Delhi High Court
Bses Yamuna Power Ltd. & Ors vs Mahinder Kumar on 5 August, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 178/2013
Date of Decision: 05.08.2016
BSES YAMUNA POWER LTD. & ORS ..... Appellant
Through: Mr.Sandeep Prabhakar with
Mr. Amit Kumar & Mr. Vikas
Mehta, Advocates.
versus
MAHINDER KUMAR ..... Respondent
Through: Mr. Vishwendra Verma,
Advocate.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J. (ORAL)
CM Appln.27698/2016
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CM Appln.27699/2016
1. The present application is for condonation of delay in filing the
review petition.
2. For the reasons stated in the application, the delay of 8 days in
filing the review petition is condoned.
3. The application stands disposed of.
Review Petition 339/2016
1. The present review petition has been filed seeking a re-look at
the judgment dated 24.05.2016 passed in RSA No.178/2013.
2. Learned counsel appearing for the applicant submits that the
judgment is flawed for the reason that it does not take into account the
definition of "workman" in Section 2(s) of Industrial Disputes Act,
1947 which reads as hereunder:
"(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."
(Emphasis provided)
3. Four classes of persons have been excluded from the definition
of „workman‟, namely (i) any person who is subject to Air Force Act
or the Army Act, Navy Act; or (ii) who is employed in the police
service or as an officer or other employee of a prison; or (iii) who is
employed in a managerial or administrative capacity; or (iv) who,
being employed in a supervisory capacity, draws wages exceeding
Rs.1600/- (which figure has been increased to Rs.10,000/- by Act 24
of 2010) per mensem or exercises, either by nature of the duties
attached to the office or by reason of the powers vested in him,
functions mainly of a managerial nature.
4. The submission of the learned counsel for the appellant is that
since the respondent/applicant Mahinder Kumar (workman) was
receiving a salary of Rs.3,136/-, therefore he would be excluded from
the definition of the „workman‟.
5. This court is afraid, such an interpretation cannot be accepted
for the reason that sub-clause (iv) refers to a person who is employed
in a supervisory capacity and who draws wages which exceeds
Rs.1,600/-. It is not the case of the respondent/workman that he is/was
employed in any supervisory capacity.
6. The other contention on behalf of the applicant is that by order
dated 27.05.1995 three issues were framed namely: (i) Whether the
jurisdiction of the Civil Court is barred under Industrial Disputes Act?
(ii) Whether the plaintiff is entitled to relief of declaration and
injunction as prayed for? (iii) Relief; but later, the issues were changed
and the following issues were framed by order dated 22.05.1996:
i. "Whether the plaintiff was absent from duty w.e.f.
13.4.94? OPD
ii. Whether the plaintiff is entitled to the salary and other
dues w.e.f. 13.4.94? OPP
iii. Whether the plaintiff is entitled to the reliefs claimed?
OPP
iv. Relief."
7. Learned counsel for the appellant submits that by order dated
11.01.1996, the Trial Court while directing for the joining of the
respondent (plaintiff)/workman on duty, had already decided the issue
regarding the jurisdiction and therefore the appellant was wrong in
submitting that the issue had been left upon by the Trial Court and the
First Appellate Court. He further submits that the issue therefore had
attained finality and the same could not have been upturned.
8. The contention of the appellant does not have any substance as
the entire second appeal was predicated on the issue whether the
dispute raised by the respondent is an industrial dispute, and if the
answer to this poser is in the affirmative, then the Civil Courts will not
have jurisdiction to try the aforesaid.
9. Thus, no good ground has been made out for reviewing the
judgment dated 24.05.2016.
10. The petition is dismissed.
ASHUTOSH KUMAR, J
AUGUST 05, 2016
ns
