B.N.Misra, J. - (1.) Challenge in this writ petition is to the orders under Annexures-12 and 14 of the Deputy Labour Commissioner, Meerut, Respondent No. 1 finding that the late Bennett Solomon was 'workman' under the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and that his date of birth was 15th January, 1918and, therefore his retirement on 15th January, 1976 before he attained the age of 60 years was illegal.
(2.) The late Bennett Solomon was workimg as an Asst. Engineer under the U.P. State Sugar Corporation Ltd., the petitioner. He died on 15th May, 1977 and his legal representatives are respondent Nos. 2 to 6. According to the petitioner, Solomon's date of birth was 15th January, 1916 and therefore he was due to retire on 15th January, 1976. The petitioner served a notice on 9th December, 1975 on Solomon (Annexure-5) stating therein that he would be retired from service from 15th January, 1976. Against the said notice Solomon made a representation (Annexure-6) under clause L.L(4) of U.P. Sugar Standing Orders 1971 governing the conditions of employment of workmen in Vacuum Pan Sugar Factories to the Labour Commissioner, Uttar Pradesh. The said representation was sent to the Deputy Labour Commissioner, Meerut for disposal. Parties filed their respective affidavits before the Deputy Labour Commissioner and also adduced oral and documentary evidence in support of their respective cases. Solomon's case was that his date of birth was 15th January, 1918 and as such he was due to retire only on 15th January, 1978 and not on 15th January, 1976. He also prayed for necessary correction of his date of birth. The case of the petitioner was that as per the records of the Corporation, Solomon's date of birth was 15th January, 1916 and therefore he was due to retire on 15th January, 1976. The petitioner took a preliminary objection that Solomon was not a 'workman' as per the definition of that expression contained in the Act. On consideration of the materials and evidence placed before him the Deputy Labour Commissioner vide his order under Annexure-12 held that Solomon was a 'workman' under the Act. The preliminary objection having been held against the petitioner, the Deputy Labour Commissioner proceeded to consider the dispute between the parties regarding Solomon's date of birth and held by his order under Annexure-14 that Solomon's date of birth was 15th January, 1918 and as such he must be deemed to have continued in service till he attained the age of 60 years with full wages.
(3.) Learned counsel for the petitioner urged before this Court that the Deputy Labour Comissioner erred in finding that Solomon was 'workman' under the Act as Solomon's work and duties clearly took him out of the definition of 'workman' as contained in Section 2(z) of the Act. It may be noted that no material has been placed in this court enumerating the duties and the work which were performed by Solomon as an Asst. Engineer. In support of his contention, learned counsel for the petitioner referred to paragraph No.7 of Annexure-12 wherein Solomon's duties have been described by the Deputy Labour Commissioner. The work and duties of Solomon as described in the aforesaid paragraph No.7 are as follows: "(i) his work was technical in nature; (ii) in case of breakdown of machines, he was himself repairing the defects; and (iii) he used to get the work assigned by the Manager and Chief Engineer executed and for that purpose he used to look after the work of the workmen working under him and the concerned machines." According to the learned counsel for the 5 petitioner as the work and duties of Solomon described above were supervisory in nature and his wages were more than Rs. 500 per month, he was not a 'workman' under the Act. In support of his contention, learned counsel for the petitioner relied on a decision of the Supreme Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. The Burmah Shell Management Staff Association and Others (1970-II-LLJ-590). Of the several categories of employees discussed in the aforesaid decision, learned counsel for the petitioner submitted that the decision of the Supreme Court with regard to a 'Transport Engineer' was clearly applicable to Solomon's case as the duties of a Transport Engineer' discussed in the aforesaid judgemnt were similar to the duties which were performed by Solomon. In the case before the Supreme Court, the Transport Engineer' had 58 people working under him as his direct subordinates. He allocated the jobs to the workmen under him and re-allocated jobs when necessary. He supervised the work of the mechanics and fitters. He was in charge of maintaining discipline in the department, initiated disciplinary action as and when necessary, reported on the performance of the workmen under him and sanctioned certain kinds of leave to the workmen working under him. On consideration of the aforesaid duties of the Transport Engineer, the Supreme Court held that the major part of the Transport Engineer's duties comprised of supervisory work. In Solomon's case, however, his duties as described in paragraph No.7 of Annexure-12 do not indicate that the major part of his duties was of a supervisory nature. As already stated, his work was technical in nature and he merely looked after the work of the workmen working under him as well as the concerned machines, he did not allocate jobs to the workmen, this work was either done by the Manager or the Chief Engineer. He had no power to sanction leave to any of the workmen working under him nor did he exercise any disciplinary control over the workmen. In these circumstances, Solomon's duties cannot be said to be of supervisory nature. The Deputy Labour Commissioner had considered the oral and documentary evidence and all the materials placed before him relating to the nature of the duties of Solomon and had come to the conclusion that he was a 'workman' under the Act. Nothing has been placed before this Court to justify a different conclusion.;