Case: C. Gupta Vs. Glaxosmithklin Pharmaceutical Limited & Another


Decision:
1[ds]7.In this regard we have perused the detailed findings of the impugned judgment in which learned Single Judge has concluded that it would be the unamended old definition of the term workman existing prior toand which was in force on the date of termination of the services of the appellant i.e. onwhich would govern the facts in the present case. On perusal of the reasons, we find that the same are cogent, acceptable and without any error in law. However, we would briefly like to set out reasons in thisthe present case we find that the nature of amendment is one which clearly affects the legal rights of individual workers in so far as it is only if they fall within the definition that they would be entitled to claim several benefits conferred by the Industrial Disputes Act. The amendment is also one which would touch upon their substantive rights. Therefore, by the application of the tests mentioned above, it is clear that the definition of workman as amended must therefore, presumed to be prospective unless there is a clear provision to the effect that it is retrospective or such retrospectivity can be implied by necessary implication or intendment. We find no such clear provision or anything to suggest necessary implication or intendment either in the amending Act or in the amendment itself. The Amendment cannot be said to be one which affects procedure. In so far as the amendment substantially changes the scope of the definition of the term workman, it cannot be said to be merely declaratory or clarificatory. In this regard we find that entirely new category of persons who are doing "operational" work was introduced first time in the definition and the words "skilled" and "unskilled" were made independent categories unlinked to the word "manual". It can be seen that the Industrial Disputes (Amendment) Act, 1984 was enacted by Parliament onHowever, the amendment itself was not brought into force immediately and in(1) of the amending Act it was provided that it would come into force on such day as the Central Government may by Notification in the Official Gazette, appoint. Ultimately by a Notification the said amendment was brought into force onAlthough the Apex Court has held that the amendment would be prospective if it is deemed to have come with effect on a particular day, a provision in the amendment Act to the effect that amendment would become operative in the future would have similarthe judgment of the Division Bench of the Gujarat High Court the question as to whether section 2(s) as amended by Act 46 of 1982 was prospective or retrospective in its operation was not specifically dealt with. No doubt it was further argued before the Gujarat High Court that even if Gujarat amendment to section 2(s) had already come into force w.e.f. 1st August, 1981 even then no valid reference could have been made as the petitioners services had been terminated oni.e. at a point of time when the Gujarat amendment to the definition of workman had not come into force and therefore, the petitioner in that case was not a workman atleast on the date that his services were terminated. That contention was negated by the Division Bench of the Gujarat High Court on the footing that on the date of the reference, the petitioner therein fell within the definition of the workman as existing on the date of the reference. We have however, given our reasons as to why section 2(s) as amended by (Act 46) 1982 can only be prospective and cannot be said to be retrospective in its operation. Once this is accepted, then in our view, the definition of the word workman as prevailing on the date of termination must be taken to be the touchstone to decide a dispute. The definition of the term workman as existing on the date of the reference would have no bearing on the issue required to be decided. To this extent, we cannot agree with the conclusion of the Division Bench of the Gujarat High Court to the effect that the definition of the word "workman" as existing on the date of the reference would be the definition which would have to be applied.12. In this regard we would like to give one further reason as to why the definition of workman as prevailing on the date of dismissal should be taken into account. When a workman is dismissed, it is usually contended (as has been done in the present case) that the relevant conditions precedent for retrenchment under sectionhaving not been followed and that therefore, the termination is illegal. Sectionof the Industrial Disputes Act, 1947 lays down that contravention of the provision of sectionshall be punishable with imprisonment for a term which may extend to one month or with fine which may extend to Rs.1000/or with both. It is therefore clear that on the date of dismissal, the employer must act according to the then prevailing provision of law. It is only in respect of a workman who is then within the definition of section 2(s) of the Industrial Disputes Act, 1947 that the employer is required to follow the condition mentioned in sectionfailing which he will commit an offence. If the employee so dismissed, later becomes a person who is a workman within an expanded definition brought about by a subsequent amendment held to be of retrospective nature, the employer will be rendered punishable for an offence under sectionas this would amount to the employer being punishable for an offence, which he could not have envisaged on the date of dismissal. This would be violative of Article 20(1) of the Constitution of India.For all these reasons we agree with the judgment of the learned Single Judge thatdefinition of worker under section 2(s) of the Industrial Disputes Act must be taken into consideration while deciding the present dispute.Having decided this question, we must record that it has not been argued before us that the appellant was doing "clerical", "manual" or "supervisory work". The only contention raised was that the appellant was doing "technical work". on behalf of the appellant it was contended that the term "technical work" must be given a wide meaning as being any work which requires any kind of technique. It was contended that work beyond the field of science such as in the field of Arts or profession must also fall within the definition of "technical work". However, on behalf of the company, it was contended that the term "technical work" must be held to have affinity to technology and science and should be given a narrower meaning.Deshmukh submitted that the plain dictionary meaning as well as the meaning given to the term on authority points to the fact that the term on "technical" cannot be restricted to the field of technology and science and could include work in the fields of art and professions. In determining whether the work is "technical" the question as to whether the work could involve application of any technique would be relevant. Mr. Deshmukh further submitted that a Law Officer, who has to formulate opinion in order to give legal advice would have to apply specialised knowledge. The formulation of opinion would also include the use of techniques for the interpretation of the law. In so far as Gauhati High Courts judgment is concerned, he submitted that the same is based on an inaccurate interpretation of the judgment of the Apex Court in the case of B.S.O.S.D. Co. v. Management Staff Association. That case does not lay down that the work of giving advise and guidance ipso facto eliminates the employment to be one where the employee is doing technical work. The real ratio in the Burmashell case was even if the person had technical knowledge but was doing mainly supervisory work, then he could not be said to be doing technical work within the meaning of section 2(s). In fact, it was vehemently argued on behalf of the appellant that Gauhati High Court has misinterpreted the ratio of the judgment of the Apex Court in Burmashell case.28. Assuming for a moment that the duty of the appellant is technical, the question as to whether he is eliminated due to his duties being mainly managerial assumes importance. A gist of the appellants evidence relating to the nature of his duties was to the effect that he was rendering legal clarification on queries to the branch offices of the company and its factories, doing legal audit by checking if the statutory returns had been properly filled up, drafting pleadings, studying case laws for maintaining a cardex particularly in relation to the pending cases of the company. That on occasions, he used to sanction leave to the stenographer, vouch for the travelling expenses of one Mr. Lobo who was working under him, giving dictation or typing work to the Stenographer, preparing notes from Law Journals, briefing Solicitors and Advocates of the company, going through the records of domestic enquiries and notes of evidence led therein, in order to prepare a draft enquiry report for adoption by the Enquiry Officers, prepare notes of arguments alongwith relevant case laws and send them to the companys Personnel Executives at different locations. Study new Labournd hearings before the Conciliation Officer and occasionally conduct domestic enquiries.29. In the evidence adduced on behalf of the company, its Director Shri Rustam Padam Bharucha deposed that the duties of the appellant were to represent the company in Conciliation proceedings, before Government authorities under the Factories Act, E.S.I. Act, P.F. Act, Contract Labour (RegulationAbolition) Act, to represent the management as an Enquiry Officer or as the managements representative in domestic enquiries, to guide and advise the managements representative in domestic enquiries, to advise him about the line ofin such enquiries, advise about the quantum of punishment to be inflicted in disciplinary proceedings. To give advise on queries raised by the management pertaining to the interpretation of statutes or settlement with the Unions or regarding enquiries raised by Government authorities, to brief witnesses, to prepare drafts for the perusal of Counsel, to brief Counsel on facts as well as law, to be present in Court when the arguments were taking place in judicial matters related to the company, to keep in touch with the latest case laws and amendments to the labour Legislations, to ensure that the management fulfilled its obligations under the Labourto advise the management on provisions of settlement.On taking into account, the duties and functions performed by the appellant, we have no hesitation in holding that he was clearly a part of the managerial process of the company in so far as his work was used as tool and aid by the management for a proper conduct of the business of the company. It is clear from the evidence that the job of the present appellant was to secure the interest of the management. At all times his efforts were meant to be chanalised in order to ensure that the management of the company was performed along proper legal lines. We cannot accept the contention advanced on behalf of the appellant that the advise of the appellant was not worth anything as it could be discarded. In the case like this, it must be presumed that the company employed the appellant and sought his advise on the footing that the advise would be normally accepted. Apart from advising the management of the company it is clear from his own admissions that the appellant was given independent work which can only be deemed to be managerial in nature. It is evident that the company had emphasized the managerial nature of the appellants work right from the very beginning. The staff Notice dateditself mentioned that the selected candidates would have to appear before the Labour authorities such as Conciliation Officers, Labour Courts and Industrial Tribunals. An important aspect of the job would be to assist the I.R. Manager in developing the framework for settlements and in dealing with Unions. It was specifically mentioned that the post was in management staffThe designation of the post also was "Industrial Relations Executive". Of course, we are aware that in deciding the status of his employment his designation is not decisive and what should really relevant is the nature of the duties and the powers conferred upon thein a huge company is a complex business which requires various levels of managerial staff. It appears from the record that the present appellant was inof the managerial staff. There were several grades in the Management staff below him. He himself has admitted in his evidence that even apart from the giving of advise to the management from time to time, he had other independent functions such as preparing draft enquiry report in domestic enquiry and conducting domestic enquiries. In our view, these were duties pertaining to the maintenance of discipline amongst the employees which is a part and parcel of the managerial process of the company. In hishe admitted that he had carried out legal audits in all the four branches and 14 to 15 departments all over the country and the factory of the company is at Aligarh and Worli that there were occasions that he briefed the management witnesses at enquiries and it was part of his duties to hold conferences with the Advocates in relation to the companys cases. He admitted that he was an employee under the category of management staff and therefore, his conditions of service was different than those provided under the settlements governing the workers of the company. He admitted that the leave benefits given to him were not those applicable to the workers under the settlement. He admitted that he was covered under the Pension scheme which did not apply to the workers coming under the settlement. He admitted that he was notified as a Manager under the Standing Orders which were produced by the company in evidence and marked at ExhibitWe thus have no hesitation in holding that the appellant as mainly employed in a managerial capacity and would stand excluded from the definition of the term workman under section 2(s) of the Industrial Disputes Act, even if he could be said to be doing technical work. Thus we are of the view that the appellant was not a workman as his work did not fall in the first part of the definition. However, even assuming that he did so fall within the first part by virtue of his work being technical, he would be excluded since his duties were mainly managerial.