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CASE NO.: Appeal (civil)  6543-6544 of 2004

PETITIONER: Mr. C. Gupta

RESPONDENT: GlaxoSmithKlin Pharmaceutical Limited

DATE OF JUDGMENT: 25/05/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Appellant calls in question legality of the judgment  rendered by a Division Bench of the Bombay High Court  dismissing the writ appeals filed by the appellant.  Both the  appeals were filed to set aside the common judgment and  order passed in Writ Petition nos.462/95 and 695/96 by a  learned Single Judge on 13.4.1999.    2.      The background facts in a nutshell are as follows: 3.      On 4.8.1976 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 candidates was as follows:-      

"The selected candidate will advise the  Corporate personal Department and through it  various establishments of the Company on all  matters relating to Labour Laws; operate  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 u-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

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before Labour Courts, Industrial Tribunals and  other authorities. Ability to get on with people. Age: Around 30 years". 4.      On 17.3.1977 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  18.6.1977. 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.

5.      Clause\02617 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." 6.      In pursuance of the appointment letter, the appellant  joined services of the Company on 13.7.1977. On 15.9.1982,  vide a termination letter dated 15.9.1982, 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\02617 of the letter of appointment dated 17.8.1977 on the  ground that the services of the petitioner were no longer  required.

7.      Being aggrieved by such 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.                            8.      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 (in short the ’Act’) 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 25N of the Act in as much as no notice or  retrenchment compensation had been paid to him. He also  contended that clause\02617 of the letter of appointment dated  17.3.1977 was illegal in as much as it was against the  provisions of Articles 14 and 21 of the Constitution of India,  1950 (in short the ’Constitution’) and was void as ultra vires  Section 23 of the Indian Contract Act, 1872 (in short the  ’Contract Act’). He sought the prayer of reinstatement in  service with full back wages with continuity of service and all  other attendant benefits.  Reference was made under Section  10(1) of the Act.

9.      In the reference, the respondent-Company filed its  written statement on 8.8.1985. In the written statement the  Company disputed the stand that the appellant was a

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workman within the meaning of Section 2(s) of the Act.  It was  denied that the termination of his services was illegal for  alleged non-compliance of provisions of Section 25N of the  Industrial Disputes Act, 1947 or that it violated any provisions  of Constitution or of Section 23 of the Contract Act.          

10.     Both parties led evidence in the reference before the  Labour Court. The appellant led his own evidence and on  behalf of the respondent-company 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  Manger 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 respective claim.    

11.     Ultimately, by an award passed by the Presiding Officer,  First Labour Court, Bombay on 31.10.1994, the claim of the  appellant was allowed and he was directed to be reinstated in  service with continuity in service w.e.f. 11.12.1982 to  30.11.1989 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 30.11.1989 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.  This was primarily on the ground that appellant had  given false information at the time of appointment.

12.     Both the appellant as well as the Company filed writ  petitions before the Bombay High Court against the aforesaid  award dated 31.10.1994 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 the High Court  on 13.4.1999.  By this judgment and order the learned Single  Judge held that the appellant could not be said to be a  workman within the meaning of Section 2(s) of the Act.   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  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 31.10.1994.  

13.     It is against this judgment and order passed by the  learned Single Judge, the Civil Appeal No.1879 of 1999 came  to be filed by the appellant. The appellant subsequently filed  Civil Appeal No.170 of 2000 which also impugned the same  judgment and order passed by the learned Single Judge.       

14.     The appellant’s main contention before the High Court  was that he was a qualified legal person and the nature of his  duties, work and functions were to advise the management of  the company which required knowledge of law and the matters  arising out of the affairs of the company. It was submitted that  the petitioner must be said to be employed to do technical

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work within the meaning of Part 1 of Section 2(s) of the Act.  It  was further the stand that the Act was amended in 1984 de- linking the words "skilled" and "unskilled" from the word  "manual" and by adding the word "operational". It was,  therefore, pleaded that the finding that the appellant was  doing managerial or administrative work is not correct.  Learned Single Judge did not accept the contention and the  Division Bench also did not accept the contention.   

15.     In support of the appeal learned counsel for the appellant  submitted as follows:

16.     The amendment of the expression ’workman’ under  Section 2(s) clearly brought the appellant within the ambit of  the said expression.  The amendment was made on 21.8.1984  and reference on 29.9.1995. According to him, the date of  reference is material, even if it is conceded for the sake of  argument but not accepted that the un-amended provisions  apply, yet considering the nature of the work which is  technical in nature the appellant was a workman.  Further, it  was not manual as has been held by the High Court.  Finally,  it was submitted that while exercising jurisdiction under  Article 142 of the Constitution, the forum is really of no  consequence, if the termination is held to be bad.  The relief  could be moulded under Article 142 of the Constitution.   

17.     Strong reliance was placed on a decision of this Court in  Ruston & Hornsby (I) Ltd. v. T.B. Kadam (1976 (3) SCC 71) to  contend that the amended definition applies.  It was further  submitted that the High Court was not justified in placing  reliance on the last line of paragraph 15 of Burmah Shell Oil  Storage and Distribution Company of India Ltd. v. The Burma  Shell Management Staff Association and Ors. (1970 (3) SCC  378 at p.389). 18.     Learned counsel for the respondent on the other hand  submitted that the amendment is clearly prospective. The  question of creation of new rights is really not relevant.  The  question is one of status. Only a new forum is created.  If  appellants’ claim is accepted, the penal consequences flowing  from Section 25N & Q of the Act will be applicable.  It has been  found factually that there was no technical work done. The  salary received by the appellant was much higher than  received by a workman. The advertisement spelt out the  requirements and responsibilities. The Labour Court had  relied on a decision of Punjab & Haryana High Court which  was set aside by this Court in Sonepat Cooperative Sugar Mills  Ltd. v. Ajit Singh (2005 (3) SCC 232) in which it was held that  Legal Assistant is not workman.   

19.     Learned counsel for the appellant submitted that the said  decision is not applicable because in that case the Legal  Assistant had a license to practice.  

20.     It is not in dispute that the nomenclature is really not of  any consequence. Whether a particular employee comes within  the definition of workman has to be decided factually.  In fact,  it has been found as a matter with reference to various factual  aspects that the duties undertaken by the appellant  overwhelmingly fall in the managerial cadre. So far as the  nature of work is concerned, the Division Bench of the High  Court took note of several aspects as reflected in para 29 of  the judgment.  The same reads as follows:

"In the evidence adduced on behalf of the  Company, its Director Shri Rustam Padam

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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  advise 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."

21.     It has been pleaded that the amendment to the definition  of workman brings the appellant within the amended  definition.   

22.     In State of Madhya Pradesh and Ors. v. Rameshwar  Rahod (AIR 1990 SC 1849) it has been held as follows:

"It was next contended by the respondent  before the High Court that the Criminal Court  was empowered under Section 7 of the Act to  confiscate the vehicle after due and proper  inquiry and therefore the proceedings by the  District Collector under Section 6A and  Section 68 of the Act should be quashed.   Reliance was placed on several decisions and  authorities.  Our attention was drawn to the  decision of the Mysore High Court in the case  of The State v. Abdul Rasheed, AIR 1967  Mysore 231, Sri Bharat Mahey v. State of State  of U.P. 1975 Crl. LJ 890 (All) as well as the  decision of the learned single Judge in State of  M.P. v. Basant Kumar, 1972 Jab LJ Short Note  No.99.  On a consideration of the relevant  authorities, the High Court came to the  conclusion that the criminal Court had  jurisdiction to deal with the matter.  Mr.  Deshpande sought to argue that in view of the  enactment of the provisions of Section 6A as  well as Section 7 of the Act, it cannot be held  that the criminal Court continued to retain  jurisdiction.  He submitted that in view of the  enactment of these provisions, it would be  useless to hold that the criminal Court  continued to retain jurisdiction, otherwise the  very purpose of enacting Section 6A read with

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Section 7 would be defeated.  We are, however,  unable to accept this contention because  normally under the Criminal Procedure Code,  the Criminal Courts of the country have the  jurisdiction and the ouster of the ordinary  criminal Court in respect of a crime can only  be inferred if that is the irresistible conclusion  flowing from necessary implication of the new  Act.  In view of the language used and in the  context in which this language has been used,  we are of the opinion that the High Court was  right in coming to the conclusion that the  Criminal Court retained jurisdiction and was  not completely ousted of the jurisdiction.  In  that view of the matter, the High Court was  therefore right in passing the order under  consideration and in the facts and  circumstances of the case to return the vehicle  to the respondent on furnishing the security.  In the premise the appeal must fail and is  dismissed.  There will, however, be no order as  to costs."              

23.     In the present case, we find that for determining the  nature of amendment, the question is whether it affects the  legal rights of individual workers in the context that if they fall  within the definition then they would be entitled to claim  several benefits conferred by the Act. The amendment should  be also one which would touch upon their substantive rights.  Unless there is a clear provision to the effect that it is  retrospective or such retrospectivity can be implied by  necessary implication or intendment, it must be held to be  prospective. We find no such clear provision or anything to  suggest by 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. In so far 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 31.8.1982.  However, the amendment itself was not  brought into force immediately and in sub-section (1) of  Section 1 of the Amending Act, it was provided that it would  come into force on such day as the Central Government may  be Notification in the official Gazette, appoint. Ultimately, by a  Notification the said amendment was brought into force on  21.8.1984.  Although this Court has held that the amendment  would be prospective if it is deemed to have come with 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.

24.     Therefore, by the application of the tests mentioned  above, it is clear that the definition of workman as amended  must, therefore, presumed to be prospective.

25.     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 the workman is  dismissed, it is usually contended (as has been done in the  present case) that the relevant conditions precedent for

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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.1000/- 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 Act 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 N  and 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.

26.     In Burmah Shell’s case (supra) it was held as follows:

In this connection, we may take notice of  the argument advanced by Mr. Chari on behalf  of the Association that, whenever a technical  man is employed in an industry, it must be  held that he is employed to do technical work  irrespective of the manner in which and the  occasions on which the technical knowledge of  that person is actually brought into use. The  general proposition put forward by him was  that, if a technical employee even gives advice  or guides other workmen, it must be held that  he is doing technical work and not supervisory  work. He elaborated this submission by urging  that, if we hold the supervisory work done by a  technician as not amounting to his being  employed to do technical work, the result  would be that only those persons would be  held to be employed on technical work who  actually do manual work themselves.  According to him this would result in making  the word "technical" redundans in the  definition of ’workman’ even though it was  later introduced to amplify the scope of the  definition. 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 conect. There  is a clear distinction between technical work  and manual work. Similarly there is a  distinction between employments which ’are  substantially for manual duties, and  employments where the principal duties are  supervisory or other type, though incidentally  involving some manual work. Even though the  law in India is different from that in England,  the views expressed by Branson, J., in Appeal  of Gardner : In re Maschek : In re Tyrrell  [1938] 1 All E.R. 20 are helpful, because, there  also, the nature of the work had to be  examined to see whether it was manual work.

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As examples of duties different from manual  labour, though incidentally involving manual  work, he mentioned cases where a worker (a) is  mainly occupied in clerical or accounting work,  or (b) is mainly occupied in supervising the  work of others, or (c) is mainly occupied in  managing a business or a department, or (d) is  mainly engaged in salesmanship, or (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  scientific knowledge as distinguished from  manual dexterity. Another helpful illustration  given by him of the contrast between the two  types of cases was in the following words :-

"If one finds a man employed  because he has the artistic faculties  which will enable him to produce  something wanted in the shape of a  creation of his own, then obviously,  although it involves a good deal of  manual labour, he is employed in  order that the employer may get the  benefit of his creative faculty."

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 they 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."

27.     In Hussain Mithu Mhasvadkar v. Bombay Iron & Steel  Labour Board and Anr.  (2001 (7) SCC 394) it was held that  while deciding the status of the person, nature of work is  really relevant. The High Court has referred to the evidence of  the appellant. He had admitted in his evidence that apart from  the advice to the management from time to time, he had other  independent functions such as preparation of draft enquiry  report and conducting domestic enquiries. In his cross- examination he had further admitted that he had tendered  legal advise in all the four branches and factory of the  company at Worli. He also admitted that on many occasions  he had drafted management enquiry and it was his duty to  hold conferences with the advocates in relation to the  company’s acts.  He also admitted that as an employee in the  category of management staff, his conditions of service were  different than those provided for the workers of the Company.   He also admitted that leave given to him were not applicable

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under the settlement.  He also admitted that he was covered  under the Pension Scheme which did not apply under the  settlement with employees.   

28.     In view of the aforesaid factual position, the order of the  learned Single Judge and the impugned judgment of the  Division Bench do not suffer from any infirmity to warrant  interference. Learned counsel for the appellant tried to  distinguish the judgment in the Ruston & Hornsby (I) Ltd.  case (supra) on the ground that there legal assistant had  licence to practice.  As rightly submitted by learned counsel  for the respondent no distinction was made by this Court on  the only ground that licence and in paragraph 16 the  distinction was made on the basis of duties.  In a recent case  in Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash  Srivastava and Anr. (2007 (1) SCC 491) question of legal  assistant was also considered.  In that case the definition  between occupation and profession was highlighted.   

29.     The appeals are sans merit, deserve dismissal which we  direct.