Per M. R. Hariharan Nair, J.

The petitioners 1 to 3 and 5 to 23 were the employees of the Tata Oil Mills. With the merger of the Company with the Hindustan Lever on 19.3.1993, the petitioners became the employees of the 1st respondent. The petitioners were tempted to adopt the Voluntary Retirement Scheme introduced by the respondent and they left the service of the respondents. Thereafter, they came to understand that there was a change of terms in the Voluntary Retirement Scheme of the Company under which 15% more than what the petitioners got was admissible. The dispute based on the claim of the petitioners for the enhanced benefit reached the Labour Court, but, as per the impugned order marked as Ext. P1 in this case, the Labour Court found that the petitioners, having adopted the Voluntary Retirement Scheme which tantamounts to resignation are not entitled to claim the status of 'workmen' for the purpose of S. 2(s) of the Industrial Disputes Act. Consequently, the claim was found to be not maintainable and dismissed.

Mr. A. X. Varghese, the learned counsel for the petitioners, relied on the decision in Nar Singh Pal v. Union of India, (AIR 2000 SC 1401) where the employees who claimed the benefits had resorted to proceedings before the Industrial Tribunal. Even though the Tribunal rejected the claim on the ground that the petitioners therein having accepted the retrenchment compensation was not entitled to raise any industrial dispute, the Supreme Court found that there would be no estoppel against the exercise of Fundamental Rights available under the Constitution and upheld the claim of the employee.

During hearing the learned counsel for the Management placed reliance on a decision in Everestee v. District Labour Officer, 1999 (2) KLT 560) where a Bench of this Court found that a person who voluntarily retired under a Voluntary Retirement Scheme cannot be taken as a 'workman' for the purpose of S. 2(s) of the I.D. Act and dismissed the claim.On a careful analysis of the dictum in the said two cases, I am of the view that it is the finding in the Bench decision of this Court that applies to the facts of the present case.

S. 2(s) of the I.D. Act defines a 'workman' as follows :

"2(s) 'Workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 Air Force Act, 1950 (45 of 1950), or the Army Act 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); 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 a supervisory capacity, draws wages exceeding one thousand six 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 of a managerial nature".

What is clear from the said definition is that in order that a person can be a workman under the deeming provision, he has to be one dismissed, discharged or retrenched. Dismissal, discharge and retrenchment are all voluntary acts on the part of the Management, whereas the case of resignation or voluntary retirement is an act of violation on the part of the workman. The absence of the terms 'resignation' and retirement in the aforesaid definition, according to me, is very conspicuous. When a person claims the status of a 'workman' under the deeming provision, he has to establish that he comes within the four