Important pointMerely because the employee had not been performing any managerial or supervisory duties ipso facto would not mean that person is a workman.

Headnote:(i) Industrial Disputes Act, 1947—Section 2(s)—Workman—A person would come within the purview if he was employed in any industry and performed any manual, unskilled, skilled, technical, operational, clerical or supervisory work—Merely because an employee had not been performing any managerial or supervisory duties would not ipso facto mean to be a workman—Respondent was appointed Legal Assistant and nature of his duties were to draft pleadings, give opinions to Management, represent appellant in all types of cases and to conduct departmental inquiries—He was not performing any stereotype job and his job involved creativity—He would not fall in definition of workman.
Held : A bare perusal of the aforementioned provision clearly indicates that a person would come within the purview of the said definition if he: (i) is employed in any industry; and (ii) performs any manual, unskilled, skilled, technical, operational, clerical or supervisory work. Thus, a person who performs one or the other jobs mentioned in the aforementioned provisions only would come within the purview of definition of workman. The job of a clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. The question as to whether the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regard the dominant nature thereof. With a view to give effect to the expression to do “any manual, unskilled, skilled, technical, operational, clerical or supervisory work”, the job of the concerned employee must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not been performing any managerial or supervisory duties, ipso facto he would be a workman. In Miss A. Sundarambal vs. Government of Goa, Daman and Dieu and Others [(1988) 4 SCC 42], teachers serving in an educational institution being not found to be performing any duty within the aforementioned category has been held not to be workmen. Similarly, an advertising manager, a chemist employed in a sugar mill, gate sergeant in charge of watch and ward staff in a tannery, a welfare officer in a commercial educational institution have also not been held to be workmen. The Respondent had not been performing any stereotype job. His job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the Appellant as also represent it before various courts/authorities. He would also discharge a quasi-judicial functions as an Enquiry Officer in departmental enquiries against the workmen. Such a job, in our considered opinion, would not make him a workman. (Paras 15 to 17)
(ii) Industrial Disputes Act, 1947—Section 25F—Principal of res-judicata—Respondent was appointed as legal Assistant—His services were dispensed with pursuant to decision to abolish the post—Labour Court holding respondent to be a workman ordered reinstatement with 50% back wages—Single Judge High Court upheld the award with some modification—Appellant-employer did not challenge the judgment but workman filed appeal—Division Bench restored award of Labour Court—Appeal by employer—Would judgment of Single Judge operate res judicata against appellant when legal question whether respondent was a workman or not was decided in its favour? No. (Para 26)

Judgment

S.B. Sinha, J.—These appeals are directed against the judgments and orders dated 04.09.2001 in L.P.A Nos. 1311 of 1991 and 1356 of 1991 and 7.3.2002 in L.P.A.No. 1356 of 1991 passed by the High Court of Punjab and Haryana.

Introductory Fact :

2. The Respondent herein was appointed by the Appellant in the post of Legal Assistant; the qualification wherefor was degree in law with a practicing licence. The nature of his duties was to prepare written statements and notices, recording enquiry proceedings, giving opinions to the Management, drafting, filling the pleadings and representing the Appellant in all types of cases, viz., civil, labour and arbitration references independently. He was also conducting departmental enquiries against the workmen employed in the industrial undertaking of the Appellant. He was placed on probation. While he was serving the Appellant in the said capacity, allegedly a decision was taken to abolish the said post pursuant to the recommendations of the Federation of Cooperative Sugar Mills Ltd., as a result whereof his services were dispensed with.

3. An industrial dispute was raised by the Respondent which was eventually referred to the Labour Court by the Appropriate Government for adjudication as regard the question as to whether the termination of his services was justified.

Labour Court :

4. A contention was raised by the Appellant herein before the Labour Court that having regard to the nature of duties performed by the Respondent, he would not be a ‘workman’ within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, ‘the Act’). The Labour Court having regard to the rival contentions framed the following issues:

“1. Whether the applicant does not fall under the definition of workman;

2. Whether the termination of services of the workman is proper, justified and in order? If not, to what relief he is entitled?”

5. The question as to whether the Respondent was a workman or not was taken up as a preliminary issue and by an order dated 24.9.1982, the Labour Court opined that the job performed by the Respondent was of ‘legal clerical nature’ and, thus, he would be a ‘workman’ within the meaning of the provisions of the Act. In its award dated 13.11.1984, the Labour Court came to the conclusion that the Respondent, having been retrenched from services by the Appellant without complying with the provisions of Section 25F of the Act, should be directed to be reinstated with continuity of service and 50% back wages.

High Court Proceedings :

6. Aggrieved by and dissatisfied with the said award, both the Appellant and the Respondent filed writ petitions before the Punjab and Haryana High Court. A learned Single Judge of the said court by a judgment and order dated 30.8.1991, while upholding the finding of the Labour Court to the effect that the Respondent was a workman; upon consideration of the fact that he had since been practising as an advocate and was appointed as an Additional District Attorney in the year 1985, awarded an amount calculated at 50% back wages from the date of termination to the date of award, namely, 13th November, 1984 by way of compensation in lieu of his reinstatement in service.

7. The Respondent filed two Letters Patent Appeals against the said judgment. The Appellant, however, did not prefer any appeal there-against.

8. A Division Bench of the High Court by a judgment dated 4.9.2001, set aside the judgment of the learned Single Judge and restored the award of reinstatement passed by the Labour Court but rejected the contention of the Respondent that he was entitled to full back wages. It was, however, directed that the Respondent would be free to avail remedy under Section 33-C(2) of the Act for payment of wages for the period between the date of the award and the date of physical reinstatement.

9. In the said inter-court appeals, allegedly the name of the counsel for the Appellant had not been shown on the date of hearing and as such it was not rep

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2005 Supreme(SC) 243

Important pointMerely because the employee had not been performing any managerial or supervisory duties ipso facto would not mean that person is a workman.

Cases Referred (10)