IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.385/2008 Reserved on:27.11.2008 Decided on:4.12. 2008 Sunil Dutt Bakshi. …Petitioner. Versus M/s Dabur India Limited and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioner : Mr. Rajnish Maniktala, Advocate. For the Respondents: Mr. Ramakant Sharma, Advocate for respondent No.1. Rajiv Sharma, J. This petition is directed against the award dated 7.11.2007 passed by the Himachal Pradesh Industrial Tribunal-cum-Labour Court, Shimla in reference No. 135/2001. Brief facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court: 1. Whether Shri Sunil Dutt Bakshi S/o Shri Balwant Rai Bakshi, through J.C. Bhardwaj, Gen. Secretary H.P. A.I.T.U.C., H.Q. Saproon, Solan (H.P.) while drawing salary of Rs. 9576/- per month as Store Supervisor falls under the definition of workman as defined in section 2 (s) of the Industrial Disputes Act, 1947? 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 2. Whether the termination of service of workman by M/s Dabar India Limited, Baddi as per clause 5 and 6 of the appointment letter, dated 23.10.96 is proper and justified. If no, what relief Shri Sunil Dutt Bakshi is entitled for? In sequel to the reference made by the State Government, the petitioner has filed the statement of claim before the Labour Court. It was primarily contended by the petitioner that he was transferred from Gaziabad to Baddi on 7.5.1997. He was terminated on 4.7.1998 without complying with the mandatory provisions of the Industrial Disputes Act, 1947(hereinafter referred to as ‘the Act’ for brevity sake). He has further contended that his period of probation could not be extended more than twice. The management filed reply to the statement of claim. The management has primarily contended in the reply filed to the statement of claim that the petitioner is not a workman within the meaning of section 2 (s) of the Act. It is further contended in the reply that the petitioner had been working in supervisory/managerial capacity and the claim petition on his behalf was not maintainable. The management has also contended that the petitioner was appointed on probation and since he could not complete the probation period satisfactorily, he was relieved of his duties. Mr. Rajnish Maniktala, Advocate has strenuously argued that the award dated 7.11.2007 is not sustainable. He also contended that taking into consideration the nature of the duties being discharged by his client, he is to be treated as a workman within the meaning of section 2 (s) of the Act. He further contended that his client being a workman was entitled to issuance of notice as per the provisions of section 25-N of the Act and his client was bound to be confirmed after the completion of probation period. Mr. Ramakant Sharma, Advocate appearing on behalf of respondent No.1 has supported the award dated 7.11.2007. 3 I have heard the learned counsel for the parties and perused the record carefully. The petitioner has appeared as PW-1. He has stated that he was engaged as a Store Supervisor in the month of October, 1996 at Sahibabad (U.P.). He was transferred to Baddi in May, 1997. He was performing clerical duties i.e. to receive goods and to issue production work and to make entries of material received in the store. There was no workman under him for the purpose of receiving and issuing material/goods. His services were dispensed with by the management without any reasonable grounds. He further deposed that he was neither served with any notice nor any compensation was paid to him before his services were dispensed with by the management. He has also stated that he was performing manual work. In his cross-examination, he has admitted that his salary was Rs. 9,576/-. He has identified his signature on documents Ex. RB-1 to RB-4. He has identified his signatures on documents dated 18.11.1997 Ex. RC-1 and RC-2. He has denied that the stores i.e. Ayurvedic, Engineer, Package and Despatch were under him. He did not remember how many workers were working in those stores. He did not remember if 15 to 20 workers were working under his supervision. He has admitted that there is a position of Assistant Store Keeper in the management. He has denied that he had been issuing instructions to his subordinates on day-to-day basis. He has admitted that he has obtained diploma in Material Management. He has denied that he has refused to accept letter dated 4.7.1998. He has admitted that he was not interested to work at Baddi. Sh. Som Raj has filed his affidavit in evidence on behalf of the management Ex.DA dated 12.12.2005. He has deposed that the petitioner had been working Store Supervisor in the company and was 4 drawing salary of Rs.9,566/-. His job responsibilities were as mentioned in Ex.RE. He was senior to all those working in Stores Department. The other workers were also working under him as per Ex.RG. He was also supervising Ayurvedic, Engineering, Packing, Stores and Despatch. He used to recommend leave of employees under him and also used to retain subordinates on over-time and extra work in his capacity as Section Incharge. It is also deposed in the affidavit that the overall performance of the petitioner was not satisfactory as per Ex.R-I and R-J. He was relieved during the currency of his temporary/probationary period on the basis of appraisal of his work at Baddi from time to time. His appointment was temporary, which was extended on 7.11.1997 and 7.5.1998. He was relieved on 4.7.1998. He was cross-examined by the petitioner. He has denied that the petitioner was doing the manual work. The petitioner has not cross-examined RW-1 Som Raj to prove his duties and responsibilities. He has also not been examined on the material aspect that other workers were working under him. He has also not been cross- examined that the petitioner was supervising Stores i.e. Ayurvedic, Engineering, Packing, Stores and Despatch and he used to recommend leave to the employees under him and he also used to retain his subordinates on over-time and extra work in his capacity as Section Incharge. It is clear from the appointment letter of the petitioner issued on 23.10.1996 that he was appointed as Store Supervisor in the grade of Rs.4,100/-. He was drawing Rs. 9,576/- per month as Store Supervisor. He was appointed at first instance on temporary basis for a period not exceeding one year and the management could review the performance for confirmation on the expiry of the aforesaid period of temporary employment and after confirmation, the services could be terminated by giving one month notice or one month basic salary in lieu thereof by either 5 side. His services could also be terminated during the temporary employment at any stage without any notice. The duties which are required to be discharged by the workman have not been mentioned specifically in the appointment letter. However, it is evident from Ex.RB-1, RB-2, RB-3 and RB-4 that the petitioner used to sanction the leave of the workmen. He has also put in signatures on Ex.RC-1 and RC-2 dealing with the extra work and over-time. It has come in the affidavit filed by RW-1 that the petitioner was working as a Supervisor and he was also supervising the work of his subordinates. It has also come in the affidavit that he used to recommend the leave application and used to issue instructions with regard to over-time etc. He was Incharge of three units i.e. Ayurvedic, Engineering, Packing, Stores and Despatch. The petitioner has not confronted the management with these averments contained in the affidavit, however, in cross-examination; he has stated that he did not remember how many workmen were working under him. He has also stated in his cross-examination that he was not interested to work at Baddi. In view of the statement of RW-1 coupled with the contents of affidavit and the documents placed on record, the finding recorded by the Labour Court that the petitioner was not a workman are liable to be upheld. Since the petitioner is not a workman within the meaning of section 2 (s) of the Act, he is not entitled to the protection stipulated under the Industrial Disputes Act, 1947. Their Lordships of the Hon’ble Supreme Court in C. Gupta versus Glaxo-Smithkline Pharmaceuticals Limited, (2007) SCC 171 have held that whether a particular employee comes within the definition of workman has to be decided factually. Their Lordships have further held that while 6 deciding the status of the person, the nature of the work is really relevant. Their Lordships have held as under: “It is not in dispute that the nomenclature is really not of any consequence. Whether a particular employee comes within the definition of workman has to be decided factually. In fact, it has been found as a matter with reference to various factual aspects that the duties undertaken by the appellant overwhelmingly fall in the managerial cadre. So far as the nature of work is concerned, the Division Bench of the High Court took note of several aspects as reflected in para 29 of the judgment. The same reads as follows: "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 (Regulation & Abolition) Act, to represent the management as an Enquiry officer or as the management's Representative in domestic enquiries, to guide and advise the management's representative in domestic enquiries, to advise him about the line of cross-examination in 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 Labour legislations and to advise the management on provisions of settlement." It has been pleaded that the amendment to the definition of workman brings the appellant within the amended definition. 7 In State of Madhya Pradesh and Ors. v. Rameshwar Rahod (AIR 1990 SC 1849) it has been held as follows: "It was next contended by the respondent before the High Court that the Criminal Court was empowered under Section 7 of the Act to confiscate the vehicle after due and proper inquiry and therefore the proceedings by the District Collector under Section 6A and Section 68 of the Act should be quashed. Reliance was placed on several decisions and authorities. Our attention was drawn to the decision of the Mysore High Court in the case of The State v. Abdul Rasheed, AIR 1967 Mysore 231, Sri Bharat Mahey v. State of State of U.P. 1975 Crl. LJ 890 (All) as well as the decision of the learned single Judge in State of M.P. v. Basant Kumar, 1972 Jab LJ Short Note No.99. On a consideration of the relevant authorities, the High Court came to the conclusion that the criminal Court had jurisdiction to deal with the matter. Mr. Deshpande sought to argue that in view of the enactment of the provisions of Section 6A as well as Section 7 of the Act, it cannot be held that the criminal Court continued to retain jurisdiction. He submitted that in view of the enactment of these provisions, it would be useless to hold that the criminal Court continued to retain jurisdiction, otherwise the very purpose of enacting Section 6A read with Section 7 would be defeated. We are, however, unable to accept this contention because normally under the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of the ordinary criminal Court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act. In view of the language used and in the context in which this language has been used, we are of the opinion that the High Court was right in coming to the conclusion that the Criminal Court retained jurisdiction and was not completely ousted of the jurisdiction. In that view of the matter, the High Court was therefore right in passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the 8 respondent on furnishing the security. In the premise the appeal must fail and is dismissed. There will, however, be no order as to costs." In the present case, we find that for determining the nature of amendment, the question is whether it affects the legal rights of individual workers in the context that if they fall within the definition then they would be entitled to claim several benefits conferred by the Act. The amendment should be also one which would touch upon their substantive rights. Unless there is a clear provision to the effect that it is retrospective or such retrospectively can be implied by necessary implication or intendment, it must be held to be prospective. We find no such clear provision or anything to suggest by 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 on 31.8.1982. However, the amendment itself was not brought into force immediately and in sub-section (1) of Section 1 of the Amending Act, it was provided that it would come into force on such day as the Central Government may be Notification in the official Gazette, appoint. Ultimately, by a Notification the said amendment was brought into force on 21.8.1984. Although this 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 similar effect. 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. 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 the 9 workman is dismissed, it is usually contended (as has been done in the present case) that the relevant conditions precedent for retrenchment under Section 25-N having not been followed and that, therefore, the termination is illegal. Section 25-Q of the Industrial Disputes Act, 1947 lays down that contravention of the provision of Section 25-N shall 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 Act that the employer is required to follow the condition mentioned in Section 25-N, failing 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 Section 25 N and Q as 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. In Burmah Shell's case (supra) it was held as follows: In this connection, we may take notice of the argument advanced by Mr. Chari on behalf of the Association that, whenever a technical man is employed in an industry, it must be held that he is employed to do technical work irrespective of the manner in which and the occasions on which the technical knowledge of that person is actually brought into use. The general proposition put forward by him was that, if a technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and not supervisory work. He elaborated this submission by urging that, if we hold the supervisory work done by a technician as not amounting to his being employed to do technical work, the result would be that only those persons would be held to be employed on technical work who actually do manual work themselves. According to him this would result in making the word "technical" redundans in the 10 definition of 'workman' even though it was later introduced to amplify the scope of the definition. We are unable to accept these submissions. The argument that, if we hold that supervisory work done by a technical man is not employment to do technical work, it would result in only manual work being held to be technical work, is not at all connect. There is a clear distinction between technical work and manual work. Similarly there is a distinction between employments which 'are substantially for manual duties, and employments where the principal duties are supervisory or other type, though incidentally involving some manual work. Even though the law in India is different from that in England, the views expressed by Branson, J., in Appeal of Gardner : In re Maschek : In re Tyrrell [1938] 1 All E.R. 20 are helpful, because, there also, the nature of the work had to be examined to see whether it was manual work. As examples of duties different from manual labour, though incidentally involving manual work, he mentioned cases where a worker (a) is mainly occupied in clerical or accounting work, or (b) is mainly occupied in supervising the work of others, or (c) is mainly occupied in managing a business or a department, or (d) is mainly engaged in salesmanship, or (e) if the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special mental or artistic faculty or the application of scientific knowledge as distinguished from manual dexterity. Another helpful illustration given by him of the contrast between the two types of cases was in the following words :- "If one finds a man employed because he has the artistic faculties which will enable him to produce something wanted in the shape of a creation of his own, then obviously, although it involves a good deal of manual labour, he is employed in order that the employer may get the benefit of his creative faculty." The example (e), given above, very appropriately applies to the case of a person employed to do technical work. His work depends upon special 11 mental training or scientific or technical knowledge. If the man is employed because he possesses such faculties and they enable him to produce something as a creation of his own, he will have to be held to be employed on technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work." In Hussain Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board and Anr. (2001 (7) SCC 394) it was held that while deciding the status of the person, nature of work is really relevant. The High Court has referred to the evidence of the appellant. He had admitted in his evidence that apart from the advice to the management from time to time, he had other independent functions such as preparation of draft enquiry report and conducting domestic enquiries. In his cross- examination he had further admitted that he had tendered legal advise in all the four branches and factory of the company at Worli. He also admitted that on many occasions he had drafted management enquiry and it was his duty to hold conferences with the advocates in relation to the company's acts. He also admitted that as an employee in the category of management staff, his conditions of service were different than those provided for the workers of the Company. He also admitted that leave given to him were not applicable under the settlement. He also admitted that he was covered under the Pension Scheme which did not apply under the settlement with employees. The petitioner was appointed as Store Supervisor on 23.10.1996. He has been called upon vide Ex.RY dated 7.11.1997 to improve his 12 performance. Thereafter a decision has been taken by the management on 4.7.1998 to relieve him (Ex.RD). The petitioner has refused to accept this letter. However, the copy was sent to the petitioner by post on 17.7.1998. There is a presumption under section 27 of the General Clauses Act that the petitioner had received the same. The relieving of the petitioner is in conformity with his appointment letter. The submission of Mr. Rajnish Maniktala that the exhibits have not been proved as per law merits rejection for the simple reason that Sh. Som Raj has not been cross-examined on the material facts whether the petitioner was working as workman or in supervisory/managerial capacity. Sh. Som Raj was required to be confronted specifically with the averments contained in the affidavit. In view of the observations made hereinabove, there is no force in this writ petition and the same is dismissed. There will, however, be no order as to costs. 4.12. 2008 (Rajiv Sharma ), J. *awasthi*