THERMAX LIMITED Vs. C GOPINATH PILLAI

JUDGEMENT

(1.) HEARD the learned Advocates for the parties. Perused the records.

(2.) THE present appeal arises from the judgment dated 2nd September, 2004 in Writ Petition No.4349 of 1996 passed by the learned Single Judge. By the impugned judgment, the petition filed by the respondent was allowed and the order passed by the Industrial Court, Pune, on 12th July, 1996 in Revision Application No.16 of 1996 was set aside and the Complaint (ULP) No.240 of 1994 was held maintainable and restored to the file of Labour Court, Pune, simultaneously, it was also held that the respondent is an employee within the meaning of Section 3(5) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, hereinafter called as "the said Act."

(3.) THE impugned judgment is sought to be challenged on three grounds. Firstly, that the learned Single Judge ought to have considered that it was nobody's case that the respondent was employed to do operational work, and therefore, could not have interfered with the order of the revisional authority on such extraneous grounds which are not borne out from the records as it was neither pleaded nor proved. Secondly that the duties performed by the respondent No.1 were never operational in nature but the same were purely of the administrative nature. Besides, it is settled position in law that the word "operation" having read edusdem jeneris, with other words appearing in the definition of the term workman, it could not have been said that the nature of work performed by the respondent No.1 was operational one. Thirdly, that the learned Single Judge as well as the Labour Court failed to consider that it was necessary for the respondent No.1 to establish that he was the workman within the meaning of the said expression under Section 2(s) of the I.D.Act, as it stood on 1st February, 1971. On the other hand, the learned Advocate appearing for the respondents while disputing the maintainability of the appeal on the ground that it merely relates to the preliminary issue decided by the Courts below has submitted that though the nature of the work being operational was not pleaded, the same was fully argued before the learned Single Judge, and therefore, no fault can be found with the impugned judgment merely because it was not pleaded. Besides that the materials on record obviously disclose the nature of the work rendered by the respondent No.1 to be that of an operational nature. As regards the point that the respondent No.1 himself had to satisfy that he was an employee within the meaning of the term "workman" as defined under Section 2(s) of the I.D.Act, as it stood on 1st February, 1971 was never raised before the learned Single Judge or in the Memo of Appeal, and therefore, the appellants are not entitled to raise the same, and hence the appeal be dismissed. He has further submitted that the evidence on record clearly justified the order passed by the learned Single Judge and the same does not warrant interference.