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2022 Supreme(Online)(Bom) 28
HIGH COURT OF BOMBAY
MANISH PITALE, J
M/s. Taj SATS Air Catering, Goa Unit – Appellant
Versus
Mr. Mankayil Poulose Jose – Respondent
Writ Petition No. 304 of 2019
For the Appellants/Petitioners: Mr. G. K. Sardessai, Ms. S. Bangera
For the Respondents: Mr. Bhargav Khandeparkar
The definition of 'workman' under the Industrial Disputes Act hinges on the dominant nature of duties performed, not merely title or designation.
Headnote:(A) Industrial Disputes Act, 1947 - Section 2(s) - Definition of 'workman' - The Tribunal held respondent to be workman but petitioner contended otherwise claiming misconduct charges were proven - The Court assessed nature of duties performed by respondent - It was found that respondent was in fact performing managerial and supervisory duties, thus not falling under definition of 'workman'. (Paras 8, 20, 28)
(B) Jurisdiction - The Tribunal did not possess jurisdiction as respondent was not a workman as defined under Section 2(s), leading to erroneous proceedings. The findings led to the dismissal of the complaint. (Para 28)
| Table of Content |
|---|
| 1. overview of the complaint and initial tribunal findings. (Para 4 , 5 , 6) |
| 2. arguments regarding classification of the respondent as a workman. (Para 9 , 10) |
| 3. court observations on policing the definition of workman. (Para 20 , 28) |
| 4. legal principles establishing criteria for workman classification. (Para 21 , 24) |
| 5. final judgment and regulatory remarks. (Para 29 , 31) |
JUDGMENT
1. Heard.
2. Rule, returnable forthwith. Heard finally with the consent of the learned Counsel appearing for the rival parties. Learned Counsel appearing for Respondent no.1 waives notice. The respondent no.2 is a formal party.
3. The Petitioner before this Court is the Management and the Respondent no.1 is the employee.
4. This Petition arises out of an order dated 25.10.2018, passed by the Industrial Tribunal and Labour Court, whereby on an application filed by Respondent no.1 under Section 2 -A(2) of the Industrial Disputes Act 1947,(for short, the said Act), it has been held that the Respondent no.1 is a workman within the meaning of Section 2 (s) of the aforesaid Act. It was further held that the charges of misconduct levelled against the Respondent are not proved to the satisfaction of the Tribunal. The further issues framed by the Tribunal pertaining to the entitlement of the Respondent towards reinstatement in service and full back wages and whether the termination of service of the Respondent can be said to be justified, are yet to be decided by the Tribunal. But, the Petitioner has approached this Court to challenge the impugned order, because it is asserted on behalf of the Petitioner that the Tribunal could not have exercised jurisdiction in the matter, since the Respondent no.1 cannot be said to be a workman as defined under Section 2 (s) of the aforesaid Act and that, therefore, the entire proceedings leading to the impugned order are without jurisdiction. The issue raised on behalf of the Petitioner goes to the very root of the matter.
5. The Respondent no.1 was appointed to the post of Engineering Co-ordinator by appointment order dated 15.03.2009 issued by the Petitioner. In the order, the list of duties was not specified, and instead, it was stated that the Respondent shall perform such duties as may be assigned by the Petitioner and its Officers. A show-cause notice was issued to the Respondent alleging that he had caused wilful damage to the property of the Petitioner. The Respondent submitted his reply, but the same was not found to be satisfactory and the Petitioner, on 30.08.2016, issued a communication to the Respondent levelling charges of misconduct, which read as follows:
“i. Wilful damage to or loss of employer’s property.
ii. Wilful insubordination or disobedience whether alone or in combination with others to any lawful and reasonable order of a Superior.
iii. Any acts of subversive of discipline.
iv. Any acts of threats directly or indirectly by way of mails, sms. etc.”
6. On the basis of the aforesaid charges, an inquiry was conducted wherein the Petitioner, as well as Respondent no.1, examined witnesses, and eventually an inquiry report was prepared by the Inquiry Officer. In the inquiry report dated 20.09.2016, it was found that the charges levelled against Respondent no.1 were proved. After following the procedure of issuing notice to Respondent no.1, by order dated 15.11.2016, the Petitioner terminated the services of Respondent no.1.
7. The said action of the Petitioner in terminating the services of the Respondent no.1 became subject matter of challenge before the Tribunal in the aforesaid complaint filed by Respondent no.1. According to Respondent no.1, the termination of his services was illegal. The Petitioner filed its written statement opposing the said complaint while rejoinder affidavit was filed on behalf of the Respondent and upon completion of pleadings, the Tribunal framed issues, which read as follows:
“1. Whether the Applicant proves that he is a ‘Workman” within the meaning of Section 2 (s) o
