BURMAH SHELL OIL STORAGE & DISTRIBUTION CO. OF INDIA versus BURMAH SHELL MANAGEMENT STAFF ASSOCIATION & ORS.

BURMAH SHELL OIL STORAGE & DISTRIBUTION CO. OF INDIA

BURM.All SHELL MANAGEMENT STAFF ASSOCIATION & ORS.

November 12, 1970

[S. M. SIKRI, V. BHARGAVA AND 1. D. DuA, JJ.]

Industrial Disputes. Act, 1941-Section :(s)-'Workman', tests for determining who is.

The members of the Burmah Shell Management Staff Association, designated as junior management staff, raised an industrial dispute. The Govermitent referred the dispute to the Industrial Tribunal. The refer-ence was confined to the members of the junior Management staff working in the Maharashtra region. At the time of referern:e the lowest Sllsic salary drawn by member of the Association was Rs. 535/-. On behalf of the company preliminary objection was 'raised that none of the mem-bers of the association was workman. The Tribunal gave art interim award. The members of the aS>ociation were classified into various cate-gories. Out of these, members of six categories were held to be workmen, namely (I) Transport ;Engineer (2) District Engineers (3) Foreman (Chemicals) (4) Fueling Superintendents (5) Chemists and (6) Sales Engineering Representatives. Members belonging to four. categories were helrl not to be workmen, .namely, (I) Llending Supervisors (2) Foremen ( 3) Depot Superintendents and ( 4) District Sales Representatives. The Company challenged the decision of the Tribunal in respect of the six categories held to be workmen and the Association challenged the decision in respect of the four. categories held not to be workmen. The Associa-tion contended that whenever technical man was employed in an in-dustry it had to be held he was employed to do technical work irl'espective of the .manner in which and the occasions on which the technical lmow-ledge of that person was actually brought into use and to_ hold otherwise would result in making the word 'technical' redundant in lhe definition of 'workman' in section 2(s) of the Industrial Disputes Act, 1947 as amended. by Act 36 of 1956 .

. HELD : Of the members of six categories held to be workmen (I) Transport Engineer (2) District Engineer (3) Foreman (cbemicals) and ( 4) Sales Engineering Representative must be held not to be workmen; and of the members of four categories held not to be workmen, the t.Tjbunal elTQd with resjrect to Blending Supervisors working in the Wadilube plant.

workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. Therefore, in determining w.hich of the employees in the various categories are covered by the definition of 'workman' one has to see what is the main ·or substantial work which they are employed to do. [766 CJ

May & Baker (India) Ltd. v. Their Wprkmen, [1961] II L.L.J. 94, South Jndi'ln Bank Ltd. v. A.R. Chacko. (1964] 5 S.C.R. 625, Ananda Bazar Patrika (P) Ltd. v. Its Workmen, [1969] ·II .L.L.J. 670, Re. Dairy-men's Foremen & Re. Tailors' Cutters, (1911-12) 28 T.L.R. 587, Reid v.

British and Irish Steam Packet Co. Ltd., [1921] 2 K.B.D. 219, Jaques v. Owners of Steam Tug Alexendrt1, [1921) 2 A.C. 339, J. & F. Stone Light" ing & Rildio Ltd, v. Haygarth, [1968) A.C. Pt. 3, 157, refer'red to.

(i) The major part of the work done by Transport Engineer is that of supervision of the work of repair, maintenance, sefvicing_ and fabrica-tion which is actually carried on by machanics, fitters and other 'skilled or unskilled workmen working under him. Even if the Transport .Engi-B neer uses his technical knowledge it is used primarily for the purpose ot supervising the work done by the skilled manual labourers. If person is merely employed in supervising the work of others the fact that for the purpose of proper supervision he is required to' have technical kn,1w-lcdge 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.

(ii) The principal work for which District Engineer is employed is to supervise work done by others instead of doing the work himself. ll;is dulles consist of assessing suitability of sites for depots from the point of view .of technical and en$ineering aspects, suggestmg lay-out for constructing depots or service stations, seeing that the estimates prepared by the draughtsman arc correct from the technical point of view, scruti· nising tenders for construction, checking the construction work given to the contractor, certifying bills submitted by contractors for the work done by them and preparing estimates for maintenance in respect of depots. Even though he has to use his technical knowledge for the purpose of properly carrying on supervision, it cannot be held that District Engineer IS employed to do technical work.

(iii) The duties 'which are performed by Foreman (Chemicals) are primarily and su~stantially those of supervisory nature. His own manual work is only incidental and forms small part of bis duties. In dealina with this case, the Tribunal erred in taklna into account the duties of chemists.

(iv) The main and substantial work which ·a Fuelling Superintendent does is not that of supervisina the work done by the few workmen who ns1ist him, but is hi1 own manual work which he carries out at the depot us well 11 when dellverlna oil to the aircraft. The fact ihat Fuelling Superintendent is leader of the team which carries out the work of fuellina cannot convert his work into that of supervlaory nature, The tribunal was, therefore, correct in holdina that Fudlllna Superintendent was workman,

(v) The Chemists, no doubt, ensure that the workman assistlnJ them d, their work properly; but that small amount of supervision IS only incidental to their own technical work of testln¥ and 1iving the mulls of the tests to the company. The.,uidance and direction to the laboratory attendant and analysts is only ancillary to the main work which is done by the Chemists themselves. The Chemists have therefore b~en riahtly held to be workmen.

(vl) The mal!I work performed by the Sales Enaineerina Representa-tive la promotion of sales which are conva11ed primarily by Olstrlct Sale• Repreientati\11, This the Sales EnalneerlnJ Repreaentative doos by glvlna technical advice, holding demonstrations and suagestlna methods for making be~t use of the products sold.:, .He Is not empfo~ed on cl~rical or manual work and the amount of techn1CA! work he does 1s all ancillary to his chief duty of promoting sales and giving advice.

ivii) The Blending Supervisor who works in the· Wadilube plant is person employed on manual work and have to be held to be workman. His supervisory work is very minor part of his duties. The 1najor part of his duties consists in himself operating various parts of the inachincry an<l ensuring that oils are blended properly. The decision of the Tribunal in rclipect of such blending supervisor is therefore, incorrect.

(a) The principal work of another set of Blending Supervisors who are employed at stage where the blending of oils has already been completed and the oils have been transferred to the settling tanks is that of seeing that the barrels and other con-tainers arc properly filled up by the larger number of work-men placed under their charge who actually carry out the physical work for that purpos.c. Their duties are thus, p'rima-rily supcrvi.sory, and the tribunal's decision that Blending Supervisors doing the \vork of this nature arc not workmen is co'rrcct.

(b) the work <lone bv the third type of blending supervisors described as supervisors (Small Packages Filling) is primarily supervisory and consequently the deciSlon of ~he Tribunal . , in respect of them is also correct.

t' iii) Of the three types of duties performed by the Foreman (Tank F:irm and Pump House), viz .. Technical, skilled mannual and supervisory, hi' ;upcrvisory duties arc the main and substantial part of his work while oth~r duties are only incidental. The Tribunal was, therefore, right in hoJ.ling these Foremen not to he workmen.

t ix) The other class of Foreman (Tank Lorry Loading Tank Wagon Loading and Tank Wagon Unloading) are no doubt responsible for proper loading and unloading; hut this duty is discharged by supervising the work of manual labourers who actually perform the work of loading and tin-loading. The Tribunal's decision therefore, that these Foremen are not \Vorkmcn is correct.

(x) On the facts found by the tribunal it is clear that the principal duties of Depot Superintendents are of supervising and managerial while the clerical duties arr only incidental. Consequently the decision given by the Tribunal that Depot Superintendent• "'c employed on managerial or supervisory work and are not workmen is correct.

Burmah Shell Oil Stora11e & Di.<tributin11 Co. of. India, Madra< v. Their Employee.<, [1954] I L.L.J. 21 and Burmah Shell Oil Storage & Di.<tri/111ti11g Co. of India Ltd., Madra.< v. Labour Appellc.te Tribunal of India and two. Ors, [1954] 2 L.L.J. 155 (Madras H.C.), held inapplicable.

· B11rmah ,,Shell Oil Storage & Di.<trib111i1w Co. of llldia Ltd.. M<1tlra.1 """ Hyderabad Brc.nche.\' v. Their Workmen, [1955] 2 LLJ. 153 (L.A.T.) and Burmah Shell Oil Storage & Distributing Co. of India Ltd., Madrt1.\' Brancf1, Mysore & Travancore Cochin St.ates v. Their Work111en. [1955] 2 L.L.J. 228 (L.A.T.), referred to.

(xi) The case of District Sales Representative is clearly that of person who cannot fall within any of the four classes mentioned in '· 2(s) because his work cannot be held to be either manual, clerical, teehni· cal or supervisory. The work of investigating and promoting sales cannot be incl_uded in any of these four classifications. He is, therefore. not workman.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1477 & 1478 of 1970.

Appeals by special leave from the Award dated January 9, I 970 of the Industrial Tribunal, Maharashtra, Bombay in Ref. (IT) No. 378 of 1967.

S. D. Vimad/a/, F. N. Kaka and /. N. Shroc, for the appellant lin C.A. No. 1477 of 1970) and respondent No. 1 (in C.A. No. 1478 of 1970).

A. S. R. Chari, H. K. Sowani, K. Rajendra Chaudhuri and Pratap Si11gh, respondent No. 1 (in C.A. No. 1477 of 1970).

The Judgment of the Court was delivered by

Bhargava, J. These two connectrd appeals by special kavc; are directed against an interim award of the Industrial Tribunal. Maharashtra, Bombay, in dispute referred by the Government, relating to the revision of scales and grade.s of pay, dearness allow-ance, overtime payment, duty allowance, other allowances, and bonus for the year 1965-66, between the employers, Messrs Bur-mah Shell Oil Storage and Distributing Company of India Ltd .. Bombay (hereinafter referred to as "the Company") and set of employees who were designated as junior management staIT and were members of the Burmah Shell Management Slaff Association registered as trade union. The reference was con-fined to th~ members of the junior iµanagement staff working in Maharashtra region. The main business of the Company is mark-eting of petroleum products and oils and the Marketing Area is the whole of India which is divided into four areas, viz., Bombay. Calcutta. Madras and Delhi. The reference related to the Bom-F bay area. The organisation and management of each area is divi-ded into four function, Marketing, Distribution, Personnel and Finance. Each one of the four Areas is itself divided into several Marketing Divisions and each Division is further sub-divided into five or seven sales dist.ricts as the case may be. For the sale of commodities, in which the Company deals, there are various outlets, such as petrol pumps, storage depots, etc. ThC' Company also undertakes the work of fuelling of aircraft at the Airfields which work is done by the Airfield Service Stations. For purposes of storage and distribution of products handled by the Company, the Company maintains port installations as wcli as upcountry depots. The staff concerned in this reference is em-ployed at the installations or the depots in the Maharashtra

region.

Though the members of the Association are described n> junior management staff, they claimed that they were work-

men as defined in the Industrial Disput•.::s Act No. 14 of 1947 (hereinafter referred to as ":the Act") and, on thaot basis, raised an industrial dispute relating to salary, etc., as mentioned above. The Association served charter of demands on the Company on 29th November, 1966. The Government ref~rred the dispu·te to the Indu~trial Tribunal on 28th October, 1967 On 2nd December, 1967, the Association put forward its statement B. of claim before the Tribunal. On behalf of the Company, pre-liminary written statement was filed on 15th January, 1968, con-tending that none of the members of the Association was work-man, so that the reference was incompetent. In this written statement, it was stated that the Company would request the Tribunal to decide this que>tion as preliminary issue and that ~ ~ri!ten statement on merits would only be filed . subsequently, if it is he1d that all or any of members of the Association are workmen within the Act. rejoinder statement was filed on behalf of the Association on 27th March, 1968. The Tribunal gave it3 finding on the preliminary issue as an interim award on 9th January, 1970. The members of the Association were classi-fied into various categories of whom we need mention only 10 which are involved in these two appeals. Out of these 10, members of 6 categories were held to be workmen and these are:

( 1) Transport Engineer

( 2) District Engineers

(~) Foreman (Chemicals)

( 4) Fuelling Superintendents

(5) Chemists

( 6) Sales Engineering Representatives.

Members belonging to 4 categories were held not to be work-

men. These categories are :-

( 1) Blending Supervisors

(2) Foremen

( 3) Depot Superintendents

( 4) District Sales Representatives.

Civil Appeal No. 1477 of 1970 has been brought up by the Company challenging the decision of the Tribunal in respect of the '6 categories held to be workmen, while Civil Appeal No. 1478/1970 has been filed by the Association challenging the cor-rehness of the decision of the Tribunal in respect of the 4 cnte· ~cries held not to be wqrkmen.

BURMAH SHELL co. v. STAFF ASSOCIATION (Bhargava, J.) 763

Some general features with regard to the members of .the Assocation \nvolved in these appeals may be stated. At the tune of the reference, the lowest basic salary drawn by the member of the Association was Rs. 535/ - per mensem, while the highest was Rs. 1500/. per mensem. In addition, the members of the Association are paid dearness allowance equal to 30 per cent of basic salary, House-rent allowance, leave fare assistance, and bonus.. Medical benefits are also provided for them and their families. The Company contributes to the P1ovident Fund of the mell!bers at 10 per cent of basic salary and these members on retirement are also entitled to pension which varies between 30 per cent and 50 per cent and 50 per cent of basic salary. The number of persons involved in the reference in the Maha· rashtra region is 140. The effect of the decision of the Triburial is that 98 employees belonging to 4 categories have been held not to be workmen, while 42 employees belonging to 6 cate· gories have been held to be workmen. The decision in these appeals can, however, have wider repercussions because, in the whole of India, the total number of persons belonging to these categories would be 648. If the Tribunal's decision is upheld 154 of them would be workmen and 494 would be non-workmen. it may also be noticed that the majority of the .persons· concerned in this reference originally started at salary of Rs. 100/-to Rs. 200/-per mensem and it is only as result of promotions; revision of salaries and length of service that they are now drawing basic pay at the rates mC\ll· tioned above. All persons appointed to the posts now held by them were originally described as Supervisors or 1ield staff; but, in the year 1962, they came to be designated as junior manage· ment staff. The Association got itself registered under the name "Bunnah Shell Management Staff Association".

In order to decide whether the decision of the Tribunal with re&pect to the various categories is correct, it is necessary to con· sider the definition of "workman" in the Act as amended by In· dustrial Disputes Amendment Act 36 of 1956. That definition is reproduced below :-

"2. (s) "workman" means llny person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reword, whether the terms of employ-ment be express or implied, and for the purpose of any proceeding under this Act in relation to an indus. trial dispute, includes any such person who has been dis· missed, discharged or retrencked in connection with, or as consequence of, that dispute, or whose dismissal,

discharge. or retrenchment has led ·to that dispute, but d<Jv• not mclude any 1td1 person-

(i) who is mbject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Ac<, 1934; or

(ii) who is ~mµloyed in the poli~e service or as an officco· o;- other employee of pri_son or

(iii) who is emrlo)crl m~inly in managerial or ad-minisirative capacity; or

(iv) who, being employed in supervisary capacity, draws w~ges exceeding five hundred rupees per rnensP.m or exercises, either by the nature of the duties attached to the office or by reasan of the powers vested in him, functions mainly of managerial nature."

For an employee in an industry to be workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such nature, he would not be workman. Mr. Chari on behalf of the Association, however, put forward the argument that this definition is al! comprehensive and, contemplates that all per--sons employed i11 an industry must necessarily fall in one or the other of the four classes mentioned above and, consequently, the Court should pr~ceed on the assumpticm that every person is workman; but he may be taken out of the definition of 'workman' under the four exceptions contained in the definition. The two exceptions with which we are primarily concerned are exceptions (iii) and (iv). Uin:der exception (iii). even :a workman, who is employed mainly in managerial or administrative capacity, goes out of the definition of 'workman' while under exception (iv), persons, who are employed in supervisory capacity, go out. of the definition, provided they either draw wages ex9eeding . ·Rs. 500/ · per mensem or exercise, by the nature of the duties attach-ed to the office or by reason of the powers vested in them, func-tions mainly of managerial nature.

We are unable to accept this submission. In the case of May and Baker (India), Ltd. v. Their Workmen(!), this Court had to consider the currectness of decision of Tribunal which had 11eld that one Mukerjee, ·an employee in an industry, was work-

(!) [19611llL.L.J.94.

man under the Act because he was not employed in su,1ervisory capacity. The Court held :-

"The Tribunal seems to have been led away by the fact that Mukerjee had no supervisory duties and had to work under the directions of his superior officers. That, how-B ever, would not necessarily mean that Mukerjee's duties were mainly manual or clerical. From what the tribunal itself has found it is clear that Mukerjee's duties were mainly neither clerical nor manual. Therefore, as Muker.iee was not workman, his case would not be covered by the Ir.dustrial Disputes Act and the tribunal would have no jurisdiction to order his reinstatement." In that case, the Court thus held Mukerjee not to be workman on the ground tha:t his work was neither clerical nor maraml which was the nature of the work envisaged in the definition to mak~ an employee workman. It is true that that decision wtis giv~n on the definition of "workman" as it stood before the Amendment 0 o! 1956 wh..:n the words "supervisory" and "technical" did not occur in the definition. Mr. Chari's submission is that the amend-ment is 1956 in1roduced the words "supervisory" and "technical'' with the object of making the definition ali-comprehensiw" hut. on the face of it, it cannot be so. If every employee of an indu:;try was to be workman .excep\- those mentioned in th~ four exceptions, these four classifications ne.ed not have been mention-ed in the definition and workman could have been dclincd as person employed in an industry except in cases where he was covered by one of the exceptions. The specification 0[ th~ tour types of work obviously is intended to lay down that 8n cmpJO)'~'" is to become workman only if he is employ.ed to do work nr one of those types, whil·~ there may be employees who, not doin~ any such work, would be out of the scope of the wore' "work!nan" having to resort to the exceptions. An example, which appears to be very clear, will be that of person employed in cannssi1lg sales for an industry. He may b.e required to do any paper work. nor may he required to have any technical knowledge. H>: may be doing any sk1iled or unskilled manual work. He would >till be an employee of the industry and, obviously; such an employee would not be workman, because the work, for which he is em-ployed, is not covered by the four types mentio .1ed in the defini-tion and not because he would be taken out of lb definition under one of the exceptions.

. The. next aspect that has to be taken notice of is that, in prac· tree. quite larg·~ number of employees are employed in indus-tries to do work of more than one of tt,e kinds mention-ed in the definition. Jn cases where an employee is employ~d to

do purely >killed or unskilled manual work, or supervisory work, or technical work, or clerical work, there would be no diffi· culty in holding him to be workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work, or he may be doing clerical work as well as supevisory work. He may be doing tech1nical work as well as clerical work. He may be doing technical work as well as supervisory work. In such cases, it would be necessary tq determine under which classification he will fell for the purpose of finding out whether he does or does not go out of the definition . of "\\·orkman" under the exceptions. The principle is now well-settled that, for this purpose, workman must be held to be-em-ployed to do that work which is the main work he is required to do, even though he may be incidentally ., doing other type of work. In the case of May & Baker (India) Ltd. ([1]), the Court. in the quotation cited above, notiCed the fact that Muker-jee's duties were mainly neither clerical nor manual. The signi-cance attaches to the word "mainly'', because Muker;ee's duties did illvolve some clerical and manual work; y.~t, he was held not to be workman.

In South Indian Bank Ltd. v. A. R. Chacko("),

the Court

applied similar test when it held :

"We can find no mistake in the approack of the Labour Court to the question nor can we see any justi-'fication for interfering with its conclusion on the evi-dence in th.e case. All the relevant documents produced have been duly considered by the Labour Court in the light of the oral evidence given; a:nd on such considern. tion it has come to the conclusion that though on paper certain rights and powers were assigned to him and occasionally he acted in the place of the Agent when the Agent was absent, such duties did not form part of I* principal and main duties."The Court, thus, approved of the test of findinf! out which duti~s were the principal and main duties.

In Ananda Bazar Patrlka (Private) Ltd. v. Its Worl<me11([3]), this Court clearly enunciated the principle by stati,ng.

"The principle which should be followed in deciding the question whether person is employed m super-visory capacity or on clerical work is that if person is mainly doing supervisory work but incidentally or for :i

(il [1961] JlL.L,J. 94,

f"l 11964) S S.C.I<. (,~;.

(3) [1969] II L.L.J. 670:

fraction of the time also does some clerical work, i• would have to be held ~hat he is employed in super-visory capacity, and. convetsely, if the main work done is of clerical natur.e, the mere fact that some supervisory duties are also carried out incidentally or as s'lrnll fraction of the work done by him will not convert his employment as clerk into one in superv!sory capacity."

Dealing with the facts of that case., the Court found that G'.!pta, the employee concerned, was emp!oyed on clerical work and not in supervisory capacity. The principal work that Gupta was c!oing was that of maintaining and writing the cash-book and of prepar-e ing various returns. Being the senior-most clerk, he was put in charge of the provident fund section and was giv~n small amount of control over the other clerks working in his section. The only powers he could exercise over them was to allocate work between them, to permit th~m to leave during office hours, and to recommend their leave applications. These few minor duties of supervisory nature could not conveq his office of senior clerk in charge ~nto that of supervisor.

Assistance in this matter is also available from decisions by Courts in England where, in connection with the applicability of the Factories Act, and other Acts, the Courts had to decide whether an employee was employed on manual labour or not. The earliest case is Re Dairmen's Foremen and Re Tailors' Cut-ters(1). After referring to decisions on the Employers and Work-men's and Compensation Acts, Swinfen Eady, J., held that those cases really afforded assistance in determining the true meaning of this statute. In his opinion, although they might perform manual labour, the question was whether that was the real substantial em-F ployment for which they were engaged or whether it was not inci-dental or necessary to it. Applying this principle to the case of Tailors' Cutter, it was held :-

"The actual labour of cutting out cloth might be ma1nual labour, but the position be really occupied was manager of business department. His duties therefore substantially were not th.ose involving manual labour and he was not within the Act."

In Reid v. Eritish and Irish Steam Packet Company Limited('). ~eference was made to an earlier decision by that very Court in Jaques v. Owners of the Tug Alexandra(•) which decision was remdered on November 18, 1920, and in which the Court adopted the definition which was given by the late Master of the Rolls sitting as Judge of first instance, of the meaning of "employed otherwise

than by way of manual labour." That meaning was approved by saying :--

"What that learned judge said was, that the question whether person is employed otherwise than by way of manal Jabour within the meaning of that section is to be determined by considering whether any manual Jabour that he may do in the course of his· service is the real substantial work for which he is engaged, or whether it is only incidental or accessory thereto; if it be the latter, the employment is not in manual labour."

This principle was also later approved by the House of Lords in the appeal, which came before it against the decision in the case of Jaques v. Owners of Steam Tug Alexandm, decided on July 4 1921 ( [1]), where Lord Buckmaster in his speech said :

"The difficulty that arises in the construction of the statute is due to the number oi employments in which it is impossible to assert that the employment is solely/ manual Jabour or is solely exclusive of manual Jabour, and it has been held in series of cases approved in the present instance by the Court of Appeal that in these circumstances the real test is the substantial nature of the employment. If that be manual Jabour the fact that there are other duties performed that could not be so described does not take the employee outside the benefit of the statute. If, on the other hand, the substantial part of the employment cannot be des~ cribed as "manual" labour, the fact that manual work has to be performed does not brir.g him within. This test, which in my opinion is the only reasonable one that ca,n be applied to the statute is, I think, the one that :vas accepted by the learned county court judge, and 1f that be so, unless the proved facts are of such character that it was not open to him to hold that by their proper application the deceased was excluded from the Act, his finding 1s condusive and cannot be ques-tioned."

similar principle was indicatecl by Lord Wrenbury in the fol-lowing words :-

"The qu.~,tion t'.l be answered I think is this : When the employer offered and the man accepted the employ-ment, was it substantially an offer of manual labour although it involved some other work, or was it an

olfet of 0ther work although there was attached to it a11 obligation to do some manual labour? To put this patticular case : Was the employment that of mas-ter of the tug with the duties and responsibilities attach-ing to that office but coupled with an obligation to take part with the crew in the manual work, or was the employment that of 11 manual labourer who was to be rnsponsible for the tug as senior man among the crew.,,, In /. & F. Stone Lighting & Radio Ltd. v. Hargarth, [1 ]), the same test of the substatial nature of the employment was applied in interpreting the words "employed in manual labour" in th.e Factories Act. Thus, in the present case also, in determining which of the employees in the various categories are covered by the definition· of "workman", we have to see what is the main or substantial work which they are employed to do ? If it . is supervisory work, it would be held that they were employed to do supervisory work even though they may also be doing some technical, clerical or manual work. If, on the other hand, the supervisory work be incidental to the main or substantial. work of any other type, viz., clerical, manual or technical, the employmeint would not be in supervisory capacity. It is in the light of these principles that we shall now proceed to examine the correctness of the decision of the Tribunal in respect of various·categories of workmen involved in this reference. We shall take them up in the order in which they were discussed by the counsel for parties in the course of their arguments.

1. Transport Engineer :

The Transport Engineer works. in the Central Garage at Sewree Installations which is maintained for the purpose of re-F pairs and maintenance of all motor vehicles owned by the Com-papy as well as for fabrication of bodies of lorries. The Tribunal in its award has mentioned various · duties carried on by the Transport Engineer, after considering the evidence given by Mathai who is working as Transport Engineer and was exa-mined as witness by the Association, as well as the evidence of Varkie, the witness examined on behalf of the Company, and who was in charge of the Sewree Installations as whoie. It appears that Mathai obtained some technical qea!ifications by working as an apprentice in the Bombay Garage at Santa Crm. for period of four years and, thus, gaining knowledge as an automobile mechanic. He worked as Fitter, Mechanic and, later, Assistant Foreman in the Bombay Garage. Aft~r that, he worked in the Bombay Electric Suoply and Transport Under-taking as Foreman. He was appointed as Transport Engineer

7-L694Sup.Cl/71

in the Company in 1951. Previously; there ~sed !'>. be ilir~e Transport Engineers in the Central Garag.: with about .1;15 workmen under them. Since period of six months pret:~dmg the order of reference, Mathai was the sole Transport Engmeer posted in the Central Garage ·ain.d he admitted that he was the senior most Officer in it. According to him, the Transport Engineer is responsible for the ~nfire work of repairing, servicing and maintenance of vehicles as well as for the work of modi-fication and fabrication cf motor lorries. In that connection, he himself checks the vehicles that are brought to the Central . Garage for repairs, has to locate faults by actually driving the vehick: for road test, and then explains the manner in which the fault is to be removed or repaired to the workmen working under him. He has to see that the work of repair, servicing and maintenance is properly carried out by the mechanics, fitters, etc. After the work is ·completed, he has himself to inspect and check the vehicle and thereafter certify its road-worthiness. Origina!ly when there were three Transport Engineers in the Cen-tral Garage, they had 115 workmen carrying on the work of repair, 0 servicing and maintenance and fabrication, etc. From the time that Mathai has been the sole Transport Engineer, the persons working under him are 58· in number. Amongst these 58 work-men are 13 Mechanics, 22 Fitters in three different grades, 3 Turners, 2 Welders, 5 Auto-electricians, 2 Carpenters, 3 Painters and remaining 8 are semi-skilled or unskilled Mazdoors. All these men work as direct subordinates of Mathai. Mathai admits that he has to guide them as to how the job is to be done, though -he adds that, in fact, he works with them. He gives them direc-tions as to how the work is to be done if it is not being carried out properly. He allocates the job to the workmen and also re-allocates the jobs when necessary. Every-day, there are roughly 15 to 20 jobs to be carried out. He goes round to see how the jobs are being done by the workmen. The work of dismantling, repairing, etc. is general!y done by skilled or highly sldlled work-men and it is only when the work is of special technical charac-ter that he himself has to attend to it. Varkie's evidence, as re-produced by the Tribunal in the award, shows that Mathai super-vises the work of the mechanics, fitters, .etc. and ensures that re-G pair schedules are adhered to by them. Varkie also stated that Mathai instructs and guides the workmen in diagnosing the defects as and when necessary, so that he parJy contradicts Mathai who stated that defects in all vehicles are first diagnosed by him. Varkie also stated that the Transport Engineer maintains discipline in his department, initiates disciplinary action as and when necessary, ensures that operations in the Garage are carried out efficiently, reports on the performance of the workmen working under him, and sanctions leave in the case of labour staff working under him,.BUB.MAH SHELL co. v. STAFF ASSOCIATION (Bhargava, /.} 771

· while, in some other cases, he recommends leave to be granted to workman. The statement of .Varkie that, Mathai sanctions leave is denied by Mathai in his evidence. The Tribunal has not recorded clear finding accepting the version ·of one witness or the other. Some documentary evidence was produced to show that, in cases where the leave asked for did not exceed 18 days, the chits were signed by Mathai as In-charge Department which, accorc;ling to Mathai, indicated that he was recommend-ing leave and not sanctioning leave. In this connection, our attention was also drawn to Rule 19(b) of the Standing Orders of· the Company under which only the Manager. was authorised to grant leave, except in cases where he may delegate his autho-C rity to some other officer. Varkie stated that he had delegated his authority to Foreman working under him and equated Transport .Engineer with Foreman; but no written authority was produced. We shall, therefore, proceed on the basis that,. in the matter of leave, all that is established is that Mathai had to recommend leave applications and, as admitted by him, his recommendatioll$ were almost invariably accepted. It is not ne-D QeS$11ry to give further details of other minor duties carried on by Mathai; but the above facts relied upon by tlie Tribunal show that the major part of the work done by Mathai is that of super-vision of the work of repair, maintenance, servicing and fabri-cation which is actually carried on by mechanics, fitters and other skilled or unskilled·workmen working under him. His own perSonal work comes in at the first stage when he may have .to diagnose the defect by actually driving vehicle, if necessary, and, again, when he himself tests the vehicle after the work on it has been completed and certifies it as road-worthy. As many . as 15 to 20 jobs are carried on in day simultaneously and it is 1 obvious that he could not himself perfonn those jobs personally. In respect of these jobs, all he could do was to supervise the work being done by the skilled and unskilled workmen to ensure that the jobs were properly done, On the face of it, the major part of his duties, thus, consists of supervisory work rather than his owii personal technical work which is only incidental to the main work of repair, servicing, maintenance and fabrication inasmuch· · as, in his supervisory capacity, he diagnoses the defects and later on inspects the work done, makes his personal test anct certifies that it has been properly carried out.

Despite· these facts, the Tribunal held the Transpon Engi-neer to be workman on the ground that he was employed be-cause of his technical knowledge and, even in supervising the· work of the workmen, he is required to make use of his techni-cal knowledge, and, consequently, rejected the plea of the Com-pany that the Transport Engineer cannot be said to be employed to do supervisory work. It appears to us that, in giving this

in giving this

decision, the Tribunal misdirected itself. Even if the Transport Engineer uses his technical knowledge, it is used primanly for the purpose of supervising the work done by the: skilled manual labourers 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 O!l the ground that, in the matier of allocation of work, the Trans-B port Engineer does it on equitable basis, that it is his duty to get the.job done in proper manner, that, in distributing or allocat-ing or reallocating the work, the main cqnsideration which weigh with the Transport Engineer is whether the work is exe-c.uted efficiently from 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 5ngineer is not supervisory in <:haracter.

In this connection, we may take notice of the argument ad-vanced by Mr. Chari on behalf of the Association that, when-ever technical man is employed in an industry, it must be held that he is employed to do technical work irrespective o,f the manner iiJl which and the occasions on which the technical know-ledg of that person is actually brought into use. The general proposition put forward by him was that, if technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and· not supervisory work. He ela-borated this submission by urging· t1'at1 if we hold the supervi-E sory work done by 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" redundan'. 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 supervi-sory work done by technical man is not employment to do tech-nical work, it would result in only manual work being held to be technical work, is not at all conect. There is clear distinc-tion between technical work and manual work. . Similarly there is distinction between employments which are substantially for manual duties, and employments. where the principal dul!es 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(') are helpful, be-cause, there also, the nature of the work had to be exa."llined fl to see whether it was manual work. As examples of duties dif-

BURMAH SHELL co. v. STAFF ASSOCIATION (Bhargava~ J.) 773

ferent from manual labour, though incidentally invo1ving manuai work, he mentioned 'cases where worker. (a) is mainly occu• pied in clerical or acco~ting work, or (b) is mainly occupied illl supervising the work of others, or ( c) is mainly occupied in managing business or department, or (d) is mainly en-gag~d in salesmanship, or ( e) if the successful executi.>n cf his work depends mainly upon the display of taste or imagmation or the exercise of some special mental or artistic faculty or the ap-plication of scientific knowledge as distinguished from manual dexterity. Another helpful illustration given by him of the con-trast between the two types of cases was in the following words:-

"If one finds miw employed because he has the artistic faculties which will enable hin) to produce something wanted in the shape of creation of his own, then obviously, although it involves good deal of manual labour, he is employed in order that the em-, ployer may get the benefit of his creative faculty!'

The example ( e), given above, very appropriately applies to the ca~e of .person employed to do technical work. His work depends upon special mcmtal training or scientific or technical knowledge. If the man is employed because he possesses such faculties and they enable him to produce something as creation ol 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 ~o through lot of manila! labour. If, on the other hand, . he ,, 1s merely employed in supervising !he work of oth~rs, 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.We may, to clarify this aspect, take an example of. quali-fied technical Engineer who is concerned with manufacture of machines. If he himsel{ creates machine with the use ot 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 gmdance, the actual technical work will have to be held to be done by the mechanics carrying on the work, while his duty will Qnly be supervisory. more clear illustration which may be useful is that of painter. If person is employed to paint walls of house or paint furniture, it would clearly be employment to de manual labour. If, on the other hand, he is an artist who paints works of art as result of his own creative and imagina-tive faculty, he would be held to be employed qn technical work,

even though, in creating the work, he will all the time be usirig his own hands to paint the picture. There can be third case where 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 .re-touching the work done by the pupils. On the face of it, such person cannot be held to be employed to do technical work; he would be 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 un-skilled workmen working under him, he is real!y employed to do sl'pervisory work and not technical work.

Reference may be made in this connection to decision of learned single Judge of the Madras High Court in Murugalli Es-tate, Hardypet v. lndus1rial Tribunal, Madras and Another([1]). In that case, he was considering the question whether one Dr. Srinivasan, medical attendant employed in an industry, was workman. The learned Judge held :-

"In my opinion, this view overlooks the fact that · Dr. Srinivasan was charged with particular duties of supervisory character, because of his technical qualifi-catioo and level of his ability and skill. It is t.hat qua-lification which the management recognized as enabling the doctor to be in charge of the supervisory y,ork of the nature mentioned above. That being the purpose of the employment, merely because, being technical man Dr. Srinivasan was called upoo to attend to patients, it could not be stated that he did ainy the. less super-visory work. It may be that if the duties are measured by time, he spent more time in attending to pauents. But that, I consider, cannot be regarded as determin-ing the ma1n functiqns of Dr. Srinivasan. The main fuhction for which he was appointed may not occupy as much time· as the medical attendance on patients. All th'e same, the fact that it is technical employment for particular purpose, because of particular quali-fications, they should not be lost sight of in determin-ing the character of the employmoot. The test to be applied, to my mind, to cases of technical employment, such as in this case, should be the purpose for which the employment is made, irrespective of whether the performance of the duties may or may not occupy the entire time of the employee. That is because the em-ployment is made on the basis of the particular level of professional efficiency and technical qualifications. If

BURMAH SHELL co. v. STAFF ASSOCIATION (Bhargava, I.) 775

an employee is found suitable for supervisory work, be-cause of those reasons, it cannot be said that his func-tions are mainly those of medical attendant, as, on account of his professional qualification, he happen-ed to be engaged in that capacity as well."

This case, thus, recognises that person with technical qualifi-cations, can on that account, be employed in supervisory capa-city and, in such case, he will be held to be employed. to do super-visory work, so that, in or4er to bi: workman, he inust not be exempted under exception (iv).

The First l,,abour Court, West Bengal, in lndamer Company (Private) Ltd. v. Barln Dt and Anothtr([1 ]), applied the same test in detennipiing whether an Aircraft Maintenance Engineer (A.M.E.) is workman or not. The Court found that the Air-craft C~:fany was employing 5 A.M.Es. and they had 30/35 skilled unskilled mechanics working under th.em. The daily maintenance of an aircraft was considerable t11$k ·and the work had to be done at recurring intervals. The A.M.Es. could not physically undertake all the task and that was why the Company had ·a larger staff of qualified mechanics who actually did the job under the ~pervision of the A.M.Es. After the actual ser- · vicing work of the aircraft was done, .the A.M.E. was to ;nspect. that the various jobs had been completed to his satisfaction, arid he then certified the 'aircraft as air-worthy. For this purpose, he proceeded to the various machines, gave advice to the mechanics, ·so that the job was completed, visually inspected the job-instal-lation or repair, and gave certificate if it was found to be to his satisfaction. He signed the log book entries. On these facts, the Labour Court held that the A.M.Es. were employed to do supervisory work· and, since they were drawing salary in excess of Rs .. 500 per mensem, they wer not workmen. That Labour Court distinguished the decision given by the National Industrial Tribu-nal, Lucknow, in the case of The Indian Airlines Corporation v. The Air Corporation Employees' Union, Bombay and Others which Award is printed in the Gazette of ljndia Extrao~inary Part 'II-Section 3-Sub-section (ii) dated March 20, 195~. That case was distinguished on the ground that the duties of the A.M.Es. were not specified· in dm Award and there was, further-more, an admission in that case that certain parts of checking work h~ fo be done by the'A.M.Es. themselves. We have been takeJl through the Award of the National Industrial Tribunal, Lucknow, and we are unable to hold that that .. decision can be of any assistance in determining the general question whether person, possessing technical qualifications, employed on super-

(1) [19S8] 2 L.L,J. SS6.

visory duties, must be held to be employed to do technical work and not supervisory work.

Jn determining the nature of employment ol Mathai, and in holding that he is employed to do supervisory work, wr have taken irito account not only the work of supervision which he carries on in ensuring that the skilled and unskilled manual work-men employed under him are properly. doing the work of repairs, maintenance, servicing and fabrication, etc., but also the fact that the workmen function under his control and directions, that he allocates ain re-allocates work to them, that he initiates, discip-linary proceedings, etc. The exercise of such powers is clearly part of his supervisory duty. That such functions indicate that the employment is of supervisory character was laid down by this Court in All India Reserve Bank Employees Association v. Re• serre Bank of rndia([1]) where Hidayatullah, J., as he then was, expressed the view of the Court in the following words :-

"These employees distribute work, detect faults, report for penalty, make ararngements for filiing va-cancies, to mention only few of the duties which are supervisory and not merely clerical."

work, detect faults,

Thus. in the case of Transport Engineer, there is combina-tiol) of supervisory duties of two types. The Transport Engineer actually supervises the work of repairs, manitenance, servicing and fabrication which is carried on in the Central Garage by the skilled mechanics, fitters, and other workmen, and, at the same time he has the supervision over those men in the matter of giving dirccti0ns, recommending leave, initiating disciplinary proceeding,, etc. Tn this view, the decision of the Tribu~nal hold-ing that the Transport Engineer is workman has to be set aside, because, admittedly, the Transport Engineer is drawing salary in excess of R'. '\00 per me,nsem and ceases to be workman under exception (iv) of the definition.

2. District Engineers

In the case of District Engineers, the Tribunal had to consi-der the evide.nce of the Association's witness, Sirdesai, one of the District Engineers employed by the Company, and the evi-dence of the Company's witness, Manoharlal Chopra. The du-ties. which . the District Engineer performs, consist of assessing suitability of the sites for depots from the point of view of the technical and engineering aspects, suggesti~g lay.out for cons-truction of depots or service stations, seeing that the estimates prepared by the draughtsman are correct from the technical point of view, scrutinising tenders for construction, checking the cons-truction work given to the contractor, certifying bills submitted

(ll [1966] I S.C.R. 25.

by contractors for the work done by them, . and preparing esti-mates for maintenance work in respect of depots. He also gives. certificate as required by the Inspector of Explosive after satisfy-ing himself about the technical fitness the installation facili-ties. On the other hand, it appears that the principal work, for which he is employed, is that of supervision inasmuch as he is required to supervise work done by others instead of doing the work himself. The estimates are prepared by draughtsman and he only checks !hem. The scrutiny of tenders given by the con-~actors as well as checking the construction work done by the contractors is in the nature of supervisiQn, so as also certifica-tion of bills. He himself admitted that be controlled .and direct-ed constructioo and maintenance and looked after construction . and maintena,nce work of the company-owned depots in his dis· trict. He had to look after filling and servicing stations and company's office and staff quarters. He controlled and directed the work of draugtsmen, fitters and painters throughout the dis-trict. He also kept contact with Electric Supply Undertakings, Public Works Departm~t and Municipality in c9nnection with the construction work. He has one draughtsman and eight fit-ters working under him. In view of these admissions made by him, question was put to him at the end of his cross-examina-tion as follows :-

"I put it to you that you are employed principally to supervise, control and coordinate the activities of the contractors ap.d the .:ompany's men in the district for all the construction and maintenance wc.rk ?"

His answer was :-

"Yes, that is true."

The Tribunal took notice of the admission made by Sirdesai that he was employed principally to supervise, control and coordinate the activities of the contractors and the comvany's men in the district for ali construction and maintenance work, but added that the nature of supervision and control was esseintialiy tc.:hni-G cal, , and, so far as fitters and draugtsma;n were concerned, the guidance and instructions given by the District Engin~er to them were also of technical character. Holding that there was m> supervision in the sense of any administrative control or powers exercised over them, the Tribunal concluded that the District Engineer was employed to do technical work and not supervisory work. On the face of it, the decision is incorrect. The prin-ciples that we have explained above, in dealing with the case· of Transport Engineer, manifestly show t.hat District Engineer is also prir.lcipally employed to do work which is af supervisory character and, even though he has to use his technical know-

]edge for the purpose of properly carrying on supervision, it can~ not be held that he is employed to do technical work. Dis-.trict Engineer also draws salary in excess of Rs. 500 per mensem and, consequently, he cannot be held to be ·workman. The decision of the Tribunal is, therefore, set aside in respect of the District Engineers also.

.3. Foreman (Chemicals) :

The Foreman (Chemicals) examined is M. D. Daniel .. The claim of the Association was that he was employed essentially to do technical and manual work. In his evidence, he first des-. cribed the work done by Chemist which was post.held by him earlier. Giving the duties of the Foreman (Chemicals), he stated that the main part of his duties as Foreman is to be res· ponsible for the blendmg of the chemicals. He admitted that the work of packing, capping and filling is done by labourers under his supervision. He himself makes omly random checks in order to ensure that the labourers are doing the work properly. He admitted that he allots the work to the workmen under him who are 20 in number. Further, he had another. 20 workmen under . him for lorry filling of furnace oil. Tliough he . denied that he was responsible for their discipline, he admitted that he makes reports to the officer-in-charge, chemicals, whenever an occasi~n arises. He ·signs gate passes and material vouchers. He recom· mends promotions of the men working under him and he i:; entitled to select person for acting in higher capacity for the day when the person occupying the higher job is absent. It is his duty to ·ensure maximum utilisation of man-power. Like Mathai, he has also signed chits for leave not exceeding 18 days as l/C., Department; but he has also pleaded that his signature was made in token of recommendation and not sanction. '.(he 20 workmen working under him in the chemical department include checkers, general workmen, packers and chemical mixers. These duties, which are per.formed by Daniel, on the face of it, are primarily and substa111tially those of supervisory nature. His own manual work is only ·incidental an.ct forms small P'art of his duties. In dealing with his case, the Tribunal got slightly mixed up irias· much the facts relating to duties of Chemists were also taken into account. Daniel, who is now Foreman (Chemicals), was ear-'lier Chemist. The work performed by Chemist should not, therefore, have been taken into account when determining what work Daniel is employed to do. The duties, mentiQned above cleatly show that his principal duties are of supervisory nature and the manual work done by him personally is only incidental. ·since he also draws salary in excess of Rs. 500 per mensem, ·the must be held not to be workman under exception (iv).

4 . .Fuelling Superintendents :

The duties of Fuelling Superintenden~ were given to the Tribunal in the affidavit and evidence of V. M. Nabar who has been working as such since 1953. These duties c~ be broadly divided into two parts. Some duties he has to carry on at the depot where he personally takes charge and checks and counts the packed stocks that is, cans, barrels', full and empty, and he maintains the packed stocks register. He dips every storage tank for quantity, quality and water. He himself .carries to every storage tank equipmelllt like manhole cover, dip ta~, water finding paper and other articles; He takes the dip with the tape and notes down the reading. He checks the condition of the water finding paper by gently rubbing finger en it. He removes water traces from the tank by swabbing, if necessary. He conducts continuity tests of discharge hoses. He calculates !he quantity according to the dip from the calibration tables and completes the paper showing the dips and quantities for all the storage tanks. He makes similar entries in every tank book, and enters the loss or gain in the s11111e book. He also carries out checks of static facilities, and maintains book called quality control register. He himself notes down the time of arrival of the tank lorry on log sheet and carries out checks in accordance .with the details of consignment forms. In the other part of the work, whenever oil is required to be delivered to an aircraft the Fuel-E ling Superintendent himself drives the tractor on which are load-ed oil pourers and ladder, to the aircraft. It is he who takes the oil tank to the aircraft and then ensures the delivery of that oil to the ·aircraft in the required quantity. In this work, of course, he is assisted by some other workmen who actually do the work of connecting the oil tank to the i.nk . of the aircraft or disconnecting it. Similar other mtno( iaiiual work is done P by ·the workmen who function undat .bis ,pontrol and direcion. It is, however, clear that the main a~ substantial work which he docs is not that of supervising the work done by the few work-men who assist him, but is his Ov.lll manual work which he carries out at the depot as well as when deliYering oil to the air-craft.

The Company's witness in respect of the Fuelling Superinten-dent. is Des Raj Bhatia who trita to indicate that the manual or clerical work carried on by the Fuelling Superintendent is inci-dc!ntal or in emergent situations, while the Fuelling Superinten-dent is employed primarily to take over responsibility for all mat-B ters connected with the fuelling ad oiliiag of aircraft with the use of oil dispesers, fuellers, and/ or hydrant fuelling equipment. He compared the position of Fuelling Superintendent to that ef playing captam of hockey or football teani and says that,

while he himself has to work along with other members of the team, he is also required to assume over all responsibility for all operations prior to, during and after the delivery of fuel/oil to aircraft including the observance of time schedule, safety and . quality control. The fact that Fuel!ing Superintendent is the leader ot the team which carries out the work of fuelling, cannot convert his work into that of supervisory nature. In fact, the admission that he is member of the team implies that his priin· cipal work would be to do liis own personal manual work as such member and, incidentally, he has also to be in charge of seeing that others, whose work has to be coordinated with his, do thier work properly. The Tribunal was, therefore, correct in holding_ that Fuelling Superintendent is not employed mainly or subs-C tantially to do supervisory work. On the other hand, his duties are mainly manual. · Exception (iv) does not, therefore, apply to Fuelling Superintendent and, even though ihe salary exceeds Rs. 500 per mens~m, Fuelli<ng Superintendent must 1:-e held to be work!llan. ·

5. Chemists :

On the question of the duties carried out by Chemi$t, the Association examined three witnesses. One of them is M. D. Daniel who had once worked as Chemist and is now Foreman (Chemicals). The other two are A. N. Dalai and P. N. Marolia who are both working as Chemists. . They have given their quali-E fications and nature of work done by them. .There are, no doub't, Assistants who assist the Chemists in the laborr.tory where their work is ca1·ried on; but all the Chemists do their .own work which is of technical nature. The Chemists have to personally test. the various products teceived, and also test the products as they are altered in the installations at various stages. All the tests are carried out by the Chemists personally and there-are only few Assistants who do mere routine work in order to assist the Chemists. The Chemists, no doubt, ensure that the work-men assis!ing them do their wor properly; but that small amount of supervision is only incidental ,to their own technical work of testing and giving the results of tests to the Company; Even· the Compooy's witness Harish Bhargava ·admitted that the Chemists do large part of the work themselves, though he added that the Chemists do guide and direct the Analysts and Laboratory Attendant so as to ensure that the work in the laboratory is per· formed efficiently and properly. Even his evidence does not show that this guida,nce and direction to the laboratory attendant and ainalysts is the principal or substantial work for which Chemist is employed. In fact, that work is ancil!ary to the main work which is done by the Chemists themselves. The decision of the Tribunal, consequently, in respect of the Chemists, holding them

BURM.AH SHELL co. v. STAFF ASSOCIATION (Bharga.va, J.) 781

~o be employed on technical work and not in supervisory capa-city, must be upheld. They have rightly been held to be work-men.

6. Sales Engineering Representatives :

The witness on behalf of the Association is K. V. Rajan who filed an affidavit and was also cross-examined._ He holds Dip-loma in Mechanical and Electrical Engineering and has worked as Sales Engineering Representative since 1955 at various pla-ces. In giving the duties of the Sales Engineering Representa-tive, .he first mentioned items of work that the Representative has to do .himself. According to him, he has to guide the indus-trial concerns in use of different grades of fuels aind lubricants, and has to give demonstrations and trials of Company's fuels aµd lubricants in major industrial concerns which are the customers. · He says that the manual labour by him consists of demonstrating the method and manner in which the fuels· and liibticants should be used and applied. He explains all details with regard to ap-D plication of fuels and lubricants to the staff of the customer con-cerns, and he also attends to the ifficulties experienced by the customers in the use of Company's products. He writes to the · Divisional Office which, ~n turn, instructs the Sales Engineering Representative to attend to such complaints of the customers. He also gives technical advice to eliminate the complaints of the customers, aind writes down the survey reports and submits them to the Divisional Office. He has to mair.tain files up-to-date re-garding lubrication recommendation sheets sent by the Head Office to his Division. Then, in cross-examination, he admit-ted that the work that he does is for promoting the sales of lubri-cants and fuel oils, though he added that, in doing so, he. uses his technical knowledge.Manmohan Singh, Marketing Services aind Planning Mana. ger of the Company, explained that Sales Enginerinii; Repre-sentative is employed primarily to support thcr sales efforts by providing after ~ales service i11nd advice to the customers on opti-mum utilisation of fuels and lubricants. According to him, the principal duty of Sales Engineering Representative is to provide such service and to guide and supervise the workers emoloyed in customers' plants to ensure efficient use of fuels and lubricants. His duties have been described as comolementary to ~e duties of the District Sales Representative. He, however, did , admit that the Sales Engineering Representative has to give demonstra-· II tions regarding use of fuels and lubricants, and such demonstra-tions are conducted by him, th~ugh part of the work in the de-monstrati0in is done by the workers of the customer concerns. It is true that there is no subordinate personnel attached to him.

The Tribunal itself held that the main work to be performed by Sales Englnering Representative is promotion of sales which are canvassed primarily by District Sales Representatives. This the Sales Engineering Representative does by giving technical advice, . holding demonstrations and suggesting methods for making 'best use of the products sold. . On these facts, the Tribunal,. in our QPinion~ rightly held that. the Sales . Engineering Representative is not employed on supervisory work; but the Trib\lillal did not proceed further to examine ·whether he was employed on any other work of such type that he could be brought within the definition of workman. There is no suggestion at all that he was employed on clerical work or inanual work. Reliance wns placed on the. word "technical" used in the definition ::Jt work· man. The amount. of technical work that . Sales Engineering Representative does is all ancillary to his chief duty of promoting sales and givin~ advice. As we have held earlier the mere fact that he is requll'ed to have. technical knowledge for such pur-pose does not make his work technical wo~k. The work of ad-visors. Harish Bhargava, the Manager cl the Installations, h.as described all BlMding Supervisors as Foreman Blendin~ Supervisor. As we have said earlier, the mere descriptio!J. is, however, im-material. What we have t6 see is .the actual worll: done by theQl and to detennine whtltlier. the work, which they are employed to do, mak~ them workmen or not. V. V. Lele is the witness in respect of one set of Supervisors tion whose cases have been brought· up by the Association in Civil Appeal No. 1478/1970; Mr. Chari on behalf of the appel-lant is this appeal did not argue all the cases of the four cate· gories mentioned above. We, therefore, proceed to deal with only those categories of members of the Association whose cases have been argued before us by him. 1. Blending Supervisors :

It appears. that there are two sets of persons working at the Wadilube Installations ·who a:e all designated as Blending Super-visors. Harish Bhargava, the manager of the installation, has .described all Blending supervisors as Foreman"Blending super-visors. As we have said earlier, the mere description is, however, immaterial. What we have to see is the actual work done by 'them and to determine whether the work, which they are employed to

do, makes them workmen or not.

V. V. Lele is the witness in respect of one set of Supervisors who work fu the blending section of Wadilube plalOt. He works in the blending pump house. and in the plant where the actual bl~dini takes place. Accordi!1g to Lefe., in conn~tion ~th the duties to be· perfonned by him, he received daily blendmg pro.gr!lfDID.e from the Operations Officer, and the blending has to be .done in accordance with that programme and in confonnity

BUIWAH SHELL CO. v. STAPP ASSOCIATION (Bhargava; I.) 783·

with the formulations supplied by the laboratory. . For that put-· pose, he receives test note from the laboratory before he sfada; the work of blending. He has himsell to test the tank in order to find out whether it is clean ot not. ,ae personally connects by means of hose pipe the blending tank to the pump line coming from the pump. house on the ground fioor. He then ll;dvises the pump house Foreman to stan the pump, while he himself bas. to be constantly vigilant at the tank to ensure that the req~ quanity is taken up in_ the tank. As soon as the required quan-tity is received, he stops the pump by means of remote control. He changes the hose pipe and puts it on to another line and keeps on this process as each tank is filled up. While receipt of the: oil in the tank is going on, he himself operates steam and air valves in order to keep the oil at the required temperature and also maintains air agitation for mixing different basic oils. After: the blending in the tank is over, .he takes out samples personally; labels them properly ano sends them to the laboratory for teat purposes. On receipt of the test reports from the laboratory, he: fills iji the blending test notes quantity of different oils taken and sends them back to the laboratory. There are about 25 blending tanks which have to be attended to in this manner by two Blend-ing Supervisors. After the blending ·is over. the .Supervisor ad-vises tlie barrel filling section and, if the blended oil is needed in that section, he sends the blended oil to that section; if that section d<ies not require it, he transfers the blended oil to the: settling tank. For these purposes, he again operates different line valves, so that the blends may droe into the particular settl-ing tank. There are 20 such settling tanks. He has also to note the readings of the levels of the blending tanks as well as the settling· tanks. He has to take stock personally of the bar-rels and other packages used and left unused in his section and writes down the same in the prescribed form. It is true that he has two persons working under him as Mazdoors and· Clerk comes to assist him only at the time. ol monthly checking. The Mazdoors, according to him, do only incidental work in aid of the main process of blending, such as moving empty tins,· clean" ing them, etc. He also does some work at ·the Port when tanker arrives with oil from foreign country )Ind has to dis-G chatge it at the Port. At that stage, no doubt, he supervises the-work of discharge of the oil from the tanker and receipt fu the tanks at the Port. This siU>ervisory work, it is clear, is V!'lY minor part of his duties. The major part of his duties consists in himself operating. various pans of the machinery an. ensuring. that oils are blended properly. Mr. Chari, . in these circunl. stances, rightly claimed that person employed as Blending Supervisor in the type of woik done by Lele is employed to do manual work lll!d not supervisory work. 'Ibe·. supervisory wort is niinor part of his dutie8 and, to. some extent, fncldental to

.the main work which is manual in character. Blmding Super-visors, who work at tbe Pl<!.ilt in the manner indicated by Lele, .are, therefore, persons employed on manual work and have to be held to be workmen. The decision of t!J.e Tribunal in respect of them is incorrect ancl io set aside.

Another set of persons are employed as Bkmling Supertisors at different stage of the operations. The witness, who has .come to give the duties of such Blending Supervisors, is M. C. Gomes. The Tribunal, in dealing with the work done by Gomes, appears to have got mixed up when it held that his du-ties are similar to the duties mentioned by Lele. Consequently, · we were taken through the relevant evidence of Gomes and of Harish Bhargava on this point. It appears that, though Gomes is described as Blending Supervisor, his employme:nt is at .stage where the blending of oils has already been completed and the oils have been transferred to the settling tanks. According to Gomes, the Operations Officer gives him the programme for filling different oils in different packages, and he has to carry .out that programme. He has first to sec that oil in the settling tank is transferred to the small package tank by opernting pump. At this stage, he himsel! operates the pump by starting 1t, watching the gauge and stopping the running of the pump when the small package tank is full. Then, the oil is transfer-red from the small package tank to the filling machines. The :fillers at the filling machines are then operated by other workmen to transfer the oil into the small i;>ackage containers. Gomes has to see that this work of transferrmg the oil from the small pack-age tank to the filling machines and from the fillin11; machines into the containers is properly carried out by the persons work· ing under him. Ali the work of bringing the barrels to the fill· ing machines, of actually seeing that the barrels are filled up properly, and of sealing and labelling them properly, is physi-F cally done not by Gomes himse1f, but by men working under him whose work he sµpervises. No doubt, as Supervisor, he has to set the weights on the machines . and has to take samples of the products and send them to the laboratory; but the principal work entrusted to him is that of seeing that the barrels and other containers are properly filled up by the large number of workmen placed under his charge who actually carry out the physical work for that purpose. His duties are, thus, primarily · supervisory; and the Tribunal's dectsion that Blending Supervi-sors doing the work of the nature done by Gomes are not work-mein because they are all drawing salary in excess of Rs. 500 per mensem, is correct and is upheld.

It was mentioned that there was third type of Blending Supervisors described as Supervisors (Small Packages Filling).

Their work is quite similar to the work done by Gomes and, con-sequently, the decision of the Tribunal in respect of them is also correct and is upheld.

2. Foremen :

(i) One class of Foremen, whose case was argued before us by Mr. Chari, are described as Foremen (Tank.Farm and Pump House) at the Sewree Installations. The witness on behalf of the Association is D. M. Telang. In this affidavit and evidence he tried to make out that he has to carry out three types of duties, technical, skilled manual and superVisory; but, on carefol exa-mination of his evidence, the Tribunal has come to the finding that, of the three types of duties, his supervisory <luties are the main and substantial part of his work, whi!'l other dutie> are only incidental. We are unable to find any error in the view taken by the Tribunal. He has about 25 workmen under him whose work he supervises. The Tribunal accepted the evidence of Company's witnesses, Harish Bhargava and Varkie for holding that such Foremen are primarily entrusted with the duty of super-D vising the work of the workmen in their respective sections. No technical knowledge is involved. Even when the oils are tested, the dips are not necessarily taken by the Foremen. The dips are usually taken by gaugers. The work of takiitg the dips, of read-ing the dips and of temperature readings does not require any technical knowledge. All that is necessRry is to push button. V arkie stated that quality control in Burmah Shell is ·a simple process which has to be carried out with the object of ensuring clean product free of impurities. Even the work of drainin11 of water from the tank is done by the gaugers under the supervision of the Foreman. It is the gauger who takes the pressure and, if it is abnormal, he informs the Foreman. Even Telang him· self admitted that he was employed in supervisory capacity, though he insisted that the work done by him was of technical, skilled manual, and supervisory characted. It also appears that he has to supervise the work of as many as 25 workmen. It is for him to decide whether man, who has asked for leave, can be spared. The Company's case was that, ~ fact, he grants leave to men working under him; but he denied this suggestion Docu-G mentry evidence was, however, brought to our notice which shows that he has been actually sanctioning leave :;i workmen metary evidence was, however, brought to our notice which subordinate to him, when the leave asked for is e!!rned leave. We looked at the leave applications and found that, in one case at least, he signed as recommending the lea\'~, but cut out that signature and then signed it again at. the place where the officer sanctioning the leave is required to sign. Even other persons, doing the same duty as Telang, were found to be similarly sanctioning leave. There was even one application where the recommendation for leave was ~SupCl/71

oy some other JlClWD;. w,hile 'tdang signca as· the sanctioning offi.cei;. ~ third case, T:t;lang actually .reconlod rwoos . for refusing to sanction the leave. It appears ¢hali at least in the case ·of Foremen (Tank Farm and Pump House). Yarkie is right iTI :stating that he had empowered the Foremen to grant leave, and Har.ish Bhar.gava. is also correct in say,in:g that powers of sanction· ing leave are not retained by the Operations Officer. · Telang .B admitted that he has to maintain discipline and has to report case~ of indiscipline in his department. He allocates work to those who are working under him, and then gets it dqne by giving guidance.· It is his job •to see that the man-power is so utilised as to give maximum out put. Considering all these duq.es, it is quite clear that the Tribllnal was right in holding these Foremen not to be workmen, as they are employed in supervisory capacity and are drawing salary in excess of Rs. 500 per mensem.(ii) The other class of Foremen are described as Forentan (Tank Lorry Loading, Tank Wagon Loading and Tank Wagon Unloading). Mr. Chari claimed that these persons should be held to be workmen as they were employed tO do skilled manual work. The facts found by the Tribunal clearly show that the :actuaUoading and unloading in all cases is done by other persons and not by- the Foremen themselves. The; Foremen are. no doubt, · responsible •for proper loading and 'unloading; but thi~ d11ty is discharged by supervising the work of manual labourers who actually perform the work; of. loading and unloadin!?. -course, when occasions arise, the Foreman may also lend hand; but that would not make him skilled manual. worker. On the findings of fact recorded by the Tribunal, therefore, the decision that FGrelll.an (Tank. Lorry Loading; Tank Wagon Loading, and Tank Wagon .Unloading) are not workmen is correct, as they also all draw salary in excess of Rs. 500 p.m.

3. Depot Superintendents :

With regard to the claiisification of Depot Superintendents, reliance was placed by the A10ociation on the evidence of G. B. Athalye, and on some decisions in respect of Depot Superinten-dents of this verv Company in other regions. After considering the evidenc.e of Athalye and the Company's witnesses, . the Tri-bunal, as it. fact, held that Depot Superintendent is in-charge of all the stocks at depot and his principal duty is to see that these stocb are properly received, stored aind sent out. These stocks range in value between Rs. 4 lakhs to Rs. 6 lakhs. The Tribunal found that Depot Superintendent ha.s complement of !llei! working .under him, .the strength of which may vary from depot to 'depot. On an average,,. the persons employed are 5 to 7 out of whom 2 would be clerks. 3 to 4 would be workmen and

one or two drivers. The Depot Superintendent has lo get all the . jobs done by these me.n and he guides them in their \\'?rk. He is the senior-most officer at the Depot. He is not required to have any technical background. He allocates the work to the men working under him and sanctions leave to them. He is empowered to engage casual labour. He takes rcvie\·.· of the position of the strength prevaliµg and makes recommendations about. the required strength. Within the area which is served by' the depot, the Depot Superintendent plans and deliver, the necessary supply. He can take decision regarding overtinie work of the staff subordinate to him. He has to maintain disdpline and has tb report cases of indiscipline ·to the Head Office. Some-c times, he is empowered to hold i,nquiry in cases of indiscipline. Cases of minor indiscipline can b'e dealt with by him himself. In addition, the Depot Superintendent functions as Factory Ma-nager under the Factories Act and also under the Shop, and Establishments Act. The Depot Superintendent does the rnerit-rating of the clerks working under him. He also represents the management to some extent before outsiders. . He is authorised to spend amounts within prescril;ied limits on behalf of the Com-pany. He represe;nts the· Company and the Depot in dealings with the Railway and Municipal authorities. Of course, while carrying on these duties, he has also to ensure that the stock-registers are properly maintained. Where there. is clerk. the actual work of writing i.s done by \lie clerk; but, where there is · no clerk, the Depot Superi,ntendent may himself have to do all the writing work. This writing work done by the Depot Supe-rinle!ndent cannoi be treated to be the substantial and main duty ·entrusted to him. On the facts enumerated above, it is quite clear that his .principal duties are of supervisory and mana-gerial nature, while the clerical duties are only inciden-

Reliance was placed on the decision of the Labour Appellate Tribunal in Burmah-She/[ Oil Storage and Distributing Co11111any of India, Ltd., Madras v. Their Employees([1]). In that case, it appears ·that the Depot Superintendent was found to be ..:om-G parable with mere store-keeper. The Depot Superintendent, in most cases, was the only person posted at the de)lOt an.:i. in very few cases, clerk was given to assist him. It was found that the Depot Superintendent himself had to maintain the cor-respondence, and was responsible for stock receipt, ;tornge and issue. He had to remain busy most of the time with compkting company's standard forms and returns, and he had no powers of supervisiQn over other members of the staff. On these facts. the ·Labour Appellate Tribunal held that 'iis job was substantially

of that . of an intelligent and skilled clerk. . l'his decision was up-held ·by the Madras High Court in Burmah..Shell Oil Storage and Distributl"g C<>mpany of India, Ltd., Madras v. Labour Appel late Tribunal of India and two others([1]) when .the decisi0\11 of the Labour Appellate· Tribunal was chail~ged 'by means of writ. The High Court dismissed the writ petitjon and. upheld the deCision of tlie Labour Appellate Tribunal. These two decisions can be of no help, ·because the Depot Superintendents, with whom we are concerned, work under very different condi-tions. They are U.-charge of large depots and 'have, QI! an aver-age, .i to 7 employees working under them. The amount of clerical work done by them is only ·a minor part of their duties, while the . principal c!uty is that of working as Manager of the depot and of supervisj~ the work of the subordinate posted there.

As against these cases, there are two decisions of the Labour Appellate Tribunal in Burmah-She/l Oil Storage and Distributing Compi:lny of !'fldla Ltd., Madras and Hyderab{ld Branches. vi. Their Workmen([2]), and Burmah-She/l Oil Storage and Distri-D buting Co. ·of India, Ltd., Madras. Branch, Mysore and Travan-Core-Cochin Staies v. Their Workmen('), in which the Labour Appellate Tribunal, after examining the evidence in detail, came to the view that the principal and substantial work done by Depot Superintendent was administrative or supervisory and that the clerical work done was mereJy incidental. The facts of these two cases resemble more the facts found by the· Tribunal in the case before us. Consequently, the decisiQ!l given by the Tribu· nal. that Depot Superintendents are employed <>in managerial · or supervisory work and are not workmen is correct, because they all also draw salary in excess of Rs. 500 per mensem.

4. District Sales Representatives :

The· case of the last category, viz., District Sales Representa-tives could not be seriously pressed by Mr. ·Chari before us. He did state that his claim is that they are employed to do cleri-cal work; but the facts make it manifest that District Sales Re-presentative is principally employed for the purpose of promot-ing sales of the Company. His main work is to do canvassing and obtain orders. In that connection, of course, he has to carry on some correspondence, but that correspondence is incidental to the ma~ w$)rk of pushing sales of the Company. In connection with promotiQ!l of sales, he has to make recommendations for selection of agents and dealers; extension or curtailment of credit facilities to agents, dealers and customers; investmeints on capital and revenue in the shape of facilities at Agent's premises or retail ----(1) [1954] 2 L.L.J. 155 (2) [1955] 2 L.l..1. 153

(Jl [1955] 2 L.L.J. 228

BUB.MAH Slft!LL co. v. STAFF ASSQl::IATION (Bhargava, J.) 789

outlets; and selection of suitable sites for retail outlets to maximise sales ~d negotiations for terms of new sites. He is, in fact, Company's representative in his district responsible for all matters affecting the Company's interests and, in particular, the profitable sale of all its products. His case was urged primarily on the. basis o{ the argument advanced by Mr. Chari that the defin:tion of "workman" is now exhaustive and every employee of an industry must· be classed amongst one of the four classes described in the definition of workman. We have already given our re«sons for rejecting this submission. The case of District Sales Representa-tive is clearly that of person who camnot fall within any of the four classes, because his work cannot be held to be either manual. clerical, technical or supervisory. Tla work of canvassing and promoting sales cannot be. included in &y of these four dassific.a-tions. He is, therefore, not work:mlla at an within the principal part of the definition, and the decirbt of !lie Tribunal is correct.

As result, both the ap),11!als a.te pai'tl1 ~d; and the-decision of the Tribunal is varied to the 111t• illtlicated ahove. In the circumstances of thiii case, we direc~ pltfiei to bear th~ir own costs in both the appeals.

Appeals a//01ved in part: