MPHASIS LIMITED v. SRI ASHOK S. NARAYANPUR

8. Heard Sri Madhukar M. Deshpande, learned counsel for the petitioner and Sri. P.D. Subrahmanya, learned counsel for the respondent.

9. Section 2(s) of the ID Act defines ‘workman’ as under: “2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,— (s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or - 5 - implied, and for the purposes of any proceeding under 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 ten thousand 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.”

10. For an employee in an industry to be a ‘workman’ under the definition, after its amendment by the amending Act of 1982, it is manifest that he must be employed to do:- - 6 - a) Manual work b) Unskilled work c) d) Skilled work Technical work e) Operational work f) Supervisory work

11. The question as to whether an employee is a ‘workman’ as defined under Section 2(s) of the ID Act has to be determined with reference to his principal nature of duties and functions. Such a question is required to be determined with reference to the facts and circumstances of the case and the material on record, there is no straight jacket formula which can be determinative of the real nature of duties and functions being performed by an employee in all cases. However, where an employee is employed to do any type of work enumerated in the definition, there is hardly any difficulty in treating him as a ‘workman’ under the appropriate classification, but in the complexity of industrial or commercial organization, quite a large number of employees are often required to do more than one kind of - 7 - work. In such cases, it becomes necessary to determine under which classification, the employee will fall for the purpose of deciding whether he comes within the definition of ‘workman’ or goes out of it. In Burmah Shell Oil Storage & Distribution Coof India Vs. Burmah Shell Management Staff Association & Ors1 (Burmah Shell Oil Storage) held that in order to bring an employee within the ambit of the definition of ‘workman’, the nature of work performed by him must fall within one or other of the above seven classifications. The rationale of this holding was that if every employee of an industry was to be a ‘workman’, except those four in the exceptions, these seven classifications need not have been mentioned in the definition and the workman could have been defined as a person employed in an industry except in a case where he was covered by one of the exceptions. Hence, the specifications of seven types of work obviously were intended to lay down that an employee is to become a ‘workman’ only if he is employed to do work of one of those types, while there may be employees who, in doing 1 1971 AIR 922 - 8 - any such work, would not be out of the scope of the work without any resort to exceptions. In the said case, the person employed in canvassing and promoting sales for an industry was held to be an employee, but he would not fall within the definition of ‘workman’ because of his work and would not fall within any of the classifications enumerated in the definition.

12. In Management of M/S May and Baker (India) Ltd. Vs. Workmen2 (M/S May and Baker), the question was whether the representative would be included in the word ‘workman’ under Section 2(s) of the ID Act. The Apex Court held that the work of the employee was not as defined under the clauses of ‘workman’ under Section 2(s) of the ID Act and held that the Tribunal would not have jurisdiction to order reinstatement.

13. The Apex Court the case of Miss A. Sundarambal Vs. Government of Goa, Daman and DIU 2 AIR 1967 SC 678 - 9 - and others3 (Miss A. Sundarambal) held that in order to be a ‘workman’ a person should be one who satisfy the following condition: i. ii. He should be the person employed in an industry for hire or reward; He should be engaged in skilled or unskilled manual, supervisory, technical or clerical work and; iii. He should not be a person falling under any of the four clauses, i.e., (i) to (iv) mentioned in the definition of workman in Section 2(s) of the ID Act.

14. The Apex Court, placing reliance in the case of M/S May and Baker, held that if the employee therein did not satisfy any of the above descriptions, he would not be a ‘workman’ even though he is an employee of an industry. The Apex Court in the said decision held that the teacher employed in an educational institution cannot be called a ‘workman’ because imparting of the education, which is the main function of the teacher cannot be considered as skilled 3 (1998) 4 SCC 42 - 10 - or unskilled, managerial or supervisory work or technical work or clerical work.

15. The respondent in the instant case admits that he is a Project Lead and he prepares the estimates and plans for work products and also prepares designs and quotes. Ex.M.13 is the self-evaluation prepared by the respondent and it is mentioned in Ex.M.13 that he is used to providing functional and technical work on a regular basis to his team as well as clients and being a project lead, he is to share domain knowledge to mitigate the problems. These statements made by the respondent are self-serving. It is also relevant to note that the respondent, in unequivocal terms, has deposed that he is working as a project lead, a managerial position in the petitioner-company and he is not a workman. The relevant portion of the evidence of W.W.1 is extracted below: “5. £Á£ÀÄ ¨ÁåZÀÄ®gï D¥üï EAfäAiÀÄjAUï E£ï PÀA¥ÀÇålgï ¸ÉÊ£ïì zÀ°è «zÁå¨sÁå¸À ªÀiÁr ¥ÀzÀ«zsÀgÀ£ÁVzÉÝãÉ. £Á£ÀÄ DgÀA¨sÀzÀ°è ¸Á¥üÀÖªÉÃgï mÉæ,Ê,¤ JAzÀÄ £ÉêÀÄPÁw UÉÆArzÉÝ£ÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ ¸ÀzÀj - 11 - ¥ÀzÀ«ÃzsÀgÀ£ÁVzÀÝjAzÀ DgÀA¨sÀzÀ°è £À£Àß £ÉêÀÄPÁwAiÀÄ£ÀÄß D jÃw 1996 gÀ°è £À£ÀUÉ ¥ÀzÀ£ÉÆßÃw PÉÆnÖzÀÄÝ, £Á£ÀÄ ªÀiÁqÀ¯ÁVvÀÄÛ JAzÀgÉ ¸Àj. 1996 19961996 C¸ÉÆùAiÉÄÃmï ¹¸ÀÖªÀÄï EAfäAiÀÄgï JAzÀÄ ¥ÀzÀ£ÉÆߣÀßw PÉÆnÖzÀÝgÀÄ. 1997199719971997 gÀ°è £À£ÀUÉ ªÀÄvÉÆÛAzÀÄ ¥ÀzÀ£ÉÆߣÀßw CAzÀgÉ ¹¸ÀÖªÀÄï EAfäAiÀÄgï 1998 gÀ°è £À£ÀUÉ ¹Ã¤AiÀÄgï JAzÀÄ PÉÆnÖzÀÝgÀÄ. CzÁzÀ£ÀAvÀgÀ CAzÀgÉ 1998 1998 1998 ¹¸ÀÖªÀÄï EAfäAiÀÄgï JAzÀÄ ¥ÀzÀ£ÉÆߣÀßw PÉÆnÖzÀÝgÀÄ. 2001200120012001£Éà E¸À«AiÀÄ°è £À£ÀUÉ ¥ÉÇæeÉPïÖ EAfäAiÀÄgï JAzÀÄ ¥ÀzÀ£ÉÆߣÀßw PÉÆnÖzÀÝgÀÄ. £Á£ÀÄ dÆ£ï 2016201620162016 gÀªÀgÉUÉ EzÉà ºÀÅzÉÝAiÀÄ°è PÁAiÀÄA ¤ªÀð»¸ÀÄwÛzÉÝ£ÀÄ.

6. ¥ÉÇæeÉPïÖ °Ãqï J£ÀÄߪÀ ºÀÅzÉÝ, MAzÀÄ ¥ÁæeÉPïÖ UÉ ¸ÀA§AzsÀ¥ÀlÖzÁVzÉ JAzÀgÉ ¸Àj. dÆ£ï 2016201620162016 gÀ ªÀgÉUÀÆ £Á£ÀÄ 4444 ¥ÉÇæeÉPïÖ UÀ¼À°è ¥ÉÇæeÉPïÖ °Ãqï JAzÀÄ PÁAiÀÄA ¤ªÀð»¹zÉÝãÉ. ªÉÄ,Ê£ï ¥ÁæeÉPïÖ £ÀA.1111 J¥üïJPïìDJð¸ï, £ÀA.2222 ¥üÁ¸ïÖ 2222 D¥üï ¯ÉÊ£ï (CAzÀgÉ ¥üÁ¸ïÖ 2222 jPÉéÃAiÀÄgï ªÉÄAmïì), £ÀA.3333 fJ¸ïJ¸ï ªÉÄ,ÊUÉæÃeɱÀ£ï (lÉQßPÀ¯ï °Ãqï), £ÀA.4444 J¸ï C¦èPÉõÀ£ï. 2222£Éà ¥ÀAUÀqÀzÀªÀgÀ ¥ÀPÀëUÁgÀgÀ CªÀ±ÀåPÀvÉUÀ¼ÉãÀÆ J£ÀÄߪÀÅzÀ£ÀÄß UÀªÀÄ£ÀzÀ°èjPÉÆAqÀÄ 2222£Éà ¥ÀAUÀqÀzÀªÀjUÉ ¤ªÀð»¸À¨ÉÃPÁzÀAvÀºÀ PÁAiÀÄðUÀ¼À gÀÆ¥ÀÅgÉõÀUÀ¼À£ÀÄß ((((programs)))) ªÀiÁr PÉÆqÀĪÀ MAzÀÄ AiÉÆÃd£É CAzÀgÉ ¸Àj. M§â UÁæºÀPÀ£À ªÀåªÀºÁjPÀ CªÀ±ÀåPÀvÉAiÀÄ£ÀÄß CjvÀÄPÉÆAqÀÄ DvÀ¤UÉ G¥ÀAiÀÄÄPÀÛªÁUÀĪÀAvÀºÀ vÀAvÁæA±ÀUÀ¼À£ÀÄß ¨É¼ÀªÀtÂUÉ ªÀiÁr DvÀ¤UÉ PÉÆqÀÄvÉÛÃªÉ JAzÀgÉ ¸Àj. MAzÀÄ AiÉÆÃd£É¬ÄAzÀ E£ÉÆßAzÀÄ AiÉÆÃd£É CzÀgÀ GzÉÝñÀ PÁAiÀÄðPÀëªÀÄvÉ, vÀAvÁæA±ÀªÀżÀî ((((output)))) MAzÀÄ AiÉÆÃd£ÉAiÀÄ£ÀÄß vÀAiÀiÁj¸ÀÄvÉÛÃªÉ JAzÀgÉ ¸Àj.

7. ¸ÁªÀiÁ£ÀåªÁV MAzÀÄ zÉÆqÀØ ¥ÉÇæeÉPïÖ £À°è ¸ÀĪÀiÁgÀÄ 10101010---- 18181818 d£ÀgÀÄ EAfäAiÀÄgÀ¸ï EgÀÄvÁÛgÉ. aPÀÌ ¥ÉÇæeÉPïÖ £À°è ¸ÀĪÀiÁgÀÄ 4444 - 12 - d£À EAfäAiÀÄgÀ¸ï EgÀÄvÁÛgÉ. aPÀÌ ¥ÉÇæeÉPïÖ £À°è ¸ÀĤÃvÁ ZÀ£ÉßÃUËqÀ, gÀdvï ±ÀªÀiÁð, ¸ÉÆêÀÄ ZË¢æ, ZÁ¹äÃ£ï ¸ÀgÀUÀÄtgÁeï J£ÀÄߪÀ EAfäAiÀÄgï UÀ¼ÀÄ PÉ®¸À ªÀiÁrzÁÝgÉ JAzÀgÉ ¸Àj. £Á£ÀÄ ªÉÄîÌAqÀ EAfäAiÀÄgï UÀ½UÉ ¥ÉÇæeÉPïÖ £À zÉåÃAiÉÆÃzÉÝñÀUÀ¼ÉãÀÄ ºÁUÀÆ CzÀgÀ ªÀiÁqÀ¨ÉÃPÁzÀ PÉ®¸ÀUÀ¼À£ÀÄß £Á£ÀÄ ºÉýPÉÆqÀÄwÛzÉÝ JAzÀgÉ ¸Àj. ªÉÄîÌAqÀ F EAfäAiÀÄgï UÀ¼ÀÄ ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ EAfäAiÀÄgï UÀ¼ÀÄ ¸ÀºÀ £À£ÉÆßA¢UÉ ¥ÉÇæeÉPïÖ £À°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝAvÀºÀ ¸ÀzÀj EAfäAiÀÄgï UÀ¼ÀÄ ªÀiÁqÀÄwÛzÀÝ PÉ®¸ÀzÀ°è K£ÁzÀgÀÆ ¯ÉÆÃ¥ÀzÉÆõÀUÀ¼ÀÄ EzÀÝ°è CªÀÅUÀ¼À£ÀÄß ¸Àj¥Àr¸ÀĪÀ PÉ®¸À £Á£ÀÄ ªÀiÁqÀÄwÛzÉÝ£ÀÄ JAzÀgÉ ¸Àj.

8. £Á£ÀÄ F ªÉÄÃ¯É ºÉýzÀAvÀºÀ ¥ÉÇæeÉPïÖ UÀ¼ÀÄ ºÉÆgÀzÉñÀUÀ½UÉ ªÀÄvÀÄÛ C°è£À UÁæºÀPÀjUÉ G¥ÀAiÉÆÃUÀªÁUÀĪÀAvÀºÀ ¥ÉÇæeÉPïÖ UÀ¼ÁVzÀÄÝ, CAzÀgÉ CªÉÄÃjPÁ, AiÀÄÄJE, zÀQët D¦sæPÁ, £Á£ÀÄ ¨sÁgÀvÀzÀ°è C®è ªÀgÀzÉñÀUÀ¼À®Æè ¸ÀºÀ £Á£ÀÄ PÁAiÀÄð¤ªÀð»¹zÉÝÃ£É JAzÀgÉ ¸Àj. £Á£ÀÄ ºÉÆgÀzÉñÀzÀ ¥ÉÇæeÉPïÖ UÀ½UÉ ¸ÀA§AzÀ¥ÀlÖAvÉ CªÀÅUÀ¼À£ÀÄß ¹zÀÝ¥Àr¸ÀĪÀÅzÀQÌAvÀ ªÀÄÄAZÉ, C°è£À UÁæºÀPÀgÉÆA¢UÉ CªÀgÀ CªÀ±ÀåPÀvÉUÀ¼À£ÀÄß w½zÀÄPÉƼÀÄîªÀÅzÀPÉÆÌøÀÌgÀ £Á£ÀÄ RÄzÁÝV CªÀgÉÆA¢UÉ ¸ÀA¥ÀPÀð ªÀiÁr ¸ÀA¨sÁ¶¹ w½zÀÄPÉƼÀÄîwÛzÉÝ£ÀÄ. MAzÀÄ ¸ÀA¥ÀÇtð AiÉÆÃd£É AiÀıÀ¹é ªÀiÁqÀĪÀÅzÀPÉÆÌøÀÌgÀ CzÀgÀ DUÀÆ ºÉÆÃUÀÄUÀ¼À CªÀÅUÀ¼À ºÉÆuÉUÁjPÉ ¸ÀA¥ÀÇtðªÁV £À£Àß ªÉÄÃ¯É EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj.”

16. The person who is given the post of project leader at no stretch of imagination can be implied that he was doing clerical, manual or technical work to come under the purview of the definition of the ‘workman’. The nature of duties - 13 - performed by the respondent must be in the yardstick to determine whether he is a ‘workman’ or not?

17. The proposition is now well settled that an employee is held to be employed to do that work which is the main work is required to do, even though he may be incidentally doing other types of work. In cases where an employee is employed to do purely one of the seven types of work, enumerated in the definition of ‘workman’, there would be no difficulty in treating him to be a ‘workman’ under the appropriate classification. The material placed and the evidence of the respondent indicate that his work is not manual, clerical or technical but falls under the managerial category, wherein imparting and taking decisions is the main work of the respondent. The respondent work is to estimate and plan available before work (design/coding/unit testing), undertook the knowledge, transition of YES application, understanding YES implementation from sources point of view, providing analysis for change request notified, proactively set up applications and DB, during the course of - 14 - development, initiated individual (mainly new joiner) to design and develop their respective ITGs and work items along with assignments in YES, undertook DB tuning exercise for FX RS Product with respect to international and ground shipments. The work assigned to the respondent would not come in any of the classification envisaged under Section 2 (s) of the ID Act and the duties performed were neither clerical nor manual and thus, the Labour Court had no jurisdiction to order reinstatement. The amount in deposit by the respondent pursuant to the order dated 12.12.2023 is ordered to be returned, in light of this Court holding that the respondent is not a workman. Accordingly, this Court pass the following: ORDER i. Writ petition is allowed. ii. Impugned order of the Labour Court is hereby set-aside. - 15 - iii. Amount in deposit with accrued interest, if any, to be refunded the respondent on proper identification in accordance with law. IV. It is needless to observe that, dismissal of the claim petition will not come in the way of the workman claiming any entitlement in accordance with law. MBM SD/- JUDGE