1 IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE SIDE SIDE LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO. 64 OF 2007 APPEAL NO. 64 OF 2007 APPEAL NO. 64 OF 2007 IN IN IN WRIT WRIT WRIT PETITION NO. 468 OF 1987 PETITION NO. 468 OF 1987 PETITION NO. 468 OF 1987 MR. MR. MR. GOVINDLAL NARAYAN MEHTA GOVINDLAL NARAYAN MEHTA GOVINDLAL NARAYAN MEHTA ......... APPELLANT. APPELLANT. APPELLANT. VS. VS. VS. BAJAJ BAJAJ BAJAJ TEMPO LTD. TEMPO LTD. TEMPO LTD. ......... RESPONDENTS. RESPONDENTS. RESPONDENTS. MR. MR. MR. KULKARNI FOR THE APPELLANT. KULKARNI FOR THE APPELLANT. KULKARNI FOR THE APPELLANT. MR. MR. MR. S.K.TALSANIA S.K.TALSANIA S.K.TALSANIA SR.ADV. WITH SANJAY UDESHI FOR SR.ADV. WITH SANJAY UDESHI FOR SR.ADV. WITH SANJAY UDESHI FOR RESPONDENTS. RESPONDENTS. RESPONDENTS. ..... ..... ..... CORAM CORAM CORAM : : : J.N.Patel and A.A.Sayed, JJ. J.N.Patel and A.A.Sayed, JJ. J.N.Patel and A.A.Sayed, JJ. DATE DATE DATE : July 31, 2007. : July 31, 2007. : July 31, 2007. ..... ..... ..... P.C. P.C. P.C. 1.1.1. Heard. Heard. Heard. 2.2.2. The The The appellant has filed dispute before the appellant has filed dispute before the appellant has filed dispute before the Labour Labour Labour Court, challenging his termination, wherein a Court, challenging his termination, wherein a Court, challenging his termination, wherein a preliminary preliminary preliminary issue was raised that the appellant was issue was raised that the appellant was issue was raised that the appellant was 2 not not not a workman. The Labour Court gave a finding in a workman. The Labour Court gave a finding in a workman. The Labour Court gave a finding in favour favour favour of the Appellant, which was challenged by the of the Appellant, which was challenged by the of the Appellant, which was challenged by the Respondent Respondent Respondent Employer before the Industrial Court in Employer before the Industrial Court in Employer before the Industrial Court in Revision. Revision. Revision. The Revisional Court found that the The Revisional Court found that the The Revisional Court found that the preliminary preliminary preliminary issue decided by the Labour Court that issue decided by the Labour Court that issue decided by the Labour Court that the the the Appellant is a workman, was not correct, as the Appellant is a workman, was not correct, as the Appellant is a workman, was not correct, as the evidence evidence evidence on record clearly show that the appellant on record clearly show that the appellant on record clearly show that the appellant was was was not a workman. That finding came to be not a workman. That finding came to be not a workman. That finding came to be challenged challenged challenged by filing the writ petition. The learned by filing the writ petition. The learned by filing the writ petition. The learned Single Single Single Judge up held the conclusion arrived at by the Judge up held the conclusion arrived at by the Judge up held the conclusion arrived at by the Industrial Industrial Industrial Court and that is how this LPA has been Court and that is how this LPA has been Court and that is how this LPA has been filed. filed. filed. 3.3.3. The The The learned Counsel appearing for the learned Counsel appearing for the learned Counsel appearing for the Appellant Appellant Appellant submitted that the case of the appellant submitted that the case of the appellant submitted that the case of the appellant falls falls falls within the definition of "workman" under within the definition of "workman" under within the definition of "workman" under Section Section Section 2(s) of the Industrial Disputes Act and that 2(s) of the Industrial Disputes Act and that 2(s) of the Industrial Disputes Act and that his his his designation and Salary are not the only criteria designation and Salary are not the only criteria designation and Salary are not the only criteria for for for holding that he is not a workman. It is further holding that he is not a workman. It is further holding that he is not a workman. It is further submitted submitted submitted that that that the findings on the preliminary issue, the findings on the preliminary issue, the findings on the preliminary issue, arrived arrived arrived at by the Labour Court, could not have been at by the Labour Court, could not have been at by the Labour Court, could not have been interfered interfered interfered by the Industrial Court in its limited by the Industrial Court in its limited by the Industrial Court in its limited revisional revisional revisional jurisdiction. On the other hand, the jurisdiction. On the other hand, the jurisdiction. On the other hand, the Industrial Industrial Industrial Court has gone into the evidence and Court has gone into the evidence and Court has gone into the evidence and reversed reversed reversed the findings, which is not proper. It is the findings, which is not proper. It is the findings, which is not proper. It is submitted submitted submitted that the nature of work assigned to the that the nature of work assigned to the that the nature of work assigned to the 3 appellant appellant appellant clearly discloses that the appellant was a clearly discloses that the appellant was a clearly discloses that the appellant was a member member member of clerical staff and therefore, the impugned of clerical staff and therefore, the impugned of clerical staff and therefore, the impugned decision decision decision deserves to be quashed and set aside. deserves to be quashed and set aside. deserves to be quashed and set aside. 4.4.4. The The The learned Counsel appearing for the learned Counsel appearing for the learned Counsel appearing for the Respondents, Respondents, Respondents, on the other hand, submitted that the on the other hand, submitted that the on the other hand, submitted that the impugned impugned impugned Order does not call for any interference as Order does not call for any interference as Order does not call for any interference as the the the law is now well settled in that context and has law is now well settled in that context and has law is now well settled in that context and has placed placed placed reliance on the decision, rendered in case reliance on the decision, rendered in case reliance on the decision, rendered in case of of of SONPAT COOPERATIVE SUGAR MILLS LTD. VS. AJIT SONPAT COOPERATIVE SUGAR MILLS LTD. VS. AJIT SONPAT COOPERATIVE SUGAR MILLS LTD. VS. AJIT SINGH, SINGH, SINGH, REPORTED REPORTED REPORTED IN (2005) 3 SCC 232. It is submitted IN (2005) 3 SCC 232. It is submitted IN (2005) 3 SCC 232. It is submitted that that that the Supreme Court has, in terms specified the Supreme Court has, in terms specified the Supreme Court has, in terms specified criteria criteria criteria to ascertain whether an employee is a to ascertain whether an employee is a to ascertain whether an employee is a "workman" "workman" "workman" or not, by considering various decisions. or not, by considering various decisions. or not, by considering various decisions. In In In the present case, as the appellant was initially the present case, as the appellant was initially the present case, as the appellant was initially appointed appointed appointed as an Accountant and then posted as Senior as an Accountant and then posted as Senior as an Accountant and then posted as Senior Executive Executive Executive - Class-I in the Purchase Department, by - Class-I in the Purchase Department, by - Class-I in the Purchase Department, by no no no stretch of imagination, he can be called as a stretch of imagination, he can be called as a stretch of imagination, he can be called as a workman workman workman within the meaning of Section 2(s) of the within the meaning of Section 2(s) of the within the meaning of Section 2(s) of the Industrial Industrial Industrial Disputes Act. Disputes Act. Disputes Act. 5.5.5. In In In order to appreciate the findings arrived order to appreciate the findings arrived order to appreciate the findings arrived atatat by the Industrial Court, our attention was also by the Industrial Court, our attention was also by the Industrial Court, our attention was also drawn drawn drawn to the evidence led by the parties on the to the evidence led by the parties on the to the evidence led by the parties on the preliminary preliminary preliminary issue. We find that the learned Single issue. We find that the learned Single issue. We find that the learned Single Judge Judge Judge was justified in upholding the decision of the was justified in upholding the decision of the was justified in upholding the decision of the 4 Industrial Industrial Industrial Court, as the dominant factor which Court, as the dominant factor which Court, as the dominant factor which emerges emerges emerges from the record is that the Petitioner’s from the record is that the Petitioner’s from the record is that the Petitioner’s designation designation designation was Senior Executive in Purchase was Senior Executive in Purchase was Senior Executive in Purchase Department, Department, Department, drawing drawing drawing salary more than Rs. 8,000/- and salary more than Rs. 8,000/- and salary more than Rs. 8,000/- and during during during his entire service tenure, was never member of his entire service tenure, was never member of his entire service tenure, was never member of any any any Union or was extended any benefit under any Union or was extended any benefit under any Union or was extended any benefit under any settlement settlement settlement between between between the Union and the Company and also the Union and the Company and also the Union and the Company and also considering considering considering the the the nature of the duties performed by the nature of the duties performed by the nature of the duties performed by the Appellant, Appellant, Appellant, he cannot be said to be "workman" within he cannot be said to be "workman" within he cannot be said to be "workman" within the the the meaning of Section 2(s) of the Industrial meaning of Section 2(s) of the Industrial meaning of Section 2(s) of the Industrial Disputes Disputes Disputes Act. Act. Act. 6.6.6. Consequently Consequently Consequently we find that the Single Judge we find that the Single Judge we find that the Single Judge has has has not not not committed any illegality, or error in passing committed any illegality, or error in passing committed any illegality, or error in passing the the the impugned Order so as to call for any impugned Order so as to call for any impugned Order so as to call for any interference. interference. interference. 7.7.7. Consequently, Consequently, Consequently, the Appeal is dismissed. the Appeal is dismissed. the Appeal is dismissed. ..... ..... ..... [J.N.Patel, [J.N.Patel, [J.N.Patel, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]