Sharad Kumar v. Govt. of NCT of Delhi(2002) 4 SCC 490

Case Summary

Full Case Details

D.P. MOHAPATRA, J.

3. The appellant was holding the post of “Area Sales Executive” when his service was terminated
   vide the order dated 20-12-1995. The order was communicated to him on 28-12-1995. No show-cause
   notice was served nor was any enquiry held before the order terminating the appellant’s service was
   passed. However, one month’s salary was sent to him along with the termination letter. The appellant
   questioned the legality and validity of the order of termination of service. The matter was taken up for
   conciliation. The Conciliation Officer submitted a failure report to the State Government on 23-10-1996.
   On receipt of the Conciliation Officer’s report the State Government declined to refer the dispute to the
   Industrial Tribunal or the Labour Court for adjudication vide order dated 14-7-1998. The relevant portion
   of the order reads:

• This appeal filed by the employee is directed against the order dated 10-7-
  2000 of the Delhi High Court declining to interfere with the order of the Government of National Capital
  Territory of Delhi refusing to refer the dispute raised by the appellant to the Industrial Tribunal/Labour
  Court on the sole ground that he is not a “workman” within the meaning of Section 2(s) of the Industrial
  Disputes Act, 1947.
  “All the documents filed and submissions of the parties and the report of the Conciliation Officer
  have been perused and it is found that this is not a fit case for reference to the Industrial Tribunal
  or the Labour Court of Delhi for adjudication for the reasons given below:
  ‘Admittedly, the applicant was designated as Area Sales Executive and performing the duties
  of an Area Sales Executive, as such he is not covered by the definition of “workman” as
  defined under Section 2(s) of the Industrial Disputes Act, 1947.’ ”

3. Feeling aggrieved by the said order the appellant filed the writ petition before the High Court of
   Delhi which was dismissed by order dated 10-7-2000. The said order is under challenge in this appeal.
4. The relevant portion of the impugned order reads as follows:
   “The only reason why the respondent refused to make a reference was that the petitioner who is
   working as an Area Sales Executive is not a workman within the meaning of Section 2(s) of the
   Industrial Disputes Act, 1947. Learned counsel for the petitioner submits that whether he is a
   workman or not should be decided by the Labour Court. A reading of Section 2(s) of the
   Industrial Disputes Act makes it quite clear that an officer appointed as an Area Sales Executive
   cannot be considered to be a workman within the meaning of Section 2(s) of the Act. Dismissed.”
5. From the order passed by the State Government and the order of the High Court it is clear that the
   sole reason for declining to refer the dispute relating to discharge/termination of the appellant’s service
   for adjudication to the Industrial Tribunal or the Labour Court is that he is not a “workman” within the
   meaning of Section 2(s) of the Act. To put it differently, since the appellant was holding the post of Area
   Sales Executive at the time of termination of service he was not a workman as defined in Section 2(s) of
   the Act. The order of refusal of reference of the dispute was passed by the respondent in exercise of the
   power under Section 10(1) read with Section 12(5) of the Act.
6. The question that arises for consideration is whether on the facts and circumstances of the case the
   State Government was right in rejecting the appellant’s request for a reference and thereby nipping the
   proceeding at the threshold. Is it a just and proper exercise of the jurisdiction vested under the statute?
7. Shri S. Prasad, learned counsel appearing for the appellant strenuously contended that the State
   Government committed error in declining to refer the dispute to the Industrial Tribunal/Labour Court for
   adjudication merely going by the designation of the post held by the appellant. According to him the
   appellant was performing multifarious duties which came within the purview of the definition of the
   expression “workman” in Section 2(s) of the Act and the nature of his duties did not come within any of
   the exceptions provided in the said section. Shri Prasad also contended that the question whether the
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   appellant was a workman within the meaning of Section 2(s) or not involves inquiry into facts which
   could not be finally decided by the State Government while exercising the power under Section 10(1) of
   the Act. Shri Prasad further submitted that the State Government should have referred the matter to the
   Industrial Tribunal/Labour Court for adjudication of the dispute including the question whether the
   respondent was a “workman” within the meaning of Section 2(s) of the Act.
8. Per contra, Shri V.R. Reddy, learned Senior Counsel appearing for the employer M/s Usha
   International Ltd. contended that in the facts and circumstances of the case the State Government was
   right in refusing to refer the dispute to the Industrial Tribunal/Labour Court for adjudication. According to
   Shri Reddy, on the materials produced by the appellant himself in the conciliation proceedings it is clear
   that he did not come within any of the categories of employees mentioned in the first part of Section 2(s)
   of the Act, and therefore, he was not a “workman” as defined in Section 2(s).
9. Shri B.A. Mohanty, learned Senior Counsel appearing for the Government of National Capital
   Territory of Delhi, Respondent 1 herein, supported the order of the State Government refusing to refer the
   dispute to the Industrial Tribunal/Labour Court. He contended that under Section 10(1) of the Act it was
   for the appropriate government to take a decision whether the dispute raised was an “industrial dispute” as
   defined in Section 2(k) of the Act, for which it was necessary to ascertain whether the dispute was
   between the employer and the workman. According to Shri Mohanty it was absolutely necessary for the
   Government to satisfy itself whether the appellant was a workman within the meaning of Section 2(s) of
   the Act, and that was done by the authority in the case. Therefore, the order did not call for any
   interference by the High Court and the writ petition filed by the appellant was rightly dismissed.
10. In sub-section (4) thereof it is laid down that if no such settlement is arrived at, the Conciliation
    Officer shall, as soon as practicable after the close of the investigation, send to the appropriate
    government a full report setting forth the steps taken by him for ascertaining the facts and circumstances
    relating to the dispute and for bringing about a settlement thereof, together with a full statement of such
    facts and circumstances, and the reason on account of which, in his opinion, a settlement could not be
    arrived at.
11. It was not disputed before us that the jurisdiction vested in the appropriate government to make a
    reference or refuse to do so is administrative in nature and depends on the opinion formed by it on perusal
    of the report and the materials received from the Conciliation Officer. The question on answer of which
    the decision in this case depends is, what is the scope and extent of the power to be exercised by the
    appropriate government in such a matter?
12. On a fair reading of the provisions in Section 2(s) of the Act it is clear that “workman” means any
    person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or
    supervisory work for hire or reward including any such person who has been dismissed, discharged or
    retrenched.
13. The latter part of the section excludes 4 classes of employees including a person employed mainly
    in a managerial or administrative capacity, or a person employed in a supervisory capacity drawing wages
    exceeding Rs 1600 per month or exercises functions mainly of a managerial nature. It has to be taken as
    an accepted principle that in order to come within the meaning of the expression “workman” in Section
    2(s) the person has to be discharging any one of the types of works enumerated in the first portion of the
    section. If the person does not come within the first portion of the section then it is not necessary to
    consider the further question whether he comes within any of the classes of workmen excluded under the
    latter part of the section. The question whether the person concerned comes within the first part of the
    section depends upon the nature of duties assigned to him and/or discharged by him. The duties of the
    employee may be spelt out in the service rules or regulations or standing order or the appointment order
    or in any other material in which the duties assigned to him may be found. When the employee is
    assigned a particular type of duty and has been discharging the same till the date of the dispute then there
    may not be any difficulty in coming to a conclusion whether he is a workman within the meaning of
    Section 2(s). If on the other hand the nature of duties discharged by the employee is multifarious then the
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    further question that may arise for consideration is which of them is his principal duty and which are the
    ancillary duties performed by him. In such a case determination of the question is not easy at the stage
    when the State Government is exercising the administrative jurisdiction vested in it for the limited
    purpose of satisfying itself whether the dispute raised is an industrial dispute within the meaning of
    Section 2(k) of the Act. While deciding the question, designation of the employee is not of much
    importance and certainly not conclusive in the matter as to whether or not he is a workman under Section
    2(s) of the Act.
14. Testing the case in hand on the touchstone of the principles laid down in the decided cases, we
    have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of
    reference passed by the State Government merely taking note of the designation of the post held by the
    respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types
    of duties assigned to or discharged by the employee and not merely on the designation of the post held by
    him. We do not find that the State Government or even the High Court has made any attempt to go into
    the different types of duties discharged by the appellant with a view to ascertain whether he came within
    the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the
    designation of the post held by him, which is extraneous to the matters relevant for the purpose. From the
    appointment order dated 21-4-1983/ 22-4-1983 in which are enumerated certain duties which the
    appellant may be required to discharge it cannot be held therefrom that he did not come within the first
    portion of Section 2(s) of the Act. We are of the view that determination of the question requires
    examination of factual matters for which materials including oral evidence will have to be considered. In
    such a matter the State Government could not arrogate on to itself the power to adjudicate on the question
    and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby
    terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or
    the Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection
    order passed by the State Government is clearly erroneous and the order passed by the High Court
    maintaining the same is unsustainable.
15. Accordingly, the appeal is allowed. The Government of National Capital Territory of Delhi,
    Respondent 1 herein, is directed to refer the dispute raised by the appellant including the question whether
    the appellant is a workman under the Act, to the Industrial Tribunal/Labour Court for adjudication.