2006 Supreme(SC) 1224

2006(9) Supreme 533
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. AR. Lakshmanan and Altamas Kabir, JJ.
Muir Mills Unit of N.T.C. (U.P.) Ltd. - Appellant
versus
Swayam Prakash Srivastava & Anr. - Respondents
Civil Appeal No. 1839 of 2005
Decided on 1-12-2006
Counsel for the Parties :
For the Appellant : Sanjay Ghose and Ms. Anitha Shenoy, Advocates.
For the Respondents : Bharat Sangal, Samyadip Chatterji and Ms. V. Pattanaik, Advocates.

IMPORTANT POINT
A Legal Assistant is not a workman under the Industrial Disputes Act.

Headnote:(i) LABOUR LAW - U.P. Industrial Disputes Act, 1947 - Section 2(z) [section 2(s), Industrial Disputes Act, 1947] - Workman - Appointment as Legal Assistant in litigation section of appellant mill on a probation - Whether respondent is a ‘workman’ under the U.P. Act - (No) - Respondent did not fall into the category of workman as he falls under exception (iv) of Section 2(z) of the Act - Respondent is a professional and never can a professional be termed as a workman.

       Held : In the fact situation of this case, from the perusal of the job profile of respondent No.1 and after examining section 2 (z) of the U.P.I.D Act it can be said that, respondent No.1 did not fall into the category of workman as contended by the respondents as respondent No.1 falls under exception (iv) of section 2 (z) of the U.P.I.D Act, 1947. (Para 32)

       Before the Labour Court the respondent was examined as W.W-I. In his deposition in-chief, he stated on oath that, on 04.06.1982 he was appointed as the legal assistant in the Mill. In the cross-examination he stated that he was appointed in the post of Legal Assistant in the Mill and a total of Rs 850/- per mensem was being paid as salary. One Mr. Naresh Pathak was examined as E.W.-I, he deposed on oath that he was working as Senior Legal Assistant since 1971 and that the respondent had worked in his department in the post of Legal Assistant in June 1982 in a supervisory capacity and the work of the respondent No.1 was to supervise the court cases and whenever necessary to prepare draft reply to matters that are pending in the court. He also deposed that the work of the respondent was not satisfactory and in this regard a note was issued to the General Manager. In cross-examination the witness deposed that he has no document to prove that the nature of work of the respondent was supervisory. However this was not given any kind of serious consideration by the High Court while deciding on the claim made by the respondents.(Para 36)

       Furthermore if we draw a distinction between occupation and profession we can see that an occupation is a principal activity (job, work or calling) that earns money (regular wage or salary) for a person and a profession is an occupation that requires extensive training and the study and mastery of specialized knowledge, and usually has a professional association, ethical code and process of certification or licensing. Classically, there were only three professions: ministry, medicine, and law. These three professions each hold to a specific code of ethics, and members are almost universally required to swear some form of oath to uphold those ethics, therefore "professing" to a higher standard of accountability. Each of these professions also provides and requires extensive training in the meaning, value, and importance of its particular oath in the practice of that profession.(Para 37)

       A member of a profession is termed a professional. However, professional is also used for the acceptance of payment for an activity. Also a profession can also refer to any activity from which one earns ones living, so in that sense sport is a profession.(Para 38)

       Therefore, it is clear that respondent No.1 herein is a professional and never can a professional be termed as a workman under any law.(Para 39)

       (ii) LABOUR LAW - U.P. Industrial Disputes Act, 1947 - Termination of services of a Legal Assistant who was a probationer - Order for reinstatement as passed by the Labour Court - Sustainability - Respondent was appointed as Legal Assistant on a probation peroid of 1 year - On his completion of 6 months of probation he was informed that his work was not upto the mark - However, he was given an opportunity to improve his performance - On expiry of probation period, his services were terminated stating that his performance has not been found satisfactory - Whether award of Labour Court directing reinstatement of respondent with backwages was justified - (No).

       Held : If we peruse through the termination order it is clear that the respondent No.1 was appointed in the capacity of legal Assistant and his services were terminated after the completion of the probationary period.(Para 41)

       It is clear from the clause in the appointment letter and the termination letter that, the Mill had reserved all rights to discharge from the service of the Mill the respondent No.1 without assigning any reasons and without any notice.(Para 42)

       We are also of the view that the award of the Labour Court is perverse as it had directed grant of backwages without giving any finding on the gainful employment of respondent No.1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of respondent No.1 was in any manner stigmatic.(Para 43)

       Further the Labour Court issued notices to both parties and after adducing evidence and hearing both the parties, it has recorded a finding that the termination of services of the concerned workman, during his service, was neither based on unsatisfactory work nor the same could have been proved before the labour court and therefore, the labour court arrived at the conclusion and recorded a finding that the services of the workman have been terminated by way of victimization and unfair labour practice. Aggrieved by the aforesaid award, the employer-petitioner has come before this court by means of the present writ petition. An application has been filed by the workman concerned that the employer has not complied with the aforesaid interim order. (Para 44)

       We also observe that the respondent No.1 had been receiving interim wages for over 15 years without having worked at all and without having established his unemployment. The High Court failed to appreciate that the award itself had only granted reinstatement to respondent No.1 as a probationer giving the petitioner the right to take a decision on confirmation. Further the Mill itself has been shut down now and given the lapse of 22 years, it was impracticable to reinstate respondent No.1 as a probationer. (Para 46)