Case: gupta c Vs. galaxosmithklin pharmaceutical ltd

of India Ltd. v. Burma Shell management Staff Association and Ors. (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 atechnician 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" redundant in the 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 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. " ( 27 ) IN Hussain Mithu Mhasvadkar v. Bombay Iron and Steel Labour Board and Another air 2001 SC 3290 : (2001) 7 SCC 394 : 2001-II-LLJ-1520 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 companys 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. ( 28 ) IN view of the aforesaid factual position, the order of the learned single Judge and the impugned judgment of the Division Bench do not suffer from any infirmity to warrant interference. Learned counsel for the appellant tried to distinguish the judgment in the Ruston and Hornsby (I) Ltd. case (supra) on the ground that there legal assistant had licence to practice. As rightly submitted by learned counsel for the respondent, no distinction was made by this court on the only ground that licence and in paragraph 16 the distinction was made on the basis of duties. In a recent case in Muir Mills unit of NTC (U. P.) Ltd. v. Swayam Prakash srivastava and Another (2007) 1 SCC 491 : 2007-I-LLJ-801, question of legal assistant was also considered. In that case the definition between occupation and profession was highlighted.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]20 ) 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 asthe 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 and Abolition) 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 Labour legislations and to advise the management on provisions of settlement.23 ) 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 retrospectivity 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. Insofar 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 August 31, 1982. However, the amendment itself was not brought into force immediately and in(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 August 21, 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.( 24 ) 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.( 25 ) 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 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. 1,000/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 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 Sectionand 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.(28 ) IN view of the aforesaid factual position, the order of the learned single Judge and the impugned judgment of the Division Bench do not suffer from any infirmity to warrant interference. Learned counsel for the appellant tried to distinguish the judgment in the Ruston and Hornsby (I) Ltd. case (supra) on the ground that there legal assistant had licence to practice. As rightly submitted by learned counsel for the respondent, no distinction was made by this court on the only ground that licence and in paragraph 16 the distinction was made on the basis of duties. In a recent case in Muir Mills unit of NTC (U. P.) Ltd. v. Swayam Prakash srivastava and Another (2007) 1 SCC 491 :question of legal assistant was also considered. In that case the definition between occupation and profession was highlighted.