NATIONAL ENGINEERING INDUSTRIES LIMITED Vs. KISHAN BHAGERIA

JUDGEMENT

(1.) After hearing parties and after considering the relevant documents, additional as well as original, we grant leave to appeal in these matters. The appeals are disposed of by the judgment herein.

(2.) Since prior to 1st of January, 1978 respondent 1 Shri Shri Kishan Bhageria was working under the appellant-company as an Internal Auditor on a monthly salary of Rs. 1186.60 per month. On 28th of January, 1978 the appellant alleged that the respondent started absenting himself from 28-1-78 and as such was not entitled to any salary for any period beyond 28-1-78. The said respondent was thereafter placed under suspension on 30th of March, 1978. The respondent on 4th of May, 1978 filed an application under S. 33C(2), Industrial Disputes Act, 1947 (hereinafter called 'the Act') claiming the total sum of Rs. 4,746.40 on account of salary from 1st of January, 1978 to 30th of April, 1978 at the rate of Rs. 1,186.60 per month, The appellant-company objected. The main ground of objections was that the respondent was not a workman. On or about 9th of November, 1978 there was an order dismissing the respondent from service. The respondent thereafter on 2nd of January, 1979 filed an application under S. 28A, Rajasthan Shops and Establishments Act, 1958 (hereinafter called 'the Rajasthan Act'). The said application was dismissed on 31st of July, 1979 on the ground of limitation. The Labour Court on 2nd of August, 1979 held that the respondent was doing clerical duties and as such was a workman under the Act and he was entitle to Rs. 2,060/- as salary from 1- 1-78 to 9-3-78. The appellant filed Writ Petition No. 765 of 1979 in the Rajasthan High Court against the order of the Labour Court allowing the said salary. The respondent also filed another writ petition being Writ Petition No. 1091 of 1979 for declaration that he was entitled to receive Rs. 2,066.98 as salary from 9-3-78 to 30-4-78. There was thereafter a reference under S. 10 of the Act on 8-8-80 arising out of the dismissal of the respondent. The appellant filed another writ petition being Writ Petition No. 1623 of 1980 challenging the order of reference. All these aforesaid writ petitions were disposed of by the learned single Judge of the Rajasthan High Court on 16-3-82 holding that the respondent was not a workman. The other contentions urged before the learned single Judge were not considered by the Division Bench in the view it took later on. On 17th of October, 1986 the Division Bench reversed the judgment of the learned single Judge and held that the respondent was a workman. Two Writ Petitions of the appellant were dismissed and the writ petition of the respondent was allowed. Aggrieved by the aforesaid orders the appellant has come up in these appeals before this Court.

(3.) The main question which requires consideration in these appeals is whether the respondent was a workman or not. For the determination of this question it is necessary to refer to S. 2(s) of the Act which defines "workman" and states that it means any person 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 includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of any dispute. But sub-cl. (iii) does not include any person who is employed mainly in a managerial or administrative capacity and sub-cl. (iv) does not include any person who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per month or duties attached to the office or by reason of the powers vested in him, discharges functions mainly of a managerial nature. In view of the said definition, we are concerned here with the question whether the respondent was a workman as not being employed in any supervisory capacity. There is no controversy that the said respondent is not employed in any managerial or administrative capacity.