M.Ganesan v. The Management of Tamil Nadu Electricity Board, 791 Anna Salai, Chennai – 600 002 & Ors.

2. The appellant joined in the services of the first respondentin the year 1970. He was lastly working as an Assistant Engineer(Electrical), O & M East, Savagiri, Periyar Electricity System. Hislast drawn wages was Rs.1,272/- per mensem. The appellant was removedfrom service by the final order dated 04.04.1985 with retrospectiveeffect from 08.08.1993 F.N. on certain allegations of misconduct. Theappeal preferred by the appellant against the final order wasrejected by the Chairman of the first respondent by proceedings dated28.10.1986.3. Being aggrieved by the order passed by the Chairman of thefirst respondent, the appellant raised a dispute before the concernedConciliation Officer. But the Conciliation proceedings failed whichresulted in the dispute being referred for adjudication to the secondrespondent. The industrial dispute was taken as I.D.No.245 of 1988 bythe second respondent. The first respondent filed a counter statementand one of the grounds taken in the counter statement was that theappellant will not fall under the definition of 'workman' ascontained in Section 2 (s) of the Industrial Disputes Act(hereinafter referred to as "the Act") and as such the I.D. is notmaintainable. Since the appellant had contended before the LabourCourt that the domestic enquiry conducted against him by themanagement was not fair and proper and was one sided it becamenecessary for the Labour Court to decide whether the domestic enquiryconducted was fair and proper and that question was taken up as apreliminary issue. The appellant was examined as W.W.1 and Exs.W-1 toW-12 were marked on the side of the appellant and on the side of thefirst respondent-Management, Exs.M-1 to M-11 were marked. At thatstage the first respondent filed I.A.No.508 of 1997 praying thesecond respondent to frame the following preliminary issue namely,'Whether the respondent M.Ganesan is a 'workman' within the meaningof Section 2 (s) of the I.D. Act.?" and decide it along with theissue "Whether the enquiry was fair?". 4. The appellant filed his counter affidavit contending that thefirst respondent herein was estopped from raising the saidpreliminary issue since it had all along admitted that the appellantherein was a 'workman'. After considering the rival contentions thesecond respondent held that the first respondent is estopped fromraising the said preliminary issue and for arriving at such aconclusion the Labour Court referred to the Charge Memo and chargesheet issued by the respondent under the certified standing orders ofthe Board describing the petitioner as "workman" and also basingreliance on a decision of the Bombay High Court reported in 1996 IL.L.J. 67 (S.A.SARANG v. W.G. FORGE & A.I. LTD. AND ORS.) andultimately dismissed I.A.No.508 of 1997 as not maintainable by orderdated 26.11.1997. https://hcservices.ecourts.gov.in/hcservices/

5. Aggrieved by the said order of the second respondent thefirst respondent filed W.P.No.8491 of 1998 which was allowed by thelearned Single Judge by the order dated 21.08.2006 and against thatorder the appellant has filed the present writ appeal.6. Learned counsel for the appellant submitted that the learnedJudge has proceeded on the wrong premise that the appellant hadcontended that the Management having appeared before the ConciliationOfficer it should be taken that the management had accepted theappellant's status as "workman" under the Act and therefore there isno necessity to try the issue whether the appellant is a 'workman' asa preliminary issue. He further submitted that the learned Judge hasfailed to see that the contention of the appellant was that in viewof the Management having repeatedly asserted that the appellant was aworkman and in view of the management having taken action against theappellant under the provisions of its certified standing orders forworkmen other than those engaged in the clerical work the managementwas estopped from raising the above said issue before the secondrespondent herein. He further submitted that it was the management'scase that the appellant was a workman to whom its certified standingorders were applicable and therefore it rightly proceeded by framingcharges under its provisions; the learned Judge failed to see thateven the departmental appellate authority asserted that the appellantwas governed only by the Standing Orders for workman other than thoseengaged in clerical work and therefore the appellant was a workman;further before the Conciliation Officer the stand of the Managementwas that the appellant was a workman; in view of the aforesaid factsthe management cannot now turn around and contend that the appellantwas not a workman; this was the stand taken by the appellant beforethe first respondent and the first respondent had referred to theaforesaid facts and has based reliance on the decision of the BombayHigh Court reported in 1996 I L.L.J. 67 (referred to supra). 7. Learned counsel for the appellant submitted that thedecisions referred to and relied upon by the first respondent beforethe learned Single Judge have no relevance to the facts of this casesince the facts of those cases are totally different from the factsof the case on hand. He further submitted that the Apex Court hasheld in number of cases that the Courts should not place reliance onthe decisions without discussing as to how the factual situation ofthe case fits it with the fact situation of the decision on whichreliance is placed. According to the learned counsel the learnedJudge has not compared the facts of this case with the facts of thedecisions on which reliance was placed by the first respondent.8. Learned counsel for the appellant submitted that in theaffidavit filed in support of the writ petition the facts referred toby the second respondent for arriving at such a conclusion and thereliance placed on the decision of the Bombay High Court have not https://hcservices.ecourts.gov.in/hcservices/ been denied or disputed; in the counter affidavit filed in the writpetition also these aspects have been high-lighted by the appellantbut according to the learned counsel unfortunately the learned Judgehas not even considered the contentions raised by the appellant inthe counter affidavit; similarly the learned Judge has not evenreferred to the decision of the Bombay High Court reported in 1996 IL.L.J. 67 (referred to supra). He submitted that the question ofestoppel pleaded and raised by the appellant before the secondrespondent and which has been accepted by the second respondent hasnot at all been considered by the learned Judge.9. Learned counsel for the appellant drew our attention to thefollowing portions of the answer statement filed by the firstrespondent in the Conciliation Proceedings before the ConciliationOfficer:-"v) As per the standing order for workmen engaged incategories other than those in clerical categories one whois unauthorised absence or (sic. 'for') more than 10 daysis liable for disciplinary proceedings. As the petitioner'sabsence from board's service unauthorisedly exceeded 10days and he disobeyed the order of superiors, the AssistantDivisional Engineer called for explanation of thepetitioner for his unauthorised absence and disobeyed oforders in his Memo No.ADE/O & M/Syd/J4/F1/3/1339/83dated.2.9.1983. In his letter dated.9.9.1983 given inperson at Head-quarters mentioned in para 1. above, thepetitioner suppressed all the above facts andmisrepresented to higher authorities."...."10) The following 7 charges were framed by the DivisionalEngineer / South / Erode in the same dt.30.11.1987 againstthe Assistant Engineer, for his unauthorised absence anddisobeyal orders (vide copy enclosed.).CHARGE.I.Thiru M.Ganesan, A.E / O & M / East / Sivagiri has failedto join the 20th batch of Training at Madras and thusdisobeyed the orders of the Superintending Engineer /Periyar Electricity System / Assistant Divisional Engineer,/ O & M / Sivagiri, Assistant Divisional Engineer,Memo.No.ADE/ O & M / SVG / JA / R.1161 dt.6.8.1983.This is a misconduct as per Standing Orders in respect ofWorkmen other than those engaged in Clerical Work. StandingOrder.No. 30 (1).CHARGE.II.Thiru M.Ganesan, Assistant Engineer / O & M / Sivagiri isunauthorisedly absented from duty from 8.8.83 F.N. Onwards.This is a misconduct as per standing orders in respect ofworkmen other than those engaged in clerical work. StandingOrder No.30 (XIII). https://hcservices.ecourts.gov.in/hcservices/ CHARGE No.III.Thiru M.Ganesan, Assistant Engineer / O & M / Sivagiri Easthas disobeyed the orders of the Assistant DivisionalEngineer / O & M / Sivagiri and refused to rejoin in theold post vide.ADE/ O & M / Sivagiri Memo.No.ADC/ O & M /JA/SVC/JA/F.1/1252/83 dt.22.6.1983.This is a misconduct as per standing orders in respect ofworkmen other than those engaged in clerical work. StandingOrder No.30 (1)."...."20) ...... Further at the time of D.P. he was a workmangoverned under standing orders for workmen and the chargeswere framed under Standing Orders. The D. & A. Regulationscited by him is applicable to officers."....24) ..... The petitioner who was working as AssistantEngineer was borne on conferred class.II category andgoverned under Standing Orders. The Orders on thedisciplinary proceedings on the petitioner by the RegionalChief Engineer / Coimbatore are in order."10. In the counter statement filed in I.D.No.245 of 1998 thefirst respondent in paragraph 13 has stated as under:-"13) The action of the petitioner was in violation of therelevant standing orders applicable to him. In thecircumstances, the petitioner was issued with a charge sheetdt. 30.11.1983 enumerating the following acts ofmisconduct:-I) Thiru M.Ganesan, Assistant Engineer /O & M/East/Sivagirihas failed to join the 20th Batch of Training at Madras andthus disobeyed the orders of the Superintending Engineer /Periyar Electricity System / Assistant Divisional EngineerMemo.No.ADE/O & M / STC/JA/TR.1161/83 dt.6.8.1983.II) This is a misconduct as per standing orders in respectof workman other than those engaged in clerical work.,Standing Order No.30 (i).III. This is a misconduct as per standing orders in respectof workman other than those engaged in Electrical Work,Standing Order. No.30 (vii). Provides that absence withoutleave for more than 10 consecutive days without sufficientcause constitute a misconduct.IV. Thiru M.Ganesan, Assistant Engineer / O & M / Electrical/ Sivagiri East has disobeyed the orders of the AssistantDivisional Engineer / O & M / Sivagiri and refused to rejoinin the old post vide ADE/ O & M / SivagiriMemo.No.ADE/DEMSEO / JA/F1/R.1252/83 dt.22.8.83.This is a misconduct as per standing orders in respect ofworkman other than those engaged in clerical work, standingorder.No.30 (i)." https://hcservices.ecourts.gov.in/hcservices/ In paragraph 26 of the same counter affidavit it is stated as under:-26) ...... The petitioner who was working as AssistantEngineer, was borne on conferred class I.category andgoverned by the relevant standing orders."11. Learned counsel for the appellant submitted that the secondrespondent-Labour Court by properly considering the aforesaid factsand admissions and by applying the correct legal principles hasrightly dismissed I.A.No.508 of 1997 and all the aforesaid facts andadmissions made by the first respondent have not at all beenconsidered by the learned Judge. He submitted that in view of theclear, unambiguous and consistent admissions made by the firstrespondent herein that the appellant was a 'workman' the firstrespondent is estopped from raising the issue namely "whether therespondent named Ganesan is a 'workman' within the meaning of Section2 (s) of the I.D. Act?"12. Learned counsel for the appellant drew our attention to thefollowing paragraph contained in the order passed by the Chairman ofthe first respondent dated 28.10.1996 dismissing the appellant'sappeal:-"4. Further his contention that he cannot be dealt withunder the Standing Orders is not correct. According to theBoard's Memo No.136345/736/II10/78-6, dated 10.10.1980, theAssistant Engineers of the Board are governed by StandingOrder for workmen other than those engaged in Clerical workof Tamil Nadu Electricity Board and the amendment toservice Regulation No.93 issued in B.P.Ms. (FB) No.40 hascome into effect only from 18.5.85, therefore the ordersissued by Regional Chief Engineer in Memo dated 4.4.1985 isin order."Learned counsel submitted that when the appellant himself contendedbefore the Chairman of the first respondent that he could not havebeen proceeded under the certified standing orders of the Board thatcontention was rejected holding that the petitioner is a workman. Insupport of his aforesaid contentions the learned counsel relied onthe decision of the Bombay High Court reported in 1996 I L.L.J. 67(referred to supra). In the said decision, His Lordship Mr. JusticeB.N.Srikrishna as his Lordship then was in paragraph 6 of thedecision has laid down as under:-"6. Uniformly, in each Show Cause Notice and charge-sheet,it has been alleged that the act imputed to the Petitionerwas a misconduct under the Model Standing Orders. It is notpossible to ignore the cumulative effect of this conduct onthe part of the First Respondent Employer. To what extent,the contention of Dr. Kulkarni needs to be accepted. If anemployer continuously and consistently proposes and takesaction against its employee on the footing that he iscovered by the Model Standing Orders (thereby implying that https://hcservices.ecourts.gov.in/hcservices/ the employee is a "workman" within the meaning of the Act),then such employer must be estopped from denying the saidfact when a dispute regarding to the dismissal of theemployee finally lands up before an industrial adjudicator.It is unfortunate that the Third Respondent-OfficialLiquidator has not chosen to appear before the Court andassist the Court. However, the Show Cause Notices and Chargesheet pointed out to me cannot be ignored and due weightagewill have to be given to them. Considering the cumulativeeffect of these documents, I am of the view that thePetitioner was a "workman" within the meaning of Section 2(s) of the Act and, therefore, the impugned order needs tobe interfered with."13. In 1970 LAB. I.C. 334 (Vol. 3 C.N.77) (DB) (M/s. N.E. Worksv. G.Naicker), the facts, in nutshell are that the dispute betweenthe Management and a workman was referred for conciliation to theConciliation Officer; the conciliation proceedings commenced beforethe conciliation officer; the management was represented by its WorksManager; an agreement was signed by the workman and the WorksManager; since the agreement was not implemented by the Management,the workman sought to implement the agreement two years later; theManagement contended that the settlement signed by the Works Managerwas not binding on the management as he was not authorised to do so;while considering the said contention in paragraph 6 of the decisionit has been laid down as under:-"6. In our view, the entire matter turns upon a far simplerissue. Whether the Works Manager did or did not have theauthority to proceed so far as to sign the agreement, isnot the point which is really relevant. The point is thatthe firm permitted the Works Manager to appear on itsbehalf, and to take part in the conciliation proceedings.He held out that he was entitled to represent the firm forall purposes, and he signed the agreement as representingthe firm. The opposite party (the workman) might well haveconsented to the agreement altering his position in respectof defences or contentions open to him, because he waslabouring under the belief that the Works Managerrepresented the firm for all purposes. The firm cannot nowbe permitted to resile from the representation, after theopposite party had altered its position, and attempt to gobehind the agreement; therefore, this is a clear case ofEstoppel, and it amounts also to Estoppel because ofconduct altering the situation, and rights of parties."14. In the decision reported in 1971 (II) L.L.J. 581 (SC)(INDIAN LINK CHAIN MANUFACTURERS LTD. v. WORKMEN) in paragraph 15 itis held as under:- https://hcservices.ecourts.gov.in/hcservices/ "15. The stand taken by the company that there is nosettlement in force covering the demands raised by theworkmen is clear. In the statement of claim the GeneralSecretary of Sarva Shramik Sangh representing the workmensaid that the private agreement between the company andMumbai Kamgar Union dated 5th April 1963 was duly terminatedand thereafter a charter of demands was presented on 4-2-65.Thereafter the Assistant Labour Commissioner tried toconciliate and in his report Ex.U.6 while stating thatconciliation proceedings have ended in a failure, relyingupon the letter of the management, stated that there was nosubsisting settlement / agreement or award presently in thisdispute. The admission by the management is said to be madeunder a mistake. We do not think this is a satisfactoryexplanation of a categorical statement. In our view theletter of 20th March, 1965 must at any rate be deemed to bea notice of termination, because there is a categoricalstatement that the settlement has been terminated on31.12.64. Even if there is no evidence of written noticeterminating it on the date specified, the letter which saidthat it had so terminated must be taken as the requisitenotice and, if so, the reference to adjudication under theAct has been made long after the expiry of the two months,i.e., on 27.12.65. If we view the matter slightlydifferently, the result is the same, because when both theparties to the dispute proceeded on the specific plea thatthere was no settlement binding on either of them in respectof the wages and dearness allowance, even prior toconciliation, the Government had no option, on a failure ofthe conciliation proceedings and on being informed by thewritten representation of the appellant that there was nosettlement in force, to refer the dispute to the Tribunal.The management, therefore, is estopped from now taking thestand that the settlement was not put an end to or that thereference was invalid".15. Learned counsel also based reliance on a decision of theApex Court reported in AIR 2003 SUPREME COURT 2661 (Ashwani KumarSingh v. U.P.Public Service Commission). In this decision the ApexCourt in paragraphs 11, 13 and 14 has laid down as under:-"11. Courts should not place, reliance on decisions withoutdiscussing as to how the factual situation fits in with thefact situation of the decision on which reliance is placed.Observations of Courts are not to be read as Euclid'stheorems nor as provisions of the statute. Theseobservations must be read in the context in which theyappear. Judgments of Courts are not to be construed asstatutes. To interpret words, phrases and provisions of a https://hcservices.ecourts.gov.in/hcservices/ statute, it may become necessary for Judges to embark intolengthy discussions, but the discussion is meant to explainand not to define. Judges interpret statutes, they do notinterpret judgments. They interpret words of statutes; theirwords are not to be interpreted as statutes".13. Circumstantial flexibility, one additional or differentfact may make a world of difference between conclusions intwo cases. Disposal of cases by blindly placing reliance ona decision is not proper.14. The following words of Lord Denning in the matter ofapplying precedents have become locus classicus:"Each case depends on its own facts and a closesimilarity between one case and another is not enoughbecause even a single significant detail may alter theentire aspect in deciding such cases, one should avoidthe temptation to decide cases (as said by Cordozo) bymatching the colour of one case against the colour ofanother. To decide, therefore, on which side of the linea case falls, the broad resemblance to another case isnot at all decisive".xxx xxx xxx xxx xxx "Precedent would be followed only so far as it marks thepath of justice, but you must cut the dead wood and trimoff the side branches, else you will find yourself lostin thickets and bunches. My plea is to keep the path tojustice clear of obstructions which could impede it."16. Countering the said submissions the learned counsel for thefirst respondent contended that simply because the charge memo andcharge sheets have been issued and the certified standing orders inrespect of the 'workman' other than those engaged in clerical workand the first respondent had not contended before the ConciliationOfficer that the appellant is not a workman it will not estop orprevent the first respondent from raising such a question before theLabour Court, the second respondent herein. He submitted that in thecounter statement filed in the I.D. itself the first respondent hascontended that since the appellant is not a workman the above I.D. isnot maintainable. He submitted that the dispute referred foradjudication before the second respondent relates to the non-employment of the appellant and hence one of the issues which arisesfor consideration before the second respondent is whether theappellant is a 'workman' within the meaning of Section 2 (s) of theAct. He submitted that if it is ultimately held by the Labour Courtthat the appellant is not a workman within the meaning of Section 2(s) of the Act none of the other issues on merits will arise forconsideration. He submitted that in the light of the nature of thedispute raised before the second respondent it is open to the partiesto contend that the appellant is not entitled to the benefits of theAct and wherever such a preliminary issue is raised it is for the https://hcservices.ecourts.gov.in/hcservices/ workman to establish that he is a workman. He in support of his saidcontention based reliance on a decision of the Apex Court reported in2001 (II) L.L.J. 1520 (H.M.Mhasvadkar v. Bombay Iron & Steel LabourBoard). In the said decision in paragraph 5 the Apex Court hasobserved as under"-"5. On a careful consideration of the respectivesubmissions of the learned counsel on either side, we areof the view that in a case of the nature where the LabourCourt as well as the High Court entertained doubts aboutthe status of the appellant as a workman within the meaningof Section 2(s) of the Industrial Disputes Act, instead ofembarking upon an adjudication in the first instance as towhether the respondent-Board is an industry or not so as toattract the provisions of the Industrial Disputes Act,ought to have refrained from doing so and taken up thequestion about the status of the appellant for adjudicationat the threshold and if only the finding recorded wasagainst the appellant refrained from adjudicating on thelarger issue affecting the various kinds of otheremployees, as to the character of the Board, as an industryor not. The larger issue should have been entertained forconsideration only in a case where it is absolutelynecessary and not when the claim before it could have beendisposed of otherwise without going into the nature andcharacter of the undertakingitself. .............................. In view of this position in law, it becomes all the morenecessary to first undertake an adjudication of thequestion as to status of the appellant."17. Learned counsel for the first respondent basing reliance onthe said decision submitted that since the first respondent isquestioning the status of the appellant as a workman within themeaning of Section 2(s) of the Act, the Labour Court ought to havedecided that issue as a preliminary issue and allowed I.A.No.508 of1997. He submitted that the learned Single Judge by applying thecorrect principles of law has rightly set-aside the order of theLabour Court and the order of the learned Judge is not liable to beinterfered with.18. We have carefully considered the respective submissions madeby the learned counsel on either side and the decisions referred toand relied upon by them.19. The learned Single Judge in his order has observed that thefinding given by the Labour Court based on presumption isunsustainable and the same is to be treated as perverse finding butwe are unable to agree with the aforesaid observations made by thelearned Single Judge for the following reasons. In paragraph 7 of the https://hcservices.ecourts.gov.in/hcservices/ order the Labour Court has pointed out that in Ex.R-5 charge memoissued to the appellant by the first respondent three misconductswere alleged against him and those misconducts were defined by Clause30 of the Standing Orders in respect of 'workman' other than thoseengaged in clerical work. The Labour Court has also pointed out thatin respect of those misconducts domestic enquiry was conducted and onthe basis of the report of the Enquiry Officer namely Ex.R-10 theappellant was dismissed from service. In the order of dismissal itis stated that the appellant has been dismissed from service forthree proved charges as per Clause 30 of the Standing Orders whichwas applicable in respect of workman other than those engaged inclerical work. The Labour Court has further pointed out that evenbefore the Conciliation Officer the appellant management has notcontested that the petitioner was not a workman. These were thecontentions put forth by the appellant before the Labour Court andthe same on a careful consideration were accepted by the LabourCourt. By basing reliance on the judgment of the Bombay High Courtreported in 1996 (I) L.L.J. 67 (referred to supra) the Labour Courthas also observed that the appellant, as per the certified standingorders applicable in respect of workman other than those engaged inthe clerical work, was charge sheeted by the first respondent and atthe conclusion of the disciplinary action he was dismissed fromservice only by treating him as a workman. According to the LabourCourt in such circumstances it is not open to the first respondent tocontend that the appellant is not a workman as defined in Section 2(s) of the I.D. Act. But the aforesaid reasons recorded by theLabour Court have been omitted to be considered by the learned Judge.Hence we are unable to agree with the aforesaid observations made bythe learned Judge.20. As rightly contended by the learned counsel for theappellant the issue of estoppel pleaded by the appellant and acceptedby the Labour Court has not at all been either referred to orconsidered by the learned Single Judge. Similarly the decision ofthe Bombay High Court reported in 1996 (I) L.L.J. 67 (referred tosupra) has also not been referred to or considered by the learnedJudge. Whereas the learned Judge has referred to and relied upon thefollowing decisions cited by the first respondent Management namely(i) 1957 (2) L.L.J. 1 (Newspapers Ltd., v. Industrial Tribunal, UttarPradesh and Others), (ii) 2004 (4) LLN 753 (Mukesh K. Tripathi v.Senior Divisional Manager, Life Insurance Corporation and Others) and(iii) 1993 (I) LLJ 169 (Edwin A. Daniel and another v. Labour Court,Coimbatore and another).21. In all the aforesaid three decisions the facts are totallydifferent from the facts of the case on hand. We are of the viewthat the facts of those cases are not similar to the facts of thecase on hand and as such the ratio of those decisions cannot beapplied to the facts of this case. The learned Judge has also not https://hcservices.ecourts.gov.in/hcservices/ stated that the facts of those cases are similar to the facts of thecase on hand and in fact there is no discussion on that aspect. Aslaid down by the Apex Court in the decision reported in AIR 2003SUPREME COURT 2661 (referred to supra) Courts should not placereliance on decisions without discussing as to how the factualsituation of the case fits in with the fact situation of the decisionon which reliance is placed. In the very same decision it has beenfurther observed that the circumstantial flexibility, one additionalor different fact may make a world of difference between conclusionsin two cases. With respect to the learned Judge, we would like topoint out that in the case on hand all through the proceedings, thefirst respondent had been treating the appellant as a workman andthat was the reason why the proceedings were initiated against himunder the certified standing orders of the first respondent inrespect of workman other than those engaged in clerical work. Infactpunishment also has been imposed only under the said standing ordersand before the Conciliation Officer also it was not contended by thefirst respondent that the appellant is not a workman. These factsmake a lot of difference between the case on hand and the casesrelied upon by the first respondent before the Labour Court. Whereasthe facts of the present case and the facts of the case relating to1996 I L.L.J. 67 (referred to supra) are similar and the same hasbeen considered by the Labour Court also but unfortunately thelearned Judge has failed to consider the same.22. Similarly the legal principles laid down in 1970 LAB. I.C.334 (Vol. 3 C.N.77) (DB) (referred to supra) and 1971 (II) L.L.J. 581(SC) (referred to supra) are squarely applicable to the facts of thiscase. Apart from that in yet another decision reported in 2002 (1)L.L.N. 317 (SHAW WALLACE & CO. LTD. v. P.O., SECOND ADDL. L.C.) Mr.Justice D.Murugesan in a similar factual background has held asunder:-"6. In order to find out as to whether the secondrespondent is a workman or not, it must be seen that thewrit-petitioner management itself while issuingchargesheets, dated 9 August 1980 and 27 December 1980, hastreated the second respondent as a workman as found fromthe contents of the charges. In the chargesheet, dated 27December 1980, it is stated as follows:-"You were on duty on the 'B' shift on 26 December1980.It is alleged that at about 4.30 P.M. on 26December 1980, you abused a co-employee C.Palayamusing vulgar words and threatened him of his life.It is also alleged that you were in a drunken statewhen you were on duty, and created disturbanceinside the factory. It is further alleged that youwere found missing from the factory from 7.30 P.M.till the end of the shift. https://hcservices.ecourts.gov.in/hcservices/ The above allegations, if proved will amount tomisconduct within the meaning of Cls. 14 (ii), 8,16, 21 and 28 of the Standing Orders of the companyand you are requested to submit your explanation inwriting within 3 days of receipt of this letter whydisciplinary action should not be taken againstyou".A reading of the above chargesheet indicates that thesecond respondent was treated as a workman and was calledfor explanation as to the charges of misconduct within themeaning of Cls. 14 (ii), 8, 16, 21 and 28 of the StandingOrders which are applicable to the workmen. Having treatedthe second respondent as a workman, whether it would bepermissible and would be open to the writ-petitioner totake a different stand before the Labour Court contendingthat the second respondent is not a workman. In my view,such a stand taken by the writ-petitioner-management cannotbe permitted as the writ-petitioner-management are estoppedfrom taking such a stand when the second respondent himselfwas treated as a workman by the writ-petitioner-managementwhile issuing the chargesheet for the alleged misconductand for violation of some of the provisions of the StandingOrders applicable to the workmen. Whether an individual isa workman or not is to be decided on the facts andcircumstances of each case. When the management treated thesecond respondent as a workman for the purpose of issuingchargesheet and conduct of enquiry, allowing the samemanagement to take a different stand before the LabourCourt would be otherwise encouraging the management toshift its stand according to the needs and choice and hencethe same cannot be permitted."23. We are in full agreement with the aforesaid decision of Mr.Justice D.Murugesan. Having treated the appellant as a workman,whether it would be permissible and would be open to the firstrespondent to take a different stand before the Labour Courtcontending that the appellant is not a workman, in our consideredview, such a stand taken by the first respondent Management cannot bepermitted as the first respondent Management is estopped from takingsuch a stand when the first respondent itself treated the appellantas a workman while issuing the charge sheet for the allegedmisconduct and for violation of some of the provisions of theStanding Orders applicable to the workman. As pointed out by Mr.Justice D.Murugesan, whether an individual is a workman or not is tobe decided on the facts and circumstances of each case. When themanagement treated the appellant as a workman for the purpose ofissuing charge-sheet and conduct of enquiry, allowing the samemanagement to take a different stand before the Labour Court would beotherwise encouraging the management to shift its stand according to https://hcservices.ecourts.gov.in/hcservices/ the needs and choice and hence the same cannot be permitted. We arein full agreement with the aforesaid view of Mr. Justice D.Murugesan.24. As far as the contention of the first respondent based onthe decision of the Apex Court reported in 2001 (II) L.L.J. 1520(referred to supra) is concerned it has to be pointed out that thesaid decision has no applicability to the facts of this case sincethe facts of that case are totally different. In that case since theLabour Court as well as the High Court entertained doubts about thestatus of the appellant as a workman within the meaning of Section 2(s) of the Industrial Disputes Act, the Apex Court pointed out thatinstead of embarking upon an adjudication in the first instance as towhether the respondent-Board is an industry or not so as to attractthe provisions of the Industrial Disputes Act, they ought to haverefrained from doing so and taken up the question about the status ofthe appellant for adjudication at the threshold. But in the case onhand the Labour Court has not entertained any doubt about the statusof the workman, the appellant herein, in view of the categoricaladmissions made by the first respondent Management. It has to bepointed out that the first respondent Management had all throughtreated the appellant herein as a workman and proceeded against himas such under the certified Standing Orders in respect of the workmanother than those engaged in the clerical work and therefore in ourconsidered view the question of trying the status of the appellantnamely as to whether he is a workman or not as a preliminary issuedoes not arise. For the said reason the decision of the Apex Courtreported in 2001 (II) L.L.J. 1520 (referred to supra) has noapplicability to the facts of this case.25. For the aforesaid reasons the above writ appeal is allowedand the order of the learned Single Judge dated 21.08.2006 passed inW.P.No.8471 of 1998 is hereby set-aside. Consequently the connectedMP is closed. The second respondent-Labour Court is hereby directedto dispose of I.D.No.245 of 1998 within a period of two (2) monthsfrom the date of receipt of a copy of this judgment. Sd/Asst.Registrar/true copy/Sub Asst.Registrarsrk https://hcservices.ecourts.gov.in/hcservices/ To1. The Management of Tamil Nadu Electricity Board, 791 Anna Salai, Chennai – 600 002.2. The Presiding Officer, I Additional Labour Court, Chennai.1 cc To Mr.T.S.Gopalan, Advocate, SR.14586.1 cc To Mr.A.R.Gokulnath, Advocate, SR.14654.W.A.No.1358 of 2006 & M.P.No.1 of 2006 NM(CO)RVL 27.04.2009