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Toshniwal Bros. (P) Ltd. Vs. Delhi Administration Etc. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 311 of 1975
Judge
Reported inILR1976Delhi548
ActsConstitution of India - Article 226; Industrial Disputes Act, 1947 - Sections 2
AppellantToshniwal Bros. (P) Ltd.
RespondentDelhi Administration Etc.
Advocates: S.N. Bhandari,; J.N. Aggarwal,; R.S. Dalal and;
Cases ReferredBurmah Shell Oil Storage and Distributing Ltd. v. The Burmah Shell Management Staff Association and
Excerpt:
(i) constitution of india - article 226--scope of--whether in a writ jurisdiction, high court could interfere with a finding of fact which relates to the jurisdiction of the tribunal--industrial disputes act (1947), section 10(1).; that ordinarily, the decision of a tribunal specially constituted for adjudication of specified disputes, which are clothed with finality, are subject to review under articles 226 & 227 of the constitution of india within certain well recognised limits. it is, however, recognised that in the matter of ambit of review of decisions of such tribunals a distinction is made between decisions of facts which are collateral in nature and the proof of which would confer jurisdiction on the tribunal, and facts which constitute the 'main question' or 'the very issue'.....h.l. anand, j. (1) by this petition under articles 226/227 of the constitution of india, the petitioner, an employer, challenges an order of the addl. labour court, delhi, holding in a proceeding on a reference under sections 10(l)(c) and 12(5) of the industrial disputes act, repelling the contention of the petitioner to the contrary, that respondent no. 3, the validity of the termination of whose services by the petitioner, formed subject-matter of the reference, was a 'workman' as defined in section 2(s) of the act.(2) d. p. maheshwari, respondent no. 3, was appointed by the petitioner, a joint stock company carrying on business in delhi and other places, as an accounts officer in august, 1964, vide annexure p-4, at a salary of rs. 600.00 in the grade of rs. 600-50-800 pursuant to his.....
Judgment:

H.L. Anand, J.

(1) By this petition under Articles 226/227 of the Constitution of India, the petitioner, an employer, challenges an order of the Addl. Labour Court, Delhi, holding in a proceeding on a reference under Sections 10(l)(c) and 12(5) of the Industrial Disputes Act, repelling the contention of the petitioner to the contrary, that respondent No. 3, the validity of the termination of whose services by the petitioner, formed subject-matter of the reference, was a 'workman' as defined in Section 2(s) of the Act.

(2) D. P. Maheshwari, respondent No. 3, was appointed by the petitioner, a Joint Stock Company carrying on business in Delhi and other places, as an Accounts Officer in August, 1964, vide Annexure P-4, at a salary of Rs. 600.00 in the grade of Rs. 600-50-800 pursuant to his application of March 26, 1964, Annexure P-3, in which the respondent described himself as an M. Com., LLB., with special proficiency in Company Accounts & Audit, Income-Tax Law, Statistics, Organisation, Business Management etc. The respondent also claimed that he was at that time working as Circle Officer in the U.P. State Co-operative Department and would be able to 'supervise the Accounts General Administration, Planning and Liaison Departments'. It was further claimed that the respondent had been running various social welfare and youth organisations in one capacity or the other. In April, 1965, the respondent was designated as Officer on Special Duty. In 1966 he was transferred on deputation as Secretary to the Industrial Service Bureau, a service or consultancy organisation with which the Joint Managing Director of the petitioner was apparently interested. In 1968 he was appointed as Stores Purchase Officer as also to look after the legal department and was then drawing a salary of Rs. 800.00 . In August, 1969, he was transferred to Madras as Administrative Officer, allegedly on account of differences with the said Joint Managing Director in relation to certain extra employment activities of the petitioner or his trade union involvement and on his failure to report there, his services were terminated with effect from July 28, 1969. The validity of the termination of the services of the respondent is the subject-matter of the reference made by the appropriate Government under Sections 10(l)(c) and 12(5) ofthe Act to the Additional Labour Court. On the pleadings of the parties, the Additional Labour Court framed three issues. Issue No. 1 is based on the plea of the management that the respondent was not a 'workman' as defined in Section 2(s) of the Act. This is how the issue runs :

'(1)Is Shri D. P. Maheshwari a workman as defined in Section 2(s) of the Industrial Disputes Act If not. to what effect ?'

THEissue was tried as a preliminary issue with the consent of the parties.

(3) Before the Additional Labour Court, the respondent raised the plea that even though he was a highly qualified and experienced person and was not only given high-sounding designations from time to time and was entrusted with fairly responsible work, both in the management of the affairs of the business of the petitioner as well as in certain extra-business activities of the Joint Managing Director, Mr. Toshniwal, he was nevertheless a 'workman' within the meaning of the expression defined in Section 2(s) of the Act inasmuch as he has throughout been carrying on the work of a clerical nature. On the other hand, it was claimed on behalf of the management that the duties of the respondent were primarily of a supervisory or administrative nature and since at the relevant time the respondent was drawing a salary of Rs. 800.00 he could not be treated as a workman. At the trial of the issue parties adduced both oral and documentary evidence in support of their rival contentions.

(4) By an order, now sought to be challenged, the Additional Labour Court has held, repelling the contention of the management to the contrary, that the respondent was 'doing mainly clerical work of maintaining certain registers, preparing drafts and seeking instructions from the superiors and respondent's lawyers, during the period of his service, though designated as Accounts Officer or Officer on special duty or store Purchase Officer.' It was further held that the respondent could not be said to be 'employed in the supervisory capacity' and that the 'nature of the main duties being discharged by the claimant was clerical and not supervisory or administrative despite his designation as officer'. In the course of the order the Labour Court has dismissed both oral and documentary evidence adduced on behalf of the parties. After briefly summarizing the oral evidence adduced on behalf of the parties, the Addl. Labour Court returned the finding that the 'evidence falls far short of proving that the claimant was in fact discharging mainly the Administrative or supervisory duties' and put its conclusion thus :

'from the aforesaid it is clear that none of the witnesses examined by the respondent stated specifically about the real nature of the duties performed by the claimant. They stated about his designation and salary which is not in dispute. They further stated about their working under the claimant which remained a vague allegations. They further stated about the claimant recommending the leave applications or verifying the vouchers. This by itself could not mean that the claimant was discharging mainly administrative or supervisory duties. A Head-Clerk or even a senior clerk in an office may be asked to recommend leave applications of juniors to him and verify vouchers to be finally passed by the Administrative Officer like the Manager concerned besides doing his own clerical work. It is clear from the aforesaid evidence of the respondent's witnesses that the claimant had no power to take any disciplinary action against anyone, he had no power to sanction leave applications or to sign on cheques or pledge with banks like the powers of Mr. Sikka. It is further clear from the said evidence that the claimant was required to sign in the attendance register and was to go to the Accounts Department to collect his salary. Thus the said evidence falls far short of proving that the claimant was in fact discharging mainly the Administrative or supervisory duties'.

REVERTINGto the documents produced before the Labour Court the Labour Court expressed the view that 'they do not prove that the claimant was working in an administrative capacity or was discharging mainly supervisory duties'. It was observed that merely because in the appointment and transfer orders, Exs. M. 1 to M-8, the respondent was described as an officer or because he had recommended leave applications of certain employees, Exs. M-9 to M-95, did not by itself establish that the respondent was working in an administrative capacity or was discharging mainly supervisory duties. Reliance was placed on the decisions of the Supreme Court in cases of Anand Bazar Patrika : (1969)IILLJ670SC Bihar State Road Transport Corporation : (1970)IILLJ138SC and Reserve Bank : (1965)IILLJ175SC . On the basis of Exs. M-96 to M-104 which were copies of letters etc. written by the respondent to the Directors of the Company and others, the Additional Labour Court came to the conclusion that the respondent was simply forwarding the necessary information to the Directors and indicated that he was performing clerical duties 'to follow up cases, getting instructions and approaching officers of the company and its lawyers to do the necessary work'. It was further observed that even though the respondent was not maintaining books of account. Exs. M-105 to M-108, this did not mean that 'the claimant was not maintaining the other registers specified by him and Summoned from the respondent which were not filed'. The Additional Labour Court characterised as immaterial the circumstance that the respondent was appointed an inquiry officer in a domestic inquiry or had appointed an inquiry officer in such an inquiry or had appeared before a Court on behalf of the management on the ground that 'even a senior clerk or head-clerk may be instructed by the management to do the same'. The conclusion arrived at by the Additional Labour Court was sought to be reinforced by it with reference to the fact that in an affidavit, Ex. WW5/1, filed on behalf of the Management in another proceedings, the staff was classified into 3 categories category A consisted of managerial employees, category B consisted of supervisory staff and category C consisted of other employees and that the respondent had been shown in that classification in category C under the heading 'Legal Department'. Reliance was also placed on the fact that in red ink the first two categories were marked as 'non-workmen' while the rest were marked as 'workmen', and the red marking was attributed by W.W. 6 R. K. Puri, to the then Branch Manager, Pathak. It was, thereforee, held that the respondent was a workman on the management's own admission. In addition, adverse inference was drawn against the management on the ground that the management had failed to produce the several registers such as duty roster, sales-tax register, sales-tax statement, register of local visits, petty cash-books, stores purchase stock register, etc. which had been summoned by the respondent with a view to establish the nature of his duties. It was observed that the management had failed to produce these registers even though it was admitted on behalf of the management that those registers were maintained. Lastly, it was observed that according to the evidence the management was engaging legal practitioners and that 'the services of the claimant in the legal department also could be nothing but those of a clerk dealing with the legal affairs and files of the company so as to contact the respondent's lawyers and getting the needful done'.

(5) The impugned order was assailed on behalf of the management, inter alia, on the grounds, that it was based on a misconstruction of the provisions of Section 2(s) of the Act; that it was based on a misapplication to the material before the Court of the principles laid down for the determination of the question as to who was a workman and that it was vitiated on account of an erroneous approach on the burden of proof in establishing if the respondent was a workman or not 'nd the result of a perverse finding on a mixed question of law and fact which could not be arrived at on the existing material by any Tribunal or Court which was properly instructed in law. A review of the decision of the Additional Labour Court on a reassessment of the entire material before it by this Court to determine the question was sought to be justified on the ground that the question whether the respondent was a workman or not was not only a mixed question of fact and law but also in the nature of a jurisdictional and collateral fact with the result that this Court was entitled, as indeed bound, to re-assess the material for itself to find, if the material justified the finding returned by the Labour Court. Reliance was placed in support of the various propositions on a large number of decisions of the Supreme Court and the various High Courts.

(6) On behalf of the respondent both the respondent who argued his case at length and with considerable skill, and his counsel, who supplemented the arguments mostly on legal questions, it was urged that even though the question in issue was a mixed question of fact and law and of a jurisdictional nature this Court would not interfere because on the material available the Additional Labour Court had taken a view which was a possible view to take on the material. On the merits it was urged that the high-sounding designations, with which the respondent was decorated, or the important assignments with which the respondent was associated, were wholly irrelevant for the purpose of determining the true nature of the substantial duties of the respondent and it was urged that on the material it was established that even while the respondent was called upon to render assistance to the management in diverse fields of management activity ranging from maintenance of accounts to appearance before Courts, instructing counsel and maintaining liaison with Government departments. the duties of the respondent were, nevertheless, substantially of a clerical nature and neither managerial nor administrative nor of a supervisory character and that the respondent was, thereforee, within the provisions of the Act. As usual, various contentions were sought to be buttressed by appropriate references to numerous authorities touching the question.

(7) What then is the limit of the power of the High Court under Articles 226/227 of the Constitution of India, when called upon to consider the validity and correctness of the conclusion of a Labour Court with regard to the status of a person as a workman, so as to give validity to the order of reference and thereby confer jurisdiction on itself to try it ?

(8) Ordinarily, the decision of a Tribunal specially constituted for adjudication of specified disputes, which are clothed with finality, are subject to review under Articles 226 and 227 of the Constitution of India within certain well recognised limits. It is, however, recognised that in the matter of ambit of review of decisions of such Tribunals a distinction is made between decisions of facts which are collateral in nature and the proof of which would confer jurisdiction on the Tribunal, and facts which constitute the 'main question' or 'the very issue' that is referred to the Tribunal for its decision even though, as in England, the demarcation is rather vague. It is also well settled that the decision of such Tribunal on jurisdictional or on collateral facts are subject to review by the High Court under Article 226 of the Constitution of India irrespective of the fact whether the decision is a decision on a question of fact or a question of law or a mixed question of fact and law. The power to interfere in case of a decision on the question that is referred to the Tribunal, and is the principal question before it, the extent of review is obviously limited to errors of law apparent on the face of the record or errors of jurisdiction. It is equally well settled that even where the decision on jurisdictional facts or collateral facts is subject to review the High Court will interfere if either there is no evidence to support the decision at all or is not a decision which a Tribunal duly instructed in law could arrive at on the existing material. If the Tribunal has taken a view on the material which is a possible view to take it would not be open to the High Court to interfere or to embark on a judicial inquiry to see if the decision on the balance of evidence could be sustained or not. The rationale of the distinction between the two sets of facts lies in the fact that while in case of decisions on the merits the power of the Tribunal to decide includes the power to decide wrongly, 'No tribunal', in the words of Farwell, LJ. in Rex v. Shoreditch Assessment Committee 1910 2 Kb 859, 'of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such Jurisdiction; such question' is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise'. It was further pointed out that 'the existence of the limit necessitates an authority to determine and enforce it, it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure such a tribunal would be autocratic, not limited and it is immaterial whether the decision of the interior tribunal on the question of the existence or non-existence of its own jurisdiction is found on law or fact ;

(9) A contention was raised on behalf of the respondent that the decision of the question as to whether the respondent was a workman or not, though a finding on a jurisdictional fact could not be said to be a finding on a collateral issue and where such a finding could not lie said to be on a collateral issue, the power of the Tribunal would include the power to decide wrongly and this Court would, thereforee, interfere only if such a finding was not supported by any evidence at all or was vitiated by an error of law patent on the face of the record, and a) wider justifiability could not be claimed for such a conclusion. It is not possible to accept the contention of the respondent that the decision on the question as to the status of the respondent though of a jurisdictional fact, was not of a colateral fact. What was referred to the Tribunal was the question, if the termination of the services of the respondent was illegal and, if so, the relief to which the respondent was entitled. Such a reference obviously could not be made if the respondent was not a workman within the meaning of the expression used in Section 2(s). If the decision of that question was favorable to the workman, the order of reference would be valid and the Tribunal would have the necessary jurisdiction to try the reference. If, however, on the other hand, the question was answered against the respondent the order of reference was obviously invalid, for no dispute involving a non-workman could have been referred. That would have involved the question of lack of power in the appropriate Government, having its obvious impact on the jurisdiction of the Labour Court to deal with the reference. The question, thereforee, as to the status of the workman, being not the question referred to it as such for its decision, was obviously a decision on a fact on which depended the extent of the jurisdiction of the Labour Court and since such a question did not have to be decided by the Labour Court, except to determine the question as to the existence or otherwise its own jurisdiction, it was also decision of a collateral fact.

(10) In the result, it must be held that the order of the Labour Court incorporating a decision with regard to the status of the respondent as a workman is a decision on a mixed question of fact and law of a jurisdictional and collateral nature which could be reviewed by this Court under Article 226 of the Constitution of India, and this Court would be entitled, as indeed duty bound, to interfere, if it finds that such a conclusion was based on no evidence or was manifestly erroneous or perverse or was a conclusion which could not be returned by any Tribunal, duly instructed in law, on the existing material. If, on the other hand, this Court finds that on the material before it and on a proper application of the law, the conclusion arrived at by the Labour Court represents a possible view to take of the question, this Court would, ordinarily, decline to interfere and would not embark on an independent assessment of the evidence to determine for itself the question as to the status of the workman; as if exercising purely appellate jurisdiction.

(11) Whether the conclusion of the Labour Court regarding the status of the respondent is based on no evidence, is perverse or is manifestly erroneous or is vitiated on account of a wholly erroneous approach to the question as to who is a workman or is not a conclusion which a Tribunal duly instructed in law could return, on the existing material must, thereforee, be examined.

(12) According to Section 2(s) of the Act 'workman' means any person employed in any industry to do any skilled or unskilled 'manual, supervisory, technical or clerical work for the hire or reward', but does not include any such person, inter alia, 'who is employed; mainly in a managerial or administrative capacity' or '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 power-; vested in him, functions mainly of a managerial nature'. We are not concerned, in the present case, with the extended connotation of the term ''workman' nor with the other exclusory provisions. To be a workman, thereforee, and be entitled to the benefits of the Act, the persons concerned must be employed to do any of the four types of work enumerated in the main Section, and if he thus answers the description of a workman, he must not be excluded by any of the exclusory provisions of the Section. The four categories of work envisaged by the main body of the Section are, however, not exhaustive of all employment in a non-managerial capacity. A person may be employed in an industry and may yet be neither a workman within the statutory definition nor belong to the managerial or administrative or supervisory cadre. It is well settled that an employee may be doing more than one type of work, for example he may combine clerical work with supervisory work or clerical work with technical work. In such cases, a workman must be held to be employed to do the work which is the main work he is required to do even though incidentally he may be doing any other type of work as well. It is equally well settled that in determining whether a person is employed to do one type of work or the other the designation that he carries or the post carries is not decisive, and what is material is the nature of the duties which he is mainly required to do or for which he has been mainly employed.

(13) It is common case of the parties that on no reckoning could the respondent be said to be employed to do any 'manual', 'technical' work or be said to have been employed 'mainly in a managerial or administrative capacity'. It was also nobody's case that if a workman, the respondent ceased to be so because the respondent exercised, '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'. The controversy between the parties was, on the other hand, confined to the question if, having regard to the main duties of the respondent it could be said that he was employed mainly for 'clerical work' or was employed in a 'supervisory' capacity. Since the respondent was drawing at the material time more than Rs. 500, he would not be workman by virtue of the exclusory provision, even if he was employed to do supervisory work.

(14) What then is clerical work and how is it distinguishable from supervisory work ?

(15) Clerical work is ordinarily understood as being synonymous with routine, stereotype work, which does not involve any initiative, creativity, control or dignity. A person employed to discharge general office duties, whether styled as an Assistant or a General Assistant, would nevertheless, be carrying on clerical work. A limited amount of supervision and control over other employees would not take any employee out of the category of a workman if he is mainly employed for clerical work. A person, however, could not be said to be carrying on clerical duties if he is required to perform substantial duties of a supervisory, directional or controlling nature, even though at the same time carrying on duties of a clerical nature. If, however, a person is mainly doing supervisory work, but incidentally or for a fraction of a time is required to do clerical work he would be deemed to have been employed in a supervisory capacity. If the main work entrusted to an employee is of a clerical nature the mere fact that there is some element of superivision, or supervisory duties are performed incidentally it will not convert the employee into a supervisor. Ordinarily, a supervisor or an officer should occupy a position of command or be authorised to lake independent decisions and should be authorised to act in certain matters within the limits of his authority without the sanction of a superior. The fact that work performed by an employee is of responsibility or of a onerous nature would not be decisive as to the nature of duties. In case of Ananda Bazar Patrika (Pvt.) Ltd., and its Workmen, 1969 (2) Lu 670, the Supreme Court laid down that, 'the question whether a person is employed in a supervisory capacity or on clerical work is that if a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work, it would have to be held that he is employed in a supervisory capacity, and conversely if the main work done is of clerical nature, the mere fact that some supervisory duties arc also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity'.

(16) Whether the respondent could be said to have been principally employed to perform duties of a clerical nature or in a supervisory capacity, and if on the material the finding of the Additional Labour Court could be said to be a possible finding as to the nature of his duties, must then be considered. It is not in dispute that respondent No. 3 is an M. Com., LLB., who claimed in his application, Ex. P.3, to have special proficiency in Company Accounts and Audit, income-tax law, statistics, organisation, business management etc., and had a fairly impressive background in having worked as Circle Officer in the U.P. State Co-operative Department and having been closely connected with a number of social welfare and youth organisations in important capacities. He also claimed to be able to supervise accounts, general administration, planning and liaison department. It is equally undisputed that during his service with the petitioner, respondent No. 3 was given high-sounding designations and put in charge of fairly responsible type of work such as liaison, court proceedings, and conduct of a service or a consultancy organisation, with which the Joint Managing Director of the petitioner was entrusted. He was, thereforee, designated at different times as Officer on Special Duty, Store Purchase Officer, Secretary, Industrial Service Bureau, Administrative Officer and in charge of the Legal Department of the petitioner. It was also not disputed that even so the respondent neither belonged to the managerial cadre nor belonged to the category of administrative heads nor could be said to have been performing duties of managerial nature. Nevertheless, neither the respondent nor his learned counsel, were able lo seriously contend that in all the aforesaid capacities, the respondent was required to do responsible work which involved imagination, initiative and creativity, even though he was subject to the control of higher officers and was at the same time performing miscellaneous duties in the office which could partake the character of clerical work including the maintenance of certain records. On behalf of the management, it was not disputed that in the affidavit filed in earlier proceedings, where the establishment had been classified, the name of the respondent was shown neither in the managerial class nor the supervisory class and even though the authorship of the delineation of the categories in red ink was disputed on behalf of the management, though attributed to the Branch Manager on behalf of the respondent the fact remains that on their own showing the management had treated the respondent as being neither on the managerial side nor working in the supervisory capacity. In the course of oral evidence produced on behalf of the parties equally vague references were made on both sides as to the true nature of the duties of the respondent while some of the witnesses on behalf of the management glorified the respondent as a supervisor because he was recommending leave to the subordinate staff or was passing vouchers for payment. An attempt was made by the witnesses produced on behalf of the respondent to downgrade him as a mere clerk with inflated prefixes.

(17) In the face of this material and the admitted hypothesis the conclusion that the respondent was not mainly employed in a supervisory capacity is certainly a possible conclusion that may be arrived at by any Tribunal duly instructed in the law as to the manner in which the status of an employee may be determined. It is, thereforee, not possible for this Court to disturb such a conclusion having regard to the limited ambit of review of the impugned order.

(18) If the matter had rested at that, I would have no difficulty in consequently dismissing the petition and confirming the conclusion that the respondent was mainly engaged in duties of a clerical nature.

(19) However, Mr. S. N. Bhandari, learned counsel for the petitioner, urged that the Additional Labour Court committed a manifest error of law in assuming that merely because an employee could not fall in the category of managerial, administrative or superivisory staff, he must belong to the clerical category. Learned counsel contended that an employee, who is not employed in a managerial, administrative or supervisory capacity, may, nevertheless, not be a workman, if his main duties were not of a clerical or routine nature, but involved imagination, initiative and a limited element of direction, even though under the overall supervision of the managerial staff or the entrepreneur. In this context, he urged that the principal duties of the petitioner, whether as Officer on Special Duty or as Secretary of the Industrial Service Bureau of Stores Purchase Officer or Administrative Officer of the Madras Branch or as in charge of the Legal Department, could not be considered to be either of a clerical or otherwise of a routine nature but had in them an element of initiative, creativity, originality and considerable scope for self-direction, even though under the overall supervision of the superiors. It was pointed out that the respondent admittedly enjoyed considerable independence in drafting legal notices, preparing pleadings, instructing counsel, holding departmental inquiries, appearing before Tribunals and Courts, while maintaining liaison with important functionaries of the Government and in the numerous duties of a similar nature which were assigned to him. He, thereforee, urged that, having regard to the nature of the main duties assigned to the respondent in the context of his admitted acadamic qualifications, accomplishments in various disciplines and wide experience, the respondent could not be treated as a workman, even if it be conceded that he did not enjoy substantial supervisory powers over the subordinate staff.

(20) On the other hand, the respondent and his counsel did not feel elated at an attempt to glamourisc the respondent and to the various expertise and virtues being attributed to him with a view to deprive him of the protection of the Act and justified a more modest nomenclature of a clerical nature for the respondent in an obvious anxiety to be within the Industrial law.

(21) After hearing learned counsel for the parties, it appears to me that this contention of the petitioner is difficult to dispel. It is well settled that an employee, who was neither employed in a managerial capacity nor is required substantially to discharge administrative or supervisory duties, would not necessarily be a workman. This is so because before a person could qualify to be a workman in terms of Section 2(s) of the Act, he must fall in one of the four categories enumerated in the main section. It is only when he answers the description of one or more than one of the 4 categories enumerated in the section that the operation of the exclusory provision of the Act may nevertheless deprive him of status as a workman. There can be no doubt that a large number of employees in an industry may be engaged to carry out different duties without falling in any of the 4 categories, but at the same time falling short of the categories of managerial, administrative or supervisory staff. 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 enquiries, instructing counsel, appearing in courts, and interviewing high-powered Government officers 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 employees, who would stand apart, both from the four categories envisaged in the section, and the managerial, administrative and supervisory cadre. The extreme position that the definition in Section 2(S) is all comprehensive and contemplates that all persons employed in an industry 'must necessarily fall in one or the other of the four classes' cannot be sustained and was, with respect, rightly rejected by the Supreme Court in the case of Burmah Shell Oil Storage and Distributing Ltd. v. The Burmah Shell Management Staff Association and others, 1971 SC 922. It is erroneous to presume, as was apparently done by the Additional Labour Court, that merely because the respondent did not perform substantially supervisory functions, he must belong to the clerical category. Such presumption would run counter to the ratio of the judgment of the Supreme Court in the case of May & Barker, 1967 SC 678. In returning the finding in favor of the respondent the Labour Court clearly committed an error of law patent on the face of the record in its failure to recognize the true legal position and in applying a wholly erroneous approach to the question, if the respondent was a workman and, thereforee, within the industrial law. This erroneous approach would clearly vitiate the decision.

(22) In the view that I have taken of the other questions it is unnecessary to dilate on the further argument raised on behalf of the petitioner that the decision was vitiated on account of an erroneous approach on the question of burden of proof.

(23) In the result, the petition succeeds. The impugned order, as indeed the order of reference and the proceedings, are quashed.

(24) In the peculiar circumstances of the case, however, there would be no order as to costs.


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