JUDGMENT - F.I. REBELLO, J.:---The Petitioner was initially employed as a clerk with the respondent. The petitioner was promoted as Tour Executive vide company's letter dated 8th May, 1982. His services were terminated on 29th September, 1988. On petitioner raising an Industrial Dispute a Reference was made to the Industrial Tribunal. Petitioner and the respondents appeared before the Industrial Tribunal and filed claim statement and written statement respectively. Evidence was produced both oral and documentary. Based on the evidence, the Industrial Court by its Award dated 21st January, 1998 held in answer to the preliminary issue raised by the respondents herein that the petitioner was not a workman under section 2(s) of the Industrial Disputes Act, 1947. The present petition is to impugn the said order.

2.At the hearing of the petition learned Counsel on behalf of the petitioner contends that the Order of the Industrial Tribunal is liable to be set aside as it discloses errors apparent on the face of the record in as much as the Industrial Tribunal has not correctly applied the tests, for determining whether the petitioner was a workman within the meaning of section 2(s) of the Industrial Disputes Act or fell within the exclusionary Clauses of section 2(s) of the Industrial Disputes Act. Counsel has relied on the evidence, both oral and documentary and Judgments cited in support of the contention.

On the other hand on behalf of the respondents, their learned Counsel has contended that merely because an employee does not fall under the exclusionary clauses by itself would not make the employee a workman. An employee to be a workman must fall within the predicate of section 2(s). In the instant case, the petitioner does not so fall or falls within the exclusionary clauses and considering that, the Industrial Tribunal was right in answering the Issue against the petitioner. Learned Counsel has also relied on the evidence oral and documentary as also various Judgments.

3.At the threshold, the contention on behalf of the respondents that a person to be a workman must not only fall outside the exclusionary clauses but must also satisfy the predicates of the definition has to be accepted. This is as per the law laid down by the Constitution Bench of the Apex Court after reviewing earlier Judgments of other Benches of the Apex Court. The law so declared would be reflected in the Judgment of the Apex Court in the case of (H.R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. etc. etc.)1, 1994(II) C.L.R. 552, wherein the Apex Court has after reviewing its judgments, reiterated the law as under :---

"Hence the position in law as it obtains today is that a person to be a workman under the Industrial Disputes Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation."

The question, however, is of burden of proof. Must a person or the Union at whose instance a reference is made, on the presumption that the employee is a workman has to discharge the burden of proving that he is a workman or is the burden on the person who disputes the same. In my opinion the burden must always be on the person who disputes the character of the person in the case of an industrial reference. In the instant case, it is the employer who has pleaded that the petitioner is not a workman. In that context the pleading of the petitioner have to be examined to understand exactly what the defence of the petitioner was. This would be clear from a reading of the averments in the written statement. In paragraph 3, the respondents had averred as under :---

"The Company states and submits that the employee does not fall within the meaning of 'workman' as contemplated under section 2(s) of the Industrial Disputes Act, 1947 in as much as his duties were primarily and sub

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