the helpers and drivers, and the exercise of such other managerial powers or the power to take disciplinary action. On the above evidence, it must be held that the 1st party was working in his technical capacity but not either in administrative or managerial capacity. The facts in the above case and the evidence therefore do not warrant holding that the 1st party was working in his supervisory or administrative or in his managerial capacity. The evidence does not lead to any inference that the 1st party had any disciplinary control over the helpers or drivers.
On a consideration of the above evidence I am of the opinion that the 1st party is a workman within the definition of the term under Section 2(s) of the Industrial Disputes Act'.
The aforesaid finding of the labour Court was upheld by the learned Single Judge who rightly held:--
'I also agree with the Labour Court that the employee in the case on hand is a workman and the finding of the Labour Court has only to be confirmed. M.W. 1 was examined before the Labour Court on behalf of the management which is produced as Annexure-F in Writ Petition No. 16776 of 1986. The ground on which it is contended that the workman is having a managerial orsupervisory post is that he is having under his control two drivers and helpers. There is nothing in the evidence of M.W. 1 to show that the employee in question was having a managerial or supervisory post though he is a technical person having qualification in Geology. It is evident from the evidence adduced in the case that the employee in question was not supervising the activities of the drivers or helpers but they were only assisting him in the discharge of his duties. The helpers and drivers are recruited directly by the authorities of the management and there is nothing to show that the employee in question had any Disciplinary Authority over the drivers and helpers. In these circumstances, there is absolutely no evidence to come to the conclusion that the workman in question was having any managerial or supervisory job and accordingly the finding of the Labour Court he is a workman coming within the purview of the Industrial Disputes Act has only to be confirmed'.
9. A Division Bench of Calcutta High Court in Indian Aluminium Co. Ltd. v Third Industrial Tribunal, West Bengal , while dealing with the case of a Geologist relying upon various pronouncements made by the Supreme Court and keeping in view the nature of duties performed by him found him to be a workman. We find ourselves in agreement with the findings returned and with the law laid down by the Calcutta High Court in the aforesaid case.
10. The question as to whether a particular person was a workman or not is a pure question of fact which is normally not interferred with by this Court in exercise of writ jurisdiction, unless such finding is shown to be perverse or based upon no evidence. The Supreme Court in Dharangadhra Chemical Works Limited v State of Saurashtra and Others , held that the question whether the relationship between the parties is one as of employer and employee or that of the master and servant is a pure question of fact. The decision of the Industrial Tribunal on the question of fact whether it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 ofthe Constitution unless at the least it is shown to be fully unsupported by the evidence. Where there existed material on record, on the basis of which the Labour Court could come to the conclusion that the person employed was a workman, the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution was not competent to set aside the finding of the fact recorded by the Labour Court. Mere possibility of arriving at a different conclusion was held to be no ground to interfere with the finding of fact arrived at by such Labour Court. In Andhra Scientific Co. Ltd. v A. Seshagiri Rao and Another , it was held:
'What functions were actually being performed by the employee is a question of fact and the High Court has rightly pointed out that when the Labour Court has on a consideration of the evidence come to a conclusion as regards these functions and has on the basis thereof held that the employee comes within the definition of workman in Section 2(s) of the Act, the High Court would not interfere under Article 226 except in cases where there is clear error on the face of the record. The High Court, however, proceeded to consider the evidence itself and held that the correct picture of the functions that were being performed by Shri Seshagiri Rao was afforded by Ex. A-10 in these terms:--
'Maintenance of general stores -- packing and despatching stock -- accounts and effective check over them -- stock requisitions' '.
Similarly in Hindustan Antibiotics Limited v Its Workmen , the Court declined to interfere with the findings of fact arrived at by the Tribunal constituted under the Act. There has, therefore been a consistent view of the constitutional Courts not to interfere with the findings of fact arrived at by the Boards, Courts or Tribunals constituted under the Act.
11. We have also perused the whole record including the evidence led in the case by the parties and are of the opinion that the Labour Court was justified in holding that therespondent-Geologist was a workman within the meaning of Section 2(s) of the Act. The mere fact that he was assisted by a driver or a field worker could not be termed to be amounting to changing the nature of his duties making him a person performing supervisory powers. The findings of fact arrived at is reasonable, fair and probable. Such finding cannot be termed to be either perverse or based upon no evidence.
12. We are also satisfied that the learned Single Judge was justified in enhancing the amount of compensation from Rs. 45,000/- to Rs. 75,000/- in view of the peculiar circumstances of the case and upon satisfaction that the appellant-employers had unnecessarily prolonged the litigation depriving the workman of his right to enjoy the usufruct of the award passed in his favour. It may be noticed that the award granting compensation to the extent of Rs. 45,000/- was passed by the Labour Court on 29-5-1985 which was challenged in the writ petition and the matter remained pending in the Court till 21-4-1995. Even under ordinary circumstances, the aforesaid amount of Rs. 45,000/- if deposited in a scheduled bank would have yielded benefits which if calculated in terms of money must have been more than the amount awarded by the learned Single Judge vide the order impugned in these appeals. The value of the rupee had admittedly decreased during the decade when the writ petition remained pending and the respondent workman can be presumed to have been subjected to miseries and agony on account of non-payment of the amount of compensation. The compensation of Rs. 75,000/- awarded to the workman is neither excessive nor unreasonable.
13. Under the circumstances the appeals which are apparently misconceived and mala fide are dismissed. The order of the learned Single Judge is upheld. Rule made absolute. The respondent workman is also held entitled to payment of costs throughout assessed at Rs. 5,000/-.