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Gujarat High Court · body

2010 DIGILAW 584 (GUJ)

Mayank Desai v. Sayaji Iron And Engg. Co. Ltd.

2010-12-13

K.A.PUJ

body2010
JUDGMENT : K.A. Puj, J. 1. The Petitioner, who is now a practicing advocate, appearing as party-in-person has filed this petition under Article 226 of the Constitution of india challenging the award passed by the Lab our Court, Vadodara in Reference. (L.C.V.) No. 300 of 1984 on 29.06.1995 dismissing the said reference on the ground that the Petitioner does not fall within the definition of "workman" as contemplated u/s 2(s) of the industrial Disputes Act, 1947 (for short "the I.D. Act.). 2. This Court has issued notice on 03.09.1996. The Rule was issued on 10.03.1997. During the pendency of the petition, talks for settlements were going on. However, the same did not bring any fruitful result and hence, the petition is heard on merits. 3. It is the case of the Petitioner that in January, 1983, the Petitioner was employed as a Design and Development Engineer by the Respondent - Company on monthly salary of Rs. 2,200 which was raised to Rs.2,275. The Petitioner was confirmed in July, 1983, after initial probation of six months on advice of Senior Design Engineer Mr. Navinbhai Shah, to whom the Petitioner was reporting. The said Mr. Navinbhai Shah was the Head of Design Department as the post of Head of Design Department was vacant. One Mr. Shankarbhai Prajapati, another Senior Design Engineer used to be in-charge of the Design Department, when Mr. Shah was absent. 4. On 25.12.1983, the Petitioner was on his pre-sanctioned leave. Resuming on next day he found, from the remark against his name in muster roll at the gate, that he was dismissed from service of the Company. The reasons for the Petitioner's dismissal were not known to him. 5. Being aggrieved by the said dismissal order, the Petitioner moved the Lab our Court for reinstatement with back wages. The Respondent - Company contested the said reference on the sole contention that the Petitioner was employed in Supervisory capacity and was drawing salary of more than Rs. 1,600 per month and was, therefore, excluded from the definition of 'Workman' as provided in proviso (iv) of Sub-section (s) of Section 2 of the I.D. Act and hence, the reference was not tenable. 6. Mr. 1,600 per month and was, therefore, excluded from the definition of 'Workman' as provided in proviso (iv) of Sub-section (s) of Section 2 of the I.D. Act and hence, the reference was not tenable. 6. Mr. Mayank Desai learned advocate submitted that the impugned award passed by the Lab our Court is absolutely bad, illegal, arbitrary, preposterous, perverse, capricious and totally inconsistent with the evidence on record, unreasonable and against the settled principles of law. He has further submitted that the career of the qualified Mechanical Engineer has been stigmatized due to unfair dismissal by the employer and now it is completely blocked and ruined by the impugned award. He has further submitted that the reference was made by the Government u/s 10(1) of the I.D. Act for reinstatement with back wages. In view of the clear terms of reference there was no scope for framing the issues. The learned Presiding Officer has, however, narrowed down the scope of the reference by framing the issues-- (I) Whether the Petitioner is a workman or not? And (II) Whether the dismissal was fair or not? He has further submitted that the learned Presiding Officer has restricted the reference by adjudicating only on the first issue and the way in which the reference was treated has caused grave injustice to the Petitioner as it has left important issues unresolved. He has further submitted that the findings on the sole issue of whether the Petitioner is work man or not", is perverse, inconsistent with the evidence on record and capricious. No person property instructed in law and acting judicially could have reached the impugned finding. He has further submitted that there is no controversy that the Petitioner was not employed in Managerial or Administrative capacity. The Respondent - Company itself has restricted its case by taking shelter under proviso (iv) of Sub-section (s) of Section 2 of the I.D. Act by stating that the Petitioner was employed as supervisory capacity. He has further submitted that the reasons given by the learned Presiding Officer for his perverse finding are as under: (a) That the work carried out by the Petitioner was 'supervisory' work and not the technical work'. (b) That the Petitioner has checked and approved the drawings prepared by Draftsmen allegedly working under him. Such work by the Petitioner amounted to be an assessment of others. (b) That the Petitioner has checked and approved the drawings prepared by Draftsmen allegedly working under him. Such work by the Petitioner amounted to be an assessment of others. (c) The Petitioner was participating in Quality Control Circle (QCC) Meetings. (d) The Petitioner holds an M. Tech. Degree and he was not working in the shifts and, therefore, cannot be believed to be an ordinary workman. (e) The Petitioner had independently entered info correspondence. (f) The Petitioner had visited other parties for the company's work. (g) The Petitioner had availed benefits meant only for the category excluded from I.D. Act as per the circular of the company. (h) The Petitioner had complained about others to his superiors. (i) The Petitioner was given a visiting card. 7. Mr. Desai has further submitted that the tests' or the 'criteria' applied by the learned Presiding Officer to arrive at the conclusion that the Petitioner is not a 'workman' or does not conform to those provided by the statute or by the settled principles of law. The definition of 'workman' in Section 2(s) of the I.D. Act, is an inclusive and exclusive definition. The terms 'supervisory' has been used twice, but in a different context each time, in the definition. However, the terms 'Manager", 'Administrator' and 'Supervisor' are not defined by the Act. The Apex Court, for the first time, in National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and Others, AIR 1988 SC 329 had an Import from law dictionary. The definition of 'Supervisor' reads in para-7 of the judgment as under : In a broad sense, one having authority over others, to superintend and direct. The term 'Supervisor' means any individual having authority, in the interest of the employer, to hire transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment. 8. He has further submitted that the evidence on record establishes beyond any doubt that the Petitioner is a 'workman' and not a 'supervisor' within the light of the above definition. He has further submitted that Mr. Shah and Mr. Prajapati, Supervisors of the Petitioner were examined at Ex. 8. He has further submitted that the evidence on record establishes beyond any doubt that the Petitioner is a 'workman' and not a 'supervisor' within the light of the above definition. He has further submitted that Mr. Shah and Mr. Prajapati, Supervisors of the Petitioner were examined at Ex. 50 and Ex.47 respectively by the Lab our Court. The company did not examine any person allegedly to have been working under the Petitioner. There was no such person. Mr. Shah heading the department of 28 to 30 persons at that point had admitted that draftsmen were reported to him. Mr. Prajapati has also admitted that the draftsmen, clerk and peons were not allotted to engineer but were in the common pool. He has further submitted that so far as the authority of the Respondent Is concerned, the complaints which are on record, more than sufficiently show that the Petitioner had no superintendence whatsoever over anybody in the department. It is also an admitted position by the witnesses that no action whatsoever has been taken on the complaints by the Petitioner. Mr. Shah has admitted that he was granting leave to the draftsmen in the department. Mr. Prajapati has stated that he issued gate passes when Mr. Shah was not available. None of the witnesses has pointed out that the Petitioner had any authority even in this regard either. He has further submitted that It was Mr. Shah who in consultation with Mr. Prajapati granted increments to the draftsmen. It is an admitted position that the Petitioner was not having any say in this regard. Bills and expenses vouchers of all the employees in the department were sanctioned exclusively by Mr. Shah. Both the witnesses namely Mr. Shah and Mr. Prajapati of the Respondent - Company have stated in their affidavits that the Petitioner was in technical side of their department. Exhaustive statements from them on description of the activities of the Petitioner, for the first time in the reference, does not include any work of non-technical nature. He has further submitted that persons employed to do technical as well as supervisory work are included in definition of Workman by statute. Addition of the word 'operational' in the amended definition of workman includes entire lab our force in the definition of workman and excludes the Managerial force. He has further submitted that persons employed to do technical as well as supervisory work are included in definition of Workman by statute. Addition of the word 'operational' in the amended definition of workman includes entire lab our force in the definition of workman and excludes the Managerial force. He has further submitted that the participation in quality control -meeting, correspondence with the parties and accompanying the seniors in visits to the parties was not essential, substantial or assigned part of the fob of the Petitioner. The Petitioner's participation in the Quality Control Circular Meetings was purely for assisting his Superiors for design modification of the products and that was only a technical function. He has further submitted that from the correspondence attributed to the Petitioner it' can be seen that it is mainly in the form of requests to the parties for information on their products and materials. The Petitioner had no indenting or purchasing powers. The correspondence produced by the company is unilateral i.e., from Petitioner to the others and not in the either ways. There is nothing to show that a permission, sanction, approval, order, or even a suggestion for that matter was sought from Petitioner by communication from any other corner. He has further submitted that mere a ailment of a particular benefit by an employee does not exclude him from the purview of the Act because of the alleged restriction in the company circular. 9. Mr. Desal has further submitted that number of drawings are produced by the company to suggest that the Petitioner was checking the work of others and was therefore not a workman. Though both the witnesses of the company have admitted that there is no system in company to approve the drawings, it was suggested that the dates put by the Petitioner in the space provided for the approver's signature indicate that the drawings were approved by the Petitioner. He has submitted that the learned Presiding Officer has erred by subscribing to these conjectures. Firstly, the checking was the part of the Petitioner's work and not the supervision. For that matter an individual too keeps on checking his work but that is not the supervision. The Petitioner had no power to assign duties and distribute of work. He has submitted that the learned Presiding Officer has erred by subscribing to these conjectures. Firstly, the checking was the part of the Petitioner's work and not the supervision. For that matter an individual too keeps on checking his work but that is not the supervision. The Petitioner had no power to assign duties and distribute of work. Secondly, in absence of any systems to approve the drawings It was wrong to presume, just because of the dates in the approver's space that the drawings were approved by the Petitioner. The dates only ensured that there was no confusion due to number of drawings at different points of time for a single component. He has further submitted that substantial part of the sketches and drawings by the Petitioner in possession of the company were not produced. He has further submitted that simply because M. Tech decree-holder is not subjected to shifts or because he was issued a visiting card by the company, cannot be considered to be an ordinary worker. He has further submitted that high sounding nomenclatures or the qualification is hardly decisive in determining whether a person is a workman or not. He has, therefore, submitted that the impugned award deserves to be quashed and set aside. 10. In support of his submissions that the Petitioner is a workman within the ambit of Section 2(s) of the Act, has relied on, the following decisions. (i) In the case of Ananda Bazar Patrika (P) Ltd. Vs. The Workmen, (1969) 2 LLJ 670 the Court held that the Respondent being senior most clerk was put in-charge of the Provident Fund section and was given a small amount of control over the other clerks working in the Section. He was to allocate work between them, to permit them leave during the office hours and to recommend their leave applications. The Court held that these few minor duties of a supervisory character cannot convert his office of senior clerk in charge to that of supervisor. (ii) In the case of Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, AIR 1971 SC 922 the Court was concerned with' different types of employees and depending on the nature of their work, It was decided that as to whether they are workmen or not. (ii) In the case of Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, AIR 1971 SC 922 the Court was concerned with' different types of employees and depending on the nature of their work, It was decided that as to whether they are workmen or not. The Court held that a person cannot be assumed to be a workman on the ground that he does not come within the four exceptions in Section 2(s). The specification of the four types of work in the definition in Section 2(s) obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who, not doing any such work, would be out of the scope of the word 'workman' without having resort to the exceptions. The Court further held that a person with technical qualifications can on that account, be employed in a supervisory capacity and, in such a case, he will be held to be employed to do supervisory work, so that, in order to be a workman, he must not be excepted under exception (iv). (iii) In the case of Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., AIR 1984 SC 914 the Apex Court held that the substantial duty of the concerned employee was only that of a Security inspector at the gate of the factory premises and it was neither managerial nor supervisory in nature, so as to exclude him from the definition of workman" u/s 2(S) of the Act. (iv) In the case of Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd. Bombay, AIR 1985 SC 985 the Apex Court held that where an employee has multifarious duties and a question is raised whether he is a workman or some one other than a workman the court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. in other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. The definition of the expression workman clearly shows that the person concerned would not cease to be a workman if he performs some supervisory duties but he must be a person who must be engaged in a supervisory capacity. (v) In the case of National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and Others, (Supra) the Apex Court held that where the employee was working under company as an Internal Auditor on a monthly salary and his duties were mainly reporting and checking up on behalf of the management but he had no independent right or authority to take decision and his decision did not bind the company, the employee would be a workman within the meaning of Section 2(s) and not supervisor. A checker on behalf of the management or employer is not a supervisor, The conclusion as to, by the High Court on appreciation of evidence on record could not be interfered with under Article 136 of Constitution. (vi) In the case of Bombay Dyeing and Manufacturing Company Limited v. R.A. Bidoo and Anr., reported in 1990 LAB IC 116, the Apex Court held that a person can be said to be a supervisor If there are persons working under him, over whose work he has to keep a watch. He is that person who examines and keeps a watch over the work of his subordinates and, if they en in any way, corrects them. It is his duty to see that the work in an industrial unit is done in accordance with a manual, if there is one, or in accordance with the usual procedure. It is not his function to bring about any innovation; it is not his function to take any managerial decisions, but it is his duty to see that the persons over whom he is supposed to supervise do the work assigned to them according to the rules and regulations. The central concept of a supervisor is the fact that there are certain persons working under him. The central concept of a supervisor is the fact that there are certain persons working under him. If a person is doing any work which does not require him to look after or inspect or examine the work of persons who are subordinate to him or working under him, that person can never be said to be a supervisor. In other words, the supervision is necessarily by reference to the persons working under a supervisor, (vii) In the case of Gujarat Electricity Board. Vidyut Bhavan v. Gujarat electricity employees Union and Anr., reported in 1994 (1) GCD 555 (Guj), the Division Bench of this Court has held that in order to decide whether an employee is a workman as contemplated u/s 2(s) of the industrial Disputes Act, the Court has to decide as to whether the work performed by him is of a supervisory or managerial nature. The label by which the post of the employee is advertised is of no consequence. In the case before the Division Bench, the employee was discharging multifarious duties, most of which were clerical in nature. He had no power to appoint, demote any employee, to take any disciplinary action against him; he could not take any decisive step even though he sat in the Selection Committee. All the powers on the subordinate staff rested in the Superintending Engineer, and thus no error had been committed by the Industrial Tribunal when it was held that the employee was a workman entitled to continue his service up to the age of 60 years, (viii) in the case of Sunita B. Vatsaraj v. Karnataka Bank Ltd. and Anr., reported in 1999 LLR 729 (Bombay High Court), the Petitioner was working in a Bank. After successful training she was confirmed and promoted as Officer Grade III in 1978. She joined in Bandra Branch in her promotion post. In that branch, she worked for about a month as Branch Manager. A Power-of-Attomey was executed in her favour by the Bank. Thereafter, she was involved in a disciplinary proceedings and after domestic enquiry, she was dismissed from service. She raised a dispute which was referred to Industrial Tribunal. Management of the bank raised an issue that Petitioner was not a 'workman' under the Industrial Disputes Act. A Power-of-Attomey was executed in her favour by the Bank. Thereafter, she was involved in a disciplinary proceedings and after domestic enquiry, she was dismissed from service. She raised a dispute which was referred to Industrial Tribunal. Management of the bank raised an issue that Petitioner was not a 'workman' under the Industrial Disputes Act. Her duties were to check various accounts and she worked in supervisory and managerial cadre, industrial Tribunal allowed the Respondents' plea and dismissed reference. On consideration of the duties performed by the Petitioner and the case law, the Court held that she is a 'workman' and as such remanded the matter for decision on merits by the Central Government Industrial Tribunal, (ix) In the case of Keshod Nagar Palika v. Pankajgiri Javergiri, reported in 2000 LLR 416 (Guj), wherein It Is held that it is held that on a plain reading of Clause (iv) it is obvious that the same imposes two conditions, and both the conditions must be simultaneously satisfied, in order that the person concerned should be excluded from the definition. The first condition is that his wages should exceed Rs. 1600 per month, and secondly, he should be employed in a supervisory capacity, and exercises his functions mainly of a managerial nature. In this context, although the workman was drawing wages in excess of Rs. 1600, it is nowhere the case made out nor established from evidence that he was engaged wherein the nature of his duties were of a "supervisory capacity" Or that the nature of his duties were such and/or the functions attached to his post were functions mainly of a managerial nature", (x) in the case of Kulwant Singh v. Reliance Petrochemical Ltd. and Anr. reported in 2000 LLR 895 (Bom), the Court while Kolding that Security-Cum-Administrative Officer of the Respondent concerned clearly fails in the definition of workman u/s 2(s) observed that the substantial duty of the Petitioner was neither managerial nor administrative in nature in the sense in which those terms are understood in the industrial law. Similarly there is absolutely no material to show that the Petitioner was doing work of supervisory nature in the sense of supervising the work of other employees. Similarly there is absolutely no material to show that the Petitioner was doing work of supervisory nature in the sense of supervising the work of other employees. In the light of the evidence and the legal position, the court was of the opinion that the finding of the Lab our Court that the Petitioner is not a workman within the meaning of Section 2(s) of the Act is perverse and could not be supported. On the evidence available on record, the Court held that the Petitioner clearly falls within the definition of workman u/s 2(s) of the Act. (xi) In the case of Shankarbhai Nathalal Prajapati v. Maize Products, reported in 2002 (3) 43 GLR 2273, this Court held that when the entire evidence of the Petitioner is read, one can certainly come to the conclusion that he was required to discharge the duty purely of technical nature and whatever the supervisory work which he was required to do was ancillary to the main functions. If that be the position, the Petitioner cannot be said to be supervisory. (xii) In the case of An and Regional Co-op. Oil Seeds growers' Union Ltd., reported in (2006) SCC 1486, the Apex Court held that for determining the question as to whether a person employed in an industry is a workman or not, not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee or the name assigned to the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work was required to be supervised. Being in-charge of the section alone and that too a small one and relating to quality control would not answer the test. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. The work involves exercise of tact and independence. Being in-charge of the section alone and that too a small one and relating to quality control would not answer the test. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. The work involves exercise of tact and independence. The Respondent in his evidence stated that he was the head of the Department and there was no officer superior to him except the Managing Director. Although he stated that as a senior he gave guidance, he did not state that he was authorised to initiate any departmental proceedings against his subordinates. Therefore, judging by the standard stated herein, the Respondent did not come within the purview of the exclusionary clause of the definition of workman, (xiii) In the case of Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherjee, AIR 1985 SC 141 the Apex Court held that the tennination of service sought to be brought about by striking off the name of the workman from the roll of the employer was held to be Illegal and invalid by the Labour Court and the employer was directed to reinstate the workman. The writ petition filed by the employer questioning the findings of the Labour Court was dismissed by the High Court of Delhi. After an unsuccessful appeal under the Letters Patent, the matter was brought to the Supreme Court by a certificate granted by the High Court. The Supreme Court by its decision reported in Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherji and Others, AIR 1978 SC 8 rejected all the contentions on behalf of the employer and confirmed the award of the labour Court. Since physical reinstatement becoming impossible by passing away of workman, monetory relief was granted by the Apex Court. 11. Mr. Desal, on the basis of above judgments as well as factual matrix of the case has strongly urged that the award passed by the Labour Court deserves to be quashed and set aside. 12. Mr. Kunan Naik, learned advocate for M/s. Trivedi and Gupta for the Respondents on the other hand supported the award passed by the Labour Court, and submitted that the Petitioner is not a workman within the definition of Section 2(s) of the I. D. Act. He has further submitted that the Petitioner was working in supervisory category and when terminated his salary was Rs. He has further submitted that the Petitioner was working in supervisory category and when terminated his salary was Rs. 2,275 is more than statutory limit prescribed u/s 2(s) of the I.D. Act. He has further submitted that during the course of proceedings before the Labour Court, the Respondent - employer has filed a pursis on 22.04.1993 stating that without prejudice to the rights and contentions of the Respondent, the company was ready and willing to take the Petitioner on job. This pursis was not accepted by the Petitioner and made certain endorsement on the said pursis stating that the Petitioner was ready to resume job on clarifications as to what would be the present monthly salary of the Petitioner, whether the Petitioner would be given work actually or would be made to sit idle as a measure of vindictiveness it was also made clear that the pursis was not accepted being conditional because a condition that the Petitioner would deem to be terminated if the verdict of reference is in favour of the employer, it was also clarified that in the event of disputes the Petitioner should be permitted to resume without any deduction in salary right from the date of raising the dispute. He has, therefore, submitted that once the said offer was not accepted by the Petitioner, he has no right to challenge the present award before this Court. 13. Mr. Naik further reliance on the decision of the Apex Court in the case of Vimal Kumar Jain v. Labour Court, Kanpur and Anr. reported in III LLJ (Supp) wherein the Apex Court held that the Labour Court has found that he is not a workman. The evidence is that he supervises the work of the maintenance department in the capacity of Maintenance engineer and that he does not work through fitters and turners etc. who are his subordinates, it is also pointed out that he grants leaves, initiates disciplinary proceedings etc. He has also power to make temporary appointments. The Court, therefore, took the view that the Petitioner is not a workman. 14. Mr. Naik has relied upon the decision of the Bombay High Court in the case of Ramesh s/o. Ramrao Wase v. The Commissioner, Revenue Division, reported in 1995 LAB IC 546 wherein the Petitioner. He has also power to make temporary appointments. The Court, therefore, took the view that the Petitioner is not a workman. 14. Mr. Naik has relied upon the decision of the Bombay High Court in the case of Ramesh s/o. Ramrao Wase v. The Commissioner, Revenue Division, reported in 1995 LAB IC 546 wherein the Petitioner. Sectional Engineer was using technical knowledge to prepare plans and estimate of sanctioned work, he was recording measurements of completed work, giving guidance to other agencies. These duties are also supervisory in nature. The court held that the Petitioner cannot be dubbed as workman and he cannot invoke jurisdiction of industrial Court. 15. Mr. Naik has, therefore, submitted that the Labour Court after examining the entire evidence documentary as well as oral has given specific finding that the Petitioner has not a workman. Such finding cannot be disturbed While exercising writ jurisdiction of this Court under Article 226 of the Constitution of India. He has, submitted that the petition deserves to be dismissed. 16. Having heard Mr. Mayank Desai, the Petitioner appearing as party-in-person and Mr. Kunan Naik, learned advocate appearing for M/s. Trivedi and Gupta for the Respondent and having considered their rival submissions in light of the statutory provisions and decided case law in the subject, the Court is of the view that the Labour Court has committed an error while passing the impugned award and holding therein that the Petitioner is not a workman as contemplated in Section 2(s) of the I.D. Act. To appreciate the finding arrived at by the Labour Court in its true perspective, it is necessary to have a close look to the provisions contained in Section 2(8) of the I.D. Act. To appreciate the finding arrived at by the Labour Court in its true perspective, it is necessary to have a close look to the provisions contained in Section 2(8) of the I.D. Act. It reads as under: (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 had led to that dispute, but does not include any such person: (i) who Is subject to the Air Force Act, 1950 (45 of 1950), or the Army employee of a prison, or (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 his, functions mainly of a managerial nature. 17. The interpretation of Section 2(s) of the I.D. Act and the question as to whether a person is a workman or not has come up before the Court, time and again and certain guiding principles are laid down for determination of the said question by this Court as well as by the Apex Court. Some of the judgments on this issue are already referred to in earlier part of this judgment. The nature of duty performed by the Petitioner when he was in the employment of the Respondent - establishment is also narrated. The question before the Court is, therefore, to decide as to whether looking to the duty assigned to him and work performed by him, whether he is entitled to, be called as workman. There is no dispute as to the proposition that the definition of workman given in Section 2(s) of the I.D. Act is an inclusive and exclusive definition. The question before the Court is, therefore, to decide as to whether looking to the duty assigned to him and work performed by him, whether he is entitled to, be called as workman. There is no dispute as to the proposition that the definition of workman given in Section 2(s) of the I.D. Act is an inclusive and exclusive definition. The section refers to the term supervisory twice in this Sub-section, How-ever, at both the places, the said term is used in different context, in the first place, in the main Section 2(s) itself, the word used in the context of a person doing supervisory work for hire or reward. The nature of such work may either be manual, unskilled, skilled or technical, operational, clerical or supervisory. In short, it is an inclusive definition, however, in Sub-clause (iv) of Section 2(s), the word "supervisory" is used and it denotes that any person who is employed in such supervisory capacity and draws wages exceeding Rs. 1,600 per month and exercises the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. Thus, Sub-clause (iv) of Section 2(s) lays down two requisites for excluding a person from the definition of workman. Firstly, he must be a person drawing wages of more than Rs. 1600 per month and secondly, his duties and functions are mainly of a managerial nature. These are cumulative pre-requisites and if both the conditions are satisfied, in that case, the person may not be considered to be a workman. 18. Keeping this definition in mind and the nature of the duties and functions performed by the Petitioner, if one examines the finding recorded and conclusion drawn by the Labour Court that the Petitioner is a workman, one would immediately come to the conclusion that the Labour Court has not correctly applied the test for determination of the issue regarding the Petitioner's status. There is no dispute about the fact that the Petitioner was drawing wages for more than Rs. 1600 per month, However, the evidence on record clearly indicates that he was not assigned the duties and functions mainly of a managerial nature. It is true that the Petitioner was appointed as a Design and Development Engineer. It is also true that he is highly qualified person possessing M. Tech Degree. 1600 per month, However, the evidence on record clearly indicates that he was not assigned the duties and functions mainly of a managerial nature. It is true that the Petitioner was appointed as a Design and Development Engineer. It is also true that he is highly qualified person possessing M. Tech Degree. However, he was not a head of the Design Department, he had to work under the Senior Design Engineer Mr. Navinbhai Shah, and in his absence, another Senior Designer, Mr. Shankarbhai Prajapati. He has no authority to appoint any person, to sanction leave of anybody, or to take any disciplinary action against any one. No one was reporting to him. Though he was checking certain drawings prepared by the draftsmen. It is not Its function to approve such drawings. He was not having any managerial control over anybody. Attending Quality Control Meeting would not change the nature and character of his position in the Respondent - Establishment. Thus, the judgments relied on by the Petitioner would certainly lead the Court to believe that he is a workman, in An and Bazar Patrika (P) Limited's case (Supra), the Court held, in no uncertain terms that the few minor duties of a supervisory character cannot convert the office of senior clerk in-charge to that of supervisor. In the case of National Engineering Industries Limited (Supra), a person was appointed as an Internal Auditor on an Monthly salary and his main function is reporting and checking on behalf of the management. He had, however, no any independent right or authority to take decision and his decision did not bind the Company. The court, therefore, took the view that the checker on behalf of the management or employer is not a supervisor. Herein the present case, the Petitioner who was simply checking drawings prepared by the draftsmen could not make him the supervisor so as to exclude him by invoking Clause (iv) of Section 2(s) of the I.D. Act. In the case of Gujarat Electricity Board v. Electricity Employees Union (Supra), the Division Bench of this Court has examined this issue from the angle that a person had no power to appoint, demote any employee, to take any disciplinary action against him, he could not, take any decisive step even though he sat before Selection Committee. In the case of Gujarat Electricity Board v. Electricity Employees Union (Supra), the Division Bench of this Court has examined this issue from the angle that a person had no power to appoint, demote any employee, to take any disciplinary action against him, he could not, take any decisive step even though he sat before Selection Committee. Considering this aspect of the matter, the Court took the view that he was a workman within the definition of Section 2(S) of the I.D. Act. In the case of Sunita B. Vatsaraj v. Karnataka Bank Limited (Supra), the lady employee was a Branch Manager. Though her duties were to check various accounts and she worked in supervisory and managerial cadre. The Court took the view that the duties performed by her would not make her supervisor or manager and she was held to be a workman. In the case of Keshod Nagar Palika v. Pankajgiri Javergiri (Supra), this Court has interpreted Sub-clause (iv) of Section 2(s) of the I.D. Act and held that it imposes two conditions and both the conditions are to be simultaneously satisfied, in order that the concerned person is excluded from the definition. Unlike the said case, the Respondent establishment had failed to lead any evidence that the Petitioner was engaged wherein the nature of his duties was of a supervisory capacity or the functions discharged by him were mainly the functions of a managerial nature. 19. As against plethora of decisions cited and relied on by the Petitioner, on behalf of the Respondent only two judgments were relied on. In Vimal Kumar Jain's case (Supra), the person was having the power to grant leave, initiate disciplinary proceedings etc. He has also power to make temporary appointments and in that context, the Labour Court held that he was not workman and ultimately that finding was confirmed by the Apex Court. In the present case, the Petitioner has no power to grant leave, he has no power to initiate disciplinary proceedings, he has no power to make temporary appointment. The case cited is, therefore, distinguishable on facts. In the present case, the Petitioner has no power to grant leave, he has no power to initiate disciplinary proceedings, he has no power to make temporary appointment. The case cited is, therefore, distinguishable on facts. In the case of Ramesh s/o. Ramrao Wase v. Commissioner, Revenue, (Supra), the Bombay High Court has recorded the finding that the Petitioner supervised the work done by the workman, there was an element of inspection by him and he has an authority over the workmen and labourers by reasons of his post and he had power to prepare the bills and work out the valuation of the completed work. He was to take judgment as to whether the work is completed as per the standards laid down by the contract. He had also authority to sit over and pass the judgment about the work. After recording this finding the Bombay High Court took the view that the nature of his work gets the label of supervision because of the said authority and ultimately held that the said work cannot be of a technical job but has to be dubbed as a work of supervisory in nature. None of these functions has to be discharged by the Petitioner in the present case and hence, this case is totally distinguishable on facts. 20. In view of the above discussions, the Petitioner cannot be said to be a supervisor and his case would squarely fall within the ambit of Section 2(s) of the I.D. Act and is held to be workman within the definition of Section 2(s) of the I.D. Act. The finding recorded by the Labour Court is therefore, required to be reversed and it is accordingly reversed. 21. Once the finding of the Labour Court is reversed. In the normal circumstances, the court will have to remand the matter to the Labour Court for adjudicating, the other issues, more particularly, the issue as to whether the dismissal order passed by the Respondent establishment is proper or not. Even on this issue, the Petitioner has a strong case. He is a confirmed employee and he was dismissed by striking of his name from the muster roll. No notice was issued and neither notice pay was given nor retrenchment compensation was paid to him. Even on this issue, the Petitioner has a strong case. He is a confirmed employee and he was dismissed by striking of his name from the muster roll. No notice was issued and neither notice pay was given nor retrenchment compensation was paid to him. The striking of the name of a workman or employee from the muster-roll is held to be illegal by the Apex Court in the case of Delhi Cloths and General Mills Limited (Supra) wherein the termination of service by striking off the name of the employee from the muster roll is considered to be an illegal action and dismissal order based on that was quashed and set aside. 22. Once the Petitioner's services are terminated illegally, he is required to be reinstated with or without back wages depending upon the facts of the case. However, in the present case, looking to the peculiar situation and the facts found on record, the Petitioner is neither ordered to be reinstated nor any back wages are to be awarded to him. The Petitioner joined in 1983 and his services were terminated on 25.12.1983. He has, therefore, worked only for 12 months. More than 26 years have passed from the date of termination. After his termination, he has chosen the legal profession and he is, at present, practicing advocate appearing before the Courts below as well as before this High Court. The way in which he has conducted his own case as well as the cases of his client before this Court, established him to be a very competent lawyer. No useful purpose would be served in directing the Respondent establishment to reinstate the Petitioner as a Design and Development Engineer. Awarding the back wages to the Petitioner is also out of question in view of the fact that he is a self-employed person and he must be earning more that what he was drawing his wages when he was in the service. Even the present matter is pending before this Court since 1995 and almost 15 years have been passed. In between talks of settlements were going on. It transpired during the course of hearing that there was difference of opinion with regard to the amount of compensation between the Petitioner and Respondent No. 1. The Petitioner was expecting Rs.5 Lakhs by way of compensation whereas the Respondent was ready and willing to give Rs.1 Lakh. In between talks of settlements were going on. It transpired during the course of hearing that there was difference of opinion with regard to the amount of compensation between the Petitioner and Respondent No. 1. The Petitioner was expecting Rs.5 Lakhs by way of compensation whereas the Respondent was ready and willing to give Rs.1 Lakh. Since the figure was not finalized, the talks of settlement failed. Considering this aspect of the matter, the Court is of the view that the interest of justice would better be served if the Respondent establishment is directed to pay by way of compensation, an amount of Rs. 2.5 Lakhs to the Petitioner towards full and final settlement of his claim. 23. The award passed by the Labour Court is modified to the above extent. The amount awarded shall be paid by the Respondent within a period of one month from today. 24. With these directions and observations, this petition is accordingly disposed of. Rule is made absolute to the aforesaid extent without any order as to cost.