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Mathur Aviation Vs. Lt. Governor, and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Judge
Reported in(1977)IILLJ255Del
AppellantMathur Aviation
RespondentLt. Governor, and ors.
Cases Referred and Lloyds Bank Ltd. New Delhi v. Panna Lal Gupta and Ors.
Excerpt:
.....it includes a reference concerning bonus, etc ,which is outside the scope of section 2a of the industrial disputes act, and thus the whole reference is bad it is also alternatively urged that the reference is bad regarding the termination of services of capt. 147. the first of these cases was concerned with a notice issued under i he punjab municipal act which was partly good and partly bid. it was held that the notice was bad in entirety. in the second case, a demolition notice issued under the delhi municipal corporation act, 1957, which contained directions which were partly intra virus and partly ultra virus led to the consequence that the notice was wholly bad. in the third case, it was held by the punjab high court that a reference of an industrial dispute which partly related..........sections 10(1)(d) and 12(5) of the industrial disputes act, 1957, a reference was made to the industrial tribunal, delhi of an industrial dispute said to exist between the management of m/s. mathur aviation and its workman captain narinder singh. the terms of the reference set out in the schedule were:1. whether the termination of services of captain narinder singh is illegal and/or unjustified and if so, what directions are necessary in this respect?2. whether the workman is entitled to bonus for 1969-70, 1970-71, t.a./d.a., spray charges, etc. and if so, what directions are necessary in this respect?a number of preliminary objections were taken before the industrial tribunal as to the maintainability of the reference which led to the framing of the following preliminary issues:1......
Judgment:

Dalip K. Kapur, J.

1. On 17th August, 1972, under Sections 10(1)(d) and 12(5) of the Industrial Disputes Act, 1957, a reference was made to the Industrial Tribunal, Delhi of an industrial dispute said to exist between the management of M/s. Mathur Aviation and its workman Captain Narinder Singh. The terms of the reference set out in the schedule were:

1. Whether the termination of Services of Captain Narinder Singh is illegal and/or unjustified and if so, what directions are necessary in this respect?

2. Whether the workman is entitled to Bonus for 1969-70, 1970-71, T.A./D.A., spray charges, etc. and if so, what directions are necessary in this respect?

A number of preliminary objections were taken before the Industrial Tribunal as to the maintainability of the reference which led to the framing of the following preliminary issues:

1. Whether Capt. Narinder Singh is a 'workman' or not?

2. Whether this Court has jurisdiction or not to entertain this claim?

3. Whether the dispute is an industrial dispute or not?

4. Whether any valid demand notice was served on the management or not?

5. Whether the establishment is covered or not under the payment of Bonus Act?

On 28th August, 1973, when these objections were considered, the management did not press the objections giving rise to Issues Nos. 2 to 5, which meant that only the question whether Capt. Narinder Singh was a workman or not was adjudicated upon. On the evidence, the Tribunal observed:

the main duties of Captain Narinder Singh as an employee of M/s. Mathur Aviation, were those of a pilot required to fly the aircrafts of the employer for carrying out aerial spray of standing crops....

After dealing with some of the evidence which was to the effect that Capt. Narinder Singh was also carrying on certain other duties in a supervisory capacity as far as the staff under his control was concerned, the Tribunal held that this administrative control was only incidental to the main duties of Capt. Narinder Singh as a pilot. It was also held:

For all these reasons, I hold that Captain Narinder Singh was employed by M/s. Mathur Aviation as a Pilot to fly its aircrafts on various aerial spraying assignments. In other words he was employed to do skilled technical work for hire. I have, thereforee, no hesitation in holding that he is a workman, as defined in Section 2(s) Industrial Disputes Act.

Thereafter, the present writ petition was instituted in this Court on 22nd October, 1973. the Admission Bench passed the following order:

He is advised to urge before the Addl. Ind. Tribunal the points re. jurisdiction, etc., and to seek its decision on them first. We shall await it.

As a result of this direction, a farther application was again moved before the industrial Tribunal, which led to another order being passed on 16th November, 1973. At that stage, it was pleaded that Issues Nos. 2 and 3 had not been conceded and, in fact, were inter-connected with Issue No. 1. It was also sought in the fresh application to raise some further pleadings to the effect that an individual dispute could not be referred in respect of bonus, T.A/D.A., etc., under the Industrial Disputes Act. Thus, the new point taken up was that the second subject-matter of reference, i.e., bonus, spray charges, T.A./D.A., etc., could not be referred for adjudication under Section 2A of the Industrial Disputes Act. On this question, the Tribunal held:

It is apparent on the face of it that such a dispute is not an industrial dispute and, thereforee. this Tribunal would have no jurisdiction to adjudicate, upon it. It was on the realisation of this fact that Shri Ramesh Pathak learned representative on behalf of the workman made a statement on November 9,1973, conceding that this Tribunal has no jurisdiction in the matter in so far as issue 2 of the reference is concerned. I may, thereforee, straightaway hold that this Tribunal has no jurisdiction to adjudicate on term No 2 of the order of reference.

It was then stated:

Shri Hasija has not cared to enter appearance to-day and show as to how term 1 is inseparable from term 2 of the order of reference. One relates to termination of service and relief, if any, arising there from, and the other relates to entirely a different subject, i.e., bonus T.A./D.A. and spray charges, etc. There is nothing in common between these two terms. Term I can be adjudicated upon without touching in any manner upon terra 2 and vice versa. I would hold accordingly.

Thus, the result of the Tribunal's second order was that term No. 2 was held to be outside the jurisdiction of the Industrial Tribunal

2. I now turn to a consideration of the questions that arise in the present writ petition, ft is urged by the petitioner that the order of reference is bad. because it includes a reference concerning bonus, etc , which is outside the scope of Section 2A of the Industrial Disputes Act, and thus the whole reference is bad It is also alternatively urged that the reference is bad regarding the termination of services of Capt. Narinder Singh because he is not a workman within the meaning of Section 2(s). Turning to the first question, reliance has been placed on Girdhari Lal v. Municipal Committee, Ludhvana A.I.R. 1933 Lah 935, Prem D. Gupta v. Municipal Corporation of Delhi (1974) R.L.R. 163, and Shambhu Nath Vaid v. Labour Court Amritsar and Ors. (1959) F.J.R. 147. The first of these cases was concerned with a notice issued under I he Punjab Municipal Act which was partly good and partly bid. It was held that the notice was bad in entirety. In the second case, a demolition notice issued under the Delhi Municipal Corporation Act, 1957, which contained directions which were partly intra virus and partly ultra virus led to the consequence that the notice was wholly bad. In the third case, it was held by the Punjab High Court that a reference of an industrial dispute which partly related to one State and partly to another State was wholly bad and could not be split up. Thus, in all these three cases, one of which was in the case of an industrial dispute, the order that was partly bad and partly good was held to be wholly inoperative. Thus, all these cases help the petitioner.

3. The question for decision in the present case is whether the reference can be held to be bad by this Court in this case. It is necessary to refer to Section 2A of the Industrial Disputes Act, 1957, which says:

2A. Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of. such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

The purpose of this Section was to include within the scope of industrial disputes, certain disputes which were previously classified as individual disputes. The limitation contained in the Section regarding such references is that the dispute should be connected with the discharge, dismissal, retrenchment or termination of the services of the workman. There is no doubt that the question whether the termination of the services of Capt. Narinder Singh is illegal is within the scope of this Section. It can equally be said, that by itself, the question relating to the payment of bonus, T.A./D.A., spray charges, etc., is not within the scope of this section. However, the validity of the order is not to be determined in this manner, because the body of the order says:

Whereas from a report submitted by the Conciliation Officer, Delhi under Section 12(4) of the Industrial Disputes Act, 1947, it appears that an industrial dispute exists between the management of M/s. Mathur Aviation 1989, defense Colony. New Delhi-24 and its workman Captain Narinder Singh. D-58, defense Colony, New Delhi- 4.

And whereas on an consideration of the said report, the Lt. Governor, Delhi is satisfied that an industrial dispute exists between the said parties and that the same should be referred to a Tribunal.

These words in the order show that the Government was of the view that there was an industrial dispute It cannot be denied that the legality of the termination of the services of Capt Narinder Singh (assuming him to be a workman, raises an industrial dispute and thus the appropriate Government was not wrong in coming to the view that an industrial dispute existed. The requirements of Section 10 are stated in the opening words of that Section. They can be reproduced with advantage:

10. (1). Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time. by order in writing,

(a)...

(b)...

(c)...

(d) refer the dispute or any matter appearing to be connected with or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication.

Thus, the Section proceeds on the basis that if there is an industrial dispute, the dispute together with any inter- connected matter may be referred to a Tribunal.

4. There is no doubt that the first term of reference is a term concerned with the dispute itself, because the question whether Capt. Narinder Singh's services have been legally terminated is referred. When such a dispute is referred, there always are inter-related matters, such as the payment of wages, etc., involved in the termination order. The question whether the workman concerned is also to get wages as compensation or as t condition for terminating the contract of service is a matter which arises directly whenever the services of an employee are terminated. As it happens, Capt. Narinder Singh joined the service of the Petitioner on 1st September, 1969. as a pilot and his services were terminated on 31st May, 1971. These facts are to be found in the statement of claim of the workman as filed before the Labour Tribunal (a copy of which is Annexure 'C' to the petition). When the employee's services were terminated, it would be expected that he would be paid his wages and other charges due to him for the period he worked. Thus, I am of the view that the second term of reference is concerned with bonus for the period 1969-70. 1970-71, and T.A./D.A. and (pray charges is also connected with the question of termination of services. After all, an employee only works because of the remuneration he receives for the work performed by him. Thus, when the contract of service is terminated, the workman is certainly entitled to get all remuneration due to him. If he does not receive that remuneration, it may very well have a distinct bearing on the legality of the termination. I am, thereforee, unable to hold that term No. 2 is not in some way connected with term No. 1. Admittedly, even if there was no reference regarding term No. 2, the reference would be valid regarding term No. 1. The only question for consideration is whether the addition of term No. 2 makes the reference invalid. There are several reasons for holding that this makes no difference.

5. I now proceed to give my reasons for holding that the reference is not invalid merely because there is a term relating to bonus, T.A./D A., and other charges which do not fall squarely within Section 2A of the Act. Firstly, the jurisdiction to make a reference does not flow from the terms of reference, but from the existence of an industrial dispute. As an industrial dispute does exist within the meaning of Section 2A, the reference can be made. Secondly, there are any cumber of reported cases in which a reference has been made of several items some of which have been held to be not capable of reference. In no cage has the entire reference been held to be invalid. An example of this has been cited by learned Counsel for the respondents. It is Burmah Shell Oil Storage and Distribution Co. of India Ltd. V. The Burmah Shell Management Staff Association and Ors. 1970 2 L.L.J. 590, decided by the Supreme Court. In that case, there was a reference concerning a large number of workmen employed by the Burmah Shell Company. The workmen were among others, Transport Engineers, District Engineers, Foreman (Chemicals), Fuelling Superintendents, Chemists and Sales Engineering Representatives, who were held by the Tribunal to be workmen. In addition, there were Blending Supervisors, Foreman, Depot Superintendents and District Sales Representatives who were held to be not workmen by the Tribunal. The cases of all categories were considered in appeal by the Supreme Court, and on the facts of each category, the decision of the Tribunal was varied by the Supreme Court. The result was that the reference was naturally held to be bad concerning the persons who were not workmen. If the argument of the petitioner is correct, the reference should have been held to be bad in its entirety, because part of the reference was concerning persons who were not workmen. Indeed, the working of the Industrial Disputes Act would become very difficult if it were to be held that a reference was bad in entirety only because some questions had been referred which did not fall within the definition of 'industrial dispute' I am thus not prepared to accept the correctness of this submission in the light of the judgments cited by the petitioner.

6. I may mention that one of those judgments, i.e., Shambhu Nath Vaid v. Labour Court Amritsar (supra) directly arose in the case of an industrial dispute referred to a Labour Court at Amritsar. The reason for holding it bad was that the words used in the reference wore as follows:

Whereas the Governor or the Punjab is of the opinion that an industrial dispute exists between the workmen and the management of the D.A.V. Ayurvedic Pharmacy, Akali Market, Amritsar, and Mall Road. Mussourie regarding the matters hereinafter appearing....

The Court was of the view that the dispute between the management and its workmen at Mussourie could be referred by the Government of Punjab it is also apparent that the reference could not be split up because the Court observed that it was not 'a mere matter of form and surplus ages'. Thus, that case is completely distinguishable. No doubt, the present industrial dispute is one between a workman at Delhi employed by a company also at Delhi. There is, there fore, jurisdiction to refer the dispute. If any question arising therein is not an industrial dispute, the Tribunal need not adjudicate upon it. As the question has bean given up by Capt. Narinder Singh before the Tribunal, the matter has now become academic.

7. Continuing my reasons for holding that the reference is not bad. I may say that in view of the express language of Section 10(1) already quoted, a matter which is connected with an industrial dispute can also be referred. Thus on general principles, I think the question of the remuneration or compensation to be paid to Capt. Narinder Singh is also connected with the question of termination of his services and can properly be added to a reference concerned with that termination. For all these reasons, I am of the view that the reference is valid.

8. I turn now to the second question urged, which is concerned with whether Capt. Narinder Singh is a workman or not. This is particularly a question of fact, but it has been urged before me that this is a jurisdictional fact which has to be gone into by the Court for the purpose of ascertaining whether the Tribunal has erred. The learned Counsel has cited Management of Scindia Potteries (P) Ltd. v. B.D. Gupta and Ors. (1974) F.L.R. 325, Toshniwal Brothers (P) Ltd. v. The Delhi Administration and Ors. Civil Writ No.311 of 1975, The State of Madhya Pradesh and Ors. v. Sardar D.K. Jadav A.I.R. 1968 SC. 1186, and Lloyds Bank Ltd. New Delhi v. Panna Lal Gupta and Ors. : (1961)ILLJ18SC , for submitting that this fact has to be gone into by the Court to see whether the Industrial Tribunal has not acted beyond his jurisdiction.

9. Reference has also been made by learned Counsel for the respondents to the Gazette of India, Part II, Section 3(ii), dated 20th March, 1958, wherein the award relating to the dispute between the Indian Airlines Corporation and its workman is reproduced. The award in question was by the National Industrial Tribunal presided over by Mr. Justice Bind Basni Prasad The question decided therein included a question whether a pilot of an aircraft was a workman or not. It was observed as follows:

A pilot's main duty is to drive an aircraft. He performs a highly skilled technical work...The main work of a chief pilot is to drive the aircraft. J

The contention of the Corporation to the effect that the exorcised control over the passengers and the fact that there were other employees working with him, was held to make no difference. It is accordingly contended by learned Counsel for respondent No. 3, that if the pilots of the Indian Airlines are workmen, there is no reason to hold that the respondent who was a pilot employed by the petitioner should also not be specified as a workman. The question turns on an interpretation of Section 2(s) of the Industrial Disputes Act, 1947, which defines 'workman' and reads as follows:

2(s) 'workman' means any person (including an apprentice) employed in any industry to do any skilled of 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 the Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged of retrenched in conned ion with, or as a consequence of, that dispute, or whose dismissal, discharge of retrenchment has led to that dispute, but does not include any such person:

(i) who i3 subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 19i4, or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensum 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.

It can be seen from this definition that the persons who are excluded are persons employed in a managerial or administrative capacity or persons drawing wages above Rs. 500 per month employed in a supervisory capacity, or persons who function by reason of the powers given to them mainly in a managerial capacity. There is no doubt that respondent No. 3 is not employed in a managerial or administrative capacity being a pilot engaged for air-spray work. I do not think that he is employed in a supervisory capacity or that he functions mainly in a managerial capacity, The only reason why it is submitted that the said respondent is not a workman that ha has also an engineer, three mechanics two helpers, one field officer and one assistant, for whose operations he is responsible. It can hardly be denied that the operation in question was air spraying of agricultural crops. No. doubt, for this work, Capt. Narinder Singh had helpers to as 1st him. It also cannot be doubted that this whole work would be under his control, but can it be said that the employee was being employed in a managerial or administrative capacity or that he was employed in a supervisory capacity merely because he had helpers to do the work. I do not think that the Section can be interpreted in this manner. As I understand it, managerial or administrative functions require a person to control the work of other. It does not mean that a person, who does some work and gets assistants for doing that work, can be described as a person who is working in a managerial or administrative capacity. Similarly, a person cannot be said to be working in a supervisory capacity merely because he has to supervise persons who help him in doing the work he himself has to perform. When one talks if a person working as a supervisor, one understands it to mean a person who is watching the work being done to see that it is being performed properly. I fully agree with the Tribunal that whatever supervisory work Capt. Narinder Singh may be doing, it must be said to be incidental to his work. He himself has been engaged to do the aerial spraying work and he is not supervising other persons to do that work and he has not been employed to perform that function. thereforee, respondent No. 2 cannot be held to be doing aerial spraying work in a supervisory capacity. The employee is himself a workman doing his own job Hence, respondent No. 3 has been rightly held to be a workman.

10. In these circumstances, the petition must be rejected and is accordingly dismissed with costs.


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