Full Judgment Text
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CASE NO.:
Appeal (civil) 8453-54 of 2002
PETITIONER:
Mangt.of M/s Sonepat Coop.Sugar Mills Ltd.
RESPONDENT:
Ajit Singh
DATE OF JUDGMENT: 14/02/2005
BENCH:
N. Santosh Hegde & S.B. Sinha
JUDGMENT:
JUDGMENT
W I T H
CIVIL APPEAL NO.8455 OF 2002
S.B. SINHA, J :
These appeals are directed against the judgments and orders dated
04.09.2001 in L.P.A. Nos. 1311 of 1991 and 1356 of 1991 and 7.3.2002 in
L.P.A. No. 1356 of 1991 passed by the High Court of Punjab and Haryana.
INTRODUCTORY FACT:
The Respondent herein was appointed by the Appellant in the post of
Legal Assistant; the qualification wherefor was degree in law with a
practicing licence. The nature of his duties was to prepare written
statements and notices, recording enquiry proceedings, giving opinions to
the Management, drafting, filling the pleadings and representing the
Appellant in all types of cases, viz., civil, labour and arbitration references
independently. He was also conducting departmental enquiries against the
workmen employed in the industrial undertaking of the Appellant. He was
placed on probation. While he was serving the Appellant in the said
capacity, allegedly a decision was taken to abolish the said post pursuant to
the recommendations of the Federation of Cooperative Sugar Mills Ltd., as a
result whereof his services were dispensed with.
An industrial dispute was raised by the Respondent which was
eventually referred to the Labour Court by the Appropriate Government for
adjudication as regard the question as to whether the termination of his
services was justified.
LABOUR COURT:
A contention was raised by the Appellant herein before the Labour
Court that having regard to the nature of duties performed by the
Respondent, he would not be a ’workman’ within the meaning of Section
2(s) of the Industrial Disputes Act, 1947 (for short, ’the Act’). The Labour
Court having regard to the rival contentions framed the following issues :
"1. Whether the applicant does not fall under the
definition of workman;
2. Whether the termination of services of the
workman is proper, justified and in order? If not,
to what relief he is entitled?"
The question as to whether the Respondent was a workman or not was
taken up as a preliminary issue and by an order dated 24.9.1982, the Labour
Court opined that the job performed by the Respondent was of ’legal
clerical nature’ and, thus, he would be a ’workman’ within the meaning of
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the provisions of the Act. In its award dated 13.11.1984, the Labour Court
came to the conclusion that the Respondent, having been retrenched from
services by the Appellant without complying with the provisions of Section
25F of the Act, should be directed to be reinstated with continuity of service
and 50% back wages.
HIGH COURT PROCEEDINGS:
Aggrieved by and dissatisfied with the said award, both the Appellant
and the Respondent filed writ petitions before the Punjab and Haryana High
Court. A learned Single Judge of the said court by a judgment and order
dated 30.8.1991, while upholding the finding of the Labour Court to the
effect that the Respondent was a workman; upon consideration of the fact
that he had since been practising as an advocate and was appointed as an
Additional District Attorney in the year 1985, awarded an amount
calculated at 50% back wages from the date of termination to the date of
award, namely, 13th November, 1984 by way of compensation in lieu of his
reinstatement in service.
The Respondent filed two Letters Patent Appeals against the said
judgment. The Appellant, however, did not prefer any appeal there-against.
A Division Bench of the High Court by a judgment dated 4.9.2001,
set aside the judgment of the learned Single Judge and restored the award of
reinstatement passed by the Labour Court but rejected the contention of the
Respondent that he was entitled to full back wages. It was, however,
directed that the Respondent would be free to avail remedy under Section
33-C(2) of the Act for payment of wages for the period between the date of
the award and the date of physical reinstatement.
In the said inter-court appeals, allegedly the name of the counsel for
the Appellant had not been shown on the date of hearing and as such it was
not represented. The Appellant preferred two Special Leave Petitions being
Special Leave Petition (Civil) Nos. 4493 and 4494 of 2002 against the said
judgment. However, on an application filed by the learned counsel
appearing on behalf of the Appellant, the said Letters Patent Appeals were
restored and by reason of an order dated 7.3.2002, the earlier directions
issued on 4.9.2001 were sustained. In its judgment dated 7.3.2002, the
Division Bench merely noticed the submissions made on behalf of the
Appellant herein but otherwise the tenor of both the judgments is similar.
SUBMISSIONS:
Mr. Uday U. Lalit, learned Senior Counsel appearing on behalf of the
Appellant, assailing the judgment of the High Court would submit that
having regard to the nature of duties performed by the Respondent herein, he
could not be held to be a workman within the meaning of Section 2(s) of the
Act.
The learned counsel would contend that the fact that the Respondent
was a practicising advocate and even after joining services, sought for non-
practicising allowance, would clearly go to show that his job was akin to that
of a practicising lawyer. The learned counsel would urge that the Labour
Court, the learned Single Judge as also the Division Bench of the High Court
committed a manifest error in holding that the Respondent was a workman
on the premise that he was neither a Manager nor a Supervisor. Such an
approach, Mr. Lalit, would argue, is contrary to the well-settled principles of
law as regard interpretation of Section 2(s) of the said Act. According to the
learned counsel, having regard to the fact that the decision of this Court in
S.K. Verma vs. Mahesh Chandra and Another [(1983) 4 SCC 214]
whereupon the Division Bench placed strong reliance and other decisions
following the same having been held to have been rendered per incuriam by
a Constitution Bench of this Court in H.R. Adyanthaya and Others vs.
Sandoz (India) Ltd. and Others [(1994) 5 SCC 737], the impugned
judgment cannot be sustained.
Mr. Lalit would submit that although the Appellant had not preferred
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any appeal against the judgment and order passed by the learned Single
Judge, having regard to the fact that the said finding of the High Court had
been rendered without jurisdiction and in any event, the question that would
fall for consideration before this Court on the admitted fact being a pure
question of law, the principle of res judicata shall have no application in the
instant case. Strong reliance in this behalf was placed on Mathura Prasad
Bajoo Jaiswal and Others vs, Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613]
Mr. Ajay Siwach, learned counsel appearing on behalf of the
Respondent, on the other hand, would contend that the Labour Court in its
interim order dated 24.09.1982 while determining the preliminary issue had
arrived at a finding that the Respondent was a workman as he had not been
performing the duties in a supervisory or managerial capacity, as he had
been mainly doing the job of a legal clerical nature which having been
upheld by the learned Single Judge as well as the Division Bench of the
High Court, the impugned judgments should not be interfered with. The
learned counsel would contend that in any event as the Appellant has not
preferred any appeal against the judgment of the learned Single Judge, the
same had attained finality and, thus, this Court should not permit the
Appellant to raise the contention there-against as to whether the Respondent
is a workman or not. Reliance in this behalf has been placed on K.K. John
vs. State of Goa [(2003) 8 SCC 193].
DETERMINATION:
Workman:
Section 2(s) of the Act reads as under :
"(s) "Workman" means any person (including an
apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or
supervisory 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 Air Force Act, 1950
(45 of 1950), or the Army Act, 1950 (46 of
1950), or the Navy Act, 1957 (62 of 1957);
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 a supervisory
capacity, draws wages exceeding one
thousand six 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,."
A bare perusal of the aforementioned provision clearly indicates that a
person would come within the purview of the said definition if he : (i) is
employed in any industry; and (ii) performs any manual, unskilled, skilled,
technical, operational, clerical or supervisory work.
Thus, a person who performs one or the other jobs mentioned in the
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aforementioned provisions only would come within the purview of
definition of workman. The job of a clerk ordinarily implies stereotype
work without power of control or dignity or initiative or creativeness. The
question as to whether the employee has been performing a clerical work or
not is required to be determined upon arriving at a finding as regard the
dominant nature thereof. With a view to give effect to the expression to do
"any manual, unskilled, skilled, technical, operational, clerical or
supervisory work", the job of the concerned employee must fall within one
or the other category thereof. It would, therefore, not be correct to contend
that merely because the employee had not been performing any managerial
or supervisory duties, ipso facto he would be a workman.
In Miss A. Sundarambal vs. Government of Goa, Daman and Dieu
and Others [(1988) 4 SCC 42], teachers serving in an educational institution
being not found to be performing any duty within the aforementioned
category has been held not to be workmen. Similarly, an advertising
manager, a chemist employed in a sugar mill, gate sergeant in charge of
watch and ward staff in a tannery, a welfare officer in a commercial
educational institution have also not been held to be workmen. The
Respondent had not been performing any stereotype job. His job involved
creativity. He not only used to render legal opinions on a subject but also
used to draft pleadings on behalf of the Appellant as also represent it before
various courts/authorities. He would also discharge a quasi-judicial
functions as an Enquiry Officer in departmental enquiries against the
workmen. Such a job, in our considered opinion, would not make him a
workman.
In S.K. Verma (supra), this Court without taking into consideration
the earlier binding precedents and in particular the decision of May & Baker
(India) Ltd. vs. Workmen [AIR 1967 SC 678] arrived at a conclusion that
an employee who does not perform any supervisory or managerial nature of
duties, would be a workman. S.K. Verma (supra) was held to have been
rendered per incuriam by a Constitution Bench of this Court in H.R.
Adyanthaya (supra).
The question came up for consideration recently before this Court in
Mukesh K. Tripathi vs. Senior Divisional Manager, LIC and Others [(2004)
8 SCC 387], wherein it was held :
"Once the ratio of May and Baker (supra) and
other decisions following the same had been reiterated
despite observations made to the effect that S.K. Verma
(supra) and other decisions following the same were
rendered on the facts of that case, we are of the opinion
that this Court had approved the reasonings of May and
Baker (supra) and subsequent decisions in preference to
S.K. Verma (supra).
The Constitution Bench further took notice of the
subsequent amendment in the definition of ’workman’
and held that even the Legislature impliedly did not
accept the said interpretation of this Court in S.K. Verma
(supra) and other decisions.
It may be true, as has been submitted by Ms.
Jaisingh, that S.K. Verma (supra) has not been expressly
overruled in H.R. Adyanthaya (supra) but once the said
decision has been held to have been rendered per
incuriam, it cannot be said to have laid down a good law.
This Court is bound by the decision of the Constitution
Bench.
This court opined :
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"The definition of ’workman’ as contained in
Section 2(s) of the Industrial Disputes Act, 1947 includes
an apprentice, but a ’workman’ defined under the
Industrial Disputes Act, 1947 must conform to the
requirements laid down therein meaning thereby, inter
alia, that he must be working in one or the other
capacities mentioned therein and not otherwise.
*
A ’workman’ within the meaning of Section 2(s)
of the Industrial Disputes Act, 1947 must not only
establish that he is not covered by the provisions of the
Apprentices Act but must further establish that he is
employed in the establishment for the purpose of doing
any work contemplated in the definition. Even in a case
where a period of apprenticeship is extended, a further
written contract carrying out such intention need not be
executed. But in a case where a person is allowed to
continue without extending the period of apprenticeship
either expressly or by necessary implication and regular
work is taken from him, he may become a workman. A
person who claims himself to be an apprentice has certain
rights and obligations under the statute."
The said decision has been followed by this Court in U.P. State
Electricity Board vs. Shiv Mohan Singh and Another [(2004) 8 SCC 402].
It is now trite that the issue as to whether an employee answers the
description of a workman or not has to be determined on the basis of a
conclusive evidence. The said question, thus, would require full
consideration of all aspects of the matter.
The jurisdiction of the Industrial Court to make an award in the
dispute would depend upon a finding as to whether the concerned employee
is a workman or not. When such an issue is raised, the same being a
jurisdictional one, the findings of the Labour Court in that behalf would be
subject to judicial review.
The High Court furthermore applied wrong legal tests in following
S.K. Verma (supra) in upholding the views of the Labour Court which itself
approached the matter from a wrong angle. The Labour Court as also the
High Court also posed a wrong question unto themselves and, thus,
misdirected themselves in law.
In Cholan Roadways Limited Vs. G. Thirugnanasambandam [2004
(10) SCALE 578], this Court held:
"34\005In the instant case the Presiding Officer,
Industrial Tribunal as also the learned Single Judge
and the Division Bench of the High Court
misdirected themselves in law insofar as they
failed to pose unto themselves correct questions. It
is now well-settled that a quasi-judicial authority
must pose unto itself a correct question so as to
arrive at a correct finding of fact. A wrong
question posed leads to a wrong answer. In this
case, furthermore, the misdirection in law
committed by the Industrial Tribunal was apparent
insofar as it did not apply the principle of Res ipsa
loquitur which was relevant for the purpose of this
case and, thus, failed to take into consideration a
relevant factor and furthermore took into
consideration an irrelevant fact not garmane for
determining the issue, namely, the passengers of
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the bus were mandatorily required to be examined.
The Industrial Tribunal further failed to apply the
correct standard of proof in relation to a domestic
enquiry, which in "preponderance of probability"
and applied the standard of proof required for a
criminal trial. A case for judicial review was, thus,
clearly made out."
.
In this view of the matter, the impugned award and the judgments are
not legally sustainable.
RES-JUDICATA
It is true that the Appellant did not challenge the judgment of the
learned Single Judge. The learned Judge in support of his judgment relied
upon an earlier decision of the High Court in Rajesh Garg vs. Management
of Punjab State Tube-well Corporation Limited and Another [1984 (3) SLR
397] but failed to consider the question having regard to the
pronouncements of this Court including H.R. Adyanthaya (supra). Rajesh
Garg (supra) was rendered following S.K. Verma (supra), which being not a
good law could not have been the basis therefor.
The principle of res judicata belongs to the domain of procedure.
When the decision relates to the jurisdiction of a court to try an earlier
proceedings, the principle of res judicata would not come into play. [See
Mathura Prasad Bajoo Jaiswal (supra)].
An identical question came up for consideration before this Court in
Ashok Leyland Ltd. vs. State of Tamil Nadu and Another [(2004) 3 SCC 1]
wherein it was observed :
"The principle of res judicata is a procedural
provision. A jurisdictional question if wrongly decided
would not attract the principle of res judicata. When an
order is passed without jurisdiction, the same becomes a
nullity. When an order is a nullity, it cannot be supported
by invoking the procedural principles like, estoppel,
waiver or res judicata\005"
It would, therefore, be not correct to contend that the decision of the
learned Single Judge attained finality and, thus, the principle of res judicata
shall be attracted in the instant case.
Reliance placed by the learned counsel on K.K. John (supra) is
misplaced. In that case a part of the award was remitted by the court in
exercise of its jurisdiction under Section 16 of the Arbitration Act, 1940.
Rejecting a contention that by reason of such remittance the entire award
becomes void in terms of sub-section (3) of Section 16, it was held :
"In the present case, we find that the entire award
was not remitted to the arbitrator. The arbitrator was
only required to give determination on two points, and,
therefore, sub-section (3) is not applicable in the present
case. Parliament advisedly has restricted sub-section (3)
of Section 16 of the Act to an award which would mean
the whole award or a part of it. The valid part of the
award always remains enforceable in a court of law.
What can be held to be void is that part of the award
which has not been made a rule of court by sustaining the
objections raised with regard thereto inter alia on the
ground that the same suffers from an error apparent on
the face of the record or for any other reason; in the event
the arbitrator or umpire fails to reconsider it and submit
his decision within the time fixed therefor by the court.
In other words, the word "award" within the meaning of
sub-section (3) would also include a part of the award,
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which has been the subject-matter of the order of
remission by the competent court. In any view of the
matter, the applicability of sub \026section (3) of Section 16
of the Act, in the facts and circumstances of the present
case, does not arise inasmuch as the matter is still
pending before the arbitrator\005"
Furthermore, we are of the opinion that the law operating in the field
must be stated with precision and clarity and in that view of the matter also it
was necessary for us to deal with the legal question raised by Mr. Lalit.
CONCLUSION:
For the reasons aforementioned, the impugned judgments of the
Labour Court and the High Court cannot be upheld. They are set aside
accordingly. However, in the facts and circumstances of this case and
particularly in view of the fact that the Appellant was agreeable to pay 50%
back wages to the Respondent, as directed by the learned Single Judge and
further having regard to the fact that a substantial portion thereof is said to
have already been paid, we would direct the Appellant to pay the balance
amount, if any, to the Respondent in terms thereof within eight weeks from
today.
The appeals are allowed with the aforementioned directions. In the
facts and circumstances of the case, there shall be no order as to costs.