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TMI Blog2005 (2) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... decision was taken to abolish the said post pursuant to the recommendations of the Federation of Cooperative Sugar Mills Ltd., as a result whereof his services were dispensed with. An industrial dispute was raised by the Respondent which was eventually referred to the Labour Court by the Appropriate Government for adjudication as regard the question as to whether the termination of his services was justified. LABOUR COURT: A contention was raised by the Appellant herein before the Labour Court that having regard to the nature of duties performed by the Respondent, he would not be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, 'the Act'). The Labour Court having regard to the rival contentions framed the following issues : 1. Whether the applicant does not fall under the definition of workman; 2. Whether the termination of services of the workman is proper, justified and in order? If not, to what relief he is entitled? The question as to whether the Respondent was a workman or not was taken up as a preliminary issue and by an order dated 24.9.1982, the Labour Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt dated 7.3.2002, the Division Bench merely noticed the submissions made on behalf of the Appellant herein but otherwise the tenor of both the judgments is similar. SUBMISSIONS: Mr. Uday U. Lalit, learned Senior Counsel appearing on behalf of the Appellant, assailing the judgment of the High Court would submit that having regard to the nature of duties performed by the Respondent herein, he could not be held to be a workman within the meaning of Section 2(s) of the Act. The learned counsel would contend that the fact that the Respondent was a practicising advocate and even after joining services, sought for non- practicising allowance, would clearly go to show that his job was akin to that of a practicising lawyer. The learned counsel would urge that the Labour Court, the learned Single Judge as also the Division Bench of the High Court committed a manifest error in holding that the Respondent was a workman on the premise that he was neither a Manager nor a Supervisor. Such an approach, Mr. Lalit, would argue, is contrary to the well-settled principles of law as regard interpretation of Section 2(s) of the said Act. According to the learned counsel, havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (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,. A bare perusal of the aforementioned provision clearly indicates that a person would come within the purview of the said definition if he : (i) is employed in any industry; and (ii) performs any manual, unskilled, skilled, technical, operational, clerical or supervisory work. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004) 8 SCC 387], wherein it was held : Once the ratio of May and Baker (supra) and other decisions following the same had been reiterated despite observations made to the effect that S.K. Verma (supra) and other decisions following the same were rendered on the facts of that case, we are of the opinion that this Court had approved the reasonings of May and Baker (supra) and subsequent decisions in preference to S.K. Verma (supra). The Constitution Bench further took notice of the subsequent amendment in the definition of 'workman' and held that even the Legislature impliedly did not accept the said interpretation of this Court in S.K. Verma (supra) and other decisions. It may be true, as has been submitted by Ms. Jaisingh, that S.K. Verma (supra) has not been expressly overruled in H.R. Adyanthaya (supra) but once the said decision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law. This Court is bound by the decision of the Constitution Bench. This court opined : The definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in preponderance of probability and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out. In this view of the matter, the impugned award and the judgments are not legally sustainable. RES-JUDICATA It is true that the Appellant did not challenge the judgment of the learned Single Judge. The learned Judge in support of his judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the same suffers from an error apparent on the face of the record or for any other reason; in the event the arbitrator or umpire fails to reconsider it and submit his decision within the time fixed therefor by the court. In other words, the word award within the meaning of sub-section (3) would also include a part of the award, which has been the subject-matter of the order of remission by the competent court. In any view of the matter, the applicability of sub section (3) of Section 16 of the Act, in the facts and circumstances of the present case, does not arise inasmuch as the matter is still pending before the arbitrator Furthermore, we are of the opinion that the law operating in the field must be stated with precision and clarity and in that view of the matter also it was necessary for us to deal with the legal question raised by Mr. Lalit. CONCLUSION: For the reasons aforementioned, the impugned judgments of the Labour Court and the High Court cannot be upheld. They are set aside accordingly. However, in the facts and circumstances of this case and particularly in view of the fact that the Appellant was agreeable to pay 50% back w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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