JUDGMENT :

1. This petition under Article 226 of the Constitution of India raises usual controversy as to whether the employee – respondent No.1, herein, is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1949 (“the I.D. Act”).

2. Background facts leading to this petition can be summarized as under:

(a) The petitioner is a Hospital run by a Public Charitable Trust. It employs about 1100 employees in different grades and capacities. Respondent No.1 was appointed on a temporary basis as a, “Food Service Supervisor” with effect from 15th October, 1990. In terms of the appointment order, respondent No.1 was to perform the duties as may be assigned to respondent No.1 by the Medical Superintendent and other Superior Officers. On 4th February, 1991, respondent No.1 was confirmed in the said post.

(b) The petitioner claimed on 11th February, 2003, a duty list captioned as ‘job description’ was served on respondent No.1. It is the claim of the petitioner that respondent No.1 had all along been discharging supervisory duties. As Food Service Supervisor the respondent had about 30 kitchen ward-boys working under his direct supervision and control. He was incharge of and responsible for food service to the patients in the wards in the entire hospital. Respondent No.1 was to report to Food Service Manager, who was the Head of the Department.

(c) It seems that disputes arose between the Management and Respondent No.1. On 12th February, 2003, a show cause notice was served on respondent No.1 alleging misconduct under Rule 22(a)(l) and (x) of the Model Standing Orders. In the wake of a serious complaint lodged by Mr. Rohan M. Uchil, Food Service Manager, dated 16th August, 2004, a charge-sheet was served on respondent No.1 alleging serious misconduct under Rule 22(a), 22(k) and 22(l) of the Model Standing Orders under the Maharashtra Industrial Employment (Standing Order) Rules, 1959. Enquiry commenced. Post enquiry, the Enquiry Officer found respondent No.1 guilty of certain counts of misconduct. Eventually, respondent No.1 came to be dismissed from service by an order dated 24th January, 2006.

(d) Respondent No.1 raised an industrial dispute. Upon failure of conciliation proceedings, the appropriate Government referred the dispute to the Labour Court for adjudication.

(e) Respondent No.1 filed a statement of claim in support of the demand of reinstatement. The petitioner resisted the claim by filing a written statement. The tenability of the reference was assailed by contesting the status of respondent No.1 as a workman. Thereupon, the learned Presiding Officer framed a preliminary issue: Whether the respondent – second party is a workman under I.D. Act?

(f) The parties led evidence. Respondent No.1 examined himself. Mr. Rohan Uchil, the Food Service Manager, deposed on behalf of the petitioner – employer.

(g) After appraisal of the pleadings, evidence adduced by the parties and the documents tendered for his perusal, the learned Presiding Officer, 3rd Labour Court, Mumbai, was persuaded to answer the preliminary issue in the affirmative and hold that respondent No.1 was a workman within the meaning of Section 2(s) of the I.D. Act.

(h) The learned Presiding Officer was of the view that though the designation of the post held by respondent No.1 was, “Food Service Supervisor” yet in substance respondent No.1 discharged the duties of a workman. The learned Presiding Officer was also of the view that as the petitioner – employer had proceeded against respondent No.1 in accordance with the Model Standing Orders applicable to a workman the decision of this Court in the case of S.A. Sarang vs. W. G. Forge and Allied Industries, Ltd. and ors., 1996(1) CLR 387 governed the facts of the case and the petitioner – employer was estopped from denying the status of the respondent No.1.

3. Being aggrieved by and dissatisfied with the aforesaid determination of the preliminary issue, the petitioner – employer has invoked the writ jurisdict