J.S. Malik v. M/S Energy Infrastructure (India) Ltd.

10. An application was moved by the Respondents/Management under Order VII Rule 11 CPC seeking the rejection of the Petitioner’s Claim on the ground that the Petitioner/Claimant is not a ‘Workman’ as defined under Section 2(s) of the Industrial Disputes Act, 1947. However, the said application was dismissed as not maintainable, on the ground that the question as to whether the Petitioner is a ‘Workman’ or not, would have to be adjudicated at the final stage. The operative portion of the said order dated 13th August, 2014 passed by the Labour Court is extracted below: “Record perused. On perusal of record it is revealed that the court has already framed an issue to the effect that whether the claimant is covered within the definition of workman provided u/s 2 (s) of the ID Act. Therefore, this court is of the opinion that the interest of justice would be met if the matter is decided on merits after appreciating the evidence of both the parties. Since the court has already framed an issue i.e. as to whether the claimant is covered within the definition of section 2 (s) of the I.D. Act, this court is of the opinion that the present application of the management under order 7 rule 11 (a) & d r/w section 151 CPC is not maintainable at this stage and the same is hereby dismissed. Judgments referred by Ld.AR for management are not applicable into the facts of the present case. Application disposed off accordingly. ”

11. Thereafter, the Petitioner moved an application seeking rectification of certain infirmities committed by his Authorized Representative. Simultaneously, the Respondents also moved an application seeking the dismissal of the Petitioner on the ground that the Petitioner is not a ‘Workman’ under Section 2(s) of the Act. The said two applications moved by the Petitioner and the Respondents respectively were disposed of, vide common order dated 11th January, 2016 passed by the Labour Court. The relevant extract from the said order dated 11th January, 2016 is set out below: “Since the workman has already been granted opportunity to file fresh affidavit which he has filed on 07,01.2015, this court is of the opinion that no further opportunity can be granted to the workman to file additional evidence by way of affidavit and to file documents/exhibits. Hence, in these circumstances, the application of the workman is dismissed and disposed off accordingly, As far as application of the management dated 27,08.2015 is concerned, since this court has already framed an issue i,e. as to whether the claimant is covered within the definition of section 2 (s) of the I.D. Act, the objections raised by Ld.AR for management cannot be considered at this stage. Hence, the application of the management dated 27.08.2015 is dismissed and disposed off accordingly.”

12. Finally, vide the impugned Award dated 7th March, 2019, the Labour Court rejected the Petitioner’s Claim and disposed of the application filed by the Respondents seeking determination of Issue No.1 as a preliminary issue. The findings of the Labour Court in the impugned Award are that the Petitioner has completed LLB and is also a practicing lawyer since the year

2009. The Petitioner also holds a Masters Degree in Political Science and a Diploma in Business Administration. It was observed that the Petitioner was regularly dealing with legal and liaisoning work, on behalf of the Respondent - Management. He was also representing the Respondents as an Authorized Signatory before various Courts and Tribunals, as also, other fora and government authorities. The Labour Court then considered the judgment of the Supreme Court in Muir Mills (supra) and held that the Petitioner is not a ‘Workman’ under Section 2(s) of the Act. The said findings of the Labour Court are extracted below:

13. Mr. Azad, ld. Counsel for the Petitioner has made the following submissions: i. The issue as to the nature of the functions which were being performed by the Petitioner as an employee of the Respondents, would be a mixed question of facts and law. Thus, the adjudication of the said question would require evidence to be led in the matter. It is however relevant to note that no evidence was led in the matter. ii. The mere fact that the Petitioner was enrolled with the Bar Council of Delhi does not mean that he has started practiing as an advocate. It is only if he has started practising in Court that he would be called an advocate. Until then, he can continue performing the functions of an employee of the Respondents. iii. He relies upon the judgment of the Gujarat High Court in Pruthvirajsinh Bhagirathsinh Jadeja v. State of Gujarat and Ors. [MANU/GJ/2322/2022]. On the strength of this judgment, he submits that mere enrolment of the Petitioner as an advocate would not take away the position that the Petitioner was not a practicing advocate.

14. On the other hand, Mr. Trideep Pais, ld. Senior Counsel with Ms. Sanya Kumar, who had initially appeared for the Respondents has taken the Court through the record and has made the following submissions: i. The nature of work which the Petitioner was performing with the Respondents clearly shows that he was not a ‘Workman’ as defined under Section 2(s) of the Act. The Petitioner was himself appearing before the Civil Courts and District Courts, in addition to engaging lawyers on behalf of the Respondents. The nature of work which the Petitioner performed clearly shows that the Petitioner was in a managerial capacity or in a supervisory capacity. In effect, the Petitioner was rendering services as a Legal Manager, or was in the role of a lawyer to the Management. Thus, he would not qualify as a ‘Workman’ under Section 2(s) of the Act. ii. The Petitioner is a professional by nature, and hence, the legal issue arising in the present case would be squarely covered by the judgment of the Supreme Court in Muir Mills (supra). Reliance is also placed upon the judgment of the ld. Single Judge of this Court in Bhim Sain v. The Govt. of NCT of Delhi [2014 SCC Online Del 849] to argue that once a person is qualified as a professional, he would be outside the scope of the definition of a ‘Workman’ under Section 2(s).

15. Mr. Sidhant Kumar, ld. Counsel for the Respondents further submits that the self-appraisal forms which have been signed by the Petitioner himself would show that the nature of duties which were being performed by him were not clerical, and in fact, administrative or supervisory in nature. Thus, this matter would be clearly covered by the Supreme Court in Muir Mills Unit (supra). He, further, places reliance on the board resolutions which have been passed by the Respondent - Company to show that the Petitioner is authorized to file and institute suits, appeals and other petitions before courts, sign and verify pleadings and withdraw litigation, etc., which also confirms that his role was not as that of a workman, but an employee. He, thus, submits that the present petition does not deserve to be entertained. Analysis and Findings

16. Heard ld. Counsels for the parties and perused the record.

17. The admitted facts of the present case are that the Petitioner was, initially, appointed as ‘Secretary’ with the Respondent No.1’s parent company in the year 1989. Thereafter, on 24th February, 1998, the Petitioner was transferred to the Respondent No.1 entity, w.e.f. 1st April, 1998, and appointed as ‘Deputy Manager’ in ‘M[2] Grade’ at a monthly salary of Rs.6,500/-. During the course of his employment with the Respondent No.1, the Petitioner completed his LLB degree and enrolled as an advocate with the Bar Council of Delhi on 22nd September, 2009. He is also a member of the Saket Bar Association. At the time of termination of his services, i.e., on 8th October, 2010, the monthly compensation of the Petitioner was Rs.45,650/-. He was paid the equivalent of three month’s salary in lieu of the notice period, and was finally terminated in terms of the Letter dated 17th December, 2002 stipulating the restructured terms of employment. Vide impugned Award dated 7th March, 2019, the termination of the Petitioner’s services was upheld by the Labour Court on the ground that the functions performed by him were managerial or supervisory in nature. As per the Labour Court, the Petitioner being a professional cannot be construed to be falling within the ambit of the definition of the term ‘Workman’ as defined in Section 2(s) of the Act.

18. Admittedly, an affidavit in evidence dated on 7th January, 2015 was filed on behalf of the Petitioner, but no further evidence was led by the Petitioner despite repeated opportunities granted by the Labour Court. The matter was repeatedly adjourned between the years 2016 to 2018 on more than twenty occasions due to allegedly frivolous applications which were being filed by the Petitioner to delay the proceedings. At that stage, the Management filed an application seeking dismissal of the Petitioner’s claim on the ground that the Petitioner is not a ‘Workman’ under Section 2(s) of the Act, and hence, seeking determination of Issue No.1 as a preliminary issue. Vide impugned Award dated 7th March, 2019, the Labour Court came to the conclusion that no further opportunity needs to be granted for leading evidence, and proceeded to finally adjudicate and dispose of the matter.

19. The documents on record are admitted. The actual duties performed by the Petitioner is also admitted. This Court is, thus, of the opinion that no useful purpose would be served in remanding the matter to the Labour Court, for allowing the Petitioner to lead evidence, as sought by ld. Counsel for the Petitioner.

20. Thus, the short question before this Court is whether the Petitioner who is a law graduate enrolled with the Bar Council of Delhi, initially appointed as a ‘Deputy Manager’ upon the incorporation of Respondent No.1, and thereafter, promoted to various positions entailing responsibilities which are managerial in nature, can be said to be a ‘Workman’ as per Section 2(s) of the Industrial Disputes Act, 1947, or not.

21. Section 2(s) of the Industrial Disputes Act, 1947 is reproduced below: “(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 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

(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 59

[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.”

22. In terms of the decision of the Supreme Court in Muir Mills (supra), the position of law on this issue, is no longer res integra. In the said case, the Supreme Court was dealing with a person who had been appointed as a ‘Legal Assistant’ in the Litigation Department of the Appellant - Mills. The Supreme Court arrived at the conclusion that the said person was rendering supervisory duties, and was hence, was not entitled to raise an industrial dispute. While holding that a legal professional would not qualify as a ‘Workman’ as defined under Section 2(s) of the Industrial Disputes Act, 1947, the Supreme Court observed that, in order for a person to pursue a profession, extensive training, as also, the study and mastery of specialized knowledge would be required. It was observed that the three professions of ministry, medicine, and law prescribe a specific code of ethics, and such persons are professionals, who cannot be described as ‘Workman’ under any law. The relevant observations of the Supreme Court in Muir Mills (supra) are set out below: “38.Furthermore, if we draw a distinction between occupation and profession we can see that an occupation is a principal activity (job, work or calling) that earns money (regular wage or salary) for a person and a profession is an occupation that requires extensive training and the study and mastery of specialized knowledge and usually has a professional association, ethical code and process of certification or licensing. Classically, there were only three professions: ministry, medicine, and law. These three professions each hold to a specific code of ethics, and members are almost universally required to swear some form of oath to uphold those ethics, therefore "professing" to a higher standard of accountability. Each of these professions also provides and requires extensive training in the meaning, value, and importance of its particular oath in the practice of that profession.

39. A member of a profession is termed a professional. However, professional is also used for the acceptance of payment for an activity. Also a profession can also refer to any activity from which one earns one's living, so in that sense sport is a profession.

40. Therefore, it is clear that respondent No.1 herein is a professional and never can a professional be termed as a workman under any law. xxx

48. However, we are of the view that, the emoluments for the month of April, 1983 drawn by respondent No.1 was Rs.866.51 and the nature of duties of respondent No.1 were totally supervisory and he was designated as Legal Assistant in the Mill's litigation department. So the respondent is not entitled to raise an industrial dispute and also that his services are governed by all the rules and regulations, terms and conditions of service, administrative orders and/or standing orders presently in force or as may be framed, amended, altered or extended from time to time and as applicable to the employees of the Mills as is clear from the appointment order of 04.06.1982. Also it is clear from the facts that the appellants have complied with the interim order of the High Court xxx.

54. In view of our finding that the respondent is not a workman, he will not be entitled to payment of half of the decreed amount which was ordered to be deposited. If the amount has not been withdrawn so far, the Management is at liberty to withdraw the same from the court deposit. However we are not ordering costs.”

23. The above decision of the Supreme Court has been followed subsequently by a ld. Single Judge of this Court in Bhim Sain v. The Govt. of NCT of Delhi [2014 SCC Online Del 849], wherein the question before the Court was whether the Petitioner, who was a Legal Assistant, could be regarded as a ‘Workman’ under Section 2(s) of the Industrial Disputes Act,

1947. Relying upon the decision of the Supreme Court in Muir Mills (supra), the ld. Single Judge answered the said question in the negative, and observed as under:

15. He had denied the performing the supervisory duties. He also denied discharging professional duties as Legal Assistant. He has also deposed that he was looking after the matter titled as „Ajanta Iron Steels vs. MCD/DESU’. With regard to the said matter, he had written to the department for providing comments/documents to the Advocate. He has also deposed that he used to assist the Advocate in the Court. It has also come on record that he used to coordinate with the panel Advocate for each and every hearing. From the deposition of the petitioner it is clear that the petitioner herein was a professional. As a Legal Assistant he was supervising the court cases, coordinating with the concerned department and the Advocates. He was assisting the Advocates in the Court. He had also officiated as ALO. 16. It is clear that the petitioner was a professional. Hence, the petitioner being a professional he cannot be termed as a “workman” within the meaning of Section 2(s) of the Act. The Tribunal has rightly decided the issue No.1 by placing reliance on the judgment of the Supreme Court in Muir Mills case (supra)

17. I do not see any infirmity in the impugned order of the Tribunal. One aspect which needs to be considered is that the right of the petitioner to challenge the order of compulsory retirement cannot be taken away. The petitioner shall be at liberty to challenge the inquiry which was initiated against him and the penalty of compulsory retirement imposed upon him in appropriate forum in accordance with the law.

18. The writ petition is dismissed without any order as to costs.”

24. Similar is the view taken by the ld. Single Judge of this Court in Nitya Nand Sinha vs. HL Promoters Private Limited and Ors. [W.P.(C) 9843/2018 decided on 4th December, 2019], wherein the Petitioner concerned was appointed as a General Manager. After considering the role and the responsibilities discharged by the Petitioner, the Court held that the Petitioner was employed in a managerial or supervisory capacity. It was further observed that, even if the Petitioner was undertaking some clerical work, the Court has to look at the primary nature of the duty and the dominant purpose of employment. The relevant observations of the Court are as under:

25. This position was reiterated by the Calcutta High Court in Mileage Advertising (P) Ltd. vs. Goutam Bhattacharjee and Ors. [W.P.No.609 of 2016 decided on 19th July, 2019], the employee concerned had been appointed as a commercial artist in an advertising agency. The Labour Court had held that the application challenging the termination of the employee as illegal, was maintainable as the management had failed to prove that the employee was working in a managerial or supervisory capacity. While setting aside the decision of the Labour Court, the ld. Single Judge of the Calcutta High Court observed as under:

26. In Mileage Advertising (supra), the Court also examined several other decisions related to employees performing multifarious duties, and observed as under:

27. In view of the foregoing discussion, the legal position on the question of whether an employee would fall within the ambit of the term ‘Workman’ as defined under Section 2(s) of the Industrial Disputes Act, 1947 is, thus, clear to the following effect: i. That any person working in a managerial or administrative capacity cannot be considered to be a ‘Workman’ as defined under Section 2(s) of the Industrial Disputes Act, 1947. ii. Even if the duties being performed by the said person are multifarious in nature, the primary nature of the duty or the dominant purpose of employment needs to be ascertained, in order to decide whether a person is a ‘Workman’, or not.

28. Applying the above rationale to the facts of the present case, this Court has examined the various documents on record in order to ascertain the primary nature of the duties performed by the Petitioner. The documents on record reveal the following: i. In the self-appraisal forms which have been filled by the Petitioner himself, he admits to performing the following duties: • Coordination with various governmental authorities; • Coordination with officials in the Government for procurement of land; • Performance of smooth and cost-effective administration; • Arrangement of bank guarantees for the company; • Playing of an active role in marketing; • Coordination between bottling plants; • Giving of recommendations for cost-cutting. ii. The Petitioner has regularly coordinated with lawyers engaged by the Respondent - Company. In the communications addressed by the Petitioners to lawyers, he described himself as ‘Team Leader - Legal Cell’, ‘Assistant Manager – Administration & Coordination’, ‘Assistant Manager - Legal & Liaison’. iii. The Petitioner has submitted replies to the police officials in respect of some complaints against the company and even in those letters he describes himself as ‘Team Leader - Legal Department’. iv. The Petitioner has also addressed legal notices on behalf of the company describing himself as ‘Assistant Manager - Administration and Coordination’. v. The Petitioner has rendered legal advice and opinion to the Respondent – Company from time to time. vi. The Petitioner was entrusted with the task of updating the Respondent - Company and its Management regarding the status of various legal cases of the Management. vii. The Petitioner held delegated authority from the Board of Directors of the Respondent – Company for instituting legal proceedings, criminal complaints, engaging lawyers, etc. on behalf of the Respondent – Company. viii. The Petitioner signed pleadings as an authorised representative on behalf of the Respondent - Company. ix. The Petitioner executed vakalatnamas on behalf of the Respondent – Company. x. The Petitioner has appeared as a witness on behalf of the Respondent - Company in various legal proceedings. xi. The Petitioner has appeared before District Courts, attended court proceedings, and has even pleaded in certain matters before the Courts and other fora. A few instances of the same placed on record are set out below: Email dated 10th November, 2009 “Although I briefed the district judge about the facts myself, yet to strengthen our claims, I am planning to have counsel Mr. B.S. Randhawa to assist me in the court of Ms. Ina Malhotra for tomorrow’s proceedings and if required, till an order is passed for transfer of case to the courts in Rewari/Gurgaon, jurisdiction of judgment debtor/respondent. FYI please Regards, JS Malik” Email dated 3rd March, 2010 “The undersigned visited and attended the district court in Rewari with regard to the subject case. The notice sent by the court to the judgment debtor, returned duly accepted by the father of the judgment debtor. Initially the court asked me to wait until the judgment debtor submits the objection against the decree executed against him but till afternoon he did not turn to the court and finally court pronounced ex-parte decision in our favour fixing the next hearing to be held on 20.3.2010. On the next hearing we will have to submit to the court all relevant documents with regard to judgment debtor’s assets in Rewari as well as in Gurgaon, after which the judge shall appoint a liquidator for his assets in Rewari and issue order for Executive magistrate for disposal of assets in Gurgaon, to recover the award amount. FYI please. Regards, JS Malik” Email dated 19th March, 2010 “The subject case was heard in the court of Mr. Vijay Shankar (link magistrate Prashant Sharma) Respondent was available with his counsel. Every case listed for today was passed over for 4th of October, 2010. I pleaded in the matter and requested the magistrate to shortened it. He accepted my request and marked it for hearing for 4.8.2010. FYI pleased Regards, JS Malik”

29. The performing of the above functions and rendering of the above duties by the Petitioner is not in dispute. A perusal of the documents placed on record clearly demonstrates that the Petitioner was not a ‘Workman’ and was, in fact, the whole and sole of the Legal Department of the Respondent - Company. Thus, this Court has no doubt that the Petitioner’s role was managerial in nature, and he was discharging duties in the capacity of a lawyer representing the Respondent – Company.

30. The Respondent - Management has raised issues relating to whether a person enrolled with the Bar Council could be in part-time service or employment with a company. The said issue need not be gone into in this case, inasmuch as it is usual for lawyers to be engaged by companies on a retainer basis for giving legal advice and consultation.

31. In view of the primary nature of the duties being performed by the Petitioner, as also, the settled legal position as laid down by the Supreme Court in Muir Mills(supra) and the subsequent decisions, the impugned Award dated 7th March, 2019 passed by the Labour Court is not liable to be interfered with and is upheld by this Court.

32. With the above observations, the present petition is dismissed. All pending applications are also disposed of. No order as to costs.

PRATHIBA M. SINGH, J. JANUARY 11, 2023 dj/ad