ORDER
N. Kumar, J.
1. The petitioner has challenged in this writ petition the award of the Labour Court dated 3-4-1998 where, on a preliminary point the Labour Court held that the petitioner is not a workman under Section 2(s) of the Industrial Disputes Act, 1947 and consequently passed an award dated 19-6-1998 rejecting his application filed under Section 10(4-A) of the Industrial Disputes Act in which he has challenged the order of termination,
2. The case of the petitioner in brief are as under:
He was appointed as a Shift Operator (Process) on a salary of Rs. 600-00 per month on 9-2-1976. His appointment was subsequently confirmed on 12-2-1977. Annexure-A is the order of appointment. Annexure-B is the order of confirmation. Petitioner was promoted as Junior Officer (Process) with effect from 1st March, 1982. His salary was raised from Rs. 600-00 to Rs. 1100-00. Annexure-C, dated 9th March, 1982 is the letter evidencing the said fact. He was called upon to enter into a service contract with the company together with general conditions which was enclosed to the, said letter. Accordingly, the petitioner entered into a contract. While he was so working, on 13/14-5-1991 he was served with a charge-sheet accusing him of certain misconduct. Annexure-E is the copy of the said charge-sheet. The petitioner submitted his explanation denying all those allegations. Thereafter, an enquiry came to be ordered. In mid-stream the enquiry was abandoned. Then, invoking Clause 9 of the agreement entered into between the petitioner and respondent he was terminated from services on 24-8-1991. A copy of the said termination order is proceed at Anuexure-M. Aggrieved by the said order of termination, the petitioner raised an industrial dispute under Section 10(4-A) of the Industrial Disputes (Karnataka Amendment) Act, 1987 (for short, hereinafter referred to as 'the Act'). After service of notice, respondent had entered appearance. They filed a detailed statement of objections denying the allegations made against them in the claim statement. They contended that the petitioner is not a workman and therefore the Labour Court had no jurisdiction to entertain the application. They also contested the claim of the petitioner on merits. On these pleadings, the Labour Court framed three issues on 27-7-1993. They are as under:
(1) Whether the respondent proves that the petitioner is not a workman and as such the claim petition is not tenable?
(2) Whether the respondent was justified in terminating the service of the petitioner?
(3) What reliefs the petitioner is entitled to?
3. On the aforesaid issues, the Labour Court recorded evidence. On behalf of the respondent-Management, one Sri Ramarao Kulkarni, Assistant Personnel Officer, was examined as M.W. 1, Sri Umesh, Advocate, who conducted the enquiry was examined as M.W. 2 and Sri H.N. Nagaraj, Personnel Manager, was examined as M.W. 3. On behalf of the workman he was examined W.W, 1. It is thereafter during the course of arguments it was contended that Issue No. 1 has to be heard and decided as preliminary issue. Therefore, the learned Judge of the Labour Court heard arguments on both sides only on the question of Issue No. 1 and on appreciation of the evidence, held that the petitioner is not a workman and therefore the application was not maintainable. This order came to be passed on 3rd April, 1998. Consequently, he dismissed the claim application by the award dated 19-6-1998 in KID No. 15 of 1992. Aggrieved by the said two awards the petitioner has preferred this writ petition.
4. The learned Counsel for the petitioner Sri V.S. Naik assailing the award of the Labour Court contended, the Labour Court finding is not based on the evidence, it is a case of misreading of evidence and misreading of documents on which the respondents themselves rely on and therefore, he submits, a case for interference made out. He farther contended, a reading of Annexure-C, on the order of promotion coupled with the agreement entered into between the parties vide Ex. M. 2, clearly shows that there was no additional duties entrusted to the petitioner apart from what he was discharging prior to promotion and therefore, he did not cease to be a workman under the Act. Lastly, it was contended that it was a case of victimisation. When the petitioner did not accept the transfer order and when he wrote a letter to the authorities bringing to the notice the illegal action on the part of the respondent, though a charge-sheet was issued and an enquiry was held, abandoning the enquiry midstream the dismissal order was passed which is a clear case of victimisation and therefore, the impugned order, seen from any angle, cannot be sustained.
5. Per contra learned Counsel appearing for the respondent contends that admittedly, the petitioner was promoted from the shift operator to Junior Officer and the evidence on record clearly shows, what is the nature of work performed by junior officer, which he was not performing earlier. Having regard to the difference in pay between the petitioner and other workers, it cannot be said that the petitioner continued to be a workman merely because in the letter of promotion, he was called upon to do the work which he was doing earlier. In the agreement entered into between the parties, his duties in the promoted post is not disclosed, but it does not make any difference. The evidence on record discloses his duties on promotion. When the Labour Court on appreciation of material on record has recorded a finding of fact that the petitioner is not a workman even if this Court can come to a different conclusion, is no reason for interference with the impugned award.
6. Before going into the facts of the case, it is necessary to have a look at the law on point. Section 2(s) of the Industrial Disputes Act, 1947 reads as under:
''Workman' means any person (including 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, discharge or retrenchment had led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as 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':
In the case of Ved Prakash Gupta v. Delton Cable. India (Private) Limited, the Supreme Court interpreted Section 2(s). What has to be seen in this case is, whether the petitioner is a workman under the above said definition and what is the substantial duty which he was performing and whether such work was managerial or supervisory in nature, in the sense in which those terms are understood in the industrial law.
Again in the case of S.K. Verma v. Mahesh Chandra and Anr., the Supreme Court interpreted Section 2(s) of the Act.
Again at paragraph 4, it is held as under:
'So we adopt a pragmatic and not a pedantic approach and we proceed, in considering the question whether development officers in the Life Insurance Corporation are workmen, to first consider the broad question on which side of the line they fall, labour or management, and then to consider whether there are any good reasons for moving them over from one side to the other'.
Again the Supreme Court in Arkal Govind Raj Rao v. Ciba Geigy of India Limited, Bombay, has held as under:
'Whether 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 first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of a person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant'.
Again at paragraph 16, it is held as under:
'The test that one must employ in such a case is what was the primary, basis or dominant nature of duties for which the person whose status is under enquiry was employed, A few extra, duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth'.
Again in Burmah Shell Oil Storage and Distributing Company of India Limited v. Burmah Shell Management Staff Association and Ors., the Supreme Court has held as under:
'In Ananda Bazar Patrika (Private) Limited v. Its Workmen , the Supreme Court enunciated the principle stating:
The principle which should be followed in deciding the question whether a person is employed in a supervisory capacity or on clerical work is that 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 fact 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'.
From the language employed in Section 2(s) of the Industrial Disputes Act a person who is employed to do manual work, unskilled work, skilled work, technical work, operational work, clerical work and supervisory work is a workman. The specification of the aforesaid seven types work obviously was 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 in doing any such work would not be out of the scope of the work without any resort to exceptions. The broad intention of the legislature is to take the entire labour force and exclude managerial force. The designation of an employee is not of much importance and what is important is the nature of duties being performed by him. The determinative factor is the main duties of the concerned employee and not some work incidentally done. In other words what is in substance, the work which employee does or what is in substance he is employed to do. The dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of a person. It is not casual or occasional work which a particular employee does which is decisive of what is the nature of his employment nor decisive of the question whether he is employee at all falling within the definition. A distinction therefore has necessarily to be made between the principal work of an employee and the ancillary duties involved in doing the principal work. The question in each case will have to be decided with reference to the special facts and circumstances thereof. The principal or main work in the employment of a person will have to be determined from the letter of appointment, the nature of the duty the employee is to perform in the course of his employment and other attending circumstances. The question whether the employee is a workman or not, is not a pure question of fact. It is a mixed question of fact and law. In arriving at the conclusion, the Tribunal first has to address itself to the various duties assigned to the employees and then draw a conclusion of law as to whether, in the light of the duties assigned to him, the employee would be a workman or not. In other words, this is a jurisdictional issue to be decided by the Tribunal before it can assume the jurisdiction to make the award in dispute referred to it.
7. Therefore, when the status of a workman is disputed and evidence is adduced in respect of the rival contentions in deciding the said question, the guiding principles which the Court should bear in mind could be broadly summarised as under:
1. The Court shall adopt a pragmatic and not a pedantic approach.
2. What the Court has to see is, what is the primary or substantial duty which the person is performing. Does the said work is managerial, administrative or supervisory in nature.
3. What is the remuneration paid for.
4. Then to consider which side of the line they fall, labour or management, and then to consider whether there are any good reason for moving them over from one side to the other.
5. In arriving at conclusion the nomenclature attached to the designation should not blur the mind of the Court.
6. Similarly, some additional or incidental duties attached to the main work should not be given undue weightage.
7. The substantial duty performed by the person could be gathered from the terms of the order of appointment, terms of contract if entered into, also from oral evidence and such other material the Court deems fit to rely on.
8. Any one of them is not conclusive. It is a question of fact. Therefore, it is a cumulative effect of all the material placed on record, which should be made the basis for a finding on whether he is a workman or not under the Act.
8. In this back ground, if we look into the facts of the case, on behalf of the management they have examined two witnesses to show that the work which the petitioner was performing was supervisory in nature. M.W. 1-Ramarao Kulkarni has stated that the nature of the Junior Officer's work is to supervise and control the workman. In each shift there will be five operators and two helpers and they have to work under a Junior Officer. The petitioner was extracting work from helpers and operators. The nature of work entrusted to the petitioner was to make entries in the book, to extract work from the subordinates and the said workers had to report to duty to the Junior Officer and if there is any problem at the place of work, the Junior Officer had to sort it out. If the workers want leave, the Junior Officer has to sanction it, if the workers want to go out of the place of work, they had to obtain gate-pass from the Junior Officer, if they want medical facility, again the Junior Officer had to issue appropriate certificate. The petitioner was to issue gate-passes and certificate for obtaining medical assistance as per Exs. M. 18 to M. 35. In the cross- examination, it has been elicited that in Production Department, there are 31 workers, one Production Manager, one Assistant Production Manager and there are in all 8 Junior Officers (Production) and they work in shifts and there are three shifts in the company and in each shift, there are two Junior Officers (Production). The next witness for the Management is one H.N. Nagaraj who was the Personnel Manager, has deposed that the operators and helpers would be working under Junior Officers under the petitioners 5 to 6 operators and helpers were working. The Junior Officers are responsible to supervise and guide the operators and helpers in day-to-day's work. The petitioner had to issue medical aid slips and gate passes and store issue slips maintained in the respondent-unit. He has to sign those slips which are at Exs. M. 8 to M. 35. They are all issued by the petitioner to the workman. He also had the duty to get the raw material from Mangalore and Bombay Port. He has denied the suggestion as to Junior Officer has to perform his duties prior to his promotion. As against this evidence on the side of the management, we have the evidence of! the petitioner himself. He has said that though he was promoted as Junior Officer (Process), he was doing the duties of his previous post. According to him, Junior Officer (Process) has to control the temperature of the plant, record the temperature. Formerly he was paid a consolidated salary of Rs. 600/- and subsequently he was paid Rs. 1000/- after promotion. Over and above him there was a Process Officer called Production Superintendent. He admits the execution of agreement between him and the respondent. In the cross-examination, he has categorically stated as under:
'The workmen working like me who were 171 members were called by designated names helper, Junior Assistant, Operators, Fitters and Clerks etc. There were 5 to 6 shift operators working in the unit along with me. There were no helpers in the main plant. The salary of the workers ranges from Rs. 300/- to Rs. 400/-per month. I was getting the salary of Rs. 2,785/- at the time of my termination. There are various types of scales for the various category of posts. There were no other officers post which was equivalent Junior Officer (Process). I was the General Secretary of the union for about two years. I was not the member of the union from 1982 to 1991'.
9. He admits having executed M. 2 the agreement and he has not disputed M. 2 for the period of four years. Log sheet Ex. M. 17 was maintained to record the temperature every moment. I have noted down the temperature in Ex. M. 17 as per the readings shown by the meters. He denies that the post of Junior Officer (Process) is a responsible post. He used to sign the gate-pass and medical certificates. He admits that nobody was allowed to go outside the company without the gate-pass. He admits that he used to sign the medical slips in emergency cases. He admits that he has signed on Exs. M. 18 to M. 35 as a Department Head. Further, he admits that unless the medical slips are signed by him, the medicines would not be supplied to the workman. In addition to his oral evidence, he has produced Annexure-C, which is the latter under which the petitioner was given promotion. Ex. M: 2 is the agreement entered into between the parties on such promotion.
10. Learned Counsel for the petitioner relying on Annexure-C, wherein it is stated that 'you should have to carry out the same nature of job functions 'presently entrusted' with you and some other jobs to be assigned to you from time to time when promoted' contends that as the said letter of promotion makes it very clear that notwithstanding the promotion the petitioner was continued to work as the shift operator which he was doing earlier, his case that notwithstanding the promotion, he was continuing the work as he was doing earlier is established. This evidence has been overlooked by the Trial Court and therefore, the award requires to be interfered with.
11. The aforesaid material on record clearly establishes that he joined the services of respondent-Company on 9-2-1976 as a Shift Operator. His appointment was confirmed on 12-2-1977. He was promoted as Junior Officer (Process) on 1-3-1982. As on that date, his salary was only Rs. 600/- and by this promotion his salary was raised to Rs. 1,100/-. Though the letter of promotion is dated 9-3-1982, it is not in dispute that the promotion was given effect from 1-3-1982. In other words, from 1-3-1982, he started working as a Junior Officer (Process). It is in that context, We have to consider the aforesaid sentence in Annexure-C where it has been categorically stated that he should have to carry out the same nature of job functions presently entrusted with him. The stress is of presently entrusted and some other jobs to be assigned to him from time to time when promotion. On promotion on 1-3-1982, he has been entrusted with certain functions and 9-3-1982 letter makes it very clear that he has to perform those which entrusted to him on 1-3-1982 and the additional work to be entrusted to him in future. It is in that context he entered into an agreement Ex. M. 2 which is not in dispute, The entire argument of the learned Counsel for the petitioner with regard to the aforesaid sentence makes it very clear that he was called upon to work as Shift Operator without assigning any additional work on promotion. The said argument is very difficult to accept in the light of the words used in the above said sentence and particularly the words 'presently entrusted' because the letter was issued on 9-3-1982 and the work entrusted to him was with effect from 1-3-1982 about 9 days prior to Annexure-C. It is true that in Ex. M. 2, no functions are assigned to the petitioner. It only refers to the service conditions. Therefore, that document is of no assistance to either of the parties. Therefore, from the material on record we have to find out what exactly the nature of function he was performing on the date of his termination on 24-8-1991. It is in that regard, the oral evidence on record is of most importance. The aforesaid evidence makes it abundantly clear that the petitioner was working on the date of termination as Junior Officer. He was maintaining the log sheet to record the temperature which the petitioner admits was his job on promotion. He was signing the gate-pass and the medical certificates of the workers. It is admitted that nobody would be allowed to enter into the company premises without the gate-pass and that unless the medical certificate is produced, the medicine would not be supplied to the workers. If the petitioner was a workman as contended by him, he was not entitled to sign the gate-pass and medical certificates. In fact except the bare assertion that they was doing the same job which he was doing earlier, the petitioner has not set out the nature of work he was performing subsequent to Use date of promotion. It is also not in dispute that on one side the workmen working as Junior Assistant, Operators, Fitters and Clerks and on the other side, we have the category of persons who are described as Production Manager, Assistant Production Manager, Shift Assistant Production Manager, Junior Officer (Process). Merely because above the petitioner, there are other categories of officers, that does not make the petitioner a worker in the real sense. If the nature of the work of the petitioner is of a labour, fitter, Assistant and a clerk, the Court has to first consider the broad question on which side of the line the workman is working. According to the petitioner when his services were terminated, workmen were paid the salary of Rs. 300/- to 400/-, whereas his salary was Rs. 2,785/-.
12. There is a categorical admission in the cross-examination of the petitioner that he was a member of the Union from 1982 to 1991. In 1976, he was a workman and member of the union and it was continued till 1992 till the day, of promotion. After promotion, he ceased to be a member of union. It is yet another factor, the Court has to take note of.
13. It is not in dispute that he was issuing gate-pass, and medical certificate without which an employee could not have gone out of the company nor could have got the bills refunded, which clearly shows that the workers were subordinates to him and he had a control over them. This is another factor which the Court has to take note of.
14. In the circumstances, the evidence on record discloses that the petitioner was supervising the work of the workman and the salary paid to him is at least 6 to 7 times more than what the workers were paid.
15. The Labour Court though has not taken into consideration all these materials while recording its finding, but the finding recorded by the Labour Court that the petitioner is not a workman is quite supportable from the aforesaid material on record. In the circumstances, I do not find any merit in this writ petition. Accordingly, it is rejected.