Judgment : The question that falls for consideration is: whether the Respondent who was working as a General Manager (Research) could be considered as a “workman” under the provisions of Section 2(s) of the Industrial Disputes Act, 1947 and an “employee” under Section 3(5) of the M.R.T.U. & P.U.L.P. Act. The Industrial Court, Mumbai, in the complaint filed by the Respondent, on a preliminary issue, held that the Respondent is a workman. This finding has been challenged in the present petition by the petitioner. 2. The Respondent is a nonprofit company under Section 25 of the Companies Act. It is primarily a Scientific Research Organization, and publishes research journals. The object of the petitioner is to undertake and promote scientific research in the field of development of Indian trade and industry. The petitioner has set up World Trade Centre at Mumbai, for which Government of Maharashtra gave a plot of land on concessional terms. The petitioner is managed by a Council of Management. Four members of the Council are nominated by the Government of Maharashtra. 3. The Respondent joined the services of the petitioner on 21 December 1987 as a Research Associate. His services were terminated on 31 December 1988. He instituted proceedings challenging his termination in the Labour Court. He succeeded in the Labour Court and this Court and thereafter he was reinstated on 27 August 1997. Thereafter he was posted as the Deputy Manager (Research). The Respondent filed a Complaint (ULP) No.1316 of 1998 making various grievances against the petitioner. He sought a direction to produce salary statements showing grades, revision of salary, designation of employees and their academic qualifications, for a period from the year 1986. The Respondent raised various general grievances in the complaint. In the written statement, the petitioner raised an issue that the Respondent is not a ‘workman’. A preliminary issue was framed by the Industrial Court as to whether the Respondent was an 'employee' under the definition of Section 3(5) of the M.R.T.U. & P.U.L.P. Act, 1971. The Respondent examined himself. The Industrial Court by the impugned order held that the Respondent was primarily doing clerical, unskilled, skilled and technical work, and nothing was shown by the petitioner that he was doing any supervisory or managerial duties. The Respondent examined himself. The Industrial Court by the impugned order held that the Respondent was primarily doing clerical, unskilled, skilled and technical work, and nothing was shown by the petitioner that he was doing any supervisory or managerial duties. Accordingly, the Industrial Court by the impugned order held that the Respondent falls in the category of ‘workman’ within the meaning of Section 2(s) of the Industrial Disputes Act and an ‘employee’ under Section 3(5) of the M.R.T.U. & P.U.L.P. Act. 4. It will be fruitful to notice the statutory provisions and the decisions governing the field, so as to appreciate the scope of enquiry to be conducted to ascertain whether a person is a workman or not. 4. It will be fruitful to notice the statutory provisions and the decisions governing the field, so as to appreciate the scope of enquiry to be conducted to ascertain whether a person is a workman or not. Section 2(s) of the I.D. Act reads as under : “Sec.2(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 1950), or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); 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 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.” Section 3(5) of the M.R.T.U. & P.U.L.P. Act reads as under : “Sec.3(5): “employee”, in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of section 3 of the Bombay Act, and in any other case, means a workman as defined in clause (s) of Section 2 of the Central Act, and a sales promotion employee as defined in clause (d) of Section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976.” 5. To ascertain whether a person is a workman or not, under Section 2(s), there is a two stage enquiry. First, whether a person is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work. To ascertain whether a person is a workman or not, under Section 2(s), there is a two stage enquiry. First, whether a person is employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work. Once that is established, the second is, whether he falls within the four exceptions laid down i.e. working in air force, army, police, or whether he is working in managerial, administrative capacity or he is employed in supervisory capacity drawing wages exceeding the sum specified. 6. The Apex Court in the case of H.R.Adyanthaya v/s Sandoz (India) Ltd., reported in 1994 II C.L.R. 552, took a review of the various amendments to Section 2(s) and the earlier decisions and summarized the position of law as regard the definition of 'workman' as under :- “We thus have three three-judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories; viz., manual, clerical, supervisory or technical and two two-judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three three-judge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Burmah Shell cases (supra) have taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the I.D.Act. These decisions are also based on the facts found in those cases. Hence the position in law as it obtains today is that a person to be a workman under the I.D.Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation.” 7. Thus, before an enquiry where a person falls in four exceptions to the definition is considered, it has to be established that he falls in the first part of Section 2(s) of the I.D.Act i.e. he is doing manual, unskilled, skilled, technical, operational, clerical or supervisory work. We reiterate the said interpretation.” 7. Thus, before an enquiry where a person falls in four exceptions to the definition is considered, it has to be established that he falls in the first part of Section 2(s) of the I.D.Act i.e. he is doing manual, unskilled, skilled, technical, operational, clerical or supervisory work. The initial burden to show that a person falls in the first part of Section 2(s) is upon a person who has asserted that he is a workman. Once that threshold is crossed, then the burden would shift on the person disputing the status as a workman to show that such person falls within the four exceptions. 8. To decide whether a person falls in the manual, unskilled, skilled, technical, operations, clerical or supervisory category, all the relevant circumstances have to be considered together. It is settled law that mere designation is not enough and overall nature of duties and responsibilities performed and the dominant nature of the work to be performed by the person has to be taken into consideration. The Division Bench of this Court in the case of Vandana Joshi v/s Standard Chartered Bank Ltd., reported in 2010 III C.L.R. 901, has reiterated this principle. 9. In the present case, the petitioner has not led any evidence. According to Mr.Parmar, the learned counsel for the Respondent, this is fatal to the case of the petitioner and adverse inference was rightly drawn by the Industrial Court. According to Mr.Talsania, the learned senior counsel for the petitioner, the fact that the petitioner did not lead any evidence would not make any difference as the Respondent himself did not cross the first threshold of establishing that he was doing any manual, unskilled, skilled, technical, operations, clerical, managerial, or supervisory work. 10. Since the initial burden was on the Respondent, it needs to be seen what is the exact case put up by the Respondent as regard his services. In the affidavit of evidence, the Respondent has asserted that the work he was doing was clerical in nature. The finding of the Industrial Court is that the Respondent was doing clerical work and also skilled and technical work. So the next question is: What is meant by ‘clerical’ and whether the Respondent was doing clerical work. 11. In the affidavit of evidence, the Respondent has asserted that the work he was doing was clerical in nature. The finding of the Industrial Court is that the Respondent was doing clerical work and also skilled and technical work. So the next question is: What is meant by ‘clerical’ and whether the Respondent was doing clerical work. 11. In the case of Sonepat Co-operative Suger Mills Ltd. v/s Ajit Singh, reported in (2005) 3 SCC 232 , the Apex Court had an occasion to consider the phrase 'clerical work'. The Apex Court observed as under :- “16. Thus, a person who performs one or the other jobs mentioned in the aforementioned provisions only would come within the purview of the definition of workman. The job of a clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. The question as to whether the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regards the dominant nature thereof. With a view to give effect to the expression to do “any manual, unskilled, skilled, technical, operational, clerical or supervisory work”, the job of the employee concerned must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not been performing any managerial or supervisory duties, ipso facto he would be a workman.” The main characteristics of clerical work is a ‘stereotype work without power of control or dignity or creativeness’. 12. The Industrial Court observed that the work of the Respondent was not creative and it did not require any application of mind. This is a perverse finding. From the face of record, it will be seen that the Respondent was not doing any clerical work. 13. A broad conspectus of petitioner’s qualifications and nature of work needs to be taken from the established facts on record. The Respondent is B.A. with Economics, Diploma in Business Management and M.M.S. from University of Pune. On his own showing, his qualifications were second only to the General Manager. So the Respondent was second highest qualified employee in a research organization. As regard the nature of duties, the Respondent himself deposed in his examination-in-chief as under :- “3. The Respondent is B.A. with Economics, Diploma in Business Management and M.M.S. from University of Pune. On his own showing, his qualifications were second only to the General Manager. So the Respondent was second highest qualified employee in a research organization. As regard the nature of duties, the Respondent himself deposed in his examination-in-chief as under :- “3. I say that I have filed on record letter dated 24.9.1997 issued to me by the Respondent regarding “Work Assignments/Respondents”. I say that I was required to do the work of preparation for research write ups for CRDB i.e. Current Research and Development Briefs, a monthly periodical brought out by the Respondents for private circulation. I was required to interact with the printer for CRDB. 4. I say that I was expected to go through various newspapers, periodicals and magazines, available in the library of the Respondents, read them and mark the news items which were related to the work of the Respondents i.e. foreign trade, markets, technology, etc. (with relevance to India). I say that the xerox copies of the news items selected by me were to be submitted to the General Manager for approval and they were subject to his approval only. 6. I say that after my reinstatement I was Research Associate for about 7 months. On 2nd March 1998 the Respondents gave me a dressed up designation of Deputy Manager (Research) vide letter dated 2nd March 1998. I say that I was issued a letter dated 18.3.1998 by the Respondents giving my job description whereby I was expected to contribute to the areas if research, research publications, seminars, workshops and others. I say that I have accepted the letter under protest and without prejudice to my rights and submissions. The work I was expected to do was broadly under the following three heads:- I. Research: I was expected to conduct research work of India's Foreign Trade and Markets to conduct at least three research studies of short term nature in one financial year and to prepare monograms to identify suitable pockets after discussions with the General Manager. To collect relevant data, information from various sources and to compile and analyze the data and to prepare the research paper monogram. To print and to provide assistance such as collection of information to General Manager (Research) for organizing external research work. II. To collect relevant data, information from various sources and to compile and analyze the data and to prepare the research paper monogram. To print and to provide assistance such as collection of information to General Manager (Research) for organizing external research work. II. Research Publications: I was expected to bring out the Respondent Centre's bi-monthly research journal (TRFR) on a regular basis, to prepare research papers, articles, etc. to procure articles/papers from experts/authors or organize printing of journal, to handle marketing and subscription of (WTRIR) to bring out Respondent Centre's monthly research periodical CRDB. III. Seminars/Workshops: I was expected to organise workshops/seminars, to undertake other assignments entrusted by the General Manager from time to time, to interact with research authors, experts, consultants. I say that however even after my re-designation under the dressed up title of 'Deputy Manager (Research), I continued to do the same work I was doing as Research Associate at the time of my joining the Respondent Company.” 14. If the examination-in-chief is perused, it is seen that the Respondent was doing the work of preparing a research journal. He was required to go through various newspapers, periodicals and cull out the articles with relevance to India. He was expected to prepare for a research journal, interact with research authors, experts and consultants, and arrange seminars. No doubt that the ultimate authority to bring out the publication was with the General Manager, but the work of the Respondent was not a work without application of mind. Even to collect data relevant to India from the mass of data available, one needs to have a knowledge of Indian scenario, and what is relevant in the Indian context. This would mean that one must be aware of the current Indian economic situation and the industry, without which it is not possible to find out which article is relevant to India and that too at that point of time. It is only after the petitioner would narrow down the articles to be published in the scientific journal that the ultimate authority was with the General Manager. But to select which article is relevant in current scenario and in the Indian context required not only knowledge of the field, but knowledge about subscriber base as well. It is only after the petitioner would narrow down the articles to be published in the scientific journal that the ultimate authority was with the General Manager. But to select which article is relevant in current scenario and in the Indian context required not only knowledge of the field, but knowledge about subscriber base as well. The research journal was targeted at select educated readers and unless the Respondent was aware of the needs of the readers he could not have collected the articles. For that purpose, he was required to be aware of the current affairs of which articles the subscribers would be interested. The Industrial Court has observed that the Respondent was not required to create or imagine anything, and he was merely required to collect the articles. The Industrial Court found nothing creative in the work of the Respondent. I am not prepared to devalue the work of the Respondent to this level. One fails to understand how collecting material for a scientific journal, and to make it more interesting so as to increase the subscriber base, would not be creative work, and work without application of mind. 15. There is one more aspect. It is interesting to note what the Respondent thought of his own work. The self-appraisal form written by the Respondent is on record at Exh.C-22. It is in question and answer form. The Respondent admitted that the self-appraisal form was filled by him. In the self-appraisal form, the Respondent listed his major achievements and accomplishment: they were 10% increase in subscribers after his taking over the charge of the journal, the articles published in the Journal were found interesting by the readers, there were telephonic enquiries as well as letters seeking more information. The Respondent categorically asserted that this was due to his creative contribution. He stated that he made his job creative. He found that his job was interesting as he had lot of reading opportunities, which provided him chance to acquire more special knowledge related to the job, and also to acquire general knowledge. There is one question as to what action Respondent thought he should take during the coming years to make his job more satisfying. The Respondent's answer to that question is rather startling. He has written: “I am genius and self motivated person. There is one question as to what action Respondent thought he should take during the coming years to make his job more satisfying. The Respondent's answer to that question is rather startling. He has written: “I am genius and self motivated person. Therefore, I do not need any help from anybody in the organization, for the time being.” 16. Thus, there is an employee who was the second most qualified person in a research organization, who considers himself to be a creative genius, who was instrumental in making a research journal successful, but is styling himself as one doing clerical work. The Industrial Court has simply brushed aside the self-appraisal report of the Respondent by stating that his self-appraisal report no way benefits the employer. 17. The Industrial Court has also held that the Respondent was doing skilled or technical work. These phrases are not to be read in isolation but they are to be read in ejusdem generis. The Constitution Bench in the case of H.R.Adyanthaya (supra) held that the word “skilled” will have to be construed ejusdem generis and skilled work whether manual or non-manual. Even the phrase “technical” would have to be read taking its colour from the other phrases used. Therefore the finding that Respondent was doing technical work is improbable finding based on the evidence of the Respondent himself. The only possible enquiry was, whether the Respondent was doing work of clerical nature. As stated above, the Industrial Court found that there was no creativity in the Respondent's work neither any application of mind. The Respondent in his own self-appraisal report did not think it so, neither the nature of duties which he himself admitted demonstrate it to be so. 18. The Industrial Court then held that the petitioner did not lead any evidence to show that the Respondent was working in supervisory or managerial capacity. Mr.Parmar, the learned counsel for the Respondent supported the finding that the Respondent was a workman in a clerical capacity and submitted that the designation of the Respondent was deliberately changed after his reinstatement so as to bring him out of the purview of Section 2(s) of the I.D.Act. I do not find any merit in this submission for the reason that the nature of duties performed by the Respondent itself would show that he was not falling in Section 2(s) of the I.D.Act. 19. Mr. I do not find any merit in this submission for the reason that the nature of duties performed by the Respondent itself would show that he was not falling in Section 2(s) of the I.D.Act. 19. Mr. Parmar relied upon the decision of the learned Single Judge in the case of Akhil Bhartiya Shramik Kamgar Union v/s Buildtech Constructions & ors., reported in 2004 (3) Mh.L.J., to contend that the adverse inference be drawn against the petitioner for their failure to produce evidence. He submitted that when the Respondent had asserted that he was working in clerical capacity, the Respondent could have adduced evidence. He submitted that the burden was upon the petitioner to prove this fact. He relied upon the decision of the Division Bench in the case of Chandrashekhar Chintaman Vaidya v/s National Organic Chemical Industries Ltd., Akola, reported in 2010 (3) Mah.L.J. 434. 20. Firstly, it was not necessary for the petitioner to lead evidence as from the Respondent's own evidence it is not established that he was falling in the category of clerical, technical, skilled, unskilled workman. The Industrial Court held that since the Respondent was not having any power to sanction leave or had no supervisory, administrative control, it cannot be held that he was doing the work in supervisory or managerial capacity. The Division Bench in the case of Vandana Joshi (supra) held that, the fact that the employee was not vested with the power to sanction leave or to hold disciplinary enquiry is not conclusive whether he is working on managerial or supervisory capacity. These factors are not conclusive and will have to be considered in the conspectus of entire facts. The Industrial Court drew adverse inference against the Respondent for not producing evidence to show that the Respondent was working in managerial or supervisory capacity. This finding is wrong on two counts, firstly, that there was no question of adverse inference against the petitioner as the evidence of the Respondent himself is unable to show that he is covered in the first part of Section 2(s) and secondly, the parameters such as not having power to sanction leave or institute disciplinary enquiries are not conclusive to show that a person is a workman. 21. 21. Though the Respondent had instituted proceedings in the Labour Court either and had succeeded, the issue as to whether the Respondent was workman or not was neither raised nor concluded in those proceedings. The learned counsel for the petitioner relied upon the decision of the learned Single Judge of this Court in the case of Dr.Ganesh T. Panse & anr. v/s TATA Memorial Hospital, in Writ Petition No.1672 of 2004, to contend that there is no question of estoppel or res judicata applying in such circumstances. In any case, this ground was not argued and held against the petitioner by the Industrial Court, neither it is seriously urged by the learned counsel for the Respondent. 22. In the conclusion, I find that the Industrial Court has not drawn the legal inference required to be drawn from the facts established on record and failed to apply the tests laid down in various decisions discussed above and has come to completely erroneous and perverse finding. 23. It is unfortunate that the Respondent who is highly qualified who was doing creative research work has chosen to devalue his own work and term it as without creativity and application of mind, to somehow fit in the jurisdiction of Industrial Court. 24. In the result, the petition must succeed. Accordingly, the petition is allowed. Rule is made absolute in terms of prayer clause (a).