THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos.1273 & 1295 of 2004 COMMON ORDER: In these two writ petitions, similar questions of fact and law arise. Hence, they are disposed of through a common order. The petitioner is a Society registered under the A.P. Societies Registration Act and runs Industrial Exhibition in Hyderabad apart from undertaking other activities. Respondent No.2 in both the writ petitions (for short ‘the respondents’) were appointed as Assistant Engineer (Civil) and Administrative Officer respectively in the year 1998. Both of them were put on probation for a period of six months. The orders of appointment inter alia provide for the declaration of probation on completion of six months or extension thereof. It is also mentioned that the respondents shall be under obligation to do work beyond office hours when the Exhibition is on. The respondents filed M.P.Nos.24 and 25 of 2002 before the Industrial Tribunal-II, Hyderabad under Section 33-C (2) of the Industrial Disputes Act,1947 (for short ‘the Act’). According to them, the petitioner issued a Circular, dated 31.10.1998, directing that the staff members of the Society shall be under obligation to work from 7.00 p.m. to 9.00 p.m. from 07.11.1998 to 28.02.1999 and that they shall be entitled to be paid 70% extra remuneration for the said period. Their grievance was that though the benefit of the Circular was extended to all other employees, they were not paid any extra remuneration for the said period. The petitioner filed counters opposing the Miscellaneous Petitions. A serious objection was raised as to the very maintainability of the cases on the ground that the respondents do not answer the description of ‘workman’ as defined under Section 2(s) of the Act. The Tribunal passed separate orders, dated 17.09.2003, allowing the claims of the respondents. Hence, these writ petitions. Sri T.S.Praveen Kumar, learned counsel for the petitioner, submits that not only by the very description of the Offices held by the respondents, but also the nature of duties undertaken by them, it is evident that they have been discharging administrative or at least supervisory functions and the petitions filed by them were not at all maintainable in law. He contends that the respondents stand excluded from the definition of ‘workman’ by application of Clauses (3) and (4) of Section 2(s) of the Act. He further contends that the Labour Court did not adopt the correct perspective of the said provision and the orders impugned cannot be sustained in law. Sri Vedula Venkata Ramana, learned counsel for the respondents, on the other hand, submits that they were described as Assistant Civil Engineer and Administrative Officer respectively. They did not have any managerial powers and they have been required to work as any other ordinary employee of the petitioner. He further submits that the Labour Court has undertaken extensive discussion based on the oral and documentary evidence and the findings recorded thereon do not warrant interference. The respondents were engaged as Assistant Civil Engineer and Administrative Officer respectively. They approached the Tribunal by filing petitions under Section 33-C (2) of the Act, claiming the benefit under Circular, dated 31.10.1998, issued by the Society providing for payment of extra remuneration during exhibition time. The issue in these writ petitions is not much about the entitlement of the respondents to be paid that amount. It is as regards the very maintainability of the petitions filed by them. The remedy under Section 33-C (2) of the Act is available only to the persons, who answer the description of ‘workman’, as defined under Section 2(s) of the Act. The provision reads as under: “Section 2 (s): ‘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 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.” This has been interpreted on umpteen number of occasions by various Courts. A perusal of the provision discloses that certain categories of employees are excluded from the definition of workman. Clauses (3) and (4) of Section 2 (s) of the Act become relevant in this regard. If an employee is assigned managerial or administrative functions of an establishment irrespective of the salary paid to him, he stands excluded from the definition of ‘workman’. So far as the employees, who are required to undertake supervisory functions are concerned, they stand excluded if only their remuneration exceeds Rs.1,600/- per month. Respondent No.2 in W.P.No.1295 of 2004 was admittedly appointed as Administrative Officer. Not only his description, but also the duty chart which is made part of the record discloses that almost every employee including those who are on administrative and supervisory wings are required to take instructions from him. Therefore, the question of treating him as workman as defined under Section 2(s) of the Act does not arise. Respondent No.2 in the other writ petition was appointed as Assistant Civil Engineer. He contends that he too was discharging administrative functions. Even if that is to be ignored, it is not difficult to discern the nature of duties and functions to be discharged by him. A Civil Engineer would at least undertake supervisory functions though not functions which are superior in nature. The question of a Civil Engineer undertaking or discharging functions of a workman does not arise. In his evidence, he did not mention that he performed the duties of a workman. Therefore, the finding recorded by the Labour Court that the respondents answer the description of workman cannot be sustained in law. It is not as if the respondents must answer the description of workman to be entitled to be paid the extra remuneration. If they felt that they are entitled to be paid the amount as per the Circular, they could have certainly approached a different forum, but not the Industrial Tribunal. Therefore, the writ petitions are allowed and the impugned orders are set aside. It is, however, made clear that in case any amount was already paid to the respondents-employees, the petitioner shall not be entitled to recover the same and if the amount is not paid as yet, it shall be open to the respondents to initiate such steps as are open to them in law. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J Dt: 18.11.2010. Note: L.R. copy to be marked. (B/o) kdl