Present: Mr. R.K. Malik Sr. Advocate with Vs. - Court Judgment

LPA No.1882 of 2013(O&M) --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1882 of 2013 (O&M) Date of Decision : 22.01.2014 Suresh Kumar ..Appellant Versus Chief Engineer(Construction),HSEB,Hisar and ors...Respondents CORAM:HON'BLE Mr.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE HARINDER SINGH SIDHU Present: Mr.R.K.Malik, Sr.Advocate with Mr.Samrat Malik, Advocate for the appellant.

-- JASBIR SINGH, J.(Oral) This appeal has been filed by Suresh Kumar, the appellant against the judgment dated 13.08.2013 passed by learned Single Judge, vide which Civil Writ Petition No.4518 of 1991 filed by respondent No.1- HSEB, Hisar, was allowed and award passed by Industrial Tribunal-cum-Labour Court, Rohtak on 03.12.1990 was set aside.

As per facts on record, service of the appellant was terminated on 14.03.1985.

He raised an industrial dispute stating that he is a workman and before terminating his service, no compliance has been made under Section 25-F of the Industrial Kumar Dinesh 2014.02.19 13:58 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1882 of 2013(O&M) --2-- Dispute Act, 1947 (for short 'the Act').Matter was sent to the Labour Court for adjudication.

The respondent-department took up a stand that the appellant was appointed on a contractual basis for a fixed period and after expiry of the same, it was not extended.

It was further stated that the services of Suresh Kumar would not fall within the definition of 'workmen'.

To say so document M-21, a circular of the department was relied upon.

Finding was given in favour of the appellant on the ground that the department has failed to supply the schedule of duties of the appellant.

The award was passed in favour of the appellant giving him benefit of re-instatement with continuity of service with full back wages.

Against the said award, the department has filed Civil Writ Petition No.4518 of 1991, which was allowed by learned Single Judge on 13.08.2013, holding that the appellant would not fall within the definition of workman as given in section 2(s) of the Act.

It is vehemently contended by counsel for the appellant by making reference to the duties of the Junior Engineer as mentioned in document Annexure P-5, that these are all technical in nature and hence the appellant falls within the definition of workman as given in section 2(s) of the Act.

We are not inclined to agree with the arguments raised by counsel for the appellant.

Definition of workman as given in Section 2(s) of the Act reads as under:- “Section 2 (s) “workman”.

means any person (including an apprentice) employed in any industry to do any manual, Kumar Dinesh 2014.02.19 13:58 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1882 of 2013(O&M) --3-- unskilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes 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 has 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 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, function mainly for a managerial nature.”

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It is stated that a person employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work for hire or reward shall be treated as a workman.

As per Section 2(s)(iii) a person, who is employed in a supervisory capacity and draw wages exceeding `1600/- per month, he would not fall within the definition of 'workman'.

Learned Single Judge by making reference to the above said provisions and also taking note of the duties performed by the appellant, has rightly came to the conclusion that he would not fall within the definition of workman as he was performing supervisory duties.

It is not disputed that before alleged termination of the appellant from the services, he was drawing pay Kumar Dinesh 2014.02.19 13:58 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1882 of 2013(O&M) --4-- more than `1600/- per month.

After analyzing the arguments on record, it was observed by learned Single Judge vide order dated 13.08.2013 as under:- “In the present case, the admitted position on record is that respondent no.2 was entrusted with the duties and responsibilities of Junior Engineer (Civil) which would entail supervisory duties.

Even from Ex.M- 22, it is clear that respondent no.2 was getting pay more than `1600/- which is the upper limit for an employee to be covered within the definition of “workman”.Admittedly, as per the salary certificate brought on record before the Labour Court, it is clear that respondent no.2 was drawing salary of ` 1606/- i.e more than ` 1600/-, therefore, he does not fall within the definition of Section 2 (s) of the Act.

The Hon'ble Apex Court in Management of M/S.Sonepat Cooperative Sugar Mills LTD.(supra ) referred to Miss A.

Sundarambai versus Government of Goa, Daman and Diu and others (1998) 4 SCC42 wherein the Teachers serving in Educational Institutions were held to be not workmen as they were not found to be performing the duties of either manual or unskilled or skilled or technical or clerical nature.

In the present case, the petitioner was not performing stereotype job.

His job involved creativity.

He would evaluate the working of the other Departments of the Company and submit his report to his superiors for taking policy decisions.

Number of judgments have been cited before me, however, specifically the stress has been laid by the learned counsel for respondent no.2 upon the judgments rendered in R.K.Tyagi versus The Labour Court, Meerut and another 2003 All.

LJ296and Hindustan Antibiotics LTD.versus The Workmen AIR1967Supreme Court 948 to contend that respondent no.2 working as Junior Engineer in supervisory capacity will also be included in the definition of “workman”.I have considered the judgment rendered by the learned Single Judge of Hon'ble Allahabad High Court in R.K.Tyagi (supra).the same is not applicable to the instant case, as it was decided under Section 2 (z) of the Uttar Pradesh Industrial Disputes Act, 1947 wherein by virtue of amendment, persons working supervisory in capacity are Kumar Dinesh 2014.02.19 13:58 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1882 of 2013(O&M) --5-- specifically included in the definition of “workman”.However, no such amendment has been made by the State of Haryana in the Industrial Disputes Act.

Similarly, the case law Hindustan Antibiotics LTD.(supra) is also not applicable to the facts and circumstances of the present case.

On the other hand, the learned counsel for the petitioners has relied upon various judgments, however, specifically the stress has been laid upon M/s Avery India Limited versus Presiding Officer, Labour Court-II, Faridabad and another 2009 (6) SLR734and Arvinder Kumar Sharma versus Management of M/S.Gujarat Ambuja and others 2005 (2) Shimla L.J.1474.

In M/s Avery India Limited (supra).the entire law has been considered and it has been observed that it is always for the workman to prove that he fits within the definition of “workman”.

as defined in Section 2 (s) of the Act.

In the said case, the management had shown several other activities which were beyond the activity of the workman and the Court held the workman could not be said to have discharged the burden of proof of his character as such.

The same view has also been taken in Arvinder Kumar Sharma (supra).Having regard to the judgment titled M/s Avery India Limited (supra) and taking into consideration the nature of duties performed by respondent no.2 and salary drawn by him, this Court is of the considered view that respondent no.2 is not a workman within the meaning of Section 2 (s) of the Act.

In view of this finding, I deem it unnecessary to refer to several other judgments cited by the learned counsel for the parties.”

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We have gone through the duty roster of the petitioner, which reads as under:- “Duty of the Junior Engineer: It is the duty of the J.to ensure that estimate of the work, which has been entrusted to him for execution, stands sanctioned otherwise he should obtain written order from the SDO before he takes the work in hand and drawn the material.

ii) The material should be drawn as per provision in the estimate.

Kumar Dinesh 2014.02.19 13:58 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1882 of 2013(O&M) --6-- iii) Entry of the material should be recorded in his form (PWA) 4 soon after it is drawn from the store.

iv) In case of major works he should prepare from DFR (PW) 30 Material-at-site account and it should be delivered to the SDC in the Sub-Division for its submission alongwith the monthly accounts to the Divisional office.

Form DFR (PW) 31 should be prepared when:- a) JE-I/c of the work is transferred, or b) the work is completed, or c) after the close of financial year, whichever is earlier.

v) Whenever he foresees excess over the sanctioned estimate by more than 5% he should immediately prepare/revised estimate for its submission to the Divisional Office through SDO for sanction.

vi) After the completion of work the J.incharge after transferring all the surplus material either to Store or to other works where it is urgently required, should record measurement in the Electrical Measurement Book and the same be sent to the Sub Divisional Office.

vii) He should maintain quantity account of Store if he is entrusted duty of operational stores and ensure timely submission of Store account to COS, organization.

viii) He should keep the initial account of tools and plants in the respective registeRs.ix) He should maintain and upkeep the register of dismantlement and services re-connected.

Besides , any other duty to be entrusted to him by the SDO”.

We have perused the duties performed by the appellant.

Most of the duties are of supervisory nature.

He is to perform duties and functions which would not entitle him to fall within the definition of workman.

Kumar Dinesh 2014.02.19 13:58 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1882 of 2013(O&M) --7-- No case is made out to cause interference by this Court in the present appeal.

Dismissed.

(JASBIR SINGH ) JUDGE ( HARINDER SINGH SIDHU ) JUDGE2201.2014 dinesh Kumar Dinesh 2014.02.19 13:58 I attest to the accuracy and integrity of this document High Court,Chandigarh