M/S. Kirloskar Broth... v. The Presiding Office...

Prakash Narain, J.:— This matter was heard early this year and judgment was reserved. On an application of learned counsel for respondent No. 2 the matter was reheard after considerable number of adjournments were given to suit the convenience of counsel.

2. The principal point for decision in this petition under Article 226 of the Constitution of India is the meaning to be given to the word “workman” in Section 2 (s) of the Industrial Disputes Act, 1947 and the scope of the applicability of the said Act vis-a-vis reference being made of alleged industrial disputes to a Labour Court or a Tribunal under the Act.

3. The petitioner is a registered company with a branch office at Delhi. It is engaged in the sale of heavy machinery and other equipment manufactured by it. Respondent No. 2, A.P Goel, who is a qualified Chartered Accountant was an employee in the Delhi branch of the petitioner. It is not disputed that at the relevant time his employment were Rs. 883/- per month. The services of Goel were terminated by the petitioner with effect from May 16, 1973. A dispute in respect of this termination of service was raised and was eventually referred by the Delhi Administration to the Labour Court for adjudication under the Industrial Disputes Act. The terms of the reference to the Labour Court were as follows :—

“Whether the termination of service of Shri A.P Goel was illegal and/or unjustified and if so, to what relief is he entitled and what terms are necessary in this respect?”

The petitioner put in appearance before the Labour Court and raised a preliminary objection to the effect that in as much as Goel was not a “workman” within the meaning of Section 2 (s) of the Industrial Disputes Act, the reference was incompetent when the Labour Court had no jurisdiction to adjudicate on it. On this the Labour Court settled the following issue :—

“Whether Shri A.P Goel was a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947?”

4. The parties before the Labour Court adduced evidence and by its order dated May 22, 1974 the Labour Court held that Goel was a “workman” within the meaning of Section 2 (s) of the said Act. Aggrieved by this order the petitioner has preferred the present petition under Article 226 of the Constitution and has urged that a writ of certiorari or any other writ, order or direction be issued quashing the impugned order of the Labour Court dated May 22, 1974 holding that Goel is a “workman” as defined in Section 2 (s) of the Industrial Disputes Act.

Section 2 (s) reads as under :—

“‘workman’ means any person (including an apprentice) 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 express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person —

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934, or

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

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

(iv) who, being employed in 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 powers vested in him, functions mainly or a managerial nature. ”

Under Section 2A of the said Act 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. Therefore, the basic question which arises for determination is whether the view taken by the Labour Court in the present case is sustainable in law for the Labour Court will have jurisdiction to adjudicate upon the dispute raised by Goel regarding termination of his services only if Goel is a workman within the meaning of Section 2 (s) of the said Act.

5. The Labour Court noticed that it was common ground between the parties that according to the letter of appointment issued by the petitioner to Goel he was designated as an Accountant and he was confirmed in the post of Depot Accountant in the grade of Rs. 340 — 1100. It was also common ground that Goel's total emoluments at the time of the termination of his services was Rs. 883. 55. According to Goel despite the designation given to him he was not doing any supervisory work but was actually discharging purely clerical and manual duties and so, irrespective of his emoluments which exceed Rs. 500/- per month, he was a workman within the meaning of Section 2 (s) of the Act. The contention of the petitioner was that the main and substantial part of Goel's duties were supervisory in nature and any clerical work done by him was merely incidential. So, it was contended, he was not a workman within the meaning of Section 2 (s). The Labour Court rightly observed in the impugned order that the designation of an employee was not of great importance and that what was important was the nature of duties discharged by him. It further went on to observe that if the work done by an employee was of clerical nature then the mere fact that some supervisory duties were also carried out incidetially or with a small fraction of the total work done would not convert the employment as a clerk into one in supervisory capacity. The Labour Court then went on to discuss the evidence produced by the parties. In the impugned order a portion of the statement given by Goel as to the nature of his duties was reproduced and documents placed on record by the petitioner were discussed. On an appreciation of the evidence and taking the view that the management had failed to prove that Goel was employed in supervisory capacity it was held that he was a “workman” within the meaning of Section 2 (s). The approach of the Labour Court in coming to this conclusion is what has been challenged.

6. Mrs. Urmilla Kapoor appearing for Goel has raised an objection that the decision of the Labour Court is based on an appreciation of evidence and finding of fact. Even if that finding is incorrect this court cannot interfere with the decision under Article 226 of the Constitution. To this Mr. Harish Chandra appearing for the petitioner replies that where there is an error in legal approach and there is a question of appreciation of jurisdictional facts the order of subordinate Tribunal or court would be open to judicial review. I will like to dispose of this objection before I proceed to dilate upon the scope of Section 2 (s) of the Act.

7. The law regarding jurisdiction of the High Court to interfere with decisions of Tribunals in exercise of jurisdiction under Article 226 of the Constitution is now well-settled. In Hari Vishnu Kamath v. Syed Ahmad Ishaque and others, 1955 (1) S.C.R 1104 (1), the Supreme Court laid down that certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without given an opportunity to the parties to be heard or violates the principles of natural justice. The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous. An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g when it is based on clear ignorance or disregard of the provisions of law. In other words, it is patent error which can be corrected by certiorari but not a mere wrong decision.

8. In Delhi Transport Corporation v. Delhi Administration and Others, 1973 (1) Delhi 838 (2), a learned single Judge of this Court after a very exhaustive review of the case law held:

“Held, that here is a difference between the scope of the judicial review of jurisdictional finding of fact and a finding of fact on the merits of the case. While the former is fully reviewable, the review of the latter is a restricted one. The finding of the Labour Court that an Industrial Dispute existed though one of fact, is one of jurisdictional fact. In reviewing such a finding the High Court can arrive at an independent conclusion. But in reviewing of a fact within the jurisdiction of a quasi-judicial tribunal the High Court cannot arrive at an independent conclusion as to it. Thus a finding of fact on the merits of the case would be reviewable if it is either baseless i.e not supported by any evidence at all, or is perverse, i.e is such as not reasonable person would arrive at. If it is neither, then it cannot be reviewed. ” as

9. Inasmuch as the objection to the jurisdiction was even raised before the Labour Court the moment it proceeded to adjudicate upon the reference that was made to it there cannot be any doubt that the finding of the Labour Court is subject to judicial review as that finding raises the basic question of the jurisdiction of the Labour Court to adjudicate upon the dispute referred to it or one may say the very basic question as to whether the reference to the Labour Court is at all an industrial dispute within the meaning of Section 2A of the said Act. The answer to this would be dependant upon a correction appreciation of the meaning and scope of Section 2 (s) of the Act and the approach that the Labour Court or Industrial Tribunal must adopt in deciding an objection that the employee concerned was or was not one who could be called a “‘workman” within the meaning of Section 2 (s) of the Act. I, therefore, negative the objection raised on behalf of Goel as to the maintainability of the petition.

10. In order to make a reference to a Labour Court or a Tribunal of an industrial dispute the first point that must engage the attention of the appropriate Government is to decide whether the complaining employee is a “workman”. Even if reference is made of a dispute then the Labour Court or the Tribunal must first apply its mind to this problem for unless the employee concerned is a workman the question of adjudication of an industrial disputes does not arise. In my opinion the approach has to be a positive approach and not a negative approach. In other words, what has to be seen is whether the particular employee is a workman and not whether the employee concerned falls within the exceptions mentioned in Section 2 (s) and if he does not fall in one of the exceptions then by process of elimination he is held to be a “workman”. A social legislation like the Industrial Disputes Act confers certain rights and obligations upon certain categories of persons. Those rights and obligations must be limited to be attracted only in the case of such persons as are covered by the statute. Certain rights are conferred upon a “workman” as defined by Section 2 (s) of the Act. Therefore, those rights are available only to persons who can be called workman and not to all those who are not covered by the exceptions given in Section 2 (s). To put in another way what has to be seen is whether a person is a workman as opposed to what may be called “non-workman” and not whether he is a workman because he is not a Manager or one employed in an administrative capacity. It is possible that an employee in a given case may not be employed in managerial and administrative capacity or in supervisory capacity and yet he may not be a workman. If the approach is that every employee is a “workman” but the benefits of raising an industrial dispute is not available to those who are subject to the Army Act, or the Air Force Act or the Navy (Discipline) Act or who is employed in the police service or as an officer or other employee of a prison or 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 powers vested in him, functions mainly of a managerial nature, then, in my opinion, the approach would be incorrect. The proper approach in law would be to first see whether an employee is a workman and then see whether any of the exceptions are attracted. Reading the definition of the word “workman” I find that it is necessary that a person must be employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. Thus the first thing to find out is whether the employee concerned is employed to do manual or clerical work, be it skilled or unskilled, technical or non-technical. If that be so, then he would be workman even if he is employed in a supervisory capacity unless by virtue of being employed, in supervisory capacity his wages exceed Rs. 500/- or his duties or powers convert his employment into one mainly of managerial nature. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and incidential to his main work, which is not manual or clerical then such a person would not be a workman. In Management of M/s. May and Baker (India) Ltd. v. Their workmen and Appellants, A.I.R 1967 S.C 678 (3), that court was concerned with construing Section 2 (s) of the Industrial Disputes Act as it stood before the amendment of 1956. The rule laid down was similar to the one which I have propounded above and I think the rule still holds good despite the substitution of clause (s) of Section 2 by the amendment Act, 36 of 1956. In the case of M/s. May and Baker, referred to above the Supreme Court came to the conclusion that inasmuch as the main work of the employee in that case was that of canvassing and any clerical or manual work that he had to do was incidential to his main work of canvassing the employee could not be regarded as a person falling within the ambit of the term “workman”. On good authority, therefore, I hold that the approach has to be positive, as said by me earlier and not negative to find out whether an employee would fall within the ambit of the term workman.

11. In Burmah Shell Oil Storage & Distribution Company of India Ltd. v. Burmah Shell Management Staff Association and Others, 1970 (2) L.L.J 590 (4) also the Supreme Court held that for an employee in an industry to be workman under Section 2 (s) of the Industrial Disputes Act, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature he would not be a workman. The court went on to observe:

“If every employee of an industry was to be a workman except those mentioned in the four exceptions, these four classifications need not have been mentioned in the definition and a workman could have been defined as a person employed in an industry except in cases where he was covered by one of the exceptions. The specification of the four types of work obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who, not doing any such work, would be out of the scope of the word ‘workman’ without having to resort to the exceptions. ”

12. One other aspect which was pointed out in the case of Burmah Shell Oil storage & Distribution Company of India Ltd. was that it has to be taken note of that in practice quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In such cases it was held what has to be seen is as to what is the dominant part of the work done by such an employee. If the dominant part of the work that an employee has to do is skilled or unskilled manual work or supervisory work or technical work or clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work or he may be doing clerical work as well as supervisory work. He may be doing technical work as well as clerical work. He may be doing technical work as well as supervisory work. In such cases it would be necessary to determine under which classification he would fall for the purposes of finding out whether he does not go out of the definition of the term “workman” under an exception. Accordingly, the law is well-settled that what has to be seen is the main work for which an employee is employed even though he is incidentally doing other types of work. Designations or emoluments become secondary in finding out what is the main work for which a person is employed or which he is doing. It will be an incorrect approach as has been adopted in the present case by the Labour Court to classify a person as a workman merely because he does not fall within one of the exceptions mentioned under Section 2 (s) of the Act.

13. Mrs. Kapoor referred to a number of decisions to show that an Accountant would be a workman within the meaning of Section 2 (s) of the Act and that Goel was a Chartered Accountant would only go to show that he was a skilled workman. In Andhra Scientific Company Ltd. v. Seshagiri Rao and another, 1961 (2) L.L.J 117 (s), the Supreme Court upheld the decision of the Andhra Pradesh High Court refusing to interfere with the finding of fact that the duties performed by an employee in that case were of such nature as brought him within the ambit of the term “workman”. This decision is not relevant for the issue before us. As has been held by me earlier this court would interfere under Article 226 of the Constitution not by appreciation of evidence but only where there is a jurisdictional error or there has to be an appreciation of facts which may be called jurisdictional facts.

14. In Punjab National Bank Ltd. v. Their Workmen and another, 1961 (2) L.L.J 162 all that the Supreme Court held was that the fact that an employee's work was responsible, onerous and important was irrelevant. In that case there was no evidence regarding the supervisory character of the duties performed by the employee concerned. This case also does not help us.

15. In Mysore Vegetable Oil Products Ltd. v. Labour Court. Madras and another, 1961 (2) L.L.J 508 (7), an Accountant directed as a temporary measure to take over some additional work involving supervision over the work of others was held to be a workman because the temporary arrangement to relieve the employee occupying a managerial position was held as not coverting the status of the employee as a workman.

16. In South Indian Bank Ltd. v. A.R Chacko, 1964 (1) L.L.J 19 (8), on examining the list of duties of the employee concerned and the fact that there was no power of attorney granted to the employee as an attorney, it was held that the particular employee was a workman.

17. In Burmah Shell Oil Storage & Distribution Company of India v. Burmah Shell Management Staff Association and Others, 1971 (2) S.C.R 758 (4) on examination of the nature of the duties performed by a Fueling Superintendent it was held that the main and substantial work which he did, was not of supervising the work done by the few workmen who assisted him but his own manual work which he carries out at the depot as well as when delivering oil to the aircraft.

18. Thus, all the decisions relied upon are really a point to the rule enunciated by me that a positive approach as to the nature of duties performed alone would determine whether an employee is a workman under Section 2 (s) and not an approach to the effect that unless an employee falls within one of the exceptions he must be a workman.

19. The finding whether a particular employee is a workman when his services are terminated is partly a finding a fact and partly a finding of a question of law. This is so because the finding has to be based on the particular facts and circumstances of a case on the one hand and the construction to be given to the term “workman” on the other. The question of fact in such circumstances becomes one of jurisdictional fact and the High Court under Articles 226 and 227 is competent to consider the soundness of the finding of fact afresh in so far as it is jurisdictional. Since the definition of workman has to be dilated upon in deciding whether on industrial dispute could be raised in a particular case the question whether the employee concerned was a workman or not also becomes one relating to jurisdiction. This is settled law and his recently been held to be so by this court in M/s. Blue Star Ltd. v. N.K Sharma and others, C.W 1259 of 1972, decided on February 22, 1974 (9). Therefore, an examination of the evidence of the case will be pertinent to find out whether there is any error committed by the Labour Court which goes to the root of the question, viz., its jurisdiction to entertain and adjudicate upon the dispute referred to it.

20. As far as Goel is concerned the only evidence produced by him was his own statement before the Labour Court. This is what he said: “My duties were as follows: to write all the account books, to prepare accounting and statistical statements from these books. These were my main duties. I made entries in account book, “journal, journal ledger, purchase ledger, sales ledger and sales journal. I also made entries in sales day book. There was also a general assistant. He was also doing account work and other work. Nobody was under me. I had no power to sanction leave, to appoint anyone and to take disciplinary proceedings against anybody . . . . I was the only man in the accounts department I can be held in that sense. Shri R.K Saluja was a general assistant and not under me . . . . I prepared the statement in my hand. I sent them to the Manager and he assigned the typing work to the typists . . . . I maintained the leave account of all the employees. I prepared the reconciliation statement every month. I used to sign statement of goods received from the factory . . . . . . Since October, 1970 Saluja used to make entries in the cash as I had plenty of work. Before that I used to write . . . . . ”

21. The petitioner-management produced a large number of documents including a table marked Exhibit W. 21 (Page 197 of the Labour Court record). Exhibit W. 21 shows the entries made in the various registers in the financial year 1971-72 and 1972-73. The Labour Court has not adverted to this document at all or properly appreciated the statement of Goel, parts of which have been extracted above. Merely because Goel used to make a few entries in the various books of account does not convert his employment into one of clerical nature. Whether he was supervising or not supervising the work of anyone else was of secondary importance. What had to be seen was whether the nature of his duties as given by him himself was skilled or unskilled manual work or supervisory work or technical or clerical work. If it was not so primarily then Goel could not be a workman. He may be something else but certainly not a workman within the meaning of Section 2 (s). The Labour Court seems to have taken the incorrect approach that because the management had failed to prove that Goel was working in a supervisory capacity he must be regarded as a workman. The approach would have been the other way round. Assuming that Goel was all alone in his department he could not obviously be implied in a supervisory capacity as the very word indicates that capacity postulates directing or looking after the work of others who are subordinate to such a person. The position of Saluja is another factor which seems to have influenced the Labour Court. This was also wholly irrelevant except vis-a-vis finding out whether Goel was employed in a supervisory capacity. The main duties of Goel appeared to be non-clerical and of the type which required some application of mind and initiative. This is as distinguished from skilled labour or skilled manual work. As was held by the Calcutta High Court in Workmen of Macfarlane and Company Ltd. v. Fifth Industrial Tribunal and others, 1964 (2) L.L.J 556 (10), in common parlance a clerk is one employed as a writer, copyist, account-keeper or correspondent in an office. A clerk employed to do general office duties may be styled as a general assistant but this does not necessarily confer upon him the rank of an officer. An officer is generally invested with power of supervision and control. Clerical work, on the other hand, implies stereotyped work, without, power of control or dignity of creativeness. Compiling of reconciliation statements, preparation of budgetary statements cannot be regarded as skilled or unskilled manual or clerical work. It cannot even be technical clerical work. It calls for creativeness, imagination and an application of mind which must be distinguished from skilled or unskilled manual work, supervisory work and technical or clerical work.

22. In Burmah-Shell Oil Storage and Distribution Company of India Ltd. v. Their Workmen, 1955 (2) L.L.J 228 (11) a bench of the Madras High Court dilated upon the meaning of the term “clerk” as well as the term “manual work”. It stressed upon the need of applying a positive test after ascertaining the nature of the work an employee was primary required to do to find out whether the work of the employee was of a manual or clerical nature or was neither of these. The Calcutta High Court also in Abdur Rahim v. Sasmusa Sugar Works Ltd., 1956 (2) L.I.J 399 (12) disapproved an approach of applying a negative test and calling of such employees workman who were not employed in supervisory capacity or falling under one of the exceptions under Sections 2 (s) of the Act. Therefore, applying the above principles I cannot persuade myself to agree with the contention on behalf of the respondent that the Labour Court has rightly rejected the preliminary objection raised by the petitioner. In my view the approach of the Labour Court was incorrect, being negative approach.

23. It has been urged that the matter be remanded to the Labour Court to decide afresh on the basis of the rule that may be enunciated by this court. In my opinion, it is unnecessary to remand the case. The entire evidence is before me. On reading it I cannot but hold that Goel is an employee who does not fall within the ambit of the team “workman”.

24. The petition is, accordingly, accepted. The rule is made absolute. The impugned order of the Labour Court dated May 22, 1974 is quashed and a writ is issued quashing the reference made to the Labour Court. In the circumstances of the case however. I make no order as to costs.

Petition accepted.