of M/S Sonepat Coop. Sugar Mills Ltd. Vs. Ajit Singh  Insc 99 (14 February 2005)
Hegde & S.B. Sinha
W I T
H CIVIL APPEAL NO.8455 OF 2002 S.B. SINHA, J:
appeals are directed against the judgments and orders dated 04.09.2001 in
L.P.A. Nos. 1311 of 1991 and 1356 of 1991 and 7.3.2002 in L.P.A. No. 1356 of
1991 passed by the High Court of Punjab and Haryana.
Respondent herein was appointed by the Appellant in the post of Legal
Assistant; the qualification wherefor was degree in law with a practicing licence.
The nature of his duties was to prepare written statements and notices,
recording enquiry proceedings, giving opinions to the Management, drafting,
filling the pleadings and representing the Appellant in all types of cases,
viz., civil, labour and arbitration references independently. He was also
conducting departmental enquiries against the workmen employed in the
industrial undertaking of the Appellant. He was placed on probation. While he
was serving the Appellant in the said capacity, allegedly a decision was taken
to abolish the said post pursuant to the recommendations of the Federation of
Cooperative Sugar Mills Ltd., as a result whereof his services were dispensed
industrial dispute was raised by the Respondent which was eventually referred
to the Labour Court by the Appropriate Government for
adjudication as regard the question as to whether the termination of his
services was justified.
contention was raised by the Appellant herein before the Labour Court that
having regard to the nature of duties performed by the Respondent, he would not
be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes
Act, 1947 (for short, 'the Act'). The Labour Court having regard to the rival contentions framed the following
Whether the applicant does not fall under the definition of workman;
Whether the termination of services of the workman is proper, justified and in
order? If not, to what relief he is entitled?" The question as to whether
the Respondent was a workman or not was taken up as a preliminary issue and by
an order dated 24.9.1982, the Labour Court opined that the job performed by the
Respondent was of 'legal clerical nature' and, thus, he would be a 'workman'
within the meaning of the provisions of the Act. In its award dated 13.11.1984,
the Labour Court came to the conclusion that the
Respondent, having been retrenched from services by the Appellant without
complying with the provisions of Section 25F of the Act, should be directed to
be reinstated with continuity of service and 50% back wages.
by and dissatisfied with the said award, both the Appellant and the Respondent
filed writ petitions before the Punjab and Haryana High Court. A learned Single Judge of the said court by a
judgment and order dated 30.8.1991, while upholding the finding of the Labour
Court to the effect that the Respondent was a workman; upon consideration of
the fact that he had since been practising as an advocate and was appointed as
an Additional District Attorney in the year 1985, awarded an amount calculated
at 50% back wages from the date of termination to the date of award, namely,
13th November, 1984 by way of compensation in lieu of his reinstatement in
Respondent filed two Letters Patent Appeals against the said judgment. The
Appellant, however, did not prefer any appeal there-against.
Division Bench of the High Court by a judgment dated 4.9.2001, set aside the
judgment of the learned Single Judge and restored the award of reinstatement
passed by the Labour Court but rejected the contention of the Respondent that
he was entitled to full back wages. It was, however, directed that the
Respondent would be free to avail remedy under Section 33-C(2) of the Act for
payment of wages for the period between the date of the award and the date of
said inter-court appeals, allegedly the name of the counsel for the Appellant
had not been shown on the date of hearing and as such it was not represented.
The Appellant preferred two Special Leave Petitions being Special Leave
Petition (Civil) Nos. 4493 and 4494 of 2002 against the said judgment. However,
on an application filed by the learned counsel appearing on behalf of the
Appellant, the said Letters Patent Appeals were restored and by reason of an
order dated 7.3.2002, the earlier directions issued on 4.9.2001 were sustained.
In its judgment dated 7.3.2002, the Division Bench merely noticed the submissions
made on behalf of the Appellant herein but otherwise the tenor of both the
judgments is similar.
U. Lalit, learned Senior Counsel appearing on behalf of the Appellant,
assailing the judgment of the High Court would submit that having regard to the
nature of duties performed by the Respondent herein, he could not be held to be
a workman within the meaning of Section 2(s) of the Act.
learned counsel would contend that the fact that the Respondent was a practicising
advocate and even after joining services, sought for non- practicising
allowance, would clearly go to show that his job was akin to that of a practicising
lawyer. The learned counsel would urge that the Labour Court, the learned Single Judge as also the Division Bench of the
High Court committed a manifest error in holding that the Respondent was a
workman on the premise that he was neither a Manager nor a Supervisor. Such an
approach, Mr. Lalit, would argue, is contrary to the well-settled principles of
law as regard interpretation of Section 2(s) of the said Act. According to the
learned counsel, having regard to the fact that the decision of this Court in
S.K. Verma vs. Mahesh Chandra and Another [(1983) 4 SCC 214] whereupon the
Division Bench placed strong reliance and other decisions following the same
having been held to have been rendered per incuriam by a Constitution Bench of
this Court in H.R. Adyanthaya and Others vs. Sandoz (India) Ltd. and Others
[(1994) 5 SCC 737], the impugned judgment cannot be sustained.
would submit that although the Appellant had not preferred any appeal against
the judgment and order passed by the learned Single Judge, having regard to the
fact that the said finding of the High Court had been rendered without jurisdiction
and in any event, the question that would fall for consideration before this
Court on the admitted fact being a pure question of law, the principle of res judicata
shall have no application in the instant case. Strong reliance in this behalf
was placed on Mathura Prasad Bajoo Jaiswal and Others vs, Dossibai N.B. Jeejeebhoy
[(1970) 1 SCC 613] Mr. Ajay Siwach, learned counsel appearing on behalf of the
Respondent, on the other hand, would contend that the Labour Court in its
interim order dated 24.09.1982 while determining the preliminary issue had
arrived at a finding that the Respondent was a workman as he had not been
performing the duties in a supervisory or managerial capacity, as he had been
mainly doing the job of a legal clerical nature which having been upheld by the
learned Single Judge as well as the Division Bench of the High Court, the
impugned judgments should not be interfered with. The learned counsel would
contend that in any event as the Appellant has not preferred any appeal against
the judgment of the learned Single Judge, the same had attained finality and,
thus, this Court should not permit the Appellant to raise the contention
there-against as to whether the Respondent is a workman or not. Reliance in
this behalf has been placed on K.K. John vs. State of Goa [(2003) 8 SCC 193].
2(s) of the Act reads as under :
"Workman" means any person (including an apprentice) employed in any
industry to do any manual, unskilled, skilled, technical, operational, clerical
or supervisory work for hire or reward, whether the terms of employment be
express or implied and for the purposes of any proceeding under this Act in
relation to an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as a consequence of,
that dispute, or whose dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person –
is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46
of 1950), or the Navy Act, 1957 (62 of 1957); or
is employed in the police service or as an officer or other employee of a
is employed mainly in a managerial or administrative capacity; or
who, being employed in a supervisory capacity, draws wages exceeding one
thousand six hundred rupees per mensem or exercises, either by the nature of
the duties attached to the office or by reason of the powers vested in him,
functions mainly of a managerial nature,."
perusal of the aforementioned provision clearly indicates that a person would
come within the purview of the said definition if he :
employed in any industry; and
any manual, unskilled, skilled, technical, operational, clerical or supervisory
a person who performs one or the other jobs mentioned in the aforementioned
provisions only would come within the purview of definition of workman. The job
of a clerk ordinarily implies stereotype work without power of control or
dignity or initiative or creativeness. The question as to whether the employee
has been performing a clerical work or not is required to be determined upon
arriving at a finding as regard the dominant nature thereof. With a view to
give effect to the expression to do "any manual, unskilled, skilled,
technical, operational, clerical or supervisory work", the job of the
concerned employee must fall within one or the other category thereof. It
would, therefore, not be correct to contend that merely because the employee
had not been performing any managerial or supervisory duties, ipso facto he
would be a workman.
Miss A. Sundarambal vs. Government of Goa, Daman and Dieu and Others [(1988) 4
SCC 42], teachers serving in an educational institution being not found to be
performing any duty within the aforementioned category has been held not to be
workmen. Similarly, an advertising manager, a chemist employed in a sugar mill,
gate sergeant in charge of watch and ward staff in a tannery, a welfare officer
in a commercial educational institution have also not been held to be workmen.
The Respondent had not been performing any stereotype job. His job involved
creativity. He not only used to render legal opinions on a subject but also
used to draft pleadings on behalf of the Appellant as also represent it before
various courts/authorities. He would also discharge a quasi-judicial functions
as an Enquiry Officer in departmental enquiries against the workmen. Such a
job, in our considered opinion, would not make him a workman.
S.K. Verma (supra), this Court without taking into consideration the earlier
binding precedents and in particular the decision of May & Baker (India) Ltd. vs. Workmen [AIR 1967 SC 678]
arrived at a conclusion that an employee who does not perform any supervisory
or managerial nature of duties, would be a workman. S.K. Verma (supra) was held
to have been rendered per incuriam by a Constitution Bench of this Court in
H.R. Adyanthaya (supra).
question came up for consideration recently before this Court in Mukesh K. Tripathi
vs. Senior Divisional Manager, LIC and Others [(2004) 8 SCC 387], wherein it
was held :
the ratio of May and Baker (supra) and other decisions following the same had
been reiterated despite observations made to the effect that S.K. Verma (supra)
and other decisions following the same were rendered on the facts of that case,
we are of the opinion that this Court had approved the reasonings of May and
Baker (supra) and subsequent decisions in preference to S.K. Verma (supra).
Constitution Bench further took notice of the subsequent amendment in the
definition of 'workman' and held that even the Legislature impliedly did not
accept the said interpretation of this Court in S.K. Verma (supra) and other
be true, as has been submitted by Ms. Jaisingh, that S.K. Verma (supra) has not
been expressly overruled in H.R. Adyanthaya (supra) but once the said decision
has been held to have been rendered per incuriam, it cannot be said to have
laid down a good law.
Court is bound by the decision of the Constitution Bench.
court opined :
definition of 'workman' as contained in Section 2(s) of the Industrial Disputes
Act, 1947 includes an apprentice, but a 'workman' defined under the Industrial
Disputes Act, 1947 must conform to the requirements laid down therein meaning
thereby, inter alia, that he must be working in one or the other capacities
mentioned therein and not otherwise.
*** *** A 'workman' within the meaning of Section 2(s) of the Industrial
Disputes Act, 1947 must not only establish that he is not covered by the
provisions of the Apprentices Act but must further establish that he is
employed in the establishment for the purpose of doing any work contemplated in
the definition. Even in a case where a period of apprenticeship is extended, a
further written contract carrying out such intention need not be executed. But
in a case where a person is allowed to continue without extending the period of
apprenticeship either expressly or by necessary implication and regular work is
taken from him, he may become a workman. A person who claims himself to be an
apprentice has certain rights and obligations under the statute." The said
decision has been followed by this Court in U.P. State Electricity Board vs. Shiv
Mohan Singh and Another [(2004) 8 SCC 402].
now trite that the issue as to whether an employee answers the description of a
workman or not has to be determined on the basis of a conclusive evidence. The
said question, thus, would require full consideration of all aspects of the
jurisdiction of the Industrial Court to make an award in the dispute would
depend upon a finding as to whether the concerned employee is a workman or not.
When such an issue is raised, the same being a jurisdictional one, the findings
of the Labour Court in that behalf would be subject to judicial review.
High Court furthermore applied wrong legal tests in following S.K. Verma
(supra) in upholding the views of the Labour Court which itself approached the
matter from a wrong angle. The Labour Court
as also the High Court also posed a wrong question unto themselves and, thus,
misdirected themselves in law.
SCALE 578], this Court held:
the instant case the Presiding Officer, Industrial Tribunal as also the learned
Single Judge and the Division Bench of the High Court misdirected themselves in
law insofar as they failed to pose unto themselves correct questions. It is now
well-settled that a quasi-judicial authority must pose unto itself a correct
question so as to arrive at a correct finding of fact. A wrong question posed
leads to a wrong answer. In this case, furthermore, the misdirection in law
committed by the Industrial Tribunal was apparent insofar as it did not apply the
principle of Res ipsa loquitur which was relevant for the purpose of this case
and, thus, failed to take into consideration a relevant factor and furthermore
took into consideration an irrelevant fact not garmane for determining the
issue, namely, the passengers of the bus were mandatorily required to be
Industrial Tribunal further failed to apply the correct standard of proof in
relation to a domestic enquiry, which in "preponderance of
probability" and applied the standard of proof required for a criminal
trial. A case for judicial review was, thus, clearly made out." .
this view of the matter, the impugned award and the judgments are not legally
It is true that the Appellant did not challenge the judgment of the learned
Single Judge. The learned Judge in support of his judgment relied upon an
earlier decision of the High Court in Rajesh Garg vs. Management of Punjab
State Tube-well Corporation Limited and Another [1984 (3) SLR 397] but failed
to consider the question having regard to the pronouncements of this Court
including H.R. Adyanthaya (supra). Rajesh Garg (supra) was rendered following
S.K. Verma (supra), which being not a good law could not have been the basis therefor.
principle of res judicata belongs to the domain of procedure.
the decision relates to the jurisdiction of a court to try an earlier
proceedings, the principle of res judicata would not come into play. [See Mathura
Prasad Bajoo Jaiswal (supra)].
identical question came up for consideration before this Court in Ashok Leyland
Ltd. vs. State of Tamil Nadu and Another [(2004) 3 SCC 1] wherein it was
principle of res judicata is a procedural provision. A jurisdictional question
if wrongly decided would not attract the principle of res judicata. When an
order is passed without jurisdiction, the same becomes a nullity. When an order
is a nullity, it cannot be supported by invoking the procedural principles
like, estoppel, waiver or res judicata" It would, therefore, be not
correct to contend that the decision of the learned Single Judge attained
finality and, thus, the principle of res judicata shall be attracted in the
placed by the learned counsel on K.K. John (supra) is misplaced. In that case a
part of the award was remitted by the court in exercise of its jurisdiction
under Section 16 of the Arbitration Act, 1940.
a contention that by reason of such remittance the entire award becomes void in
terms of sub-section (3) of Section 16, it was held:
the present case, we find that the entire award was not remitted to the
arbitrator. The arbitrator was only required to give determination on two
points, and, therefore, sub-section (3) is not applicable in the present case.
Parliament advisedly has restricted sub-section (3) of Section 16 of the Act to
an award which would mean the whole award or a part of it. The valid part of
the award always remains enforceable in a court of law.
can be held to be void is that part of the award which has not been made a rule
of court by sustaining the objections raised with regard thereto inter alia on
the ground that the same suffers from an error apparent on the face of the
record or for any other reason; in the event the arbitrator or umpire fails to
reconsider it and submit his decision within the time fixed therefor by the
other words, the word "award" within the meaning of sub-section (3)
would also include a part of the award, which has been the subject-matter of
the order of remission by the competent court. In any view of the matter, the
applicability of sub section (3) of Section 16 of the Act, in the facts and
circumstances of the present case, does not arise inasmuch as the matter is
still pending before the arbitrator" Furthermore, we are of the opinion
that the law operating in the field must be stated with precision and clarity
and in that view of the matter also it was necessary for us to deal with the
legal question raised by Mr. Lalit.
the reasons aforementioned, the impugned judgments of the Labour Court and the High Court cannot be
upheld. They are set aside accordingly. However, in the facts and circumstances
of this case and particularly in view of the fact that the Appellant was
agreeable to pay 50% back wages to the Respondent, as directed by the learned
Single Judge and further having regard to the fact that a substantial portion
thereof is said to have already been paid, we would direct the Appellant to pay
the balance amount, if any, to the Respondent in terms thereof within eight
weeks from today.
appeals are allowed with the aforementioned directions. In the facts and
circumstances of the case, there shall be no order as to costs.