S G PHARMACEUTICALS Vs. V D PADAMWAR

JUDGEMENT

(1.) Two points of some importance are raised in this writ petition : (1) whether on facts and circumstances of the case, respondent No. 2 Sudhir Raghunath Taskar, a medical representative employed by the petitioner S.G. Pharmaceuticals, Bombay, is a "workman" as defined under section 2(s) of the Industrial Disputes Act, 1947 ("The ID Act" for short), and (2) whether at material time Shri V.D. Padamwar. Presiding Officer, Third Labour Court, Nagpur - the first respondent had jurisdiction over ID Act Case No. 20 of 1981 an application under section 33- C (2) of the ID Act for payment of bonus under the Payment of Bonus Act, 1968 ("The Bonus Act" for short) filed by second respondent against the petitioner Company.

(2.) Factual background may be noticed first. The petitioner is a manufacturer of modern drug products and second respondent is employed by it as a Medical Representative on monthly consolidated salary of Rs. 1150/- vide letter of appointment dated 11th March, 1977. On 28 January, 1981, second respondent filed aforesaid application before Labour Court, Nagpur for payment of bonus for the years 1977-78, 1978-79 and 1979-80, amounting to Rs. 2250/-. It was assigned to the Third Labour Court, Nagpur, by administrative order. The claim was resisted by the Company, inter alia, on the ground that the second respondent is not a "workman" as defined under the ID Act. Status of second respondent was tried as a preliminary point. Second respondent examined himself and the petitioners examined its Divisional Manager Shri Gopal Waswani on the point. By order dated 28th May, 1982, it was held that the second respondent fell with the definition of term "workman". This order was challenged in this Court in Writ Petition No. 1525 of 1982, decided on 29th September, 1982. The matter was remanded with a direction "to decide after recording additional evidence, if necessary, as to what were the main and substantial duties of the second respondent and if the decision on the basis was not possible, to decide the matter on such test as was found proper under the circumstances". No guidelines for ascertaining the main and substantial work were laid down despite specific request to that affect made on behalf of the second respondent. Thereafter, second respondent and Shri Waswani again went into witness box. The matter was heard by Shri M.S. Deshpande, who then was the Presiding Officer of the Third Labour Court; but before he could pass the order, he came to be transferred as Second Labour Court, Nagpur, on or about 31st October, 1983. On 10th November, 1983, Shri Padamwar respondent No. 1 was appointed by the Government of Maharashtra as a Presiding Officer of Fourth Labour Court. The charge of Third Labour Court which was hitherto with Shri Deshpande was given to Shri Padamwar on 30th December, 1983, under the orders of Industrial Court, Bombay. On 28th February, 1984, this matter was taken up by Shri Padamwar. It was adjourned from time to time and was finally heard on 6th April, 1984. Vide Government Resolution dated 21st May, 1984, Shri Padamwar was appointed as a Judge. Third Labour Court and Shri A.G. Deo was appointed as a Judge. Fourth Labour Court. On 6th June, 1984, Shri Padamwar passed the impugned order re-affirming the earlier decision. The validity of this order is questioned in the present writ petition.

(3.) I will deal with the second point first. Submission is that under section 33-B of the ID Act only the appropriate Government has a power of transfer of a case and as neither the Government nor its delegate appointed under section 39 had issued order of transfer, Shri Padamwar, who was a Judge, Fourth Labour Court on the date of hearing (6th April, 1984) could not hear the matter merely because administratively he was put in charge of the file of the Third Labour Court before which the matter was pending, and hence the order passed is a nullity. Certain undisputed positions may be noticed. At Nagpur, in all four Labour Courts are constituted under section 7(1) of the ID Act. They all are specifically empowered also under section 33-C(2). Neither workwise or areawise their work is not divided and the first Labour Court before whom all matters are presented assigns the matters to different courts by passing administrative order and this is how the matter initially came to be assigned to the Third Labour Court. Vide communication dated 29th December, 1978, No. ICE/1178/1322/Lab -II issued by the Industries, Energy and Labour Department, Mantralaya, Bombay, addressed to the Registrar, Industrial Court, Maharashtra, Bombay, it is informed :---