General Secretary, Nair Service Society (NSS) Head Office v. C.S. Premchand Krishnakripa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943** ## **OP(LC) NO. 14 OF 2021** **AGAINST THE ORDER IN I.A. 44/2019 IN ID 48/2018 OF LABOUR** **COURT, ERNAKULAM,** ## **PETITIONER/APPLICANT/MANAGEMENT:** **GENERAL SECRETARY, NAIR SERVICE SOCIETY N.S.S.HEAD OFFICE, PERUNNA, CHANGANASSERY P.O, KOTTAYAM-686101.** **BY ADV.R.T.PRADEEP ADV.M.BINDUDAS ADV.K.C.HARISH** ## **RESPONDENT/RESPONDENT/WORKMAN:** **C.S.PREMCHAND KRISHNAKRIPA, HILLVIEW GARDEN, THAZHAVARAM, KATTUVILA, PEYAD P.O, THIRUVANANTHAPURAM-695573.** **BY ADV K.MOHANAKUMAR (POOJAPPURA)** **THIS OP (LABOUR COURT) HAVING COME UP FOR ADMISSION ON** **09.10.2021, THE COURT ON 13.10.2021 DELIVERED THE FOLLOWING:** O.P.(LC) No.14/21 **-:2:-** ## **BECHU KURIAN THOMAS, J. -----------------------------------O.P.(LC) No.14 of 2021 --------------------------------------** Dated this the 13[th] day of October, 2021 ## **JUDGMENT** The Management in an industrial dispute has approached this Court under Article 227 of the Constitution of India, challenging an order issued by the Labour Court on the question of maintainability. By the impugned order, the Labour Court found that the respondent is a workman as defined under section 2(s) of the Industrial Disputes Act, 1947 (for short 'the Act'). 2. The respondent in this original petition filed an application as I.D. No.48 of 2018 before the Labour Court, Ernakulam, under section 2-A(2) of the Act, alleging that he was wrongfully dismissed from service on 03-06-2016 on the basis of an allegation that he had submitted a false report which caused a loss of more than Rs.One lakh to the management. It was claimed that he had joined the service of the management as a workman and that he was working as a supervisor under the management. Thereafter, pursuant to the alleged misconduct, an enquiry was conducted and he was found O.P.(LC) No.14/21 **-:3:-** guilty and imposed with the punishment of dismissal from service. 3. A written statement was filed by the management stating that the workman was employed as Grade-II Supervisor in the second higher grade of management and that he was appointed as a supervisor for various works. Since his duty included overseeing and supervising the works, it was claimed that the respondent was not a workman. 4. An application was filed by the original petitioner as I.A No.44 of 2019 seeking to consider the issue of maintainability as a preliminary question. Oral and documentary evidence were adduced for the purpose of considering the application. Thereafter by Ext.P6 order dated 31-03-2021, the Labour Court decided the question of maintainability of the application in favour of the workman. In other words, the court found the respondent to be a workman under the provisions of the Act. The said order produced as Ext.P6 is challenged in this original petition. 5. I have heard the arguments of Adv.R.T Pradeep, the learned counsel for the petitioner as well as Adv.K.Mohanakumar, the learned counsel for the respondent. 6. The learned counsel for the petitioner contended that Ext.P6 O.P.(LC) No.14/21 **-:4:-** order of the Labour Court was totally perverse as the same failed to appreciate the very admission of the worker himself that he was appointed as a supervisor with the management. It was also contended that the Labour Court failed to appreciate that there were no subordinates under the workman and that his principal duty was to supervise the works done by the contractors and to prepare the measurement book. It was further argued that the court had failed to consider the functions attributed to the workman especially as Grade-II Supervisor and that, the contractors were at the mercy of the respondent thereby giving him supervisory control over the contractor and employees of the contractor apart from the fact that the said post was an entry cadre post of the engineering department and not a lower category post. 7. The learned counsel for the respondent on the other hand submitted that the order of the Labour Court warrants no interference and that there is no perversity or any illegality entitling this Court to interfere. It was also pointed out that what is being challenged before this Court is only a preliminary order and the same cannot be interfered with in exercise of the powers under Article 227 of the Constitution of India, even if a different view could be taken by this **-:5:-** O.P.(LC) No.14/21 Court. It was further pointed out that though the respondent was given the designation as supervisor, he had no supervisory work nor managerial work and the only work done by the respondent was to take physical measurements. 8. On a consideration of the rival contentions, I am of the view that the order of the Labour Court warrants no interference. The Labour Court has clearly found, after an appreciation of the evidence of WW1 and MW1 and the documents marked therein, that, the respondent is a workman. It was further found on facts that MW1 had clearly admitted that there was no other person under the workman in the department and after an appreciation of the nature of work carried out by the respondent, the Labour Court found that the respondent is a skilled worker, though designated by the glorified name of a supervisor. The Labour Court also found that the respondent is in the lowest category in the engineering department and that he was carrying out the measurements of work done at the site and had no capacity to supervise any other workers under the management including the peons. 9. In the decision in **Hussan Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board and Another** [(2001) 7 SCC 394], it was O.P.(LC) No.14/21 **-:6:-** held that what determines whether a person is a workman or not are the nature of duties of the employee, the powers and functions bestowed upon him and not just the designation alone. Further, in the decision in **T.Prem Sagar v. M/s.Standard-Vacuum Oil Company, Madras and Others** (AIR 1965 SC 111), the Supreme Court had laid down the guidelines for identifying whether an employee is a workman or not. 10. On a perusal of the impugned order, it is noticed that the Labour Court had after appreciating the aforesaid judgments came to the conclusion that the respondent is a workman coming within the purview of section 2(s) of the Act. 11. The scope of interference with the preliminary order of the Labour Court is very limited. As held by this Court in the decision in **St.Thomas Mission Hospital v. State of Kerala** (2007 (2) KLT 415) the interference into a preliminary order is warranted only when the findings of the Labour Court are perverse and its reasons are misconceived. 12. In the instant case, there is no perversity in the findings of the Labour Court nor are the reasons misconceived. On the other hand, the conclusion arrived at by the Labour Court is based upon a O.P.(LC) No.14/21 **-:7:-** proper appreciation of the evidence as well as the law. Therefore, I find no reason to interfere with Ext.P6 order. This original petition fails and is dismissed. **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps ## O.P.(LC) No.14/21 ## **-:8:-** ## **APPENDIX OF OP(LC) 14/2021** **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE I.D.NO.48/2018 DATED 23.7.2018 ON THE FILE OF LABOUR COURT, ERNAKULAM.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 12.12.2017 BY WHICH RESPONDENT WAS DISMISSED FROM SERVICE. WITH ENGLISH TRANSLATION.** **EXHIBIT P3** **TRUE COPY OF THE WRITTEN STATEMENT DATED 5.12.2018 BY PETITIONER IN I.D. NO.48/2018 BEFORE LABOUR COURT, ERNAKULAM.** **EXHIBIT P4 TRUE COPY OF THE I.A.NO.44/2019 IN I,.D.NO.48/2018 BEFORE THE LABOUR COURT, ERNAKULAM DATED 25.03.2019.** **EXHIBIT P5** **TRUE COPY OF THE OBJECTION IN.I.A. NO.44/2019 IN I.D.NO.48/2018 BEFORE THE LABOUR COURT, ERNAKULAM DATED 3.7.2019.** **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 31.03.2021 IN I.A.NO.44/2019 IN I.D.NO.48/2018 OF THE LABOUR COURT, ERNAKULAM.** ## **RESPONDENT'S/S' EXHIBITS** **EXHIBIT R1(a) TRUE COPY OF THE PETITIONER LETTER DTD.31/08/2021 PRODUCED BEFORE THE LABOUT COURT** **EXHIBIT R1(b) TRUE COPY OF THE DEPOSITION OF THE RESPONDENT IN THE LABOUR COURT** **EXHIBIT R1(c) TRUE COPY OF THE DEPOSITION OF ADMINISTRATIVE SECRETARY IN LABOUR COURT**