JUDGMENT
Dr. B.P. Saraf, J.
1. Both these writ petitions are directed against the award of the Third Labour Court at Bombay dated 29 February, 1988 on a reference under Section 10(1) of the Industrial Disputes Act, 1947. By the said award it was held that the petitioner in writ petition No. 3047 of 1988, Narsinha Anant Joshi, whose services had been terminated by the employer was not a workman and hence the reference was not maintainable. Despite that, the Labour Court also considered the merits of the case and spelt out the relief that it would have granted, had the employee concerned been a workman within the meaning of Section 2(s) of the Act. The employee has challenged the finding of the Labour Court that he is not a workman by filing writ petition No. 3047 of 1988. The employer, Century Shipping, has filed writ petition No. 2500 of 1993 challenging the latter part of the order which relates to the observations of the Labour Court on the merits of the case. Both these writ petitions are therefore taken up together for hearing and disposal.
2. Petitioner in writ petition No. 3047 of 1988, Shri Narsinha Anant Joshi (employee), was working with M/s. Century Shipping (Company as a Technical Officer since 17 September, 1982. He was confirmed on the said post on 1 January, 1984. His services were, however, terminated by a letter dated 21 January, 1985 without holding any enquiry. A dispute arose between the employee and the company in regard to the termination of services. The dispute was referred to the Labour Court under Section 10(1) of the Industrial Disputes Act, 1947. Before the Labour Court, a preliminary objection was taken by the company that the petitioner-employee was not a workman within the meaning of Section 2(s) of the Act and hence the reference was not maintainable. The Labour Court considered the nature of duties of the petitioner-employee and all other circumstances and came to a finding that he was not a workman and hence the reference was not maintainable. The Labour Court, however, proceeded to examine other aspects of the matter assuming that the employee was a workman and a reference was maintainable and made certain observations as regards relief that might have been given to the workman had the reference been maintainable. The employee has challenged the first part of the award holding that he was not a workman and the employer has challenged second part of the award wherein the Labour Court after going into the facts of the case has made observations in regard to the relief that it might have given to the employee had the reference been maintainable.
3. Mr. Grover, learned counsel for the employee submits that the finding of the Labour Court holding that the petitioner was not a workman within the meaning of Section 2(s) of the Act is perverse, as it is contrary to the evidence on record. According to him, a careful perusal of the nature of duties and functions of the petitioner-employee will clearly go to show that he was a workman doing clerical work within the meaning of Section 2(s) of the Act. None of duties and functions of the petitioner, according to the counsel, can popularly be termed as administrative in nature. Reliance is placed in this connection on the decision of the Supreme Court in S. K. Verma v. Mahesh Chandra & Ors. 1983 II LLJ 429 and AIR 1958 SC 130.
4. Mr. Cama, learned counsel for the respondent-employer, on the other hand, submits that the finding of the Tribunal that the employee was not a workman is based on proper appreciation of evidence and material on record and same is therefore unassailable.
5. I have carefully considered the rival submissions. ‘Workman’ has been defined in Section 2(s) of the Industrial Disputes Act as under :
“‘Workman’ means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person –
(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy (Discipline) Act, 1934; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature”.
From a reading of the above definition of workman, it is obvious that persons employed mainly in managerial or administrative capacity are specifically excluded from the definition besides some other categories of employees. The question that falls for determination in the present case is whether the petitioner-employee was employed mainly in a managerial or administrative capacity and falls in the excluded category of persons specified in sub-clause (iii) of clause (s) of Section 2 or not.
6. Before proceeding to decide the legal issue on interpretation of the Section 2(s) of the Act, it may be expedient to set-out some of the facts having a bearing on the determination of the controversy :
The petitioner was appointed as a Technical Officer in the shipping division of the company by a letter of appointment dated 17 July, 1982. He was confirmed on the said post on 1 January, 1984. On 22 August, 1984 he was issued a show cause notice and thereafter his services were terminated by a letter dated 21 January, 1985. According to the petitioner, though he was designated as Technical Officer, he was performing the duties of a clerk. According to the company, he was mainly engaged in administrative work and any clerical work casually done by him was only incidental to his employment as a Technical Officer. To dominant work of the petitioner, according to the company, was administrative. He was handling the work entrusted to him independently which included inviting quotations for spares, processing of invoices, maintaining inventories, subordinate control and liaison with Government departments in various matters regarding the work of the company. The main function of the office of the company in which the petitioner-employee was employed was to provide export service for the vessels on the high seas and the work in relation to ships was administrative and co-ordinative in nature. According to the employee, the nature of work performed by him was purely clerical which included filing of papers, maintenance of filing system, making entries relating to receipts of spares on board, consumption and balance stocks etc., and preparing other statements. All these works, according to him, were purely of clerical nature. The employee as well as the Technical Manager of the company were examined by the Labour Court. It was stated by the Technical Manager in his deposition that the nature of duties of the concerned employee, who was appointed as Technical Officer, was to assist him in exercise of his managerial powers. It was also stated that as Technical officer, the employee was scrutinising bills, recommending them for payment, selecting the material to be purchased and supplied. It was also observed that in the absence of the manager, his functions were also performed by him. It was further stated that there was a difference in the service conditions of the staff and the officers. The staff was not getting any free lunch which the officers were. As a Technical Officer, the concerned employee was also provided with a cabin which was not the case with the clerical staff. The petitioner-employee, who deposed before the Labour Court, stated that before joining the company he had held various executive posts in other companies. He also categorically stated that he was second in rank to the Technical Manager in his department and was assisting him in all possible manner. In regard to the preparation of statement etc., it was admitted that such work was required to be done generally once in two days.
7. I have carefully considered the evidence of the Technical Manager as well as the petitioner-employee. On careful consideration of the same it is clear that the petitioner-employee was not workman or a clerk. In fact, he was working in an administrative capacity. His job was not to do the filing of the papers himself but “he was responsible for ensuring proper filing of papers and maintenance of filing papers” as is evident from the show-cause notice given to him (which is Exh.’E’ to the writ petition No. 3047 of 1988). It appears that the Labour Court has carefully scanned the entire evidence on record and only on a careful appraisal of the same, arrived at a conclusion that the dominant nature of the duties of the petitioner-employee was administrative. I do not find any infirmity in the said finding which might justify interference by this Court in exercise of powers under Article 226 of the Constitution.
8. I have carefully perused the decision of the Supreme Court in S. K. Verma v. Mahesh Chandra & Anr. AIR 1958 SC 130. In this case the Supreme court while interpreting the definition of workman in Section 2(s) of the Act, has observed in no less clear terms that :
“Quite obviously the broad intention is to take in the entire “labour force” and exclude the “managerial force”. That, of course, is as it should be”.
9. The sole question for determination, in the present case, therefore, is whether the petitioner-employee can be called a workman employed to the clerical work a employed mainly in administrative capacity. The nature of work of the petitioner-employee, the various duties performed by him, his status and position in the company, his ranking – all clearly go to show that he was employed mainly in the administrative capacity and any work which can be termed as work of clerical nature done by him was only incidental to his employment in the administrative capacity. In that view of the matter, in my opinion, the Labour Court was justified in holding that the petitioner was not a workman and, hence, the reference was not maintainable. Writ Petition No. 3047 of 1988 has, therefore, no merit and is dismissed.
10. So far as writ petition No. 2500 of 1993 filed by employer is concerned, I find merit in the submission of Mr. Cama that having held that the petitioner-employee being not a workman under Section 2(s) of the Act the reference was not maintainable, it was not proper on the part of the Labour Court to proceed on the part of the Labour Court to proceed to examine the merits of the case and to make observations as to what relief it would have given had the reference been maintainable. I have considered the above submission. I am of the clear opinion that in view of its own finding that the reference was not maintainable as the employee was not a workman within the meaning of Section 2(s) of the Act, it was not proper on the part of the Labour Court to enter into the merits of the cases to decide what relief it might have given if the petitioner-employee would have been a workman. Apparently this act of the Labour Court was purely academic. In fact it was an exercise in futility. The Labour Court should have refrained from such unnecessary and futile exercise, I, therefore, set aside the latter part of the order of the Labour Court wherein it has gone into the merits of the case and made observations in regard to the relief might have given if the petitioner had been a workman.
11. In the result, the writ petition No. 2500 of 1993 filed by the employee is allowed to the extent indicated above. The writ petition No. 3047 of 1988 is dismissed.
12. Under the facts and circumstances of the case, there shall be no order as to costs.