V.S. Sirpurkar. J.
1. Petitioner Municipal Corporation of the City of Amravati (hereinafter called the Corporation) has challenged in this petitioner, the orders passed by the Labour Court, Amravati dated 16.1.1993 and 25.5.1993. By this order firstly the Labour granted the relief of interim nature in favour of respondents 1, 3 and 4 and by the second order i.e. by the order dated 25.5.1993 it refused to reconsider the said order which reconsideration is sought to be challenged by the petitioner Corporation.
2. Respondents Nos. 1, 3 and 4 are the Engineering Graduates. Since respondent No. 2 has already left the job he is not concerned with the present controversy. An advertisement came to be punished inviting applications from the Diploma-holders or the Degree-holders for being appointed to the posts of Junior Engineers in the Corporation. 5 posts were to be filled in under the work charge establishment and it was clearly mentioned therein that as soon as the work under the tender is completed, they would be liable to be terminated. However, the Corporation will have the right to continue them for such other work as would be available then. The nomenclature of these posts was 'Corporation Junior Engineers.' The minimum qualification prescribed was Degree in Civil Engineering and the Diploma. They were to be paid Rs. 72/- per day. Accordingly these respondents came to be appointed on 29.7.1991 for the period from 1.7.1991 to 30.9.1991. Their appointment orders clearly suggest all the particulars mentioned above. The tender work of the Corporation came to be completed and, therefore, on 16.9.1991, these Engineers again made an application for continuation on the same terms. Fortunately for them the Supreme Court had pronounced the judgment dated 29.7.1991, wherein the Supreme Court directed the Amravati Municipal Corporation to complete the reassessment work. Therefore, they came to be appointed on work charge establishment on daily wages of Rs. 72/- per day from 1.10.1991 to 30.11.1991. It was suggested that the reassessment work was yet to be finished. As has been already mentioned because of the order of the Supreme Court and as the reassessment work was available, these Junior Engineers applied on 29.11.1991 and they were continued upto 29.12.1991. A further order came to be passed on 7.1.1992 appointing them for the period from 11.1.1992 to 10.2.1992. Here again by stroke of luck these persons were appointed from 17.7.1992 for 3 months and they continued upto 31.12.1992. Since they were not continued after 31.12.1992 initially the four incumbents filed a complain under the provisions of section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (hereinafter referred to as the M. R. T. U. and P. U. L. P. Act). These complaints came to be registered as ULP Complaints Nos. 10 of 1993 to 13 of 1993. The respondents also made an application under section 30(2) of M. R. T. U. and P. U. L. P. Act, for grant of interim relief and interim relief application also came to be allowed by the order passed by the Labour Court on 16.1.1993. In this order passed by the Labour Court one significant aspect was that it was found as a matter of fact that prima facie the Corporation had appointed 36 Junior Engineers for a period of 3 months. It is an admitted position that after 3 months all these 36 persons were terminated and they were never reappointed. However, the Labour Court took the view that the work was available and yet petitioner were being terminated and, therefore, came to a finding prima facie there was an unfair labour practice on the part of the Corporation.
3. Strangely enough, the Labour Court also went into the question, whether the benefits of provisions of section 2(oo)(bb) of the Industrial Disputes Act could be claimed by the Corporation. An elaborate discussion was made by the Labour Court in this behalf and he held that the Corporation cannot take advantage of the provisions of that section. The Labour Court also made an interesting end of its order by observing :-
'If and when the respondent is able to satisfy this court that the work is not available, the orders can certainly be modified.'
One fails to understand as to the need of making such observations in the order.
4. After this order was passed by the Labour Court on 16.1.1993, the revision came to be filed at the instance of the Corporation before the Industrial Court, who refused to interfere with the order of the Labour Court or to stay the same. It is reported that the said revision bearing No. 17/1993 is still pending before the Industrial Court. Be that as it may, since the Labour Court had magnanimously offered to reconsider the matter if and when the work was not available, the corporation again knocked at the doors of the Labour Court by way of an application suggesting that now i.e. in the month of May 1993 the work has ceased to become available and, therefore, the Labour Court should reconsider its orders as it had promised in the order dated 16.1.1993. The Labour Court refused to interfere with its order by passing an order dated 25.5.1993, necessitating the present petition being filed.
5. In this court when the matter came up at admission stage on 21.10. 1993, this court admitted the matter for final hearing and also granted stay. Thus approximately from 21.10.1993 the respondents are not getting their salary.
6. During the pendency of this petition an amendment application came to be made, which came to be allowed on 5.1.1994. The respondents also amended their return in pursuance of that amendment. In the amendment application the Corporation for the first time raised a plea objecting to the jurisdiction of the Labour Court. It suggested that he respondents were Engineering Graduates, who were initially appointed to supervise over the construction activities of the Corporation in pursuance of the tender work. They were supervising the activities of the labours. They were also managing the construction work. Thereafter when the respondents came to be appointed or continued, they were undertaking the supervision of the assessment work. They were also required to supervise the assessment work of the building in respect of the Government and semi-government departments. The assessment work involved the participation of various employees of the tax department and the Engineers who were essentially required to supervise the work of those employees. It was pointed out that the approximate salary of the Engineers came to be more than Rs. 1,600/- a month. Actually if 26 days are to be reckoned as the working days, it comes to Rs. 2,000/- approximately as these persons were not being paid for Sundays. It was, therefore, claimed that they could not be called 'employees' within the meaning of the Bombay Industrial Relations Act, which enactment was applicable to the Corporation. Therefore, if was reiterated that the Labour Court and the Industrial Court had no place in this controversy and they did not have any jurisdiction to entertain the complaint under M.R.T.U. and P.U.L.P. Act. This amendment came to be opposed by the respondents who claimed that they still could be called employees within the meaning of the M.R.T.U. and P.U.L.P. Act.
7. I will first consider this aspect of the matter, since the very jurisdiction of the Labour Court and the Industrial Court is under challenge. The work 'employee' as defined under the M.R.T.U. and P.U.L.P. Act, 1971 reads as under :-
'employee' in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of Section 3 of the Bombay act, and in any other case, means a workman as defined in clause (s) of section 2 of the Central Act.'
There is no dispute amongst the parties that the Bombay Act meaning thereby Bombay Industrial Relations Act, 1946 is applicable to the Corporation and, therefore, by necessary logical we will have to go to the definition under the Bombay Industrial Relations Act and more particularly section 3(13). Section 28 of the M.R.T.U. and P.U.L.P. Act, 1971 provides the procedure for dealing with the complaints with regard to unfair Labour practice and distastes that where any person has engaged in or is engaging in nay unfair labour practice, then any union or any employee or any employer or any investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint. One thing is, therefore, certain that in order to attract the provision of M.R.T.U. and P.U.L.P. Act, 1971 and more particularly the provisions of section 28 thereunder, a person will have to be an 'employee' if he complaints that an unfair labour practice is being committed against him by the employer or by any other person. Indeed, there appears to be no dispute on this proposition that unless an unfair labour practice is in respect of an employee as defined under the M.R.T.U. and P.U.L.P. Act, the Labour Court or the Industrial Court, as the case may be, will have no jurisdiction. Section 26 thereof defines the 'Unfair Labour Practices' to be the unfair labour practices as listed in Schedules II, III and IV. The unfair labour practice, complained of, in this section was the unfair labour practice under Schedule IV. More particularly the unfair labour practice complained of is under items 1(a), (b) and (f). All these unfair labour practices pertain only to employee. Therefore, in order to attract the protection of the Act, the complainants in these cases will have first to establish that they are the 'employees'. Now one will have to necessarily of to the definition under the Bombay Industrial Relations Act, as the provisions of that Act are admittedly applicable to the Corporation. Section 3(13) therefore runs as under :-
'3(13) 'employee' means any person employed to do nay skilled or unskilled work for hire or reward in any industry, and includes.
(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) of clause (14) :
(b) a person who has been dismissed, discharged or retrenched or whose services have been terminated from employment on account of any dispute relating to change in respect of which a notice is given or an application made under section 42 whether before or after his dismissal, discharge, retrenchment or, as the case may be, termination from employment;
but does not include -
(i) a person employed primarily in a managerial, administrative, supervisory or technical capacity (drawing basic pay (excluding allowances exceeding (one thousand rupees per month);
(ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such persons which the State Government may, by notification in the Official Gazette, specify in this behalf.'
The amendment by Bombay Act 63 of 1953 is of vital importance. The portion 'but does not include - (i) a person employed primarily in a managerial, administrative, supervisory or technical capacity (drawing basic pay (excluding allowances) exceeding (one thousand rupees per month);) has been added to the original text. These words would make all the difference.
If, therefore, a person, who is primarily employed in these 4 capacities draws more than 1,000/- rupees, he would clearly go out of the definition of the term 'employee' and will have no protection firstly under the Bombay Industrial Relations Act and, therefore, necessarily under M.R.T.U. and P.U.L.P. Act, 1971, if he does have the protection of either of these who enactments, Labour Court or the Industrial Court, as the case may be, will have no jurisdiction to entertain any complaint made in this regard.
8. Very strangely enough, though the Labour Court had before it a complete data regarding the emoluments of the respondents which admittedly were much more than 1,000/- rupees, was not vigilant. Neither was the Corporation vigilant enough to raise the plea as to the jurisdiction of the Labour Court nor was the Labour Court vigilant to examine its own jurisdiction. In fact all the facts were stating the Labour Court in its face. Firstly all the respondents were Engineering Graduates : they all were appointed as the Junior Engineers; the nature of their work was also as clear as sun-shine particularly because the appointment orders themselves provided that they were to took after the tender work. Thereafter also they were to do the assessment work. Undoubtedly these engineers were not engaged in any kind of skilled or unskilled work. Essentially these persons had received the Scholastic training to be able to work as Engineers. They were qualified Engineering Graduates, yet the Labour Court complacently held the jurisdiction in its favour without even bothering to consider the question. If the Corporation was under the blissful slumber, it was the duty of the Labour Court to awaken the parties by asking them to examine whether it had necessary jurisdiction to entertain the complaint of these Engineering Graduates, who were admittedly employed as the Junior Engineers. Not an iota of evidence was tendered by the Corporation nor did the Labour Court show a vigilant attitude by examining whether it had the jurisdiction to try these complaints. Both the parties were blissfully complacent and went on to file pursis declaring that they had no intention to lead evidence and naturally, therefore, the Labour Court went on to examine the questions which were wholly irrelevant to the issue than to decide the real issues involved.
9. In this Court one was hardly surprised to receive an amendment application. In fact, this plea should have been the first, because unless that issue was decided in favour of the respondents, the Labour Court could not have gone an inch forward.
9-A. Prima facie the Engineers have been held not to be the workmen. In a reported decision of the Supreme Court in : (1970)IILLJ590SC , Burmah Shell Oil Storage and Distribution Company of India Ltd. v. The Burmah Shell Management Staff Association & Ors. paragraphs 20 and 21 are of utmost importance. The following quotation would suffice :-
'The duties, which the District Engineer performs, consist of assessing suitability of sites for depots from the point of view of the technical and engineering aspects, suggesting lay-out for construction of depots or service stations, seeing that the estimates prepared by the draughtsman are correct from the technical point of view, scrutinising tenders for construction, checking the construction work given to the contractor, certifying bills submitted by contractors for the work done by them, and preparing estimates for maintenance work in respect of depots'.
'On the other hand, it appears that the principal work, for which he is employed, is that of supervision in as much as he is required to supervise work done by others instead of doing the work himself. The estimates are prepared by draughtsman and he only checks them. The scrutiny of tenders given by the contractors as well as checking the construction work done by the contractors is in the nature of supervision, so as also certification of bills.'
In paragraph 21 of its judgment above the Supreme Court was examining the evidence of the witness examined on behalf of the Association and ultimately came to the conclusion that the decision given by the Tribunal that District Engineer was doing technical work and not supervisory work, was not correct. In terms, on the basis of the evidence in that case the Supreme Court came to the conclusion that the District Engineer was principally employed to do the work which was of the supervisory character and even though he had to use the technical knowledge for the purpose of properly carrying on supervision, it could not be held that he was employed to do the technical work. Similarly observations were made in respect of Foreman in the next paragraph i.e., paragraph 21.
10. Even if it was granted that the respondents herein were not doing the supervisory work but the technical work, even then if their basic pay exceeded 1,000/- rupees they would still go out of the periphery of the definition of 'employee' and would lose the protection of the Bombay Industrial Relations Act as well as M. R. T. U. and P. U. L. P. Act.
11. Mrs. Jog, learned counsel for the respondents herein, however, pointed out that there was no examination by the Labour Court regarding the duties of these persons. He pointed out that it was not that the objection to the jurisdiction was not taken at the initial stage and, therefore, it would not be possible for the Corporation now to object to the jurisdiction of the Labour Court. The argument is obviously not plausible. The objection to the jurisdiction can be raised at any level. If the Court has no jurisdiction it can be pointed out at any stage of the litigation. That objection, therefore, cannot be sustained. She, however, further pointed out that there had to be examination of the question regarding the duties of the Junior Engineers but no evidence was led by the Corporation to point out the duties of the Junior Engineers. Mrs. Jog's argument is based on the definition of the term 'employee'. Her contention is that since the present respondents earned only on the basis of daily wages i.e., at Rs. 72/- per day, they could not be covered under the exception which is added by the amendment. He claim was that only such persons who were who were having the monthly salary exceeding Rs. 1,000/- would be excluded from the term 'employee'. Her further contention is that it will be the basic salary which will have to be considered and not any allowances. Her contention, therefore, is that because the respondents were earning Rs. 72/- per day at the flat rate it could not be said that they were drawing any basic pay much less exceeding Rs. 1,000/-. The argument, on the face of it is incorrect. The intention behind the amendment is to exclude the person of the better economical standard. A person who is being paid meagre salary even if he is doing a managerial, administrative, supervisory or technical work or in that capacity and if he earns less than Rs. 1,000/- the protection of the Act was made available by the Amending Act. So also if the person working in these capacities gets more than Rs. 1,000/- per month by way of basic pay then the protection of the Act was denied to him. The words 'basic pay excluding allowances' will have to be interpreted with this idea in mind. If the respondents get Rs. 72/- without any further allowances or otherwise at the flat rate, one will have to calculate as to what his basic pay per month would come to. The word 'Pay' as defined in the Concise Oxford Dictionary has the following meanings amongst others :-
'Pay : 1 give (a person etc.) what is due for services done, goods received, debts incurred etc.
2. A : give (a usu., specified amount) for work done, a debt, a ransom etc.
b : hand over the amount of (debt, wages, recompense etc.)...'
If the basic pay for the whole month is to be considered, then it will have to be calculated on the basis of the wages earned by the respondents for a month. The word 'Basic', as per the same Dictionary means : (1) forming or serving as a base (2) fundamental (3) a simplest or lowest in level (basic pay, basic requirements). Basic would, therefore, be in the simplest or lowest pay of the wages that a worker gets in one month. Such basic pay calculated would be admittedly more than 1,000/- rupees, thereby pushing these Engineers out of the protective zone of the enactments.
12. The next argument of Mrs. Jog was that only such persons who were drawing basic pay exceeding 1,000 rupees were the persons excluded by the amendment. She wants the Court to read the words 'excluding allowances' to mean that the person who were daily waged workers were excluded, as according to her, the persons who are daily wage workers do not get any allowances. According to her, therefore, the persons who are getting wages on the daily basis irrespective of the quantum of their wages would be excluded from the Amending Act and would consequently be the employees as defined within Section 3(13). The premise of this argument is wrong. Firstly it is nowhere provided that the persons who draw their wages as daily waged workers do not get any allowances. It is not, as if a person if he is getting pay on the basis of daily wages, is not entitled to draw any allowances. Such person could still draw some allowances. Again merely because the words 'excluding allowances' appear in the section, it does not mean that all the daily waged workers were intended to be excluded. If such was the intention of the legislature, it could have straightaway provided that the daily waged workers would be excluded from the operation of the Amending Act. Such not being the intention, obviously the legislature has not put in those words. Apart from this, the intention behind this provision appears to be to include even the persons who are working in managerial, supervisory, administrative or technical capacity who are earning less than 1,000/- rupees. Let us now consider hypothetically. If there is a person who has been employed purely as a manager and is doing the managerial work, would be excluded by the very nature of his work and not on account of salary from being a workman under Section 2(s) of the Industrial Disputes Act. However, he could still be covered in the definition of 'employee' vide Section 2(13) of the Bombay Industrial Relations Act, if he is earning a salary less than Rs. 1,000/- per month. Now if such a person is earning his salary in daily wages, he will have to go out of that definition, if the interpretation put forward by the learned counsel is accepted. Such, indeed, cannot be the intent of law. The intention behind this Amending Act was to provide the protection to the working hands. If their total salary was less than 1,000 rupees irrespective of the nature of work he is doing, such worker could be termed as employee. Therefore, if the total emoluments excluding the allowances went beyond 1,000 rupees such person would lose the protection of the Act.
13. Mrs. Jog placed reliance on the reported decision of this Court, i.e., Bombay Dyeing and . v. R. A. Bidoo & Anr. 1989 ML. J. 716. She pointed out that the respondent who was Camera Operator was held to be not employed in technical capacity, though he had stated that technical experience was required. She was at pains to point out that though the respondent therein was drawing more than 1,000 rupees per month, he was held to be an employee within the meaning of Section 3(13) of the Bombay Industrial Relations Act and taking the view that he could not be said to be doing any work in technical capacity. In fact, this case is wholly against the interests of the respondents in the instant case. Herein it was firstly held on the fact that the work which the respondent was doing was not supervisory. Then the Court went on to examine the question whether the respondent was employed in a technical capacity. After examining the evidence the Courts below had held that there was no evidence to show what exactly was the nature of the work for which the respondent was employed or what exactly was the work at the time of termination of his services. Taking the overall evidence in consideration the Court went on to hold that it could not be said that the respondent therein was doing any work in technical capacity. In fact, the controversy which is at this stage in this petition, was not there in the reported decision. The Division Bench was not considering the question whether the persons who were drawing wages daily were excluded from the definition of the word 'employee'. The Division Bench was merely considering as to what was the nature of the work as to whether it was supervisory or technical. The Division Bench came to the conclusion that the work was neither supervisory or technical and, therefore, merely because the salary of respondent was more than 1,000 rupees did not weigh and in that view of the matter Court held him to be the employee. The facts in that case and the ratio have no bearing to the present case at hand.
14. Still the question would be, whether this Court should straightaway give a finding regarding the status of the present respondents. Mrs. Jog strenuously contended that the objection to the jurisdiction was raised almost at the fag end of the litigation i.e., at the High Court stage and this Court did not have the advantage of the evidence. She, therefore, suggested that the matter should be referred back to the Labour Court and an opportunity should be given to the respondents to bring on record material so as to prove the real nature of their work and wages, so that they still can be considered as employees within the meaning of the Bombay Industrial Relations Act and can be covered under the umbrella of M. R. T. U. and P. U. L. P. Act. I find no unreasonableness in this request. Mr. Gawai, learned counsel for the Corporation also fairly conceded that the objection was indeed not raised when it should have been raised. Since this question is going to affect number of employees of Corporation, it would be better if an opportunity is given to the respondents to prove their contentions, by leading the evidence etc. However, the fact remains that the Labour Court should have remained alive to all these questions when it straightaway went to decide the controversy without even bothering to consider whether it had the jurisdiction or not. It would therefore, be proper to remit back the case for allowing the parties to lead the evidence and upon such evidence having been led, Labour Court shall decide the question of jurisdiction as the preliminary question in the light of observations in this judgment. It is only then that it would proceed to decide the application under Section 30(2) as also under Section 28 of the M. R. T. U. and P. U. L. P. Act, is necessary. Mrs. Jog at this stage reiterated that the respondents are out of the job and, therefore, the status quo ante prior to the passing of the stay order should be restored. I am afraid, such request cannot be entertained. If the respondents were continuing only on the basis of the Labour Court's order, it would be vital that the question of Labour Court's jurisdiction is decided first prior to passing any such order. No such request, therefore, can be entertained. However, in view of the urgency of the matter, Labour Court is directed to decide the question of jurisdiction and the consequent application within 3 months from today.
15. Both the orders passed by the Labour Court are hereby quashed. Labour Court is directed to reconsider the question in the light of the observations made above within 3 months. Parties have assured this Court that they shall not indulge in any dilatory tactics. With these observations rule is made absolute in terms stated above. Under the circumstances there will be no order as to costs.
16. Orders quashed and matter remanded.