{"id":146677,"date":"2005-02-14T00:00:00","date_gmt":"2005-02-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mangt-of-ms-sonepat-coop-sugar-vs-ajit-singh-on-14-february-2005"},"modified":"2018-06-21T12:35:11","modified_gmt":"2018-06-21T07:05:11","slug":"mangt-of-ms-sonepat-coop-sugar-vs-ajit-singh-on-14-february-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mangt-of-ms-sonepat-coop-sugar-vs-ajit-singh-on-14-february-2005","title":{"rendered":"Mangt.Of M\/S Sonepat Coop.Sugar … vs Ajit Singh on 14 February, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mangt.Of M\/S Sonepat Coop.Sugar … vs Ajit Singh on 14 February, 2005<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: N. Santosh Hegde, S.B. Sinha<\/div>\n
           CASE NO.:\nAppeal (civil)  8453-54 of 2002\n\nPETITIONER:\nMangt.of M\/s Sonepat Coop.Sugar Mills Ltd.\t\t\t\t\t\n\nRESPONDENT:\nAjit Singh\t\t\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 14\/02\/2005\n\nBENCH:\nN. Santosh Hegde & S.B. Sinha\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT
\nW I T H<\/p>\n
CIVIL APPEAL NO.8455 OF 2002<\/p>\n
S.B. SINHA, J :\n<\/p>\n
\tThese appeals are directed against the judgments and orders dated
\n04.09.2001 in L.P.A. Nos. 1311 of 1991 and 1356 of 1991 and 7.3.2002 in
\nL.P.A. No. 1356 of 1991 passed by the High Court of Punjab and Haryana.\n<\/p>\n
INTRODUCTORY FACT:\n<\/p>\n
The Respondent herein was appointed by the Appellant in the post of
\nLegal Assistant; the qualification wherefor was degree in law with a
\npracticing licence.   The nature of his duties was to prepare written
\nstatements and notices, recording enquiry proceedings, giving opinions to
\nthe Management, drafting, filling the pleadings and representing the
\nAppellant in all types of cases, viz., civil, labour and arbitration references
\nindependently.  He was also conducting departmental enquiries against the
\nworkmen employed in the industrial undertaking of the Appellant.  He was
\nplaced on probation. While he was serving the Appellant in the said
\ncapacity, allegedly a decision was taken to abolish the said post pursuant to
\nthe recommendations of the Federation of Cooperative Sugar Mills Ltd., as a
\nresult whereof his services were dispensed with.\n<\/p>\n
\tAn industrial dispute was raised by the Respondent which was
\neventually referred to the Labour Court by the Appropriate Government for
\nadjudication as regard the question as to whether the termination of his
\nservices was justified.\n<\/p>\n
LABOUR COURT:\n<\/p>\n
 \tA contention was raised by the Appellant herein before the Labour
\nCourt that having regard to the nature of duties performed by the
\nRespondent, he would not be a ‘workman’ within the meaning of Section
\n2(s) of the Industrial Disputes Act, 1947 (for short, ‘the Act’).  The Labour
\nCourt having regard to the rival contentions framed the following issues :\n<\/p>\n
“1.\tWhether the applicant does not fall under the
\ndefinition of workman;\n<\/p>\n
2.\tWhether the termination of services of the
\nworkman is proper, justified and in order?  If not,
\nto what relief he is entitled?”\n<\/p>\n
\tThe question as to whether the Respondent was a workman or not was
\ntaken up as a preliminary  issue and by an order dated 24.9.1982, the Labour
\nCourt opined that the job performed by the Respondent was of  ‘legal
\nclerical nature’ and, thus, he would be a ‘workman’ within the meaning of
\nthe provisions of the Act. In its award dated 13.11.1984, the Labour Court
\ncame to the conclusion that the Respondent, having been retrenched from
\nservices by the Appellant without complying with the provisions of Section
\n25F of the Act, should be directed to be reinstated with continuity of service
\nand 50% back wages.\n<\/p>\n
HIGH COURT PROCEEDINGS:\n<\/p>\n
\tAggrieved by and dissatisfied with the said award, both the Appellant
\nand the Respondent filed writ petitions before the Punjab and Haryana High
\nCourt.  A learned Single Judge of the said court by a judgment and order
\ndated 30.8.1991, while upholding the finding of the Labour Court to the
\neffect that the Respondent was a workman; upon consideration of the fact
\nthat he had since been practising as an advocate and was appointed as an
\nAdditional District Attorney in the year 1985, awarded  an amount
\ncalculated at 50% back wages from the date of termination to the date of
\naward, namely, 13th November, 1984 by way of compensation in lieu of his
\nreinstatement in service.\n<\/p>\n
 \tThe Respondent filed two Letters Patent Appeals against the said
\njudgment.  The Appellant, however, did not prefer any appeal there-against.\n<\/p>\n
 \tA Division Bench of the High Court by a judgment dated 4.9.2001,
\nset aside the judgment of the learned Single Judge and restored the award of
\nreinstatement passed by the Labour Court but rejected the contention of the
\nRespondent that he was entitled to full back wages.  It was, however,
\ndirected that the Respondent would be free to avail remedy under Section
\n33-C(2) of the Act for payment of wages for the period between the date of
\nthe award and the date of physical reinstatement.\n<\/p>\n
 \tIn the said inter-court appeals, allegedly the name of the counsel for
\nthe Appellant had not been shown on the date of hearing and as such it was
\nnot represented.  The Appellant preferred two Special Leave Petitions being
\nSpecial Leave Petition (Civil) Nos. 4493 and 4494 of 2002 against the said
\njudgment.  However, on an application filed by the learned counsel
\nappearing on behalf of the Appellant, the said Letters Patent Appeals were
\nrestored and by reason of an order dated 7.3.2002, the earlier directions
\nissued on 4.9.2001 were sustained.   In its judgment dated 7.3.2002, the
\nDivision Bench merely noticed the submissions made on behalf of the
\nAppellant herein but otherwise the tenor of  both the judgments is similar.\n<\/p>\n
SUBMISSIONS:\n<\/p>\n
\tMr. Uday U. Lalit, learned Senior Counsel appearing on behalf of the
\nAppellant, assailing the judgment of the High Court would submit that
\nhaving regard to the nature of duties performed by the Respondent herein, he
\ncould not be held to be a workman within the meaning of Section 2(s) of the
\nAct.\n<\/p>\n
\tThe learned counsel would contend that the fact that the Respondent
\nwas a practicising advocate and even after joining services, sought for non-
\npracticising allowance, would clearly go to show that his job was akin to that
\nof a practicising lawyer.  The learned counsel would urge that the Labour
\nCourt, the learned Single Judge as also the Division Bench of the High Court
\ncommitted a manifest error in holding that the Respondent was a workman
\non the premise that he was neither a Manager nor a Supervisor.  Such an
\napproach, Mr. Lalit, would argue, is contrary to the well-settled principles of
\nlaw as regard interpretation of Section 2(s) of the said Act.  According to the
\nlearned counsel, having regard to the fact that the decision of this Court in
\nS.K. Verma vs. Mahesh Chandra and Another<\/a> [(1983) 4 SCC 214]
\nwhereupon the Division Bench placed strong reliance and other decisions
\nfollowing the same having been held to have been rendered per incuriam by
\na Constitution Bench of this Court in  H.R. Adyanthaya and Others vs.
\nSandoz (India) Ltd. and Others<\/a>   [(1994) 5 SCC 737], the impugned
\njudgment cannot be sustained.\n<\/p>\n
\tMr. Lalit would submit that although the Appellant had not preferred
\nany appeal against the judgment and order passed by the learned Single
\nJudge, having regard to the fact that the said finding of the High Court had
\nbeen rendered without jurisdiction and in any event, the question that would
\nfall for consideration before this Court on the admitted fact being a pure
\nquestion of law, the principle of res judicata shall have no application in the
\ninstant case.  Strong reliance in this behalf  was placed on Mathura Prasad
\nBajoo Jaiswal and Others vs, Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613]                    <\/p>\n
\tMr. Ajay Siwach, learned counsel appearing on behalf of the
\nRespondent, on the other hand, would contend that the Labour Court in its
\ninterim order dated 24.09.1982  while determining the preliminary issue had
\narrived at a finding that the Respondent was a workman as he had not been
\nperforming the duties in a supervisory or managerial capacity, as he had
\nbeen mainly doing the job of a legal clerical nature which having been
\nupheld by the learned Single Judge as well as the Division Bench of the
\nHigh Court, the impugned judgments should not be interfered with.  The
\nlearned counsel would contend that in any event as the Appellant has not
\npreferred any appeal against the judgment of the learned Single Judge, the
\nsame had attained finality and, thus, this Court should not permit the
\nAppellant to raise the contention there-against as to whether the Respondent
\nis a workman or not.  Reliance in this behalf has been placed on K.K. John
\nvs. State of Goa<\/a> [(2003) 8 SCC 193].\n<\/p>\n
DETERMINATION:\n<\/p>\n
Workman:\n<\/p>\n
\tSection 2(s) of the Act reads as under :\n<\/p>\n
“(s) “Workman” means any person (including an
\napprentice) employed in any industry to do any manual,
\nunskilled, skilled, technical, operational, clerical or
\nsupervisory work for hire or reward, whether the terms of
\nemployment be express or implied  and for the purposes
\nof any proceeding under this Act in relation to an
\nindustrial dispute, includes any such person who has been
\ndismissed, discharged or retrenched in connection with,
\nor as a consequence of, that dispute, or whose dismissal,
\ndischarge or retrenchment has led to that dispute, but
\ndoes not include any such person –\n<\/p>\n
(i)\twho is subject to the Air Force Act, 1950
\n(45 of 1950), or the Army Act, 1950 (46 of
\n1950), or the Navy Act, 1957 (62 of 1957);\n<\/p>\n
or<\/p>\n
(ii)\twho is employed in the police service or as
\nan officer or other employee of a prison; or<\/p>\n
(iii)\twho is employed mainly in a managerial or
\nadministrative capacity; or<\/p>\n
(iv)\twho, being employed in a supervisory
\ncapacity, draws wages exceeding one
\nthousand six hundred rupees per mensem or
\nexercises, either by the nature of the duties
\nattached to the office or by reason of the
\npowers vested in him, functions mainly of a
\nmanagerial nature,.”\n<\/p>\n
A bare perusal of the aforementioned provision clearly indicates that a
\nperson would come within the purview of the said definition if he : (i)  is
\nemployed in any industry; and (ii) performs any  manual, unskilled, skilled,
\ntechnical, operational, clerical or supervisory work.\n<\/p>\n
Thus, a person who performs one or the other jobs mentioned in the
\naforementioned provisions only would come within the purview of
\ndefinition of workman.  The job of a clerk ordinarily implies stereotype
\nwork  without power of control or dignity or initiative or creativeness.  The
\nquestion as to whether the employee has been performing a clerical work or
\nnot is required to be determined upon arriving at a finding as regard the
\ndominant nature thereof.   With a view to give effect to the expression to do
\n“any manual, unskilled, skilled, technical, operational, clerical or
\nsupervisory work”,  the job of the concerned employee must fall within one
\nor the other category thereof.  It would, therefore, not be correct to contend
\nthat merely because the employee had not been performing any managerial
\nor supervisory duties, ipso facto he would be a workman.\n<\/p>\n
In Miss A. Sundarambal vs. Government of Goa, Daman and Dieu
\nand Others<\/a> [(1988) 4 SCC 42], teachers serving in an educational institution
\nbeing not found to be performing any duty within the aforementioned
\ncategory has been held not to be workmen.  Similarly, an advertising
\nmanager, a chemist employed in a sugar mill, gate sergeant in charge of
\nwatch and ward staff in a tannery, a welfare officer in a commercial
\neducational institution have also not been held to be workmen.  The
\nRespondent had not been performing any stereotype job.  His job involved
\ncreativity.  He not only used to render legal opinions on a subject but also
\nused to draft pleadings on behalf of the Appellant as also represent it before
\nvarious courts\/authorities.  He would also discharge a quasi-judicial
\nfunctions as an Enquiry Officer in departmental enquiries against the
\nworkmen.  Such a job, in our considered opinion, would not make him a
\nworkman.\n<\/p>\n
In S.K. Verma (supra), this Court without taking into consideration
\nthe earlier binding precedents and in particular the decision of  May & Baker
\n(India) Ltd. vs. Workmen<\/a>  [AIR 1967 SC 678] arrived at a conclusion that
\nan employee who does not perform any supervisory or managerial nature of
\nduties, would be a workman.  S.K. Verma (supra) was held to have been
\nrendered per incuriam by a Constitution Bench of this Court in H.R.
\nAdyanthaya (supra).\n<\/p>\n
The question came up for consideration recently before this Court in
\nMukesh K. Tripathi vs. Senior Divisional Manager, LIC and Others  [(2004)
\n8 SCC 387], wherein it was held :\n<\/p>\n
“Once the ratio of May and Baker (supra) and
\nother decisions following the same had been reiterated
\ndespite  observations made to the effect that S.K. Verma
\n(supra) and other decisions following the same were
\nrendered on the facts of that case, we are of the opinion
\nthat this Court had approved the reasonings of May and
\nBaker (supra) and subsequent decisions in preference to
\nS.K. Verma (supra).\n<\/p>\n
 \tThe Constitution Bench further took notice of the
\nsubsequent amendment in the definition of ‘workman’
\nand held that even the Legislature impliedly did not
\naccept the said interpretation of this Court in S.K. Verma
\n(supra) and other decisions.\n<\/p>\n
 \tIt may be true, as has been submitted by Ms.
\nJaisingh, that S.K. Verma (supra) has not been expressly
\noverruled in H.R. Adyanthaya (supra) but once the said
\ndecision has been held to have been rendered per
\nincuriam, it cannot be said to have laid down a good law.
\nThis Court is bound by the decision of the Constitution
\nBench.\n<\/p>\n
This court opined :\n<\/p>\n
“The definition of ‘workman’ as contained in
\nSection 2(s) of the Industrial Disputes Act, 1947 includes
\nan apprentice, but a ‘workman’ defined under the
\nIndustrial Disputes Act, 1947 must conform to the
\nrequirements laid down therein meaning thereby, inter
\nalia, that he must be working in  one or the other
\ncapacities mentioned therein and not otherwise.\n<\/p>\n
\t\t\t***\t\t\t***\t\t\t***<\/p>\n
 A ‘workman’ within the meaning of Section 2(s)
\nof the Industrial Disputes Act, 1947 must not only
\nestablish that he is not covered by the provisions of the
\nApprentices Act but must further establish that he is
\nemployed in the establishment for the purpose of doing
\nany work contemplated in the definition.  Even in a case
\nwhere a period of apprenticeship is extended, a further
\nwritten contract carrying out such intention need not be
\nexecuted.  But in a case where a person is allowed to
\ncontinue without extending the period of apprenticeship
\neither expressly or by necessary implication and regular
\nwork is taken from him, he may become a workman.  A
\nperson who claims himself to be an apprentice has certain
\nrights and obligations under the statute.”\n<\/p>\n
The said decision has been followed by this Court in U.P. State
\nElectricity Board vs. Shiv Mohan Singh and Another<\/a> [(2004) 8 SCC 402].\n<\/p>\n
It is now trite that the issue as to whether an employee answers the
\ndescription of a workman or not has to be determined on the basis of a
\nconclusive evidence. The said question, thus, would require full
\nconsideration of all aspects of the matter.\n<\/p>\n
The jurisdiction of the Industrial Court to make an award in the
\ndispute would depend upon a finding as to whether the concerned employee
\nis a workman or not.  When such an issue is raised, the same being a
\njurisdictional one, the findings of  the Labour Court in that behalf would be
\nsubject to judicial review.\n<\/p>\n
The High Court furthermore applied wrong legal tests in following
\nS.K. Verma (supra) in upholding the views of the Labour Court which itself
\napproached the matter from a wrong angle.  The Labour Court as also the
\nHigh Court also posed a wrong question unto themselves and, thus,
\nmisdirected themselves in law.\n<\/p>\n
In Cholan Roadways Limited Vs. G. Thirugnanasambandam [2004
\n(10) SCALE 578], this Court held:\n<\/p>\n
“34In the instant case the Presiding Officer,
\nIndustrial Tribunal as also the learned Single Judge
\nand the Division Bench of the High Court
\nmisdirected themselves in law insofar as they
\nfailed to pose unto themselves correct questions.  It
\nis now well-settled that a quasi-judicial authority
\nmust pose unto itself a correct question so as to
\narrive at a correct finding of fact.  A wrong
\nquestion posed leads to a wrong answer.  In this
\ncase, furthermore, the misdirection in law
\ncommitted by the Industrial Tribunal was apparent
\ninsofar as it did not apply the principle of Res ipsa
\nloquitur which was relevant for the purpose of this
\ncase and, thus, failed to take into consideration a
\nrelevant factor and furthermore took into
\nconsideration an irrelevant fact not garmane for
\ndetermining the issue, namely, the passengers of
\nthe bus were mandatorily required to be examined.
\nThe Industrial Tribunal further failed to apply the
\ncorrect standard of proof in relation to a domestic
\nenquiry, which in “preponderance of probability”
\nand applied the standard of proof required for a
\ncriminal trial.  A case for judicial review was, thus,
\nclearly made out.”\n<\/p>\n
.\n<\/p>\n
In this view of the matter, the impugned award and the judgments are
\nnot legally sustainable.\n<\/p>\n
RES-JUDICATA
\n \tIt is true that the Appellant did not challenge the judgment of the
\nlearned Single Judge.  The learned Judge in support of his judgment relied
\nupon an earlier decision of the High Court in Rajesh Garg vs. Management
\nof Punjab State Tube-well Corporation Limited and Another   [1984 (3) SLR
\n397] but failed to  consider the question having regard to the
\npronouncements of this Court including H.R. Adyanthaya (supra).  Rajesh
\nGarg (supra) was rendered following S.K. Verma (supra), which being not a
\ngood law could not have been the basis therefor.\n<\/p>\n
The principle of res judicata belongs to the domain of procedure.
\nWhen the decision relates to the jurisdiction of a court to try an earlier
\nproceedings, the principle of res judicata would not come into play.   [See
\nMathura Prasad Bajoo Jaiswal  (supra)].\n<\/p>\n
An identical question came up for consideration before this Court in
\nAshok Leyland Ltd. vs. State of Tamil Nadu and Another [(2004) 3 SCC 1]
\nwherein it was observed :\n<\/p>\n
“The principle of res judicata is a procedural
\nprovision.  A jurisdictional question if wrongly decided
\nwould not attract the principle of res judicata.  When an
\norder is passed without jurisdiction, the same becomes a
\nnullity.  When an order is a nullity, it cannot be supported
\nby invoking the procedural principles like, estoppel,
\nwaiver or res judicata”\n<\/p>\n
It would, therefore, be not correct to contend that the decision of the
\nlearned Single Judge attained finality and, thus, the principle of res judicata
\nshall be attracted in the instant case.\n<\/p>\n
Reliance placed by the learned counsel  on K.K. John (supra) is
\nmisplaced.  In that case a part of the award was remitted by the court in
\nexercise of its jurisdiction under Section 16 of the Arbitration Act, 1940.
\nRejecting a contention that by reason of such remittance the entire award
\nbecomes void in terms of sub-section (3) of Section 16, it was held :\n<\/p>\n
\t“In the present case, we find that the entire award
\nwas not remitted to the arbitrator.  The arbitrator was
\nonly required to give determination on two points, and,
\ntherefore, sub-section (3) is not applicable in the present
\ncase.  Parliament advisedly has restricted sub-section (3)
\nof Section 16 of the Act to an award which would mean
\nthe whole award or a part of it.  The valid part of the
\naward always remains enforceable in a court of law.
\nWhat can be held to be void is that part of the award
\nwhich has not been made a rule of court by sustaining the
\nobjections raised with regard thereto inter alia on the
\nground that the same suffers from an error apparent on
\nthe face of the record or for any other reason; in the event
\nthe arbitrator or umpire fails to reconsider it and submit
\nhis decision within the time fixed therefor by the court.
\nIn other words, the word “award” within the meaning of
\nsub-section (3)  would also include a part of the award,
\nwhich has been the subject-matter of the order of
\nremission by the competent court.  In any view of the
\nmatter, the applicability of sub section (3) of Section 16
\nof the Act, in the facts and circumstances of the present
\ncase, does not arise inasmuch as the matter is still
\npending before the arbitrator”\n<\/p>\n
Furthermore, we are of the opinion that the law operating in the field
\nmust be stated with precision and clarity and in that view of the matter also it
\nwas necessary for us to deal with the legal question raised by Mr. Lalit.\n<\/p>\n
CONCLUSION:\n<\/p>\n
For the reasons aforementioned, the impugned judgments of the
\nLabour Court and the High Court cannot be upheld.  They are set aside
\naccordingly.  However, in the facts and circumstances of this case and
\nparticularly in view of the fact that the Appellant  was agreeable to pay 50%
\nback wages  to the Respondent, as directed by the learned Single Judge and
\nfurther having regard to the fact that a substantial portion thereof is said to
\nhave already been paid, we would direct the Appellant to pay the balance
\namount, if any, to the Respondent in terms thereof within eight weeks from
\ntoday.\n<\/p>\n
The appeals are allowed with the aforementioned directions.  In the
\nfacts and circumstances of the case, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mangt.Of M\/S Sonepat Coop.Sugar … vs Ajit Singh on 14 February, 2005 Author: S.B. Sinha Bench: N. Santosh Hegde, S.B. Sinha CASE NO.: Appeal (civil) 8453-54 of 2002 PETITIONER: Mangt.of M\/s Sonepat Coop.Sugar Mills Ltd. RESPONDENT: Ajit Singh DATE OF JUDGMENT: 14\/02\/2005 BENCH: N. Santosh Hegde & S.B. Sinha JUDGMENT: JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-146677","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMangt.Of M\/S Sonepat Coop.Sugar ... vs Ajit Singh on 14 February, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mangt-of-ms-sonepat-coop-sugar-vs-ajit-singh-on-14-february-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mangt.Of M\/S Sonepat Coop.Sugar ... vs Ajit Singh on 14 February, 2005 - 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