TRIVENI ENGINEERING & INDUST. LTD.versusJASWANT SINGH & ANR.

                       [2010] 9 S.C.R. 822


A            TRIVENI ENGINEERING & INDUST. LTD.
                                 v.
                    JASWANT SINGH & ANR.
                 (Civil Appeal No. 6523 of 2010)

                        AUGUST 11, 2010
B
      [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE,
                                JJ.]

        Standing Orders:
c
        Clause 'W' - Jurisdiction and power of Labour
  Commissioner to decide on applicability and interpretation of
  Standing Orders - HELD: The inquiry before the Labour
  Commissioner is of a summary nature and while exercising
0 such   power, he cannot decide and examine factual matters
  relating to an issue as to whether the person concerned is a
  workman or not - It is a matter to be de,cided by a competent
  court as it relates primarily to facts and circumstances of the
  case and is not ancillary to that of the applicability and
E interpretation of the Standing Orders - The order of
  termination also could not have been examined and
  scrutinized as such power and jurisdiction is not vested with
  the Labour Commissioner- U.P. Industrial Disputes Act, 1947
  - s.11-C- Industrial Employment (Standing Orders) Act, 1946
  - s.13-A.
F
        Respondent no. 1 filed a writ petition before the High
  Court challenging the order of his transfer and the order
  terminating his services passed by the appellant-
  employer, as he did not join the duties on his transfer.
G The writ petition was dismissed with liberty to respondent
  no. 1 to file a representation before the Labour
  Commissioner under Clause 'W' of the Standing Orders.
  On the representation so filed by respondent no. 1, the
  appellant contended that respondent no. 1 was not a
H                                822
TRIVENI ENGINEERING & INDUST. LTD. v. JASWANT 823
                SINGH & ANR.
workman and,· therefore, the Labour Commissioner had            A
no jurisdiction to adjudicate upon the representation
under the U.P. Industrial Disputes Act, 1947. The Labour
Commissioner accepting the plea of the appellant,
rejected the representation of respondent no. 1. The writ
petition filed by respondent no. 1 was dismissed by single      B
Judge of the High Court. However, the Division Bench
allowed his special appeal and remitted the matter to
Labour Commissioner to decide the nature of the service
of respondent no. 1.

     In the instant appeal filed by the employer, the           C
question for consideration before the Court was: the
issue whether respondent no. 1was a workman or not
could be said to be related to the applicability and
interpretation of the Standing Orders along with the issue
of whether the orders of transfer of respondent no. 1 and       D
subsequent termination were justified or not.

     Allowing the appeal, the Court

      HELD: 1.1 The Labour Commissioner is only a
                                                                E
 'Conciliation Officer' as envisaged under the U.P.
 Industrial Disputes Act, 1947 and 'Certifying Officer' under
 the Standing Orders. The Stam...1g Orders, particularly,
 Clause 'W', vests the Labour Commissioner with the
 jurisdiction and power to decide on the applicability and
 interpretation of the Standing Orders. On the other hand,      F
 s. 11-C of the U.P. Industrial Disputes Act, 1947 and s.13A
 of the Industrial Employment (Standing Orders) Act, 1946
 grant the power and jurisdiction to render a decision on
·the issue of interpretation and application of the Standing
 Orders to the Labour Court. A comparative perusal of the       G
  provisions of s.11-C as also Clause 'W' would establish
 that the provisions are almost pari materia. Therefore, the
  conclusions arrived at by this Court for interpretation of
 s.11-C would also be applicable to the facts of the
  present case. [para 11 and 13] [830-E-G; 829-H; 830-A]        H
    824    SUPREME COURT REPORTS              [2010) 9 S.C.R.

A      1.2 The issue of whether or not a person is a
  'workman' within the meaning of U.P. Industrial Disputes
  Act, 1947 is a matter to be decided by a competent court,
  after allowing the parties to lead evidence. Thereafter, on
  proper appreciation of the materials on record including
B the oral evidence, a decision could be rendered and the
  issue could be determined. The enquiry before the
  Labour Commissioner is of a summary nature and while
  exercising such a power of summary nature, the Labour
  Commissioner cannot decide and examine factual
C matters relating to an issue as to whether the person
  concerned is a workman or not. [para 14) [831-A-C)

      Sharad Kumar v. Govt. of NCT of Delhi 2002 (2)
   SCR 1057 = (2002) 4 SCC 490; and U.P. State Road
  Transport Corporation vs. U.P. Rajya Sadad Parivahan
D Karamchanri Union 2007(4) SCALE 302 - relied on.

       1.3 Whether or not a person is a workman is a matter
  that relates primarily to facts and circumstances of the
  case. The same has nothing to do with the application
E and interpretation of the Standing Orders. What needs to
  be examined and looked into for deciding the issue is the
  nature of job performed by the person concerned, duties
  and responsibilities vested on him and other such
  relevant material. The Division Bench of the High Court
F committed a mistake in determining the said issue as an
  ancillary to that of the applicability and interpretation of
  the Standing Orders. A perusal of the earlier writ petition
  filed by respondent no. 1 would indicate that what was
  also challenged in the said writ petition was the order of
G termination passed against the respondent. The order of
  termination also could not have been examined and
  scrutinized as such power and jurisdiction is not vested
  with the Labour Commissioner. [para 16) [831-F-H 832-A-
    B]
H
TRIVENI ENGINEERING & INDUST. LTD. v. JASWANT '825
                SINGH &ANR.
                     Case Law Reference:                          A
    2007(4) SCALE 302         relied on             para 10
    2002 (2) SCR 1057         relied on             para 15

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.               B
6523 of 2010.

     From the Judgment & Order dated 09.09.2008 of the High
Court of Judicature at Allahabad in Special Appeal No. 1085
of 2008.
                                                                  c
    Tanmaya Mehta, B. Ragunath, Vijay Kumar for the
Appellant.

    D.K. Singh, Pradeep Shukla, Abhijit Sengupta for the
Respondents.
                                                                  D
    The Judgment of the Court was delivered by

    DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.

     2. By filing the present petition the appellant herein has   E
challenged the legality of the judgment and order dated
09.09.2008 passed by the Division Bench of the Allahabad
High Court allowing the Special Appeal filed by Respondent
No.1 herein.

     3. Respondent no. 1 - Jaswant Singh claims to be a           F
workman of M/s Gangeshwar Limited, Deoband, now known
as Triveni Engineering Industries Limited, which was
Respondent No. 2 before the High Court and is the appellant
herein. During the course of his employment, he was
transferred to Ram Kola Chini Mill but as he did not join the     G
place where he was transferred in pursuance of the said order,
his services were terminated.

     4. Being aggrieved by the order of termination of his
services, he filed a writ petition in the Allahabad High Court    H
    826      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A contending inter alia that the Standing Orders contain no
  provision for the transfer of a workman from one sugar factory
  to another, and therefore, his transfer was against the law.
  Consequently, he contended that his services could not have
  been terminated for not joining at a place of transfer. In the writ
B petition filed, he challenged the transfer order as also the
  termination order issued by the appellant herein.

         5. The said writ petition was registered as Writ Petition
    No. 8630 of 2008. Notice of the writ petition having been
    served on the appellant herein, 1t took up a plea that the
C   Respondent is not a workman. The said writ petition was
    disposed of, leaving the respondent at liberty to move a
    representation before the Labour Commissioner, Kanpur, U.P.
    in terms of Clause 'W' of the Standing Orders applicable. A
    representation in terms of the said order was filed by the
D   respondent no. 1 herein. During the pendency of the said
    representation, it was contended before the Labour
    Commissioner by the appellant that the respondent no. 1 was
    not a workman, and therefore, the Labour Commissioner had
    no jurisdiction to adjudicate the representation under the
E   provisions of U.P. Industrial Disputes Act, 1947 and particularly
    in terms of Clause 'W' of the Standing Orders. The Labour
    Commission disposed of the petition, concluding that the
    question at hand related to whether respondent no.1 was a
    workman under the UP Industrial Disputes Act, 1947.
F   Therefore, the Labour Commissioner held that the same could
    not be decided under Clause 'W' of the Standing Orders, but
    instead should be determined by the Labour Court/ Industrial
    Tribunal.

G        6. Aggrieved by the order of the Labour Commissioner
    dated 14.05.2008, the respondent no. 1 preferred a Writ
    Petition challenging the aforesaid conclusions. The learned
    Single Judge, however, dismissed the said writ petition by
    judgment and order dated 25.07.2008, holding that the

H
   t   I   ~ '   •   ·                      •


TRIVENI 'ENGINEERING & INDUST. LTD~·v. JASWANT 827
 SINGH & ANR. [DR. MUKUNDAKAM SHARMA, J.]
representation of the respondent no. 1 under Clause 'W' of the      A
Standing Orders was not maintainable and that the Labour
Commissioner had rightly rejected the same.

     7. Subsequently, the respondent no. 1 filed a Special
Appeal before the Division Bench of the Allahabad High Court,       B
which was registered as Special Appeal No. 1085 of 2008. The
Division Bench of the High Court by the impugned judgment
and order set aside the orders of the Labour Commissioner
as also of the learned Single Judge and remitted the matter
back to the Labour Commissioner to decide the nature of
service of the respondent no. 1 in accordance with law. The         C
Parties were also placed at liberty to adduce necessary
evidence in support of their respective contentions before the
Labour Commissioner.

     8. Being aggrieved by the said judgment and order, the         D
present Special Leave Petition was filed in this Court on which
notice was issued and an interim stay of the judgment and
order of the High Court was passed. Pleadings. having been
completed, the matter was listed for final argument during the
course of which we heard the counsel appearing for the parties      E
who took us through the documents on record in support of their
submissions.

     9. The counsel appearing for the appellant submitted
before us that the effect of the High Court's order would be that
the Labour Commissioner who is permitted to receive evidence        F
could also be permitted to decide whether or not the respondent
no. 1 is a workman. The Labour Commissioner would also be
able to decide whether the order of transfer transferring him to
another sugar factory was legal and valid and was justified
within the parameters of the Standing Orders with particular        G
reference to Clause 'W' thereof and also whether or not the
termination order passed against the workman is justified. The
appellant's contention is that the said issues cannot be decided
by the Labour Commissioner as power and jurisdiction is
restricted and has been so settled by the Division Bench of this    H
    828     SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A Court in the case of UP. State Road Transport Corporation
  vs. U. P. Rajya Sadad Parivahan Karamchanri Union, reported
  in 2007(4) SCALE 302. It was further submitted that under
  Clause 'W' of the Standing Orders, only the power and
  jurisdiction to decide the question with regard to the
B applicability and interpretation of the Standing Orders is vested
  with the Labour Commissioner, and therefore he has no
  jurisdiction and power to decide as to whether the respondent
  no. 1 falls within the purview of the expression 'Workman'.
  According to the appellant, the said issue could only be
C decided and adjudicated upon by the competent court and not
  the Labour Commissioner. Counsel for the appellant also
  submitted that the Labour Commissioner is only a "Conciliation
  Officer'' under the Industrial Disputes Act and "Certifying Officer"
  under the Standing Orders and therefore he cannot have the
  power and jurisdiction to decide substantive questions as to
0
  whether or not respondent no. 1 is a workman and whether or
  not th.e termination order is justified.

       10. Counsel appearing for the respondent refuted the
  aforesaid submissions by relying upon Clause 'W' of the
E Standing Orders, which according to him gives ample power
  and jurisdiction to the Labour Commissioner to decide the
  issues raised by the respoodent no. 1. Respondent No.1
  contended that the only applicable provision, given the facts and
  circumstances of the case, is Clause 'W' of the Standing
F Orders. It was therefore submitted that since the service
  conditions of the workmen in the sugar factory are being
  regulated through the aforesaid Standing Orders, the Labour
  Commissioner would be competent to decide the issues raised
  as to whether or not respondent no. 1 is a workman and
G whether or not order of transfer was justified.

        11. In order to appreciate the contentions raised by the
    counsel appearing for both parties, we have carefully
    considered Clause 'W' of the relevant Standing Orders, which
    reads as follows:
H
TRIVENI ENGINEERING & INDUST. LTD. v. JASWANT 829
 SINGH & ANR. [DR. MUKUNDAKAM SHARMA, J.]
    "If any question arises as to the application or interpretation   A
    of these standing orders, any employer/workmen may refer
    it to the Labour Commissioner of the State and the Labour
    Commissioner shall after giving the parties an opportunity
    of being heard, decide the question."
                                                                      B
At this stage, it would also be relevant to relevant to extract a
similar provision which finds place in Section 11-C of the U.P.
Industrial Disputes Act, 1947, which reads as follows:

    "If any question as to the application or interpretation of a
    standing order certified under the Industrial Employment          C
    (Standing Orders) Act, 1946 arises, any employer or
    workman may refer the question to any one of the Labour
    Courts specified for the disposal of such proceeding by
    the State Government by notification in the Official Gazette,
    and the Labour Court to which the question is so referred         D
    shall, after giving the parties an opportunity of being heard,
    decide the question ·and such decision shall be final and
    binding on the parties."

The aforesaid provision, namely Section 11-C, came to be              E
interpreted and considered by this Court in the case of U.P.
State Road Transport Corporation (Supra). In the said
decision, this Court while· setting aside the decision of the
Labour Court in a case where it had declared a contractual
workman to be treated as regular workman has ruled held thus:
                                                                      F
     "In our opinion, the power of the Labour Court under
     Section 11-C of the U. P. Industrial Disputes Act or under
     Section 13A of the Industrial Employment (Standing
     Orders) Act, 1946 is much narrower than the power of the
     Labour Court on a reference under Section 10 of the              G
     Industrial Disputes Act which corresponds to Section 4-K
     of the U.P. Industrial Disputes Act."

A comparative perusal of the provisions of Section 11-C as also
Clause 'W' would establish that the provisions are almost pari        H
   830       SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A materia. Therefore, the conclusions arrived at by this Court for
  interpretation of Section 11-C would also be applicable to the
  facts of the present case.

        12. It is established from the records that the appellant has
  raised an issue regarding the applicability of the Standing
8
  Orders to the service condition of the respondent no. 1
  contending inter alia that the respondent no. 1 is not a workman
  within the meaning of U.P. Industrial Disputes Act, 1947 and
  therefore the Standing Orders referred to and relied upon by
C respondent have no application in the case before the Labour
  Commissioner. The Labour Commissioner as also the learned
  Single Judge upheld the said contention, but the Division Bench
  of the High Court set aside the order, holding that the said issue
  can be decided by the Labour Commissioner as it is ancillary
  to the issue of applicability and interpretation of the Standing
D Orders.

       13. We are faced by the question as to whether a person
  is a workman or not could be said to be related to the .
  applicability and interpretation of the Standing Orders along
E with the issue of whether the orders of transfer and subsequent
  termination were justified or not. As far as the Labour
  Commissioner is concerned, he is only a 'Conciliation Officer'
  as envisaged under the U.P. Industrial Disputes Act, 1947 and
  'Certifying Officer' under the Standing Orders. The Standing
F Orders, particularly Clause 'W', vests the Labour
  Commissioner with the jurisdiction and power to decide on the
  applicability and interpretation of the Standing Orders. On the
  other hand, Section 11-C of the U.P. Industrial Disputes Act,
  1947 and Section 13A of the Industrial Employment (Standing
G Orders) Act, 1946 grant the power and jurisdiction to render a
  decision on the issue of interpretation and application of the
  Standing Orders to the Labour Court.

     14. Without going into the issue as to whether such a
  power and jurisdiction could be vested on the Labour
H Commissioner, we may decide the issued raised herein from
 TRIVENI ENGINEERING & INDUST. LTD. v. JASWANT 831
   SINGH & ANR. [DR. MUKUNDAKAM SHARMA, J.]

 another angle. The issue of whether or not a person is a               A
 'workman' within the meaning of U.P. Industrial Disputes Act,
 1947 is a matter to be decided by a competent court, after
 allowing the parties to lead evidence. Thereafter, on proper
 appreciation of the materials on record including the oral
 evidence, a decision could be rendered and the issue could             B
 be determined. The enquiry before the Labour Commissioner
 is of a summary nature and while exercising such a power of
 summary nature, the Labour Commissioner cannot decide and
 examine factual matters relating to an issue as to whether or
 not the person concerned is a workman or not.                          c
        15. In the case of Sharad Kumar v. Govt. of NCT of Delhi,
  reported at (2002) 4  sec   490, an issue regarding whether or
  not a person is a workman within the meaning of Section 2(s)
  of the Industrial Disputes Act, 1947 came for consideration
  before this Court. This Court held that in such a matter the State    D
  Government could not arrogate upon itself the power to
  adjudicate such an issue in as much as 'the same could be
· determined by the Industrial Tribunal or the Labour Court on the
  basis of the materials to be placed before it by the parties. In
  this instance, the Division Bench has erroneously held that the       E
  aforesaid issue is an ancillary issue to the issue of applicability
  and interpretation of the Standing Order.

      16. Whether or not a person is a workman is a matter that
 relates primarily to facts and circumstances of the case. The          F
 same has nothing to do with the application and interpretation
 of the Standing Orders. What needs to be examined and looked
 into for deciding the aforesaid issue is the nature of job
 performed by the concerned person, duties and responsibilities
 vested on him and other such relevant material. ln our                 G
 considered opinion, the Division Bench of the High Court
 committed a mistake in determining the said issue as an
 ancillary to that of the applicability and interpretation of the
 Standing Order. A perusal of the earlier Writ Petition filed by
 the respondent no. 1 numbered as Writ Petition No. 8630 of             H
    832     SUPREME COURT REPORTS                [2010] 9 S.C.R.


A   2008 would indicate that what was also challenged in the said
    writ petition was the order of termination passed against the
    respondent. The order of termination also could not have been
    examined and scrutinized as such power and jurisdiction is not
    vested with the Labour Commissioner.
B
        17. Consequently, we set aside the judgment and order
  passed by the Division Bench of Allahabad High Court dated
  09.09.2008 and uphold and restore the orders passed by the
  learned Single Judge as also by the Labour Commissioner.
  The present appeal is allowed to the aforesaid extent. There
C will be no order as to costs.

    R.P.                                         Appeal allowed.