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CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Surender Singh Dalal, Advocate for the petitioner.

Mr. Rajbir Sehrawat, Advocate for respondent No. 2.

RANJIT SINGH J.

Can an Advocate/Legal Advisor be a workman under the Industrial Disputes Act to approach Labour Court against his alleged termination? This question arises in the writ petition.

The Sonepat Central Co-operative Bank Ltd. has filed this writ petition to impugn award passed by the Labour Court, Rohtak whereby the respondent-Advocate has been held to be an employee of the petitioner-Bank.

As per the averment made in the petition, respondent No. 2 was practicing Advocate at District courts, Sonepat and he was appointed as Legal Advisor of the petitioner-bank for conducting the cases of Sonepat Sub Division and Gohana Sub Division by the Board of Directors on 08.10.1979. Prior to the appointment of respondent No. 2, Sh. Umesh Chulkana and Sh. Dhajja Ram were working as Legal Advisor of the Bank. Since they were not performing their duties well, they were removed and in their place respondent No. 2 was appointed. As per the terms and conditions of respondent No. 2, his remuneration was initially fixed at ` 220 and was enhanced to ` 330/- per month by the Board of Directors. It is, accordingly, pleaded that he was an Advocate and not an employee of the petitioner-Bank and his sole function was to attend the court cases and to give legal advice as and when required by the Bank.

Besides, reference was also made to Rajesh Garg Vs. Management of the Punjab State Tubewell Corporation Ltd. And another 1984 (3) SLR 397 in support of this contention. Based on the judgment, as noticed above, the issue of respondent No. 2 being workman was decided, accordingly, by the Labour Court.

Mr. Dalal appearing for the petitioner contends that by no stretch of imagination, the Advocate/Legal Advisor can be brought within the definition of workman. Counsel has also pointed out that the ratio of law laid down in S.K. Verma's case (supra) has been held per incurium in the case titled H.R. Adyanthaya and others v. Sandoz (India) Ltd. And others JT 1994 (5) SC 176. This very issue again came up for consideration before the Hon'ble Supreme Court in the case of Management of M/s Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh JT 2005 (2) SC 370. In this case also, the respondent-workman was appointed on the post of Legal Assistant, qualification whereof was degree in Law with a practicing licence. The nature of duties were to prepare written statements and notices, recording enquiry proceedings to give opinions. The labour Court had framed the specific issue, as is in the case in hand, to the effect whether the applicant falling in the definition of workman or not. The Hon'ble Supreme Court after noticing the definition of workman as given in Section 2(s) has held that perusal of the definition of workman clearly indicate that person would come within the purview of the said definition if he (i) is employed in any industry; and (ii) performs any manual, unskilled, technical, operational, clerical or supervisory work. It is thus, observed that if a person performed one or the other jobs mentioned in the aforesaid provisions then only would come within the purview of definition of workman. It is specifically noticed that S.K. Verma's case (supra) was decided earlier by the Hon'ble Supreme Court without taking into consideration the previous binding precedents and in particular the decision of May & Bakers (India) Limited v. Workmen AIR 1967 SC 678, where the Court had arrived at the conclusion that the employee, who does not perform any supervisory or managerial duties, would not be a workman. S.K. Verma's case (supra) was held to have been rendered per incuriam by a Constitution Bench of this Court in H.R. Adyanthaya's case (supra).