K. Premaraj v. Managing Director, MIMS Hospital

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936** ## **WA.No. 1034 of 2013** **-----------------------------** **AGAINST THE JUDGMENT IN WP(C) 20287/2012 OF THIS HONOURABLE COURT, DATED 09-04-2013** **----------------** ## **APPELLANT/PETITIONER:** **-------------------------------------** **K.PREMARAJ, MAKKENHIRATTE HOUSE, ERAMALA POST, KOZHIKODE, PIN-673 501.** **BY ADV. SRI. K.PREMARAJ (PARTY IN PERSON)** ## **RESPONDENT(S)/RESPONDENT:** **----------------------------------------------** **THE MANAGING DIRECTOR, MIMS HOSPITAL, GOVINDAPURAM POST, KOZHIKODE-673 016.** ## **BY SRI. M.ASOKAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2014 ALONG WITH WA. 1583/2013, THE COURT ON 01-07-2014, DELIVERED THE FOLLOWING:** **PJ** ## **WA.No. 1034 of 2013** **-----------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURE** **-------------------------------------** **ANNEXURE I: JUDGMENT OF WPC.20287/2012.** **ANNEXURE 2: CROSS EXAMINATION OF MWI AVTAR KRISHNAN PAGE NO.1 AND TRANSLATION** **RESPONDENTS' ANNEXURE** **-----------------------------------------** **NIL.** **/ TRU COPY /** **P.S. TO JUDGE** **PJ** ## **THOTTATHIL B.RADHAKRISHNAN & & A.MUHAMED MUSTAQUE, JJ.** ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.A.Nos.1034 & 1583 of 2013 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ **Dated this the 1[st] day of July, 2014** **==> picture [127 x 10] intentionally omitted <==** ## **Muhamed Mustaque, J.** These writ appeals arise from the judgment in W.P.(C). No.20287/2012. The appellant in W.A.No.1034/2013 is the writ petitioner. He had filed the writ petition challenging the award passed by the Labour Court, Kozhikode in I.D.No.26/2007. It was held in the award passed by the Labour Court that the writ petitioner is not a “workman”, as defined under Section 2(s) of the Industrial Disputes Act (for short, the “I.D. Act”). The learned Single Judge, in the writ petition, set aside the award passed by the Labour Court and remanded the matter to the Labour Court for fresh consideration. Challenging order of remand by the learned single Judge, the writ petitioner filed W.A.No.1034/2013 and the Management filed W.A.No.1583/2013. Since both the writ appeals are related to the same judgment, they are being disposed of by a common judgment. 2. We have also called for the records from the Labour Court. Heard the learned counsel for the appellant-writ petitioner and the learned counsel for the respondent-Management in the matter. W.A.Nos.1034 & 1583 of 2013 ## **-:2:-** 3. Parties are referred to with reference to their status in the Labour Court. 4. The workman was appointed as a Maintenance Supervisor. He was dismissed from service by the management after conducting domestic enquiry. An industrial dispute was raised by him and the matter was adjudicated by the Labour Court. In the award passed by the Labour Court dated 28/10/2009, it was held that the termination of the workman by the management is justifiable. Challenging the award of the Labour Court, the workman and the management filed separate writ petitions before this Court. The writ petition filed by the workman is W.P.(C).No.28907/2009 and the writ petition filed by the management is W.P.(C).No.28808/2011. The grievance of the management in the above writ petition was that the workman being Maintenance Supervisor and employed in a supervisory capacity, he is excluded from the definition of “workman”, and, therefore, the Labour Court lacks jurisdiction. The workman's grievance was that he was not accorded sufficient opportunity for adducing evidence before the Labour Court. This Court, as per common judgment dated 01/02/2012, set aside the award dated 28/10/2009 and remitted the matter for fresh consideration holding that the Labour Court did not consider the question regarding lack of jurisdiction and also did not give sufficient opportunity to the workman for adducing evidence. Thereafter, after remand, the matter W.A.Nos.1034 & 1583 of 2013 ## **-:3:-** was adjudicated by the Labour Court. The Labour Court, as per the order dated 12/06/2012 passed an award holding that it lacks jurisdiction as the workman does not satisfy definition accorded to the “workman” under the ID Act. Challenging the award, workman approached this Court in the impugned judgment from which these writ appeals arise. The learned single Judge took the view that merely because the appointment order would indicate that the writ petitioner was appointed as a Supervisor, it will not take away the status of the writ petitioner as “workman”. The learned single Judge is of the view that the functional aspect of such designation has to be looked into, to hold whether he is a workman or not. Therefore, for the purpose of considering the question with reference to the functional aspect of the nature and duties performed by the workman, the matter was remitted back to the Labour Court. 5. We have called for the records from the Labour Court as noted above. Both the management and the workman had adduced evidence in the matter. Though, normally, this Court would be hesitated to exercise its jurisdiction under Article 226 of the Constitution of India to examine and appreciate the evidence adduced by the parties before the Labour Court, considering the fact that this matter was once remitted back to the Labour Court and dispute is pending since 2007, we ventured to appreciate the W.A.Nos.1034 & 1583 of 2013 ## **-:4:-** evidence to find out whether workman herein is a workman as defined under the I.D.Act or not. 6. Ext.M1, marked in the enquiry proceedings before the Enquiry Officer would reflect the type of work undertaken by the workman. The management is a hospital. The hospital is having plinth area of about 2,40,000 sq.ft spread over in eight floors and it is centrally Air Conditioned using an Air Conditioning plant of 500 tonnes capacity. Ext.M1 would show that workman has to supervise the entire Air Condition system of the hospital. He also has to supervise A.C Technicians by giving directions and instructions to them as and when required. Apart from the above duties, he has to liaison with various governmental and statutory agencies and has to ensure that adequate quality, standards and norms are maintained. Ext.M1 would reflect that the nature of duties discharged by him is not only supervising technicians but also attending the works involved in air conditioned system and equipments. The workman in his chief examination has deposed that he used to take measurement of airduct and also of chilled water pipe line. It is also deposed by him that he used to check alignment of machineries and also calibration of such machineries. It was also deposed by him, he used to look at deficiency in the work relating to AC equipments and also report about number of employees engaged by Voltas. There is no serious challenge in cross-examination W.A.Nos.1034 & 1583 of 2013 ## **-:5:-** against the above testimony of the workman regarding duties performed by him. The nature of work done by the workman has to be considered within the purview of job description. As already noted, the nature of job is not only supervising technicians, but also include attending machineries. This would signify that supervision of the personnels involved is only incidental and is not the main activity of the workman. 7. The Labour Court had attached much importance to designation of Supervisor, without appreciating the nature of functions and duties attached to the designation. As rightly held by the learned single Judge, Labour Court should not have been carried away with, by the job description of “Supervisor”. We are of the view, nature of duties carried out by the writ petitioner alone is the criteria to determine the claim that appellant-writ petitioner is a workman or not in terms of the I.D Act. In _**All**_ _**India Reserve Bank Employees' Assn.v. Reserve Bank of India [(1965) 2 LLJ 175 (SC)]**_ the Hon'ble Supreme Court held that “ _the word 'supervise' and its derivatives are not words of precise import and must often be 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 superintendence of the manual work of others_ .” 8. The work of a Supervisor would indicate, exclusive discharge of a function to oversee and supervise the persons working under him and, W.A.Nos.1034 & 1583 of 2013 ## **-:6:-** incidental supervision of the persons working under him is not sufficient to hold that he is carrying out the work of a Supervisor. The dominant function that attached to the workman is attending machines as revealed from his evidence and description in Ext.M1. Thus, designation in job description will not take the writ petitioner out of the ambit of workman. 9. Therefore, we are of the view, the dominant function carried out by the petitioner in the writ petition would suffice to hold that he is a workman. In _**Bombay Dyeing & Manufacturing Co.Ltd. v. RA Biddoo [(1990) 1 LLJ 98 (Bom)(DB)]**_ , it was held that “ _supervision necessarily refers to persons working under the supervisor and it does not extend to supervision of plant and machinery. Checking the plant and the machinery will not make a person supervisor. In other words, supervision means 'supervision over men and not machines”._ In _**Devinder Singh vs. Municipal Council, Sanaur [(2011) 2 SCC (L&S) 153 : (2011) 6 SCC 584]**_ it was held that _“source of employment, method of recruitment, terms and conditions of employment/contract of service, quantum of wages/pay and mode of payment are not at all relevant for deciding whether or not a person is a workman within meaning of S.2(s)”._ Therefore, even if salary drawn by the workman exceeds limit under Section 2(s)(iv) of the I.D Act, it will not take out of purview of the I.D Act. We are therefore of the view that designation and salary are not itself decisive of the nature of employment. W.A.Nos.1034 & 1583 of 2013 ## **-:7:-** 10. In view of the above, we do not see any reason to remand the matter to the Labour Court for the purpose of adjudicating whether the writ petitioner is workman or not. Accordingly, the judgment of the learned single Judge is set aside. It is admitted at the Bar that after remand, the Labour Court passed an award on 30/09/2013. The learned counsel for the management also placed a copy of the award for our perusal. The above award was passed based on the remand order passed by this Court, which we have set aside by this judgment. After remand, the Labour Court again held that the writ petitioner is not a workman. In view of our judgment as above, the award passed by the Labour Court dated 30/09/2013 has become redundant consequent upon setting aside of the order of remand passed by the learned single Judge. In view of the fact that Labour Court has not decided on the merits of the issue as to the validity of termination of the workman pursuant to domestic enquiry, we remit the matter to the Labour Court for considering the issue regarding termination. 11. In the result, writ appeal No.1034/2013 is allowed. The writ appeal filed by the management as W.A.No.1583/2013 is dismissed. Parties shall appear before the labour court on 21/07/2014. We make it clear that the remand is only for the purpose of determining the validity of termination of the workman and the parties are free to adduce any fresh W.A.Nos.1034 & 1583 of 2013 ## **-:8:-** evidence to substantiate their respective contentions. No costs. Registry shall send back the LCR forthwith. ## **Sd/-** **THOTTATHIL B.RADHAKRISHNAN, JUDGE** **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** ms