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CASE NO.: Appeal (civil)  8453-54 of 2002

PETITIONER: Mangt.of M/s Sonepat Coop.Sugar Mills Ltd.                                       

RESPONDENT: Ajit Singh                                                               

DATE OF JUDGMENT: 14/02/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: JUDGMENT W I T H

CIVIL APPEAL NO.8455 OF 2002

S.B. SINHA, J :

       These appeals are directed against the judgments and orders dated  04.09.2001 in L.P.A. Nos. 1311 of 1991 and 1356 of 1991 and 7.3.2002 in  L.P.A. No. 1356 of 1991 passed by the High Court of Punjab and Haryana.

INTRODUCTORY FACT: The Respondent herein was appointed by the Appellant in the post of  Legal Assistant; the qualification wherefor was degree in law with a  practicing licence.   The nature of his duties was to prepare written  statements and notices, recording enquiry proceedings, giving opinions to  the Management, drafting, filling the pleadings and representing the  Appellant in all types of cases, viz., civil, labour and arbitration references  independently.  He was also conducting departmental enquiries against the  workmen employed in the industrial undertaking of the Appellant.  He was  placed on probation. While he was serving the Appellant in the said  capacity, allegedly a decision was taken to abolish the said post pursuant to  the recommendations of the Federation of Cooperative Sugar Mills Ltd., as a  result whereof his services were dispensed with.   

       An industrial dispute was raised by the Respondent which was  eventually referred to the Labour Court by the Appropriate Government for  adjudication as regard the question as to whether the termination of his  services was justified.   

LABOUR COURT:         A contention was raised by the Appellant herein before the Labour  Court that having regard to the nature of duties performed by the  Respondent, he would not be a ’workman’ within the meaning of Section  2(s) of the Industrial Disputes Act, 1947 (for short, ’the Act’).  The Labour  Court having regard to the rival contentions framed the following issues :

"1.     Whether the applicant does not fall under the  definition of workman;

2.      Whether the termination of services of the  workman is proper, justified and in order?  If not,  to what relief he is entitled?"

       The question as to whether the Respondent was a workman or not was  taken up as a preliminary  issue and by an order dated 24.9.1982, the Labour  Court opined that the job performed by the Respondent was of  ’legal  clerical nature’ and, thus, he would be a ’workman’ within the meaning of

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the provisions of the Act. In its award dated 13.11.1984, the Labour Court  came to the conclusion that the Respondent, having been retrenched from   services by the Appellant without complying with the provisions of Section  25F of the Act, should be directed to be reinstated with continuity of service  and 50% back wages.   

HIGH COURT PROCEEDINGS:         Aggrieved by and dissatisfied with the said award, both the Appellant  and the Respondent filed writ petitions before the Punjab and Haryana High  Court.  A learned Single Judge of the said court by a judgment and order  dated 30.8.1991, while upholding the finding of the Labour Court to the  effect that the Respondent was a workman; upon consideration of the fact  that he had since been practising as an advocate and was appointed as an  Additional District Attorney in the year 1985, awarded  an amount  calculated at 50% back wages from the date of termination to the date of  award, namely, 13th November, 1984 by way of compensation in lieu of his  reinstatement in service.   

       The Respondent filed two Letters Patent Appeals against the said  judgment.  The Appellant, however, did not prefer any appeal there-against.   

       A Division Bench of the High Court by a judgment dated 4.9.2001,  set aside the judgment of the learned Single Judge and restored the award of  reinstatement passed by the Labour Court but rejected the contention of the  Respondent that he was entitled to full back wages.  It was, however,  directed that the Respondent would be free to avail remedy under Section  33-C(2) of the Act for payment of wages for the period between the date of  the award and the date of physical reinstatement.   

       In the said inter-court appeals, allegedly the name of the counsel for  the Appellant had not been shown on the date of hearing and as such it was  not represented.  The Appellant preferred two Special Leave Petitions being  Special Leave Petition (Civil) Nos. 4493 and 4494 of 2002 against the said  judgment.  However, on an application filed by the learned counsel  appearing on behalf of the Appellant, the said Letters Patent Appeals were  restored and by reason of an order dated 7.3.2002, the earlier directions  issued on 4.9.2001 were sustained.   In its judgment dated 7.3.2002, the  Division Bench merely noticed the submissions made on behalf of the  Appellant herein but otherwise the tenor of  both the judgments is similar.

SUBMISSIONS:         Mr. Uday U. Lalit, learned Senior Counsel appearing on behalf of the  Appellant, assailing the judgment of the High Court would submit that  having regard to the nature of duties performed by the Respondent herein, he  could not be held to be a workman within the meaning of Section 2(s) of the  Act.   

       The learned counsel would contend that the fact that the Respondent  was a practicising advocate and even after joining services, sought for non- practicising allowance, would clearly go to show that his job was akin to that  of a practicising lawyer.  The learned counsel would urge that the Labour  Court, the learned Single Judge as also the Division Bench of the High Court  committed a manifest error in holding that the Respondent was a workman  on the premise that he was neither a Manager nor a Supervisor.  Such an  approach, Mr. Lalit, would argue, is contrary to the well-settled principles of  law as regard interpretation of Section 2(s) of the said Act.  According to the  learned counsel, having regard to the fact that the decision of this Court in  S.K. Verma vs. Mahesh Chandra and Another [(1983) 4 SCC 214]  whereupon the Division Bench placed strong reliance and other decisions  following the same having been held to have been rendered per incuriam by  a Constitution Bench of this Court in  H.R. Adyanthaya and Others vs.  Sandoz (India) Ltd. and Others   [(1994) 5 SCC 737], the impugned  judgment cannot be sustained.

       Mr. Lalit would submit that although the Appellant had not preferred

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any appeal against the judgment and order passed by the learned Single  Judge, having regard to the fact that the said finding of the High Court had  been rendered without jurisdiction and in any event, the question that would  fall for consideration before this Court on the admitted fact being a pure  question of law, the principle of res judicata shall have no application in the  instant case.  Strong reliance in this behalf  was placed on Mathura Prasad  Bajoo Jaiswal and Others vs, Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613]                     

       Mr. Ajay Siwach, learned counsel appearing on behalf of the  Respondent, on the other hand, would contend that the Labour Court in its  interim order dated 24.09.1982  while determining the preliminary issue had  arrived at a finding that the Respondent was a workman as he had not been  performing the duties in a supervisory or managerial capacity, as he had  been mainly doing the job of a legal clerical nature which having been  upheld by the learned Single Judge as well as the Division Bench of the  High Court, the impugned judgments should not be interfered with.  The  learned counsel would contend that in any event as the Appellant has not  preferred any appeal against the judgment of the learned Single Judge, the  same had attained finality and, thus, this Court should not permit the  Appellant to raise the contention there-against as to whether the Respondent  is a workman or not.  Reliance in this behalf has been placed on K.K. John  vs. State of Goa [(2003) 8 SCC 193].

DETERMINATION: Workman:

       Section 2(s) of the Act reads as under : "(s) "Workman" means any person (including an  apprentice) employed in any industry to do any manual,  unskilled, skilled, technical, operational, clerical or  supervisory work for hire or reward, whether the terms of  employment be express or implied  and for the purposes  of any proceeding under this Act in relation to an  industrial dispute, includes any such person who has been  dismissed, discharged or retrenched in connection with,  or as a consequence of, that dispute, or whose dismissal,  discharge or retrenchment has led to that dispute, but  does not include any such person -   

(i)     who is subject to the Air Force Act, 1950  (45 of 1950), or the Army Act, 1950 (46 of  1950), or the Navy Act, 1957 (62 of 1957);  or

(ii)    who is employed in the police service or as  an officer or other employee of a prison; or

(iii)   who is employed mainly in a managerial or  administrative capacity; or

(iv)    who, being employed in a supervisory  capacity, draws wages exceeding one  thousand six hundred rupees per mensem or  exercises, either by the nature of the duties  attached to the office or by reason of the  powers vested in him, functions mainly of a  managerial nature,."

   A bare perusal of the aforementioned provision clearly indicates that a  person would come within the purview of the said definition if he : (i)  is  employed in any industry; and (ii) performs any  manual, unskilled, skilled,  technical, operational, clerical or supervisory work.   

Thus, a person who performs one or the other jobs mentioned in the

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aforementioned provisions only would come within the purview of  definition of workman.  The job of a clerk ordinarily implies stereotype  work  without power of control or dignity or initiative or creativeness.  The  question as to whether the employee has been performing a clerical work or  not is required to be determined upon arriving at a finding as regard the  dominant nature thereof.   With a view to give effect to the expression to do  "any manual, unskilled, skilled, technical, operational, clerical or  supervisory work",  the job of the concerned employee must fall within one  or the other category thereof.  It would, therefore, not be correct to contend  that merely because the employee had not been performing any managerial  or supervisory duties, ipso facto he would be a workman.

In Miss A. Sundarambal vs. Government of Goa, Daman and Dieu  and Others [(1988) 4 SCC 42], teachers serving in an educational institution  being not found to be performing any duty within the aforementioned  category has been held not to be workmen.  Similarly, an advertising  manager, a chemist employed in a sugar mill, gate sergeant in charge of   watch and ward staff in a tannery, a welfare officer in a commercial  educational institution have also not been held to be workmen.  The  Respondent had not been performing any stereotype job.  His job involved  creativity.  He not only used to render legal opinions on a subject but also  used to draft pleadings on behalf of the Appellant as also represent it before  various courts/authorities.  He would also discharge a quasi-judicial  functions as an Enquiry Officer in departmental enquiries against the  workmen.  Such a job, in our considered opinion, would not make him a  workman.   

In S.K. Verma (supra), this Court without taking into consideration  the earlier binding precedents and in particular the decision of  May & Baker  (India) Ltd. vs. Workmen  [AIR 1967 SC 678] arrived at a conclusion that  an employee who does not perform any supervisory or managerial nature of  duties, would be a workman.  S.K. Verma (supra) was held to have been  rendered per incuriam by a Constitution Bench of this Court in H.R.  Adyanthaya (supra).

The question came up for consideration recently before this Court in   Mukesh K. Tripathi vs. Senior Divisional Manager, LIC and Others  [(2004)  8 SCC 387], wherein it was held :

"Once the ratio of May and Baker (supra) and  other decisions following the same had been reiterated  despite  observations made to the effect that S.K. Verma  (supra) and other decisions following the same were  rendered on the facts of that case, we are of the opinion  that this Court had approved the reasonings of May and  Baker (supra) and subsequent decisions in preference to  S.K. Verma (supra).   

       The Constitution Bench further took notice of the  subsequent amendment in the definition of ’workman’  and held that even the Legislature impliedly did not  accept the said interpretation of this Court in S.K. Verma  (supra) and other decisions.

       It may be true, as has been submitted by Ms.  Jaisingh, that S.K. Verma (supra) has not been expressly  overruled in H.R. Adyanthaya (supra) but once the said  decision has been held to have been rendered per  incuriam, it cannot be said to have laid down a good law.   This Court is bound by the decision of the Constitution  Bench.

This court opined :

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"The definition of ’workman’ as contained in  Section 2(s) of the Industrial Disputes Act, 1947 includes  an apprentice, but a ’workman’ defined under the  Industrial Disputes Act, 1947 must conform to the  requirements laid down therein meaning thereby, inter  alia, that he must be working in  one or the other  capacities mentioned therein and not otherwise.                                   ***                     ***                     ***

A ’workman’ within the meaning of Section 2(s)  of the Industrial Disputes Act, 1947 must not only  establish that he is not covered by the provisions of the  Apprentices Act but must further establish that he is  employed in the establishment for the purpose of doing  any work contemplated in the definition.  Even in a case  where a period of apprenticeship is extended, a further  written contract carrying out such intention need not be  executed.  But in a case where a person is allowed to  continue without extending the period of apprenticeship  either expressly or by necessary implication and regular  work is taken from him, he may become a workman.  A  person who claims himself to be an apprentice has certain  rights and obligations under the statute."            The said decision has been followed by this Court in U.P. State  Electricity Board vs. Shiv Mohan Singh and Another [(2004) 8 SCC 402].

It is now trite that the issue as to whether an employee answers the  description of a workman or not has to be determined on the basis of a  conclusive evidence. The said question, thus, would require full  consideration of all aspects of the matter.

The jurisdiction of the Industrial Court to make an award in the  dispute would depend upon a finding as to whether the concerned employee  is a workman or not.  When such an issue is raised, the same being a  jurisdictional one, the findings of  the Labour Court in that behalf would be  subject to judicial review.   

The High Court furthermore applied wrong legal tests in following  S.K. Verma (supra) in upholding the views of the Labour Court which itself  approached the matter from a wrong angle.  The Labour Court as also the  High Court also posed a wrong question unto themselves and, thus,  misdirected themselves in law.

In Cholan Roadways Limited Vs. G. Thirugnanasambandam [2004  (10) SCALE 578], this Court held:

"34\005In the instant case the Presiding Officer,  Industrial Tribunal as also the learned Single Judge  and the Division Bench of the High Court  misdirected themselves in law insofar as they  failed to pose unto themselves correct questions.  It  is now well-settled that a quasi-judicial authority  must pose unto itself a correct question so as to  arrive at a correct finding of fact.  A wrong  question posed leads to a wrong answer.  In this  case, furthermore, the misdirection in law  committed by the Industrial Tribunal was apparent  insofar as it did not apply the principle of Res ipsa  loquitur which was relevant for the purpose of this  case and, thus, failed to take into consideration a  relevant factor and furthermore took into  consideration an irrelevant fact not garmane for  determining the issue, namely, the passengers of

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the bus were mandatorily required to be examined.   The Industrial Tribunal further failed to apply the  correct standard of proof in relation to a domestic  enquiry, which in "preponderance of probability"  and applied the standard of proof required for a  criminal trial.  A case for judicial review was, thus,  clearly made out."   . In this view of the matter, the impugned award and the judgments are  not legally sustainable.

RES-JUDICATA         It is true that the Appellant did not challenge the judgment of the  learned Single Judge.  The learned Judge in support of his judgment relied  upon an earlier decision of the High Court in Rajesh Garg vs. Management  of Punjab State Tube-well Corporation Limited and Another   [1984 (3) SLR  397] but failed to  consider the question having regard to the  pronouncements of this Court including H.R. Adyanthaya (supra).  Rajesh  Garg (supra) was rendered following S.K. Verma (supra), which being not a  good law could not have been the basis therefor.   The principle of res judicata belongs to the domain of procedure.    When the decision relates to the jurisdiction of a court to try an earlier  proceedings, the principle of res judicata would not come into play.   [See  Mathura Prasad Bajoo Jaiswal  (supra)].

An identical question came up for consideration before this Court in  Ashok Leyland Ltd. vs. State of Tamil Nadu and Another [(2004) 3 SCC 1]  wherein it was observed :

"The principle of res judicata is a procedural  provision.  A jurisdictional question if wrongly decided  would not attract the principle of res judicata.  When an  order is passed without jurisdiction, the same becomes a  nullity.  When an order is a nullity, it cannot be supported  by invoking the procedural principles like, estoppel,  waiver or res judicata\005"            It would, therefore, be not correct to contend that the decision of the  learned Single Judge attained finality and, thus, the principle of res judicata  shall be attracted in the instant case.   

Reliance placed by the learned counsel  on K.K. John (supra) is  misplaced.  In that case a part of the award was remitted by the court in  exercise of its jurisdiction under Section 16 of the Arbitration Act, 1940.   Rejecting a contention that by reason of such remittance the entire award  becomes void in terms of sub-section (3) of Section 16, it was held :

       "In the present case, we find that the entire award  was not remitted to the arbitrator.  The arbitrator was  only required to give determination on two points, and,  therefore, sub-section (3) is not applicable in the present  case.  Parliament advisedly has restricted sub-section (3)  of Section 16 of the Act to an award which would mean  the whole award or a part of it.  The valid part of the  award always remains enforceable in a court of law.   What can be held to be void is that part of the award  which has not been made a rule of court by sustaining the  objections raised with regard thereto inter alia on the  ground that the same suffers from an error apparent on  the face of the record or for any other reason; in the event  the arbitrator or umpire fails to reconsider it and submit  his decision within the time fixed therefor by the court.   In other words, the word "award" within the meaning of   sub-section (3)  would also include a part of the award,

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which has been the subject-matter of the order of  remission by the competent court.  In any view of the  matter, the applicability of sub \026section (3) of Section 16  of the Act, in the facts and circumstances of the present  case, does not arise inasmuch as the matter is still  pending before the arbitrator\005"  

Furthermore, we are of the opinion that the law operating in the field  must be stated with precision and clarity and in that view of the matter also it  was necessary for us to deal with the legal question raised by Mr. Lalit.

CONCLUSION:

For the reasons aforementioned, the impugned judgments of the   Labour Court and the High Court cannot be upheld.  They are set aside  accordingly.  However, in the facts and circumstances of this case and  particularly in view of the fact that the Appellant  was agreeable to pay 50%  back wages  to the Respondent, as directed by the learned Single Judge and  further having regard to the fact that a substantial portion thereof is said to  have already been paid, we would direct the Appellant to pay the balance  amount, if any, to the Respondent in terms thereof within eight weeks from  today.   The appeals are allowed with the aforementioned directions.  In the  facts and circumstances of the case, there shall be no order as to costs.