1. This appeal is by the Management of Thungabhadra Sugar Works (P.) Limited, Harige, Shimoga, challenging the order made by the learned single Judge in Writ Petition No. 21798 of 1980.
2. The undisputed facts of the case may briefly be stated as follows :
3. The second respondent, Sri R. Srinivasa Murthy, was issued with a memo by the Management as per annexure-A to the effect that he is taken as a trainee in the factory for the crushing season 1971-72 on a monthly stipend of Rs. 100 and that he should report for training immediately. The second respondent having accepted the offer reported to the Management in accordance with the memo. After a lapse of some time, Srinivasa murthy wrote a letter as per annexure-C to the Management requesting that he be confirmed as Supervisor A2 Grade and given provident fund benefit. He has stated in that letter that he is a trainee engineer working since three years and two months; that he has been sincerely discharging his duties in Engineering Department as a mechanical engineer trainee during the said period and that he has worked in workshop and shifts. He has further stated that he has not got any grade or the benefit of provident fund and that he has been putting forth his full initiative and interest in all types of work. He has also mentioned that his colleagues who joined with him are already confirmed in Supervisory A2 Grade and provident fund benefit has been given to them. According to him, he has all the qualifications and service justifying the relief sought for by him. On receipt of the said letter of request from Srinivasa Murthy, the Management made an order below that stating that they have no suitable vacancy and that his training period is terminated from the end of the month. According to Srinivasa Murthy, he stood terminated with effect from 18th may, 1975, whereupon, he raised an industrial dispute which came to be referred to the Labour Court, Mangalore, in Reference No. 28 of 1978.
4. Before the Labour Court, the Management raised a preliminary objection regarding jurisdiction, inter alia, contending that Srinivasa Murthy is only a trainee and not a workman as defined under the Industrial Disputes Act and that, therefore, the reference is not competent. Srinivasa Murthy, however, took the stand that he is a workman and that the reference is competent. Having regard to the contentions fo the parties, relevant issue 1, 2 and 5 were framed by the labour Court. They were heard and disposed of as preliminary issues and findings are recorded by the Labour Court as per annexure-F dated the 3rd June, 1980. The Labour Court has recorded a finding to the effect that Srinivasa Murthy is a workman and that, therefore, the reference is competent. It is the preliminary findings recorded by the Labour Court in this behalf that were challenged by the Management in Writ Petition No. 21798 of 1980. The learned single Judge having dismissed the said writ petition, the Management has come up with this appeal.
5. The first question for consideration is as to what is the real area of controversy between the parties. Whereas the Management contends that the second respondent is not a workman, it is asserted by Srinivasa Murthy that he is a workman as defined in S. 2(s) of the Industrial disputes Act, 1947 (hereinafter referred to as the 'Act'). In the objections raised before the Labour Court, the positive stand taken by the Management is that Srinivasa Murthy was only a trainee and that, therefore, he cannot be regarded as a workman. On a perusal fo the objections raised by the Mangement, we also notice that there is a positive assertion to the effect that there is no relationship of employer and employee between the management and Sri Srinivasa Murthy. Sri Krishnaiah, learned counsel appearing for the second respondent, however, contended that in matters like this, we should not be indulgent in favour of the Management and that we should not permit thm to enlarge the scope of enquiry by arguing points which have not been canvassed before the labour Court and before the learned single Judge. It is in the light of this contention seriously raised by Sri Krishnaiah that we thought it proper to ascertain in the first instance the actual area of controversy between the parties. Sri Krishnaiah is right in contending that it is not enough for the Management to merely assert that he is not a workman. It is necessary for them to take a positive stand as to why they contend that Srinivasa Murthy is not a workman. As already stated, in the objection of the Management, it is stated that Srinivasa Murthy is not a workman because he has been taken only as a trainee. They have also asserted that he is not a workman because there does not exist relationship of employer and employee between the prarties. We have, therefore, no hesitation in holding that this is the real contorversy between the parties. Hence, the Labour Court was required to apply its mind to the relevant controversy between the parties, as the question in respect of which parties have joined issued, was relevant and necessary for ther ultimate decision as to whether the second respondent is a workmen or not.
6. This takes us to the definition of the expression 'workman' occurring in S. 2(s) of the Act which reads as follows :
''Workman' means any person (inclosing 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 to 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 a 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.'
It is clear from the definition of the word 'workman' that any person including an apprentice can be regarded as a workman if he is employed in any industry to do any skilled or unskilled manula, supervisory, technical or clerical work for hire or reward. In other owrds, the existence of relationship of an employer and an employee is of the essence of the matter. The employment has necessarily to be in respect of an industry. Any person, whether he is an apprentice or not, can be regarded as a workman only if he is employed in an industry ot do any skilled or unskilled manual, Supervisory, technical or electrical work for hire or reward, whether the terms of employment be expressed or implied. It is; therefore, clear that it is not enough to establish that the person claiming such a status is an apprentice. Whether the person claiming status as a workman is an apprentice or any other person, it has to be established that he is employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be expressed or implied. The view which we are inclined to take in this behalf receives support from the observations of the Supreme Court in Dhrangadhara Chemical Works Ltd. v. State of Saurashtra [1957-I L.l.J. 4477], wherein the Supreme Court has observed as follows :
'The essential condition of a person being a workman within the terms of this definition (in S. 2(s)) is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act.'
It is thus clear that the appellant Management would be justified in contending that Srinivasa Murthy is not a workman on the ground that there is no relation of an employer and an employee between the parties. It is not disputed that the appellant is an industry. The question for consideration is as to whether a finding has been recorded on the vital dispute between the parties in regard to the existence of relationship between the parties of employer and employee.
7. We find on a perusal of the order of the Labour Court that it holds that Srinivasa Murthy was an apprentice engineer and that, therefore, he must be deemed to be a workman within the definition in the Act as, in its opinion, an apprentice is also a trainee. We have already held on the analysis of the definition of the expression 'workman' occurring in S. 2(s) of the Act that whether a person is a trainee, apprentice or any other person, it has to be established that he is employed in an industry in order to claim the status of a workman. Mere finding that Sri Srinivasa Murthy is either an apprentice or a trainee is, therefore, not enough for drawing an inference that he is a workman as defined in S. 2(s) of the Act. In another portion of the order of the Labour Court, it has observed that in view of exhibit W-1 and even M-1, M-2 and M-3 produced by the opponent (Srinivasa Murthy) himself, it may be safely concluded that the first party was a workman under the second party. This is a mere assertion without recording a finding of fact regarding existence of relationship of an employer and an employee between the parties. We have, therefore, no hesitation in taking the view that the Labour court has not applied its mind to the area of controversy between the parties and has not recorded any finding in this behalf, viz., in regard to the existence of relationship of employer and employee. Now, when we turn to the order of the learned single Judge, we find that the learned single Judge has come tot he conclusion that the definition of the word 'workman' is comprehensive and wide enough to include a trainee and that, therefore, the view of the Labour Court cannot be regarded as erroneous.
8. Sri Krishnaiah, learned counsel for the second respondent, submitted that though the reference was made in the year 1978, finality has not yet reached even in regard to the determination on the jurisdictional issue. He submitted that the very purpose of making a reference like this to a Labour court under the Act, would get defeated by the inordinate delay in the final disposal of the dispute between ther parties. There is considerable justification for the grievance put forward by Sri Krishnaiah. We, therefore, asked Sri Parthasarathy, learned counsel for the appellant, as to why we should not make an order directing the Labour Court to decide all the issues including those pertaining to the jurisdiction which have been framed as preliminary issues as also the issues pertaining to merits once for all, so that further delay in the disposal of the matter is avoided to the extent possible. Sri Parthasarathy rightly and fairly submitted that he has no objection to such a course of action being adopted. Therefore, we see no reason why we should not make an order to that effect.
9. There is also some justification for the submission of Sri Krishnaiah that, having regard to the manner in which the questions were debated before the Labour Court and before the learned single Judge, this is a case in which we should award costs in favour of the second respondent.
10. For the reasons stated above, this appeal is allowed and the order of the learned single Judge in Writ Petition No. 21798 of 1980 is set aside and the findings recorded by the Labour Court on the preliminary issues 1, 2 and 5 are hereby quashed. The case is remitted to the Labour Court with a direction to it to dispose of all the issues including the preliminary issues together after giving an opportunity to all the parties of adducing evidence in support of their respective case. The Labour Court is directed to dispose of the matter expenditiously and we will appreciate if the Labour Court is able to dispose of the matter within six months'time. In the light of the observations made in the course of this order, the second respondent is entitled to his costs from the appellant. Advocate's fee Rs. 250.