Supreme Court of India
SHARAD KUMARversusGOVT. OF NCT OF DELHI AND ORS.
- Citation
- 2002 INSC 191
- Decided
- 11 April 2002
- Disposal
- Appeal(s) allowed
- Bench
- D P MOHAPATRA
Holding
The Supreme Court held that the question of whether an employee is a "workman" under Section 2(s) of the Industrial Disputes Act is a factual determination requiring examination of the nature of duties, and therefore the appropriate Government cannot refuse reference on the basis of designation alone; the dispute must be referred to the Industrial Tribunal or Labour Court.
Summary
Sharad Kumar, employed as an Area Sales Executive, was terminated without a show‑cause notice or enquiry. The dispute was referred to conciliation, and the Delhi Government refused to refer it to an Industrial Tribunal or Labour Court, stating that Kumar was not a "workman" under Section 2(s) of the Industrial Disputes Act. The High Court upheld the Government's refusal. On appeal, the Supreme Court held that whether an employee is a workman depends on the nature of duties performed, not merely on the job title, and that this factual inquiry must be decided by a tribunal, not by the Government. Consequently, the Government's refusal, based solely on designation, was erroneous. The appeal was allowed, the High Court order set aside, and the Government directed to refer the dispute to the appropriate tribunal, with costs awarded to the appellant.
Issues considered
- Whether the appropriate Government can refuse to refer a dispute to an Industrial Tribunal or Labour Court on the ground that the employee is not a "workman" without examining the nature of his duties.
- Whether the determination of "workman" status under Section 2(s) of the Industrial Disputes Act is a factual question that must be decided by an Industrial Tribunal/Labour Court rather than by the Government.
- Whether the designation "Area Sales Executive" alone suffices to conclude that the employee is not a workman within the meaning of the Act.
Legislation cited
- Industrial Disputes Act, 1947s. 10(1), s. 12(5), s. 2(k), s. 2(s)
Subjects
Industrial Disputes Actworkman definitionSection 10(1)reference to tribunaldesignation vs dutieslabour lawtermination without enquiryjurisdiction of governmentindustrial disputeemployment law
Judgment
SHARAD KUMAR A
v.
GOVT. OF NCT OF DELHI AND ORS.
APRIL 11, 2002
[D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.] B
Labour Laws:
)
Industrial Disputes Act, 1947: Sections 2(s), 2(K), JO and 12.
c
Workman-Who is-Determination of-Nature of duties assigned-
Particular or multifarious-Held, ii has to be ascertained from the nature of
duties assigned-Mere consideration ofdesignation is not of much importance.
Reference of dispute to Board/(:ourts!Tribunal-Appropriate
Government-Jurisdiction-Scope and extent of-Held, in order to determine D
the principal duty and anci//iary duties performed by an employee to classifo
himself as workman-Factual matters, materials including oral evidence
required to be examined-Such matters could more appropriately be decided
by the Industrial Tribunal/Labour Court than the appropriate/State Government.
Appellant-employee was serving as 'Area Sales Executive'. Employer
E
terminated his services without holding any enquiry and without affording
him opportunity to show cause in the matter. The Termination order was
challenged and the matter was referred to the Concilliation Officer, who
submitted a failure report. On the basis of the report, State Government
declined to refer the dispute to the Industrial Tribunal or the Labour Court F
for adjudication. Appellant filed Writ Petition which was dismissed by the
High Court. Hence appeal before this Court.
It was contended for the appellant that he was performing multifarious
duties and the State Government going by the mere designation of the post
held by him committed an error in declining to refer the dispute to the G
Industrial Tribunal/Labour Court; and whether the appellant was workman
or not involves inquiry into the facts and, therefore, the State Government
could not finally decide the matter.
It was contended for the respondent-employer that on the basis of H
1057
1058 SUPREME COURT REPORTS [2002] 2 S.C.R.
A material produced by the appellant before the Concilliation Officer, duties
of the appellant did not fall into any of the categories of employee to qualify
him as workman under Section 2(s) of the Act.
It was contended for the respondent-State that the State Government/
·- ;
·~-
appropriate Government is competent to take decision under Section 10(1)
B of the Act whether a dispute raised was Industrial dispute or whether
employee was workman within the meaning of Section 2(s) of the Act.
The issue before this Court was whether the State Government has
exercised its jurisdiction judiciously by rejecting the request of the appellant
for a ~eference of dispute to Industrial Tribunal or Labour Court.
c
Allpwing the appeal, the Court
HELD: I.I. Both the State Government and the High Court had
declined to refer the dispute relating to discharge/termination of the
D appellant's service for adjudication to the Industrial Tribunal or Labour
Court because appellant is not _a 'workman' within the meaning of Section
2(s) of the Industrial Disputes Act. The Order of refusal of reference of the
dispute was passed by the respondent-State Government in exercise of its
power under Secti~n 10(1) read with Section 12(5) of the Act. (1061-F-G] ·
E 1.2. It has to be _taken as an accepted principle that in order to come
~ithin the meaning of the expression 'workman' in Section 2(s) the person
has to be discharging any one of the types of the 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 exclud~ under the latter part
F of the Section. (1065-D)
2.1. When an 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
G meaning of Section 2(s). If on ~he other hand the nature of duties discharged
by the employees is multifarious then the further question that may arise for
consideration is which of these duties is his principal duty and which are the
ancilliary duties performed by him. While deciding the question, designation
of the employee is not of much importance and certainly not conclusive in
H
the matter as to whether or not he is a workman under Section 2(s) of the
Act. (1065-E, F, G]
-
l
SHARAD KUMAR v.GOVT. OF NCT OF DELHI 1059
2.2. The High Court was clearly in error in confirming the Order of A
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.
The State Government or even the High Court has not made any attempt to
go into the different types of duties discharged by the respondent with a view
to ascertain whether he came within the meaning of Section 2(s) of the Act. B
The State Government merely considered the designation of the post held by
him which is extraneous to th" matters relevant for the purpose. From the
appointment Order in which are enumerated certain duties which the
appellant may be required to discharge, it cannot be held that he did not come
within the first portion of Section 2(s) of the Act 11072-F-H]
Mis. May and Baker (India} ltd v. Their Workmen, AIR (1967) SC 678;
c
Burmah Shell Oil Storage and Distribution Company of India ltd v. The Burma
Shell Mangagment Staff Association and Ors., [1970] 3 SCC 378; Nirmal Singh
v. State of Punjab and Ors., [1984] Suppl. SCC 407 and S.K. Maini v. Mis.
Carona Sahu Company limited and Ors., [1994] 3 SCC 510, relied on.
D
HR Adyanthaya and Ors. v. Sandoz (India) ltd and Ors., (1994] 5 SCC
737, followed.
3.1. Determination of the question-Whether appellant is a Workman
or not-requires examination of factual matters for which materials including
oral evidence will have to be considered. In such a matter the State E
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 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 F
order passed by the High Court maintaining the same is unsustainable.
[1073-A-B]
Te/co Convoy Drivers Mazdoor Sangh and Anr. v. State ofBihar and Ors.,
[1989] 3 SCC 271 and MP. Irrigation Karamchari Sangh v. State of MP. and
Ors., [1985] 2 sec 103, relied on. G
S.l. Soni v. Rajasthan Mineral Development Corporation ltd Jaipur, (1986)
LAB I.C. 468, referred to.
•
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2622 of
™2. H
1060 SUPREME COURT REPORTS - [2002) 2 S.C.R.
A From the Judgment and Order dated 10.7.2000 of the Delhi High Court
in C. W.P. No. 3561 of 2000.
S. Prasad, Rakesh Garg, Ms. Shweta Garg and Ashok Kumar Sharma
for the Appellant.
B V.R. Reddy and Ms. Meera Mathur for J.B.D. and Co., for Respondent
Nos. 2-4.
B.A. Mohanty, K.C. Kaushik and D.S. Mahra for the Respondent No.
I.
c The Judgment of the Court was delivered by
D.P. MO HAP ATRA, J. Leave granted.
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
D Government of National Capital Territory of Delhi (NCT 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 (hereinafter referred to as
'the Act') .
E The factual backdrop of the case relevant for appreciating the questions
raised in the case may be stated thus :
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
F communicated to him on 28.12.1995. No show cause notice was served nor
any enquiry was held before the order terminating appellant's service was
passed. However, one month's salary was sent to him alongwith 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
G 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 :
"All the documents filed and submissions of the parties and the
'!
H report of the C0nciliation Officer have been perused and it is found
SHARAD KUMAR v.GOVT. OFNCT OF DELHI [D.P. MOHAPATRA, J.] 1061
that this is not a fit case for reference to Industrial Tribunal or Labour A
Court of Delhi for adjudication for the reasons given below:
"Admittedly the applicant was designated as Area Sales Executive
and performing the duties of Area Sales Executive, as such he is not
covered by the defmition of "Workman" as defined under Section
2(s) of the Industrial Disputes Act, 1947." B
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.
The relevant portion of the impugned order reads as follows: c
"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.
D
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) E
• of the Act.
Dismissed"
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 F
relating to discharge/termination of the appellant's service for adjudication to
the Industrial Tribunal or 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
-.. ofrefusal ofreference of the dispute was passed by the respondent in exercise G
of the power under section 10(1) read with section 12(5) of the Act.
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 H
1062 SUPREME COURT REPORTS [2002] 2 S.C.R.
A statute ?"
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
B the appellant was performing multifarious duties which came within the
purview of definition of the expression ~orkman 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. Sri Prasad also contended that the question whether the
appellant was a workman within the meaning of section 2(s) or not involves
C inquiry intofacts which could not be finally decided by the State Government
while exercising the power under Section 10( 1) of the Act. Sri 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.
·D
Per contra Shri V.R. Reddy learned senior counsel appearing for the
employer Mis 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
E to Shri Reddy, on the materials produced by the appellant himself in the
conciliation proceeding it is clear th~t 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) .
Shri B.A. Mohanty, learned senior counsel appearing for the Government
F of National Capital Territory of Delhi, respondent No. l herein, supported the
order of the State Government refusing to refer the dispute to the Industrial
Tribunal/Labour Court. He contended that under section l 0( 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
G employer and 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
H
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.
...
SHARAD KUMAR v.GOVT. OF NCT OF DELHI [D.P. MOHAPATRA, J.] ] 063
It will be convenient to quote certain relevant provisions of the Act at A
the outset :
Section 2(k) - "industrial dispute" means any dispute or difference
between employers and employers, or between employers and
workmen, or between workmen and workmen, which is connected
with the employment or non-employment or the terms of employment B
or with the condition of labour, of any person."
In Section 2(s) 'workman' is defined as follows:
"workman" means any person (including an apprentice) employed in
any industry to do any manual, unskilled, skilled, technical, operational, C
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 D
not include any such person -
•
(i) who is subject to the Air Force Act, 1950 (45 of 1950) , or the
Anny Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
1957) ; or
E
(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 F
exceeding one thousand silt hundred rupees per mensem or
exercise , 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."
Section 10(1) under which the order under challenge was passed reads G
as under:
Reference of disputes to Boards, Courts or Tribunals
10. (1) Where the appropriate Government is of opinion that any
industrial dispute· exists or is apprehended, it may at any time, by H
1064 SUPREME COURT REPORTS [2002] 2 S.C.R.
A order in writing-
(a) rY.ter the dispute to a Board for promoting a settlement thereof;
or
(b) refer any matter appearing to be connected with or relevant to
the dispute to a Court for inquiry; or
B
(c) refer the dispute or any matter appearing to be connected with,
or relevant to, the dispute, if it relates to any matter specified
in the Second Schedule, to a Labour Court for adjudication; or /
(d) refer the dispute or any matter appearing to be connected with,
c or relevant to, the dispute, whether it relates to any matter
specified in the Second Schedule or the Third Schedule, to a
Tribunal for adjudication:
The provisos to the Section are not relevant for the case in hand.
D Section 12 of the Act provides the duties of the Conciliation Officer.
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
E relating to the dispute and for bringing about a settle~ent thereof, together
with a full statement of such facts and circumstances, and the reason on
account of w.hich, in his opinion, a settlement could not be arrived at.
-
Sub-section (5) of Section 12 in which power is vested in the appropriate
Government to make a reference reads as follows:
F "If, on a consideration of the report referred to in sub-section (4) , the
appropriate Government is satisfied that there is a case for reference
to a Board Labour Court, Tribunal or National Tribunal, it may make
such reference. Where the appropriate Government does not make
such a reference it shall record and communicate to the parties
G concerned its reasons therefor.
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 repQrt
and the materials received from the Conciliation Officer. The question on
H answer of which the decision in this case depends is what is the scope and
SHARAD KUMAR v.GOVT. OF NCT OF DELHI [D.P. MOHAPATRA, J.] I 065
extent of the power to be exercised by the appropriate Government in such A·
a matter ?
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 B
retrenched.
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 C
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 the 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 D
• 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 E
an employee is assigned a particular type of duty and has been discharging
the same till 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
employees is multifarious then the further question that may arise for p
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 G
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.
At this stage we may refer to certain decisions in which the question
has been considered by this Court as well as by the High Court.
H
1066 SUPREME COURT REPORTS [2002] 2 S.C.R.
,A In Management of Mis May and Baker (India) Ltd v. Their Workmen,· ,
AIR (1967) SC 678 a Bench of three learned Judge of this Court construed
the provision of section 2(s) (as it stood before the Amendment of 1956) in
~rder to ascertain whether the manual or clerical work done was merely of
an incidental nature and whether the employee was not a workman as defined
B under the section. The Court made the following observations:
"9 ....... The company's case is that Mukerjee was discharged with
effect from April l, 1954. At that time the definition of the word
1
l
"workman" under Section 2(s) of the Industrial Disputes Act did not
include employees like Mukerjee who was a representative. A .t_
"workman" was then defined as any person employed in any industry
c to do any skilled or unskilled manual or clerical work for hire or
reward. Therefore, doing manual or clerical work was necessary before
a person could be called a workman. This definition came for
consideration before industrial tribunals and it was consistently held
that the designation of the employee was not of great moment and
D what was of importance was the nature of his duties. If the nature of •
the duties is manual or clerical then the person must be held to be a
workman. On the other hand if manual or clerical work is only a
small part of the duties of the person concerned and incidental to his
main work which is not manual or clerical, then such a person would
no~ be workman. It has, therefore, to be. seen in each case from the
E nature of the duties whether a person employed is a workman or not,
under the definition of that word as it existed before the amendment
of 1956. The nature of the duties of Mukerjee is not in dispute in this
case and the only question, therefore, is whether looking to the nature
of the duties it can ·be said that Mukerjee was a workman within the
F meaning of Section 2(s) as it stood at the relevant time. We find from
the nature of the duties assigned to Mukerjee that his main work was
that of canvassing and any clerical of manual work that he had to do
was incidental to his main work of canvassing and could not take
more than a small fraction of the time for which he had to work. Jn
the circumstances the tribunal's conclusion that Mukerjee was a
G workman is incorrect. The tribunal seems to have been led away by
the fact that Mukerjee had no supervisory duties and had to work
under the directions of his superior officers. That, however, would
not necessarily mean that Mukerjee's duties were main!)' manual or
clerical. From what the tribunal itself has found it is clear that
H Mukerjee's duties were mainly neither clerical nor manual. Therefore,
SHARAD KUMAR v.GOVT. OF NCT OF DELHI [D.P. MOHAPATRA. J.] 1067
as Mukerjee was not a workman his case would not be covered by A
the Industrial Disputes Act and the Tribunal would have no jurisdiction
to order his reinstatement. We, therefore, set aside the order of the
tribunal directing reinstatement of Mukerjee along with other reliefs.
(Emphasis supplied)
B
A similar question came up for consideration before a Bench of three
learned Judges of this Court in Burmah Shell Oil Storage and Distribution
Company of India ltd. v. The Burma Shell Management Staff Association
and Ors., [ 1970] 3 SCC 378, wherein it was held, inter a/ia that if a person
is mainly doing supervisory work and incidentally or for a fraction of the
time also does some clerical work, it would have to be held that he is employed C
in a supervisory capacity, and conversely, if the main work done is of clerical
nature the mere fact that some supervisory duties are also carried out
incidentally or as a small fraction of the work done by him will not convert
his employment as a clerk into one in supervisory capacity.
- This Court considering several classes of employees including sales
engineering representative and district sales representative, held on the
materials placed before the Industrial Tribunal that both these classes of
D
-
employees do not come within the meaning of the expression 'workman' in
section 2(s) . It is relevant to note here that this Court was considering the
validity of an interim award passed by the Industrial Tribunal, Maharashtra, E
Bombay in the case.
Taking note of the above mentioned two three Judge Bench decisions
and other cases decided by this Court a Constitution Bench in the case of
H.R. Adyanthaya and Ors v. Sandoz (India) Ltd. and Ors., [1994] 5 SCC 737
made the following observations: F
"23. However, the decisions in the later cases, viz., S.K. Verma,
--- Delton Cable, and Ciba Geigy cases did not notice the earlier decisions
in May & Baker, WIMCO and Burmah Shell cases and the very same
contention viz., if a person did not fall within any of the categories
of manual, clerical, supervisory or technical, he would qualify to be
workman merely because he is not covered by either of the four
G
exceptions to the definition, was canvassed and though negatived in
earlier decisions, was accepted. Further, in those cases the
Development Officer of the LIC, the Security Inspector at the gate of
the factory and Stenographer-cum-Accountant respectively, were held H
1068 SUPREME COURT REPORTS [2002] 2 S.C.R.
A to be workmen on the facts of those cases. It is the decision of this
Court in A. Sundarambal case which pointed out that the law laid
down in May and Baker case was still good and was not in terms
disowned.
-- I
f.
24. We thus have three three-Judge Bench decisions which have taken
B the view that a person to be qualified to be a workman must be doing
the work which falls in any of the four categories, viz., manual,
clerical, supervisory or technical and two two-judge Bench decisions
which have by referring to one or the other of the said three decisions
have ·reiterated the said law. As against this, we have three three-
C Judge Bench decisions which have without referring to the decisions
in May & Baker, WIMCO and Burmah Shell cases have taken the
other view which was expressly negatived, viz., if a person does not
fall within the four exceptions to the said definition he is a workman
within the meaning of the ID Act. These decisions are also based on
the facts found in those cases. They have, therefore, to be confined
D to those facts. Hence the position in law as it obtains today is that a
person to be a workman under the ID Act must be employed to do the
work ofany of the categories, viz., manual, unskilled, skilled technical,
operational, clerical or supervisory. It is not enough that he is not
covered by either of the four exceptions to the definition. We reiterate
the said interpretation".
E
(Emphasis supplied)
In Nirmal Singh v. State of Punjab and Ors., [1984] (Suppl) SCC 407
this Court construing the provisions of section 2(s) and 12(5) of the Act for
determining the question whether a Branch Manager of a cooperative bank
F is a workman observed as follows: i-
"3. The grievance made by Shri N.D. Garg, who appears on behalf
of the appellant, that the Labour Commissioner ought to have given
reasons in support of his decision, is justified. All that the Labour
Commissioner has stated in the order is that the post held by the
G appellant did not fall "within the category of workman". This, really,
is the conclusion to which the Labour Commissioner came but no ~
reasons are given to justifj; that conclusion. We are of the opinion
that the Labour Commissioner ought to have given reasons why he
came to the conclusion that the appellant is not a "workman" within
H the meaning of the Section 2(s) of the Industrial Disputes Act, 1947.
ii
SHARAD KUMAR v.GOVT. OFNCT OF DELHI [D.P. MOHAPATRA, J.] 1069
This Court while allowing the appeal directed the respondent No. 2 the A
- Labour Commissioner, Chandigarh to make a reference under Section 12 of
the Act.
In the case of Te/co Convoy Drivers Mazdoor Sangh and Anr v. State
of Bihar and Ors., [1989] 3 SCC 271 this Court construing the provision of
s.10(1) held as follows: B
"13. Attractive though the contention is, we regret, we are unable to
accept the same. It is now well settled that, while exercising power
under Section 10(1) of the Act, the function of the appropriate
government is an administrative function and not a judicial or quasi-
judicial function, and that in performing this administrative function C
the government cannot delve into the merits of the dispute and take
upon itself the determination of the /is, which would certainly be in
excess of the power conferred on it by Section 10 of the Act. See Ram
Avtar Sharma v. State ofHaryana, (1985] 3 SCC 189; MP. Irrigation
Karamchari Sangh v. State of MP., (1985] 2 SCC 103 and Shambhu D
Nath Goyal v. Bank of Baroda, Jullundur, (1978] 2 SCC 353.
' 14. Applying the principle laid down by this Court in the above
-- decisions, there can be no doubt that the government was not justified
in deciding the dispute. Where, as in the instant case, the dispute is
whether the persons raising the dispute are workmen or not, the same E
cannot be decided by the Government in exercise of its administrative
function under Section 10(1) of the Act. As has been.held in M.P.
Irrigation Karamchari Sangh case, there may be exceptional cases in
which the State Government may, on a proper examination of the
demand, come to a conclusion that the demands are either perverse
or frivolous and do not merit a reference. Further, th' government F
should be very slow to attempt an examination of the demand with
a view to declining reference and courts will always be vigilant
whenever the government attempts to usurp the powers of the Tribunal
for adjudication of valid disputes, and that to allow the government
, to do so would be to render Section 10 and Section 12 (5) of the Act G
nugatory."
(Emphasis supplied)
In M.P. Irrigation Karamchari Sangh v. State ofMP. and Ors., (1985]
2 SCC I 03 taking note of the decision in the case of Bombay Union of
Journalists v. State of Bombay, AIR (1964) SC 1617, wherein it was held H
1070 SUPREME COURT REPORTS (2002) 2 S.C.R.
_ - A that appropriate Government is precluded from considering even prima facie
the merits of the dispute when it decides the question as to whether its power
to make a reference should be exercised under Section 10( 1) read with Section
12(5) , or not, this Court held that the Court had made it clear in the same
judgment that it was a province of the Industrial Tribunal to decide the
B disputed questions of facts. This Court made the following observations:
"5 ............ Therefore, while conceding a very limited jurisdiction to
the State Government to examine patent frivolousness ofthe demands,
it is to be understood as a rule, that adjudication of demands made
by workmen should be left to the Tribunal to decide. Section 10
permits appropriate Government to determine whether dispute 'exists
c or is apprehended' and then refer it for adjudication on merits. The
demarcated functions are (1) reference, (2) adjudication. When a
reference is rejected on the specious plea that the Government cannot
bear the additional burden, it constitutes adjudication and thereby
usurpation of the power of a quasi-judicial Tribunal by an
D administrative authority namely the appropriate Government. In our
opinion, the reasons given by the State Government to decline
reference are beyond the powers ofthe Government under the relevant ' '
sections of the Industrial Disputes Act. What the State Government
has done in this case is not a prima facie examination of the merits
of the question involved. To say that granting of dearness allowance
E equal to that of the employees of the Central Government would cost
additional financial burden on the Government is to make a unilateral
decision without necessary evidence and without giving an opportunity
to the workmen to rebut this conclusion. This virtually amounts to a
final adjudication of the demand itself. The demand can never be
F characterized as either perverse or frivolous. The conclusion so arrived
at robs the employees of an opportunity to place evidence before the
Tribunal and to substantiate the reasonableness of the demand."
(Emphasis supplied)
G In S.K. Maini v. Mis Carona Sahu Company limited and Ors., [1994]
3 SCC 510 this Court interpreting section (2) (iv) made the following ''
,_
observations:
~
I
"9. After giving our careful consideration to the facts and circumstances '
of the case and the submissions made by the learned counsel for the
H parties, it appears to us that whether or not an employee is a workman
SHARAD KUMAR v.GOVT. OFNCTOF DELHI [D.P. MOHAPATRA, J.] 1071
under Section 21s) of the Industrial Disputes Act is required to be A
determined with reference to his principal nature of duties and
functions. Such question is required to be determined with reference
to the facts and circumstances of the case and materials on record and
it is not possible to lay down any strait-jacket formula which can
decide the dispute as to the real nature of duties and functions being B
performed by an employee in all cases. When an employee is employed
to do the types of work enumerated in the definition of workman
under Section 2(s) , there is hardly any difficulty in treating him as
a workman under the appropriate classification but in the complexity
of industrial or commercial organizations quite a large number of
;
employees are often required to do more than one kind of work. In C
such ~ases, it becomes necessary to determine under which
classification the employee will[al/for the purpose ofdeciding whether
he comes within the definition of workman or goes out of it. In this
connection, reference may be made to the decision of this Court in
Burmah Shell Oil Storage and Distribution Co. ofIndia Ltd v. Burmah
Shell Management Staff Assn. In All India Reserve Bank Employees' D
Assn. v. Reserve Bank of India it has been held by this Court that the
word 'supervise' and its derivatives are not words of precise import
and must often be construed in the light of context, for unless
controlled they cover an easily simple oversight and direction as
manual work coupled with the power of inspection and E
superintendence of the manual work of others. It has bee~ rightly
contended by both the learned counse! that the designation of an
employee is not of much importance and what is important is the
nature of duties being performed by the employee. The determinative
factor is the main duties of the employee concerned and not some
works incidentally done. In other words, what is, in substance, the F
work which employee does or what in substance he is employed to
do. Viewed from this angle, if the employee is mainly doing
supervisory work but incidentally or for a fraction of time also does
some manual or clerical work, the employee should be held to be
doing supervisory works. Conversely, if the main work is of manual, G
clerical or of technical nature, the mere fact that some supervisory or
other work is also done by the employee incidentally or only a small
fraction of working time is devoted to some supervisory works, the
employee will come within the purview of 'workman' as defined in
Section 2(s) of the Industrial Disputes Act".
(Emphasis supplied) H
1072 SUPREME COURT REPORTS [2002) 2 S.C.R.
A The Rajasthan High Court in the case of S.L. Soni v. Rajasthan Mineral
Development Corporation Ltd, Jaipur, (1986) LAB LC. 468, S.C. Agrawal,
J. (as he then was) considering the question whether an Assistant Manager
(Accounts) came within the meaning of expression 'workman' under section
2(s) of the Act accepted the contention raised on behalf of the petitioner
therein that the question could not be agitated before the High Court under
B Article 226 of the Constitution and the appropriate remedy for the petitioner
was to seek a reference under Section l 0 of the Industrial Disputes Act, made
the following observations:
"In my view the aforesaid contention urged by Shri Rangrajan must
c be accepted. In the present case there is a dispute between the parties
as to whether the petitioner was a workman under section 2(s) of the
Act at the time of the passing of the impugned order terminating his
services. The said question involves determination of facts with regard
to the nature of the duties that were being discharged by the petitioner
while functioning as Assistant Manager (Accounts). Such a
D determination can only be made on the basis of evidence. The said
question cannot be properly adjudicated in these proceedings under
Article 226 of the Constitution and the appropriate remedy that was
available for the petitioner was to raise an industrial dispute and
have it referred for adjudication under Section JO of the Act. The
first contention urged by Shri Singhvi cannot, therefore, be accepted."
E
(Emphasis supplied)
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
F 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
G attempt to go into the different types of duties discharged by the respondent
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 21122 April 1983 in
which are enumerated certain duties which the appellant may be required to
H discharge it cannot be held therefrom that he did not come within the first
SHARAD KUMAR v.GOVT. OF NCT OF DELHI [D.P. MOHAPATRA, J.] 1073
portion of the section 2(s) of the Act. We are of the view that determination A
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. B
Such a matter should be decided by the Industrial Tribunal or 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.
Accordingly, the appeal is allowed. The order dated 10th July, 2000 of C
the High Court in Civil Writ Petition No. 3561/2000 is set aside. The
Government of National Capital Territory of Delhi, respondent No. I 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. The appellant shall be entitled to receive from
the respondents a sum of Rs. 20,000 (Rupees twenty thousand only) towards D
cost and hearing fee of the case.
S.K.S. Appeal allowed.
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