The main legal point established in the judgment is the need for a holistic consideration of the entire material on record to determine the predominant functions of the employee, emphasizing the essence of the employee's duties over the designation or class name.

JUDGMENT

M S Sonak, J. - Heard Mr. G. K. Sardessai with Ms. Madhuri Rao, learned Counsel for the petitioner, and Mr. Shivraj Gaonkar, learned Counsel for the respondents.

2. Rule. At the request of and with the consent of the learned Counsel for the parties, the Rule is made returnable forthwith.

3. The challenge in this petition is to the award (part-I) dated 28.02.2020 made by the Industrial Tribunal and Labour Court, Government of Goa at Panaji (Tribunal) in Reference No. IT/25/2014 rejecting the petitioner's (employer's) preliminary objections to the maintainability of the reference. The employer had urged that the respondent is not a workman under Section 2(s) of the Industrial Disputes Act, 1947 (said Act) and in any case, the Gomantak Mazdoor Sangh, of which the respondent was a member, was incompetent to raise the industrial dispute relating to her termination.

4. Mr. Sardessai, the learned Counsel for the petitioner, at the very outset and upon a query of this Court, made it clear that the employer was not pressing the issue of alleged incompetency of the Gomantak Mazdoor Sangh to raise the industrial dispute on behalf of the respondent-employee. Mr. Sardessai, therefore, made no submissions on this aspect. Even otherwise, having regard to the provisions of Section 2(A) of the said Act, as was noted by the Tribunal in paragraphs 18 and 19 of the impugned award, there is no case made out to question the reference on the said ground.

5. Mr. Sardessai, however, submits that there is perversity in the findings recorded by the Tribunal that the respondent is indeed a workman under Section 2(s) of the said Act. He submits that the award is riddled with errors apparent on the fact of record, failure to consider the entire material on record holistically, non-application of mind and the application of incorrect legal tests. For all these reasons, Mr. Sardessai submits that the award is liable to be set aside and the reference, declared incompetent.

6. Mr. Sardessai submits that the Tribunal has misconstrued the legal position and focused excessively on the services of the respondent in the Stores Department, hardly about 4 months before the date of the termination of her services. He submits that such an approach is contrary to the law laid down by this Court in A. B. Manore v/s. W. N. C. Ltd, (1994) 69 FLR 761 (Bom.) . He submits that the Tribunal has virtually ignored the nature and character of the services rendered by the respondent before such Transfer or for that matter before being employed with the present employer. Mr. Sardessai submits that all this material, which has escaped consideration of the Tribunal, was vital to the consideration of the actual nature and character of the respondent's employment with the employer. Mr. Sardessai submits that if all such material were to be considered by the Tribunal, then, the conclusion that the respondent was a Supervisor would be inescapable.

7. Mr. Sardessai submits that the employer, upon leave being granted by the Tribunal to amend its pleadings, has placed on record that the respondent, post her termination has also been appointed to a managerial or supervisory position with M/s Choksi Laboratories Ltd. He submits that such pleadings are admitted by the respondent. He submits that the Tribunal was, therefore, duty-bound to consider this aspect of the matter before rejecting the employer's contention that the respondent was discharging predominantly supervisory functions before her termination.

8. Mr. Sardessai submits that the Tribunal has applied an incorrect test for determining whether or not the respondent was a workman under Section 2(s) of the said Act. He submits that the correct test would involve taking a holistic view of the material on record and determining the predominant functions of the respondent. He submits that merely because the respondent may have had no