Engineering & Indust.Ltd. Vs. Jaswant Singh & ANR.  INSC 622 (11
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 &
Mukundakam Sharma, J.
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.
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.
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
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.
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.
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
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
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.
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.
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.
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:
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."
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:
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
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:
"In our opinion, the power of the Labour Court under Section 11-C of the
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
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.
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
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
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
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.
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.
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.
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.
of termination also could not have been examined and scrutinized as such power
and jurisdiction is not vested with the Labour Commissioner.
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
....................................... J. [Anil R. Dave]
August 11, 2010.