Case: M/S Pepsico India Holding Pvt Ltd Vs. Krishna Kant Pandey

3. The factual matrix of the case is that the respondent was appointed on the post of Operator/Technician Grade III for six months on probation basis w.e.f. 13th of March, 1995 against the salary of Rs. 2600/- per month. Having been found his services satisfactory, he was confirmed w.e.f. 13th September, 1995 and was also awarded one increment w.e.f. 1st of February, 1996. Earlier, he was appointed in the Plant of Jainpur (Kanpur Dehat) from where he was transferred to Sathariya Plant, District Jaunpur, U.P. on 30th of August, 1996 on the revised pay scale i.e. Rs. 5450/-. Pursuant to the subsequent transfer order, he was posted at Lucknow in the month of June, 1997 and till 2000 he was awarded annual increments at the rate of Rs.490/-. Subsequently, he was promoted to the post of Line Supervisor in the pay scale of Rs.7716/- and thereafter to the post of Fleet Executive.4. It is the case of the respondent that being posted as a Fleet Executive, he was to discharge the mechanical work and that being so, he was called as skilled workman. It is stated that no other staff was posted in his subordination. The respondent also pointed out the conduct of the employer transferring him from one place to another and also compelling him to resign from the post or to be on long leave. On being asked to proceed on leave, respondent remained on leave w.e.f. 9th October, 2003 to 17th October, 2003. When he turned up, he was not permitted to join for want of instructions of the superior authorities. Thereafter, respondent wrote a letter on 8th November, 2003 to the Vice President seeking guidance for further action, upon which the employer became unhappy and terminated his services on 14th of November, 2003 by giving one months salary in lieu of notice prior to termination.5. Aggrieved by the said termination, respondent preferred a reference before the Conciliation Officer, Lucknow alleging that he is a workman within the meaning of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and termination of his services by the Company is contrary to Section 6 of the Act. The appellant Company pleaded that the respondent did not satisfy the criteria of a workman as defined under Section 2(z) of the Act. The Industrial Tribunal dismissed the reference stating that the respondent is not a workman under Section 2(z) of the Act and, therefore, no challenge to the termination is maintainable before the Tribunal.6. Respondent, being aggrieved, moved the High Court by way of a writ petition challenging the order of the Tribunal and also for his re-instatement to the post of Fleet Executive with continuity of service and for payment of full back wages. In reply, the appellant pleaded that the order of termination is in accordance with the provisions of the Act. After hearing learned counsel on either side, learned Single Judge of the High Court allowed writ petition of the respondent, quashed order of the Tribunal and directed it to proceed with the adjudication of the respondents case on merit. Hence, the present appeal by special leave by the appellant-Company.

Reasoning:
The admitted facts are that at the relevant time, the respondent was working as a Fleet Supervisor and drawing a salary of Rs. 7716/-. Initially, he was appointed as a technician Grade-III in 1995 on the salary of Rs. 2600/- per month and after getting increment his salary was increased. By giving one months salary, in lieu of the notice, his services wereconsidering the definition contained in Section 2(z) of the Act and the nature of work assigned to the respondent, the High Court arrived at a conclusion that the nature of work prevalent on the date of termination was as that of a workman. Curiously enough, though the respondent did not come under the definition of workman under Section 2(z) of the Act, the High Court proceeded on the basis that the U.P. Industrial Disputes Act was enacted in 1947 and although the respondent cannot be held to be a workman under the said definition, held that he shall have to be classified as a workman and directed the Government to make amendment in Section 2(z) of the Act excluding some of the clauses.The order of the Tribunal would show that the respondent-workman accepted different works assigned to him which were purely of supervisory and managerial nature. The details of 15 managerial/supervisory works assigned to the respondent have been analyzed by the Tribunal which finally came to the conclusionc that the respondent is not a workman within the meaning of Section 2(z) of the At.17. In exercise of its writ jurisdiction, the High Court proceeded initially on the basis that the appellant had entered into service on the post of Operator/Technician Grade-III, which is a technical post and from there he was promoted to different posts including Fleet Executive. The High Court committed grave error in holding that although he is not covered under the definition of workman as defined under Section 2(z) of the Act he shall be classified as a workman. The High Court further exceeded its jurisdiction in advising the Government to make an amendment in Section 2(z) of the Act and to exclude some clauses. The order passed by the High Court cannot be sustained in law.