1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6523  OF 2010 [ Arising out of S.L.P. (C) No. 28588 of 2008 ]

TRIVENI ENGINEERING & INDUST. LTD.   …APPELLANT

VERSUS

JASWANT  SINGH &  ANR.  

 ….  

RESPONDENTS

JUDGMENT

Dr. Mukundakam Sharma, J.  

1. Leave granted.

2. By filing the present petition the appellant herein has challenged the legality of the

2 judgment and order  dated 09.09.2008 passed by the Division Bench of  the Allahabad High  

Court allowing the Special Appeal filed by Respondent No.1 herein.   

3. Respondent  no.  1  –  Jaswant  Singh  claims  to  be  a  workman  of  M/s  Gangeshwar  

Limited, Deoband, now known as Triveni Engineering Industries Limited, which was Respondent  

No. 2 before the High Court and is the appellant herein.  During the course of his employment, he  

was transferred to Ram Kola Chini Mill but as he did not join the place where he was transferred  

in pursuance of the said order, his services were terminated.   

4.   

Being  

aggrieved  by  

the  order  of  

termination of  

his  services,  

he filed a writ  

petition in the  

Allahabad  

High  Court  

contending inter alia that the Standing Orders contain no provision for the transfer of a workman  

from one sugar factory to another, and therefore, his transfer was against the law. Consequently, he  

contended that his services could not have been terminated for not joining at a place of transfer. In  

the writ petition filed, he challenged the transfer order as also the termination order issued by the  

appellant herein.   

5. The said writ petition was registered as Writ Petition No. 8630 of 2008. Notice of the  

writ petition having been served on the appellant herein, it took up a plea that the Respondent is

3 not a workman. The said writ petition was disposed of, leaving the respondent at liberty to move a  

representation before the Labour Commissioner,  Kanpur,  U.P.   in terms of Clause ‘W’ of the  

Standing Orders applicable.  A representation in terms of the said order was filed by the respondent  

no. 1 herein.  During the pendency of the said representation, it was contended before the Labour  

Commissioner by the appellant that the respondent no. 1 was not a workman, and therefore, the  

Labour Commissioner had no jurisdiction to adjudicate the representation under the provisions of  

U.P. Industrial Disputes Act, 1947 and particularly in terms of Clause ‘W’ of the Standing Orders.  

The  Labour  

Commission  

disposed  of  

the  petition,  

concluding  

that  the  

question  at  

hand  related  

to  whether  

respondent  

no.1  was  a  

workman under the UP Industrial Disputes Act, 1947. Therefore, the Labour Commissioner held  

that the same could not be decided under Clause ‘W’ of the Standing Orders, but instead should be  

determined by the Labour Court/ Industrial Tribunal.  

6. Aggrieved by the order of the Labour Commissioner dated 14.05.2008, the respondent  

no. 1 preferred a Writ Petition challenging the aforesaid conclusions. The learned Single Judge,  

however, dismissed the said writ petition by judgment and order dated 25.07.2008, holding that the

4 representation  of  the  respondent  no.  1  under  Clause  ‘W’  of  the  Standing  Orders  was  not  

maintainable and that the Labour Commissioner had rightly rejected the same.

7. Subsequently, the respondent no. 1 filed a Special Appeal before the Division Bench of  

the  Allahabad High Court,  which  was  registered  as  Special  Appeal  No.  1085 of  2008.   The  

Division Bench of the High Court by the impugned judgment and order set aside the orders of the  

Labour Commissioner as also of the learned Single Judge and remitted the matter back to the  

Labour Commissioner to decide the nature of service of the respondent no. 1 in accordance with  

law.  The  

Parties  were  

also placed at  

liberty  to  

adduce  

necessary  

evidence  in  

support  of  

their  

respective  

contentions  

before the Labour Commissioner.   

8. Being aggrieved by the said judgment and order, the present Special Leave Petition was  

filed in this Court on which notice was issued and an interim stay of the judgment and order of the  

High Court was passed.  Pleadings having been completed, the matter was listed for final argument  

during the course of which we heard the counsel appearing for the parties who took us through the  

documents on record in support of their submissions.

5 9. The counsel appearing for the appellant submitted before us that the effect of the High  

Court’s order would be that the Labour Commissioner who is permitted to receive evidence could  

also  be  permitted  to  decide  whether  or  not  the  respondent  no.  1  is  a  workman.  The  Labour  

Commissioner  would also be able to  decide whether the order of  transfer  transferring him to  

another sugar factory was legal and valid and was justified within the parameters of the Standing  

Orders with particular reference to Clause ‘W’ thereof and also whether or not the termination  

order passed against the workman is justified. The appellant’s contention is that the said issues  

cannot  be  

decided by the  

Labour  

Commissioner  as  power and jurisdiction  is  restricted and has  been so settled by the Division  

Bench of this Court in the case of U.P. State Road Transport Corporation vs. U.P. Rajya Sadad  

Parivahan Karamchanri Union, reported in 2007(4) SCALE 302.  It was further submitted that  

under Clause ‘W’ of the Standing Orders, only the power and jurisdiction to decide the question  

with regard to the applicability and interpretation of the Standing Orders is vested with the Labour  

Commissioner,  and  therefore  he  has  no  jurisdiction  and  power  to  decide  as  to  whether  the  

respondent  no.  1  falls  within  the  purview  of  the  expression  ‘Workman’.  According  to  the

6 appellant, the said issue could only be decided and adjudicated upon by the competent court and  

not  the  Labour  Commissioner.   Counsel  for  the  appellant  also  submitted  that  the  Labour  

Commissioner is only a “Conciliation Officer” under the Industrial Disputes Act and “Certifying  

Officer” under the Standing Orders and therefore he cannot have the power and jurisdiction to  

decide substantive questions as to whether or not respondent no. 1 is a workman and whether or  

not the termination order is justified.

10. Counsel appearing for the respondent refuted the aforesaid submissions by relying upon  

Clause ‘W’ of  

the  Standing  

Orders,  which  

according  to  

him  gives  

ample  power  

and  

jurisdiction  to  

the  Labour  

Commissioner to decide the issues raised by the respondent no. 1.  Respondent No.1 contended  

that the only applicable provision, given the facts and circumstances of the case, is Clause ‘W’ of  

the Standing Orders. It was therefore submitted that since the service conditions of the workmen in  

the  sugar  factory  are  being  regulated  through  the  aforesaid  Standing  Orders,  the  Labour  

Commissioner would be competent to decide the issues raised as to whether or not respondent no.  

1 is a workman and whether or not order of transfer was justified.

11. In order to appreciate the contentions raised by the counsel appearing for both parties,

7 we have carefully considered Clause ‘W’ of the relevant Standing Orders, which reads as follows:

“If  any question  arises  as  to  the  application  or  interpretation  of  these  standing  orders,  any  employer/workmen  may  refer  it  to  the  Labour  Commissioner of the State and the Labour Commissioner shall after giving  the parties an opportunity of being heard, decide the question.”

At this stage, it would also be relevant to relevant to extract a similar provision which finds place in  

Section 11-C of the U.P. Industrial Disputes Act, 1947, which reads as follows:

“If any question as to  the application or interpretation of a standing order  certified under the Industrial Employment (Standing Orders) Act, 1946 arises,  

any employer or workman may refer the question to any one of the Labour  Courts specified for the disposal of such proceeding by the State Government  by notification in the Official Gazette,  and the Labour Court to which the  question is so referred shall, after giving the parties an opportunity of being  heard, decide the question and such decision shall be final and binding on the  parties.”

The aforesaid provision, namely Section 11-C, came to be interpreted and considered by this  

Court in the case of U.P. State Road Transport Corporation (Supra).  In the said decision, this  

Court while setting aside the decision of the Labour Court in a case where it  had declared a  

contractual workman to be treated as regular workman has ruled held thus:

8 “In our opinion, the power of the Labour Court under Section 11-C of the  U.P.  Industrial  Disputes  Act  or  under  Section  13A  of  the  Industrial  Employment (Standing Orders) Act, 1946 is much narrower than the power of  the Labour Court on a reference under Section 10 of the Industrial Disputes  Act which corresponds to Section 4-K of the U.P. Industrial Disputes Act.”

A comparative perusal of the provisions of Section 11-C as also Clause ‘W’ would establish that  

the provisions are almost pari materia.  Therefore, the conclusions arrived at by this Court for  

interpretation of Section 11-C would also be applicable to the facts of the present case.

12. It  

is  established  

from  the  

records  that  

the  appellant  

has  raised  an  

issue  

regarding  the  

applicability  

of  the  

Standing Orders to the service condition of the respondent no. 1 contending inter alia that the  

respondent no. 1 is not a workman within the meaning of U.P. Industrial Disputes Act, 1947 and  

therefore the Standing Orders referred to and relied upon by respondent have no application in  

the case before the Labour Commissioner.  The Labour Commissioner as also the learned Single  

Judge upheld the said contention, but the Division Bench of the High Court set aside the order,  

holding that the said issue can be decided by the Labour Commissioner as it is ancillary to the  

issue of applicability and interpretation of the Standing Orders.  

9 13. We are faced by the question as to whether a person is a workman or not could be said  

to be related to the applicability and interpretation of the Standing Orders along with the issue of  

whether the orders of transfer and subsequent termination were justified or not.  As far as the  

Labour Commissioner is concerned, he is only a ‘Conciliation Officer’ as envisaged under the  

U.P.  Industrial  Disputes Act,  1947 and ‘Certifying Officer’  under the Standing Orders.   The  

Standing Orders, particularly Clause ‘W’, vests the Labour Commissioner with the jurisdiction  

and power to decide on the applicability and interpretation of the Standing Orders.  On the other  

hand,  Section  

11-C  of  the  

U.P.  

Industrial  

Disputes  Act,  

1947  and  

Section  13A  

of  the  

Industrial  

Employment  

(Standing  

Orders)  Act,  1946  grant  the  power  and  jurisdiction  to  render  a  decision  on  the  issue  of  

interpretation and application of the Standing Orders to the Labour Court.   

14. Without going into the issue as to whether such a power and jurisdiction could be  

vested on the Labour Commissioner, we may decide the issued raised herein from another angle.  

The issue of whether or not  a person is  a ‘workman’ within the meaning of U.P.  Industrial  

Disputes Act, 1947 is a matter to be decided by a competent court, after allowing the parties to

10 lead evidence. Thereafter, on proper appreciation of the materials on record including the oral  

evidence, a decision could be rendered and the issue could be determined.  The enquiry before  

the Labour Commissioner is of a summary nature and while exercising such a power of summary  

nature, the Labour Commissioner cannot decide and examine factual matters relating to an issue  

as to whether or not the person concerned is a workman or not.

15.  In the case of Sharad Kumar v. Govt. of NCT of Delhi, reported at (2002) 4 SCC 490,  

an issue regarding whether or not a person is a workman within the meaning of Section 2(s) of  

the  Industrial  

Disputes  Act,  

1947 came for  

consideration  

before  this  

Court.   This  

Court  held  

that  in such a  

matter  the  

State  

Government could not arrogate upon itself the power to adjudicate such an issue in as much as  

the same could be determined by the Industrial Tribunal or the Labour Court on the basis of the  

materials  to  be  placed  before  it  by  the  parties.  In  this  instance,  the  Division  Bench  has  

erroneously held that the aforesaid issue is an ancillary issue to the issue of applicability and  

interpretation of the Standing Order.   

16.        Whether or not a person is a workman is a matter that relates primarily to facts and  

circumstances of the case.  The same has nothing to do with the application and interpretation of

11 the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue  

is the nature of job performed by the concerned person, duties and responsibilities vested on him  

and other such relevant material.   In our considered opinion, the Division Bench of the High  

Court  committed  a  mistake  in  determining  the  said  issue  as  an  ancillary  to  that  of  the  

applicability and interpretation of the Standing Order.  A perusal of the earlier Writ Petition filed  

by the respondent no. 1 numbered as Writ Petition No. 8630 of 2008 would indicate that what  

was also challenged in the said writ  petition was the order of termination passed against  the  

respondent.  

The  order  of  

termination  

also could not  

have  been  

examined  and  

scrutinized  as  

such  power  

and  

jurisdiction  is  

not  vested  

with the Labour Commissioner.

17. Consequently, we set aside the judgment and order passed by the Division Bench of

12 Allahabad High Court dated 09.09.2008 and uphold and restore the orders passed by the learned  

Single Judge as also by the Labour Commissioner.  The present appeal is allowed to the aforesaid  

extent.  There will be no order as to costs.

     .................………………………J.      [Dr. Mukundakam Sharma]

 …...........…… …….....…….. J.

 [Anil  R. Dave]

New Delhi, August 11,  2010.