Dr. Balabhai Nanavati Hospital vs Ashoka Shetty And Anr 2024 Latest Caselaw 605 Bom

Bombay High Court Dr. Balabhai Nanavati Hospital vs Ashoka Shetty And Anr on 11 January, 2024 Author: N. J. Jamadar Bench: N. J. Jamadar 2024:BHC-OS:603 WP1310-2009.DOC Santosh IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1310 OF 2009 Dr. Balabhai Nanavati Hospital S.V. Road, Vile Parle (West), Mumbai - 400 056 ...Petitioner Versus 1 Ashoka Shetty B-303, Symphony, Old Raviraj Complex, Jesalpark, Bhayander (East), Thane - 401 105 2 The Presiding Officer, Third Labour Court, Mumbai, New Administrative Building, Bandra (E), Mumbai - 400 051 ...Respondents Mr. R. V. Paranjape, a/w T. R. Yadav, for the Petitioner. Mr. Vinay Menon, a/w Kirti Shetty and Deep Samant, for Respondent No.1. CORAM: N. J. JAMADAR, J. RESERVED ON: 9th AUGUST, 2023 PRONOUNCED ON: 11th JANUARY, 2024 JUDGMENT: - 1. This petition under Article 226 of the Constitution of India raises usual controversy as to whether the employee - respondent No.1, herein, is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1949 ("the I.D. Act"). 2. Background facts leading to this petition can be summarized as under: 1/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC (a) The petitioner is a Hospital run by a Public Charitable Trust. It employs about 1100 employees in different grades and capacities. Respondent No.1 was appointed on a temporary basis as a, "Food Service Supervisor" with effect from 15th October, 1990. In terms of the appointment order, respondent No.1 was to perform the duties as may be assigned to respondent No.1 by the Medical Superintendent and other Superior Officers. On 4th February, 1991, respondent No.1 was confirmed in the said post. (b) The petitioner claimed on 11th February, 2003, a duty list captioned as 'job description' was served on respondent No.1. It is the claim of the petitioner that respondent No.1 had all along been discharging supervisory duties. As Food Service Supervisor the respondent had about 30 kitchen ward-boys working under his direct supervision and control. He was in- charge of and responsible for food service to the patients in the wards in the entire hospital. Respondent No.1 was to report to Food Service Manager, who was the Head of the Department. (c) It seems that disputes arose between the Management and Respondent No.1. On 12th February, 2003, a show cause notice was served on respondent No.1 alleging misconduct under Rule 22(a)(l) and (x) of the Model Standing 2/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC Orders. In the wake of a serious complaint lodged by Mr. Rohan M. Uchil, Food Service Manager, dated 16th August, 2004, a charge-sheet was served on respondent No.1 alleging serious misconduct under Rule 22(a), 22(k) and 22(l) of the Model Standing Orders under the Maharashtra Industrial Employment (Standing Order) Rules, 1959. Enquiry commenced. Post enquiry, the Enquiry Officer found respondent No.1 guilty of certain counts of misconduct. Eventually, respondent No.1 came to be dismissed from service by an order dated 24 th January, 2006. (d) Respondent No.1 raised an industrial dispute. Upon failure of conciliation proceedings, the appropriate Government referred the dispute to the Labour Court for adjudication. (e) Respondent No.1 filed a statement of claim in support of the demand of reinstatement. The petitioner resisted the claim by filing a written statement. The tenability of the reference was assailed by contesting the status of respondent No.1 as a workman. Thereupon, the learned Presiding Officer framed a preliminary issue: Whether the respondent - second party is a workman under I.D. Act? 3/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC (f) The parties led evidence. Respondent No.1 examined himself. Mr. Rohan Uchil, the Food Service Manager, deposed on behalf of the petitioner - employer. (g) After appraisal of the pleadings, evidence adduced by the parties and the documents tendered for his perusal, the learned Presiding Officer, 3rd Labour Court, Mumbai, was persuaded to answer the preliminary issue in the affirmative and hold that respondent No.1 was a workman within the meaning of Section 2(s) of the I.D. Act. (h) The learned Presiding Officer was of the view that though the designation of the post held by respondent No.1 was, "Food Service Supervisor" yet in substance respondent No.1 discharged the duties of a workman. The learned Presiding Officer was also of the view that as the petitioner - employer had proceeded against respondent No.1 in accordance with the Model Standing Orders applicable to a workman the decision of this Court in the case of S. A. Sarang vs. W. G. Forge and Allied Industries, Ltd. and ors.1 governed the facts of the case and the petitioner - employer was estopped from denying the status of the respondent No.1. 3. Being aggrieved by and dissatisfied with the aforesaid determination of the preliminary issue, the petitioner - employer 1 1996(1) CLR 387. 4/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC has invoked the writ jurisdiction of this court. The principal ground of challenge is that the learned Presiding Officer, Labour Court, committed a manifest error in not correctly appreciating the nature of the duties performed by respondent No.1, which were primarily of supervisory nature. The learned Presiding Officer misread the appointment orders and the duty list captioned 'job description' and also the evidence adduced by the parties especially the admissions in the cross-examination of the respondent No.1. Secondly, the learned Presiding Officer was not justified in placing reliance on the decision in the case of S. A. Sarang (supra) as the said decision was further clarified and distinguished by a Division Bench of this Court in the case of German Remedies vs. R. D. Lotlikar2. 4. By an order dated 28th July, 2009, Rule was issued and the proceedings before the learned Labour Court were stayed. 5. I have heard Mr. R. V. Paranjape, the learned Counsel for the petitioner, and Mr. Vinay Menon, the learned Counsel for the respondent, extensively. The learned Counsel took the Court through the pleadings, evidence and documents on record. The learned Counsel have also tendered a short synopsis in support their respective submissions. 2 2008(2) CLR 1006. 5/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC 6. Mr. Paranjape, the learned Counsel for the petitioner, submitted that the learned Presiding Officer, Labour Court, did not pose unto himself the correct question. It is the nature of the duties which is of determinative significance. The learned Presiding Officer unjustifiably discarded the evidence and the material which unmistakably demonstrates that respondent No.1 was rendering services as Supervisor. Laying emphasis on the 'job description' dated 11th February, 2003, Mr. Paranjape submitted that most of the duties which respondent No.1 was required to perform, were purely supervisory in nature. Yet, the learned Presiding Officer, Labour Court, returned a finding that respondent No.1 was a workman without following the ratio of the judgments of this Court in the cases of Reserve Bank of India vs. Waman Baburao Shinde and others 3, Vinayak Baburao Shinde vs. S. R. Shinde and others4, Vandana Joshi vs. Standard Chartered Bank Ltd., Mumbai 5 and Inthru Noronha vs. Colgate Palmolive (India) Ltd. and others6. 7. Mr. Paranjape also placed reliance on the judgments of the Supreme Court in the case of Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burmah Shell 3 (1998) 3 LLJ (supp) 275. 4 (1985) 1 CLR 318. 5 2011 (1) Mh. L.J. 415 6 2005(2) Mh. L.J. 884. 6/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC Management Staff Association and others 7 and the decisions of this Court in the cases of John Joseph Khokar vs. B. S. Bhadange and ors.8 Shrikant Vishnu Palwankar vs. Presiding Officer, First Labour Court and ors.9 and Ramesh son of Ramrao Wase vs. Commissioner, Revenue Division, Amravati10 to bolster up the submission that the learned Presiding Officer did not apply the correct test and, therefore, the impugned order is legally unsustainable. 8. Mr. Paranjape would further urge that the reliance by the learned Presiding Officer on the judgment in the case of S. A. Sarang (supra) was wholly unjustifiable. Mr. Paranjape urged that where there is overwhelming evidence to show that the employee was discharging the duties of a Supervisor, mere reference to the provisions of Model Standing Orders, that too applicable to a Supervisor, would not clothe such employee with the status of a 'workman'. Mr. Paranjape submitted that in the case at hand the petitioner - employer had made it abundantly clear that the petitioner did not reckon respondent No.1 as a workman as he was discharging supervisory duties, yet to give a fair opportunity, the enquiry was initiated in accordance with the Model Standing Orders. 7 1970(3) SCC 378. 8 1997(3) Mh. L.J. 907. 9 1992 I L.L.N. 10 1995 - II L.L.N. 178. 7/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC 9. Mr. Menon, the learned Counsel for respondent No.1, would submit that the determination by the learned Presiding Officer, Labour Court, is flawless. At the outset, Mr. Menon submitted that respondent No.1 has suffered huge prejudice as the petitioner - employer assailed the order on preliminary issue and resultantly the industrial dispute awaits adjudication for over 14 years. The observations of the Supreme Court in the case of D. P. Maheshwari vs. Delhi Administration and others 11 find practical application in the case at hand, submitted Mr. Menon. 10. Secondly, Mr. Menon urged, having resorted to the provisions contained in Model Standing Orders applicable to a workman, consistently, it was not open to the employer to question the status of the respondent. The decision of this Court in the case of S. A. Sarang (supra) squarely governs the facts of the case. 11. According to Mr. Menon, the test to be applied to determine the status of employee is rather well settled and, in the case at hand, the petitioner failed to bring any material on the record of the Court to demonstrate that respondent No.1 was discharging supervisory functions. The endeavour of the petitioner to bank upon the duty list captioned 'job description' 11 (1983) 4 SCC 293. 8/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC was severely criticized by Mr. Menon on the ground that there was no reason to provide 'job description' in the year 2003 when respondent No.1 had been discharging the same duties since the year 1990. In fact, respondent No.1 had refused to accept the said 'job description' as the petitioner was required to give a notice of change under Section 9-A of the I.D. Act. Mr. Menon would urge that it is well recognized that designation of the post does not matter and it is the substantive work which an employee is called upon to perform that determines his status. At best, respondent No.1 can be said to have been appointed to do supervisory work and not in a supervisory capacity. 12. To lend support to the aforesaid submissions, Mr. Menon placed reliance on the decisions of the Supreme Court in the cases of National Engineering Industries Ltd. Vs. Kishan Bhageria and ors.12 S. A. Sarang (supra), Aloysius Nunes vs. Thomas Cook India13 2000(3), Carona Ltd. vs. Anand Manjunath Rao and ors.14, Cricket Club of India and anr. vs. Baljit Shyam and another15 and Andhra Scientific Co. Ltd. vs. A. Sheshagiri Rao and other16. 12 AIR 1988 SCC 329. 13 (2000) 3 Bombay 358. 14 (2018) 2 CLR 552. 15 1998 (3) LLN 994. 16 AIR 1967 SC 408. 9/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC 13. The perennial controversy as to whether an employee before the industrial adjudicator satisfies the description of a workman confronts the court/tribunals. An answer has to be explored in the light of the governing statutory provision. Section 2(s) of the I.D. Act defines workman. The legal position has crystalized to the effect that the nomenclature of the post is not of decisive significance. Rather, it is the nature of the substantive duties which the employee is called upon to perform that furnishes a surer test for determination of the status of the concerned employee. 14. In the case of S. K. International and others vs. Ashok T. Tambe Original17 I had an occasion to consider the import of the term 'workman' especially where the employees perform multifarious duties. The observations in paragraphs 26 to 30 read as under: "26. Section 2(s) of the ID Act, 1947 defines the expression workman to mean any person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. In the case of H. R. Adyanthaya and ors. vs. Sandoz (India) Ltd. (1994) 5 SCC 737, the Constitution Bench of the Supreme Court enunciated that to be qualified to be workman under Section 2(s), the person must be employed to do the work which falls in any of the specified categories, manual, unskilled, skilled, technical, operational, clerical or supervisory. To put it in other words, it is not enough that a person is not covered by any of the four exceptions to the definition. It is also fairly well settled that the burden is on the person, who asserts the status of the workman under Section 2(s) to establish with reference to the dominant 17 2023 SCC Online Bom 2583. 10/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC nature of his duties that the work which the said person performs falls within one of the specified categories under Section 2(s) of the Act, 1947. 27. In the case of Burmah Shell Oil Storage and Distribution Company of India Ltd. V/s. The Burmah Shell Management Staff Association and Ors. (1970) 2 LLJ 590 the Supreme Court adverted to a situation where an employee is entrusted to discharge multifarious duties. In such cases, the Supreme Court held, it would be necessary to determine under which classification the employee will fall for the purpose of finding out whether he does not go out of the definition of "workman" under the exceptions. The principle is now well settled that for this purpose, a workman must be held to be employed to do that work which is the work he is required to do, even though he may be incidentally doing other types of work. The Supreme Court referred to its earlier decision in the case of Ananda Bazar Patrika (P) Ltd. Vs. Workmen (1970) 3 SCC 248, where the principle was enunciated as under: "3. The question whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere act that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity. ...." 28. In the case of Arkal Govind Raj Rao vs. CIBA Geigy and India Ltd. (1985) 3 SCC 371, another three-judge Bench of the Supreme Court re-exposited the principle in the following words : "6. where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. ......" 11/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC 29. A useful reference in this context can also be made to a decision of the Supreme Court in the case of S.K.Maini V/ s. M/s. Carona Sahu Company Ltd. and Anr . (1994) 3 SCC 510 wherein it was enunciated that when an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes 9 (1985) 3 SCC 371. out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage (supra). In All India Reserve Bank Employees' Assn. V/s. Reserve Bank of India (AIR 1966 SC 305), it has been held by this Court that the word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in Section 2(s) of the Industrial Disputes Act. 30. The aforesaid enunciation indicates that it is the dominant nature of work or duties which determines the status and not the incidental work, which an employee may be called upon to perform. Herein lies the task before the industrial adjudicator or Court to decipher the dominant nature of duties and remove the gloss. Often the industrial adjudicator and Court come across a verbose and labyrinth description of the duties. Still an effort is warranted to remove the gloss and find out the dominant nature of the duties." 12/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC 15. In the backdrop of the controversy at hand a reference to two more judgments of the Supreme Court may be advantageous. In the case of All India Reserve Bank Employees Assn. vs. Reserve Bank of India18 the Supreme Court enunciated that the word "supervise" and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the manual work of others. 16. In the case of National Engineering Industries (supra), on which reliance was placed by Mr. Menon, after following the decision in the case of D. P. Maheshwari (supra), the Supreme Court expounded the nature of the duty of a Supervisor as under: "7. In P. Maheshwari v. Delhi Administration & Ors ., [1983] 3 S.C.R. 949 the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. See in this connection Black's Law Dictionary, Special Deluxe, Fifth Edition. At page 1290, "Supervisor" has been described, inter alia, as follows: "In a broad sense, one having authority over others, to superintend and direct. The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, 18 AIR 1966 SCC 305. 13/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." (emphasis supplied) 17. The Supreme Court has, thus, held that a Supervisor was one the who could bind the company to take some kind of decision on behalf of the Company. Conversely the one who makes assessment for the purpose of reporting is not a Supervisor. 18. In the case of John Khokar (supra), on which reliance was placed by Mr. Paranjape, the legal position was summarized as under: "14. The position that emerges from the aforesaid discussion is that in determining the question whether a person employed by the employer is workman under Section 2(s) of Industrial Disputes Act or not, the Court has principally to see main or substantial work for which the employee has been employed and engaged to do Neither the designation of the employee is decisive nor any incidental work that may be done or required to he done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employee over the employees of the lower ladder without any control may not by itself be sufficient to bring that employee in the category of supervisory, yet if the principal job of that employee is to oversee the work of employees who are in the lower ladder of the hierarchy and he has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. Each case would depend on the nature of the ditties predominantly or primarily performed by such employee and whether such function was supervisory or not would have to be decided on facts keeping in mind correct 14/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC principles. Where the employee possesses the power of assigning duties and distribution of work such authority of employee may be indicative of his being supervisor doing supervision. In a broad sense supervisor is one who has authority over others : someone who superintends and directs others. An employee who in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it correctly in accordance with norms shall certainly be a supervisor. A supervisory work may be contra distinguished from managerial and administrative work and, so also a supervisor from manager and administrator. Supervisor's predominant function is to see that work is done by workers under him in accordance with the norms laid down by the management : he has no power to take any disciplinary action." (emphasis supplied) 19. In Vandana Joshi (supra) a Division Bench of this Court, inter alia, observed the fact that the employee was not vested with the power to sanction leave or to initiate disciplinary proceedings is not conclusive of the question as to whether the work that is performed by the employee is of managerial or supervisory category. Whether leave can be sanctioned and whether disciplinary proceedings can be initiated is one of the circumstances which may be considered in the balance. The balance, however, has to be drawn on the basis of the over all nature of the duties and responsibilities performed and the dominant nature of the work that is performed by the employee. 20. From a survey of the aforesaid precedents it becomes evident that the judgments, apart from enunciating the foundational premise of the nature of main duty of the 15/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC concerned employee, advert to various facets of supervisor or managerial work. In the very nature of the things, the enquiry as to the status of the concerned employee, in a given case, is rooted in facts. It may not, therefore, be appropriate to readily import the decision in one case based on a particular facet of the duty of the concerned employee found in that case to another with a completely different fact-situation. 21. Reverting to the facts of the case, first and foremost it is imperative to note that respondent No.1 came to be appointed as a Food Services Supervisor in the year 1990. Apparently, the position of respondent No.1 did not alter till he came to be dismissed. It does not appear that a specific job description was furnished to respondent No.1 when he was initially appointed. Vide letter dated 11th February, 2003 respondent No.1 was sought to be clothed with the following job description: "Job Description: 1. Supervisors/Asst. Supervisors are required to work in any shift as per the need of the Food Services Dept. in the Hospital during the timing from 6 am. to 10 pm. 2. You must see to the hygiene and cleanliness of the kitchen and food service area. 3. You are responsible for the regular and periodical theory of the kitchen and other area of the food service. 4. You must keep a check on the hygine of the concerned personnel. 5. You must test the food after it is ready. 6. You must supervise the preparation, cooking and distribution of the food. 16/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC 7. You must check the quality and quantity of the goods received. 8. You should supervise the distribution of the food from trolleys in the ward pantries. 9. You must supervise the work of the department in the entire hospital area existing as well as any changes thereof. 10. You should intent the raw materials from the store on a daily basis. 11. You must take rounds in the ward pantries after meal trolleys have gone to the floors. 12. You must plan the duty roaster and schedule for the staff. 13. You should maintain attendance, leave schedule and overtime record for the entire kitchen staff. 14. You should maintain all books of record necessary for running of the department. 15. You should attend to the complaints of the patient of the staff. 16. You should perform any other job as given from time to time by their superiors. There will also be a flexibility on your side towards in any other related department." 22. There is material to indicate that respondent No.1 refused to accept the service of the said 'job description' in person and therefore it was served upon respondent No.1. Evidently, the entries in the aforesaid job description refer to, emphasis and underscore the supervisory aspects of job profile, repetitively. However, that is not decisive de hors the aspect whether the same amounts to change in the conditions of service. 23. What was the nature of the duties performed by respondent No.1. The stand of the parties has already been noted. The manner in which the parties fared in the cross- examination assumes significance. It was elicited in the cross- 17/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC examination of respondent No.1 that there was a kitchen manager above him. The kitchen/ward boys were serving foods etc. to the patient. He used to supervise the services rendered by them. If somebody complained about the service of ward boys he used to report it to the Manager of the kitchen or superior. He went on to admit that before serving daily food to customer he used to taste it and if found below standard he used to report the same to the Manager. 24. It would be contextually relevant to note that Mr. Rohan Uchil, employee's witness, conceded in the cross-examination that respondent No.1 had refused to accept the job description. However, later on, respondent No.1 did not dispute the same. Respondent No.1 and other staff used to lodge complaints about the problems in the food service. He had the power to sanction leave. Conversely, respondent No.1 had no power to initiate any action against cooks or ward boys. According to Mr. Uchil the control which respondent No.1 exercised meant, 'to supervise whether food was being properly cooked as per the standard norm.' 25. Appraising the aforesaid evidence the learned Presiding Officer came to the conclusion that though the designation of the post included the term 'supervisor' yet respondent No.1 18/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC essentially supervised the services of a person cooking the food and distributing the food to the patients. The substantive work of respondent No.1 was to cause smooth distribution of the cooked food after tasting it. There were no other attributes which rendered the work of respondent No.1 supervisory in nature. 26. Should the aforesaid finding of fact arrived at by the Labour Court be interfered with by this Court in exercise of extraordinary writ jurisdiction, is the moot question. 27. It is trite in exercise of certiorari jurisdiction the Court proceeds on an assumption that the jurisdictional court has the jurisdiction to decide wrongly as well as rightly. Thus, the High Court would not assign to itself the role of an Appellate Court and venture to re-appreciate the evidence and substitute its own finding in place of those arrived at by the Court below. The High Court would interfere where the Court below is found to have assumed jurisdiction not vested in it, exceeded its jurisdiction or otherwise acted in utter disregard to the governing law, rules of procedure or principles of natural justice, where applicable, resulting in a failure of justice. To put it in other words, the supervisory jurisdiction is not available to correct a mere error of fact or law unless the error is manifest or 19/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC apparent on the face of the proceedings. (Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675). 28. On the aforesaid touchstone, if the material on record is considered, the situation which emerges is that the primary duty of respondent No.1 was to taste the food and report to the superior officer if the food did not meet the requisite standard. Secondly, the respondent was to supervise the serving of the food to the patients in the different wards. The aforesaid main twin-duties of respondent No.1 clearly fall within the ambit of manual or operational duties. The element of supervision which respondent No.1 exercised cannot be said to be of such a nature as to clothe him with an authority to bind the company by his decisions. Nor respondent No.1 exercised a pervasive control over the kitchen/ward boys. On an overall evaluation of the nature of the duties discharged by respondent No.1, the profile seems to be that of oversight and direction. Respondent No.1 while discharging the manual work of tasting the food was vested with a power of inspection and superintendence of the manual work of kitchen/ward boys in the matter of cooking and service of food. In this view of the matter, the finding recorded by the learned Presiding Officer, Labour Court, cannot be said to be based on no evidence. 20/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC 29. I find substance in the submission of Mr. Menon that the endeavour of the employer to saddle respondent No.1 with futuristic duties, extracted above, does not gloss the true import of the duties performed by respondent No.1. There is material to indicate that there were other food service supervisors apart from respondent No.1. The food service manager used to prepare the roster of the food supervisors. In that context, the aforesaid duties in the 'job description' which have an element of decision making at an individual level do not fit in with the plurality of food service supervisors. 30. This being construct of the nature of duties of respondent No.1, it may not be necessary to elaborately delve into the question as to whether the learned Presiding Officer, Labour Court, was justified in placing reliance on the decision in the case of S. A. Sarang (supra). In the case of S. A. Sarang (supra), where the employer had taken action against the employee resorting to Model Standing Orders, a learned Single Judge of this Court held that if an employer continuously and consistently proposes to take action against its employee on the footing that he is covered by the Model Standing Order (thereby implying that the employee is a workman within the meaning of the Act) then such employer must be estopped from denying the 21/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC said fact when the dispute regarding the dismissal of the employee finally lands up before an industrial adjudicator. 31. In the case of German Remedies (supra) a Division Bench of this Court clarified the aforesaid judgment by observing that merely because the procedure for termination of the services which was adopted was akin to the rules provided regarding termination of services of a workman under Model Standing Orders that itself would not attract the principle of estoppel against the employer nor it would dis-entitle the employer from denying the claim of respondent being the employee. With reference to the aforesaid observations in the case of S. A. Sarang (supra) it was clarified that, "The expression "estoppel" used in the said ruling has nothing to do with the rule of estoppel. The said expression has been used specifically to disclose the procedure to be adopted by the industrial adjudicator while assessing the evidence led by the parties. In a case where the complainant places sufficient material on record which would disclose a consistent conduct on the part of the employer to treat the complainant as his employee and this is revealed from the material placed by such employee before the Court, in that case the contention raised on behalf of the employer denying the status of the complainant has to be 22/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC rejected. It is in that context the expression, "estoppel" has been used in paragraph 6 of the said decision and it has nothing to do with the rule of estoppel as is to be found under Section 115 of the Evidence Act." 32. It is imperative to note that in the order of confirmation dated 4th February, 1991 it was specifically stipulated that the conditions of service of respondent No.1 would be governed by Model Standing Orders or such other rules and regulations of the hospital and also by the terms of the said appointment letter. As noted above, a show cause notice was served on 12 th February, 2003 alleging misconduct within the meaning of Rule 22(a)(l) and (x) of the Model Standing Orders. On 22 nd February, 2003 a warning was issued to respondent No.1 alleging misconduct under Rule 22(h) and 22(n) of the Model Standing Orders. The charge-sheet dated 1st September, 2004 levelled charges of misconduct under Rule 22(a)(k) and (l) of the Maharashtra Industrial Employment (Standing Order) Rules, 1959. 33. Mr. Paranjape attempted to salvage the position by canvassing a submission that the Model Standing Orders apply to both clerical and supervisory staff. Model Standing Orders under Schedule I of the Maharashtra Industrial Employment 23/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 ::: WP1310-2009.DOC (Standing Orders) Rules, 1959 for workman employed in the establishment to do clerical or supervisory work are the same. 34. This submission is required to be appreciated in the totality of the circumstances. In the confirmation order issued in 1991 it was stipulated that the respondent No.1's services would be governed by the Model Standing Orders. It is not the case that there has been any change in the position of respondent No.1 since then. He continued to hold the same post as Food Service Supervisor. 35. For the foregoing reasons, I do not find any justifiable reason to interfere with the impugned order, in exercise of extraordinary writ jurisdiction. 36. Hence, the following order: :ORDER: Petition stands dismissed. Rule discharged. [N. J. JAMADAR, J.] 24/24 ::: Uploaded on - 11/01/2024 ::: Downloaded on - 12/01/2024 05:48:27 :::