SHARAD KUMAR V GOVT. OF NCT OF DELHI,
AIR 2002 SC 1724
FACTS
The appellant here was holding the post of “Area Sales Executive” when his service was terminated. He questioned the legality and validity of the order of termination of service and the matter was taken up for conciliation. The conciliation however failed and the conciliation officer submitted a report to the State Government.
The State Government refused to refer the dispute to the Industrial Tribunal or Labour Court for adjudication for the reason that
“Admittedly, the applicant was designated as Area Sales Executive and performing the duties of an Area Sales Executive, as such he is not covered by the definition of “workman” as defined under Section 2(s) of the Industrial Disputes Act, 1947. ”
The appellant filed a Writ Petition before the High Court of Delhi challenging the order above. The petition however was dismissed on the ground that a reading of Section 2(s) of the Industrial Disputes Act makes it clear that an officer appointed as the Area Sales Executive cannot be considered to be a workman under the section.
Hence the present appeal
ISSUE
Whether the State Government was right in refusing to refer to dispute under Section 10(1)?
CONTENTIONS
Appellant
The State Government erred in not referring the dispute for adjudication just on the basis of the designation of the post held by the appellant. He was performing multifarious duties which came within the purview of the definition of “workman” under section 2(s) of the Act and the duties he performed, did not come within the exceptions provided in the section.
The State Government could not decide on the question of whether the appellant was a workman or not. The matter, including the question of whether the appellant was a workman or not, should have been referred to the Industrial Tribunal/Labour Court.
M/s Usha International Ltd.(Employer)
State Government was right in refusing to refer the matter as according to the materials produced by the appellant in the conciliation proceedings, he did not come within the categories of employees mentioned in the first part of Section 2(s) of the Act, therefore, he was not a “workman”.
HELD
In order to determine whether an employee is a workman or not, section 2(s) of the Act is to be referred to. When an employee is assigned a particular type of duty and he has been discharging the same since the beginning till the dispute arose, there may not be a difficulty in concluding whether he is a workman within the meaning of Section 2(s). If on the other hand the nature of duties discharged by the employee is multifarious then the further question that may arise for consideration is which of them is his principal duty and which are the ancillary duties performed by him. In such a case determination of the question is not easy at the stage when the State Government is exercising the administrative jurisdiction vested in it for the limited purpose of satisfying itself whether the dispute raised is an industrial dispute within the meaning of Section 2(k) of the Act.
While deciding the question, the designation of the employee is not of much importance and certainly not conclusive in the matter as to whether or not he is a workman under Section 2(s) of the Act.
Therefore, the High Court was in error in confirming the order of rejection of reference passed by the State Government. State Government merely considered the designation of his post held by him, whereas the determination of the question if he was a workman required examination of factual matters.
State Government therefore could not take up to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely.
Appeal allowed. Govt of NCT of Delhi was directed to refer the dispute including the question of whether the appellant is a workman to the Industrial Tribunal/Labour Court.