Case: C. Gupta Vs. Glaxosmithklin Pharmaceutical Limited &amp; Another

2.The brief relevant facts of the case are as976 Glaxo Laboratories (India) Ltd., (hereinafter referred to as the "said Company") which has now been taken over by the present respondent No.1 (Glaxo Smithkline Pharmaceuticals Ltd.) indicated their intention to advertise the post of "Industrial Relations Executive". Since members of the staff who fell in the category of "Management Staffwere also entitled to apply for the vacant post which fell in "Management Staffan advance staff notice was also taken out by the company. The same incorporated the text of the advertisement which was to follow. The relevant part from the advertisement which pertains to the duties required to be performed by the selected candidate was as follows:"The selected candidate will advise the Corporate personnel department and through it, various establishments of the company on all matters relating to Labour Laws, prepare various applications and claims and appear selectively before labour authorities such as Conciliation Officers, Labour Courts and Industrial Tribunals.An important aspect of the job will be to assist the I.R. Manager in developing the framework for settlements and in dealing with unions.This is a challenging job with a span of advice extending to three factories, four branches and fifteendepots. The prospects for aons andleast a First Class Law Degree, preferably a Mastersknowledge of case laws and proceedings pertaining to labour laws.Three to five years experience of litigation before Labour Courts, Industrial Tribunals and other authorities.Ability to get on with(b) In pursuance of the advertisement given, the present appellant Mr. Chandra Gupta applied for the post of "Industrial Relations Executive" on77 the company issued a letter offering an appointment to the appellant as "Industrial Relations Executive". This letter mentioned that the appellant would be a member of the Management Staff in Gradeand that the appointment would take effect from the date of the appellant joining the company, which was required to be earlier thanThough the terms and conditions of appointment were contained in this appointment letter the exact nature of duties and functions to be performed were not laid down therein.Clause 17 of the appointment letter provided for termination of the appointment and was in the following terms:"The company may, at any time and without assigning any reason, terminate this appointment upon giving not less than three months notice in writing or salary in lieu thereof."(d) In pursuance of the appointment letter, the appellant joined services of the company on2, vide a termination letter datedthe services of the appellant came to be terminated from the close of business on that day. The said termination was made in pursuance of Clause 17 of the letter of appointment datedon the ground that the services of the petitioner were no longer required.(f) Being aggrieved by his termination, the appellant attempted to get his grievance redressed through the Deputy Commissioner of Labour (Conciliation) but the Conciliation failed and ultimately the Deputy Commissioner of Labour (Conciliation) by his Order of Reference No.(84) referred the matter for adjudication.(g) Consequently, in 1985, the present appellant filed his statement of claim in the Reference Court being the First Labour Court at Bombay. In his statement of claim for the reasons mentioned therein, the appellant claimed to be a workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947 as his work was of "skilled, technical and clerical nature, apart from it being operational". He claimed that termination of his services were illegal, invalid and void on account ofof the provisions of section 25N of the Industrial Disputes Act, 1947 in as much as no notice or retrenchment compensation had been paid to him. He also contended that Clause17 of the letter of appointment dated1977 was illegal in as much as it was against the provisions of Articles 14 and 21 of the Constitution of India and was void as ultra vires section 23 of the Indian Contract Act. He sought the prayer of reinstatement in service with full backwages with continuity of service and all other attendant benefits.(h) In the reference, the company filed its written statement which was signed and affirmed onIn the written statement the company denied that the appellant was a workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947. It was denied that the termination of his services was illegal forof provisions of section25N of the Industrial Disputes Act, 1947or that it violated any provisions of Constitution or section 23 of the ContractBoth parties led evidence in the reference before the Labour Court. The appellant led his own evidence and on behalf of the complainant the evidence of one R.P. Bharucha who was then the Director of the Family Products Division of the Company, who had been the Central Personal Manager of the company at the time when the appellant had been appointed and had been the Chief Personnel Manager of the company on the date of the appellants termination was led. Both parties produced and relied upon documentary evidence in support of their claim.(j) Ultimately, by an Award passed by the Presiding Officer, First Labour Court, Bombay onfor the reasons stated therein, the claim of the appellant was allowed and he was directed to be reinstated in service with continuity in service w.e.f.89 with all consequential benefits including pay revision if any. It was however, held that the appellant would not be entitled for any back wages fromtill the date of the Award and would not be entitled for any relief of future reinstatement from the date of the Award though he would be entitled for compensation of Rs.50,000/in lieu thereof.(k) Both the appellant as well as the company filed writ petitions in this Court against the aforesaid Award datedpassed by the Presiding Officer, First Labour Court, Bombay. The company filed Writ Petition No.462 of 1995 and the appellant filed Writ Petition No.695 of 1996. Since both the writ petitions impugned the same Award, they were heard and disposed of by a common judgment and order delivered by the learned Single Judge of this Court onBy this judgment and order the learned Single Judge of this Court was pleased to hold that the appellant could not be said to be a workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947. Notwithstanding his conclusion that the appellant was not a workmen, and that the Industrial Court would not have any jurisdiction to decide the dispute, the learned Single Judge further dealt with the merits of the matter and arrived at the conclusion that the company had ample reason to resort Clause 17 of the appointment letter and terminate the appellant. Ultimately the learned Single Judge made rule absolute in Writ Petition No.462 of 1995 filed by the company and dismissed Writ Petition No.695 of 1996 filed by the present appellant, thus quashing the Award of the Labour Court datedIt is against this judgment and order passed by the learned Single Judge, the Appeal No.1379 of 1999 came to be filed by the appellant. As the office raised a technical objection to the effect that two appeals would have been filed because the impugned judgment and order was a common judgment and order in two writ petitions, the appellant subsequently filed Appeal No.170 of 2000 which also impugned the same judgment and order passed by the learned Single Judge.

Reasoning: 7.In this regard we have perused the detailed findings of the impugned judgment in which learned Single Judge has concluded that it would be the unamended old definition of the term workman existing prior toand which was in force on the date of termination of the services of the appellant i.e. onwhich would govern the facts in the present case. On perusal of the reasons, we find that the same are cogent, acceptable and without any error in law. However, we would briefly like to set out reasons in thisthe present case we find that the nature of amendment is one which clearly affects the legal rights of individual workers in so far as it is only if they fall within the definition that they would be entitled to claim several benefits conferred by the Industrial Disputes Act. The amendment is also one which would touch upon their substantive rights. 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 unless there is a clear provision to the effect that it is retrospective or such retrospectivity can be implied by necessary implication or intendment. We find no such clear provision or anything to suggest 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 onHowever, the amendment itself was not brought into force immediately and in(1) of the amending Act it was provided that it would come into force on such day as the Central Government may by Notification in the Official Gazette, appoint. Ultimately by a Notification the said amendment was brought into force onAlthough the Apex 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 similarthe judgment of the Division Bench of the Gujarat High Court the question as to whether section 2(s) as amended by Act 46 of 1982 was prospective or retrospective in its operation was not specifically dealt with. No doubt it was further argued before the Gujarat High Court that even if Gujarat amendment to section 2(s) had already come into force w.e.f. 1st August, 1981 even then no valid reference could have been made as the petitioners services had been terminated oni.e. at a point of time when the Gujarat amendment to the definition of workman had not come into force and therefore, the petitioner in that case was not a workman atleast on the date that his services were terminated. That contention was negated by the Division Bench of the Gujarat High Court on the footing that on the date of the reference, the petitioner therein fell within the definition of the workman as existing on the date of the reference. We have however, given our reasons as to why section 2(s) as amended by (Act 46) 1982 can only be prospective and cannot be said to be retrospective in its operation. Once this is accepted, then in our view, the definition of the word workman as prevailing on the date of termination must be taken to be the touchstone to decide a dispute. The definition of the term workman as existing on the date of the reference would have no bearing on the issue required to be decided. To this extent, we cannot agree with the conclusion of the Division Bench of the Gujarat High Court to the effect that the definition of the word "workman" as existing on the date of the reference would be the definition which would have to be applied.12. 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 a 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.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 Industrial Disputes Act, 1947 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 sectionas 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 of India.For all these reasons we agree with the judgment of the learned Single Judge thatdefinition of worker under section 2(s) of the Industrial Disputes Act must be taken into consideration while deciding the present dispute.Having decided this question, we must record that it has not been argued before us that the appellant was doing "clerical", "manual" or "supervisory work". The only contention raised was that the appellant was doing "technical work". on behalf of the appellant it was contended that the term "technical work" must be given a wide meaning as being any work which requires any kind of technique. It was contended that work beyond the field of science such as in the field of Arts or profession must also fall within the definition of "technical work". However, on behalf of the company, it was contended that the term "technical work" must be held to have affinity to technology and science and should be given a narrower meaning.Deshmukh submitted that the plain dictionary meaning as well as the meaning given to the term on authority points to the fact that the term on "technical" cannot be restricted to the field of technology and science and could include work in the fields of art and professions. In determining whether the work is "technical" the question as to whether the work could involve application of any technique would be relevant. Mr. Deshmukh further submitted that a Law Officer, who has to formulate opinion in order to give legal advice would have to apply specialised knowledge. The formulation of opinion would also include the use of techniques for the interpretation of the law. In so far as Gauhati High Courts judgment is concerned, he submitted that the same is based on an inaccurate interpretation of the judgment of the Apex Court in the case of B.S.O.S.D. Co. v. Management Staff Association. That case does not lay down that the work of giving advise and guidance ipso facto eliminates the employment to be one where the employee is doing technical work. The real ratio in the Burmashell case was even if the person had technical knowledge but was doing mainly supervisory work, then he could not be said to be doing technical work within the meaning of section 2(s). In fact, it was vehemently argued on behalf of the appellant that Gauhati High Court has misinterpreted the ratio of the judgment of the Apex Court in Burmashell case.28. Assuming for a moment that the duty of the appellant is technical, the question as to whether he is eliminated due to his duties being mainly managerial assumes importance. A gist of the appellants evidence relating to the nature of his duties was to the effect that he was rendering legal clarification on queries to the branch offices of the company and its factories, doing legal audit by checking if the statutory returns had been properly filled up, drafting pleadings, studying case laws for maintaining a cardex particularly in relation to the pending cases of the company. That on occasions, he used to sanction leave to the stenographer, vouch for the travelling expenses of one Mr. Lobo who was working under him, giving dictation or typing work to the Stenographer, preparing notes from Law Journals, briefing Solicitors and Advocates of the company, going through the records of domestic enquiries and notes of evidence led therein, in order to prepare a draft enquiry report for adoption by the Enquiry Officers, prepare notes of arguments alongwith relevant case laws and send them to the companys Personnel Executives at different locations. Study new Labournd hearings before the Conciliation Officer and occasionally conduct domestic enquiries.29. 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 (RegulationAbolition) 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 Labourto advise the management on provisions of settlement.On taking into account, the duties and functions performed by the appellant, we have no hesitation in holding that he was clearly a part of the managerial process of the company in so far as his work was used as tool and aid by the management for a proper conduct of the business of the company. It is clear from the evidence that the job of the present appellant was to secure the interest of the management. At all times his efforts were meant to be chanalised in order to ensure that the management of the company was performed along proper legal lines. We cannot accept the contention advanced on behalf of the appellant that the advise of the appellant was not worth anything as it could be discarded. In the case like this, it must be presumed that the company employed the appellant and sought his advise on the footing that the advise would be normally accepted. Apart from advising the management of the company it is clear from his own admissions that the appellant was given independent work which can only be deemed to be managerial in nature. It is evident that the company had emphasized the managerial nature of the appellants work right from the very beginning. The staff Notice dateditself mentioned that the selected candidates would have to appear before the Labour authorities such as Conciliation Officers, Labour Courts and Industrial Tribunals. An important aspect of the job would be to assist the I.R. Manager in developing the framework for settlements and in dealing with Unions. It was specifically mentioned that the post was in management staffThe designation of the post also was "Industrial Relations Executive". Of course, we are aware that in deciding the status of his employment his designation is not decisive and what should really relevant is the nature of the duties and the powers conferred upon thein a huge company is a complex business which requires various levels of managerial staff. It appears from the record that the present appellant was inof the managerial staff. There were several grades in the Management staff below him. He himself has admitted in his evidence that even apart from the giving of advise to the management from time to time, he had other independent functions such as preparing draft enquiry report in domestic enquiry and conducting domestic enquiries. In our view, these were duties pertaining to the maintenance of discipline amongst the employees which is a part and parcel of the managerial process of the company. In hishe admitted that he had carried out legal audits in all the four branches and 14 to 15 departments all over the country and the factory of the company is at Aligarh and Worli that there were occasions that he briefed the management witnesses at enquiries and it was part of his duties to hold conferences with the Advocates in relation to the companys cases. He admitted that he was an employee under the category of management staff and therefore, his conditions of service was different than those provided under the settlements governing the workers of the company. He admitted that the leave benefits given to him were not those applicable to the workers under the settlement. He admitted that he was covered under the Pension scheme which did not apply to the workers coming under the settlement. He admitted that he was notified as a Manager under the Standing Orders which were produced by the company in evidence and marked at ExhibitWe thus have no hesitation in holding that the appellant as mainly employed in a managerial capacity and would stand excluded from the definition of the term workman under section 2(s) of the Industrial Disputes Act, even if he could be said to be doing technical work. Thus we are of the view that the appellant was not a workman as his work did not fall in the first part of the definition. However, even assuming that he did so fall within the first part by virtue of his work being technical, he would be excluded since his duties were mainly managerial.