High Court cases > Madras High Court

Print View
Ashok Leyland Limited Vs. A. Vijayakumar and Another - Dec 2 1980

• Citation: 1981 (2) LLJ 9

• Honourable Judges:
• Issue: Industrial Disputes Act, 1947 - Section 2(s); Army Act, 1950; Air Force Act,
1950; Navy (Discipline) Act, 1934
• Date of Judgement: 02/12/1980
• Case No: W.P. No. 305 of 1978
• Counsel:
• Headnote:

•
Cases Referred:

JUDGMENT:

The Order of the Court is as follows

The writ petition is for certiorari to quash the award of the Additional Labour
Court, Madras rendered in I.D. No. 256 of 1975. The dispute in the award
relates to the non-employment of the first respondent, an Engineering
Graduate, who was working as a development officer of the petitioner-company
due to discharge simpliciter as he was un-co-operative in his work, and
irregular in his attendance. As a result of this, he lost the confidence of the
management. Without giving an opportunity to the first respondent to defend,
these allegations of un-co-operative nature and irregularity in attendance,
which are all false, and in the guise of discharge he was punished by way of
dismissal without any enquiry as required under law. The writ petitioner-
management contended that the first respondent was not a workman within the
meaning of S.2(s) of the Industrial Disputes Act (hereinafter referred to as the
Act). He belonged to the administrative or managerial cadre, though a
technical person. On these pleadings three issues were posed for
determination by the Labour Court, which are as follows:

(1) Whether the petitioner is a workman under S.2(s) of the Industrial Disputes
Act?

(2) Whether action in discharging the petitioner's service is a colourable

exercise of power of the respondent as the motivation behind it was to dismiss
the petitioner?

(3) To what relief?

2. On the first issue he came to the conclusion that the first respondent herein
was doing only technical work, i.e., he was functioning in his technical capacity
alone and so he is workman under S.2(s) of the Act. On issue No. 2 it was
concluded that it was not a bona fide discharge. The management wanted to
get rid of the workman from its services for reasons best known to it and got
rid of him by discharging him. It is a colourable exercise of the power of the
respondent as it is dismissal guised in discharge. As a result, an award was
passed directing reinstatement of the first respondent with backwages till 26-8-
1977 from which date he is employed elsewhere and which he has agreed to
give up continuity of service and other attendant benefits. Thus, the writ
petition.

3. Mr. S. Govindaswaminathan, appearing for the management, states that the

first respondent was a graduate apprentice. On 1-12-1962 he was appointed
as a Senior Foreman (Machine Shop) till 30-11-1971 and on that date he was
appointed as a Development Officer, carrying a salary of Rs. 1, 050 as basic
and Rs. 210 as dearness allowance. By a reading of the award, it will be seen
that the Labour Court had completely misdirected itself. The first respondent
signed all the correspondence not in his administrative or managerial capacity,
but only in his technical capacity. That is clearly against the tenor of the
various documents.

4. The definition of the workmen under S.2(s) of the Act will not take kin a
person who functions in his administrative capacity. Because of his technical
knowledge, the approach of the Labour Court is just the reverse. The decision
reported in Burmah Shell Oil Storage and Distributing Co. V. Management
Staff Association, [1970-II L.L.J. 590], is clearly in his favour, paragraphs 14
and 15 of the said judgment will completely decide the issue in favour of the
petitioner. The Labour Court has approached the question in a reverse way.
Merely because the first respondent was working as a chief buyer, he did not
cease to be a workman, because he himself was working under the Managing
Director. The charge in relation to the employees attached to Ext. W. 5. will
show that the first respondent was part of the administrative set up. The
correspondence, Exts. M. 12, M. 32, M. 37 were marked to show the
administrative capacity in which the first respondent was functioning. Looked
at from this point of view the award is wholly ununderstandable. To say that
because the first respondent was a technical man, he ceases to be in
administrative capacity is an error of law which this Court is well entitled to
correct under certiorari jurisdiction and it is not a factual finding that is
canvassed. In support of this submission, Pabbojan Tea Co. v. Labour Court,
Assam, (1977) Labour and Industrial Cases 721 at 731, is relied on.

5. Mr. G. Vasantha Pai, learned counsel for the first respondent, submits first
and foremost that though the first respondent was called a development
officer, he was working under the chief buyer and he had no independent right
to take a decision. As a matter of fact, in the counter filed before the Labour
Court, in paragraph 2 it is clearly stated that the first respondent was reporting
to the chief buyer of the supply division. The circumstances under which he
came to be appointed as a development officer are traced in paragraph 3 of
the said counter. The petitioner, after completing his apprenticeship was
appointed as a foreman in the machine shop. He could not manage the labour
properly and he himself requested for a transfer to some other department. As
a matter of fact, he was contemplating even to resign, so that he could take
care of his family business. At first he was transferred from Steel Forging line
to the West Shop Casting line and subsequently to the Supply Department, as
he could not discharge his duties properly in the machine shop. That being so,
to say that the first respondent was an administrator or the manager is wrong.
It is some what surprising that though the first respondent is stated to be in
charge of contract works for several lakhs, no one in connection with the same
has tendered evidence. Curiously an apprentice who had hardly put in three
years of service is examined, For reasons best known to the management the
chief buyer or Ezhumalai was not examined. The findings of the Tribunal are
based upon appreciation of oral evidence and that cannot be interfered with
under Art. 226 of the Constitution of India. Originally the management came
forward with a case that the first respondent was working in a supervisory
capacity and not, as it know stated, in his administrative or managerial
capacity. Hence, grounds 3 and 4 stated in support of the writ petition have to
be rejected as seeking to introduce a new case. The factual findings cannot be
interfered with under Art. 226 of the Constitution. In support of this submission
Andhra Scientific Co. Ltd. v. Seshagiri Rao and another, [1961-II, L.L.J. 117],
particularly the passage at 119 is relied one.

6. The various letters that have been marked on the side of the management
do not say that the first respondent could take a decision by himself. These
letters are incomplete. As to the tests for management they could be culled out
from the decisions of S.V.O.C. v. Commissioner of Labour, [1959-II, L.L.J.,
771] and Prem Sagar v. S.V.O.C., [1964-I L.L.J. 47] at 53. In this case, not
one of the tests could be applied effectively so as to hold the first respondent
to be in charge of the management. Exhibit W. 5 makes it abundantly clear that
this respondent must work under the chief buyer. In such a case, he is
undoubtedly a workman. In support of this submission Punjab Co-op Bank Ltd.
v. R. S. Bhatia, [1975-II L.L.J. 373], is relied on.

7. Lastly, it is submitted the decision in B.S.O.S. & D. Co., v. Management

Staff Association, [1970-II L.L.J. 590], cited by the other side. Will have no
application to the facts of this case, having regard to the various distinguishing
features in this case, as contended above.

8. Having regard to the above arguments, the one and the only question that
arises for my determination is whether the first respondent is a workman within
the meaning of S.2(s) of the Industrial Disputes Act?

9. Section2(s) of the Act contains the following definition

"Workman means any person (including an apprentice) employed in any

industry to any skilled or unskilled manual, supervisory, technical or clerical
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 retrenchement has led to that
dispute but does not include any such person -(i) who is subject to the Army
Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934 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

five 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".

It is the case of the writ petitioner management that the first respondent was
working in either administrative or managerial capacity and merely because he
was obliged to report to the chief buyer, it does not mean that he ceases to be
function in a managerial or administrative capacity. I may now refer to some of
the letters marked by the Labour Court. One feature which cannot escape the
attention of any body is the letters from the third parties. They are either
directly addressed to the first respondent, or his attention is drawn. When the
letters emanate from the petitioner's company, in so far as they relate to his
department, the first respondent signs them. According to Mr.
Govindaswaminathan, learned counsel for the petitioner, the letters like Exts.
M. 11, M. 32 and M. 37 are marked to show how the first respondent was
working in an administrative capacity, while Mr. G. Vasantha Pai, learned
counsel for the first respondent says that in so far as the first respondent had
no independent right to take a decision and further he was working under the
chief buyer and was reporting to him is clear to show that he cannot come
under the administrative or managerial capacity.

10. Before I go to deal with the respective contentions advanced on the basis
of these documents a look at the relevant law may be highly useful. In
B.S.O.S. & D. Co. v. Management Staff Assn. [1970-II L.L.J. 590] at 599 in
paragraphs 14 and 15 it was observed thus:"Despite these facts, the Tribunal
held the Transport Engineer to be a workman on the ground that he was
employed because of his technical knowledge and even in supervising the
work of the workman, he is required to make use of his technical knowledge,
and, consequently rejected the pleas of the company that the Transport
Engineer cannot be said to be employed to do supervisory work. It appears to
us that, in giving this decision the Tribunal misdirected itself. Even if the
Transport Engineer uses his technical knowledge, it is used primarily for the
purpose of supervising the work done by the skilled manual laborers who carry
out the actual repairs, do the servicing or maintenance or complete the
fabrication. The other supervisory duties, mentioned above, have been ignored
by the Tribunal on the ground that, in the matter of allocation of work, the
Transport Engineer does it on equitable basis, that it is his duty to get the job
done in a proper manner, that, in distributing or allocating or reallocating the
work, the main consideration which weighs with the Transport Engineer is
whether the work is executed efficiently from a technical point of view. These
appear to us to be no grounds for holding that the main and substantial work
being done by the Transport Engineer is not supervisory in character.

14. In this connection, we may take notice of the argument advanced by Mr.
Chari on behalf of the Association that, whenever a technical man is employed
in an industry, it must be held that he is employed to do technical work
irrespective of the manner in which and the occasions on which the technical
knowledge of that person is actually brought into use. The general proposition
put forward by him was that, if a technical employee even gives advice or
guides other workmen, it must be held that he is doing technical work and not
supervisory work. He elaborated this submission by urging that, if we hold the
supervisory work done by a technician as not amounting to his being employed
to do technical work, the result would be that only those persons would be held
to be employed on technical work who actually do manual work themselves,
According to him, this would result in making the word technical redundant in
the definition of workman even though it was later introduced to amplify the
scope of the definition. We are unable to accept these submissions. The
argument that, if we hold that supervisory work done by a technical man is not
employment to do technical work, it would result in only manual work being
held to be technical work, is not at all correct. There is a clear distinction
between technical work and manual work. Similarly there is a distinction
between employments which are substantially for manual duties, and
employments where the principal duties are supervisory or other type, though
incidentally involving some manual work. Even though the law in India, is
different from that in England, the views expressed by Branson, J., in Appeal
of Gardner; in re Maschek; in re Tyrrell, [1938] I All E.R. 20, are helpful,
because, there also, the nature of the work had to be examined to see whether
it was manual work. As examples of duties different from manual labour,
though incidentally involving manual work, he mentioned cases where a worker
(a) is mainly occupied in clerical or accounting work, or (b) is mainly occupied
in supervising the work of others, or (c) is mainly occupied in managing a
business or a department, or (d) is mainly engaged in salesmanship, or (e) if
the successful execution of his work depends mainly upon the display of taste
or imagination or the exercise of some special mental or artistic faculties or
the application of scientific knowledge as distinguished from manual dexterity.
Another helpful illustration given by him of the contrast between the two types
of cases was in the following words:If one finds a man employed because he
has the artistic faculties which will enable him to produce something wanted in
the shape of a creation of his own, then obviously, although it involves a good
deal of manual labour, he is employed in order that the employer may get the
benefit of his creative faculty." The example (e) given above, very
appropriately, applies to the case of a person employed to do technical work,
His work depends upon special mental training or scientific or technical
knowledge. If the man is employed because he possesses such faculties and
they enable him to produce something as a creation of his own he will have to
be held to be employed on technical work even though, in carrying out that
work, he may have to go through a lot of manual labour. If, on the other hand,
he is merely employed in supervising the work of others, the fact that, for the
purpose of proper supervision, he is required to have technical knowledge will
not convert his supervisory work into technical work. The work of giving advice
and guidance cannot be held to be an employment to do technical work."

After referring to Murugalli Estate, Hardypet v. Industrial Tribunal, Madras,

[1964-II L.L.J. 164], it was concluded:

"This case, thus, recognises that a person with technical qualifications can on
that account, be employed in a supervisory capacity and, in such a case, he
will be held to be employed to do supervisory work, so that, in order to be a
workman, he must not be exempted under exception (iv)."

How such a conclusion was arrived at, can be seen from paragraph 16, which
is as follows:

"We may, to clarify, this aspect, take an example of a qualified technical

Engineer who is concerned with manufacture of machines. If he himself
creates a machine with the use of his technical knowledge, he will, certainly be
held to be employed to do technical work. On the other hand, if the machine is
being made by others and all he does is to give advice or guidance, the actual
technical work will have to be held to be done by the machines carrying on the
work, while his duty will only be supervisory. A more clear illustration which
may be useful is that of a painter. If a person is employed to paint walls of a
house or paint furniture, it would clearly be employment to do manual labour.
If, on the other hand, he is an artist who paints works of art as a result of his
own creative and imaginative faculty, he would be held to be employed on
technical work even though, in creating the work he will all the time be using
his own hands to paint the picture. There can be a third case where a good
artist may have pupils working under him who paint artistic pictures and he
only guides their work. He may, on occasions, even make some improvements
by retouching the work done by the pupils. On the face of it, such a person
cannot be held to be employed to do technical work; he would be a technical
supervisor. These examples clearly indicate that, in the case of the Transport
Engineer, whose principal duties are to see that the work is properly done by
the skilled and unskilled workmen working under him, he is really employed to
do supervisory work and not technical work."So, the facts in this case are clear
enough to warrant the finding that the transport engineer was employed in a
supervisory capacity. The tests for management have been laid down in
S.V.O.C. v. Commissioner of Labour, [1959-II L.L.J. 771] at page 777. In that
case, when the meaning of a person employed in a position of management
within the meaning of S. 4(1)(a) of the Madras Shops and Establishments Act,
came up for discussion, the learned Judge held:

"In order to be in a position of management within the meaning of S. 4(1)(a) of

the Madras Shops and Establishments Act it is not necessary that the
individual should be at the top of the hierarchy or that he should have absolute
power in any respect; for except in dictatorship there is always someone over
everybody. It is not even necessary that the individual should be in sole
control or charge of a territory or branch of an organisation or of a department
of that organisation. The control or charge may be vested in a committee or
board, or it may be divided among a number of individuals. Section 4(1)(a)
itself contemplates that there can be a distribution of managerial power
because it speaks of persons employed in an establishment in a position of
management. It will be noticed that the words used are not the manager of an
establishment or 'a person employed in an establishment as its manager' but
of persons employed in any establishment in a position of management. The
words postulate that there can be a plurality of persons in an establishment
who are in a position of management.

Though the section seeks of persons in a position of management, it does not

say of what they have to be in management. But it is not difficult to see that
the management which the section envisages and with which a person may be
entrusted may be in respect of matters pertaining to a particular area or
territory, or it may be in respect of matters falling within a department, sector
or compartment. It would not be right to say that a person is not in a position
of management unless he has jurisdiction over any definite territory;
managerial position can be attained also inside a department.It is not
necessary that in order to be in a position of management the individual
concerned should have absolute power in respect of any matter. An appeal
may lie from his decisions or he may have to obtain previous sanction in
certain matters. It is not necessary again that before a person can be in a
position of management he should have the power of making appointments.

Nor again it is necessary that before a person could be said to be in a position

of management he should have the power to dismiss any employee.

Further the fact that the concerned employee had no power of attorney or
authority to enter into agreements on behalf of the management would not
make it clear that he was not in a position of management, nor the fact that his
power to incur expenditure was limited, or the fact that he had no power to
appoint, dismiss or punish any employee, should be considered to be decisive
in this regard.

If an individual has Officers subordinate to him whose work he is required to

overlook, if he has to take decisions and also the responsibility for ensuring
that the matters entrusted to his charge are efficiently conducted and an
ascertainable area or section of work is assigned to him, one would ordinarily
be justified in saying that he is in a position of management."

11. This decision was taken up in appeal and a Division Bench of this Court,
reversed the decision of the learned single Judge. Thereupon Civil Appeals
were preferred to the Supreme Court, which is reported in Prem Sagar v.
S.V.O.C., [1964-I L.L.J., 47). At page 53 it has been held:

"That takes us to the question as to whether the appellant is an employee

whose case falls under the category of exempted cases provided for by S. 4(1)
(a). Section 4(1)(a) refers to persons employed in any establishment in a
position of management, and so, the question is when can a person be said to
have been employed by the respondent in a position by the respondent in a
position of management. It is difficult to lay down exhaustively all the tests
which can be reasonably applied in deciding this question as several
considerations would naturally be relevant in dealing with this problem. It may
be enquired whether the person had a power to operate on the bank account
or could he make payments to third parties and enter into agreements with
them on behalf of the employer, was he entitled to represent the employer to
the world at large in regard to the dealings of the employer with strangers, did
he have authority to supervise the work of the clerks employed in the
establishment, did he have control and charge of the correspondence, could he
make commitments on behalf of the employer, could he grant leave to the
members of the staff and hold disciplinary proceedings against them has he
power to appoint members of the staff of punish them; these and similar others
tests may be usefully applied in determining the question about the status of
an employee, in relation to the requirements of S. 4(1)(a). The salary drawn by
the employee may have no significance and may not be material, though it may
be treated the oratically as a relevant factor - vide Chandra (T.P.) v.
Commissioner for Workmen's Compensation, Madras and another, [1957-I
L.L.J. 55) and Salem Sri Ramaswami Bank Ltd. v. Additional Commissioner for
Workmen's Compensation and another, [1956-II L.L.J. 40].

12. These are the tests according to Mr. Vasantha Pai which required to be
applied in deciding whether the first respondent is a workman. In none of the
correspondence there is anything to show that the first respondent could take
a decision by himself. Mr. Govindaswaminathan, learned counsel for the
petitioner, drawn my attention to Ext. M. 17 and says that the he could take
decisions because the samples sent by M/s. J. Stead and Co. India (P) Ltd.
Madras, had been rejected by the first respondent for certain stated defects.
However, it requires to be noted that the first respondent merely reiterates the
rejection by the Inspection Department and he did not take an independent
decision, because it is stated there under:

The sample of the Tube to Part No. 322953 and Flange to Part No. 520690
also been rejected by Inspection Department due to reasons mentioned
above."
13. As rightly contended by Mr. G. Vasantha Pai, none of the tests adumbrated
in Prem Sagar v. S.V.O.C. [1964-I L.L.J. 47] at 53 could be validly applied
here. The correspondent are incomplete. In my considered view, one of the
vital documents which has to be borne in mind is Ext. W. 5. That lays down the
norms relating to the supply division. The company directive states:

"Price Negotiation Committee:

The price negotiation Committee under the Chairmanship of Mr. K. S.

Ramaswami Executive Director, will continue to function in the present manner
and comprise of Mr. S. Sankaranarayanan. Executive Director, Mr. K. K.
Ramachandran, Manager, Technical Division and remain to examine and resist
price revision claims submitted by Manager, Supply Division, and to make final
recommendation to the Managing Director.

Licence Policy Direction:

Overall licence Policy Direction will continue to be the responsibility of Mr. K.

S. Ramaswami, Executive Director.Manager Supply Division:

Mr. S. N. Kuba is appointed Manager, supply Division and will be responsible

to the Managing Director for all supply activities including shipping and
licensing with special emphasis on buying at the most advantageous prices
and ensuring that production requirements are not regarding the question and
quality of deliveries. This includes very strict control of purchases within
budget limits and supply price reductions. 14. Admittedly the first respondent
was working under. Mr. Kuba and why none of the persons connected with the
supply department i.e. either Kuba or Ezhumalai, was examined is not
explained. M.W. 1 cannot and does not have any personal knowledge because
his length of service is only three years as apprentice. If really the first
respondent was dealing with contracts amounting to several lakhs of rupees
and was taking independent decisions, the management ought to have let in
better evidence and it has failed miserably to do so. The decision in B.S.O.S.
& D. Co. v. Management Staff Association [1970-II L.L.J. 590] cannot advance
the case of the petitioner, because I have already extracted paragraph 15 of
the judgment, by reasons of which the only conclusion possible was Transport
Engineer was working in a supervisory capacity. I may also state that there is
a shift in the stand of the management. Originally, the stand was taken that the
first respondent was working in his supervisory capacity, but later, as seen
from grounds Nos. 3 and 4 of the write petition, an argument is put forth as if
he was working in an administrative or managerial capacity. None of the letters
produced would support the argument that the first respondent was working in
an administrative or managerial capacity. It is true that the third parties
addressed letters to the first respondent, or at least his attention was drawn
but so long as he does not decide and is obliged to work under the chief buyer,
as clearly stated in paragraph No. 2 of the counter of the management before
the Labour Court, he cannot be held to be either working in his managerial or
administrative capacity. I am also unable to appreciate the stand of the
management that merely because Mr. Kuba is also obliged to work under
Managing Director, he cannot be called a workman. That will depend upon the
nature of duties allocated and the right to take independent decision. For the
sake of administrative convenience letters are addressed or attention of the
first respondent was drawn without he being in a position to take independent
decisions. Even as the incomplete correspondence would show the first
respondents position cannot be compared with that of Mr. Kuba. In this
connection it will not be out of place to refer to paragraph 3 of the counter
statement of the management before the Labour Court, which reads:"Without
prejudice to the above contention this respondent submits that the petitioner
has absolutely no case on merits also. As alleged in paragraph 3 of the claims
statement, the petitioner after completing his apprenticeship was appointed as
a Foreman in the Machine Shop. He could not manage the labour properly and
he himself requested for a transfer to some other department and at one stage
he even wanted to resign from the company, to take care of the family
business. In the light of the request made by him, he was transferred from
steel forging line to the west shop casting line and then subsequently to the
Supply Department as he could not discharge his duties properly in the
machine shop and the management really wanted to give an opportunity to the
petitioner to show his skill in another filed."

15. This is an added point to be put in favour of the first respondent in that he
could not manage the workmen, and therefore, he was transferred to this
department.

16. The vehement attack of Mr. Govindaswaminathan against the award is on

paragraph 10, which is as follows:

"All these correspondences were signed by the petitioner as Development

Officer, not in his administrative of managerial capacity and only in his
technical capacity. Just because he has signed correspondence or
correspondences went in his name, was he administering or managing. As a
technical person he dealt with the subject of technical parts. The specification
on requirements. The suggestion regarding the process of manufacture,
rejection of the materials supplied under reasons stated, the suggestion
regarding the improvements to be made all these would have been done by the
petitioner purely as an engineer, i.e. development engineer called development
officer, Just because his designation carried along with the word,
'development' the word 'Officer', i.e., he does not cease to be a technical
officer. The Chief Buyer may decide the non technical matters. Even in his
technical capacity he was not administering of managing. The correspondence
and discussions to and fro in the name of the development officer i.e. the
petitioner was in the technical capacity as the contents thereto would reveal.
In the result, I find that the petitioner was doing only technical work i.e. he was
functioning in his technical capacity alone, and so he is a workman under
S.2(s) of the Industrial Disputes Act."It is true as a general proposition of law,
as laid down in B.S.O.S. & D. Co. v. Management Staff Association [1970-II
L.L.J. 590], where a person is employed by reason of his technical
qualifications is a supervisor or a manager or even an Administrator he cannot
claim to be a workman because he would fall under the exempted category,
But, the facts here are entirely different, as seen above. Thus I conclude that
the first respondent was working only in his technical capacity. But not either
in his administrative capacity of managerial capacity. The factual findings
arrived at why the Labour Court is unassailable and such a finding as laid
down in Andhra Scientific Co., Ltd. v. Seshagiri Rao and another. [1961-II
L.L.J. 117] at 119, cannot be interfered with under Art, 226, of the Constitution
because it is stated thereunder:

"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 S.2(s) of the Act, the High Court, would not
interfere under Art, 226 except in cases where there is clear error on the face
of the record."

However, Mr. Govindaswaminathan, would drawn my attention to Pabbojan

Tea Co. v. Labour Court, Assam, that passage reads.

"On a consideration of the nature of the duties entrusted to the respondent we

have no hesitation on to hold that in all his activities he represents the
management. The Supreme Court in Secy. M.G.C. Employees' Unions v.
Management, [1967-II L.L.J. 720], observed:

The Labour force includes manual or technical workmen but not only also
those whose services are necessary or considered ancillary to the productive
labour of others but does not include anyone who, in an industrial sense, will
be regarded by reason of his employment or duties as ranged on the side of
the employers. Such are person working in a managerial capacity or highly
paid supervisors.""In the instant case considering the type of the business of
the petitioner, the nature of duties, the terms of employment, the designation.
The pay and employments of the respondent, we have no hesitation to hold
that his work was supervisory in nature and that being so, he goes out of the
definition of workman was his salary exceeds rupees five hundred per month.
Even is his work is not supervisory, the respondent being employed mainly for
the purpose of giving advice and guidance, as held by the Labour Court and
which finding is not disputed, he does not come within the definition of
workman at all."

But, here on the fact see no warrant for holding that the first respondent was
either working in his supervisory or administrative or even managerial
capacity.

HELD:

For all these reasons, I find no difficulty in upholding the in impugned award.
According the write petition is dismissed. No costs.