- (1.) THE sole question which arises for determination in this writ petition is as to whether the respondent No. 2, O. P. Goyal, (hereinafter referred to as 'goyal'), was a 'workman' within the meaning of section 2 (s) of the Industrial Disputes Act, 1947 (hereinafter called "the Act"),
(2.) THE facts, which has given rise to this controversy, may be briefly stated; the petitioner, M/s. Shalimar Tar Products (1935) Ltd. , (hereinafter referred to as "the petitioner company") is a public limited company, incorporated under the Indian Companies Act, and is engaged in business of water proofing material and in doing roof proofing work etc. Goyal was employed as supervisor Grade I on September 8, 1949, at the Jaipur Unit of the petitioner company and continued to work as such since April 22, 1968, when his services were terminated on the alleged ground of retrenchment. The Mercantile employees Association took up the matter with the Conciliation Officer jaipur and as the conciliation proceedings failed an industrial dispute was raised by the said Association and the State Govt, referred the question as to whether the retrenchment of Goyal by the petitioner Company was valid and proper to the Labour Court for adjudication by a notification dated July 16, 1968. The Mercantile Employees Association claimed that Goyal was a 'workman' within the meaning of the definition contained in Section 2 (s) of the Act. The case set up by the said Association on behalf of Goyal was that the termination of the servic; of Goyal was in violation of the provisions of Section 25-F and 25-G of the Act. The petitioner company disputed this contention and asserted that Goyal was drawing more than Rs. 500/- per month and was not a workman and that the termination of the service of Goyal was not in contravention of the provisions of Section 25-F and 25-G of the Act, The main question, which was contested by the parties before the Labour Court, naturally, was as to whether Goyal was a 'workman' or not within the meaning of Section 2 (s) of the Act. The Labour Court by its Award dated October 13, 1971, came to the conclusion that Goyal was a 'workman' as defined in Section 2 (s)of the Act and the Judge, Labour Court also directed that he was entitled to reinstatement with continuity of service on the post of Supervisor Grade I and was also granted reinstatement compensation of Rs. 8,000/-, in lieu thereof and also the amount of gratuity, in full, if any. The learned Judge, of the labour Court also granted a lump sum amount to Rs. 5,000/- by way of back wages for the loss of his service on account of illegal termination thereof. The Award given by the learned Judge of the Labour Court on October 13, 1971 has been challenged by the petitioner company in this Court.
(3.) THUS, as I have already mentioned above, the main controversy between the parties in this writ petition centres around the question as to whether Goyal was a 'workman' or not, within the meaning of Section 2 (s) of the Act. In this context it may be observed that it is well settled now that mere nomenclature of the post is not of much consequence and what is to be seen is the nature of the duties performed by the employee concerned, so as to arrive at a correct conclusion as to whether he was a 'workman' within the meaning of Section 2 (s) of the Act. The test of substantial nature of employment has usually been applied by the Courts to find out as to whether a particular employee was a workman or not. It may be convenient hire to read the definition of 'workman' as given in Section 2 (s) of the Act, which is as under : (s) "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 expressed or 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. " (iv) who, being employed in a supervisory capacity, draws wages exceeding five 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.;