* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No. 890/2009 & CM No. 1973/2009 % Date of Decision: 03rd August, 2009 # State of Haryana and Others ..... PETITIONERS ! Through: Mr. S.N. Sharma VERSUS $ S.D. Dubey .....RESPONDENT ^ Through: Nemo. CORAM: Hon'ble MR. JUSTICE S.N. AGGARWAL 1. Whether reporters of Local paper may be allowed to see the judgment? NO 2. To be referred to the reporter or not?NO 3. Whether the judgment should be reported in the Digest?NO S.N.AGGARWAL, J (ORAL) The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking to challenge an award dated 13.12.2007 passed by the Central Government Industrial Tribunal, New Delhi by which the petitioners have been directed to pay 15 days wages for every completed year of service to the respondent as per the provisions of Section 25-F of the Industrial Disputes Act, 1947. 2. The respondent was appointed as a Deputy Mining Engineer with the petitioners w.e.f. 20.07.1993. His services were terminated w.e.f. 03.03.2003. The Industrial Adjudicator vide its impugned award has found the termination of the respondent neither legal nor just. 3. Mr. S.N. Sharma, learned counsel appearing on behalf of the petitioners has argued that the respondent was not a workman within the W.P.(C) No.890/2009 Page 1 of 3 meaning of Section 2(s) of the Industrial Disputes Act, 1947 and for that reason, according to him, the impugned award cannot be sustained in law. This objection that the respondent is not a workman was taken by the petitioner even before the Court below but without any success. The relevant portion of the impugned order on this aspect is extracted below:- “ The management has to prove that the workman was competent to watch over the work of the juniors and submit reports regarding their work in managerial or administrative office. There must be some sub-ordinate employees as the administrator has the power to inspect the work of those subordinate and submit confidential reports to the higher authorities. It is for the management to prove that the workman has been assigned managerial duty. The workman cannot be said to be a manager or administrator in view of the nomenclature given to him. The work of a Engineer is always operational. The real tests for ascertaining the status and function of employee are the primary, basic or dominant nature of duties. The words 'managerial' or 'supervisory' have to be understood in their proper connotation and their mere use cannot be detracted from the truth. In (1985) 3 SCC 371 it has been held that the nature of the work of a workman is to be ascertained from the dominant nature of duties performed by him and not by nomenclature. In view of this judgment of the Hon'ble Apex Court, the claimant is a workman. This point is decided accordingly.” 4. I am in complete agreement with the above reasoning given in the impugned award for holding the respondent to be a workman. The respondent was appointed with the petitioners as Deputy Mining Engineer. Needless to state that the duties of an Engineer are always operational unless proved to the contrary. The petitioners have not placed any document on record to substantiate their plea that the respondent was performing purely managerial or administrative functions which alone could exclude him from the purview of definition of workman given in Section 2(s) of the Industrial Disputes Act, 1947. W.P.(C) No.890/2009 Page 2 of 3 5. It shall be significant to mention that the Court below in its impugned award (at internal page 3) has noted that the petitioners have paid retrenchment compensation to four other employees, namely, Shri Kuldeep Singh, Assistant Manager (Quality Control), Shri Ghanshyam Singh, Supervisor, Shri Narishmanlu, Surveyor and Shri Duli Chand Yadav, Technical Assistant. 6. Mr. S.N. Sharma, learned counsel appearing on behalf of the petitioners, on instructions from his client, submits that none of the above four persons was performing managerial or administrative functions and, therefore, according to him, the retrenchment compensation was paid to them as they were treated as workmen by the petitioners. This Court in exercise of its jurisdiction would not like to go into the disputed question of fact as to whether the above named four persons were not performing administrative functions or whether the respondent was performing administrative functions as alleged. This aspect of the matter has already been taken care of in the impugned award and the findings contained in the said award do not call for any interference by this Court in exercise of its extraordinary discretionary writ jurisdiction under Article 226 of the Constitution of India. This writ petition, therefore, fails and is hereby dismissed in limine. The stay application is also dismissed. AUGUST 03, 2009 S.N.AGGARWAL, J 'ma' W.P.(C) No.890/2009 Page 3 of 3