Hussan
Mithu Mhasvadkar Vs. Bombay Iron & Steel Labour Board &
Anr [2001] Insc 466 (7
September 2001)
S. Rajendra
Babu & Doraiswamy Raju Raju, J.
The
two important questions that are put in issue in this appeal are as to:
a)
Whether the Bombay Iron & Steal Labour Board constituted under the
provisions of the Maharashtra Mathadi, Hamal and Other Manual Workers
(Regulation of Employment and Welfare) Act, 1969 hereinafter referred to as the
Act, falls within the definition of Industry within the meaning of Section 2
(j) of the Industrial Disputes Act, 1947; and
b)
Whether the appellant, appointed and working at the relevant point of time as
an Inspector, discharging duties, powers and obligations envisaged under
Section 15 answers the description of workman as defined in Section 2 (s) of
the I.D. Act, 1947.
The
appellant was working as an Inspector in the Bombay Iron & Steel Labour
Board [hereinafter referred to as the Board] from 13.3.79, having been
appointed as such on 10.3.79. On such appointment, the appellant was placed on
probation for a period of three months and after putting in a service of 21
months, an order of termination came to be made on 17.12.80. According to the
appellant, he was doing the work of supervision, detection of defaulters, other
work of clerical nature, maintenance of registers, files, preparation of
reports etc., On a dispute being raised, a reference was made under Section 10
(1) and Section 12 (5) of the I.D. Act, to the First Labour Court, Bombay, for
adjudication. By an Award dated 18.7.86, the reference was rejected as not
maintainable, on the findings recorded that the Board is not an Industry and
since the appellant was not employed in an Industry, he cannot fall within the
definition of workman, though the Labour Court also recorded a finding that the appellant was not a
workman. It was also found by the Labour Court that the appellant could not claim any automatic or deemed
confirmation and that being only a probationer his services were dispensed with
on being found not suitable for the post of Inspector.
The
appellant pursued the matter by way of a Writ Petition before the learned
Single Judge as also an appeal before a Division Bench of the Bombay High Court
unsuccessfully, resulting in the filing of this appeal. Heard Ms. Indira Jaising,
learned senior counsel for the appellant and Mr. S.S. Naphde, Senior Advocate,
for the respondents. Strong reliance has been placed upon the decision of this
Court reported in Bangalore Water Supply and Sewerage Board, etc. vs A. Rajappa
and Others, etc. [(1978) 2 SCC 213], besides inviting our attention to the
decisions reported in D.N. Banerji vs P.R. Mukherjee and Others [1953 SCR 302 =
AIR 1953 SC 58]; The Corporation of the City of Nagpur vs Its employees and
others [1960 (2) SCR 942 = AIR 1960 SC 675]; Vizagapatnam Dock Labour Board vs
Stevedores Association, Vishakhapatnam and Others [1971 (1) SCR 177 = AIR 1970
SC 1626]; H.R. Adyanthaya and Others vs Sandoz (India) Ltd. and Others [1994) 5
SCC 737] and that of a learned Single Judge of the Andhra Pradesh High Court in
Management of Dock Labour Board, Viskhapatnam vs Industrial Tribunal & Anr.
[1996 (1) Labour Law Journal 5].
The
learned senior counsel for the appellant strenuously contended that after the
decision of this Court in Bangalore Water Supply & Sewerage Boards case
(supra), it would be futile for anyone either to contend or countenance the
plea that the Board in question is not an industry so as to attract the
provisions of the I.D. Act and that the High Court should have held in favour
of the appellant on this issue and remitted the matter to the Labour Court for
an adjudication on merits of the claim as to whether the appellant was a
workman or not, since the Labour Court has chosen to record a finding on the
claim of the appellant as workman, against him solely on the ground that he was
not employed in any industry within the meaning of Section 2 (j) of the I.D.
Act. The learned senior counsel for the respondent, with equal vehemence, urged
that the Labour Court and the High Court (the learned Single Judge as well as
the Division Bench) had made a thorough examination of the facts of the case in
the light of the correct and relevant principles of law governing the matter
and rightly rejected the claim of the appellant, for cogent and convincing
reasons and that, therefore, no interference is called for in this appeal at
the instance of the appellant. Our attention was also drawn to the provisions
of the Act and the scheme framed for the protection of Bombay Iron & Steel
unprotected workers.
On a
careful consideration of the respective submissions of the learned counsel on
either side, we are of the view that in a case of the nature where the Labour
Court as well as the High Court entertained doubts about the status of the appellant
as a workman within the meaning of Section 2(s) of the I.D. Act, instead of
embarking upon an adjudication in the first instance as to whether the
respondent-Board is an Industry or not so as to attract the provisions of the
Industrial Disputes Act, ought to have refrained from doing so and taken up the
question about the status of the appellant for adjudication at the threshold
and if only the finding recorded was against the appellant refrained from
adjudicating on the larger issue affecting the various kinds of other
employees, as to the character of the Board, as an industry or not. The larger
issue should have been entertained for consideration only in a case where it is
absolutely necessary and not when the claim before it could have been disposed
of otherwise without going into the nature and character of the Undertaking
itself. For the said reason and also having regard to the submission made by
the learned senior counsel for the respondents itself that the question as to
whether the appellant falls within the definition of `workman may itself be
considered on the supposition that the Board is an industry, we propose to deal
with the status of the appellant as to whether he is a workman or not at the
first instance and if necessitated on account of our decision on that issue,
undertake the larger issue for our consideration and decision.
The
question as to what constitutes an industry for the purposes of the Industrial
Disputes Act and what are those Undertakings or Establishments or activities, which
answer the definition of `industry in Section 2(j), has been laid down
authoritatively in several decisions of this Court, including the one in the
Bangalore Water Supply and Sewerage Board case (supra) and what remains is to
apply to individual cases, the principles laid down therein to adjudge the
character of the activity or an undertaking or institution in a given case on
the touchstone of the principles laid down therein. In view of this position in
law, it becomes all the more necessary to first undertake an adjudication of
the question as to status of the appellant.
The
appellant indisputably was appointed and was working, at the relevant point of
time, as an Inspector as envisaged under Section 15 to exercise powers
conferred upon and duties and obligations enjoined on him under Section 15 of
the Act. It is useful to extract the said provision, which reads as hereunder :-
15.
(1) The Board may appoint such persons as it thinks fit to be Inspectors
possessing the prescribed qualifications for the purposes of this Act or of any
scheme and may define the limits of their jurisdiction.
(2)
Subject to any rules made by the State Government in this behalf, an Inspector
may
(a)
enter and search at all reasonable hours, with such assistants as he thinks fit,
any premises or place, where unprotected workers are employed, or work is given
out to unprotected workers in any scheduled employment, for the purpose of
examining any register, record of wages or notices required to be kept or
exhibited under any scheme, and require the production thereof, for inspection;
(b)
examine any person whom he finds in any such premises or place and who, he has
reasonable cause to believe, is an unprotected worker employed therein or an
unprotected worker to whom work is given out therein;
(c)
require any person giving any work to an unprotected worker or to a group of
unprotected workers to give any information, which is in his power to give, in
respect of the names and addresses of the persons to whom the work is given,
and in respect of payments made, or to be made, for the said work;
(d)
seize or take copies of such registers, records of wages or notices or portions
thereof, as he may consider relevant, in respect of an offence under this Act
or scheme, which he has reason to believe has been committed by an employer; and
(e) exercise
such other powers as may be prescribed:
Provided
that, no one shall be required under the provisions of this section to answer
any question or make any statement tending to incriminate himself.
(3)
Every Inspector appointed under this section shall be deemed to be a public
servant within the meaning of section 21 of the Indian Penal Code.
Section
17B of the Act mandates that no Labour Court shall take cognizance of any
offence punishable by or under the Act, except on a complaint in writing made
by an Inspector or by a person specially authorized in this behalf by the Board
or the State Government. Section 20 enables the Inspector appointed under the
Act to be notified for being deemed to be the Inspector for the purpose of
enforcement of the provisions of the Maternity Benefit Act, 1961. Section 3 of
the Act empowers the Statement Government to frame a scheme providing for
registration of employers and unprotected workers in any scheduled employment
or employments, and provide for regulating the terms and conditions of work of
registered unprotected workers and also make provision for the general welfare
in such employments and that as a matter of fact for the class or category of
workers in question, a scheme known as Bombay Iron & Steel Unprotected
Workers (Regulation of Employment and Welfare) Scheme, 1970 came to be made and
duly published.
The
first issue out of the total number of five issues formulated by the Labour Court in this case as to whether the
appellant was not a workman under Section 2 (s) of the Industrial Disputes Act,
was answered in the affirmative and against the appellant. In reaching this
conclusion after adverting to the materials placed on record the Labour Court stated as follows:
.Hence,
on facts, it can be said that Mr. Mhasvadkar has not stated any clerical duties
except those of writing the registers. On the contrary, he has admitted his
main duty is to prosecute the employers. Under these circumstances, it cannot
be said that the Inspector appointed under the Mathadi Act is doing the
clerical work mainly. He may be required to do some writing work but that is
not the main duty of Mr. MhasvadkarOn facts, I do not agree with the argument
of the learned advocate for Mr. Mhasvadkar that his duties were of clerical
nature. [para 13] This finding of fact recorded by the Labour Court was affirmed by the learned Single
Judge who stated, I also uphold the finding of the First Labour Court that the
petitioner is not a workman. [para 16] In spite of all these, it cannot be
stated that this aspect was not considered by the Labour Court or by the High Court in the writ
petition and, there is any need or justification for this Court to direct the Labour Court or High Court, to go in to and
decide this question, once over again.
No
doubt, in deciding about the status of an employee, his designation alone
cannot be said to be decisive and what really should go into consideration is
the nature of his duties and the powers conferred upon as well as the functions
assigned to him.
Even
if the whole Undertaking be an Industry, those who are not workmen by
definition may not be benefited by the said status. It is the predominant
nature of the services that will be the true and proper test. Operations of the
Government which are pure and simpliciter administrative and of Governmental
character or incidental thereto cannot be characterized to be industrial in
nature, be it performed by a department of the Government or by a specially
constituted statutory body to whom anyone or more of such functions are
delegated or entrusted with. When, as in this case, as disclosed from Section
15 of the Act as also the provisions of the scheme, the primary duties of an
employee and the dominant purpose, aim and object of employment was to carry
out only certain specific statutory duties in the matter of effective
enforcement and implementation of the welfare scheme in order to ameliorate and
rehabilitate a particular cross section of labour, and, if need be, on the
basis of his own decision which calls for an high degree of discretion and
exercise of power to prosecute the violator of the provisions of the Act, Rules
and the provisions of the scheme, we are unable to accord our approval to the
claim made on behalf of the appellant that he can yet be assigned the status of
a workman, without doing violence to the language of Section 2 (s) and the very
purpose and object of the I.D. Act, 1947. That apart, even judging from the
nature of powers and the manner of its exercise by an Inspector, appointed
under the Act, in our view, the appellant cannot be considered to be engaged in
doing any manual, unskilled, skilled, technical, operational, clerical or
supervisory work and the mere fact that in the course of performing his duties
he had to also maintain, incidentally, records to evidence the duties performed
by him, day-to-day, cannot result in the conversion of the post of Inspector
into any one of those nature noticed above, without which, as held by a
Constitution Bench of this Court in the decision in H.R. Adyanthayas case
(supra), the appellant cannot fall within the definition of `workman. The
powers of Inspector and duties and obligations cast upon him as such are
identical and akin to law enforcing agency or authority and also on par with a
prosecuting agency in the public law field.
Consequently,
we find no error in the ultimate decision of the High Court denying relief to
the appellant. In view of this, we are not called upon to decide the larger
issue and the said question is left open for consideration in an appropriate
case, as and when found to be necessary. The appeal fails and shall stand
dismissed. No costs.
J.
[ S. Rajendra
Babu ] J.
[ Doraiswamy
Raju ] September 7, 2001.
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