Bombay High Court
C. Gupta vs Glaxo Smithkline Pharmaceutical Ltd. on 17 October, 2003
Equivalent citations: [2004(101)FLR1109], (2004)ILLJ952BOM
Author: R.S. Mohite
Bench: H.L. Gokhale, R.S. Mohite
JUDGMENT R.S. Mohite, J.
1. Both these appeals seek to quash and set aside a common judgment and order passed in Writ Petition No. 462 of 1995 and Writ Petition No. 695 of 1996 decided by a learned single Judge on April 13, 1999.
2. The brief relevant facts of the case are as under:
(a) That on August 4, 1976 Glaxo Laboratories (India) Ltd., (hereinafter referred to as the "said Company") which has now been taken over by the present respondent No. 1 (Glaxo Smithkline Pharmaceuticals Ltd.) indicated their intention to advertise the post of "Industrial Relations Executive". Since members of the staff who fell in the category of "Management Staff Grade-III" were also entitled to apply for the vacant post which fell in "Management Staff Grade-II" an advance staff notice was also taken out by the company. The same incorporated the text of the advertisement which was to follow. The relevant part from the advertisement which pertains to the duties required to be performed by the selected candidate was as follows:
"The selected candidate will advise the Corporate Personnel Department and through it, various establishments of the company on all matters relating to Labour Laws, prepare various applications and claims and appear selectively before Labour authorities such as Conciliation Officers, Labour Courts and Industrial Tribunals.
An important aspect of the job will be to assist the I.R. Manager in developing the framework for settlements and in dealing with Unions.
This is a challenging job with a span of advice extending to three factories, four branches and fifteen up-country depots. The prospects for a results-oriented man are excellent.
Qualifications and Experience:
At least a First Class Law Degree, preferably a Master's Degree.
Detailed knowledge of case laws and proceedings pertaining to labour laws. Three to five years' experience of litigation before Labour Courts, Industrial Tribunals and other authorities.
Ability to get on with people. Age: Around 30 years."
(b) In pursuance of the advertisement given, the present appellant Mr. Chandra Gupta applied for the post of "Industrial Relations Executive" on October 5, 1975.
(c) On March 17, 1977 the Company issued a letter offering an appointment to the appellant as "Industrial Relations Executive". This letter mentioned that the appellant would be a member of the Management Staff in Grade II-A and that the appointment would take effect from the date of the appellant joining the company, which was required to be earlier than June 18, 1977. Though the terms and conditions of appointment were contained in this appointment letter the exact nature of duties and functions to be performed were not laid down therein.
Clause 17 of the appointment letter provided for termination of the appointment and was in the following terms:
"The company may, at any time and without assigning any reason, terminate this appointment upon giving not less than three months' notice in writing or salary in lieu thereof."
(d) In pursuance of the appointment letter, the appellant joined services of the Company on July 13, 1977.
(e) On September 15, 1982, vide a termination letter dated September 15, 1982, the services of the appellant came to be terminated from the close of business on that day. The said termination was made in pursuance of Clause 17 of the letter of appointment dated March 17, 1977 on the ground that the services of the petitioner were no longer required.
(f) Being aggrieved by his termination, the appellant attempted to get his grievance redressed through the Deputy Commissioner of Labour (Conciliation) but the Conciliation failed and ultimately the Deputy Commissioner of Labour (Conciliation) by his Order of Reference No. CL/IDE/AJD/2A/G-772(84) referred the matter for adjudication.
(g) Consequently, in 1985, the present appellant filed his statement of claim in the Reference Court being the First Labour Court at Bombay. In his statement of claim for the reasons mentioned therein, the appellant claimed to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 as his work was of "skilled, technical and clerical nature, apart from it being operational". He claimed that termination of his services were illegal, invalid and void on account of non-compliance of the provisions of Section 25-N of the Industrial Disputes Act, 1947 inasmuch as no notice or retrenchment compensation had been paid to him. He also contended that Clause 17 of the letter of appointment dated March 17, 1977 was illegal in as much as it was against the provisions of Articles 14 and 21 of the Constitution of India and was void as ultra vires Section 23 of the Indian Contract Act. He sought the prayer of reinstatement in service with full back wages with continuity of service and all other attendant benefits.
(h) In the reference, the company filed its written statement which was signed and affirmed on August 8, 1985. In the written statement the company denied that the appellant was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. It was denied that the termination of his services was illegal for non-compliance of provisions of Section 25-N of the Industrial Disputes Act, 1947 or that it violated any provisions of Constitution or Section 23 of the Contract Act.
(i) Both parties led evidence in the reference before the Labour Court. The appellant led his own evidence and on behalf of the Complainant the evidence of one R.P. Bharucha who was then the Director of the Family Products Division of the Company, who had been the Central Personal Manager of the Company at the time when the appellant had been appointed and had been the Chief Personnel Manager of the Company on the date of the Appellant's termination was led. Both parties produced and relied upon documentary evidence in support of their claim.
(j) Ultimately, by an award passed by the Presiding Officer, First Labour Court, Bombay on October 31, 1994, for the reasons stated therein, the claim of the appellant was allowed and he was directed to be reinstated in service with continuity in service w.e.f. December 11, 1982 to November 30, 1989 with all consequential benefits including pay revision if any. It was however, held that the appellant would not be entitled for any back wages from November 30, 1989 till the date of the award and would not be entitled for any relief of future reinstatement from the date of the award though he would be entitled for compensation of Rs. 50,000 in lieu thereof.
(k) Both the appellant as well as the Company filed Writ Petitions in this Court against the aforesaid award dated October 31, 1994 passed by the Presiding Officer, First Labour Court, Bombay. The Company filed Writ Petition No. 462 of 1995 and the appellant filed Writ Petition No. 695 of 1996. Since both the writ petitions impugned the same award, they were heard and disposed of by a common Judgment and order delivered by the learned single Judge of this Court on April 13, 1999. By this Judgment and order the learned single Judge of this Court was pleased to hold that the appellant could not be said to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Notwithstanding his conclusion that the appellant was not a workman, and that the Industrial Court would not have any jurisdiction to decide the dispute, the learned single Judge further dealt with the merits of the matter and arrived at the conclusion that the Company had ample reason to resort to Clause 17 of the appointment letter and terminate the appellant. Ultimately the learned single Judge made rule absolute in Writ Petition No. 462 of 1995 filed by the Company and dismissed Writ Petition No. 695 of 1996 filed by the present appellant, thus quashing the award of the Labour Court dated October 31, 1994.
(l) It is against this Judgment and order passed by the learned single Judge, the Appeal No. 1379 of 1999 came to be filed by the appellant. As the office raised a technical objection to the effect that two appeals would have been filed because the impugned Judgment and order was a common Judgment and order in two writ petitions, the appellant subsequently filed Appeal No. 170 of 2000 which also impugnes the same Judgment and order passed by the learned single Judge.
3. The main contention pressed on behalf of the appellant was that the appellant was a qualified legal person. The principal nature of his duties, work and functions were to advice the management of the company. This work required knowledge of law, techniques of interpretation, creativity in formulating legal opinions and views in matters arising out of the affairs of the company for onward submission to the management for its consideration. In view of these functions and duties which were his main work, the petitioner must be said to be employed to do "technical work" within the meaning of the first part of Section 2(s) of the Industrial Disputes Act, 1947. In this regard it was further contended that insofar as the reference to the Labour Court was made in the year 1985 [After Section 2(s) of the Industrial Disputes Act was amended in 1984 delinking the words "skilled" & "Unskilled" from the word Manual and by adding the word "operational"] the nature of the work done by the appellant must be judged under the amended provisions of Section 2(s) of the Industrial Disputes Act, 1947. It was therefore, contended that the appellant would also become a workman because the nature of his work could also be said to be "skilled and/or operational". It was further contended that in any case the nature of the work done by the appellant could not be said to be "mainly in the managerial or administrative Capacity" as the management was not duty bound to accept his opinions or advice and could discard the same. That he had no powers associated with management such as appointment, sanctioning of leave or dismissal of employees. That therefore, the learned single Judge had erred in applying exemption-Ill in the 2nd part of the definition of the workmen under Section 2(s) of the Industrial Disputes Act, 1947. It was therefore submitted that impugned Judgment and order passed by the learned single Judge was erroneous in law and deserved to be quashed and set aside.
4. On behalf of the respondent No. 1 in both the appeals, it was contended that there was no error in the impugned Judgment and order. It was contended that the amended provisions of Section 2(s) of the Industrial Disputes Act, 1947 had no relevance to the facts of the case and the question as to whether the appellant was a workman would have to be decided with reference to the un-amended Section 2(s) of the Industrial Disputes Act, 1947 as the services of the appellant had been terminated on August 15, 1982 i.e. much prior to the amendment being brought into force w.e.f. August 21, 1984, which would only operate prospectively. It was contended that under the unamended definition of workmen, it was not enough that the workmen should be skilled as the word skilled was linked to the word 'manual' while describing the kind of work. It was further contended that the question as to whether the work was operational was irrelevant as the word operational did not occur in the earlier unamended provisions of Section 2(s) of the Industrial Dispute Act. It was contended that from the record, the work of present appellant could not be said to be "technical' work. In any case the work, duties and functions of the appellant clearly indicated that the work was mainly "managerial" in nature. It was thus contended that the learned single Judge had rightly held the appellant not to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and was right in allowing the Writ Petition filed by the Company and dismissing the Writ Petition filed by the present appellant.
5. Before we decide the question raised as to whether the appellant is a workman within the meaning of Section 2(s) of Industrial Disputes Act, 1947 and is entitled to the benefits claimed by him, it would be necessary to first decide the provision of law applicable, since there is a dispute between the parties regarding this issue. The respondent-company claims that the definition of the workman as existing on the date of the termination i.e. September 15, 1982 will govern the same. However, the appellant claims that it is only the amended definition of workman contained in Section 2(s) of the Industrial Disputes Act as amended w.e.f. August 21, 1994 that would be relevant for deciding the question in issue. This contention on behalf of the appellant is made on the footing that the dispute between the parties can be said to have arisen only in 1985 when the appellant filed his statement of claim in the Labour Court, thus setting a reference in motion. As to why the rival parties have raised this dispute relating to law applicable, can be better understood if the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947 which existed before August 21, 1984 and the amendment which was brought into effect w.e.f. August 21, 1984 are set out to bring out the differences. The two definitions of the word 'workman' were as under:
"(a) Section 2(s) as it stood prior to August 21, 1984 - "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;
(ii) who is employed in the police service or as an officer or. other employee of a prison;
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) 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.
(b) Definition of workman as it stood after amendment w.e.f, August 21, 1984 -'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);
(ii) who is employed in the police service or as an officer or other employee of a prison;
(iii) who is employed mainly in a managerial or administrative capacity;
(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."
6. The obvious difference between the earlier definition and the subsequent amended one is that earlier the words "skilled" and "unskilled" were linked with the word "manual" and that the word "operational" did not find any place in the definition. The other differences do not concern us in the facts of the present case. If we conclude that the unamended old definition of "workman" would govern the facts of the present case then we are not required to take into consideration the fact that the appellant was "skilled" as admittedly he was not doing manual work, similarly we are also not required to go into the question if the workman was doing "operational work" as the said kind of work was not contemplated in the old definition of the term workman. On the other hand, if we hold that the amended definition of the term 'workman' governs the facts of this case then we would be required to go into the question whether the work done by the appellant could be said to be "skilled" or "operational".
7. In this regard we have perused the detailed findings of the impugned Judgment in which learned single Judge has concluded that it would be the unamended old definition of the term 'workman' existing prior to August 21, 1984 and which was in force on the date of termination of the services of the appellant i. e. on September 15, 1982 which would govern the facts in the present case. On perusal of the reasons, we find that the same are cogent, acceptable and without any error in law. However, we would briefly like to set out reasons in this regard.
8. Some of the principles and tests laid down by the Apex Court for deciding whether an amendment is prospective or retrospective are as follows:
(a) Any amendment affecting the legal rights of an individual must be presumed to be pr'ospective unless it is made expressly clear or by necessary implication that it is retrospective - See Municipal Corporation for the City of Poona v. Bijlee Products (India) Ltd. .
(b) An amendment which impairs or imperils a substantive right is not retrospective unless it says so expressly or by necessary intendment - See State of Bombay v. Supreme General Films Exchange Ltd. .
(c) An amending Act which affects the procedure is presumed to be retrospective unless the amending Act provides otherwise - See Shyam Sunder v. Ram Kumar .
(d) If the amendment was intended to supply an obvious omission or to clear up doubts as to the meaning of a word and is thus declaratory or clarificatory then it would be retrospective in nature See CIT v. Podar Cement (P.) Ltd. .
(e) If the amending Act uses the expression "the words & figures shall be substituted" and do not say "that they will always be deemed to have been substituted" would be indicative that the amendment is prospective- See Excel Wear v. Union of India . (f) If there is a positive provision in the amending Act to the effect that the amendment must be deemed to have come in effect on a particular date, it is a pointer to the amendment being prospective - See State of Madhya Pradesh v. Rameshwar Rathod .
9. In the present case we find that the nature of amendment is one which clearly affects the legal rights of individual workers insofar as it is only if they fall within the definition that they would be entitled to claim several benefits conferred by the Industrial Disputes Act. The amendment is also one which would touch upon their substantive rights. Therefore, by the application of the tests mentioned above, it is clear that the definition of workman as amended must therefore be presumed to be prospective unless there is a clear provision to the effect that it is retrospective or such retrospectivity can be implied by necessary implication or intendment. We find no such clear provision or anything to suggest necessary implication or intendment either in the amending Act or in the amendment itself. The Amendment cannot be said to be one which affects procedure. Insofar as the amendment substantially changes the scope of the definition of the term 'workman', it cannot be said to be merely declaratory or clarificatory. In this regard we find that entirely new category of persons who are doing "operational" work was introduced first time in the definition and the words "skilled" and "unskilled" were made independent categories unlinked to the word "manual". It can be seen that the Industrial Disputes (Amendment) Act, 1984 was enacted by Parliament on August 31, 1982. However, the amendment itself was not brought into force immediately and in Sub-section (1) of the amending Act it was provided that it would come into force on such day as the Central Government may by notification in the Official Gazette, appoint. Ultimately by a Notification the said amendment was brought into force on August 21, 1984. Although the Apex Court has held that the amendment would be prospective if it is deemed to have come into effect on a particular day a provision in the amendment Act to the effect that amendment would become operative in the future, would have similar effect.
10. Learned counsel for the Appellant however, contended that amendment would operate retrospectively. He placed reliance upon the Judgment of the Apex Court in the case of Rustom & Hornsby (I) Ltd. v. T. B. Kadam . In that case the respondent was a watchman in the factory of the appellant company. After domestic enquiry he was dismissed from service on January 7, 1964. Section 2-A of the Industrial Disputes Act came into force on December 1, 1965 and on June 23, 1967 a reference was made by the Government of Maharashtra regarding the dismissal of the respondent to the Labour Court. The contention on behalf of the appellant-company was that since Section 2-A of the Industrial Disputes Act had come into force on October 1, 1965 i.e., after dismissal of the workman, the reference of the dispute under Section 10 of the Industrial Disputes Act read with 2A was bad in law. It was argued that this would amount to giving retrospective effect to the provision of Section 2-A. On these facts it was held by the Apex Court that a case did not involve any question of giving retrospective effect to Section 2-A to enable the making of a reference under Section 10. Section 2-A was a deeming Section which used the words "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman". That these words did not deal with the question as to when that was done. It referred to a situation or a state of affairs and thus where there was a discharge, dismissal, retrenchment or termination of service otherwise, the dispute relating to such discharge, dismissal, retrenchment or termination was deemed to become an industrial dispute. In our view, the Judgment of the Apex Court in the case of Ruston & Hornsby (I) Ltd. turned on a different set of facts and circumstances where the issue was not the same as in the present case. In any case, the Apex Court even in that case categorically observed that there was no question of giving retrospective effect to Section 2-A.
11. The counsel for the appellant further relied upon a Judgment of the Gujarat High Court in the case of R.G. Makwana v. Gujarat State Road Transport Corporation 1987-I-LLJ-172. The facts of that case were also different. The workman in question had been dismissed on June 30, 1981. As the said workman was in the supervisory category, it was further necessary under the unamended Section 2(s) that he should be earning a salary of less than Rs. 500 per month. The workman was in fact earning Rs. 1,500 per month and was therefore, liable to be excluded from the definition of workman. On August 1, 1981, a Gujarat amendment to Section 2(s) of the Industrial Disputes Act was brought into force and under this amendment the words Rs. 500 then occurring in Section 2(s)(iv) came to be substituted by Rs. 1,600. The dispute relating to termination was referred by the Government in 1982 and the Labour Court, Rajkot by its award dated February 6, 1985 rejected the reference on the preliminary ground that the petitioner was not a workman as defined under Section 2(s) of the Industrial Disputes Act. This order of the Labour Court was challenged in the Gujarat High Court and the Gujarat High Court quashed and set aside the impugned Judgment of the Labour Court on the ground that insofar as the State of Gujarat was concerned, the amendment to the definition of workman had come into effect much prior to the making of the reference. In the Judgment of the Division Bench of the Gujarat High Court the question as to whether Section 2(s) as amended by Act 46 of 1982 was prospective or retrospective in its operation was not specifically dealt with. No doubt it was further argued before the Gujarat High Court that even if Gujarat amendment to Section 2(s) had already come into force w.e.f. August 1, 1981 even then no valid reference could have been made as the petitioner's services had been terminated on June 30, 1981 i.e. at a point of time when the Gujarat amendment to the definition of workman had not come into force and therefore, the petitioner in that case was not a workman at least on the date that his services were terminated. That contention was negated by the Division Bench of the Gujarat High Court on the footing that on the date of the reference, the petitioner therein fell within the definition of the workman as existing on the date of the reference. We have however, given our reasons as to why Section 2(s) as amended by (Act 46) 1982 can only be prospective and cannot be said to be retrospective in its operation. Once this is accepted, then in our view, the definition of the word 'workman' as prevailing on the date of termination must be taken to be the touchstone to decide a dispute.
The definition of the term 'workman' as existing on the date of the reference would have no bearing on the issue required to be decided. To this extent, we cannot agree with the conclusion of the Division Bench of the Gujarat High Court to the effect that the definition of the word "workman" as existing on the date of the reference would be the definition which would have to be applied.
12. In this regard we would like to give one further reason as to why the definition of workman as prevailing on the date of dismissal should be taken into account. When a workman is dismissed it is usually contended (as has been done in the present case) that the relevant conditions precedent for retrenchment under Section 25-N having not been followed and that therefore, the termination is illegal. Section 25-Q of the Industrial Disputes Act, 1947 lays down that contravention of the provision of Section 25-N shall be punishable with imprisonment for a term which may extend to one month or with fine which may extend to Rs. 1,000 or with both. It is therefore, clear that on the date of dismissal, the employer must act according to the then prevailing provision of law. It is only in respect of a workman who is then within the definition of Section 2(s) of the Industrial Disputes Act, 1947 that the employer is required to follow the condition mentioned in Section 25-N, failing which he will commit an offence. If the employee so dismissed, later becomes a person who is a workman within an expanded definition brought about by a subsequent amendment held to be of retrospective nature, the employer will be rendered punishable for an offence under Section 25-Q as this would amount to the employer being punishable for an offence, which he could not have envisaged on the date of dismissal. This would be violative of Article 20(1) of the Constitution of India.
13. For all these reasons we agree with the Judgment of the learned single Judge that unamended definition of workman under Section 2(s) of the Industrial Dispute must be taken into consideration while deciding the present dispute.
14. Having decided this question, we must record that it has not been argued before us that the appellant was doing "clerical", "manual"
or "supervisory work". The only contention raised was that the appellant was doing "Technical work". On behalf of the appellant it was contended that the term "technical work"
must be given a wide meaning as being any work which requires any kind of technique. It was contended that work beyond the field of science such as in the field of Arts or profession must also fall within the definition of "technical work". However, on behalf of the company, it was contended that the term "technical work"
must be held to have affinity to technology and science and should be given a narrower meaning.
15. In this context, on a wider canvass, Mr. Deshmukh, learned counsel appearing for the appellant as well as Mr. Rele, learned counsel appearing for the Respondents, have, both referred to the judgment of the Apex Court in Burmah Shell Oil Storage & Distributing Co. Ltd. v. Burmah Shell Management Staff Association . The question considered by the Apex Court was as to: whether certain categories of employees including that of a Transport Engineer would fall within the definition of a "workman" under Section 2(s) of the Industrial Disputes Act, 1947. The definition as it then stood defined a workman to mean a person employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire. The second part of the definition excluded four categories from the first part which were as follows
(i) persons subjected to the Army Act or the Air Force Act or the Navy (Discipline) Act;
(ii) persons employed in the police service or in the service of a prison;
(iii) persons employed mainly in a managerial or administrative; capacity;
(iv) persons employed in a supervisory capacity drawing wages exceeding Rs. 500 per month or those exercising functions mainly of a managerial nature.
16. As seen from paragraphs 4 and 5 of the judgment, Mr. Chari, learned counsel appearing for the Employees' Association, had put forward the argument "that this definition is all comprehensive and contemplates that all persons employed in an industry must necessarily fall in one or the other of the four classes mentioned above and, consequently, the Court should proceed on the assumption that every person is a workman; but he may be taken out of the definition of "workman" under the four exceptions contained in the definition", the Apex Court has in terms stated: "We are unable to accept this submission." Thereafter the Court has given its reasons in the following words 1970-II-LLJ-590 at p. 595:
"6..... 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."
Thereafter the Court has given the example of a person employed in canvassing sales for an industry and then observed that he would not fall in the four categories in the first part, namely manual, supervisory, technical or clerical. He would still be an employee of the industry and yet would not be a workman. Mr. Rele learned counsel appearing for the respondents, submitted on the same analogy that a Personal Relation Manager is not a workman since he does not fall in any of the four categories falling in the first part of the definition. This is because the work done by him is not manual, supervisory, technical or clerical, but it is overwhelmingly advisory/ managerial. Therefore, there is no need to resort to the four exceptions in the second part. It is not necessary that it should be first shown by the employer that the employee falls in one of these four categories of the first part and then goes out because he is mainly in a managerial capacity. According to him, the Appellant does not fall in the first part at all.
17. In this judgment, the Court dealt with the second aspect, namely where the employees are employed to do work of more than one of the kinds mentioned in the definition. Thereafter the Court has observed by stating that 1970-II-LLJ-590 at p. 596:
"7..... In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of "workman" under the exceptions. The principle is now well-settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work....."
18. In paragraph 10 of the judgment, the Apex Court referred to the judgment of HOUSE OF LORDS in the case of Jaques v. Owners of Steam Tug Alexandra 1921 2 AC 319. That judgment quoted a similar principle indicated by LORD WRENBURY in the following words:
"The question to be answered I think is this : When the employer offered and the man accepted the employment, was it substantially an offer of manual labour although it involved some other work, or was it an offer of other work although there was attached to it an obligation to do some manual labour? To put this particular case: Was the employment that of master of the tug with the duties and responsibilities attaching to that Office but coupled with an obligation to take part with the crew in the manual work, or was the employment that of a manual labourer who was to be responsible for the tug as senior man among the crew?"
Mr. Rele, therefore, submitted that the terms of employment and the purposes for which the Appellant was appointed have got to be seen and it has to be noted as to what was the principal expectation from him.
19. Thereafter in paragraphs 12 and 13 of the judgment, the Apex Court examined as to whether the Transport Engineer could be considered to be a workman on the facts of the case. At the end of paragraph 12, the Court noted that on the facts of the case, the major part of his duties consist of supervisory work rather than personal technical work, which was only incidental to the main work of repair, servicing, maintenance and fabrication. In paragraph 13, the Apex Court observed that in spite of these facts, the Tribunal had held the Transport Engineer to be a workman on the ground that he was employed because of his technical knowledge. The Court then observed:
"It appears to us that, in giving this decision, the Tribunal misdirected itself. Even if the Transport Engineer uses his technical knowledge, it is used primarily for the purpose of supervising the work done by the skilled manual labourers who carry out the actual repairs, do the servicing or maintenance or complete the fabrication."
20. In paragraph 14 of the report, the Apex Court noted the submission of Mr. Chari on behalf of the Association that whenever the technical man is employed in an industry, he must be held to be an employee to do the technical work and if he gave any advice to other workmen, it must be held that he is doing technical work and not supervisory work. Again on this submission, the Apex Court observed:
"We are unable to accept these submissions. The argument that, if we hold that supervisory work done by a technical man is not employment to do technical work, it would result in only manual work being held to be technical work, is not at all correct...."
Thereafter the Court referred to five examples of duties different from manual labour, though incidentally involving manual work as mentioned in Appeal of Gardener: In re 1938 1 All ER 20. The fifth category therein was:
"(e) If the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special, mental or artistic faculty or the application of specific knowledge as distinguished from manual dexterity."
21. Thereafter the Court observed:
"The example (e) given above, very appropriately applies to the case of a person employed to do technical work. His work depends upon special mental training or scientific or technical knowledge. If the man is employed because he possesses such faculties and enable him to produce something as a creation of his own, he will have to be held to be employed on technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work."
Thus, here the Court has explained as to how to decide whether the person is supposed to be doing manual, technical or supervisory work where these activities overlap. In that context, it is observed that the work of giving advice and guidance cannot be held to be an employment to do technical work. Therefore, if an employee's predominant work is advising and guiding (his subordinates), his work will be mainly supervisory.
22. There was much discussion on the last sentence appearing in the above paragraph where the Court held that the work of giving advice and guidance cannot be held to be an employment to do technical work. It is this view which is adopted by the Gauhati High Court.
23. In Pabbojan Tea Co. v. Labour Court, Assam 1977 LAB IC 721 (DB), a practising lawyer was employed by a Tea Company as Welfare and Labour Officer and was subsequently re-designated as Personnel Officer and then as Personnel Manager. The Gauhati High Court held that since he was mainly appointed for giving advice on industrial relations, industrial matters and labour laws, he would not come within the definition of "workman" under Section 2(s) at all and his work of giving advice and guidance could not be held to be an employment to do a technical work on the ground that he possessed expert knowledge on labour and industrial matters. The Court held that even if some of the work done by such a person like drafting circulars, letters or conducting cases in Labour Court or Tribunal could be regarded as technical work, that would not change the nature of his appointment. In that connection, the High Court observed as follows:
"As already noticed, the conclusion of the Labour Court that the respondent is a "workman" rests on the premises that he was appointed mainly for the purpose of giving advice on industrial relations on industrial matters and labour laws on these matters. The question is whether this conclusion on the premises mentioned above is in conformity with the definition. Evidently, it is not, persons employed in an industry for the purpose of giving advice and guidance are not attracted by the first limb of the definition in Section 2(s). It has been laid down by the Supreme Court in B. S. O. S. & D.Co. v. Burmah Shell Management Staff Association 1971 Lab IC9 (SC) that the work of giving advice and guidance cannot be held to be an employment to do technical work."
24. In the light of what is stated above, we have to examine the submission of Mr. Deshmukh, learned counsel appearing for the appellant, that the appellant was technical person giving technical advice to the management on labour and industrial matters. Mr. Deshmukh submitted that the last sentence of paragraph 14 in the above referred Burmah Shell judgment that the work of giving advice and guidance is not an employment to do technical work has to be seen in the proper context. Even so, what we have to note is that in that matter, the Transport Engineer was found principally supervising the work of subordinate employees and incidentally doing technical work. His work of advising and guiding the subordinate employees could not be held to be technical one. On the same lines, the Gauhati High Court held that the work of advising and providing guidance to the management would not be considered as technical one. The Gauhati High Court had held, as above, in spite of noting that the employee concerned did the work of drafting circulars and conducted cases which could be regarded as technical one.
25. Now what is to be noted is that once it is seen that predominant nature of the activities of the appellant was to provide advice and guidance in industrial matters, his duties would fall overwhelmingly in the managerial cadre, may be in the lower lever thereof. Therefore, he does not fall in any of the four categories mentioned in the first part of the definition and there is no occasion to exclude him under the second part.
26. Let us however, from first principles examine the submission of Mr. Deshmukh to the effect that the appellant possessed a "technique" and was therefore, a "technical person". In WEBSTER'S ENCYCLOPAEDIC UNABRIDGED DICTIONARY the word "technical" is defined as follows:
"belonging to or pertaining to an art, science, or the like, Peculiar to or characteristic of a particular art, science, profession, trade, etc. Using terminology or treating subject-matter in a manner peculiar to a particular field, skilled in or familiar in a practical way with a particular art, trade, etc. as a person."
In CONCISE OXFORD DICTIONARY the word "technical" is defined as follows:
"involving or concerned with the mechanical arts and applied sciences or relating to a particular subject or craft etc. or its techniques."
27. In the case of Metropolitan Borough of Batteries v. British Iron & Steel Research Association 1949 (1) K.B. 434, the question as to what was "technical work" was dealt with by the Court of appeals. Though the consideration of the said term was in the context of deciding as to whether the respondent association could be said to be an association instituted for the purposes of science, the Court of appeal had occasion to deal with the term "technical work" appearing in the memorandum of the respondent-association, JENKINS, J. in his Judgment while dealing with the term "technical work" observed as under:
"Technical work" is, I think, a phrase of substantially wider import than "scientific work". No doubt all scientific work may be said to be "technical" but the converse by no means necessarily applies."
We have referred to the dictionary-meaning as there is no definition of the word "technical" or "technical work" to be found in the Industrial Disputes Act. In the case of Bombay Dyeing & Mfg. Co. Ltd. v. R.A Bidoo 1990-I- LLJ-98 (Bom) a Division Bench of this Court, while expounding on the words "technical" and "technical work" observed as follows at p. 103:
"14... Technical work requires a training or knowledge or expertise of a particular art or science to which that work pertains. It is not difficult to infer from this that a person engaged in a technical capacity must have some knowledge imparted to him or must have acquired some knowledge either by training or by experience to do that particular work. A person who has not been so trained or who has not so acquired the knowledge naturally cannot perform, at least satisfactorily, the work to which he has been assigned. The word 'technical' embraces within itself not only the expertise and competence of a person, but also knowledge and experience relating to the particular work which may be said to be technical work."
Mr. Deshmukh submitted that the plain dictionary meaning as well as the meaning given to the term on authority points to the fact that the term "technical" cannot be restricted to the field of technology and science and could include work in the fields of art and professions. In determining whether the work is "technical" the question as to whether the work could involve application of any technique would be relevant. Mr. Deshmukh further submitted that a Law Officer, who has to formulate opinion in order to give legal advice would have to apply specialised knowledge. The formulation of opinion would also include the use of techniques for the interpretation of the law. Insofar as Gauhati High Court's Judgment is concerned, he submitted that the same is based on an: inaccurate interpretation of the Judgment of the Apex Court in the case of Burmah Shell Oil Storage & Distributing Co. Ltd. (supra). That case does not lay down that the work of giving advice and guidance ipso facto eliminates the employment to be one where the employee is doing technical work. The real ratio in the Burmah Shell case was even if the person had technical knowledge but was doing mainly supervisory work, then he could not be said to be doing technical work within the meaning of Section 2(s). In fact, it was vehemently argued on behalf of the appellant that Gauhati High Court has misinterpreted the ratio of the Judgment of the Apex Court in Burmah Shell case.
28. Assuming for a movement that the duty of the Appellant is technical, the question as to whether he is eliminated due to his duties being mainly managerial assumes importance. A gist of the Appellant's evidence relating to the nature of his duties was to the effect that he was rendering legal clarification on queries to the branch offices of the company and its factories, doing legal audit by checking if the statutory returns had been properly filled up, drafting, pleadings, studying case laws for maintaining a cardex particularly in relation to the pending cases of the company. That on occasions, he used to sanction leave to the stenographer, vouch for the travelling expenses of one Mr. Lobo who was working under him, giving dictation or typing work to the Stenographer, preparing notes from Law Journals, briefing Solicitors and advocates of the company, going through the records of domestic enquiries and notes of evidence led therein, in order to prepare a draft enquiry report for adoption by the enquiry officers, prepare notes of arguments along with relevant case laws and send them to the company's Personnel Executives at different locations. Study new Labour Legislations and attend hearings before the Conciliation officer and occasionally conduct domestic enquiries.
29. In the evidence adduced on behalf of the Company, its director Shri Rustam Padam Bharucha deposed that the duties of the appellant were to represent the company in conciliation proceedings, before Government authorities under the Factories Act, E. S. I. Act, P.F. Act, Contract Labour (Regulation & Abolition) Act, to represent the management as an Enquiry officer or as the management's representative in domestic enquiries, to guide and advise the management's representative in domestic enquiries, to advise him about the line of cross-examination in such enquiries, advise about the quantum of punishment to be inflicted in disciplinary proceedings. To give advice on queries raised by the management pertaining to the interpretation of statutes or settlement with the Unions or regarding enquiries raised by Government authorities, to brief witnesses, to prepare drafts for the perusal of counsel, to brief counsel on facts as well as law, to be present in Court when the arguments were taking place in judicial matters related to the company, to keep in touch with the latest case laws and amendments to the labour Legislations, to ensure that the management fulfilled its obligations under the Labour legislations and to advise the management on provisions of settlement.
30. On behalf of the Appellant it was argued that the record indicated that the duties of the appellant were restricted to the formation of legal opinion and that once such opinion was formed and forwarded to the management, the appellant had no control over further developments or acts of the management. It was contended that the advice and the opinion of the present appellant could be discarded by the management if they so desired. As there was no finality to any such advice or opinion and that the same could be overruled by the advocate of the company. It was contended that the duties being performed by the appellant were really that of a skilled clerk. On behalf of the company this was countered by the evidence of the company's Director Shri R.P. Bharucha in the following terms:
"That the position occupied by Mr. Gupta was a Senior Management position and involved representing the Management's interests not only as regards workmen but also before various statutory authorities, judicial and quasi-judicial bodies. He was also expected to formulate strategy, conduct litigation by briefing and assisting counsel, advise and guide branches and factories in all matters connected with personnel which were referred to him. That the purpose of his employment was mainly managerial and/or administrative and/or supervisory, and his work was neither skilled nor clerical nor technical nor operational. That Mr. Gupta's total monthly emoluments at the time of his appointment were Rs. 4,255 (including pro rata Leave Travel Concession) as opposed to Rs. 2,575 per month, which were the highest emoluments paid to non management staff at the time when he was appointed. Similarly at the time of his termination, his total emoluments were Rs. 5,137 as opposed to Rs. 2,816 per month payable to the highest paid non management staff employee. He was entitled to and enjoyed several perquisites like Holiday Scheme, Pension benefit, use of Management Staff Canteen etc. to which only management staff are entitled and workmen are not. Conversely, only workmen were entitled to the benefits of the settlement under the Industrial Disputes Act. At the time of Mr. Gupta's service. Mr. Gupta was not entitled to any of the benefits of the settlements concerning workmen. He was also not required to sign the muster roll/punch in, as workmen are required to do. He was notified as a Manager under the Standing orders and empowered to exercise all powers thereunder. That like all other Management staff, Mr. Gupta's services were transferable, within the Department, outside the Department and outside Bombay to any other establishment of the company management staff in grade II and above.
That for the purposes of carrying out his Managerial duties he was also provided with stenographer and clerical assistance. Since these employees worked under him, he appraised them in the merit rating form in his capacity as their superior. All expenses vouchers of these employees were also sanctioned by him and would be paid only if they bore his signatures and endorsement as having authorised and approved the expenditure. He also sanctioned their leave. As Management Staff Grade II, he was also empowered to authorise payments of substantial amounts for various purposes enumerated in the then current expenditure Control Procedure. This procedure was given to all concerned Managers, including Mr. Gupta. That the personal Executive at the various Branches of the company were junior in grade II (sic) to Mr. Gupta, being in Grade III, when Mr. Gupta represented the company before various conciliation officers and other quasi judicial authorities at Branches and locations, the responsibility to present the case properly was his. He would be accompanied by the local personnel officer, who was in a lower grade than him, for assistance on points of facts."
31. On taking into account, the duties and functions performed by the appellant, we have no hesitation in holding that he was clearly a part of the managerial process of the company insofar as his work was used as tool and aid by the management for a proper conduct of the business of the company. It is clear from the evidence that the job of the present appellant was to secure the interest of the management. At all times his efforts were meant to be channelised in order to ensure that the management of the company was performed along proper legal lines. We cannot accept the contention advanced on behalf of the appellant that the advice of the appellant was not worth anything as it could be discarded. In the case like this, it must be presumed that the company employed the appellant and sought his advice on the footing that the advice would be normally accepted. Apart from advising the management of the company it is clear from his own admissions that the appellant was given independent work which can only be deemed to be managerial in nature. It is evident that the company had emphasized the managerial nature of the appellants work right from the very beginning. The staff Notice dated August 4, 1987 itself mentioned that the selected candidates would have to appear before the Labour authorities such as conciliation officers. Labour Courts and Industrial Tribunals. An important aspect of the job would be to assist the I.R. Manager in developing the framework for settlements and in dealing with unions. It was specifically mentioned that the post was in management staff Grade-11. The designation of the post also was "Industrial Relations Executive". Of course, we are aware that in deciding the status of his employment his designation is not decisive and what should be really relevant is the nature of the duties and the powers conferred upon the employee. This has been held by the Apex Court in several cases See Hussan Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board . Management in a huge company is a complex business which requires various levels of managerial staff. It appears from the record that the present appellant was in Grade-II of the managerial staff. There were several Grades in the Management staff below him. He himself has admitted in his evidence that even apart from the giving of advice to the management from time to time, he had other independent functions such as preparing draft enquiry report in domestic enquiry and conducting domestic enquiries. In our view, these were duties pertaining of the maintenance of discipline amongst the employees which is a part and parcel of the managerial process of the company. In his cross-examination he admitted that he had carried out legal audits in all the four branches and 14 to 15 departments all over the country and the factory of the company is at Aligarh and Worli; that there were occasions that he briefed the management witnesses at enquiries and it was part of his duties to hold conferences with the advocates in relation to the company's cases. He admitted that he was an employee under the category of management staff and therefore, his conditions of service was different than those provided under the settlements governing the workers of the company. He admitted that the leave benefits given to him were not those applicable to the workers under the settlement. He admitted that he was covered under the Pension Scheme which did not apply to the workers coming under the settlement. He admitted that he was notified as a Manager under the Standing orders which were produced by the Company in evidence and marked at Exhibit-(U-15). We thus have no hesitation, in holding that the Appellant as mainly employed in a managerial capacity and would stand excluded from the definition of the term 'workman' under Section 2(s) of the Industrial Disputes Act, even if he could be said to be doing technical work. Thus we are of the view that the appellant was not a workman as his work did not fall in the first part of the definition. However, even assuming that he did so fall within the first part by virtue of his work being technical, he would be excluded since his duties were mainly managerial.
32. Having held that the Appellant is not a worker, no issues on the merits can survive and the request sought cannot be granted.
33. Taking overall view of the matter, we find that there is no manifest error in the impugned judgment of the learned single Judge allowing the Writ Petition filed by the Company. This is not a case where the impugned Judgment of the learned single Judge can be faulted. We thus dismiss these Appeals with no order as to costs.