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TMI Blog2007 (5) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... aceuticals Ltd.) indicated their intention to advertise the post of Industrial Relations Executive . Since members of the staff who fell in the category of Management Staff Grade-III were also entitled to apply for the vacant post which fell in Management Staff Grade-II , an advance staff notice was also taken out by the Company. The same incorporated the text of the advertisement which was to follow. The relevant part from the advertisement which pertains to the duties required to be performed by the selected candidates was as follows:- The selected candidate will advise the Corporate personal Department and through it various establishments of the Company on all matters relating to Labour Laws; operate various applications and claims and appear selectively before Labour authorities such as Conciliation Officers, Labour Courts and Industrial Tribunals. An important aspect of the job will be to assist the I.R. Manager in developing the framework for settlements and in dealing with Unions. This is a challenging job with a span of advice extending to three factories, four branches and fifteen u-country depots. The prospects for a results-oriented man are excellent. Qual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med that termination of his services were illegal, invalid and void on account of non-compliance of the provisions of Section 25N of the Act in as much as no notice or retrenchment compensation had been paid to him. He also contended that clause 17 of the letter of appointment dated 17.3.1977 was illegal in as much as it was against the provisions of Articles 14 and 21 of the Constitution of India, 1950 (in short the 'Constitution') and was void as ultra vires Section 23 of the Indian Contract Act, 1872 (in short the 'Contract Act'). He sought the prayer of reinstatement in service with full back wages with continuity of service and all other attendant benefits. Reference was made under Section 10(1) of the Act. 9. In the reference, the respondent-Company filed its written statement on 8.8.1985. In the written statement the Company disputed the stand that the appellant was a workman within the meaning of Section 2(s) of the Act. It was denied that the termination of his services was illegal for alleged non-compliance of provisions of Section 25N of the Industrial Disputes Act, 1947 or that it violated any provisions of Constitution or of Section 23 of the Contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Company and dismissed Writ Petition No.695 of 1996 filed by the present appellant, thus quashing the award of the Labour Court dated 31.10.1994. 13. It is against this judgment and order passed by the learned Single Judge, the Civil Appeal No.1879 of 1999 came to be filed by the appellant. The appellant subsequently filed Civil Appeal No.170 of 2000 which also impugned the same judgment and order passed by the learned Single Judge. 14. The appellant's main contention before the High Court was that he was a qualified legal person and the nature of his duties, work and functions were to advise the management of the company which required knowledge of law and the matters arising out of the affairs of the company. It was submitted that the petitioner must be said to be employed to do technical work within the meaning of Part 1 of Section 2(s) of the Act. It was further the stand that the Act was amended in 1984 de- linking the words skilled and unskilled from the word manual and by adding the word operational . It was, therefore, pleaded that the finding that the appellant was doing managerial or administrative work is not correct. Learned Single Judge did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is really not of any consequence. Whether a particular employee comes within the definition of workman has to be decided factually. In fact, it has been found as a matter with reference to various factual aspects that the duties undertaken by the appellant overwhelmingly fall in the managerial cadre. So far as the nature of work is concerned, the Division Bench of the High Court took note of several aspects as reflected in para 29 of the judgment. The same reads as follows: In the evidence adduced on behalf of the Company, its Director Shri Rustam Padam Bharucha deposed that the duties of the appellant were to represent the Company in Conciliation proceedings, before Government authorities under the Factories Act. E.S.I. Act, P.F. Act, Contract Labour (Regulation Abolition) Act, to represent the management as an Enquiry officer or as the management's Representative in domestic enquiries, to guide and advise the management's representative in domestic enquiries, to advise him about the line of cross-examination in such enquiries, advise about the quantum of punishment to be inflicted in disciplinary proceedings. To give advise on queries raised by the management per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new Act. In view of the language used and in the context in which this language has been used, we are of the opinion that the High Court was right in coming to the conclusion that the Criminal Court retained jurisdiction and was not completely ousted of the jurisdiction. In that view of the matter, the High Court was therefore right in passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the respondent on furnishing the security. In the premise the appeal must fail and is dismissed. There will, however, be no order as to costs. 23. In the present case, we find that for determining the nature of amendment, the question is whether it affects the legal rights of individual workers in the context that if they fall within the definition then they would be entitled to claim several benefits conferred by the Act. The amendment should be also one which would touch upon their substantive rights. Unless there is a clear provision to the effect that it is retrospective or such retrospectivity can be implied by necessary implication or intendment, it must be held to be prospective. We find no such clear provision or anything to sugge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 25-N, failing which, he will commit an offence. If the employee so dismissed, later becomes a person who is a workman within an expanded definition brought about by a subsequent amendment held to be of retrospective nature, the employer will be rendered punishable for an offence under Section 25 N and Q as this would amount to the employer being punishable for an offence, which he could not have envisaged on the date of dismissal. This would be violative of Article 20(1) of the Constitution. 26. In Burmah Shell's case (supra) it was held as follows: In this connection, we may take notice of the argument advanced by Mr. Chari on behalf of the Association that, whenever a technical man is employed in an industry, it must be held that he is employed to do technical work irrespective of the manner in which and the occasions on which the technical knowledge of that person is actually brought into use. The general proposition put forward by him was that, if a technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and not supervisory work. He elaborated this submission by urging that, if we hold the supervisory work do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special mental training or scientific or technical knowledge. If the man is employed because he possesses such faculties and they enable him to produce something as a creation of his own, he will have to be held to be employed on technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work. 27. In Hussain Mithu Mhasvadkar v. Bombay Iron Steel Labour Board and Anr. (2001 (7) SCC 394) it was held that while deciding the status of the person, nature of work is really relevant. The High Court has referred to the evidence of the appellant. He had admitted in his evidence that apart from the advice to the management from time to time, he had other independent functions such as preparation of draft enquiry report and conducting domestic enquiries. In his cross- examination he had further admitted that he had tende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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