Supreme Court in Sharad Kumar v. Government of NCT of Delhi and others (referred supra) and ultimately it was held in paragraph No.31 as under: Testing the case in hand on the touchstone of the principles laid down in the decided cases we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/ 22/04/1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the Section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable. It is, therefore, only appropriate that the Commissioner of Labour, confine the area of scrutiny available to him to these four (4) corners of law. So far as the consequential relief as prayed for by the petitioners is concerned, it cannot be granted by this Court at this stage. Accordingly, the writ petitions stand disposed of. No order as to costs. All the miscellaneous petitions pending in these writ petitions shall stand closed.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION Nos.646 of 2015  

02-04-2015

Sukeshini Kalohe D/o Late Kishan Kalokhe H.No.15-15-179, Sudarshan Nagar Colony  
Opp. H.C.U. Bus Depot, Hyderabad-19.Petitioner

The State of Telangana  Rep. by its Principal Secretary Department of Labour,
Secretariat,Hyderabad-500 004 and 2 others.Respondents  

Counsel for the petitioners :  M/s U.D. Jai Bhima Rao

Counsel for the respondents:
                              1. G.P. for Revenue Labour (TG)
                              2. Sri S. Ravi for Sri A. Sanjay Kishore
       

<GIST:

>HEAD NOTE:  

? Cases referred
1.      (2002) 4 Supreme Court Cases 490
2.      AIR 1953 SC 53
3.      AIR 2000 SC 915
4.      AIR 1967 SC 678
5.      (1970) 3 SCC 378
6.      (1994) 3 SCC 737
7.      (1989) 3 SCC 271
8.      (1985) 2 SCC 103
9.      (1994) 3 SCC 510
10.     AIR 1966 SC 305


THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION Nos.646, 950 and 3300 of 2015  

COMMON ORDER:    

        All these 3 cases raise a common question of law and hence
they are dealt with together. The opposite parties, in particular the
contesting respondent is the same in all the three cases.
        The petitioner in W.P.No.646 of 2015 was employed as an
Assistant Consultant with the 3rd respondent company, which is
considered a Gaint amongst Indian Information Technology and
Information Technology enabled service providers. The petitioner in
this case joined the 3rd respondent  company on 25.04.2012.
        The petitioner in W.P.No.950 of 2015 was also employed as
an Assistant Consultant from April, 2011 by the 3rd respondent.
        The petitioner in W.P.No.3300 of 2015 was employed as an
Assistant Consultant from June, 2007 by the 3rd respondent.
        The 3 petitioners in a sense are aggrieved by the respective
communications issued by the 3rd respondent setting out that their
respective continued employment with the company is not
warranted and hence would be relieving them from employment
from the 30th day of the letter of discontinuance of employment.
        It is the common case of the petitioners that they have
approached the Commissioner of Labour urging him to conciliate
the industrial dispute and make an appropriate reference for
adjudication by the competent Labour Court/ Industrial Tribunal.
The petitioners have also sought for consequential direction to the
3rd respondent to await the resolution of the Industrial Dispute
before giving effect to the order of termination of their respective
employments.
        On behalf of the 3rd respondent  company, its Human
Resources Head at Hyderabad has filed a detailed counter-affidavit
inter alia pointing out that the 3rd respondent is the countrys
largest software company with a work-force of 3,15,000 employees
operating in diverse sectors ranging from banking solutions to
Formula One racing technology in various geographies across time-
zones worldwide. It is also asserted that the 3rd respondent has
been the largest private sector employer in the country and the
employee retention rate of the 3rd respondent has been the best
among the companies in the Information Technology sector. It was
further urged that the specialized information technology needs of
the 3rd respondent can brook anything other than 0 error rate and
if the skills possessed by the employees in charge of projects and
modules are inadequate that would cause serious repercussions
not only on the 3rd respondent company but its customers.  It is
brought out that there are in-house procedures which have been
formulated and reviewed consistently for the performance
assessment of the individual employees and also put in place
redressal mechanism of any grievance. It is the specific assertion
that employees occupying the positions of Assistant Consultant
and above are in the Managerial cadre and hence their
performance review is undertaken by a multimember body for
ensuring fairness in all respects. It is further stated that
employees, whose skills are found not matching with the
requirements of the organization are put through a detailed exit
process. Since the respective writ petitioners are managerial cadre
employees of the 3rd respondent, they cannot invoke the provisions
of the Industrial Disputes Act (for short henceforth the Act).
        Heard Sri U.D.Jai Bhima Rao, learned counsel for the
petitioners and Sri S.Ravi learned Senior Counsel for Sri A.Sanjay
Kishore on behalf of the 3rd respondent.
        The principal contention advanced by Sri U.D.Jai Bhima Rao
is that the 3rd respondent answers the description of  Industry
and the petitioners answer the definition of workman as spelt out
in the Act. It is further contended that the process of adjudication
as to whether one is a workman or not has got to be decided by the
Labour Court/Industrial Dispute Tribunal or the other mechanism
provided for under the Act and it is not open to the Labour
Commissioner, while performing his role as a conciliator to
adjudicate any such dispute. It is also further urged by the learned
counsel for the petitioner, placing reliance upon the judgment
rendered by the Supreme Court in Sharad Kumar v.
Government of NCT of Delhi and others  that the dispute
between the workman and the 3rd respondent has got to be
referred by the conciliator/Government, to the forum concerned,
and they cannot adjudicate any such dispute.
        Sri S.Ravi, learned senior counsel, appearing for the 3rd
respondent would place reliance upon the judgment rendered by a
Division Bench of Madras High Court on 03.03.2015 in W.A.No.99
of 2015, which considered an identical question between the 3rd
respondent company and one other employee, like that of the
petitioners herein, stationed at Chennai and upheld the plea of the
3rd respondent- company.
        It will be appropriate to notice the provisions contained in
Sections 2 (k), 2 (s) and 10 of the Act, where the relevant
expressions have been defined.
Section 2(k)- "industrial dispute" means any
dispute or difference between employers and
employers, or between employers and workmen, or
between workmen and workmen, which is  
connected with the employment or non-employment  
or the terms of employment or with the conditions
of labour, of any person."
In Section 2(s) 'workman' is defined as follows :
"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-
(i) who 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
(ii) who is employed in the police service or as an
officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory capacity,
draws wages exceeding one thousand six hundred  
rupees per mensem or exercise, 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."
Section 10. Reference of disputes to Boards, Courts
or Tribunals:- (1) Where the appropriate
Government is of opinion that any industrial
dispute exists or is apprehended, it may at any
time, by order in writing-
(a) refer the dispute to a Board for promoting a
settlement thereof, or
(b) refer any matter appearing to be connected with
or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it
relates to any matter specified in the Second
Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be
connected with, or relevant to the dispute, whether
it relates to any matter specified in the Second
Schedule or the Third Schedule, to a Tribunal for
adjudication.
    At the very outset it will be profitable to note that the power to
make a reference under Section 10 of the Act is purely
administrative power and consequently the order of reference made
by the appropriate Government is a pure and simple administrative
order in contrast to a quasi judicial one, where a determination of
rights of parties is attempted. In this context, it is instructive to take
note of the view of the Constitution Bench speaking through
M. Patanjali Sastri, C.J in State of Madras Vs. C.P. Sarathy and
Anr .
17. This is, however, not to say that the
Government will be justified in making a reference
under section 10(1) without satisfying itself on the
facts and circumstances brought to its notice that
an industrial dispute exists or is apprehended in
relation to an establishment or a definite group of
establishments engaged in a particular industry,
and it is also desirable that the Government should,
wherever possible, indicate the nature of the
dispute in the order of reference. But, it must be
remembered that in making a reference under
section 10(1) the Government is doing an
administrative act and the fact that is has to form
an opinion as to the factual existence of an
industrial dispute as a preliminary step to the
discharge of its function does not make it any the
less administrative in character. The Court cannot,
therefore, canvass the order of reference closely to
see if there was any material before the Government
to support its conclusion, as if it was a judicial or
quasi-judicial determination. No doubt, it will be
open to a party seeking to impugn the resulting
award to show that what was referred by the
Government was not an industrial dispute within
the meaning of the Act, and that, therefore, the
Tribunal had no jurisdiction to make the award.
       
        The Supreme Court crystallized the principles in
The Secretary Indian Tea Association Vs. Ajit Kumar Barat &
Ors  as under:
This law on the point may briefly be summarized
as follows:
1. The appropriate Government would not be
justified in making a reference under Section 10 of
the Act without satisfying itself on the facts and
circumstances brought, to its notice that an
industrial dispute exists or apprehended and if
such a reference is made it is desirable wherever
possible, for the government to indicate the nature
of dispute in the order of reference;
2. The order of the appropriate Government making
a reference under Section 10 of the Act is an
administrative order and not a judicial or quash-
judicial one and the Court, therefore, cannot
canvass the order 6f the reference closely to see if
there was any material before the Government to
support its conclusion, as if it was a judicial or
quail-judicial order;
3. An order made by the appropriate government
under Section 10 of the Act being an administrative
order no lis is involved, as such an order is made
on the subjective satisfaction of the Government;
4. If it appears from the reasons given that the
appropriate government took into account any
consideration irrelevant or foreign material, the
Court may in a given case consider the case for a
writ of mandamus and;
5. It would, however, be open to party to show that
what was referred by the Government was not an
industrial dispute within the meaning of the Act.
        In May and Baker (India) Ltd. v. Workmen  a three
Judge Bench of the Supreme Court speaking through
K.N. Wanchoo, J (as he then was) construed the provision of
Section 2 (s), as it stood before the amendment of 1956 and held
as under:

9. The next contention on behalf of the company is
with respect to the order of reinstatement of
Mukherjee. The company's case is that Mukerjee
was discharged with effect from April 1, 1954. At
that time the definition of the word "workman"
under Section 2(s) of the Industrial Disputes Act
did not include employees like Mukerjee who was a
representative. A "workman" was then defined as
any person employed in any industry to do any
skilled or unskilled manual or clerical work for hire
or reward. Therefore, doing manual or clerical work
was necessary before a person could be called a
workman. This definition came for consideration
before industrial tribunals and it was consistently
held that the designation of the employee was not of
great moment and what was of importance was the
nature of his duties. If the nature of the duties is
manual or clerical then the person must be held to
be a workman. On the other hand if manual or
clerical work is only a small part of the duties of the
person concerned and incidental to his main work
which is not manual or clerical, then such a person
would not be a workman. It has, therefore, to be
seen in each case from the nature of the duties
whether a person employed is a workman or not,
under the definition of that word as it existed before
the amendment of 1956. The nature of the duties of
Mukerjee is not in dispute in this case and the only
question, therefore, is whether looking to the nature
of the duties it can be said that Mukerjee was a
workman within the meaning of Section. 2(s) as it
stood at the relevant time. We find from the nature
of the duties assigned to Mukerjee that his main
work was that of canvassing and any clerical or
manual work that he had to do was incidental to
his main work of canvassing and could not take
more than a small fraction of the time for which he
had to work. In the circumstances the tribunal's
conclusion that Mukerjee was a workman is
incorrect. The tribunal seems to have been led away
by the fact that Mukherjee had no supervisory
duties and had to work under the directions of his
superior officers. That, however, would not
necessarily mean that Mukerjee's duties were
mainly manual or clerical. From what the tribunal
itself has found it is clear that Mukerjee's duties
were mainly neither clerical nor manual. Therefore,
as Mukerjee was not a workman his case would not
be covered by the Industrial Disputes Act and the
tribunal would have no jurisdiction to order his
reinstatement.  

        Therefore, whether or not the employee answers the
expression workman has to be examined in each case going by
the nature of the duties in main performed by such a person and
any other work performed which was purely incidental to his main
work occupying a small fraction of time for which he had to work is
of no significance. Hence it has to be taken as a guiding principle
that in order to fall within the meaning of the expression
workman as per Section 2 (s) of the Act, a person has to be
engaged for discharging any of the types of work enumerated in the
first portion of the said provision and in case the nature of work
mainly performed by such a person does not fall within the ambit
of the first portion of that section, it is not necessary to consider
the question whether his case is also covered within any of the
classes of workman excluded under the later part of that section.
The whole concentration, therefore, centers around upon the main
nature of duties assigned and performed by the employee
concerned regularly without unduly worrying about the incidental
nature of duties discharged. While deciding this question the
designation of employee is not of much significance or importance
and certainly not conclusive in the matter as to whether or not he
is a workman under Section 2 (s) of the Act. Similar view was
expressed in Burmah Shell Oil Storage and Distribution Co. of
India Ltd. v. Burma Shell Management Staff Assn . The
constitution Bench of Supreme Court in H.R.Adyanthaya v.
Sandoz (India) Ltd  has culled out the relevant principle in the
following words:
        Hence the position in law as it obtains today is
that a person to be a workman under the ID Act
must be employed to do the work of any of the
categories, viz., manual, unskilled, skilled
technical, operational, clerical or supervisory. It is
not enough that he is not covered by either of the
four exceptions to the definition. We reiterate the
said interpretation.
        In Telco Convoy Drivers Mazdoor Sangh v. State of
Bihar  considering the provision contained in Section 10 (1) of the
Act the Supreme Court held as under:
        Where, as in the instant case, the dispute is
whether the persons raising the dispute are
workmen or not, the same cannot be decided by the
Government in exercise of its administrative
function under Section 10(1) of the
Act whenever the                
Government attempts to usurp the powers of the
Tribunal for adjudication of valid disputes, and that
to allow the Government to do so would be to
render Section 10 and Section 12 (5) of the Act
nugatory
       
        In M.P.Irrigation Karamchari Sangh v. State of M.P. ,
the Supreme Court held as under:
        while conceding a very limited jurisdiction to the
State Government to examine patent frivolousness
of the demands, it is to be understood as a rule,
that adjudication of demads made by workmen
should be left to the Tribunal to
decide.. Government                
cannot bear the additional burden, it constitutes
adjudication and thereby usurpation of the
power...................................

        In S.K.Maini v. Carona Sahu Co. Ltd  and All India
Reserve Bank Employees Assn. v. Reserve Bank of India
also set out as under:
        with reference to his principal nature of duties
and functions. Such question is required to be
determined with reference to the facts and
circumstances of the case and materials on record
and it is not possible to lay down any straitjacket
formula which can decide the dispute as to the real
nature of duties and functions being performed by
an employee in all cases.

the word 'supervise' and its derivatives are not
words of precise import and must often be
construed in the light of context, for unless
controlled they cover an easily simple oversight and
direction as manual work coupled with the power of
inspection and superintendence of the manual
work of others.

        In fact all these cases have been considered by the
Supreme Court in Sharad Kumar v. Government of NCT of
Delhi and others (referred supra) and ultimately it was held in
paragraph No.31 as under:
 Testing the case in hand on the touchstone of the
principles laid down in the decided cases we have
no hesitation to hold that the High Court was
clearly in error in confirming the order of rejection
of reference passed by the State Government merely
taking note of the designation of the post held by
the respondent i.e. Area Sales Executive. As noted
earlier determination of this question depends on
the types of duties assigned to or discharged by the
employee and not merely on the designation of the
post held by him. We do not find that the State
Government or even the High Court has made any
attempt to go into the different types of duties
discharged by the respondent with a view to
ascertain whether he came within the meaning of
Section 2(s) of the Act. The State Government, as
noted earlier, merely considered the designation of
the post held by him which is extraneous to the
matters relevant for the purpose. From the
appointment order dated 21/ 22/04/1983 in which
are enumerated certain duties which the appellant
may be required to discharge it cannot be held
therefrom that he did not come within the first
portion of the Section 2(s) of the Act. We are of the
view that determination of the question requires
examination of factual matters for which materials
including oral evidence will have to be considered.
In such a matter the State Government could not
arrogate on to itself the power to adjudicate on the
question and hold that the respondent was not a
workman within the meaning of Section 2(s) of the
Act, thereby terminating the proceedings
prematurely. Such a matter should be decided by
the Industrial Tribunal or Labour Court on the
basis of the materials to be placed before it by the
parties. Thus the rejection order passed by the
State Government is clearly erroneous and the
order passed by the High Court maintaining the
same is unsustainable.
        It is, therefore, only appropriate that the Commissioner
of Labour, confine the area of scrutiny available to him to these
four (4) corners of law.
        So far as the consequential relief as prayed for by the
petitioners is concerned, it cannot be granted by this Court at
this stage.
        Accordingly, the writ petitions stand disposed of. No order as
to costs.
        All the miscellaneous petitions pending in these writ
petitions shall stand closed.
______________________________________    
JUSTICE NOOTY RAMAMOHANA RAO          
02.04.2015 

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