Full Text
RSA 178/2013
Date of Decision: 05.08.2016 BSES YAMUNA POWER LTD. & ORS ..... Appellant
Through: Mr.Sandeep Prabhakar with Mr. Amit Kumar & Mr. Vikas Mehta, Advocates.
Through: Mr. Vishwendra Verma, Advocate.
CM Appln.27698/2016
JUDGMENT
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of. CM Appln.27699/2016
1. The present application is for condonation of delay in filing the review petition.
2. For the reasons stated in the application, the delay of 8 days in filing the review petition is condoned.
3. The application stands disposed of. 2016:DHC:5592 Review Petition 339/2016
1. The present review petition has been filed seeking a re-look at the judgment dated 24.05.2016 passed in RSA No.178/2013.
2. Learned counsel appearing for the applicant submits that the judgment is flawed for the reason that it does not take into account the definition of “workman” in Section 2(s) of Industrial Disputes Act, 1947 which reads as hereunder: “(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 one thousand six 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.” (Emphasis provided)
3. Four classes of persons have been excluded from the definition of „workman‟, namely (i) any person who is subject to Air Force Act or the Army Act, Navy Act; or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding Rs.1600/- (which figure has been increased to Rs.10,000/- by Act 24 of 2010) per mensem or exercises, either by nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
4. The submission of the learned counsel for the appellant is that since the respondent/applicant Mahinder Kumar (workman) was receiving a salary of Rs.3,136/-, therefore he would be excluded from the definition of the „workman‟.
5. This court is afraid, such an interpretation cannot be accepted for the reason that sub-clause (iv) refers to a person who is employed in a supervisory capacity and who draws wages which exceeds Rs.1,600/-. It is not the case of the respondent/workman that he is/was employed in any supervisory capacity.
6. The other contention on behalf of the applicant is that by order dated 27.05.1995 three issues were framed namely: (i) Whether the jurisdiction of the Civil Court is barred under Industrial Disputes Act?
(ii) Whether the plaintiff is entitled to relief of declaration and injunction as prayed for? (iii) Relief; but later, the issues were changed and the following issues were framed by order dated 22.05.1996: i. “Whether the plaintiff was absent from duty w.e.f. 13.4.94? OPD ii. Whether the plaintiff is entitled to the salary and other dues w.e.f. 13.4.94? OPP iii. Whether the plaintiff is entitled to the reliefs claimed? OPP iv. Relief.”
7. Learned counsel for the appellant submits that by order dated 11.01.1996, the Trial Court while directing for the joining of the respondent (plaintiff)/workman on duty, had already decided the issue regarding the jurisdiction and therefore the appellant was wrong in submitting that the issue had been left upon by the Trial Court and the First Appellate Court. He further submits that the issue therefore had attained finality and the same could not have been upturned.
8. The contention of the appellant does not have any substance as the entire second appeal was predicated on the issue whether the dispute raised by the respondent is an industrial dispute, and if the answer to this poser is in the affirmative, then the Civil Courts will not have jurisdiction to try the aforesaid.
9. Thus, no good ground has been made out for reviewing the judgment dated 24.05.2016.
10. The petition is dismissed.
ASHUTOSH KUMAR, J AUGUST 05, 2016 ns