The dominant nature of duties and the onus of proving workman status on the employee are crucial legal principles established in the judgment.

D. Y. CHANDRACHUD, J.

( 1 ) THE Labour Court by its two judgments dated 23rd July, 1999, came to the conclusion that the complaints filed before it by the two petitioners before the Court under the Maharashtra Recognition of trade Unions and Prevention of Unfair Labour Practices Act, 1971, were not maintainable on the ground that neither of the two petitioners is a workman within the meaning of section 2 (s) of INDUSTRIAL DISPUTES ACT, 1947 and consequently, not an employee within the meaning of the former Act. The orders have been called into question in these proceedings under Article 226. The evidence which has been recorded in the two complaints is common and the facts are similar. The two petitions have been heard together and, therefore, they are being disposed of by this judgment bearing in mind when the need arises, the factual distinction, such as there may be, between the two cases.

( 2 ) IN Writ Petition 57 of 2002, the petitioner is an Engineer with a degree of Bachelor of Engineering in the Mechanical Branch. The petitioner initially worked in an industrial establishment at Thane where he had five years experience. Thereafter, he was appointed as a Senior Engineer in the Indian hotels Company Ltd. , the respondent to these proceedings. He was confirmed in service after the successful completion of the period of probation. The petitioner in companion Writ Petition 58 of 2002 was initially appointed on 26th september, 1978 as trainee Engineer and the petitioner held a Diploma in engineering. Upon the completion of his training, the respondent appointed him as an Engineering Assistant on 24th October, 1980. He too, was confirmed in service. The services of the two petitioners were dispensed with by a letter dated 31st May, 1988 in pursuance of a clause in the contract of appointment and on the ground that the management had lost confidence. There appears to have been an allegation of bribery involving the two petitioners and it is alleged that a bribe had been accepted from one of the contractors who was carrying on work assigned by the respondent in connection with the renovation of the Hotel.

( 3 ) THE orders of termination were challenged before the Labour Court in complaints under Item (1) (a), (b), (d) and (f) of Schedule IV of the Act. The complaints were initially dismissed on the ground of limitation. Subsequently, it is common ground, in writ proceedings before this Court, the delay was condoned and the Labour Court was directed to dispose of the complaints on merits. Pursuant thereto, evidence was recorded before the Labour Court which resulted in the final order dismissing the complaints. That order has been affirmed in revision.

( 4 ) IN assailing the judgment of the Labour Court and the confirming order of the Industrial Court, Counsel appearing on behalf of the petitioner urged that : (i) The onus was on the employer to show that the petitioners were not workmen or that they were in a managerial or supervisory cadre; (ii) Once the duties of an employee were of a technical nature and the employee was entrusted with the work of looking after machines, the fact that he has some persons working under him would not make him a Manager or Supervisor and the Court has to have due regard to the dominant nature of duties; (iii) the fact that an employee was not a member of the Union or that he was not entitled to overtime payment was not dispositive of the question as to whether he is a workman; (iv) The evidence on the record would demonstrate that the primary work which the petitioners were assigned was supervision of the maintenance of machinery in the departments to which the petitioners were attached and the supervision of labour was merely incidental to the main duties which they performed; (v) Inasmuch as the petitioners did not supervise either the work of the other workmen, but were vested with the supervision of the maintenance of machines, it could not be held that they performed work of a supe