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TMI Blog2006 (12) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... hat His work is not up to the mark; therefore he is of no use to us . However, it was decided to give the respondent No.1 an opportunity to improve his performance. It is the case of the appellants that the respondent No.1 was orally informed about the above decision of the appellants. 3. On the expiry of the probation period of the respondent No.1, a letter dated 04.06.1983 was issued to the respondent No.1 stating that, Your performance has not been found satisfactory and as such, you have failed to complete the probationary period successfully . On 06.02.1985, respondent No.1 raised an industrial dispute which was referred for adjudication by respondent No.2 the State of Uttar Pradesh, to the Labour Court in the following terms, Is termination of the services of the workman Swayam Prakash Srivastava (son of Hori Lal Srivastava), Legal Assistant by the employers vide their order dated 04.06.1983 is right and/or legal? If not, the concerned workman is entitled to which benefit/relief and along with which other details. 4. On 25.05.1987, the Labour Court delivered an award holding that, the respondent No.1 was a workman and the termination was illegal and that respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Whether the High Court failed to appreciate that the award was perverse inasmuch as it directed the reinstatement with backwages of a probationer whose services had been discontinued upon completion of the probationary period on account of unsatisfactory work? 3. Whether the High Court failed to appreciate that respondent No.1 having worked as a probationer for just a year had enjoyed over 15 years of wages without having worked for the same and that in the facts and circumstances even if the termination was held to be illegal, these wages paid should have been held to be treated as compensation in lieu of reinstatement? The appellant Mill was represented before us by learned Counsel Mr.Sanjay Ghose, assisted by Ms. Anitha Shenoy, advocate. Mr. Bharat Sangal, learned Counsel appeared for the respondents. 9. The appellants stated that respondent No.1 was not a workman as understood under the Industrial Disputes Act. The respondent No.1 was being paid a sum of ₹ 866.51 as salary and his work was essentially of supervisory nature. The nature of respondent No.1, Mr. Swayam Prakash Srivastava's work was to supervise the court cases and conduct them in the courts for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected was that the respondent be reinstated as a probationer and given the fact that the Mill itself had been closed down and the appellant declared a Sick Industrial Company in respect of which a revival scheme was sanctioned, the decision of this Court in Rolston John v. Central Government Industrial Tribunal-cum-Labour Court and Ors. AIR1994SC131 would be applicable and the logical relief would be to be compensated in lieu of reinstatement, which in the given case could be deemed to set off and satisfied by the payment received by respondent No.1 of wages pursuant to the interim order of the High Court dated 02.12.1987. It was further submitted that the huge financial liability of ₹ 7 lakhs in wages to a probationer who had worked for only about a year was something which the appellant, being a Sick Industrial Company, would find impossible to bear and if this liability is saddled upon the appellant, it could prejudice the sanctioned scheme for revival of two remaining mills. Almost 6898 employees have been retired under a voluntary retirement scheme. That the High Court erred in dismissing the writ petition of the appellant on the ground that the appellant had not complie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Respondent No.1 was not issued a charge sheet or notice during the period before the termination of his services. It was contended that respondent No.1 was appointed as legal assistant but he was not doing any work of supervisory nature and that no body was working under him. Further it was contended that respondent No.1 used to do parokari on behalf of the Mills and that this type of work cannot be called as work of supervisory nature and therefore respondent No.1 will qualify to be workman as defined under Section 2(z) of the U.P. Industrial Disputes Act (U.P.I.D Act), 1947. 15. It was stated that the termination order comes under the definition or retrenchment and the employers have not followed the legal process. The workman has stated that the termination order comes under the definition of retrenchment under Section 2 of the U.P.Industrial Disputes Act. The definition of retrenchment is very elaborate in this section and in this connection a decision of this Court was cited, Karnataka State Road Transport Corporation, Bangalore v. Abdul Qadir which appears on 89 F.L.R. : 1984 48, where it was observed that, to protect the weak against the strong this policy of comprehen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 678SC , J.N. Srivastava v. Union of India (1999)ILLJ546SC and Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bahwan Ltd. and Anr. (1984)IILLJ10SC where this Court has consistently held that in case of illegal termination of service of a workman, the workman is deemed to be continuing in service and is entitled to reinstatement with full backwages. We heard the parties in detail and have perused through all the written records placed before us. We are of the opinion that the arguments of the appellant merits favourable consideration for the reasons stated infra. 17. With regard to the question, whether respondent No.1 is a 'workman' under the U.P.I.D Act, 1947, we are of the view that respondent No.1 is not a workman under the Industrial Disputes Act. Section 2(z) of the U.P.I.D Act that is similar to Section 2(s) of the Industrial Disputes Act, 1947 states that: 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regards the dominant nature thereof. With a view to give effect to the expression to do 'any manual, unskilled, skilled, technical, operational, clerical or supervisory work', the job of the employee concerned must fall within one or the other category thereof. It would not be correct to contend that merely because the employee had not been performing any managerial or supervisory duties, ipso facto he would be a workman The Respondent had not been performing any stereotype job. His job involved creativity. He not only used to render legal opinion on a subject but also used to draft pleadings on behalf of the appellant as also represent it before various courts/authorities. He would also discharge quasi- judicial functions as an enquiry officer in departmental enquiries against workmen. Such a job, in our considered opinion, would not make him a workman. 20. In A. Sundarambal v. Govt. of Goa, Daman and Diu (supra), question arose as to whether a teacher employed in a school is a 'workman' under Section 2(s), here this Court was of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legal Assistant in June 1982 in a supervisory capacity and the work of the respondent No.1 was to supervise the court cases and whenever necessary to prepare draft reply to matters that are pending in the court. He also deposed that the work of the respondent was not satisfactory and in this regard a note was issued to the General Manager. In cross-examination the witness deposed that he has no document to prove that the nature of work of the respondent was supervisory. However this was not given any kind of serious consideration by the High Court while deciding on the claim made by the respondents. 22. Furthermore if we draw a distinction between occupation and profession we can see that an occupation is a principal activity (job, work or calling) that earns money (regular wage or salary) for a person and a profession is an occupation that requires extensive training and the study and mastery of specialized knowledge, and usually has a professional association, ethical code and process of certification or licensing. Classically, there were only three professions: ministry, medicine, and law. These three professions each hold to a specific code of ethics, and members are almost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Unless a letter is issued to you to the effect that you have completed your probation satisfactorily, the probation period shall be deemed to have been extended. No increment shall be granted to you unless you have completed the said probationary period satisfactorily and a letter to this effect has been issued to you. 4. After you having completed the probation satisfactorily, your services can be terminated by the appointing authority on giving you one month's notice or pay in lieu thereof. If you wish to resign from the service of the Mill, you will have to give one month's notice or pay in lieu thereof to the Mill. 5. ... 6. Your employment will be governed by all the rules and regulations, terms and conditions of service, administrative orders and/or standing orders presently in force or as may be framed, amended, altered or extended from time to time and as applicable to the employees of the Mills. 7. ... 8. ... 9. ... 10. ... 11. ... 12. On attaining the age of 58 years, you shall have no claim to be continued in the service of the Mill thereafter and your services shall come to an end automatically. 13... 14... Yours faithfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting aside an order of reinstatement. In the instant case, though the termination was as far back as in 1983, the Industrial Adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab v. : Bhagwan Singh (2002)9SCC636 has held that even if the termination order of the probationer refers to the performance being 'not satisfactory', such an order cannot be said to be stigmatic and the termination would be valid. 27. Further the Labour Court issued notices to both parties and after adducing evidence and hearing both the parties, it has recorded a finding that the termination of services of the concerned workman, during his service, was neither based on unsatisfactory work nor the same could have been proved before the labour court and therefore, the labour court arrived at the conclusion and recorded a finding that the services of the workman have been terminated by way of victimization and unfair labour practice. Aggrieved by the aforesaid award, the employer-petitioner has come before this Court by means of the present writ petition. An application has been filed by the workman concerned that the employer has not complied with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be necessary if the retrenchment is under an agreement which specifies a date for the termination of service. In the present case on the perusal of the appointment letter it is clear that no such notice needs to be issued to respondent No.1. 30. The respondents had referred to many cases with regard to backwages to be paid to the retrenched workman. The learned Counsel cited a string of decisions of this Court in support of this contention. We are however not addressing this plea of the respondents, as we have already observed that respondent No.1 is not a workman under the Industrial Disputes Act, 1947 and the U.P.I.D Act, 1947 and also that the retrenchment was not illegal and therefore the question of backwages do not arise. 31. In the result, we allow the appeal preferred by the appellants and set aside the award of the Labour Court and the orders of the High Court. We also observe that no recovery certificate needs to be issued in favour of respondent No.1, in lieu of the show cause notice issued by the Deputy Labour Commissioner. However we state that the salary that has been already paid to respondent No.1 under the orders of the court will not be recovered from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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