How to ascertain whether a person is a workman or not as per Industrial disputes Act?

In Standard Chartered Bank (supra) the Court while considering the appointment of the respondent therein as a Personal Financial Consultant in which the key responsibilities were as indicated in para 2 thereof by relying upon the judgment in Inthru Noronha vrs. Colgate Palmolive (India) Ltd, MANU/MH/0259/2005 : 2005 (2) Mh.L.J. 884, has held in para 10 as under;

"10. These duties upon which there is absolutely no dispute or caveat would belie the contention of the first respondent that she was doing work predominantly of a clerical nature. Section 2(s) of the Industrial Disputes Act, 1947 defines the expression "workman" to mean any person "employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward". A Constitution Bench of the Supreme Court in H.R.Adyanthaya vrs. Sandoz (India) Ltd., MANU/SC/0525/1994 : 1994 (II) CLR 552 held that in order that a person can be designated as a workman under Section 2(s) he/she must be employed to do work which falls within one of the stipulated categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. In other words, it is not enough that a person is not covered by either of the four exceptions to the definition. It is now also a well settled principle of law that the burden lies on the person who asserts the status of a workman under section 2(s) to establish with reference to the dominant nature of his/her duties that the work which is performed falls within one of the stipulated categories in Section 2(s). Mukesh K. Tripathi vrs. Senior Divisional Manager, LIC, MANU/SC/0726/2004 : 2004 (III) CLR 534 at para 37 and Ganga Kisan Sahkari Chini Mills Ltd. Vrs. Jaivir Singh, MANU/SC/7946/2007 : 2007(III) CLR 840 at para 9".

Looking to the nature of the services, it has further held in para 18, as under:

"18. The fact that in an organizational structure the employee, in the course of the decision making process, is subject to checks and balances is not a matter which would establish that she/he is a workman within the meaning of Section 2(s). Modern forms of business in corporate organizations put into place a carefully crafted process of checks and balances. Rarely, if ever, would an employee have authoritarian control over business decisions. Employees are made subject to checks and balances both at the lateral and vertical level. Managerial decisions are subject to verification and approval. The fact that decisions of an employee are subject to verification or subject to a system of controls and balances does not establish that the employee is a workman within the meaning of Section 2(s). Managers do not become workmen because their decisions are structured by processes and approvals. Absolute autonomy is not the norm in managerial decision making. Nor does the law insist on absolute discretion or absolute autonomy for a person to be a manager. Basically the answer to the question must depend upon the dominant nature of the duties and responsibilities.

In Standard Chartered Bank (supra), reliance was also placed on Dhruba Kumar Changkokoti vrs. Travel Corporation of India Ltd, MANU/MH/0725/2000 : 2000(II) CLR 644, which holds that a person who was employed to promote tourism of a travel company in Eastern Europe could not be regarded as a workman within the meaning of section 2(s) of the ID Act and so also on Mukesh K. Tripathi vrs. Senior Divisional Manager, LIC, MANU/SC/0726/2004 : 2004 (III) CLR 534, which holds that a person who had been recruited to develop the business of the employer could not have done so without being a full fledged officer of the Corporation and would not be a workman within the meaning of section 2(s) of the ID Act. In Twenty First Century (supra), while considering a plea as to whether a Purchase Officer was a workman within the meaning of Section 2(s) of the ID Act, the following was the answer :

"13. It was, however, argued that the respondent could not be said to be part of the management because he had no one working under him. The true test must depend on the nature of the function and not whether the person has any other employee working under him. Indeed, an employee can be at the lowest managerial post and could still be said to perform managerial function. Having regard to the nature of the activity of purchase, it appears that the function must be classified as managerial being part of the controlling and regulating functions of the industry. In this view of the matter, the respondent no.1 must be held to be an employee mainly in a managerial capacity and is, therefore, excepted from the meaning of "workman" by virtue of section 2(s)(iii) of the Act." {Para 5}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2101 of 2023

Decided On: 13.07.2023

 Abbott India Limited  Vs.  Dipak

Hon'ble Judges/Coram:

Avinash G. Gharote, J.

Citation: MANU/MH/2668/2023.

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Whether reference made to labour court can be dismissed in default?

 Settlement of industrial dispute being the main object behind the Industrial Disputes Act, 1947, the provisions as extracted above would show that once an industrial dispute which could not be settled in conciliation, the same is referred to the Labour Court or the Industrial Tribunal, as the case may be, for adjudication. The purpose of adjudication is determination of the industrial dispute and the same is expressed in the form of an Award. Therefore, once a Reference under Section 10 of the Industrial Disputes Act is made to the Labour court or the Industrial Tribunal, the said forum is to determine the dispute or question referred to it by appropriate adjudication. The Government along with the Reference also forwards the relevant materials also to the Court or the Tribunal. Thus, once a Reference is made, the Court or the Tribunal has to decide the same on the basis of the materials available on record. Whether any party to the dispute cooperates or not is immaterial. Hence, there arises no question of dismissal of the Reference for default. The Reference can be disposed of only by passing an Award whereby the question referred to it has been determined by the Labour Court or the Tribunal by passing an Award. The Presiding Officer, on the basis of the materials available on record should consider the matter on merits and enter the findings.

Bombay High Court

Sangitabai Bhaskar Kamble vs The Commissioner Aurangabad ... on 20 December, 2016

Bench: R.V. Ghuge

                                                            WP/12096/2016/Group
   

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Whether interim protection should be granted against domestic enquiry on mere askance?

 Before parting with this case, however, we must strike a
note of caution, as has been done by the Division Bench of the
Bombay High Court. It could not be gainsaid that the employers
have a right to take disciplinary actions and to hold domestic
enquiries against their erring employees. But for doing so, the
standing orders governing the field have to be followed by such
employers. These standing orders give sufficient protection to
the   concerned   employees   against   whom   such   departmental
enquiries are proceeded with. If such departmental proceedings
initiated by serving of chargesheets are brought in challenge at
different   stages   of   such   proceedings   by   the   concerned
employees invoking the relevant clauses of Item 1 of Schedule IV
before the final orders of discharge or dismissal are passed, the
Labour Court dealing with such complaint should not lightly
interfere   with   such   pending   domestic   enquiries   against   the

concerned complainants. The Labour Court concerned should
meticulously   scan   the   allegations   in   the   complaint   and   if
necessary, get the necessary investigation made in the light of
such complaint and only when a very strong prime facie case is
made   out   by   the   complainant   appropriate   interim   orders
intercepting such domestic enquiries in exercise of powers under
Section 30(2) can be passed by the Labour Courts. Such orders
should not be passed for mere askance by the Labour Courts.
Otherwise, the very purpose of holding domestic enquiries as
per the standing orders would get frustrated.”
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4086 OF 2016
Ashok Rambhaji Tupe,

V
 The Maharashtra State Road Transport
  
( CORAM : RAVINDRA V. GHUGE, J.)
    DATE  : 07/04/2016
Citation: 2016(6) ALLMR 630

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Whether labour court has power to take action for contempt of its own court?

 Section 46(5) of the Act provides that failure to carry out the terms of any settlement, award, registered agreement, effective order or decision of a Wage Board, Industrial Court or Labour Court shall be deemed to be an illegal change. Section 47 of the Act provides that an employer required under the terms of any effective decision or order of a Wage Board, Labour Court or the Industrial Court to carry out a change or withdraw an illegal change, shall comply with such requirement within such time as the Wage Board or Court giving or making the decision order prescribes and, where no time is prescribed by it, within forty-eight hours of the giving or making of the decision or order. Section 106 of the Act provides that an employer making an illegal change shall be punishable with imprisonment and/or fine which may extend to Rs. 5,000/- (Rupees five thousand only). The remedy of a person, whose grievance is that an effective order of the appropriate forum under the Act has not been implemented or deliberately flouted, is two-fold. Firstly, he may make an application under Section 78(1)A(c) for a declaration of an illegal change and seek appropriate relief therein. In addition, after obtaining such declaration, he may move the Labour Court in its special jurisdiction to convict the einployer of an offence underSection 106(1) or Section 106(2) of the Act. The Contempt of the Labour Court, Industrial Court and Wage Board or other kinds of Contempts of Industrial Court, Labour Court and Wage Boards have been dealt with under Section 119A and Section 119B of the Act. A perusal of Section 119Awould indicate two features. Firstly there is no reference therein to disobedience of any order or the consequence of such disobedience, as contemplated in Section 106. Secondly, the acts described in sub-section (1), Clauses (a) to (d) of Section 119A are constituted criminal offences for which the forum is required to make a record of the facts constituting an offence and the statement of the accused person as provided in the Code of Criminal Procedure and forward the case to the Magistrate having jurisdiction to try the same. Section 119B of the Act deals with other types of contempts which would fall within the broad category of acts calculated to improperly influence the Industrial Court, or a Labour Court or a Wage Board or to bring such Court, Board or a member or a Judge thereof into disrepute or contempt or to lower its or his authority or to interfere with the lawful process of the forum. These are acts which would properly fall within the definition of 'Criminal Contempt', as contemplated under Section 2(c) of the Contempt of Courts Act, 1971. For such contempt the procedure is that, if the contempt is of the Labour Court, the Labour Court is required to make a report of the material facts to the Industrial Court and the Industrial Court then in turn would forward a report to the High Court which is required to deal with such contempt as if it were contempt of itself and act in accordance with the same procedure and practice as it has an exercise in respect of contempt of itself.

Bombay High Court

Kolhapur Zilla Shetkari Vinkari ... vs N. P. Murugali, Judge, Labour ... on 31 March, 1995

Equivalent citations: (1997) IIILLJ 592 Bom

Bench: B Srikrishna

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Supreme court Judgment on territorial jurisdiction for filing case in Labour court

Though, the learned counsel on both sides had
addressed in detail on several issues, we do not
think it necessary to go into all those aspects
mainly because in our view they are only academic.
In the background of the factual matrix, the
undisputed position is that the appellant was
employed by the Company in Aurangabad, he was only
transferred to Pondicherry, the decision to close
down the unit at Pondicherry was taken by the Company
at Aurangabad and consequent upon that decision only
the appellant was terminated. Therefore, it cannot
be said that there is no cause of action at all in
Aurangabad. The decision to terminate the appellant
having been taken at Aurangabad necessarily part of
the cause of action has arisen at Aurangabad. We
have no quarrel that Labour Court, Pondicherry is
within its jurisdiction to consider the case of the
appellant, since he has been terminated while he was
working at Pondicherry. But that does not mean that
Labour Court in Aurangabad within whose jurisdiction

the Management is situated and where the Management
has taken the decision to close down the unit at
Pondicherry and pursuant to which the appellant was
terminated from service also does not have the
jurisdiction. In the facts of this case both the
Labour Courts have the jurisdiction to deal with the
matter. Hence, the Labour Court at Aurangabad is
well within its jurisdiction to consider the
complaint filed by the appellant. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1409 OF 2016
(Arising out of SLP ( C) No. 33917 of 2011)
NANDRAM APPELLANT
 VERSUS
M/S GARWARE POLYSTER LTD. RESPONDENT
Dated;FEBRUARY 16, 2016
Citation:(2016) 6 SCC290

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Whether xerox copy of certificate is admissible in labour court?

 The Labour Court has, in the case at hand, placed reliance upon a Xerox copy of a certificate allegedly issued by an officer of the appellant- Corporation stating that the respondent was in the employment of the appellant-Corporation as a Conductor between 3rd October, 1987 and 31st March, 1989. While it is true that the Xerox copy may not be evidence by itself specially when the respondent had stated that the original was with him, but had chosen not to produce the same yet the fact remains that the document was allowed to be marked at the trial and signature of the officer issuing the certificate by another officer who was examined by the appellant. Strict rules of evidence, it is fairly well-settled, are not applicable to the proceedings before the Labour Court. That being so the admission of the Xerox copy of the certificate, without any objection from the appellant-Corporation, cannot be faulted at this belated stage. 

Supreme Court of India

Bhavnagar Mun.Corp.Etc vs Jadeja Govubha Chhanubha & Anr on 3 December, 2014

Citation; 2015 ALLSCR166

Bench: T.S. Thakur, R. Banumathi

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Whether caveat can be filed before Industrial or Labour Court or Authority dealing with judicial or quasi judicial function?

 The parties to the proceedings have a right to appear before the authority either on receiving notice or summons. As a sound judicial practice any order normally is to be passed after hearing both the parties In the exceptional circumstances, when there has been no sufficient time to serve the other side and the danger apprehended or complained of is eminent, the Court exercises a power by passing ex parte order. However, when the opposite party himself voluntarily offers to appear, there could not be any impediment-legal or otherwise-to prohibit his appearance. The procedure of caveat though codified, and incorporated by recent amendment, it is an evolution of sound judicial; practice. It would be always expedient to pass the interlocutory order after hearing the opponent. Such interim order normally entails a civil consequence which are sometimes substantial in nature. Refusing the opponent from putting his appearance on his own, would not in any manner further the cause of justice Occasionally, and as the experience goes, it tends to defeat the course of justice. In view of this, irrespective of the applicability of Section 148-A of the Civil Procedure Code as a just and fair practice, the filing of appearance may be in the form of caveat, cannot be discouraged by the Industrial or Labour Court or nay Authority dealing with judicial or quasi judicial function. The similar view is expressed by a Division Bench of Allahabad High Court in a case, reported in Chandrajit v. Ganeshya .

Bombay High Court

Mahadeo Sitaramji Band vs Maharashtra State Road Transport ... on 28 August, 1991

Equivalent citations: (1991) 93 BOMLR 963,1992(1) MHLJ 31

A.A. Desai, J.

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