Chauhan, J.
1. The instant writ petition has been filed against the impugned award dated 26.5.2000 passed by the Labour Court, Sri Ganganagar, allowing the claim of the respondent workman and directing the petitioner Municipal Board to reinstate him with 50% of back wages from the date of reference till the date of Award.
2. The facts and circumstances giving rise to this case are that respondent-workman filed an application on 15.5.1990 (Annex. 1) before the Chairman of the Board that he was qualified to be appointed on the post of Tax Assessor: post was lying vacant; thus he should be appointed. He was appointed on temporary basis, vide order dated 22.3.1991 (Annex.2), as a Tax Assessor by the Chairman of petitioner Municipal Board (for short, 'the Board') for a period of one year, or till regularly selected candidate was made available. When the period of one year was likely to expire, the workman approached the Civil Court by filing Suit No. 5/1992 and vide order dated 21.5.1992 (Annex.3), application filed by the workman under Order 39, Rule 1 of the Code of Civil Procedure was allowed and the Board was directed not to remove the workman. Being aggrieved and dissatisfied, the Board filed an appeal, which was allowed vide order dated 21.8.1993 (Annex.4). However, the Appellate Court directed not to remove the workman without following the procedure established by law. Services of the workman were terminated vide order dated 18.11.1994 (Annex.5). As in between the Labour Court, Bikaner had passed certain orders, it was directed that payment in accordance with law should be made to him he was paid a sum of Rs. 34,571/- which included one month's salary to (he tune of Rs. 4106/- in lieu of notice; Rs. 7363/- as required under Section 25-F of the Industrial Disputes Act, 1947 (for short, 'the Act, 1947') and Rs. 31,668/- as-directed by the Labour Court on his application under Section 33-C(2) of the Act, 1947 and also a sum of Rs. 2903/- as interest as directed by the Labour Court. Suit filed by the workman was dismissed by the Court vide judgment and order dated 26.5.1995 (Annex.9) as not maintainable. Workman raised an industrial dispute and vide order dated 7.8.95, the appropriate Government made a reference as to whether termination of his services w.e.f. 18.11.94 was justified and if not, to what relief he was entitled for. In pursuance of the said reference, workman filed the claim petition contending that he had been appointed in the Board vide order dated 22.3.1991 and inspite of the fact that he had completed more than 240 days in a calendar year counting backward from the date of termination, his services were terminated without complying with the provisions of the Act, 1947. The Board filed the reply contending that the workman had been appointed by the Chairman, who had no competence and a person appointed dehors the Statutory Rules cannot claim any relief. The Chairman, who had appointed the workman, had been removed subsequently by the State Government after holding an inquiry under the Rajasthan Municipalities Act, 1959 (hereinafter called 'the Act, 1959') on various charges including the charge of appointing the workman illegally. Criminal cases had also been lodged against him. Moreso, under Rule 27 of the Rajasthan Municipalities Rules, 1963 (for short, 'the Rules, 1963'), appointment cannot be made on ad-hoc basis for a period of more than one year and the post of Tax Assessor under Section 114 of the Act, 1959 can be filled up only with previous sanction of the State Government and as the said post had never been sanctioned in the Board, workman's appointment was illegal; an Assessor cannot be a 'workman' as defined under Section 2(s) of the Act, 1947; and, thus, he was not entitled for any relief.
3. The parties led evidence before the Labour Court and vide impugned award dated 26.5.2000, the Court allowed the claim of the respondent-workman directing his reinstatement with 50% of back wages from the date of reference till the date of Award. Hence this petition.
4. Learned counsel appearing for the petitioner Board and State-respondent No.3 have raised the same questions of facts and law which had been raised before the Labour Court, including the competence of the Chairman to appoint the respondent-workman and also that he was not a 'workman' being an Assessor and getting the salary of Rs. 4106/- per month. Land and Building Tax Department of the Board is not an industry. Appointment on ad-hoc basis could not be continued beyond a period of one year. Hence, the award is liable to be set aside. On the other hand, it has been canvassed on behalf of the workman that this Court, in a limited jurisdiction of judicial review, should not interfere with the findings of fact recorded by the Labour Court and the petition is liable to be rejected.
5. I have considered the rival submissions made by the learned counsel for the parties and perused the written submissions filed on behalf of the employee.Scope of Judicial Review
6. In a case like instant, the Court can review only the 'decision making procedure' and not the 'decision' of the Labour Court/Tribunal. This Court, not being a Court of Appeal, should not substitute its view on factual aspects of the case. The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest Injustice and can interfere with the impugned order in 'exceptional circumstances'. (Vide Union of India v. Parma Nanda (1); State Bank of India and Ors. v. Samarendra Kishore Endow (2); State of Punjab v. Surjit Singh (3); State of U.P. v. Ashok Kumar Singh and Anr. (4); State of U.P. v. Nand Kishore Shukla and Anr. (5); Transport Commissioner, Madras v. Thiru ARK Moorthy (6); Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and Ors. (7); State of Punjab v. Bakhshish Singh (8); Yoginath D. Bagde v. State of Maharashtra and Anr. (9); Union of India v. Lt. Gen. R.S. Kadyan and Anr. (10); Food Corporation of India v. A. Prahalada Rao and Anr. (11); Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. (12); N.R. Nair v. Union of India and Ors. (13); Union of India and Ors. v. Ashotosh Kumar Srivastava (14) and Quseph Mathai and Ors. v. M. Abdul Khadir (15).
7. In State of Tamil Nadu v. S. Subramaniam (16), the Apex Court held that the Court, in exercise of its powers of judicial review, is to consider whether the conclusion reached by the Authority is based on the evidence on record and support the findings, or whether the conclusion is based on no evidence.
8. In General Court Martial and Ors. v. Col. Aniltej Singh Dhaliwal (17), the Hon'ble Supreme Court held that the High Court, in exercise of its limited power of judicial review, may interfere by appreciating the evidence only if there is an omission on the part of the Authority to consider the relevant evidence. Similarly, in Rajinder Kumar Kindra v. Delhi Administration (18), the Apex Court observed as under:-
'It is equally well settled that where a quasi-judicial Tribunal or Arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated..... Viewed from either angle, the conclusions ..... are wholly perverse and hence unsustainable .....Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short-circuited the writ petition.'
9. In Secretary, Haryana State Electricity Board v. Suresh and Ors. (19), the Hon'ble Supreme Court held that findings of fact recorded by the Labour Court cannot be interferred by the High Court in exercise of writ jurisdiction under Article 226/227 of the Constitution unless the 'same is otherwise perverse or there is an existing error apparent on the face of the record.'
10. Undoubtedly, the scope of interference by this Court is very limited. As the instant case involves important questions of law and fact having far-reaching effect, as to whether an Assessor is a 'workman' as defined in Section 2(s) and whether Land and Building Tax Section of the Municipality is an industry within the meaning of Section 2(j) of the Act, 1947 and the Labour Court has not dealt with the issues, the case requires consideration.Appointment Dehors the Rules
11. Admittedly, respondent-workman had been appointed without following any procedure prescribed under the Act or the Rules by the Chairman of the Board, who had no competence to appoint an Assessor; nor the post had been sanctioned by the State Government. It has been contended on behalf of the respondent that even if his appointment was not in accordance with law, the provisions of the Act, 1947 are attracted as Section 25-J provides that provisions contained in Chapter V-A of the Act, 1947 would have over-riding effect on other Labour Laws. This view stands fortified by the judgments of the Hon'ble Supreme Court in R.B. Bansilal Abeerchand Mills v. Labour Court (20); Krishna District Co-operative Marketing Society Ltd. v. N.V. Puranchandra Rao and Ors. (21); P. Virudhachalam and Ors. v. Management of Lotus Mills and Anr. (22); Vikramaditya Pandey v. Industrial Tribunal and Anr. (23); and Harmohinder Singh v. Kharga Canteen Ambala Cantt (24).
12. This Court, in Prabhu Dayal Jat v. Alwar Sahkari Bhumi Vikas Bank (25), considered the case of an employee, whose services stood terminated on the ground that he had been appointed without any authorisation of law and held that even in that eventuality, provisions of Section 25-F of the Act, 1947 were attracted.
13. On the contrary, in Sita Ram Mali v. State of Rajasthan (26), this Court held as under:-
'Making appointment on daily wages without the availability of the post and without following the provisions of Articles Hand 16 suffers from patent illegality. Apparently for the reasons which are only extraneous, the Officers of the Department have given appointments on daily wages to few favoured. Those who have waited in queue at the employment exchange have been altogether ignored. In fact, while the length of the queue continuously increased, the back-door entrants got the entry in service as daily wages employee and got the order of appointment on salary in the regular pay scale and ultimately the order of regularisation on the service.'
14. The Court depricated the practice of making appointments on daily wages and held that even the appointment on daily wages without advertising the vacancy or calling the names from Employment Exchange violated the provisions of Articles 14 and 16 of the Constitution and hence, was violative of fundamental rights of other eligible persons and, thus, the relief of regularisation could not be accorded.
15. The question of appointment dehors the Rules has been considered by the Hon'ble Supreme Court time and again and the Court held that such appointments are unenforceable and inexecutable. It is settled legal proposition that any appointment made dehors the Rules violates the Public Policy enshrined in the rules and, thus, being void, cannot be enforced (Vide Smt. Ravinder Sharma and Anr. v. State of Punjab and Ors. (27); Smt. Harpal Kaur Chahal v. Director, Punjab Instructions (28); State of Madhya Pradesh v. Shyama Pardhi (29); State of Rajasthan v. Hitendra Kumar Bhatt (30); Patna University v. Dr. Amita Tiwari (31); Madhya Pradesh Electricity Board v. S.S. Modh and Ors. (32); Bhagwan Singh v. State of Punjab and Ors. (33); and Chancellor v. Shanker Rao and Ors. (34).
16. Appointment dehors the Rules violates the mandate of the provisions of Articles 14 and 16 of the Constitution as held by the Hon'ble Supreme Court in Delhi Development Horticulture Employees' Union v. Delhi Administration (35); and State of Haryana and Ors. v. Piara Singh (361. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. (37), the Hon'ble Supreme Court recognised the public employment as public property and held that all persons similarly situated have a right to share it though its enjoyment is subject to the recruitment rules which must be in consonance with the Scheme of the Constitution of India.
17. In Dr. M.A. Haque and Ors. v. Union of India and Ors. (38), the Supreme Court observed as under: -
'..... We cannot lose sight of the fact that the recruitmentrules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and by passing of the Public Service commissions are permitted, it will open a backdoor for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the Constitutional provisions requiring recruitment to the services through the Public Service Commissions. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some governments and authorities have been increasingly resorted to irregular recruitments. The result had been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a matter of course.'
18. Depricating the practice of making appointment dehors the Rules by the State or its instrumentalies in Dr. Arundhati A. Pargoankar v. State of Maharashtra (39), the Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service observing as under:-
'Nor the claim of the appellant, that she having worked as Lecturer without break for 9 years' on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection..... cannot be substituted by humane considerations. Law must take its course.'
19. The Hon'ble Supreme Court in State of U.P. and Ors. v. U.P. State Law Officers Association and Ors. (40) observed as under:-
'This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door..... The fact that they are made by publicbodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoiled system. There need be no legal anxiety to save them.'
20. Even if there are no Statutory rules providing for the mode of appointment, the Executive Instructions/Policy decision must be there providing precisely for a mode of appointment. Even if no such Executive Instructions/Policy/Guidelines/Circular etc. is in existence, a fair procedure for appointment has to be adopted in consonance with the provisions of Articles 14 and 6 of the Constitution. (Vide Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare (41). In Ramesh Kumar Sharma and Anr. v. Rajasthan Civil Services Appellate Tribunal and Ors. (42), the Hon'ble Supreme Court held that 'expression 'Service Rules' cannot be given a restrictive meaning in the absence of the definition of the said term and, therefore, it would include within its sweep, the necessary Government Order providing the method of recruitment.'
21. A Constitution Bench of the Hon'ble Supreme Court, in B.R. Kapoor v. State of Tamil Nadu (43) (Jayalalitha case) observed that it is the duty of the Court to examine whether the incumbent possesses qualification for appointment and the manner in which the appointment came to be made or the procedure adopted was fair, just and reasonable.
22. A Constitution Bench of the Hon'ble Supreme Court, in Ajit Singh (II) v. State of Punjab and Ors. (44), held that Articles 14 and 16(1) are basic features of the Constitution. The same view has been reiterated in Ashok Kumar Gupta v. State of U.P. and Ors. (45); and Indra Sawhney v. Union of India and Ors. (46). Thus, strict adherence to the said provisions is required.
23. In Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors. (47); and A.P. Aggarwal v. Government (NCT) of Delhi and Ors. (48), the Hon'ble Supreme Court held that every State action, in order to survive, must not be succeptible to vice of arbitrariness which is a crux of Article 14 of the Constitution and basis of the Rule of Law.
24. Therefore, any appointment made by a Authority, which is a State within the meaning of Article 12 of the Constitution, if found to have been made by a person without any competence or without following the procedure prescribed by law and in case the procedure is not prescribed and the procedure adopted by the Authority is not in consonance with Articles 14 and 16 of the Constitution, the incumbent cannot claim any benefit as in such a case the contract of service becomes unenforceable and inexecutable.
25. If the view contrary to the above is accepted or it is accepted that by virtue of provisions of Section 25-J, provisions contained in Chapter V-A of the Act, 1947 would over-ride the mandate of the Constitution also, it will take away the powers of the High Court to issue a writ of quo warranto, wherein the appointment of an incumbent can be challenged not only by an aggrieved person but a stranger also. Invalidity of an appointment may arise not only from want of qualification, but also from the violation of such legal conditions or procedure for appointment as mandatory and as a result of which the appointment becomes void. (Vide M. Pantiah and Ors. v. Muddala Veeramallappa and Ors. (49); University of Mysore v. C.D. Govinda Rao (50); and P.N. Lakhanpal v. A.N. Roy (51). There can be no quarrel to the issue that the Board is an Authority, which is a 'State' within the meaning of Article 12 of the Constitution. Thus, question of saving such an illegal appointment did not arise.
26. The instant case is squarely covered by the judgment of the Hon'ble Supreme Court in Factory Manager, Cimmco Wagon Factory v. Virendra Kumar Sharma and Anr. (52), wherein the Hon'ble Supreme Court, while deciding a similar case, held as under: -
'Assuming that the respondent was asked to work in a factory in anticipation of securing appointment, that too by an officer who was not competent to give appointment, that did not make the respondent a workman or regular employee of the appellant company.'
27. In view of the above, appointment of workman at the initial stage was in flagrant violation of provisions of the Act, 1959 as there had been no sanctioned post of Tax Assessor, nor the appointment was by following any procedure for selection and even if appointment had been made under the provisions of Rule 27 of the Rules, 1963, it had to lapse automatically after one year. Therefore, respondent - workman had no right to continue on the post, as his appointment had never been approved by the State Government as required under Section 114 of the Act, 1959. Moreso, the Chairman of the Board, who had appointed the workman illegally, had been removed after holding the inquiry on various charges including the charge of making illegal appointment of respondent-workman.
28. Thus, in view of the above, it may be held that petitioner may not be entitled for any relief on this count alone.
Whether Land & Building Tax Department is an Industry
29. The further question for consideration does arise as to whether Land and Building Tax Section of the Municipal Board is an 'industry' within the meaning of Section 2(j) of the Act, 1947.
30. Every Municipal Board has large number of Departments/ Sections. There may be some departments which may be-doing regal and sovereign functions of the State as delegated by the State to it by Statutes. Therefore, the question does arise whether Land & Building Tax Department of a Municipal Board is an 'industry' and if not, the respondent working in it cannot claim any relief under the Act, 1947.
31. There can be no dispute to the settled legal position that imposition of tax on land and building is not a fee as sine qua non for the services rendered to the land/building owner/assessee. It is a tax. Imposition and collection of tax is a regal and sovereign function inalienable to any private person. Article 265 of the Constitution of India puts an embargo to impose tax save by the authority of law. State Legislature is competent to impose property tax as it falls within the ambit of Entry 49 List II, Schedule VII of the Constitution of India. (Vide Asstt. Commissioner of Urban Land Tax, Madras (supra); D.G. Gouse & Co. (Agent) Pvt. Ltd. v. State of Kerala and Anr. (53); and Indian Cement Ltd. etc. etc. v. State of Tamil Nadu and Ors. (54). The State has delegated the power to levy and collect the obligatory tax to Municipalities by virtue of the provision of Section 104 of the Act, 1959, on annual letting value of the buiiding or land like octroi. By Section 105, Municipalities have been conferred powers of levying and collecting other optional taxes. Difference in both the provisions is that under Section 104, it is compulsory while in later it is optional. (Vide Ami Chand and Ors. v. Slate of Rajasthan and Ors. (55). Therefore, it is abundantly clear that Municipalities impose tax on land and building and also collect octroi as delegate of legislature in accordance with the conditions laid down by it. (Vide Municipal Board, Hapur v. Raghuvendra Kirpal and Ors. (56); and Municipal Board, Bareilly v. Bharat Oil Corporation and Ors. (57).
32. Therefore, in pith and substance, tax on land and building is a tax and not fee as there is no element of 'quid pro qua' between the assessee and the Board and imposition of tax is a regal and sovereign function of inalienable character. There is no reference to any special benefit to be conferred on the tax payer.
33. In Samistha Dube v. City Board, Etawah (58), the Hon'ble Supreme Court considered as which particular department of the Municipal Board can be an 'industry' and placing reliance upon large number of its earlier judgments, including the Seven Judges' Bench judgment in Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. (59), the Supreme Court held that the Municipal Board may have a large number of departments, some of them may not fall but some may fall within the ambit of 'industry'. The Court held that clerk working in General Administration Department was a workman as said department would fall within the scope of said definition of industry. Therefore, it has to be examined whether the concerned workman was employee in connection with any activity that might amount to an industry.
34. In General Manager, Telecom v. S. Srinivasa Rao and Ors. (60), the Supreme Court held that as the Telecom Department of Union of India was engaged in commercial, activity and was not discharging any sovereign functions of the State, it was an industry.
35. In Agricultural Produce Market Committee v. Ashok Harikuni and Anr. (61), the Hon'ble Supreme Court again considered as what is an industry and held that the Court should examine the Statute to severe one section from other by comprehensively examining various provisions of the Act/Statute and in interpreting any Statute to find if it is an industry or not, the Court has to find its pith and substance. If the functions of a particular department are found to be sovereign in nature or inalienable in character, that department cannot be held to be an industry. But if the pre-dominent object clearly shows that it is not a regal or sovereign function and the function is alienable, that may be an industry and there should be no confusion that some functions of a particular Authority may be regal and sovereign and inalienable though the remaining may not, and merely for that reason the entire Authority cannot be taken out of purview of the Act, 1947.
36. A Division Bench of this Court in Achal Das (supra) held that the Revenue Inspector in the Municipality was not a workman for the reason that he was employedin the Revenue Section of the Municipality, which cannot be held to be an 'industry'. He was governed by the Rules of 1963 framed by the State Government in exercise of its power conferred under Section 297 of the Act, 1959 and Standing Order were not applicable so far he was concerned.
37. The correctness of the judgment in Achal Das (supra) seems to be doubtful and require further examination. A Constitution Bench of the Supreme Court, in D.N. Banerji v. P.R. Mukherjee (62), held that 'industry' as defined under the Act, 1947, may include within its scope what may not strictly be called trade or business. The Court, while explaining the scope of industrial dispute, held as under:-
'.....The definitions in our Act include also dispute that might arise between Municipalities and their employees in branches of work that can-be said to be analogous to carrying out of a trade or business.'
38. In view of the above, the Apex Court held that Sanitary (Conservency) Department of the Municipality was an industry.
39. In Baroda Borough Municipality v. Its Workmen (63), the Hon'ble Supreme Court approved the law laid down in D.N. Banerji (supra) but did not examine the issue as the issue involved had been of grant of bonus to the employees working in Electrical Department of the Municipality which was involved in generating and supplying energy to private consumers, as the said department was definitely an industry.
40. In the Corporation of City of Nagpur v. Us Employees, etc. (64), the Hon'ble Court considered the meaning of 'industry' and 'industrial dispute under the provisions of C.P. and Berar Industrial Disputes Settlement Act, 1947 and compared its provisions with the provisions contained in the Act, 1947. The Court placed reliance upon large number of its earlier judgments, including State of Bombay and Ors. v. Hospital Mazdoor Sabha and Ors. (65), and held that the following five characteristics must be present to constitute an 'industry', (i) the activity must concern the production or distribution of goods or services; (ii) it must be to serve others but not to oneself; (iii) it must involve co-operative effort between employer and employees, between capital and labour; (iv) it must be done as a commercial transaction; and (v) it must not be in exercise of purely governmental functions. The Court further held that sovereign functions are those which are inalienable and inescapable, such as legislative power, administration of law and exercise of the judicial power. The Court further held that a Corporation/Municipal Board may discharge dual functions; it may be statutorily interested with regal functions strictly so-called such as making of laws, disposal of certain cases judicially and also with other welfare activities, the former, being delegated regal functions, must be excluded from the ambit of the definition of industry. The Court observed that there may be a department of the Board exclusively performing the regal and sovereign functions but there had been no separate or independent recruitment of that staff exclusively for that department and the employees, who had been employed under the Municipal Board may be working therein. In such a case it would become difficult to exclude those persons from the benefit of the Act, 1947. With this view, the Court further observed as under-
' We do not see any justification for this artificial division of Municipal activities. Barring the regal functions of a Municipality, if such other activities of it undertaken by an individual, would be industry, then they would equally be industry in the hands of a Municipality. It would be unrealistic to draw a fine between a department doing a service and a department controlling or feeding it. The supervision and actual performance of services are integral part of some activity.'
41. The Court further held that in such a fact-situation, it was impossible to make a distinction in various categories of the departments like a department which performs the services; department which only imposes taxes, collect them and administer them; and which are purely administrative in nature for the reason that integrated activities of a Municipality cannot be separated to take in some under the definition of 'industry' and exclude other from it and there cannot be a distinction between properly tax and other taxes collected by the Municipality for the purpose of designating the Tax Department an industry otherwise for the reason that Municipality may impose optional tax also alongwith obligatory taxes. The Court held that in such a situation, the regal functions remain confined only to legislative power, administration of law, and judicial power. This view has further been approved, explained and reiterated in Bangalore Water Supply & Sewerage Board (supra).
42. Thus, in view of the above, it cannot be held that the Revenue Department of a Municipality does not fall within the ambit of an 'industry' and the judgment in Achal Das (supra), to this extent, does not lay down the correct law.
Whether Tax Assessor is a Workman
43. Be that as it may, the instant case present special features, probing the issue further as to whether the respondent- workman could be a 'workman' as defined under Section 2(s) of the Act, 1947, which reads as under: -
'Workman' means any person (including an 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 purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) .....
(ii).....
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.'
43. The question: whether a particular person/employee is a 'workman' or not, has been examined by the Courts time and again. A person, to be a workman within the meaning of the definition, must be one employed in an industry for hire or reward. His term of employment may be express or implied. It is not the nomenclature of the post he holds but the nature of his duties which is the determining factor whether he falls within the definition of 'workman'. Therefore, the Appropriate Government, Court or the Tribunal must examine what is the nature of duties attached to his office or the power vested in him. Where an employee performs multifarious duties, the determining factor would be the dominant performance of his employment because while performing such a duty, he may be doing some other work also.
45. In Indian iron & Steel Co. Ltd. v. Their Workmen (66); Bihar State Road Transport Corporation v. State of Bihar and Ors. (67); and Samishta Dube (supra), the Hon'ble Supreme Court held the employees maintaining ledgers, files, correspondence, and making entries in cash books etc. were 'workman'.
46. In Voltas Ltd. v. Its Workmen (68), the Hon'ble Supreme Court excluded salesmen and apprentices from the definition of 'workman' considering the nature of their duties and remuneration as Salesman were paid commission taken on sales and apprentices were getting training of their job at the expenses incurred by the Establishment and not contributing to the profit of the Establishment.
47. In J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. The Labour Appellate Tribunal (69), the Apex Court held that the words 'employed in any industry' contained in Section 2(s) cannot be construed liberally and any employee engaged in any work or operation, which is incidentally connected with the main industry of the employer, would also be a workman provided he fulfils the other requirements of the definition. The Court emphasised that while dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude the operations or activities, whose relation with the main industrial activity may be remote, indirect or far-fetched. The Court was dealing with the issue whether Malis employed by the industry maintaining the bungalows of its officers were workmen within the meaning of the definition and held that Malis appointed by the employer for the said purpose were workmen.
48. The employee doing occasionally supervisory work, but generally manual, was held to be a workman within the definition of the word in Anand Bazar Patrika (Pvt.) Ltd. v. Workmen (70).
49. In Llyods Bank Ltd. v. Panna Lal Gupta and Ors. (71), the Apex Court held that while deciding; whether the workmen are supervisors or not, the Court should not import general considerations about the administrative or supervisory control which are associated with the status of a supervisor or a supervisory officer and a person, claiming the status of a Supervisor, must show that he has to supervise the work of some others who were in a sense below him. Clerks in Audit Department are assigned the duties of checking up the Books of Accounts and entries made in them, which are purely mechanical and it cannot be said to include any supervisory function and such persons are merely workmen.
50. Persons authorised to assign duty and distribute work in a bank were held to be 'not workmen' in All India Reserve Bank Employees' Association v. Reserve Bank of India (72). Similarly, Blending Supervisors and Fueling Superintendents were held to be 'not workmen' in Burmah Shell Oil Storage & Distribution Co. of India (Ltd.) v. Burmah Shell Managemept/Staff Association (73).
51. In S.K. Maini v. Carona Sahu Co. Ltd. (74), the Hon'ble Supreme Court held that where the functions of an employee appear to be administrative and managerial by virtue of being Incharge of the shop, or Officer Incharge of the management of the shop, he cannot be a workman inspite of the fact that he has also to do himself other required duties of clerical nature. Therefore, the terms and conditions of his appointment and powers conferred upon him must be examined to determine his status.
52. A Constitution Bench of the Hon'ble Supreme Court in H.R. Adyanthaya and Ors. v. Sandoz (India) Ltd. and Ors. (75), considered the definition of 'workman' elaborately and held that a person, claiming to be workman, should prove that he is employed to do any of the categories of work mentioned in the main body of the definition, viz., manual, unskilled, skilled, technical, operational and further that he is not covered by any of the four exceptions of the definition. The Court was considering: whether the medical representatives are workmen within the definition as provided under Section 2(s) of the Act. The Court placed reliance upon large number of its judgments, including Western India Match Co. Ltd. v. Their Workmen (76); May & Baker (India) Ltd. v. Workmen (77); and Burmah Shell Oil Storage & Distribution Co. (supra) and held that as they were canvassing sales and any clerical or manual work, if they had to do, was merely incidental to their main work, it could not be held to be a clerical or manual work and, therefore, they were not the workmen. While canvassing sale and obtaining orders, even if they had to carry on some correspondence, that was also incidental to their main work of pushing sales of the company. As their work was neither clerical nor supervisory nor technical, they were not workmen. The Court further observed that the work 'skilled' is to be construed ejusdem generis and would mean skilled work whether manual or un-manual. The work of promotion of sales is the type of work not covered by the definition and, thus, the contention that the medical representatives were employed to do skilled work within the meaning of said definition, was rejected.
53. In Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. (78), the Apex Court observed that in a given case, nature of duties of an employee at the initial stage of his appointment may be of a workman but not at the time of his dismissal. Therefore, nature of his duties at the time of removal would be relevant to determine his status.
54. In Hussan Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board and Anr. (79), the Hon'ble Supreme Court, considered the issue as to whether 'Inspector' in the Bombay Iron and Steel Board, constituted under the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969, was 'workman' under the definition and observed as under:--
'No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him...... It is the pre-dominant nature of the services that will be the true and proper test..... When, as in this case, as disclosed from Section 15 of the Act as also the provisions of the Scheme, the primary duties of an employee and the dominent purpose, aim and object of employment was to carry out only certain specific statutory duties in the matter of effective enforcement and implementation of welfare scheme in order to ameliorate and rehabilitation of particular section of labour, and if need be, on the basis of his own decision, which calls for a high degree of discretion and exercise of power to prosecute the violator of the provisions of the Act, rules and the provisions of the scheme, we are unable to accord our approval to the claim made on behalf of the appellant that he can yet be assigned the status of a 'workman' without doing violence to the language of Section 2(s) and the very purpose and object of the ID Act, 1947. That apart, even judging from the nature of the powers and the manner of its exercise by an Inspector appointed under the Act, in considered to be engaged in doing any manual, unskilled, technical, operational, clerical or supervisory work and the mere fact that in the course of performance of his duties the had to also maintain incidental records to evidence the duties performed by him day to day, cannot result in the conversion of he post of 'Inspector' into any one of those nature noticed above..... The appellant cannot fall within the definition of 'workman'. The power of an Inspector and duties and obligations cast upon him as such are identical and akin to law enforcing agency or authority and also on a par with prosecuting agency in the public law field.'
55. In Vinay Kumar Majoo v. State of Rajasthan (80), this court held that a Junior Engineer working in Public Works Department was a 'workman', observing as under: -
'Parties have agreed that duties of Engineering Subordinates which are those of Overseers are governed by the Standing Order. The duty of the Overseer inter alia is to collect engineering data required for preparation of correct estimates. He also prepares rough drawings and site plans on the basis of the surveys conducted by him. He is required to prepare estimates for all works in his section. He supervises the works under his charge and has to ensure that such works are done according to the specifications and drawings and in conformity with the standards laid down by the Department..... He is further to remain at the site of the work throughout the day and hehas to attend the office of the Assistant Engineer only when he iscalled to do so or when he has any specific work in the office. He isrequired to submit progress reports of the work as may be requiredby the senior officers. He is to record in the Measurement Book themeasurement of work done by the contractor. He is to prepareindents for withdrawal of material from stores and has to maintaincertain other records. A perusal of this standing order No. 158 doesnot leave any doubt in my mind that the duties of an Overseer or theJunior Engineer for that matter are of technical character and theyare both supervisory and clerical for certain jobs. Thus, the petitionerwas undoubtedly a workman within the meaning of Section 2(s) ofthe Act. As he was drawing his salary less than Rs. 500/- a month, eventhough he may be doing supervisory work, he will certainly be takento be a workman within the meaning of the Act.'
56. Thus, in view of a the above, an employee claiming the status of a workman must fall in either of the categories mentioned in the definition and should not fall in either of the exceptions provided therein and for this purpose, nature of dominent, not mere incidental, duties and power conferred upon him, are the decisive factors, not his designation.
57. The instant case requires to be examined in view of the aforesaid settled proposition of law.
58. Undoubtedly, an Assessor is to be appointed under the provisions of the Act, 1959 and duties assigned to him have also been enumerated therein and the Rajasthan Municipalities (Land & Building) Tax Rules, 1961 (for short, 'the Rules, 1961'). The relevant provisions thereof read as under:-
'Section 114. Appointment of Assessors- (1) For assessing the tax on the annual letting value of buildings or lands or both situated within the Municipality, every Board shall appoint, with the sanction of the State Government, an Assessor who shall prepare an assessment list in such a form and in such manner as may be laid down in rules made by the State Government in that behalf.
(2).....
Section 115. Supply of certain information and consequence of failure to supply( 1) On the requisition of the Assessor the owner of occupier of any building or land or both referred to in Sub-section (1) of Section 114 shall, within such reasonable period as shall be specified in the requisition be bound:-
(1) to furnish a true return .....
(2) If such owner of occupier fails or refuses to comply with the requisition within the period specified therein, then without prejudice to any other action that may be taken against him under any other provision of this Act, the Assessor shall, after making such inquiry as he considers necessary, determine the annual letting value of such building or land or both, to the best of his judgment and assess the tax payable thereon.
Section 116. Publication of assessment list.....
Section 117. Public notice of time fixed for revising assessment list -
(3) All objections to the valuation and assessment shall be made to the Assessor before the time fixed in the notice, by application inwriling, stating the grounds on which the valuation and assessment are disputed,......
(4) The revising authority shall, after allowing the applicant an opportunity of being heard in person.....
(a)..... dispose of the objections;
(b).....
Rule 4. Preparation of assessment list.....
(3) For the purpose of determining the annual letting value of any land or building and assessing the amount of tax thereof, the assessor
(a) enter upon or into, inspect and measure any building or land, and
(ii) If necessary, make enquiries from the people living in neighbourhood and examine the previous record of the Municipality or other local authority in relation to such building or land.
Rule 5. Statement of new building etc.-Every tax Inspector..... shallsubmit to the Assessor half yearly statements showing building with in his circle which have been newly constructed or reconstructed or enlarged and the Assessor shall upon receipt of such statement or upon receipt of notice under Section 120 proceed to assess or reassess the annual letting value of the building and the amount of tax payable in respect thereof.'
59. The aforesaid provisions make it clear that the Assessor is to be appointed by Municipality only with the sanction of the State Government. His main duty is to assess the rental value of the building/land and to assess the tax payable thereon by the assessee. For making assessment of tax, the Assessor has been enclothed with the power to seek required information in respect of building/land from the assessee and in case it is not furnished, to make best judgment assessment.
60. The Committee of the Board has power to revise the assessment by the Assessor provided the assessee files objections. In case objections are not filed, the assessment made by the Assessor becomes final and in such circumstances, it seems that the Assessor performs the quasi-judicial function and his assessment is a quasi judicial order. Moreso, the order of assessment is appealable before the District Collector under Section 139 of the Act, 1959.
61. The quasi-judicial order must contain the following conditions: (a) the person must have legal authority; (b) the authority should be given to determine question affecting the rights of subjects; and (c) he should have a duty to act judicially. (Vide Rex v. Electricity Commissioner, Ex-parte, London Electricity Joint Committee Co. (81); Rex v. London Countsy Council, Ex-parte Entertainments Production Association Ltd. (82); Province of Bombay v. Khushaldas S. Advani (83); Radhey Shyam v. State of-Madhya Pradesh and Ors. (84); Gullapalli Nageswara Rao v. A.P. State Road Transport Corp. (85); State of Orissa v. Chakobhai Ghelabhai & Co. (86); Board of High School v. Ghanshyam (87); Anglo-American Direct Tea Trading Co. v. Workmen (88); Jaswant Sugar Mills v. Lakshmi Chand (89); Shankarlal Aggarwala and Ors. v. Shankarlal Poddar and Ors. (90); State of Assam v. Bharat Kala Bhandar (91); P.L. Lakhanpal v. Union of India and Ors. (92); and Union of India and Ors. v. J.N. Sinha (93).
62. In State of Himachal Pradesh v. Raja Mahendrapal Singh (94), the Hon'ble Supreme Court held that the test to determine whether the proceedings are quasi-judicial or not, is as under:-
'Quasi - judicial acts are such acts which mandate an officer the duty of looking into certain facts not in a way which it specially directs but after a discretion, in its nature, judicial. The exercise of power by such Tribunal or Authority contemplates the adjudication of rival claim ofpersons by an act of mind or judgment upon the proposed course of official action as to an object of the corporate power, for the consequence of which the official will not be liable, although his act was not well judged. A quasi judicial function has been termed to be one which stands midway on judicial and administrative functions. The primary test is as: whether the authority alleged to be a quasi- judicial, has any special judicial duty to act judicially in arriving at the decision in question. If the reply is in affirmative, the Authority would be deemed to be quasi judicial and if the reply is in negative, it would not be. The dictionary meaning of the word quasi-judicial is 'not exactly.'
63. A quasi-judicial authority cannot arbitrarily ignore principles of law or the principles of natural justice. (Vide Union of India v. H.C. Goel (95); Rakesh Kumar Jain v. State through CBI, New Delhi (96); and Ghulam Quadir v. Special Tribunal and Ors. (97).
64. Thus, tax on land and building is to be assessed determining the capital value of a building on the basis of annual letting value and while determining so, no hypothetical factor is to be taken into consideration, nor the Authority can decide it arbitrarily (Vide Constitution Bench judgment in Spencer & Co. v. State of Mysore and Anr. (98).
65. In Sriniwas & Co. v. Commercial Tax Officer and Ors. (99), the Andhra Pradesh High Court held that an officer assessing the tax performs quasi-judicial functions. In Smt. Ujjam Bai v. State of U.P. and Ors. (100), a Seven Judges Bench of the Hon'ble Supreme Court proceeded with the presumption that assessing authority under the Taxing Statutes is a quasi-judicial authority.
66. A Constitution Bench of the Hon'ble Supreme Court in Asstt. Commissioner of Urban Land Tax, Madras and Ors. v. Buckingham & Carnatic Co. Ltd. etc. (101), while examining the similar provisions of the Madras Urban Land Tax Act, 1966, held that opinion formed by the Assistant Commissioner while determining the market value and assessment of Urban Land Tax, has to be objective which must be reached upon relevant evidence after following the requisite procedure and formalities as provided under the Statute. He cannot have a subjective and arbitrary opinion.
67. In Lt. Col. P.R. Chaudhary v. Municipal Corporation, Delhi (102), the Hon'ble Supreme Court, while examining the issue of determination of reteable value for the purpose of assessing tax on Land and Building under the Delhi Municipal Corporation Act, 1957, held that assessing authority 'acts in a quasi-judicial capacity. Its orders are appealable. It cannot act in arbitrary fashion ignoring principles of law.'
68. In East India Commercial Co. Pvt. Ltd. v. Corporation of Calcutta (103), the Apex Court held that while assessing the property tax and determining the reteable value, the Authority has to consider a large number of factors including the charges collected from tenants etc. and also the provisions of the Rent Control Act applicable in that area. A similar view has been reiterated in Surat Textile Market Co-operative Shops and Warehouses Society Ltd., Surat v. Municipal Corporation of City of Surat (104).
69. The Assessor has to determine the value of the building/land after complying with the Statutory provisions and principles of natural justice. He has to act judiciously as he cannot assess the value arbitrarily. His assessment determines the rights/liabilities of the Board and the assessee. He has been enclothed with the powers to seek requisite informations and also to make best judgment assessment. Thus, his duties are quasi- judicial in nature.
70. Even otherwise, petitioner cannot be held to be performing manual, skilled, unskilled, technical or operational duties and in that view, petitioner cannot be heldto be a 'workman' within the definition contained in Section 2(s) of the Act, and the Award is liable to be set aside only on this count.
71. A particular procedure has been prescribed for filing up the vacancies under the Rules, 1963. Rule 10 thereof requires determination of the vacancies on 1st April of every year. Rules 1961 provide a complete procedure for imposition of tax on land and building and the Assessor of Tax, appointed under Section 114 of the Act, is the Head of that Section. The Government has also issued directions from time to time to expedite the assessment of tax which provides for providing sufficient staff for the purpose of working under the Assessor. As per the Staffing Pattern, as provided by the State Government for the purpose of assessment of tax on land and building, Assessor comes in Class II Service and he has his own staff including U.D.C., L.D.C. and Class IV employee. Moreso, the private respondent had been removed by the order of the Deputy Director, therefore, he had an effective remedy under Sub-section (5) of Section 310 of the Act, 1959.
72. Standing Orders are applicable where the Service Rules are not there. Preamble of the Industrial Employment (Standing Order) Act, 1946 (for short, 'the Act, 1946') itself provides that 'whereas it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them.' Therefore, the object of the Act, 1946 was that service conditions should be known to the employees at large who are working in an industrial establishment and further to make the conditions of employment precise and definite. Once Standing Orders stand certified, they have the force of Statutory Rules. (Vide Bagalkot Cement Co. v. R.K. Pathan (105); Agra Electric Supply Co. Ltd. v. Alladdin (106); Workman v. Firestone Tyre & Rubber Co. of India (P) Ltd. (107); U.P. Electric Supply Co. Ltd. v. Workmen (108); Gloxo. Laboratories (P) Ltd. v. Presiding Officer, Labour Court, Meerut (109); Sudhir Chandra Sarkar v. Tata Iron & Steel Co. Ltd. (110); Barauni Refinary Praga-tisheel Shramik Parishad v. Indian Oil Corporation Ltd. (111); and D.K. Yadav v. J.M.A. Industry Ltd. (112).
73. Section 13-B of the Act, 1946 provides for non-application of Standing Orders in case the services are governed by any Rules or Regulations notified in the Gazette. A Division Bench of this Court, in Achal Das (supra) has taken note of it and held that as the services of an employee in that case were governed by the Act of 1959, the provisions of the Act 1947 were not applicable. The said judgment might not be good holding that Revenue Department was not industry, but stands good so far as this issue is concerned. The case of Vinay Kumar Majoo (supra) has been decided on the basis of Standing Order, thus, it can be held that it does not lay down the law of universal application or be held to have a force of binding precedent. Moreso, what had been emphasised therein was that workman involved therein was getting Rs.255/- per month as salary. Thus, in the present context, the judgment has lost its significance. Moreso, it remains per incurium as the provisions of Section 13-b of the Act, 1946 have not been taken into account. Admittedly the services of the employees of P.W.D. are governed by the Statutory Rules and Rajasthan Service Rules, 1951 and Civil Services (Classification, Control & Appeal) Rules, 1958, are also applicable to them.
74. In view of the above, I reach the inescapable conclusion that appointment of the contesting respondent was not in accordance with law. Nor there had been any sanction for the said post in the Board. Illegal appointment, in issue, was one of the charges, on which the then Chairman stood removed from his office. Even otherwise, Assessor is not a workman within the definition as provided in the Act.
75. Thus, petition succeeds and is allowed. Award impugned dated 26.5.2000 is set-aside. There shall be no order as to costs.