(1.) THIS appeal raises a question of some degree of interest with reference to the tests to be applied in determining whether a paid employee is a "workman" within the scope of Section 2 (s) of the Industrial Disputes Act, where a contention arises that, by reason of the duties performed by that employee and the powers vested in him, he constitutes an exception under Section 2 (s) (iv ). The facts are that a certain Michael Villavarayar, a boat-owner of Tuticorin, dismissed from his employment one Michael Fernando, a person designated as a "tindal" with supervisory powers over the plying of particular boats. The Boatman's union at tuticorin took up the cause of this dismissed employee; and in G. O. Ms. No. 3375 (Lab) dated 5-10-1959 the Government referred this matter as an industrial dispute to the Labour Court at Madurai, under Section 10 of the Industrial Disputes act (Act XIV of 1947 ). The Management (Michaei Villavarayar, the writ petitioner and the appellant herein) urged as a preliminary ground that the Court did not have jurisdiction, but this objection was overruled and the enquiry was taken up for being proceeded with. There is a preliminary award of the Labour Court at madurai dated 6-1-1960. A petition for the issue of a writ of certiorari in this regard was filed, and it came up for consideration before Ramakrishnan J. in W. P. No. 176 of 1960, which was heard with a similar and connected petition W. P. No. 209 of 1960 (subject matter of W. A. No. 128 of 1961 ). The learned Judge held, in effect, that a Tindal was a "workman" within the definition of Section 2 (s) of the Act, and that further his office did not fall within exception (iii) or (iv) to that section. The two other objections were, firstly, that the matter was only a private dispute between the management and one of its workers, and that it did not have the support of a substantial majority of the Labour Union; and secondly, that there was a previous compromise in a dispute between the Management and the Boatman's union, under which a dispute of that kind had first to be referred for decision to a Board of Arbitrators, specially provided for in that agreement. These objections were also overruled by the learned Judge, who consequently dismissed the writ petition, and discharged the rule nisi.
(2.) WE propose to confine ourselves, for the most part, to the question whether the category of office known as "tindal" does or does not fall within the definition of "workman" in Section 2 (s), and whether it should really be brought within exception (iv) to that section, in view or the duties of the office and the powers vested in the Tindal. In this context, we might also note that a point was actually raised and urged before the learned Judge, with regard to the definition of "industrial dispute" occurring in Section 2 (k) of the Act that an industrial dispute is so defined as to include any matter connected with the dismissal even "of any person". This aspect has been discussed by the Supreme court in Workmen of Dimakuchi tea Estate v. Management of Dimakuchi Tea Estate, If we are unable to agree with the learned Judge that, as a preliminary question of jurisdiction, and without any evidence concerning the duties and powers of a "jindal, it is really not possible to hold that he is a "workman" as defined in Section 2 (s), and that he does not fall within the scope of exception (iv) to Section 2 (s), then necessarily '" the writ appeal will have to be allowed, in the sense that the writ must issue quashing the proceedings. It will be for the Labour Court to take up the matter further, by recording evidence on this aspect, and on one or two related aspects that we shall refer to for, in our view, such evidence is essential to decide the real point involved, and without it the conclusion of the learned Judge cannot be really supported. The learned Judge has himself observed in one context, that the tests to be applied are not easy and capable of precise definition; every thing would depend upon the light thrown on the nature and duties of the office in question, for he himself has stated that "the matter is rot free from difficulty". We shall immediately proceed to give our reasons why, in our view, on the record as it stands, and without further evidence, it is really not possible to hold that the dismissed official is a "workman" within Section 2 (s) of the Act, whose case does not constitute an exception, under exception (iv) to that section.
(3.) WE shall first set forth Section 2 (s), including the exceptions, in entirety, as this is essential for an appreciation of the tests to be applied to any given set of facts, where this issue is involved: " (s) "workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical 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, include 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 Army Act, 1950 (46 of 1950), or the air Force Act, 1950 (45 of 1950), or the Navy (Discipline) Act, 1934. (34 of 1934); 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 five 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. " we might here usefully extract the definition of "industrial dispute" in section 2 (k), which is to the following effect: "industrial dispute" means, any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. "