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Judgment
J.S. Khehar, C.J.—The services of respondent No. 2 were dispensed with by issuing a three months'' notice, vide an order dated 06.10.1998. He, accordingly, issued a demand notice under the provisions of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act). On the failure of conciliation proceedings, the matter came to be placed before the Deputy Labour Commissioner. Despite the failure of conciliation proceedings, the Deputy Labour Commissioner declined to refer the dispute raised by respondent No. 2 for adjudication before an appropriate Labour Court-cum-Industrial Tribunal. It is therefore, that respondent No. 2 approached this Court by filing Writ Petition (M/S) No. 207 of 2002. During the course of the proceedings before the Writ Court, it emerged that the Deputy Labour Commissioner had arrived at the conclusion, that respondent No. 2 was not a workman within the meaning of Section 2(z) of the Act. It is therefore, that the reference had been declined.
The learned Single Judge disposed of the aforesaid writ petition by an order dated 05.05.2010, wherein it was concluded that the issue, whether or not respondent No. 2 was a workman, had to be adjudicated by the Presiding Officer of the Labour Court-cum-Industrial Tribunal, and that, the State Government had no jurisdiction in the matter. Reference in this behalf was made to the judgment rendered by the Supreme Court in Sharad Kumar v. Govt. of NCT of Delhi and Ors. 2002 L&ILR 269, wherein it was inter alia observed 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 April 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.
Inspite of the reference to the aforesaid judgment by the learned Single Judge, the management has preferred the instant Special Appeal, so as to assail the order dated 05.05.2010, by which Writ Petition (M/S) No. 207 of 2002 was disposed of by this Court. Before us, learned Counsel for the appellant has placed reliance on The Secretary Indian Tea Association Vs. Ajit Kumar Barat and Others, . Our pointed attention has been drawn to the following observations recorded in the aforesaid judgment:
We may also refer to the decision of this Court in Prem Kakar v. State of Haryana. In that case a question arose whether an employee was a workman. The government informed the workman that his case was not covered by the definition of the term "workman" under the Act, therefore, it refused to make a reference. The workman approached the High Court for a writ of mandamus which was dismissed. This Court was approached and the appeal was dismissed. In appeal it was contended before this Court that the question whether an employee was a workman is a disputed question of facts and law and, therefore, could only be decided by the Labour Court on a reference and not by the State Government while exercising its powers u/s 12(5) of the Act, which was rejected. The Court also held that the order of the Government acting u/s 10(1) read with Section 12(5) of the Act passed after subjective satisfaction is an administrative order and not a judicial or a quasi-judicial one. It was also held that in entertaining a writ of mandamus against such an order the court does not sit in appeal and is not entitled to consider the propriety or the satisfactory character of the reasons. However, if it appears from the reasons given in the order that the appropriate Government has taken into account any consideration which is irrelevant or foreign, then the court may in a given case consider the case of a writ of mandamus.
The appropriate Government would be justified in making a reference u/s 10 of the Act, if it is satisfied on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended and "industrial dispute" as per Clause (k) of Section 2 of the Act, means, inter alia, a dispute or difference between employers and employers, or between employers and workmen. Clause (s) of Section 2 of the Act defines "workman" but does not include any such person -
(s) (i)-(ii) * * *
(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 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.
Before making a reference u/s 10 of the Act the appropriate Government has to form an opinion whether an employee is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended.
Based thereon, it is the contention of the learned Counsel for the appellant, that it is open to the State Government to decline to make a reference of an industrial dispute to the appropriate Labour Court-cum-Industrial Tribunal in case it arrives at a conclusion, that the person concerned is not a workman within the meaning of the provisions of the Act. It is therefore the contention of the learned Counsel for the appellant, that if on consideration of prima facie merit of the case, the appropriate authority arrives at a conclusion, that an industrial dispute is not made out, it is not essential to make a reference of the same to a Labour Court-cum-Industrial Tribunal. In so far as the instant aspect is concerned, learned Counsel for the appellant has invited our pointed attention to the order passed by the Deputy Labour Commissioner, wherein it was inter alias recorded as under:
Shri Daulat Singh Pundeer states in his C.P. Application that he was appointed on the post of oilman and by successive promotions on the post of operator, supervisor, J.E., he was promoted to the post of Executive-Production and on this post, his services were terminated. Paper No. 1 i.e. Order dated 8.9.1993 of the Opposite party filed during the course of conciliation proceedings by Shri Pundeer is the Order of Shri Pundeer who in the relevant time, was working on the post of Junior Engineer, transferring to Pune. Paper No. 2 i.e. letter dated 27.03.1995 of the opposite party is related with take-over of M/s Ballarpur Industries Ltd. and M/s Arizona Printers and Packers Ltd. by Owens Built Ltd. and applying various changes being made earlier, on the management staff of O.B.L. Paper No. 3 is the order of termination in accordance with Officers Service Rules. Paper No. 4 relates to Industrial Court Poona Order dated 5.5.1999. Paper No. 5 is the wage details of Shri Pundeer. Vide Paper No. 1 - a letter dated 13.08.1982 as produced by the Opposite Party on 24.05.2000, promotion of Shri Pundeer has been effected on the post of supervisor in the pay-scale of 425-25-550-30-700-35-875-40-1075. It is stipulated in Clause 2 of the order dated 13.08.1982 that with the aforesaid pay-revision, the facilities admissible to Shri Pundeer as "workman" have ceased to be available. In this order, it is stipulated that on account of this promotion, Shri Pundeer shall be governed by service rules applicable on his cadre. The promotion of Shri Pundeer on the post of Executive-Production in level-2 is conformed by paper No. 2- letter dated 29.07.1997 by means of which his wages were fixed at Rs. 5215.00 in year 1997. The confirmation of both these orders are communicated to Shri Pundeer. The promotion order dated 13.08.1982 stipulates to segregate Shri Pundeer from the category of workman. Shri Pundeer has not stated or produced any document objecting to this. Termination by three months notice or salary in lieu of three months notice is provided in Clause 42 of the Officers'' Service Rules/Paper No. 5 as filed by the opposite party, during conciliation proceedings. In Paper No. 10-Attendence Register, the designation of Shri Pundeer also is "Officer". Paper No. 11 Logbook is signed by Shri Pundeer. Paper No. 9- leave application dated 23.05.1998 of Shri B. Singh Operator - Production, reg. No. 266, Token No. 57 has been sanctioned by Shri Pundeer. Similarly, leave application dated 17.05.2000 of Shri G.C. Verma, Operator has been sanctioned by Shri Pundeer. During the conciliation proceedings, the opposite party has filed a circular dated 11.2.1997 in its documents filed on 17.05.2000, which are the directions to management staff and which is communicated to Shri Pundeer also, by obtaining his signatures.
It is therefore the case of the learned Counsel for the appellant, that since respondent No. 2 was not a workman, the dispute raised by him could not have been referred to a Labour Court-cum-Industrial Tribunal.
We have minutely examined the consideration of the matter at the hands of the Deputy Labour Commissioner, to which our attention has been invited by the learned Counsel for the appellant. The Deputy Labour Commissioner has not recorded any expressed finding to the effect, that respondent No. 2 was employed mainly in a managerial or administrative capacity, nor has any finding been recorded therein, that respondent No. 2 was employed in a supervisory capacity. Merely because respondent No. 2 had sanctioned leave in one case, or some other such trivial matter, can not in our view constitute the basis of inferring the respondent No. 2 was discharging duties in a supervisory capacity. In view of the above, we are satisfied that the learned Single Judge was fully justified in directing the State Government to make a reference of the dispute raised by respondent No. 2 to an appropriate Labour Court-cum-Industrial Tribunal.
The instant special appeal is accordingly hereby dismissed.