{"file_name": "2024_10_2303_2313_EN.pdf", "text": "[2024] 10 S.C.R. 2303 : 2024 INSC 802\n\nLenin Kumar Ray \nv. \nM/s Express Publications (Madurai) Ltd.\n\n(Civil Appeal No. 11709 of 2024)\n\n21 October 2024\n\n[Pankaj Mithal and R. Mahadevan,* JJ.]\n\nIssue for Consideration\n\nWhether  the  appellant  employee  falls  within  the  definition  of \n“workman” under Section 2(s) of the Industrial Disputes Act, 1947, \nwas illegally terminated from service in violation of procedure laid \ndown in law.\n\nHeadnotes†\n\nIndustrial  Disputes  Act,  1947  –  Section  2(s)  –  Meaning  of \n“workman” – Determinative factor is the principal duties and \nfunctions performed by an employee in the establishment and \nnot merely the designation of his post – Onus of proving the \nnature  of  employment  rests  on  the  person  claiming  to  be  a \n“workman”:\n\nHeld:  To  qualify  as  a  “workman”  under  s.2(s)  of  the  Industrial \nDisputes  Act,  1947,  a  person  must  be  engaged  in  any  work \nof  manual,  unskilled,  skilled,  technical,  operational,  clerical  or \nsupervisory  nature  –  However,  the  said  provision  excludes  four \nclasses of employees from its ambit including a person employed in \na supervisory capacity drawing wages exceeding Rs.10,000/- after \namendment  (Rs.1,600/-  before  amendment  of  2010)  per  month \nor exercises functions mainly of a managerial nature. [Para 11]\n\nThe onus of proving the nature of employment rests on the person \nclaiming to be a “workman” within the definition of section 2(s) of \nthe  I.D. Act  –  The  employee  was  appointed  as  Junior  Engineer \n(E&C) in 1997 under Group 3 (Admn) for a salary of Rs. 4,761.75 \nper month – Thereafter, the employee was promoted as Assistant \nEngineer  (E&C)  in  Group  2A  (Admn)  with  a  revised  salary  of   \nRs.  6,008.79  per  month  –  The  employee  deposed  that  he  was \nnot an executive cadre employee and there were senior officers \nto supervise and control his work – Admittedly, the employee was \nsupervising the work of two juniors who were working under him – In \n\n* Author\n\n\f2304 \n\n[2024] 10 S.C.R.\n\nthe absence of any concrete material to demonstrate the nature of \nduties discharged by the employee, the employment orders issued \nby the management will have to be taken into consideration and \nas per the same, the employee was appointed as Junior Engineer \nand  was  promoted  as Assistant  Engineer,  on  the  administrative \nside – Even according to the employee, the nature of duties and \nfunctions discharged by him was of supervisory – As such, applying \nthe pre-amended version of Section 2(s) and since the employee \nwas drawing salary of more than Rs. 1,600, the employee is not \na “workman” under Section 2(s) and is not covered by provisions \nof the Industrial Disputes Act, 1947. [Para 12 to 16]\n\nTermination  of  employment  –  No  violation  of  procedure  by \nthe management:\n\nHeld: In terms of clause 14 of the appointment letter, the employee \nwas required to be paid one month salary in lieu of notice – The \nemployee was relieved from duty with effect from 08.10.2003 and \nhe was issued with a cheque towards one month salary in lieu of \nnotice – Admittedly, the employee accepted the said cheque and \nencashed  the  same  –  Hence,  there  is  no  violation  of  procedure \non the part of the management in terminating the services of the \nemployee. [Para 17]\n\nSince the employee is not covered by provisions of the Industrial \nDisputes Act,  1947,  the  order  of  High  Court  setting  aside  the \naward  of  the  Labour  Court  to  reinstate  the  employee  in  service \nand  pay  compensation  of  Rs.75,000/-  in  lieu  of  back  wages  is \naffirmed. [Para 18]\n\nCase Law Cited\n\nK.C.P. Employees Association v. K.C.P. Ltd [1978] 2 SCR 608 : \n(1978)  2  SCC  42;  Southern  Ispat  Ltd  v.  State  of  Kerala  [2004] \n3  SCR  570  :  (2004)  4  SCC  68;  Sharad  Kumar  v.  NCT  of  Delhi \n[2002] 2 SCR 1057 : (2002) 4 SCC 490; S.K. Maini v. Carona Sahu \nCo.  Ltd  [1994]  2  SCR  333  :  (1994)  3  SCC  510; Ananda  Bazar \nPatrika (P) Ltd v. Workmen [1964] 3 SCR 601 : (1970) 3 SCC 248; \nDeepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya \n[2013] 9 SCR 1 : (2013) 10 SCC 324; Jasmer Singh v. State of \nHaryana (2015) 4 SCC 458 – referred to.\n\nIndustrial Disputes Act, 1947.\n\nList of Acts\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n2305\n\nList of Keywords\n\nSection 2(s), Section 25F, Section 25G, Section 25H of Industrial \nDisputes  Act,  1947;  Workman;  Nature  of  duties  discharged; \nSupervisory role; Terms of employment; Appointment order.\n\nCase Arising From\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 11709 of 2024\n\nFrom the Judgment and Order dated 04.04.2022 of the High Court \nof Orissa at Cuttack in WPC No. 2083 of 2011\n\nWith\n\nCivil Appeal No. 11710 of 2024\n\nAppearances for Parties\n\nSanjay  Ghosh,  Vipin  Sanghi,  Sr. Advs.,  Fidel  Sebastian,  Rishi \nNandy, Mohit Gard, Ms. Amiy Shukla, Shakti Vardhan, Ms. Sheena \nTaqui, Ms. Akansha Saini, Shiv Vinayak Gupta, Mrs. Bina Gupta, \nMohit Garg, Zulfiker Ali P. S, Advs. for the appearing parties.\n\nJudgment / Order of the Supreme Court\n\nJudgment\n\nR. Mahadevan, J.\n\nLeave granted.\n\n2.  These two appeals arise from an order dated 04.04.2022 passed by \nthe High Court of Orissa at Cuttack1 in Writ Petition (Civil) No. 2083 \nof 2011, whereby, the High Court partly allowed the said writ petition \nfiled  by  M/s.  Express  Publications  (Madurai)  Ltd2  challenging  the \naward dated 22.09.2010 passed by the Labour Court, Bhubaneswar3 \nin I.D. Case No.27 of 2007. By the impugned order, the High Court set \naside the award of the Labour Court to the extent that the employee \nis  to  be  reinstated  and  to  be  paid  compensation  of  Rs.75,000/-  in \nlieu of back wages, while upholding the finding of the Labour Court \n\n1 \n\n2 \n\n3 \n\nHereinafter shortly referred to as “the High Court”\n\nFor short, “the management” \n\nHereinafter shortly referred to as “the Labour Court”\n\nLenin Kumar Ray v. M/s Express Publications (Madurai) Ltd.\f2306 \n\n[2024] 10 S.C.R.\n\nthat the employee falls under the definition of “workman” as given \nin section 2(s) of the Industrial Disputes Act, 1947.4\n\n3.  Feeling aggrieved and being dissatisfied with the respective portion \nof  the  impugned  order  of  the  High  Court,  both  the  parties  have \npreferred the instant appeals. \n\n4.  A  few  facts  which  are  necessary  for  disposal  of  both  the  appeals, \n\nare as follows: \n\nThe  management  is  a  newspaper  establishment  publishing  a  daily \nnewspaper in English viz., New Indian Express having its publication \nunit at Bhubaneswar. The employee was initially appointed as Junior \nEngineer (Electronics and Communication)5 by the management on \n07.06.1997  and  was  subsequently,  confirmed  in  the  said  post  on \n13.07.1998.  He  was  thereafter  promoted  to  the  post  of Assistant \nEngineer (E&C) with effect from 01.05.2000 and was regularised in the \nsaid post with effect from 01.05.2001. While so, he was relieved from \nservice on 08.10.2003, by paying a sum of Rs.6,995.65 towards one \nmonth salary in lieu of notice. Aggrieved by the same, he approached \nthe Labour authorities, who referred the matter for conciliation. After \nfailure of the conciliation and based on the opinion of the appropriate \nauthority  that  an  industrial  dispute  exists  between  the  parties,  a \nreference was made, which culminated in I.D. Case No.27 of 2007, in \nwhich, the Labour Court passed an award on 22.09.2010, reinstating \nthe employee in service along with compensation of Rs.75,000/- in lieu \nof back wages, after having held that the employee was a “workman” \nin  terms  of  section  2(s)  of  the  I.D. Act.  Challenging  the  same,  the \nmanagement filed the aforesaid writ petition, which was partly allowed \nby the High Court, in the terms as already stated in paragraph 2 supra. \nTherefore, the present Civil Appeals by both the parties. \n\n5.  The learned senior counsel appearing for the employee contended \nthat the employee falls within the ambit of “workman” as per section \n2(s) of the Act; he was terminated by the management without any \nreason; he was not given any opportunity before such termination nor \nthere was any contract of service that his services will be terminated \non 08.10.2003; and thus, there was a clear violation of provision of \nlaw in terminating the services of the employee. Taking note of the \n\n4 \n\n5 \n\nFor short, “the I.D. Act”\n\nFor short, “E&C”\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n2307\n\nsame,  the  Labour  Court  rightly  passed  the  award  in  setting  aside \nsuch illegal termination and directing the management to reinstate \nthe  employee  in  service.  Without  properly  appreciating  the  same, \nthe High Court set aside the part of the award viz., direction to the \nmanagement to reinstate the employee in service with payment of \nlumpsum compensation in lieu of back wages, by the order impugned \nherein, which will have to be set aside. \n\n6.  Drawing  our  attention  to  the  judgments  of  this  Court  compiled  in \nthe form of typed set of papers, the learned senior counsel for the \nemployee made the following submissions:\n\n(i) \n\nIn Industrial Law, interpreted and applied in the perspective of \nPart IV of the Constitution, the benefit of reasonable doubt on \nlaw and facts, if there be such doubt, must go to the weaker \nsection, Labour;6 \n\n(ii)  Concurrent  findings  of  facts  rendered  by  the  Courts  below \n\ncannot be interfered with by the writ Court;7 \n\n(iii)  The determining factor for a person to be qualified as “workman” \nas defined under section 2(s) of the I.D. Act is the nature of work \ndone  by  him  and  not  merely  on  the  designation  of  his  post.8 \nWhether or not an employee is a “workman” under section 2(s) \nof the I.D. Act is required to be determined with reference to his \nprincipal nature of duties and functions; and the designation of \nan employee is not of much importance and what is important \nis the nature of duties being performed by the employee;9 \n\n(iv)  Merely having a junior does not make an employee a supervisor \n\nor managerial cadre;10 and\n\n(v) \n\nIn cases of wrongful / illegal termination of service, reinstatement \nwith continuity of service and back wages is the normal rule;11 \nand since the order of termination is void ab initio, the workman \nis entitled to full back wages.12\n\n6 \n\n7 \n\n8 \n\n9 \n\nK.C.P. Employees Association v. K.C.P. Ltd (1978) 2 SCC 42\n\nSouthern Ispat Ltd v. State of Kerala (2004) 4 SCC 68\n\nShard Kumar v. NCT of Delhi (2002) 4 SCC 490 \n\nS.K.Maini v. Carona Sahu Co. Ltd (1994) 3 SCC 510\n\n10  Ananda Bazar Patrika (P) Ltd v. Workmen (1970) 3 SCC 248\n\n11  Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324\n\n12 \n\nJasmer Singh v. State of Haryana (2015) 4 SCC 458\n\nLenin Kumar Ray v. M/s Express Publications (Madurai) Ltd.\f2308 \n\n[2024] 10 S.C.R.\n\n7. \n\nBy  making  the  above  submissions,  the  learned  counsel  prayed  to \nallow the appeal filed by the employee and dismiss the appeal filed \nby  the  management  and  consequently,  direct  the  management  to \nreinstate the employee in service with full back wages.\n\nIt is the submission of the learned senior counsel for the management \nthat  the  employee  was  discharging  his  duties  initially  as  Junior \nEngineer  (E&C)  in  group  3  (Admn)  and  thereafter  as  Assistant \nEngineer (E&C) in group 2A (Admn); the nature of the work performed \nby him was in the supervisory capacity; and his total emolument in the \npost of Assistant Engineer (E&C) as on 01.05.2001 was Rs.6805.45; \nand he was terminated from service on 08.10.2003 as his service \nwas no longer required for the management. While so, he does not \nqualify to be a “workman” within the meaning of section 2(s) of the \nI.D. Act.  It  is  further  contended  by  the  learned  counsel  that  at  the \ntime of termination of the employee i.e., on 08.10.2003, the statutory \nrequirement for a person to be classified as a “workman” in the I.D. \nAct was a salary of not exceeding Rs.1,600/- per month. However, \nthe High Court proceeded to apply Amendment Act 24 of 2010 which \ncame into force with effect from 15.09.2010, wherein, the statutory \nrequirement for a person employed in the supervisory capacity to be \nqualified as a “workman” was a salary of not exceeding Rs.10,000/- \nper month, and erroneously upheld the finding of the Labour Court \nthat the employee was a “workman” as defined under section 2(s) \nof the I.D. Act. Therefore, the learned counsel sought to allow the \nappeal filed by the management, by setting aside the order of the \nHigh Court to that extent. \n\n8.  Continuing further, the learned senior counsel for the management \nsubmitted  that  the  employee  was  appointed  as  Junior  Engineer \n(E&C)  in  Group  3  (Admn)  with  a  monthly  pay  of  Rs.4761.75  by \nthe management on 07.06.1997 and clause 14 of the appointment \nletter  clearly  indicated  that  after  confirmation,  the  termination  of \nservice would require one month notice period or one month salary \nin lieu of notice by either of the parties. That apart, the employee \nwas  given  promotion  to  the  post  of Assistant  Engineer  (E&C)  on \n25.05.2000 and his services as Asst. Engineer (E&C) in group 2A \n(Admn)  were  regularized  with  effect  from  01.05.2001  with  a  total \npay  of  Rs.6,805.45  per  month;  and  it  was  categorically  stated  in \nthe  confirmation  letter  dated  30.04.2001  that  all  other  terms  and \nconditions mentioned in the Appointment Order dated 07.06.1997 \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n2309\n\nshall continue to apply. In the light of the rules of the company and \nthe terms of the employment orders, the management relieved the \nemployee  from  duty  by  paying  one  month  salary  in  lieu  of  notice \non  08.10.2003,  which  was  accepted  and  also  encashed  by  the \nemployee. Hence, there is no procedural violation of law on the part \nof  the  management  in  terminating  the  services  of  the  employee. \nThus,  according  to  the  learned  counsel,  the  order  of  the  High \nCourt setting aside the award of the Labour Court to the extent of \nreinstating the employee with compensation in lieu of back wages, \nrequires no interference by this Court.\n\n9.  We have given due consideration to the submissions made by the \nlearned  senior  counsel  appearing  for  both  parties  and  carefully \nperused the materials on record.\n\n10.  At the outset, it is pertinent to point out that the Industrial Disputes \nAct,  1947,  was  enacted  by  the  legislature  to  settle  the  industrial \ndisputes.  It was brought with the object to ensure social  justice to \nboth  the  employers  and  employees  and  advance  the  progress  of \nindustry  by  bringing  about  the  existence  of  harmony  and  cordial \nrelationship between the parties. \n\n11.  Section 2(s) of the I.D. Act defines “workman”, which is quoted below \n\nfor ready reference: \n\n“2(s)  “Workman”  means  any  person  (including  an \napprentice) employed in any industry to do any manual, \nunskilled,  skilled,  technical,  operational,  clerical  or \nsupervisory work for hire or reward, whether the terms of \nemployment be express or implied, and for the purposes \nof any proceeding under this Act in relation to an industrial \ndispute,  includes  any  such  person  who  has  been \ndismissed,  discharged  or  retrenched  in  connection  with, \nor as a consequence of, that dispute, or whose dismissal, \ndischarge or retrenchment has led to that dispute, but does \nnot include any such person— \n\n(i)  who  is  subject  to  the Air  Force Act,  1950  (45  of \n1950),  or  the Army Act,  1950  (46  of  1950)  or  the \nNavy Act, 1957 (62 of 1957); or \n\n(ii)  who  is  employed  in  the  police  service  or  as  an \nofficer or other employee of a prison; or \n\nLenin Kumar Ray v. M/s Express Publications (Madurai) Ltd.\f2310 \n\n[2024] 10 S.C.R.\n\n(iii)  who  is  employed  mainly  in  a  managerial  or \nadministrative capacity; or\n\n(iv) who, being employed in a supervisory capacity, \ndraws  wages  exceeding  [ten  thousand  rupees]13 \nper  mensem  or  exercises,  either  by  the  nature  of \nthe  duties  attached  to  the  office  or  by  reason  of \nthe  powers  vested  in  him,  functions  mainly  of  a \nmanagerial nature.” \n\nAs per the above provision, a person to be qualified as a “workman” \nhas to do any work of manual, unskilled, skilled, technical, operational, \nclerical  or  supervisory  in  nature.  But,  the  latter  part  of  the  section \nexcludes four classes of employees including a person employed in \na supervisory capacity drawing wages exceeding Rs.10,000/- after \namendment (Rs.1,600/- before amendment) per month or exercises \nfunctions mainly of a managerial nature. In this legal backdrop, let \nus first examine, whether the employee falls within the definition of \n“workman”.\n\n12.  According to the employee, he comes within the meaning of “workman” \nas given in section 2(s) of the I.D. Act and the management without \nfollowing the legal procedure, relieved him from service abruptly and \nhence, the same is illegal termination. On the other hand, it was the \ncase of the management that the nature of the duties and functions \nperformed by the employee was in the supervisory capacity and he \nwas  drawing  a  salary  of  above  Rs.1,600/-  and  therefore,  he  does \nnot belong to the category of “workmen”. To prove their respective \nclaims, the employee and the Senior Manager of the management \nwere examined as W.W.1 and M.W.1; and Exts.W1 to W5 and Exts.A \nto D were marked before the Labour Court. \n\n13.  Evidently,  the  employee  was  appointed  as  Junior  Engineer  (E&C) \nwith effect from 07.06.1997 under Group 3 (Admn) with a salary of \nRs.4761.75 per month. Clause 14 of the appointment order issued \nby  the  management  makes  it  clear  that  after  confirmation  of  the \njob, the termination of service will be by one month’s notice or one \nmonth’s salary in lieu of notice by either side. It is not in dispute that \nthe  posting  of  the  employee  in  the  cadre  of  Junior  Engineer  was \n\n13  Substituted by Act 24 of 2010, S.2, for “one thousand six hundred rupees” (w.e.f 15-09-2010)\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n2311\n\nconfirmed with effect from 07.06.1998 vide letter dated 13.07.1998. \nAs per the letter dated 25.05.2000 of the management, the employee \nwas promoted as Assistant Engineer (E&C) in Group 2A (Admn) with \neffect from 01.05.2000 and his revised salary was Rs.6008.79 per \nmonth.  The  services  of  the  employee  as Assistant  Engineer  were \nconfirmed with effect from 01.05.2001 vide letter dated 30.04.2001 \nand it was categorically stated in the said letter that all other terms \nand conditions mentioned in the appointment order dated 07.06.1997 \nshall  continue  to  hold  good.  Vide  letter  dated  08.10.2003,  it  was \ninformed that the services of the employee were no longer required \nby the management and hence, he was relieved from duty forthwith.\n\n14.  During the course of examination, the employee deposed as W.W.1 \nthat  he  was  not  an  executive  cadre  employee  and  there  were \nsenior officers to supervise and control his work. But, in the cross-\nexamination, he asserted that he was supervising the work of two \njuniors  who  were  working  under  him. According  to  M.W.1-  Senior \nManager of the management, the employee was an executive of the \nmanagement and the management appointed two Junior Engineers \nand their works were being supervised by the said employee. \n\n15.  The law is well settled that the determinative  factor for “workman” \ncovered under section 2(s) of the I.D. Act, is the principal duties and \nfunctions performed by an employee in the establishment and not \nmerely the designation of his post. Further, the onus of proving the \nnature of employment rests on the person claiming to be a “workman” \nwithin the definition of section 2(s) of the I.D. Act. \n\n16. \n\nIn the present case, there is no specific document adduced relating \nto  the  actual  work  and  functions  performed  by  the  employee.  In \nthe absence of any concrete material to demonstrate the nature of \nduties discharged by the employee, the employment orders issued \nby the management will have to be taken into consideration and as \nper the same, the employee was appointed as Junior Engineer and \nwas promoted as Assistant Engineer, on the administrative side. It \nis  the  evidence  of  M.W.1  that  the  employee  was  supervising  the \nwork of two junior Engineers, who were working under him, which \nwas  also  admitted  by  the  employee  in  his  cross  examination,  as \nW.W.1.  Even  according  to  the  employee,  the  nature  of  duties  and \nfunctions discharged by him was of supervisory. As such, applying \nthe pre-amended provision of section 2(s), since the employee was \n\nLenin Kumar Ray v. M/s Express Publications (Madurai) Ltd.\f2312 \n\n[2024] 10 S.C.R.\n\nterminated from service on 08.10.2003 and was drawing salary of \nmore  than  Rs.1,600/-,  he  does  not  come  within  the  definition  of \n“workman”. Therefore, we hold that the employee is not a “workman” \nas defined under section 2(s) and is not covered by the provisions \nof  the  I.D. Act.  In  view  of  the  same,  the  order  of  the  High  Court \nupholding  the  finding  of  the  Labour  Court  that  the  employee  was \na  “workman”  within  the  definition  of  post-amended  section  2(s),  is \nliable to be set aside.\n\n17.  As regards the grant of reinstatement of the employee in service and \npayment of compensation in lieu of back wages by the Labour Court, it \nappears to us that in terms of clause 14 of the appointment letter, the \nemployee was required to be paid one month salary in lieu of notice. \nAs is evident from the letter dated 08.10.2003 of the management, the \nemployee was relieved from duty with effect from that date; and he \nwas issued with a cheque bearing No.019345 for Rs.6995.85 drawn \non UT1 Bank Ltd, Bhubaneswar, towards one month salary in lieu of \nnotice, as per the rules of company and in terms of clause 14 of the \nappointment order issued by the management. It is an admitted fact \nthat without any objection, the employee accepted the said cheque \nand encashed the same. Hence, there is no violation of procedure \non  the  part  of  the  management  in  terminating  the  services  of  the \nemployee. As already held above, the employee is not a “workman” \nas covered under section 2(s) and hence, the provisions of the I.D. \nAct do not apply to him. Resultantly, the contention of the learned \nsenior counsel for the employee qua violation of section 25F coupled \nwith  sections  25G  and  25H  of  the  I.D. Act,  ordering  reinstatement \nwith full back wages as normal rule, etc., cannot be countenanced \nby us. Though we are in agreement with the principles laid down in \nthe citations relied on by the learned counsel for the employee, they \ndo not come to rescue the employee as the facts of the same are \ndistinguishable. Thus, we do not find any infirmity or illegality in the \norder of the High Court setting aside the award of the Labour Court \nwhich  directed  reinstatement  of  the  employee  along  with  payment \nof compensation in lieu of back wages and hence, the same does \nnot call for any interference by us. \n\n18. \n\nIn the light of the foregoing findings, we set aside the order of the \nHigh Court confirming the finding of the Labour Court to the extent \nthat the employee was a “workman” within the meaning of section \n2(s) of the I.D. Act; and we affirm the same, insofar as setting aside \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n2313\n\nthe award of the Labour Court to reinstate the employee in service \nand pay compensation of Rs.75,000/- in lieu of back wages.\n\n19.  Accordingly, the Appeal filed by the employee stands dismissed and \nthe Appeal filed by the management stands allowed. There is no order \nas to costs. Pending application(s), if any, shall stand disposed of.\n\nResult of the case:  Civil Appeal No. 11709 of 2024 dismissed. \n\nCivil Appeal No. 11710 of 2024 allowed.\n\n†Headnotes prepared by:  Raghav Bhatia, Hony. Associate Editor \n\n(Verified by: Liz Mathew, Sr. Adv.)\n\nLenin Kumar Ray v. M/s Express Publications (Madurai) Ltd.\f"}