B.B. Kirpal, J.
1. The appellant was appointed by M/s. Toshniwal Brother Private Limited (hereinafter to as the respondent company) as an Accounts Officer in August, 1964. The salary of the appellant was fixed at Rs. 600 in the grade of Rs. 600-50-800. The appointment had been made pursuant to an application dated 26th March, 1964, submitted by the appellant. In the said application the appellant had described himself as M. Com., L.L.B. with special proficiency in company accounts and Audit, Income-tax law, statistics, organisation business management, etc. In April 1965, the appellant was designated as an officer on special duty. In 1966 he was transferred on deputation as secretary to the Industrial Service Bureau, a service or consultancy organisation in which the Joint managing Director of the respondent company was interested. In the year 1968 the appellant was appointed as stores purchase officer. He was also required to look after the legal department and was to draw a salary of Rs. 800 per month.
2. The appellant was transferred to madras as Administrative Officer in August 1969. His services were terminated on July 1969. His services were terminated on July 28, 1969 (sic) allegedly on the ground of differences between the appellant and the Joint Managing Director of the respondent company. These differences were alleged to be relating to certain extra employment activities of the appellant or his trade union involvement and also on account of his failure to report at Madras.
3. The appellant, claiming himself to be workman within the meaning of S. 2(s) of the Industrial Disputes Act, raised a dispute with regard to the validity of the termination of his service. The Lt. Governor made a reference under S. 10(1)(c) read with S. 12(5) of the Industrial Disputes act, 1947 to the Labour Court. The terms of reference were as follows :
'Whether the termination of services of Sri D. P. Maheshwari is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect
4. Before the Additional Labour Court the contention on behalf of the appellant, in his statement of claim, was that he was a workman and his termination was illegal. It was contended that the work which he was carrying on was of a clerical nature. The respondent-company, on the other hand, contended that the duties of the appellant were primarily supervisory or administrative and as such the appellant could not be treated as a workman.
5. On the pleadings of the parties the Additional Labour Court framed the following issues :
'(1) Is Shri D. P. Maheshwari a workman as defined in S. 2(s) of the Industrial Disputes Act If not, to what effect
(2) Whether or not Delhi Courts have jurisdiction to adjudicate upon this reference
(3) Whether the termination of services of Shri D. P. Maheshwari is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?'
By order dated 3rd July, 1970, the Labour Court held that the appellant was a workman. The Labour Court held that the appellant was not working in a supervisory capacity. The Labour Court, inter alia, observed as follows :
'The respondent failed to show hat the claimant was employed in an administrative or supervisory capacity. There is nothing to show that the claimant was distributing work amongst the staff, detecting faults, reporting for penalty or making arrangements for filling up vacancies. Hence his capacity could not be supervisory as held in the case of the Reserve Bank referred to above. As a result in my opinion it has to be held that the nature of the main duties being discharged by the claimant was clerical and not supervisory or administrative deposit his designation as officer. Accordingly, he has to be held to be a workmen under S. 2(s) of the Industrial Disputes Act. The issue is answered accordingly'.
6. Being aggrieved by the said order the respondent-company filed a writ petition being Civil Writ No. 311 of 1975. By judgment dated 12th July, 1976, H. L. Anand, J., accepted the finding of fact of the Labour Court to the effect that the appellant was not mainly employed in a supervisory capacity. The learned Judge, however, held that merely because the appellant was not performing supervisory function it does not ipso facto mean that he must belong to clerical category. Applying the well known principle in Industrial Law, that in order to qualify as a workman it must be shown that he falls under any one of the four categories enumerated under S. 2[s] the said Act, the learned Judge came to the conclusion that 'where, as in the present case, a highly qualified person with wide experience of audit, accounts, law, business management, etc., seasoned in the art of running social, cultural and service organisations, competent to undertake responsible jobs of carrying out purchases, drafting pleadings, charge sheets, etc., holding departmental inquiries, instruction counsel, appearing in Courts, and interviewing high powered government offices in course of liaison duties, may or may not be treated as forming part of the managerial, administrative or supervisory pool of an industrial establishment, but it would be difficult to condemn him, even on his own asking, that he was carrying on routine duties of a clerical nature which did not involve any initiative, imagination, creativity and a limited power of self-direction. If such a person, as again in the present case, does some clerical duty in the office, which is purely incidental to his main work of a multifarious nature, such ancillary duty would, nevertheless be incapable of taking him out of the category of implies who would stand apart, both from the four categories envisaged in the section and the managerial, administrative and supervisory cadre.' The writ petition was accordingly allowed by the single Judge while observing that the approach of the Labour Court to the problem in hand was clearly erroneous.
7. The appellant has filed the present Letters Patent Appeal and has challenged the correctness of the decision of the learned single Judge. It has been firmly contended that the write petition was allowed on the basis of a case which was never pleaded by the petitioner. The contention is that the only controversy raised by the respondent-company in the writ petition was as to whether the appellant was working in a supervisory capacity or was doing clerical work and this was the only issue to be decided by the Labour Court. According to the appellant it was not the case of the respondent company that even if the appellant was not doing supervisory work he was nevertheless not a workman because he was not doing clerical work.
8. The aforesaid contention on behalf of the appellant is not correct. It will be seen that before the Labour Court the respondent company had relied upon the decision in the case of Burma-Shell Oil Storage and Distributing Company v. Burma-Shell Manager Staff Association 1970-II L.L.J. 590. In the said case it was held that a person must be employed to do skilled or unskilled manual supervisory, technical or clerical work if he is to come within the definition of workman under S. 2(s). If such work was not done then he was not to be regarded as a workman. This decision was obviously referred to because in order to be held a workman it was necessary for the Labour Court to come to the conclusion that the appellant fell under any one of the aforesaid four categories. It does appear, thereforee, that the correct state of law was brought to the notice of the Labour Court. It was the duty of the Labour Court to determine whether the appellant was doing mainly clerical work or not. This jurisdictional fact had to be found by the Labour Court on the basis of the evidence on record and irrespective or the fact as to whether the duties of the appellant were supervisory or not. The mere fact that the appellant was held not to be doing supervisory work, as had been contended by the respondent-company, did not ipso facto mean that the appellant was do in clerical work and was thus a workman.
9. In the writ petition it was contended, after referring to and relying upon the decisions of the Supreme Court in the cases reported as May and Baker (India) Ltd. v. Their Workmen, ; and the Burmah Shell's case (supra) that the approach of the Additional 1961-II L.L.J. 94 Labour Court was contrary to the ratio laid down in the aforesaid decisions. It was clearly contended that it had to be proved and established that the appellant was doing clerical work before it would be held that he was a workman. Merely because the appellant was not shown to have been employed in an administrative or supervisory capacity it could not be held by the Labour Court that the appellant was a workman. We are, thereforee, of the opinion that the learned single judge did not make up a new case for the respondent-company.
10. It was next contended that the question as to whether the appellant was a workman or not was a question of fact. The finding of the Labour Court, it was argued, could not be assailed in a writ petition under Art. 226 of the Constitution. Reliance was placed on Dharangadhra Chemical Work Ltd. v. State of Saurashtra 1957-I L.L.J. 477. The said decision is of no assistance to the appellant. In that case the question arose whether there was a relationship of an employer and employee or of master and servant. In that context the Supreme Court observed that 'the question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact.' In the present case no such dispute is involved. The question as to whether the appellant was a workman or not requires determination of a jurisdictional fact. The correctness of the determination of a jurisdictional fact can be assailed under Art. 226 of the Constitution. It has been clearly held by this Court in Delhi Transport Corporation, Pararivahanalaya v. Delhi Administration 1973-II L.L.J. 307 that 'a question of jurisdictional fact can, thereforee, be decided by the reviewing Court in its independent judgment without being fettered by the finding of a Tribunal of limited jurisdiction which ex hypothesis could not finally decide conditions of its jurisdiction.'
11. It was lastly contended, on behalf of the appellant, that the Labour Court had given a finding of fact to the effect that the appellant was doing clerics work. The contention is that such a finding could not be disturbed under Art. 226 of the Constitution and further more the single Judge had not referred to the evidence in detail before coming to the conclusion that the appellant was not doing clerical works.
12. It is no doubt true, that the Labour Court held that the appellant's evidence showed that he was doing mainly clerical work. As we read the order as a whole it appears that in arriving at this conclusion the Labour Court was greatly influenced by the fact that the appellant was not employed in a supervisory capacity. It is for this reason that, after holding that the respondent-company had failed to show that the appellant was employed in an administrative or supervisory capacity, the Labour Court held that 'the respondent failed to show that the claimant was employed in an administrative or supervisory capacity. There is nothing to show that the claimant was distributing work amongst the staff, detecting faults, reporting for penalty or making arrangements for filling up vacancies, Hence his capacity could not be supervisory as held in the case of the Reserve Bank Referred to above. As a result, in my opinion, it has to be held that the nature of the main duties being discharged by the claimant was clerical and not supervisory or administrative despite his designation as officer. Accordingly, he has to be held to be a workman under S. 2(s) of the Industrial Dispute Act. The issue is answered accordingly.'
13. The said finding of fact, even it if it not one of a jurisdictional fact, can be assailed under Art. 226 if the said finding is preserve or is based on no evidence on record. It has been contended by the respondent-company, and in our opinion rightly, that the conclusion arrived at by the Labour Court was preserve and that there was a manifest error apparent on the face of the record which resulted in the impugned order being vitiated. Both the parties had led oral as well as documentary evidence before the Labour Court. One of the witnesses who was examined as M.W. 1 was Shri K. K. Sabharwal, Assistant Administrative Officer. He stated that the appellant was officer on special duty and he was doing the liaison work, lead work and promotional work and the he himself was working under the appellant. Shri sabharwal further stated that the as a Stores Purchase Officer, the appellant supervised the work of the stores; he purchased and then supplied the goods to customers and he also die legal work. There was a storekeeper, an assistant two peons and two stenographers working under the appellant. The said witness further stated that in the legal department the appellant drafted charge-sheets, etc., and conducted the respondent-company's cases and also gave legal opinions. The witness also proved documents which show that the appellant used to verify, certain vouchers. This important evidence of the witness has not been commented upon by the Labour Court at all. The Labour Court has given no reason whatsoever as to why the evidence of Shri Sabharwal should not be believed and accepted. The non reference to the said evidence while discussing the point in issue, would clearly vitiate the order of the Labour Court. We are in complete agreement with the learned single Judge's concussion that it would be difficult to hold that the appellant was carrying on routine duties of a clerical nature which did not involve any initiative, imagination and creativity. The Labour Court filed to take into consideration the fact that the appellant was instructing counsel, drafting pleadings, doing liaison work, etc., which clearly shows that such duties could under no circumstances be regarded as clerical. The finding to the contrary given by the Labour Court can thus be regarded as perverse.
14. Reliance is placed by the appellant on the case of Anand Bazar Patrika (Private) Ltd. v. Its Workmen 1969-II L.L.J. 670, in order to counted that the appellant was a workman. The said decision is of a no assistance to the appellant. The Supreme Court held, in that case, that the principal work of the workman was that of maintaining and writing cash book and of preparing various returns. The only powers which he had one his subordinates was with regard to the allocation of work amongst them. It was held that a few minor duties of supervisory nature could not convert the office of a senior clerk in that case to that of a supervisor. In the present case, however, the main duty of the appellant was not clerical in nature at all. The principal work of the appellant, as is evident from the testimony of M.W. 1, K. K. Sabharwal, was clearly non-clerical. Just because, while exercising those functions and duties the appellant had to do some minor clerical work cannot mean that the appellant fell under the category of a clerk. The mere fact that the learned single judge had not referred to the evident in detail while coming to the conclusion that the appellant could not be regarded as doing clerical work cannot in any way vitiate the conclusion. The said conclusion was arrived at by the learned single Judge on the basis of the evidence on record. It was not necessary for him to have dealt with the evidence in great detail. The counsel for appellant has not been able to show to us that the learned single Judge has travailed beyond the evidence on record while coming to the conclusion that the duties of the appellant could not be regarded as of a clerical nature. It is evident that the single Judge has relied upon and accepted the evidence of the respondent-company with regard to the nature of work which was being done by the appellant. Though the said work may not be supervisory in character the learned single Judge rightly came to the conclusion that the said work could not be regarded as clerical either.
15. In view of the aforesaid discussion, we dismiss the appeal. The parties will, however, bear their own costs.
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