Maheshwar Singh vs M/S.Indomag Steel Technology ...
2010 Latest Caselaw 2001 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 W.P.(C) No. 12886/2006

                              Judgment reserved on: 19.02.2010
%                             Judgment delivered on: 19.04.2010

Maheshwar Singh                         ...... Petitioner
                         Through: Mr. A.K. Bajpai, Adv.

                  versus

M/s.Indomag Steel Technology Ltd..      ..... Respondent
                         Through: Mr. Lalit Bhasin, Adv.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.   Whether the Reporters of local papers may
     be allowed to see the judgment?                        Yes

2.   To be referred to Reporter or not?                     Yes

3.   Whether the judgment should be reported
     in the Digest?                                         Yes

KAILASH GAMBHIR, J.

*

1. By this petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks quashing of the award

dated 9.5.2006 passed by the Ld. Labour Court in ID No. 172/99

whereby the reference was answered against the petitioner and

in favour of the respondent management.

2. Brief facts relevant for deciding the present petition

are that the petitioner was appointed as a draftsman on

26.8.1996 with the respondent and was regularized on 20.2.1997.

It is alleged by the petitioner that his services were terminated

verbally without any order in writing and hence the petitioner

raised an industrial dispute bearing ID No. 172/99 whereby vide

an award dated 9.5.2006, the labour court held that the petitioner

is not a workman u/s 2(s) of the I.D. Act and hence not entitled to

any relief. Feeling aggrieved with the same, the petitioner has

preferred the present petition.

3. Mr. A.K. Bajpai, counsel for the petitioner submitted

that the petitioner is very well covered within the definition of

workman under Section 2 (s) of the Industrial Disputes Act, 1947

as he was discharging the duties of a skilled person. Counsel

further submitted that the category of the petitioner does not fall

in the category of exclusion clauses envisaged under (i) to (iv) of

Section 2 (s) of the I.D. Act. Counsel further submitted that

under Clause (iv) of Section 2 (s)of the I.D. Act, a person who is

employed and is discharging duties of a managerial nature

would not be covered within the definition of the workman u/s 2

(s) but in the facts of the present case the petitioner was not

discharging any such duties of managerial nature or of

supervisory nature as proved by the petitioner on record. In

support of his arguments, counsel placed reliance on the

judgment of the Apex Court in Arkal Govind Raj Rao Vs. Ciba

Geigy of India Ltd. (1985) 3 SCC 371.

4. On the other hand, counsel for the respondent

submitted that the petitioner was essentially discharging the

duties of an independent nature of a draftsman where he alone

was taking decision to prepare highly specialized and

sophisticated engineering drawings based on his own

independent skill and therefore, such a person cannot fall in the

category of 'workman' within the definition of Section 2(s) of

the I.D. Act. Counsel for the respondent further submitted

that the judgment of the Apex Court cited by the counsel for the

petitioner in Arkal Govind Raj Rao (Supra), would not be

applicable to the facts of the present case as in the said case the

Apex Court while dealing with a case of stenographer-cum-

accountant held that the court should find out the primary and

basic duties assigned to a particular job and the additional duties

would not change the character and status of a person. Counsel

further submitted that so far the facts of the present case are

concerned, the primary and basic duties of the draftsman itself

are of a highly sophisticated nature where the person uses his

own independent talent in preparing the drafts. Counsel placed

reliance on the judgment of the Apex Court in Burmah Shell Oil

Storage & Distribution Company of India Ltd. Vs. The

Burmah Shell Management Staff Association & Ors.,(1970)

3 SCC 378 in which the Apex court has laid down the principles

to determine different categories of persons discharging their

duties whether falling within the scope and definition of

'workman' envisaged under section 2(s) of the I.D. Act. Counsel

also placed reliance on the judgment of the Bombay High Court

in Ramesh Vs. The Commissioner, Revenue Division

Amravati 1995 LAB I.C. 546 to show many facets of the

nature of supervision of work that can be undertaken by an

employee depending upon the job requirement of work assigned

to him. Counsel further submitted that the labour court has

taken into consideration the nature of the duties being

performed by the petitioner on the said post of draftsman and

then came to the conclusion that such duties cannot be held to

be covered under Section 2(s) of the I.D. Act. Counsel further

submitted that simply because the petitioner was receiving

instructions from his superior that would not take him outside the

definition of Section 2(s) of the I.D. Act as in any case after

receiving the instructions he was using his own skill to prepare

the drawings and designs.

5. Refuting the submissions of counsel for the

respondent, counsel for the petitioner submitted that the Bombay

High Court in the case of Ramesh V. The Commissioner,

Revenue Division, Amravati (Supra) was dealing with an

employee who was employed as Class-II, Gazetted Officer and a

sectional Engineer in whose case the court held that such a

category of a person cannot be covered within the definition of

workman under Section 2 (s) of the I.D. Act and hence does not

apply to the facts of the case at hand. Counsel distinguishing the

case of Burmah Shell Storage & Distribution Company of

India Ltd.(Supra) submitted that there the Apex Court was

dealing with the nature of duties as was assigned to the Junior

Managing Staff working in the Burmah Shell Company and after

taking into consideration the nature of duties being performed by

the said staff the Apex Court came to the conclusion that such

employees were not held to be workmen.

6. I have heard learned counsel for the parties at

considerable length and gone through the records.

7. Before proceeding to deal with the contentions raised

by both the parties, it would be appropriate to reproduce

Section 2(s) of the I.D. Act.

"2. DEFINITIONS:

(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express 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 Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); 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 one thousand six 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. "

8. A bare look at the aforesaid provision will indicate that

a person would come within the purview of the said definition if

he is employed in any industry to do any manual, unskilled,

skilled, technical, operational, clerical or supervisory work. The

question as to whether a particular employee falls within the

definition of 'workman' or not necessarily has to be determined

with reference to his dominant duties and not ancillary duties.

It is also a settled legal position that merely designation or

nomenclature as assigned to any post alone would not be the

determinative factor to infer as to whether a particular assigned

job would fall within the definition of 'workman' or not.

Essentially, the nature of duties being performed by the person

would determine as to whether such a person would fall within

the definition of workman or not for which the facts and

circumstances of the each case and the material placed on record

by the parties would help the courts/tribunals to come to the

conclusion as to whether a particular employee is discharging

any of the duties as envisaged under Section 2(s) of the I.D. Act

or not. It is not always possible to lay down a straightjacket

formula which can be determinative to find out the applicability

of the definition of workman as attracted to the particular nature

of duties.

9. Before adverting to discuss the legal issue involved

herein, it would be appropriate to refer to the facts of the present

case to see as to what duties the petitioner was essentially

discharging in his capacity as a 'draftsman'. The petitioner

entered the witness box as WW-1 and in his cross-examination

deposed that he was preparing drawings with the help of

engineers of the organization. He also deposed that he used to

perform his duties as draftsman as per the directions of his

superior officers including engineers, manager and other senior

officers of the management. He denied the suggestion given by

the management that there was no one to supervise his work.

He denied the suggestion that various departmental memos

were issued to him by the management to improve his work.

The management adduced its evidence through MW-1, who in his

cross-examination deposed that work was given to the petitioner

workman by S.G. Aggarwal, General Manager. He also deposed

that specifications were given by the Head of the Department

G.S. Aggarwal. He also deposed that the work of the workman

was being assessed by the Head of the Department. He further

admitted that the workman had no appointing powers and

supervisory duties.

10. Taking the aforesaid facts into consideration, it is not

in dispute that the petitioner was employed with the respondent

management as draftsman. The duties of a draftsman are

certainly skilled and technical in nature. A person can be said to

be employed in a technical capacity if he is, in the first place, a

skilled person. He must have enough dexterity to discharge the

work assigned to him with speed and accuracy. Such a skillful

person with the technical expertise has to use his judgment and

has to find out whether a particular work can be done in a

particular manner or not. A draftsman who has the technical

background and expertise may be after doing some technical

course or with the background of his experience has to apply his

mind to prepare certain plans and designs and to that extent he

may have originality in his ideas and thoughts but simply

because of the fact that one with technical expertise and

knowledge prepares some plans and designs, the same by itself

will not take him from the purview of definition of the workman

as envisaged under Section 2(s) of the I.D. Act, more particularly

when his ideas or work is subject to the final decision of the

superior authorities. Hence, under no circumstances the job of

draftsman can be equated with that of artists as discussed in

Bharat Bhawan Trust Vs. Bharat Bhawan Artists Assn.

(2001) 7 SCC 630 (Supra).

11. In the facts of the present case, it has been proved on

record that the petitioner was to prepare drawings with the help

of the engineers of the organization and he used to perform his

duties in his capacity as 'draftsman' as per the directions of his

superior officers including engineers, managers and other senior

officers of the management. It has also come on record that

specifications were being given by the Head of the Department

Sh. G.S. Aggarwal and his work was being assessed by the Head

of the Department. It is thus quite evident that the work of the

petitioner was under complete supervision of the Head of the

Department and he was doing his work only with certain

specifications. No doubt the said specifications were given

because of his technical background and that the petitioner was

required to use his skillful abilities to prepare plans and designs

but ultimately again the same were subject to final approval by

the supervisors of the petitioner, which would mean that plans

and designs submitted by the petitioner may or may not be

finally approved by his supervisors. His supervisors who may

possibly be more technically expert or trained people might give

further ideas and suggestions to improve upon the work of the

petitioner. No evidence has been placed on record by the

respondent management to draw conclusion that the petitioner

was not under the supervision of his superiors or the petitioner

himself was the final authority so far his innovative ideas or

thoughts were concerned, and in the absence of any such

evidence placed on record from the side of the respondent

management, the exclusion of the petitioner from the definition

of 'workman' in the face of evidence placed on record by the

petitioner sufficiently proves that his nature of duties were

skillful and technical in nature and therefore the job of

'draftsman' as assigned to the petitioner cannot be said to fall

outside the ambit and scope of definition of 'workman' envisaged

under section 2(s) of the I.D. Act.

12. In the light of the above discussion, I am of the

considered view that the reasoning given by the learned labour

court is perverse, irrational and illegal. The learned labour court

has not correctly applied the principles of law. The impugned

award is accordingly set aside and the matter is remanded back

to the tribunal for fresh adjudication of the dispute in terms of

the reference after treating the petitioner as workman employed

on the post of 'draftsman' with the respondent management.

13. The parties are directed to appear before the labour

court on 4th May, 2010.

April 19, 2010                         KAILASH GAMBHIR,J