ORDER
N.J. Pandya, J.
1. First of the two petitions is filed by the company and the second one is filed by the employee who claims to be the workman. Relationship of master and servant is not in dispute. According to the company, the employee was part of managerial staff and therefore he would not be a workman as per definition under section 2(s) of the Industrial Disputes Act, 1947. Needless to say, according to the employee, he is a workman under the said definition.
2. The events of termination was in the year 1982 when section 2(s) of the said Act as originally provided was in force. By Amendment Act, 1982 some of the clauses of the said Act were amended and one of them happens to be the said section 2(s). The amendment was not brought into force forthwith. It was brought into force in the year 1984. As against the termination order dated 15-9-1982, Reference could be made in the year 1984 as by that time the amended section 2(s) was brought into force. In the trial Court, reliance was placed on the amendment as well and as will be presently seen the trial Court has held in favour of the employee on the point whether he is a workman or not and this finding has been given mainly on the basis of the said amendment.
3. The learned Presiding Officer. First Labour Court, Bombay by order dated 31-10-1994 allowed the Reference and directed reinstatement of the employee with full back wages and continuity of service with effect from 11-12-1982 to 30-11-1989 with all consequential benefits. However the trial Court denied back wages from 1-12-1989 till the date of the award, as according to the learned Presiding Officer, the Company has succeeded in establishing its case of workman having suppressed vital information from the company at the time when he sought appointment and has also misled the company. However, in place of future reinstatement and entitlement from the date of the award, a lump sum compensation was given and the amount fixed is Rs. 50,000/-.
4. If the employee is not a workman then the retirement age would be 55 years and as his birth date is 4-7-1939 he would be retiring on 3-7-1994. As against that if he was a workman, his retirement age would be 60 and therefore he would be retiring only on 3-7-1999.
5. The company by filing the aforesaid petition has challenged the entire award and the employee has filed his petition being aggrieved by denial of full back wages. Needless to say, the employee is also challenging the finding of the trial Court with regard to the said suppression and misleading.
6. Both the petition are taken up for hearing together and are being disposed of by this judgment. The paper book in the company's petition is the basis of this order and page numbers and other particulars that will be givenin this order will be in accordance with the position of record in the company's petition. In the course of hearing also, both sides have relied on the paper book of the company's petition. Wherever necessary, if documents from the employee's petition are referred to, specific mention thereof will be made.
7. In the month of August, 1977 the company had an occasion to advertise for the post of Industrial Relation Executive. For filling up the same, staff notice was also issued. Copy of the staff notice is at page 40. Advertisement was also on the said line. In the said notice, nature of job, qualification and all other relevant particulars are given. The employees already working with the company were permitted to apply provided they were in Grade III of the Officers staff. The post in question is described as grade II.
8. The employee submitted his application as per page 43. It is dated 5-10-1976. As per requirement as disclosed in the advertisement, first class degree, with preference being given to Master degree was stated and 3 to 5 years experience of litigation before the Labour Court, Industrial Tribunal and other authorities were also prescribed. Ability to get along with people was also specially mentioned. Remunerations were made negotiable. In the background of the aforesaid requirements, if one turns to the said application at page 43 onwards, the employee was found having Master degree in commerce faculty and the degree of L.L.B. in second class. However, on interview the employee was found a suitable candidate and therefore appointment letter was given on 17-3-1977.
9. With regard to the experience, the employee had given details which disclosed a very rich experience. According to him he had worked with National Textile Corporation (U.P.) from 1963 to 1976 till the month of April, and had left the same for better prospects. In the month of May, 1976 he joined Shriram Chemicals at Kota, Rajasthan and had chosen to leave the same for health reason.
10. With regard to these details as to experience, the company got information during the pendency of reference and therefore sought the permission to amend the written statement. Permission was refused by the trial Court but in the writ petition before this Court, request was allowed which was confirmed by the Supreme Court when the employee challenged the order of this Court before the Apex Court. The order of the Supreme Court is at page 77 of the employee's petition. While rejecting the SLP, observations were made in the order that inspite of the evidence in support of the contentions raised by way of amendment, the employee would be permitted to raise the question about his right to reinstatement in the event of the order of termination being declared illegal. This order of the Supreme Court is dated 30-11-1993.
11. As per the contention raised in the written statement by way of amendment, it was the Company's case that in the column giving details of experience which have been briefly stated above, the company had learnt from the said National Textile Corporation that it has come into existence very much late and one of the Textile Mills which it had taken over had employed the employee but not as Labour Officer which was the post referred to at page 46 by the employee. Moreover, he did not leave the post for better prospect but was removed from service and litigation was pending.
12. Same was the position with regard to the second employer Shriram Chemicals, Kota. The amendment itself was carried out as stated above inthe year 1993, and pursuant thereto, documents were also produced. The employee was being examined as witness in his own reference and subsequently the company had led evidence with regard to all the aspect of the reference including the aforesaid contention.
13. In this background, so far as company is concerned, it is concentrating on its main contention that the employee being not a workman within the meaning of section 2(s) of the Industrial Disputes Act, either amended or unamended. As against that, the case of the employee is that, either way he is a workman.
14. Alternatively, the company's plea is that if this Court agrees with the finding of the trial Court that the employee is a workman the order passed by the trial Court limiting the back wages upto a point and thereafter fixing lump sum amount is proper under the circumstances and should not disturbed. The employee of course is pressing for full back wages with retirement age being 60 years as he is already held to be a workman.
15. The question of importance in the matter therefore is whether the employee is a workman or not. The amended definition contained in section 2(s) of the I.D. Act is reproduced hereunder for ready reference.
'Workman' means any person (including ah apprentice) 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 for the purpose 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, but does not include any such person-
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950 or theNavy Act, 1957; 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 exceedingone thousand six hundred rupees per month or exercise, either bythe nature of the duties attached to the office or by reason of thepowers vested in him, functions mainly of a managerial nature.
16. Prior to the amendment 'manual' was not followed by punctuation mark and therefore it governed the subsequent categories namely unskilled and skilled. Prior to the amendment, word 'technical' was very much there.
17. In other words, according to the unamended section, an employee doing any manual, unskilled or skilled work could be a workman as also an employee employed to do technical work can also be a workman.
18. The amendment delinked the word manual from the two categories referred to above and by putting punctuation mark, it became a separate category by itself. This had an immediate effect of enlarging the scope of the word 'skilled'. Skill required of the employee thus ceased to be a manual skill. This will have a direct bearing on the present case because according to the employee all that he was doing was to render advice on legal matters pertaining to Labour Laws and other related topics and hence his duty would be the work of a skilled employee. He has also described his work to be of technical nature which was the category by itself prior to the amendment. He is doing it on the basis that he is a professional qualified and having experience in the field, he was rendering advice as a technically qualified person. His work is therefore technical.
19. Before the trial Court, he had put his case on the footing of doing 'technical, skilled and clerical nature of work'. This is to be found at page 323 as summarized by the learned Presiding Officer in the award. The award itself starts from page 314 and it is in Reference IDA No. 83 of 1985, at page 327 of the Award, his stand is further noted that he was neither employed in managerial or administrative capacity nor was he employed in a supervisory capacity. Reference to these two categories can well be understood because they fall into exception as prescribed by the said sub-section 2(s) of the I.D. Act, 1947.
20. As noted above, the trial Court has gone on the basis of the amended provisions of the Industrial Disputes Act, amending the said definition of section 2(s). The company has been maintaining that this would give retrospective effect to the said definition. As the employee was terminated on and from 15-9-1982 as per Exh. A page 32 of the employee's petition whether he is a workman or not has to be decided with reference to that date.
21. It is an admitted position that as per the said termination order, Exh. A, page 32 of the employee's petition, no enquiry has proceeded and the company's case has been that of discharge simpliciter in accordance with the terms and conditions of the contract. The appointment letter is at page 52.
22. It is the company's case that the said letter of appointment was given after negotiation was entered into between the company and the employee. In the advertisement, as one of the service conditions, it was never indicated that the employee will be given free housing accommodation in Bombay. As agreed to between the parties, this facility was provided by the company. As it was not possible initially for the company to make this accommodation available, it had offered to the employee that he may be given posting outside Bombay which the employee had declined.
23. I take up the question of applicability of the amended definition for consideration. This I am doing because if it is held against the employee the very basis of the Award of the trial Court will go away. This is not to say the matter will come to an end. This being a point of law, both sides have made submissions also on the basis that the case is to be decided under unamended definition. It is an admitted position that the amended Act was of the year 1982 and the provisions thereof were made applicable only in the year 1984. Reference having been made in the year 1985, this question has arisen.
24. As per the amending Act, section 1(2), the implementation or the enforcement of the amendment was left to be notified at some future date. Till date, the amended definition of the word 'industry' has not been enforced. As against that section 17(b) added to the Principal Act, as per section 11 of the Amended Act, has been brought into force and so on.
25. In this background, relying on : 1990CriLJ1756 in the case of State of Madhya Pradesh v. Rameshwar Rathod, Counsel Mr. Rele submitted that if the enforcement of amendment is to be notified, it has to be held prospective and not retrospective. This is in relation to the amendment made in the Essential Commodities Act, and these remarks are in paragraph 5 at page 1850 of the judgment.
26. 1992 L I.C. 1225 in the case of M/s. New India Assurance Co. Ltd. v. Lakshmi and others, a decision of Madras High Court. In the Workmen's Compensation Act, the schedule of compensation was revised and it washeld to be prospective. This was on the basis that the liability to pay compensation under the Act had arisen on the date of the injury. The amount payable to the workmen as on that date will be the liability of the employer. If there be any dispute over its determination on a future date, the payment that could be ordered will be in accordance with the liability already fastened as on the date of the injury or the incident.
27. Same view is taken by Madhya Pradesh High Court reported in : AIR1991MP302 in the case of New India Assurance Co. Ltd. v. Nafis Begam and others, in relation to matter under Motor Vehicles Act. No fault liability was introduced by way of section 92-A in the old Act, and the incident had happened prior to the date of its introduction which was 1-10-1982. In paragraphs 12, 13 and 14 of the judgment, this aspect has been dealt with.
28. 1998 (80) L R 72 in the case of United India Insurance Co. Ltd. v. Alavi, it was held that prior to compensation is crystallised on the date of the incident the case was dealt with under the unamended provisions as discussed at pages 76, 77 and 78. Necessarily it would mean that right is crystallised in respect of receiving compensation as described on the date of the incident.
29. Dealing with the liability of the Insurance Company and the Motor Vehicles Act (old Act) when it was raised from Rs. 20,000/- to Rs. 50,000/- in paragraph 6 of : [1982]3SCR244 in the case of Padma Srinivasan v. Premier Insurance Co. Ltd., this is held to be prospective.
30. Same is the position in 1970 L.I.C. 955 in the case of Oriental Fire and Gen. Insurance Co. Ltd. v. Moola Singh and others, as per paragraph 4 in relation to a case under Workmen Compensation Act.
31. In short, the company is going on the basis that the date of incident will govern the relationship between the parties. The status of the workman's claim will be as on the date of the alleged termination. If on that date, the employee was a workman as per the Industrial Disputes Act, subject to the dispute whether he falls into any of the exceptions or not, the case may be decided. The employee cannot get the benefit of the expanded and amended definition which was not in existence on the date when the cause arose.
32. The trend of the arguments on behalf of the company as revealed by reliance placed on the aforesaid judgments is analogous to the concept of cause of action and the date on which the cause arises as would be the position under general law particularly on civil side.
33. This precisely is the point of attack on behalf of the employee. The submission is that unlike general law on arising of the cause of action, the person aggrieved cannot move the Court immediately. As the Act has been brought about for investigation and settlement of Industrial Disputes, unless the dispute which has arisen is referred for adjudication the Court dealing with the reference does not come in the picture at all. Reference may be made to section 10 of the said Act.
34. Again, unlike the cause of action, the power given to the company to refer the dispute is not confined to existing dispute but even apprehended dispute can be referred to. So far as the Labour Court is concerned, under section 10(1)(c) either the existing dispute or an apprehending dispute can be referred to. The jurisdiction of the Labour Court is over the matters specified in Schedule II of the said Act. Discharge or dismissal including dispute of reinstatement etc. is covered by the said second schedule.
35. The submission therefore is that if on the date of Reference there is a change in the legal position, that change will govern the Reference.
36. 1975 L.I.C. 1455, in the case of Ruston & Hornsby (I) Ltd. v. T.B. Kadam is relied for this purpose. However, as can be seen this relates to availability of section 2A to an individual workman for raising his individual dispute which he could not have done but for the said provisions. This was added by amendment. Holding that this does not amount to giving retrospective effect, the Apex Court laid down that the dispute already existing in respect of the workman prior to introduction of section 2A could have been agitated through the union is indeed possible to be agitated by the workman himself. Again the reference will have to be through the Government but at the instance of the workman and not at the instance of the union. It therefore only makes the machinery available to the workman without depending upon the volition of the union.
37. On behalf of the employee I.L.R. 1948 Cal 209 in the case of Birla Brothers Ltd. v. Modak, was cited. It deals with the situation that was brought about by introduction of the said I.D. Act for the first time. It was brought into force with effect from 1-4-1947. The rights of the employer under the common law arising out of contract as well, were drastically curtailed by the Act. It could be ascertained from the facts of the case that the dispute existed as on the introduction of the Act. Repelling the contention that the relationship will be governed by pre 1947 position, under the general law it was held that Act would very much apply.
38. The learned Counsel for the employee, therefore, submitted that what is relevant is the existence of the dispute. Once the dispute exist and a Reference is made, law governing the case will be as on the date of the Reference.
39. At first sight, this might appears to be a very attractive argument. The case like the present one, where the individual workman are concerned, there is no question of apprehended dispute. Whether apprehended or existing there has to be a dispute which can be referred to I.D. Act machinery by the government. Obviously, it has to be considered as a dispute on the date on which it occurs or there are existing circumstances which gives rise to apprehension.
40. If the aforesaid argument is accepted advanced on behalf of the employee a dispute that never existed till the date of amendment will suddenly become a dispute because of the amendment to be referred to by the appropriate Government as per section 10 of the I.D. Act.
41. The settlement of dispute, if decided in favour of the employee will certainly fasten liability on the employer. When an action is taken by the employer unless he is aware of the consequence of his action no liability can be foisted on him. As the liability arises under the statute, unless the statute creates the liability, the employer cannot be made answerable for the consequence of his action when such consequence could not have ensued on the date of the action.
42. As in the instant case there is a possibility of criminal action being taken for breach of section 25(n). The moment the aforesaid line of reasoning is accepted and retrospectivity is given, simultaneously the contention would expose the employer to criminal proceedings merely because of the amendment. It is an accepted position that unless there is a specific provision in the Amending Act, the amendment giving rise to criminal-prosecution could not be retrospective. Every one is supposed to be law abiding. What was not an offence on the date when the action was taken would certainly be a law abiding act on the part of the employer and if the employer would be exposed to criminal action in the manner stated above, he would be ceased to be a law abiding person for no fault of his.
43. I, therefore, come to the conclusion that the amendment cannot be given retrospective effect. The date on making reference will not be decisive factor for making the amended definition applicable to the case. Unfortunately the trial Court has hardly considered the aspect of prospectivity and has virtually proceeded on the basis that the amended provisions would apply. This he has clearly recorded at page 450 saying that looking to the duties of the employees he will fall within the amending section 2(s) of the I.D. Act on 1-8-1984. In my opinion, there is no basis for coming to this conclusion. I hold that the amended definition would not apply.
44. The case is now to be considered on the basis of the unamended definition. For this purpose, it has to be ascertained first what work in fact Mr. Gupta, the employee was doing. On behalf of the company this is stated to be done in the background of the recruitment exercise and the commencement of his relationship with the company. For this purpose reference is made to the application at page 43. At page 47, column Nos. 18, the candidate is supposed to have set out briefly his responsibility and achievement in his present job. As stated therein while employed with Shreeram Chemicals, Kotah he was advising the management on day to day labour problem and matters relating to industrial relations. He was participating in management union negotiations and promoting settlement. He was appearing before the Labour Court and Industrial Tribunal to represent management. If one turns to the said notice calling for application, job requirement are as under :
'The selected candidates will advise the corporate's personnel department and through it, various establishments of the company on all matters relating to Labour Laws, preparing various applications and claims and appears selectively before the Labour authorities such as Conciliation Officer, Labour Court and Industrial Tribunal.'
45. An important aspect of the job will be to assist Industrial Relation Manager in developing frame work for settlements in dealing with the union.
46. This is a challenging job with a span of advice extending to three factories, four branches and 15 up countries depots. The prospects for a result oriented man are excellent.
47. The recruitment is for Industrial Relation Executive post in the management staff of the petitioner-company.
48. In big industrial operation there will be clear cut division of management on one side and employees on the other. The role that the Industrial Relation department will play is very crucial. The management has to keep a constant vigilance both on the implementation of various statutory provisions meant for the welfare of its work force and also will constantly try to maintain harmonious relationship with the workman. To strike a favourable bargain and carry on the industrial activity in cordial manner will therefore be the prime function of the management. If somebody is appointed in this department obviously he is appointed on the management side. When thereare several legislation governing the field of industrial relation, expertise in law is a must. Gone are the days of one man looking after all the aspects of the management. Specialisation is the order of the day.
49. Of necessity, the management will also become a team work with its own hierarchy. At the lowest rank of the management will be the persons like the employee who works for the management with the help of their expertise and do the spade work which may ultimately result into a policy decision on the part of the management.
50. In case of disciplinary proceedings, Industrial Relations Executive plays an important part in setting out either the charges or in keeping an eye over the progress of the enquiry. In the process he may help collection of evidence, production of evidence as also advising the company on which type of evidence and what evidence should be produced. This is being done with a view to strengthen the position of the management and to bring about a favourable result for the management. Otherwise, it will result in loss of face for the management.
51. Of necessity, therefore the entire team with the typical hierarchy of Managing Director or Executive Director at the top and Personnel Manager and other staff members down upto Industrial Relation Executive like the employee in the instant case would be part and parcel of the management.
52. This is not to say that this managerial team will not have workman working with them. They will be having an assistance of clerk, stenographer and other employees to run their office. They would certainly be the workman. However, on and from the stage that the steps are initiated, proposals are mooted or suggestions are made affecting the managerial policy in relation to the conduct of the company towards its employee having direct effect on the Industrial relations, persons who are doing this work with expertise in law ordinarily would fall in the category of managerial staff.
53. I am aware of the fact that in spite of this general position there might be instance where with reference to the actual work done by a given employee who might be part of the managerial team, in fact he could fall into the category of workman.
54. This may happen largely because of the technical advice and the skill which he is supposed to display. However, in relation to the old definition, this will not be a manual skill at all. His case, therefore, if at all it is covered by the old definition, it will be on the basis of his work being technical.
55. Now I will turn to the evidence for the aforesaid purpose. As noted above, the post is that of Industrial Relation Executive. The salary at the relevant time was Rs. 2525/- and was fitted in the scale of Rs. 3750/-. The employee is not to get regular increment but is to be granted variable increments related directly to his performance. He has a special pension scheme which is admitted to be available for the officers only. There is a hospital scheme, his retirement age is 55 years because he is an officer and his service is transferable all over country. These details are to be had from letter of appointment dated 17-3-1977, page 52. Clause 17 provides for right of the company to terminate and it reads as under :
'The company may, at any time and without assigning any reason,terminate this appointment upon giving not less than three monthsnotice in writing or salary in lieu thereof.'
56. As per Exh. 6, page 52, the appointment letter is the result of negotiation which also brought about giving of residential accommodation to the employee. Fully knowing the implication of this whether he has to retire at the age of 55 years and is given the benefit of pension scheme and other perquisite admissible to the officers only, the employee has accepted the appointment. It is this employee who now turns around and says that he is not an officer but he is a workman.
57. The work that he has actually did has been enumerated at length. In the course of his deposition, he has tried to describe his work as technical and clerical. As is the practice in the trial Court by way of examination-in-chief, we have his affidavit, at page 169. There he has categorically stated that as residential accommodation was not available in Bombay, he was offered alternate job at Aligarh factory with the provisions of housing accommodation. He preferred Bombay. He met Shri G.I. Pereira, Personnel Director of the company at Delhi and convinced him about his requirement for being in Bombay. That is how he came to be appointed in the head office of the company. Right upto paragraph 7, starting with paragraph 3 he narrates how he negotiated with various officers of the company for being given a housing accommodation at Bombay which he finally succeeded in getting. The company treating him to be a managerial staff and having decided to appoint him did accommodate him and the employee also oh its part insisted upon getting these facilities and joined the duty on and from 13-7-1977.
58. Paragraph 13 at page 176 he narrates the work that he was doing in the company. Rendering legal clarification on various queries to the various branch offices of the company and its factories, doing legal audit consisting of checking whether the requisite details have been correctly filled up in the various statutory returns, drafting pleadings, studying case laws for maintaining a cardex particularly with reference to pending cases. He cited example of Aligarh factory where the Personnel Executive referred the matter of him as factory inspector had given a big inspection note, He attended to the said queries and sent his reply.
59. There were some difference of opinion between the employee and his superiors on the question of grant of facilities and other benefits to the contract employees. There also he was of firm view that the workers should be given benefits. His superiors thought otherwise. This resulted into according to the employee in his persecution. That will be dealt with at appropriate place.
60. At page 187, paragraph 28, he asserts that in spite of his designation he was not exercising any administrative managerial or supervisory duties. He was not vested with any of these powers. Except for one stenographer and a clerk there was no one working under him. As a result except for sanctioning leave of his staff, occasionally he did not sanctioned anybody's leave. He had no power to either interview or recruit. He had no power to issue show cause notice or charge sheet. Obviously, therefore, there was no power to inflict punishment. In respect of Mr. Lobo he did vouch his claim for taxi expenses. Otherwise he did not exercise any financial power. He was not distributing work nor was he supervising any. Law Journals subscribed to by the company were gone through by him. He was answering queries sent to him by different branches and was doing legal audit work also. This is to be found in paragraph 30. He was preparing rough drafts for discussing with the company's advocates or solicitors and he used to examine various documents connected with Court case for being produced in the Court in support of the Company's case, subject of course to the final decision of the solicitor or advocate.
61. In my opinion the aforesaid activities would clearly indicate that he was representing the management in the very important task of maintaining industrial peace and assisting the company's lawyer in conducting cases to obtain favourable result for the company. In this background, as per Exception No. 3 of section 2(s) he would certainly be falling into the administrative or managerial capacity. To run harmoniously a factory by maintaining proper industrial relation is definitely a part of administration. Because of his expertise, the employee was the first rung in the ladder of management laid down by the company. That in no way will take him out of the position of being employed in managerial or administrative capacity.
62. This will further strengthen as one goes through the cross-examination. Before that his further examination-in-chief, paragraph 8, at page 197 refers to monthly report that he was submitting including drafting Enquiry Officer's report, drafting orders of dismissal or discharge, going through settlement terms and preparing preliminary draft for the same to be settled in consultation with the company's Solicitor.
63. The cross-examination starts at page 198. As per his perception, the advertisement which preceded his appointment indicated skilled operation, technical and clerical, Now he claims at the end of paragraph 47 that his was the operational work. He admits in paragraph 48 that there is managerial staff starting with grade I going upto grade V. He is in grade II.
64. In paragraph 53 he admits that he had sanctioned leave for one Mrs. Mukherjee and did so in the capacity of management staff grade I. The subordinates Miss Sequeira and Mr. Lobo were rated by him as per paragraph 56 of the cross-examination.
65. His attention is drawn to company's documents Exh. C - 44 and Exh. C-45 at paragraph 59. Before that, he admits that his job was transferable. Those documents are monthly reports. He admits that he did do the work over and above what is reported therein. He says that the report highlighted main work done by him during the month. The reports were to give information to his superiors. Again at page 209 he takes a curious stand and says that the work which he did not do, but his superiors have done were included in the report as his work because his superiors wanted him to include the work in his report. Finally in paragraph 60 he admits the report representing the work done by him only. No doubt he maintains that it is subject to his earlier answer.
66. The report necessarily indicates the work that has been done by a person who is engaged in administrative or managerial capacity. That is why this shifting stand.
67. He admits in paragraph 61 that the company wanted to see that various statutory requirements are complied with especially those that carried penal provisions. The legal audit is to be viewed in this background. He claims that it was not his responsibility to ensure compliance with the statutory requirements.
68. He has denied that he ever advised in the matter of strategy who as per his own report he had done so in case of Aligarh factory's Personnel Executive as borne out by his report in paragraph 66 at page 213, He does not remember whether he had occasion to advise any of the branches in issuing show cause notice. When confronted with documents, he takes a stand that unless he sees the relevant papers he cannot say whether he has advised Delhi branch to issue show cause notice. This is at paragraph 64. About the report he claims that it was written by him at the instance of his superiors Mr. Bharucha. As per the report strategic, advice was given which as noted above, he has denied. In paragraph 69 he admits sorting out of documents and giving them to the advocates after first forming opinion about their relevance.
69. There are many such examples in his cross-examination which would indicate that he reported to the management, he exercised his judgments in deciding the course of action, which if adopted by the company or its advocate would make the company to take that particular position all through and therefore I have no hesitation in holding that he has been employed in administrative and managerial capacity.
70. The company had under its standing order notified his name amongst others about more than 100 grade II staff officers as managers. This was done as per standing Order No. 2 Clause (b) The company having all India operation, the importance of this can well be understood. This was sought to be ridiculed by the otherside by referring to the Industrial Employment Standing Order Act, 1946, definition Clause (c) section 2. However the model standing order also contains Clause (b) of Order No. 2 on the same line as the certified order of the company provides. The reference therefore made to the definition of word occupier in the Factories Act, 1948 on behalf of the employee in my opinion therefore is of no help to the employee.
71. Both the sides have cited various decisions starting with (Burmah Shell's), case reported in : (1970)IILLJ590SC . This decision is relied on by both the sides. Dealing with the case of Transport Engineer at paragraph 12, it was found that the manager's part of his duty consists of supervisory work rather than own personal technical work which is only incidental to the main work of repairs, servicing, maintenance and fabrication inasmuch as, in the supervisory capacity, he diagnoses the defects and later on inspects the work done, makes his personal test and certifies that it has been properly carried out.
72. Their Lordships had an occasion to deal with the arguments advanced on behalf of the workmen by the learned Counsel Mr. Chari which has been dealt with in paragraph 14. The general proposition to be forwarded by the learned Counsel was that if a technical employee even gives advise or guide other workman it must be held that he is doing technical work and not supervisory work. In answering the submissions of the learned Counsel as quoted in paragraph 14 at page 932, an English decision was referred to and the example that were worked out of different types of work were noted and reliance was placed on example (e) which is as under :
'If the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special mental or artistic faculty or the application of scientific knowledge as distinguished from manual dexterity.
Further illustration are also given with reference to artistic faculty giving rise to something new by way of creation. In this background quoting with an approval the said example (e), Their Lordships have directed that the case ofa person employed to do technical work, for the purpose of definition can be evaluated. If the employment is to produce something as a creation of his own with the help of mental training or scientific or technical knowledge it would be a technical work. However, if the employee has knowledge of skill in supervisory work of others, even if he is employed as skilled or unskilled, for that purpose he will be held to be employed in supervisory capacity. His supervisory work will not turn into a technical work. The conclusion is 'the work of giving advice and guidance cannot he held to be an employment to do technical work'. This concluding sentence at the end of paragraph 14 was the subject matter of comments on behalf of the employee. It has been strongly urged that this is the most misunderstood sentence of the judgment. It has to be confined to with particular case only in the background of the discussion relating to the work of Transport Engineer starting from paragraph 12 onwards.
73. I am unable to see any such distinction. It clearly says about the work of giving advice and guidance. The aforesaid narration of the employee's work falls into these two categories and on top of it there is added work of initiating the process of making the company to take a particular stand in relation to a pending dispute in Court or in relation to amicable settlement. The decision, therefore, in my opinion helps the company.
74. A case of Welfare Labour Officer had come up before the Gauhati High Court as per case reported in 1977 L.I.C. 721 in the case of M/s. Pabbojan Tea Co. Ltd. v. The Labour Court of Assam, Dibrugarh and others, enumerating his activities as a part of his duty in paragraph 4 at page 723 where the Personnel Officer was to be consulted on all disciplinary matters and was responsible for keeping files, checking enquiry proceedings and so on. The learned Judges of the Division Bench had no hesitation in holding that he was employed in supervisory managerial or administrative capacity. No doubt in paragraph 7 the stand of the employee has been noted when he had claim that he was entrusted with duty of technical nature. In that case the company had vested him power of attorney also. In the instant case the said notification of employee having declared the manager under the certified standing orders has already been noted.
75. In my opinion reliance is well placed by the company on this decision and I record my agreement with the view expressed by the learned Judges of Gauhati High Court.
76. On behalf of the employee, emphasis is put on the work being of an advisory nature or of technical nature. Relying on the very Burmah Shells decision, the learned Counsel Mr. Deshmukh said that paragraphs 6, 7, 8 and 9 as also paragraph 5 indicate that the duty performed by the employee in the instant case would be of technical nature. It could be skilled work also subject to the applicability of the amended definition. This aspect has already been discussed.
77. The remaining part of the employee's cross-examination, the deposition of company's witness Mr. Bharucha along with his cross-examination and the way the trial Court has dealt with the matter before it in relation to the question of duty performed, may now be seen.
78. Starting with the Statement of Claim, page 84 with paragraph 5 at page 86, all along the case sought to be put is that of a skilled clerical work. Later on, his work being technical is also averred to. This is to be found inparagraphs 5 and 6 at page 86. In paragraph 13, at page 88 he says that work of interpretation of statute is technical work. About the legal audit the description given is that of Audit Assistant and therefore it is claimed that it cannot be said to be the work of an executive or a manager.
79. It is further said that the entire work done by him is under the direct control and supervision of the Chief Personnel Manager. No powers were ever given to the petitioner though his name was notified under Order No. 2(b) of the Company's certified standing order. About the enquiry he was merely assisting and the draft of the enquiry report was in form of technical work as claimed in the aforesaid statement. Litigation all over the country was being dealt with by the employee but only as an Assistant to the Chief Personnel Manager Mr. Bharucha. No responsibility was ever delegated to the employee. At best, he can be said to be giving support to the concerned officers in preparing charge sheet, preparing report etc. This would again be of a technical nature. In paragraph 27 at page 95 he has combined the aspect of skilled as well as the aspect of technical by describing his work in these words '----only doing highly skilled clerical job which had an element of technicality--'.
80. The remaining part of the cross-examination may now be referred to, starting with paragraph 67 at page 215. He was shown report, Exh. C-45 at page 91 and had to admit that he had prepared a reply to be submitted to the Provident Fund Authorities in matter of inspection conducted by them. Similar reply for Labour Inspector, Aligarh was also prepared by him. There he has claimed that it was his duty to tell the legal position and the decision was left to his superiors as to how they should handle the problem. In other words he was just tendering advice which may or may not be accepted. In paragraph 69 he admits that he was visiting branches for sorting out documents to be filed in a particular case and to show them to the advocates who were handling the case. By sorting out documents he means to select the relevant documents which were in his opinion to be filed subject to the approval of the advocate. He was holding conferences under the orders of the superiors with the advocates of the company. He used to assist the advocate also in preparing the cases as also examination and cross-examination of the witnesses. Any factual mistake in the draft prepared by the advocate was also seen by him and brought to the notice of the advocate. Interestingly, when question was put whether it was his responsibility to advise the branch as to the position it should take in connection with any matter referred to advice, his answer is that it is a question of too general a nature and therefore he cannot reply. He had to admit that he did advise as to how investigation as to correct birth date is to be conducted when he was shown document Exh. 19, C-29. He also had to admit that he had an occasion to draft the charter of demand on behalf of the company in connection with its Calcutta branch.
81. In paragraph 71 at page 218 he admits settlement between the company on one hand and clerical subordinate staff as factory employees on the other. He admits that the employees who came under the category of manual, skilled, unskilled and technical were covered under the said settlement. He further admits that he is not covered by this settlement. He also admits that he was the employee under the category of management staff. This aspect is already dealt with earlier. At page 220 paragraph 74 he accepts that there used to be general annual conference of staff Grade I & II while such meetingof management staff Grade HI and IV was called separately. Yet he denies that employees in Grade I and II were called senior management staff. Thereafter controversial Annual Appraisal Report is extensively gone into which will be dealt with separately.
82. The examination in chief of Mr. Bharucha starts from page 225. He maintains the company's stand that the employee was in a senior management position and was representing management's interest, both before the workers as well as before various statutory authorities. He was also expected to formulate a strategy. He was to advise branches and factories of the company all over the country in all matters connected with personnel as and when referred to the employee. That is how according to Mr. Bharucha, the employee was in a managerial, administrative supervisory category.
83. In paragraph 7, page 231 Mr. Bharucha refers to the company's policy of management staff in Grade II being transferable. Paragraph 9, page 233 Mr. Bharucha states that Personal Executives in branches were in Grade III and therefore juniors to the employee who was in Grade II.
84. In paragraph 10, at page 234 he refers to the monthly report submitted by the employee and his annual performance was being assessed on the basis of this report. The report produced collectively are identified by this witness. Important aspect of the salary of the employee was that unlike the workers, he was being paid variable increments depending on the performance for a given year. In paragraph 12, there is reference to the work being below the standard which in course of time had improved in the year 1978-79 but this improvement was not maintained and therefore in the year 1979-80 at the time of Annual Appraisal Report this was reflected in it much to the dislike of the employee.
85. According to Mr. Bharucha this form was retained by the employee saying that he will discuss about it with the superior of Mr. Bharucha. The name of that gentleman is Mr. H. Dhanraj Gir. Thereafter the dispute about the company's accommodation not being vacated by the employee is referred to. In paragraph 21 at page 245 he refers to the discovery as to false representation having been made by the employee in relation to his past employment. The details given by the employee in his application is already referred to. It was discovered that he was not employed by the National Textile Corporation which came into existence after the relevant Act was brought into force in the year 1974 or thereabout. He started his career in the year 1963. In fact according to the company he was found working with M/s. Lal Imli Woollen Mills which was owned and controlled by British India Corporation, Kanpur from August, 1963. He was found to be working eventually as Assistant to the Labour Officer in that company. He did not leave for better prospects but his services were terminated with effect from 9-7-1973. This was done because of his unsatisfactory performance and general carelessness. His salary was Rs. 380/- with allowances as against his claim in the application of salary being Rs. 1800/- plus allowances.
86. It was further revealed that from 10-7-1973 to 31-7-1974 the employee was without a job. He took up job on and from 1-8-1974 in a unit of NTC on temporary basis. He was terminated with effect from 19-2-1975. He was again unemployed for about 1 year and 3 months. His termination is the subject matter of the suit in the Court at Hathras, This claim was eventually made by U.P. Public Service Tribunal, Lucknow which was ultimately rejected.
87. In further examination-in-chief recorded orally, over and above the said affidavit at page 252, the bunch of papers pertaining to the said alleged misrepresentation were sought to be produced. Its production was objected to on behalf of the employee under section 153 of the Indian Evidence Act. He was also relying on a reported decision in 1971(2) L.L.J. 407. In the aforesaid decision, it was pointed out on behalf of the company that the Supreme Court was dealing with a situation of documents having been produced only but not proved.
88. The case of the company with relation to these objected documents is that they were received from different companies in response to the letters that were written by these companies and as such were in course of their day to day transaction of correspondence. Objection was over ruled by the learned trial Court holding the documents to be relevant. Thereafter the documents have been exhibited. If the documents are read which have been produced in the course of examination in chief recorded at pages 253 to 255, the aforesaid facts which are totally at variance with the details of past experience as set out in the application of the employee are clearly borne out.
89. Cross-examination of Mr. Bharucha starts with page 260. At page 268 question was specifically put that whether the employee had at no time taken any disciplinary action to impose punishment during the period of his service. The answer was that he had recommended punishments to be given and based on that recommendation punishments have been given. The person thus giving punishments were factory manager, branch sales manager and so on. Specifics names are given at page No. 269 of two officers in respect of whom punishment was recommended by the employee. They were Mr. R.P. Gupta and Mr. Wadhwani. His denial has been taken in this regard.
90. Now comes the Annual Appraisal Report for which procedure has been set out in paragraph 37, page 27. The disputed appraisal is of the year July 1980 to June 1981. It is on page 402 onwards. Its xerox copy is at Sr. No. 3, pages 30-33 in a separate compilation given by the employee. It is in two parts. First part is supposed to be filled in by the employee referred to as appraiser. If one goes through the appraisal form, the nature of work supposed to be done by the appraiser would clearly fall into the managerial and administrative capacity. It covers the entire area of administration pertaining to industrial relation and most important is that his own view about his aptitude is at page 413. He stated therein that he would like to be associated with the industrial relation functioning across the company. His appraiser i.e. Mr. Bharucha has found that the employee lacks in ability to carry on with people and his relationship had become dysfunctional to which the employee did not agree.
91. According to the company, it was this report which was taken back by the employee saying that he would discuss it with Mr. Dhanraj Gir. This had prompted Mr. Dhanraj Gir as per page 416 to note that the employee is not able to fit into the company's set up and will probably relocate himself shortly. In other words, the company expected him to resign. Naturally as he did not, the impugned order came to be passed.
92. An attempt on the part of the employee to work out a case of Mr. Bharucha and Mr. Dhanraj Gir as also Mr. Pereira being all against him would be of little consequence because as per his own say he was merely an advisor and whether to accept the advice or not, was entirely left to the discretion of the person who were advised. In connection with one contract labour case difference of opinion arose and according the employee eventually he was proved right. If that be so on the contrary the worth of his advice would go up and will be appreciated. If he is employed only in an advisory capacity, the Managing Director or Chief Personnel Manager has no reason to feel threatened by the employee to the extent that they would conspire to ease him out of service.
93. The aforesaid cross-examination of Mr. Bharucha and also that of employee clearly indicate that the employee was engaged in administrative or managerial capacity and his efforts to wriggle out of this position the answers given about the report, the audit and preparing charge sheet enquiry reports etc. are only a lame -attempt. These attempts do not succeed.
94. So far as grudge of Mr. Bharucha is concerned on the contrary for two successive years whenever good work was put in by the employee it was appreciated.
95. Both sides have agreed that this being the disputed question relating to the status of the employee to be decided with reference to the definition of a workman the actual work done by him has to be considered. On consideration thereof. I have no hesitation in holding that his work was not only technical or advisory as sought to be made out by the employee but he was functioning on the managerial staff in managerial of administrative capacity. Various decisions were cited on both sides on the point that the question should be decided on ascertainment of the work done actually are therefore only listed without being dealt with in detail. As can be expected, in each of the case, differences would certainly be there as to the post on which the respective employee was working.
96. On behalf of the company, over and above the aforesaid Burmah Shell and other cases, decisions reported in : (1983)IILLJ491Bom in the case of Miss A. Sundarambal v. Government of Goa, Daman & Diu and others : (1997)ILLJ569SC in the case of Management of Heavy Engineering Corporation Ltd. v. Presiding Officer, Labour Courts & others, 1977(1) L I. C. 721 in the case of M/s. Pabbojan Tea Co. Ltd. v. The Labour Court of Assam, are cited by the company. The last one deals with the Labour Welfare Officer and after ascertaining the duties he was performing at page 723, it was held that he was the member of management staff. Incidentally, the duties are similar to the one that were performed by the employee in the instant case. Other cases cited are : (1996)ILLJ55Bom in the case of Ramesh S/o Ramarao Wase v. The Commissioner, Revenue Division, Amravati, : (1971)IILLJ331SC in the case of the State Bank of Bikaner and Jaipur v. Shri Hari Har Nath Bhargava, 1994(II) C.I.R. 793 in the case of Apparao Basavannappa Manore v. Wandleside National Conductors Ltd. & others, 1998(II) C.L.R. 736 in the case of Union Carbide (India) Ltd. v. D. Samuel & others, : 1999(1)BomCR705 in the case of Union Carbide (India) Ltd. v. Ramesh Kumbla & others.
97. On the other side on behalf of the employee 1992 (II) C.L.R 482in the case of Ajit Singh v. Labour Court & another, decided by Punjab & Haryana High Court was cited. However, that was totally on the basis of a wrong approach as to the definition Clause 2(s). As workman did not fall into any of the exceptions, the learned Judges held that he is a workman .This position is very much set at rest and whether the case falls in any of the exceptions or not, whether he is covered by the main clause or not that has to he ascertained. This decision relating to Sugar Mills workman, therefore, will not help the employee.
98. 1973 L.I.C 986 in the case of (Sital Kumar Hemrajani v. J.B. Mangharam and Co. and another). It is a decision of a Division Bench of Madhya Pradesh High Court (Jabalpur Bench) where the case of a Labour Welfare Officer under M.P. Industrial Relations Act was considered. The work was that of a liaison officer. Holding that he is not a manager or supervisor and as wages did not exceed Rs. 500/- per month, the matter was held in favour of the employee. It was a statutory post under the aforesaid Act and moreover the Burmah Shell's case referred to above was not considered at all. This decision also therefore would not help the employee.
99. Thus so far as the main controversy as to the workman is concerned I hold that the employee is not a workman under section 2(s) of the I.D. Act. Unfortunately, the approach of the trial Court has been to take each of the work and hold that it does not amount to either administrative or managerial. The approach should have been to consider his work in totality.
100. Viewed thus, it would be clear that he was in managerial or administrative capacity. But for denying the offer of being sent to Aligarh, the employee would not be in Bombay. He came to be employed in the head office at Bombay having all India operation. He was sent to the different offices of the company to discharge his duties. It related to maintenance of good industrial relations, observance of statutory provisions under various laws as also to impose discipline through the departmental enquiry. On successful completion of the enquiry, adequate punishment will be awarded. The employee was playing an important role in all these matters. His may not be the last or final voice. However, he was part of the team which by the combined effort shaped the company's policy relating to industrial relations. He was the member of the team that saw to it that the policy thus evolved is implemented and wherever necessary, corrective action or disciplinary measures are taken. This certainly therefore is the case of the employee who on totality of his work can be said to be falling in the category of managerial or administrative capacity. The finding of the trial Court in this regard is therefore set aside.
101. Ordinarily this will be the end of the matter. If the employee is not the workman, certainly there is no question of his getting any relief from the Industrial Court. The Court will loose jurisdiction.
102. However on one hand the employee has filed the petition for that part of the award which has gone against him and the company on the other hand has also made submission in the alternative as to the relief that can be granted to the employee if he is held to be a workman.
103. Firstly, the action of termination will have therefore to be gone into. It is on the basis of Condition No. 17 of the appointment order where three month's period either by payment of salary or by service of notice is prescribed for bringing an end to the relationship of master and servant. As can be expected, many comments have been made on behalf of the employee with regard to this condition. Reference was made to section 2(oo) of the I.D. Act as also : (1986)IILLJ171SC in the case of Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another, with relevant remarks at page 1610, paragraph 19 in relation to the aforesaid condition No. 17. It has been held by the Apex Court in paragraph 93 that thisstipulation would be hit by the principle of it being against public policy and though the said concept is not defined in Contract Act this stipulation will have to be held bad if it is found to be against public policy.
104. It is against public policy because the I.D. Act, 1947 and other related Labour Laws governing the case would clearly make it against public policy. The private contracts are substituted by the statutory provisions to the extent that the contracts are to the contrary. It is true that the offending stipulation would stand abrogated. There cannot be a contract out of statute. Likewise public policy would certainly be in jeopardy if in face of industrial legislation the right of hire and fire in an employer is upheld. The aforesaid principle would apply to private company also as per : (1993)IILLJ696SC in the case of D.K. Yadav v. J.M.A. Industries Ltd. That was the case of abandonment of service under Standing Order No. 13(2)(iv). No opportunity was given to the employee to show cause why he was absent. In this regard even Articles 14 and 21 of the Constitution were invoked by the Apex Court.
105. Uptron India Ltd, v. Shammibhan 1998(1) C.L.R. 1043 with relevant remarks at page 1047, paragraph 14 is also relied on for this purpose. In case of a permanent employee discharge on serving of three months notice was held to be bad.
106. The company's case as per page 152 is that of termination by way of a simple discharge. This is a stand also taken in paragraph 28 of the written statement. Clause 17 of the appointment letter, page 59 is certainly relied upon. At page 32 in the employee's petition is the order of termination. It is based on the said Clause No. 17.
107. While maintaining that the company has relied on Clause 17, the learned advocate Shri Rele appearing for the company also drawn upon the principle of loss of confidence. This case is sought to be developed on the basis of the amendment carried out in the written statement. Details have already been referred to above. While Mr. Bharucha was in the witness box, over and above his examination-in-chief by way of affidavit, further examination-in-chief was recorded orally and in that the aforesaid aspect of misrepresentation has been brought out.
108. At pages 245 to 248 in the affidavit by way of examination in chief filed on 21-12-1990 or thereabout Mr. Bharucha refers to the correspondence between the previous employer's of the employee, Mr. Gupta and in the further examination-in-chief he has produced the document. They were duly objected to by Mr. Deshmukh for the employee. The objections were over ruled and documents were exhibited. By arguing on behalf of the employee in this Court, the said Mr. Deshmukh, the learned advocate did raise the question of adequacy of proof, proof of the contents as also requirement of principles of Law of Evidence in general. At page 251, objection has been Over ruled and also at page 253 after setting out reasons again objections are over ruled and documents are allowed to be produced.
109. With reference to these findings of the trial Court, the learned advocate Shri Deshmukh has seriously tried to make out a case that documents are merely marked for identification but are not exhibited as duly proved document. On going through the aforesaid two objections I find the position to be contrary.
110. While the employee has in the box after the amendment, by which time substantial part of his testimony was over the documents relied on by thecompany were sought to be put to him. They were objected to and on the ground that during cross-examination so far the question has been put. The objection is up held. The opportunity which the employee was getting to either to explain or to give his version with regard to the document was thus lost. As if this is not enough, not a single question has been put to Mr. Bharucha with regard to these documents during his otherwise extensive cross-examination. His cross-examination starts at page 260 and ends at page 313. The documents clearly indicate that the employee had not set out correct facts with regard to the appointment though in the application form he was supposed to subscribe to a verification as to the correctness of the information. Needless to say, the workman did subscribe to that verification clause thus assuring the company that what he has set out in the application is correct. This certificate as to veracity is to be found at page 51.
111. According to the company and in this regard one may go to the case of employee as well, the duty was of a sensitive nature. He may or may not be of a workman. However, his integrity and truthfulness was indeed very useful assets and the company did expect him to have both these qualities in good measure. If he is lacking in either, looking to the sensitive nature of his duty and its over all importance for the company, the aforesaid facts as disclosed in the course of proceedings before the trial Court would clearly make the company to loose confidence in him. These facts having come to the light before the award is given, it should certainly enter into trial courts consideration as also into the consideration of this Court as to what relief he should be granted.
112. The trial Court was very much conscious of this fact and has made very strong observations as to the failure on the part of the employee to come up to the standard. At pages 471 to 476 he has given elaborate reasons for restricting the order of reinstatement upto a date and awarding lumpsum settlement for rest of the period. Between 11-12-1982 to 30-11-1989 order of reinstatement is to operate entitling him to get all the wages including pay revision etc. On and after 1-12-1989 he is awarded Rs. 50,000/- in lumpsum. This is upto the date of the award.
113. As the employee has taken the aforesaid stand of trying to block the production of documents as stated above as also not availing opportunity to explain on one hand and not putting questions in cross-examination to Mr. Bharucha on the other, this aspect of the Company's case virtually goes unchallenged.
114. In this background if the termination is examined, when the employee is not a workman, the Company has got an ample reason to resort to Clause 17. Even if he was a workman the approach of the trial Court cannot be faulted with.
115. As to the documents which are produced from evidentiary point of view : (1971)IILLJ407SC in the case of M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen and others, was relied upon. In this case the Company was seeking several deductions under the provisions of Bonus Act and in doing so, the Company was relying only on the evidence of one Mr. M. K. Ghosh. He had joined the Company only six months back. His oral evidence was characterised by the Tribunal as contradictory, evasive and not reliable. Several documents and letters were filed. Except for filing, nothing was done. While allowing for the possibility of all the technicalitiesof the Evidence Act, being not applicable strictly, it was held that the Tribunal cannot act on what is not evidenced such as hear say. This apparently is with reference to the letters that are received by way of reply in the course of correspondence. If Evidence Act with all its technicality is not to apply, obviously in the aforesaid background of production and the discussion with regard to opportunity not being availed of by the employee, the evidence goes unchallenged. It, therefore, cannot be brushed aside as no evidence at all. This authority therefore would not help the employee. Central Bank of India v. Prakash Chand Jain, : (1969)IILLJ377SC was relied on by the learned advocate Shri Deshmukh on behalf of the employee. In the aforesaid background this judgment would not help the employee. With regard to the justification of discharge, bad faith, colorable exercise of power, : (1975)ILLJ262SC , in the case of L. Michael and another v. M/s. Johnson Pumps Ltd., This judgment pertains to the case of loss of confidence where the employer had, made a lame attempt to plead the case without leading any evidence whatsoever. Obviously, therefore, the attempt was branded as mala fide. This is not the position in the instant case. Hence the decision does not apply. Kamal Kishore Lakshman v. Management of M/s. Pan American World Airways, India, : (1987)ILLJ107SC is relied on but again the facts are against the employee. Hence the decision does not help him.
116. : (1981)IILLJ70SC in the case of Mohan Lal v. Bharat Electronics Limited, is cited on behalf of the employee. Paragraph 17 at page 78 is relied for the purpose. This case would help the employee, if his termination can be held to be void abinitio. As this is not the position here, obviously the decision does not help the employee.
117. Oxford dictionary was cited to give the definition of words create, creation, creative, advise, advice and technical. I am referring to them because the dictionary was quoted. No further discussion is necessary in this regard. Blacks Law Dictionary, 6th edition, 2nd Reprint page 1463 was relied. On the right hand column word technical is to be found and the meaning given is belonging or peculiar to an art of profession. According to Shri Deshmukh, the employee who was qualified to be a lawyer instead of practising law was in service with the Company. Except for this, for all purposes he was a professional and therefore his work was 'technical'. This aspect has been gone into already.
118. The net result therefore is the petition filed by the employee fails. The petition filed by the Company succeeds. The employee is held to be not a workman.
119. His reference to the trial Court therefore stands answered as rejected.
120. Rule in company's Writ Petition No. 462 of 1995 is made absolute.
121. Writ Petition No. 695 of 1996 of the employee is rejected. Rule discharged.
Mr. S.J. Deshmukh, learned Counsel for the respondent requests that the judgment be stayed for a period of eight weeks. The request is granted.
Issuance of certified copy is expendited.
122. Petition of employee rejected.
123. Company Petition allowed.