The determination of whether an individual is a workman under the Industrial Disputes Act depends on the nature of the work performed, and not solely on the job title.

SUNITA GUPTA, J.

1. Hardwari Lal, in this intra court appeal impugns the judgment of learned Single Judge dated 6th August, 2012 passed in WP(C) No.1333/2008 titled as Pustak Mahal Publishers vs. Hardwari Lal Sharma whereby the award dated 10th July, 2007 passed by the learned Presiding Officer, Labour Court- II directing reinstatement of appellant with continuity of service and 50% back wages and all other benefits was set aside and the writ petition filed by the respondent-management was allowed.

2. The admitted case of the parties is that the appellant was employed as a clerk with the respondent on 1st November, 1978 whereafter he left the services and rejoined on 1st September, 1994 on a salary of Rs.5700/- per month on the post of Sales Manager. It is the case of the appellant that though he rejoined the services as Sales Manager but he was made to do clerical work. He gave no cause of grievance to the respondent. On 20th April, 2001 he was called by the Managing Director of the respondent and was asked to resign from the union and to finish the union. Since the appellant was an ordinary member of the union and he could not wind up the union, he refused to do so. On the same day at 2:30 pm, he was given termination letter which he refused to accept and he was immediately terminated from services.

3. The appellant claiming himself to be a workman raised an industrial dispute challenging his termination. Reference was sent by Sh. Narendra Kumar, Secretary Labour, Govt. of NCT, Delhi on 15th October, 2001 vide reference No. F.24(2624)/2001-LAB/22941-45 pertaining to an industrial dispute between the management of M/s Pustak Mahal Publishers and its Manager Sh.Hardwari Lal Sharma in the following terms:-

“Whether the termination of services Sh. Hardwari Lal Sharma s/o Sh. Gokal Chand Sharma by the management is illegal and/or unjustified and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?”

4. Pursuant to the reference, statement of claim was filed by the workman claiming himself to be a clerk although on papers he was shown by the management as a Sales Manager. It was alleged that the termination is absolutely wrong and illegal and in gross violation of Section 25F and 25N of Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act).

5. The claim of the appellant was resisted by the management inter alia on the ground that claimant was not a workman as defined in Section 2(s) of the ID Act, 1947 and thus he was not covered by the ID Act. It was denied that the claimant was working as a clerk. It was elaborated that he was a Sales Manager and had number of persons working under him. He was discharging duties of supervisory nature. As such, the claim was not maintainable.

6. On the pleadings of the parties, following issues were framed by the Labour Court:-

“(1) Whether the claimant is not a “workman” as defined in Section 2(s) of ID Act, as alleged by the management in its Preliminary Objection No.1 of WS? If so, to what effect?

(2) To what relief, if any, is the claimant/workman entitled against the management in terms of this reference?”

7. The appellant reiterated the stand taken by him in the claim petition whereas the management examined three witnesses MW1 Amarjeet Kaur, Office Superintendent; MW2 Sh. Daya Kishan, Hindi Stenographer and MW3 S.K. Tripathi, Sales Representative.

8. Learned Labour Court relied upon the extract from the register of Employment and Remuneration in the year 1978 when the appellant was employed earlier and was shown as a clerk. It was observed that the onus of proving the fact that the appellant was not a workman was upon the management which it failed to prove. As such, the appellant was held to be a workman. Further the termination was held to be illegal being in contravention of the provisions of Section 25F of the