The court must adopt a positive approach to determine whether an employee is a "workman" under Section 2(s) of the Industrial Disputes Act, 1947, by first ascertaining the nature of the work the employee is primarily required to do and then considering whether any of the exceptions under Section 2(s) apply.

( 1 ) THIS matter was heard early this year and judgment was reserved. On an application of learned counsel for respondent No. 2 the matter was reheard after considerable number of adjournments were given to suit the convenience of counsel.

( 2 ) THE principal point for decision in this petition under Article 226 of the Constitution of India is the meaning to be given to the word "workman" in Section 2 (s) of the Industrial Disputes Act, 1947 and the scope of the applicability of the said Act vis-a-vis reference being made of alleged industrial disputes to a Labour Court or a Tribunal under the Act.

( 3 ) THE petitioner is a registered company with a branch office at Delhi. It is engaged in the sale of heavy machinery and other equipment manafactured by it. Respondent No. 2, A. P. Goel, who is a qualified Chartered Accountant was an employee in the Delhi branch of the petitioner. It is not disputed that at the relevant time his employment were Rs. 883. 00 per month. The services of Goel were terminated by the petitioner with effect from May 16, 1973. A dispute in respect of this termination of service was raised and was eventually referred by the Delhi Administration to the Labour Court for adjudication under the Industrial Disputes Act. The terms of the reference to the Labour Court were as follows :

"whether the termination of service of Shri A. P. Goel was illegal and/or unjustified and if so, to what relief is he entitled and what terms are necessary in this respect ?"the petitioner put in appearance before the Labour Court and raised a preliminary objection to the effect that in as much as Goel was not a "workman" within the meaning of Section 2 (s) of the Industrial Disputes Act, the reference was incompetent when the Labour Court had no jurisdiction to adjudicate on it. On this the Labour Court settled the following issue :

"whether Shri A. P. Goel was a workman within the mean- ing of Section 2 (s) of the Industrial Disputes Act, 1947 ?"

( 4 ) THE parties before the Labour Court adduced evidence and by its order dated May 22, 1974 the Labour Court held that Goel was a "workman" within the meaning of Section 2 (s) of the said Act. Aggrieved by this order the petitioner has preferred the present petition under Article 226 of the Constitution and has urged that a writ of certiorari or any other writ, order or direction be issued quashing the impugned order of the Labour Court dated May 22, 1974 holding that Goel is a "workman" as defined in Section 2 (s) of the Industrial Disputes Act. Section 2 (s) reads as under :

" workman means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute,. but does not include any such person (i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934, or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly or a managerial nature. "under Section 2a of the said Act where any employer discharges. dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be d