IN THE COURT OF SH. RAKESH KUMAR, LD.

ADJ & PRESIDING

OFFICER,
LABOUR COURT, NEW DELHI

L.I.R. NO. 3313 OF 2017

IN THE MATTER OF:

Arvind Kumar ...Claimant/Applicant

Versus

M/s. Handygo Technologies Pvt. Ltd. ...Respondent/Management

APPLICATION UNDER ORDER 7 RULE 11 READWITH SECTION

151 OF THE CIVIL PROCEDURE CODE, 1908 ON BEHALF OF THE
RESPONDENT FOR REJECTION OF PLAINT

Most Respectfully Showeth:

1. The above mentioned matter is pending for adjudication before

this Hon’ble Court and the same is fixed for hearing on -------.

2. It is submitted that the plaint of the Plaintiff is liable to be

rejected at the outset as the Plaintiff does not come under the

purview of ‘workman’ as defined under section 2(s) of the

Industrial Disputes Act, 1947. Section 2(s) of the Industrial

Disputes Act, 1947 states as follows:

"Workman means any person (including an 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 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, functions mainly of a managerial nature.”

3. It is inferred from the above statutory definition that the Plaintiff

is not a workman as he being a ‘Sr. Associate Manager’ was

employed in managerial capacity. The Plaintiff was initially

appointed as ‘Assistant Manager, Accounts’ in 2007 with

monthly salary of Rs. 18,000. Later, in 2015, the Plaintiff was

 promoted to the post of ‘Sr. Associate Manager Accounts’ along

with an appraisal. Revised salary was Rs. 32, 568.

4. It is submitted that the Plaintiff was employed in the managerial

capacity. Since he was promoted to the post of Sr. Associate

Manager Accounts from Assistant Manager Accounts, he

certainly had juniors working under him and thus, the Plaintiff

had decision making powers and the authority to bind people

with his decisions. Therefore, he is not a workman.

5. The question arose in T.P. Srivastava v. National Tobacco

Company of India, Ltd. [AIR 1991 SC 2294], was whether a

section Salesman was a workman or not. The Hon’ble Supreme

Court discussed the nature of work of a section salesman and

concluded that since his duties require an imaginative and

creative mind, his duties could not be termed as either manual,

skilled, unskilled or clerical in nature. Consequently, it was held

that such an employee cannot be termed as a workman. The

Hon’ble Apex Court observed in Para. 3, at page 15 of the report:

“It is seen from the facts found that the appellant was employed

to do canvassing and promoting sales for the company. The duties

involve the suggesting of ways and means to improve the sales, a

study of the type or status of the public to whom the product has to

reach and a study of the market condition. He was also required to

suggest about the publicity in markets and melas, advertisements

including the need for posters, holders and cinema slides. These

duties do require the imaginative and creative mind which could not

be termed as either manual, skilled, unskilled or clerical in nature.

The supervising work of the other local salesmen was part of his

work considered by the Tribunal as only incidental to his main work

of canvassing and promotion in the area of his operation. Such a

person cannot be termed as a workman is also the ratio of the

decision of this Court in Burmah Shell Oil-Storage and

Distribution Company v. Burmah Shell Management and

Staff, [(1970) 3 SCC 378 : A.I.R. 1971 S.C. 922], D.S.

Nagaraj v. Labour Officer, Kurnool, [1973 (1) L.L.N. 161], J.J.

Dechane Distributor v. State of Kerala, [1975 (2) L.L.N. 353].”

6. Hence, it is submitted that the nature of work of the Plaintiff

involves creativity and imagination and thus, he is excluded from

the definition of ‘workman’ whose nature of work is dominantly

manual, skilled, unskilled or clerical. A Sr. Associate Manager

Accounts ordinarily performs functions which are not similar to

functions performed by an accountant or clerk. A Sr. Associate

Manager Accounts is not primarily entrusted with functions

involving book-keeping, preparing of cheques, etc. The functions

of such a manager are basically examination of accounts,

auditing, financial planning, etc. these type of functions require

mental inputs, creativity and application of intellect. It is further

 submitted that a person employed in a clerical capacity would

not be earning a salary of Rs. 32,000 per month.

7. As per Black’s Law Dictionary, 10th Ed., “clerk” means ‘A public

official whose duties include keeping records or accounts.’ It is

submitted that these functions are performed by an accountant

or a person in the lower levels of the hierarchy in the financial

department of a company. The Plaintiff was not employed merely

as an Executive but as a Manager and hence, he is not a

workman u/s 2(s).

8. The Hon’ble Apex Court in Arkal Govind Raj Rao v. Ciba Geigy

of India Ltd. [AIR 1985 SC 985: (1985) 2 LLJ 401] observed:

“Where 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 the person.”

 Emphasis Supplied

9. The above position was reiterated in S.K. Maini v. M/s Carona

Sahu Company Ltd. and Ors. [AIR 1994 SC 1824: (1994) 3

SCC 510]. The Hon’ble Supreme Court observed:

“If the employee is mainly doing supervisory work but incidentally

or for a fraction of time also does some manual or clerical work,

the employee should be held to be doing supervisory works.

Conversely, if the main work is of manual, clerical or of technical

nature, the mere fact that some supervisory or other work is also

done by the employee incidentally of only a small fraction of

working time devoted to some supervisory works, the employee

will come within the purview of 'workman' as defined in Section

2(s) of the Industrial Disputes Act.”

The Hon’ble Court further observed that it is not obligatory that

a manager be vested with powers of appointment or removal of

employees. The Court held:

“It should be borne in mind that an employee discharging

managerial duties and functions may not, as a matter of course,

be invested with the power of appointment and discharge of other

employees."

10. Further, it is submitted that it is not necessary that a

person employed in managerial or supervisory capacity cannot

be subjected to approvals or checks. Reliance is placed on the

observation of the Hon’ble High Court of Bombay in Standard

Chartered Bank v. Vandana Joshi and Anr. [(2010) 2 Mah LJ

22: 2010 (112) BOMLR 69] The Court observed:

“The fact that in an organizational structure the

employee, in the course of the decision making process,

is subject to checks and balances is not a matter which

would establish that she / he is a workman within the

meaning of Section 2(s). Modern forms of business in

corporate organizations put into place a carefully

crafted process of checks and balances. Rarely, if ever,

would an employee have authoritarian control over

business decisions. Employees are made subject to

checks and balances both at the lateral and vertical

level. Managerial decisions are subject to verification

and approval.

The fact that decisions of an employee are subject to

verification or subject to a system of controls and

balances does not establish that the employee is a

workman within the meaning of Section 2(s).

Managers do not become workmen because their

decisions are structured by processes and approvals.

 Absolute autonomy is not the norm in managerial

decision making. Nor does the law insist on absolute

discretion or absolute autonomy for a person to be a

manager. Basically the answer to the question must

depend upon the dominant nature of the duties and

responsibilities.”

Emphasis Supplied

11. It is submitted that the Plaint of the Plaintiff does not

disclose any cause of action against the Respondent as he is not

a workman u/s 2(s) and was employed in managerial capacity.

Hence, the present suit is liable to be dismissed under Order VII

Rule 11(a) read with Section, 151 of the Civil Procedure Code,

1908.

PRAYER :-

It is, therefore, prayed that this Hon’ble Court may be pleased to pass

the following order (s):-

a. Allow the present application and reject the Plaint of the

Plaintiff;

b. Pass any other order or directions as this Hon’ble Court may

deem fit, appropriate and proper in the facts and circumstances

of the present case.

 RESPONDENT
Through:

ADVOCATES FOR THE OPPOSITE PARTY

New Delhi
Dated: