K.Mirnalni v. Chairman-Cum-Managing Director Nhpc Ltd.& Ors.

Petitioner is a teacher in Salal Project High School, Talwara. She was ordered to retire from service from 30-9-1992 on attaining age of 58 years. But instead of quitting, she filed this writ petition and obtained an interim order on 29-9-1992 allowing her to continue on the post. Her case is that she is a "workman" and liable to be retired from service on attaining 60 years age under the Certified Standing Orders of the National Hydro Electric Cor­poration Limited (for short NHPC) Therefore, the short question that falls for determination is whether she should be retired on completing 58 years or 60 years.

Petitioner was offered appointment to the post of teacher by Memo­randum of offer dated : 23-7-1985. The Memorandum contained various terms and conditions, and amongst other things, provided that she will be governed by the respective Rules and Regulations applicable to the employees of the Project, as amended from time to time. She accepted the offer and this was followed by an order of appointment dated : 6-8-1985 which again re-iterated that her services will be regulated by N.H.P.C. Rules and her appointment would be subject to fulfillment of all other terms and conditions continued in the Memorandum of offer. She, therefore, joined against the post and contained in service and seems to have been prompted to file this petition upon issuance of Circular dated : 4-9-1992 notifying her date of retirement

Petitioner's case is that respondent - Salal Project is an Industry and she is a "workman" within the definition of Section 2 (i) of the Industrial Employment (Standing Orders) Act, 1946, as she does not hold any mana­gerial post. According to her, since the Certified Standing Orders had already come into force before her appointment way back in 1977, her service was to be regulated under the Standing Orders which fixed the age of retirement of "workman" at 60 years" She further submits that any reference to Rules and Regulations contained in her order of appointment should be interpreted to be a reference to the Certified Standing Orders. She, accordingly, proceeds to urge that she is liable to be retired on complexion of 60 years and not before that.

In their counter affidavit, respondents have refuted that petitioner is a "workman". Their stand is that she was clearly and categorically informed in the Memorandum of offer that she would be governed by the N.H.P.C. Rules, which provided 58 years as the age for superan­nuation, Thereafter. nhpc recruitment and promotion rules for teaching staff, 1988 came into force from 1-1-1988 and she continued to serve under these Rules and her service was regulated by these Rules. These Rules also fixed the age of retirement of teaching staff at 58 years. It is also pointed out that petitioner has not made any averment about the nature of her duties to quality her as a "workman", and as such, there was no question of declaring her has a "workman"

Learned counsel for petitioner Mr. Chaudhry made a tall bid to bring the petitioner's case within the ratio of AIR 1984 S.C Page 1462 (S.K. Verma vs Mahesh Chandra). He urged that all employees of the NHPC except those engaged in managerial and administrative duties were free to claim the status of "workman" within the definition of Section 2 (i) (Standing Orders Act) irrespective of their nature of appointment, and where such appointment provided for regulation of their services by a particular set of Rules. According to him, the sweep of the definition of word "workman" is so broad as to cover all manner of persons employed in an Industry, irrespective of whether they were engaged in the skilled, un-skilled, manual work, supervisory work, technical work, and clerical work He referred to and relied upon the following observation of apex court in the judgment (supra);

"The words', any skilled or un-skilled, manual, supervisory, technical or clerical work are not intended to limit or narrow the amplitude of the definition of "workman". On the other hand, they indicate and emphasize the broad sweep of the definition which is designed to cover all manner of persons employed in an Industry, irrespective of whether they are engaged in skilled or un-skilled manual, supervisory, technical or clerical work. Quite obviously, the broad intention is to take in the entire labour force and exclude the managerial force.

Mr. J.P Singh learned counsel for respondent-, on the other hand sought support from Sundaram Mal vs Government of Goa. (AIR 1988 SC 1700) which specifically lays down that a teacher employed in a school does not fall within the definition of expression "workman'. He also contended that the petitioner was not intended to be a "workman" at any stage and was governed by a peculiar set of Rules under which she stood appointed, and therefore, it was futile to survey whether she could be declared as "workman". Petitioner cannot qualify to be a "workman" and the reason is not for to seek. Firstly, it is condition of her service that she would be governed by the N.H.P.C. Rules and Not Certified Standing Orders. This is provided both in the Memorandum of offer and the order of appointment as well. There is no dispute about the existence of these rules which were in force at the time of her appoint­ment. Added to this is the factor that she came under the purview of a new set of Rules called the Recruitment and Promotion Rules put into operation in 1988. Therefore, she can't extricate herself from the net of those Rules in a bid to bring herself under the protective umbrella of Standing Orders to stay longer in service. She would have to sink or swim under the N.H.P.C. Rules. She can't be allowed to blow hot and cold in the same breath and enjoyed the benefit of services Rules when it suited her and to detest these rules when it came to her retirement. As she was entered the service under a set of Rules, she must go out of it under these Rules.

It is true, that Certified Standing Orders of the NHPC were operative at the time petitioner was appointed, but she could not lay any claim or seek any benefit under these orders which are not appli­cable to her. These Standing Orders were undoubtely certified on 19-5-1985, prior to her appointment but had application to "workman" only.

Petitioner also does not fall within the definition of "workman contained in Section 2 (i) of the Industrial Employment (Standing Orders) Act, 1947. Relevant provision reads thus :-

"workman" means any person ( including an apprentice ) employed in any industrial establishment to do any skilled, un-skilled manual, supervisory, technical or clerical work for hire and reward whether the terms of employment be express or implied but does not include any such person.

(i) Who is subject to Army Act, 1950 or the Air Force Act, 1950, or Navy Act, 1950 or

(ii) who is employed in the Police service or 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 a supervisory capacity draws wages exceeding Rs. 500/-per mensum or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him, function Mainly of a managerial nature."

It is un-necessary to go into the intricacies of interpreting this definition. Suffice it to say, that a "workman" is a person who satisfies the following requirements :-

(i) That he/she should be person employed in an industry for hire or reward;

(ii) He/she should be eagated in skilled or un-skilled, manual supervisory, technical or clerical work;

(iii) He/she should not be a person falling under any of the four clauses i. e. (i) to (iv) of the definition.

Broadly speaking, it seems that the "workman 'is one who is engaged in doing manual or clerical work in contra-distinction to the managerial and administrative work. Therefore, it all depends upon the nature of the duties of a person. If it is manual or clerical work, then the person must be held to be a "workman". It is true that the definition "workman" requires to be given a liberal construction to cover all types of persons irrespective of the categories specified therein, but it still falls on the person claiming, to show that his nature of duties is such as to merit him the status of "workman". It is then alone that he could be so held.

In the present case, petitioner has not Lald down any foundation in this regard. There is nothing before this Court to adjudge her as "workman". That apart, it is no more res Integra that a teacher falls outside the definition of a "workman". The judgment in S. K. Verma's case (AIR 1884 SC 1962) stands on a different footing and is distinguishable. In this case, the court concluded on facts that a Development Officer of an Insurance Company fell within the definition of a "workman." At this stage, it would be advantageous to refer to the legal position enunciated in AIR 1988 SC 1700 :-

" The teachers employed by educational institution whether the said institutions are imparting primary, secondary, gradu­ate or post-graduate education cannot be called as -'workmen" within the meaning of S. 2 (s) of the Act. Imparting of education which is the Main function of teachers cannot be considered as skilled or unskilled manual work or super­visory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and make them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do is only incidental to their principal work of teaching,"

In the light of the foregoing discussion. It is difficult to hold that petitioner is a "workman" within the definition of Section 2 (i) of the Act. It is all the more difficult to bring her out of the clutches of the Service Rules, which regulated her service from the time she was appointed. Being subject to this Rules, she has to retire on completing 58 years and no more.

I, accordingly, find no merit in this petition, which is dismissed.