1999 Supreme(Bom) 292

IN THE HIGH COURT OF BOMBAY
N.J. Pandya, J.
Glaxo India Ltd., a Pharmaceutical Company..... Petitioner.
Versus
Mr. C. Gupta another ..... Respondents.
Writ Petition No. 462 of 1995 along with Writ Petition No. 695 of 1996, decided on 13-4-1999.
Advocates appeared :
P.K. Rele with S.S. Pakale in W.P. No. 462 of 1995, for the petitioner for respondent in W.P. 695/96.
S.J. Deshmukh with N.M. Ganguli in W.P. No. 462 of 1995, for the respondent No. 1 and in W.P. No. 695 of 1996, for the petitioner.

Headnote:Section 2(s)-Position of employee under the unamended and amended definition of workman Prior to the amendment in Section 2(s) of the Industrial Disputes Act defining "workman", manual was not followed by punctuation mark and, therefore, it governed the subsequent categories namely unskilled and skilled. Prior to the amendment, word "technical" was very much there. In other words, according to the unamended definition, an employee doing any manual, unskilled or skilled work could be a workman as also an employee employed to do technical work can also be a workman. The amendment which came into force on 21.8.,1984 as per Act 46 of 1982, declined the word manual from the two categories referred to above and by putting punctuation mark, it became a separate category by itself. This had an immediate effect of enlarging the scope of the word "skilled". Skill required of the employee thus ceased to be a manual skill. Where the employee was terminated on and from 15.9.1982 the question whether he is a workman or not has to be decided with reference to that date. The amendment cannot be given retrospective effect. The date of making reference will not be decisive factor for making the amended definition applicable to the case.

       Section 2(s) (amended in 1982 ineffective from 1984)-Employees services terminated in 1982-Reference in 1985-No retrospective effect of amendment-Date on making reference not decisive factor for making amended definition applicable to the case whether workman or managerial staff-Status of employee is decided by nature of duties done.

       Sections 2(s) and 10(1)(c)Employee representing Management in task of maintaining industrial peace and assisting companys lawyers in conducting cases-Said employee not a workman-References rejected not being tenable.- The notice calling for the job to which the employee was appointed was as under : "The selected candidates will advise the corporates personnel department and through it, various establishments of the company on all matters relating to Labour Laws, preparing various applications and claims and appear selectively before the Labour Court authorities such as Conciliation Officer, Labour Court and Industrial Tribunal." The recruitment was for Industrial Relation Executive post in the management staff of the petitioner-company. The employee was not to get regular increment but was to be granted variable increments related directly to his performance. He had a special pension scheme which was admitted to be available for the officers only. There was a hospital scheme, his retirement age was 55 years because he is an officer and his service was transferable all over country. The activities clearly indicated that he was representing the management in the very important task of maintaining industrial peace and assisting the companys lawyer in conducting cases to obtain favourable result for the company. In this background, as per exception No.3 of Section 2(s) of the Act he would certainly be falling into the administrative or managerial capacity. To run harmoniously a factory by maintaining proper industrial relation is definitely a part of administration. Because of his expertise, the employee was the first rung in the ladder of management laid down by the company. That in no way will take him out of the position of being employed in managerial or administrative capacity. The employee was not a workman under Section 2(s) of the Industrial Disputes Act. Unfortunately, the approach of the trial Court had been to take each of the work and hold that it does not amount to either administrative or managerial. The approach should have been to consider his work in totality. It was clear that he was in managerial or administrative capacity. The employee on totality of his work can be said to be falling in the category of managerial or administrative capacity. The petition filed by the employee rejected. The petition filed by company allowed. The employee is held to be not a workman, 1977 Lab IC 721, Gauhati High Court, Case Law Reviewed.

       Sections 10(1)(c) and 2(s)Reference to Labour Court- Termination of employee on 15.9.1982Definition of workman amended by Act 46 of 1982 which had the effect of amending definition of workman effective from 21.8.1984-Reference under Section 10(1)(c) made in 1985Amended definition of workman will not be applicable as termination took place prior to the amendment-Reference has to be decided with reference to the definition as it existed on the date of termination.