Gupta Vs. Glaxosmithklin Pharmaceutical Limited  Insc 666 (25 May 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
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
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
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
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 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
5. Clause17 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 clause17
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 clause17 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
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 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
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
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 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
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
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 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
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 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
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
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
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
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  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.
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
He also admitted that leave given to him were not applicable 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.