M.S. Menon, J.
1. This petition questions the validity of theaward of the Industrial Tribunal, Trivandrum, in Industrial Dispute No. 3 of 1955. After hearing counsel for the petitioner (Management) we are satisfied that the only question that really arisesfor consideration is whether seven of the thirteen employees ordered to be reinstated by the Tribunal are workmen as defined in the Industrial Disputes Act, 1947 or not. The seven employees concerned are Nos. I, 2, 4, 6, 7, 12 and 13 of the employees specified in issue No. 3, namely,
C. T. Thomas, Conductor; A. G. Cherian, Conductor; Kalis Pereira, Maistry; C. Unnunny, Maistry; P. M. Behanan, Maistry; V. E. Varghese, Maistry and K. Ehaskara Pillai, Maistry.
2. The definition of the term 'workman' as it stood at the relevant time reads as follows :
' 'workman' means any person employed (including an apprentice) in any industry to do any skilled or unskilled, manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to anindustrial dispute, a workman discharged duringthat dispute, but does not include any person employed in the naval, military or air service of the Government'.
3. The question as to whether an employee comes within the definition of the term 'workman' or not as defined in the Act is a jurisdictional issue which though within the competence of the Tribunal to decide is still open to examination in proceedings under Article 228 of the Constitution. (See Burma-Shell Co. v. L. A. Tribunal, AIR 1957 Mad 60 (A). The designation given to the employee is of course not conclusive. The fact that a person employed in a supervisory capacity docs some manual or clerical work as ancillary or incidental to such an employment will also not bring him within the ambit of the definition. The main features, the pith and substance, of his employment must be manual or clerical before the definition is attracted.
4. As stated in (1951) 1 Lab LJ 167 (B) : 'Essentially the question whether a person is a workman or not will depend upon the nature of the work which he does; whether it is manual or clerical work, skilled or unskilled; and the true question is: Is his work in the main clerical or manual so that he falls within the definition of a 'workman'.
5. In Burmah Shell Oil Co. v. Their Workmen, (1955) 2 Lab LJ 228 (C), the Labour Appellate Tribunal of India quoted the definition oil the term 'workman'' given in Section 2(s) of the Act and dealt with the matter as follows:
'Of course in applying this definition to the facts of a particular case, the negative test with regard to directional and controlling powers, which was applied as the sole lest in several of the earlier cases, is useful in many cases, in that it allows an elimination in the first instance of employees with substantial powers of supervision ami control who may be classified as 'officers' so as to exclude them from the class of employees falling within the definition of the term 'workman' given in the Act. This test, however, is not, by itself sufficient to exclude all 'non-workmen' according to the definition and even in the case of employees who may not fall within the class of 'officers' indicated above, a further positive test has to be applied, in the light of the principles laid down by the last decided cases to which we have referred. In order to apply this positive test, after ascertaining the nature of the work the employee is primarily required to do, the tribunal must decide whether or not that work can be regarded as principally falling within the class of work which can be properly described as 'manual' or 'clerical', irrespective of the fact of any skill being required or not for the performance of such work'.
6. As far as the seven employees mentioned in paragraph 1 above are concerned the Tribunal does not appear to have realised the true test that should be applied before deciding whether a particular employee is employed 'to do any skilled or unskilled, manual or clerical work' and in view of that we must quash the award in so far as it relates to those seven employees and direct the Tribunal to pass a fresh award after giving the parties an opportunity to adduce alt relevant evidence, oral and documentary, in support oi' their respective contentions.
7. It was suggested by counsel for the petitioner (Management) that employees with less than one year's service should not be considered as entitled to reinstatement or back wages. There is no warrant for the submission either in principle or in any of the provisions of the Industrial Disputes Act, 1917.
8. We allow the petition in the manner and to the extent indicated in paragraph 6 above and leave the parties to bear their respective costs.