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N.J. Joseph Vs. Labour Court - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1987)IILLJ180Ker
AppellantN.J. Joseph
RespondentLabour Court
Cases ReferredWorkmen v. Blundell Eomite Paints Ltd.
Excerpt:
- - the court pointed out that a medical representative will not fall within the scope of the expression 'employee' in section 2(d) when clause (d) read as a whole clearly indicates that the words 'skilled or unskilled' have been used to qualify the words immediately following thereafter 'manual or clerical or supervisory work'.in karthiayani v. when this test is applied on the facts of this case it has to be held that the finding is well supported by evidence on record......an activity of the intellect. in this view it was held that the work of a teacher is not a manual work and therefore teachers are not workman.7. in a sundarambal v. gout. of gao, daman & diu 1983 ii llj 491 the bombay high court has held the view that the nature of the duty is determinative of the question whether the person is a workman or not. in may and baker (india) ltd. v. their workmen 1961 ii llj 94 the supreme court held that a person employed by a pharmaceutical concern as a representative for canvassing orders is not a workman pointing out that doing manual or clerical work was necessary before a person could be called a workman.8. the designation of the employee is not of great moment and what is of importance is the nature of his duties. if the nature of the duties is.....
Judgment:

Fathima Beevi, J.

1. The petitioner has challenged the legality of Ext. P1 award passed by the first respondent holding that the termination of the service of the petitioner is not illegal.

2. The petitioner was appointed as traveling salesman in the Consumer Products Division of the second respondent company initially on probation on 17th November 1972 and was confirmed on 16th May 1973. The contract of appointment has been renewed from year to year. By notice dated 14th May 1980 his service was terminated with effect from 16th May 1980. The respondent in holding that there is no illegal termination has found that the petitioner is not a workman as defined in Section 2(s) of the Industrial Disputes Act. The main grievance of the petitioner is that this finding of the respondent is perverse, patently wrong and vitiated by errors apparent and that there had been no proper evaluation of the evidence or consideration of the relevant materials in arriving at the conclusion.

3. In a petition under Article 226 of the Constitution the findings recorded by the Labour Court on the question whether an employee is a workman or not can be interfered with only if it is shown to be vitiated by an error manifest and obvious. In D.P. Maheswari v. Delhi Administration 1983 II LLJ 425 the Supreme Court considered the scope of the definition of 'workman' in Section 2(s) of the I.D. Act and observed at pp. 428-429:

Where the question before the Labour Court is whether an employee is a 'workman' as defined in Section 2(s) of the Industrial Disputes Act, 1947, and the Labour Court, after considering the entire evidence, has recorded a positive finding that the employee was a 'workman' as he was discharging duties of clerical nature, which finding was distinct from the finding that the employee was not discharging supervisory functions as claimed by the employer, the High Court, acting under Article 226 of the Constitution, cannot go behind the finding of fact arrived at by the Labour Court and hold that the employee was not a workman under Section 2(s) of the Act.

The question is thus essentially one of fact and the relevant consideration is the predominant nature of the duty the person is called upon to discharge.

4. The question whether the petitioner is a workman has been decided by the first respondent on an appraisal of the evidence before it. The term 'workman' as defined in Section 2(s) of the Act means any person 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 expressed or implied. According to the petitioner his duties involved manual and clerical work in writing bills, collecting cash and preparation of statement of accounts while employed as Salesman for the Kerala area and the evidence bearing on that aspect has been left out of consideration by the Labour Court and the finding is thus vitiated by manifest error.

5. The Supreme Court has pointed out in Arkal Govind Raj Rao v. Ciba Geigy of India Ltd. 1985 II LLJ 401 that to decide whether an employee is a workman or not, the court must find out what are the primary and basic duties of the person concerned and if he is incidently asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. The dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of a person. Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the court must find out what are the primary and basic duties of the person concerned. The question is what were his main duties and not whether he was occasionally entrusted with other work.

6. In M.G. Menon v. Dy. Labour Commr. 1981 K.L.T. 192, the question considered was whether a medical representative is a workman or not. The Court pointed out that a medical representative will not fall within the scope of the expression 'employee' in Section 2(d) when Clause (d) read as a whole clearly indicates that the words 'skilled or unskilled' have been used to qualify the words immediately following thereafter 'manual or clerical or supervisory work'. In Karthiayani v. Union of India 1984 I LLJ 259 in examining the case of a teacher it was observed that the predominant nature of the work of the person employed shall be determinative of the question whether he is employed to do any manual or supervisory or technical or clerical work and in the case of a teacher the physical or manual exertions are only necessary and incidental to the process of imparting knowledge which is predominantly an activity of the intellect. In this view it was held that the work of a teacher is not a manual work and therefore teachers are not workman.

7. In A Sundarambal v. Gout. of Gao, Daman & Diu 1983 II LLJ 491 the Bombay High Court has held the view that the nature of the duty is determinative of the question whether the person is a workman or not. In May and Baker (India) Ltd. v. Their Workmen 1961 II LLJ 94 the Supreme Court held that a person employed by a pharmaceutical concern as a representative for canvassing orders is not a workman pointing out that doing manual or clerical work was necessary before a person could be called a workman.

8. The designation of the employee is not of great moment and what is of importance is the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand it manual or clerical work is any a small part of the duties of the person concerned and incidental to his main work, which is not manual or clerical, then such a person would not be a workman. It has, therefore, to be seen in each case from the nature of the principal duties whether a person employed is a workman or not under the definition of that word.

9. The Supreme Court in Burma Shell Co. v. Burma Shell Management Staff Assn. 1970 II LLJ 590 has laid down that the test of substantial work performed by the concerned employee should be applied to find out as to whether the employee is employed to do skilled or unskilled manual, clerical, technical or supervisory work. In John Wyeth & Brother v. Industrial Tribunal, Alleppey 1977 Lab. I.C. 1997, the case of a medical representative was considered. This Court held that the medical representative is not a workman coming within the ambit of the Industrial Disputes Act, his main work being canvassing for the purpose of promoting sales, though in the course of his functions he had to carry on some correspondence incidental to the main work of pushing up sales.

10. On the principles thus stated if the petitioner though designated a Travelling Salesman and appointed for the purpose of promoting sales was only doing some manual or clerical work incidental to his duties he would not be considered as a workman within the definition of the term under the Act. The first respondent has found that the predominant and main duty of the petitioner was that of a travelling sales representative that he was appointed as a sales representative, for promoting sales, that he has not been doing manual or clerical work as a counter sales agent and if some bills had been prepared by him or he had done some manual work relating to the delivery of consumer goods, it was only incidental. In the light of these findings of fact on the evidence it is not open to the petitioner to contend that the award suffers from any error of law. The finding rests on materials in evidence. Even if all the materials have not been considered, when the finding could be supported by the materials which have been taken into account, the finding cannot be characterised as perverse. As held in Workmen v. Blundell Eomite Paints Ltd. 1975 I LLJ 463 so long as the impugned decision can be rested on some material, the fact that in arriving at it some other material has not been adverted to or considered, is no ground for interference under Article 226 of the Constitution. This Court has only to take the evidence as it is and to examine whether on that evidence legally the impugned finding follows or not. When this test is applied on the facts of this case it has to be held that the finding is well supported by evidence on record. The challenge against the award is therefore unsustainable.

In the result the original petition is dismissed. There will be no order as to costs.


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