JUDGMENT : M. K. THAKKER, J. 1. Rule returnable forthwith. Learned advocate for respondent waives service of Rule. 2. The present petition being SCA No.11070/2023 is filed by the workman under Article 226 and 227 of the Constitution of India challenging the judgment and award dated 18.03.2023 passed by the learned Labour Court, Junagadh in Reference (T) No.199 of 2019 qua non granting of back wages and the Special Civil Application No.9611 of 2023 is filed by the employer challenging the same award by which learned Labour Court has directed to reinstate the employee without back wages by holding the termination dated 20.09.2019 being illegal. 3. It was the case before the learned Labour Court that the employee was made permanent on the post of Estate Supervisor from 01.01.1991 and was getting the monthly salary of Rs.38,351/-. Written resignation was given through WhatsApp by the employee on 11.07.2019 without being signed informing his desireness to retire from September, 2019. Thereafter, the said resignation was accepted on 16.07.2019 and he was permitted to retire from 20.09.2019 and it was informed to the employees to collect the amount which is due as per the rules. 3.1. Thereafter, on 20.07.2019 it was informed by the employee to employer that under the force of filing a police complaint, he sent the draft of resignation and thereafter, on inquiring he came into the knowledge that the complaint which was given under money lending dated 01.07.2019 was subsequently withdrawn by the said complaint on 07.07.2019. The said communication was sent through the registered post ad which was received by the employee however, thereafter it was informed to the employee to hand over the charge to the other person and he was paid his leave encashment as well as gratuity amount by way of cheque on 20.09.2019 and amount was transferred in his account. Being aggrieved by the aforesaid action of the employer demand notice was issued by the employee and the dispute was referred on filing the failure report by the appropriate government to the learned Presiding Officer, Junagadh. Learned Labour Court after considering the evidence has framed 3 points for consideration which are as follows: (I) Whether the employer is falling under the definition of section 2(j) i.e ‘Industry’? (II) Whether the action of the respondent accepting the resignation with effect from 20.09.2019 is illegal? Learned Labour Court after considering the evidence has framed 3 points for consideration which are as follows: (I) Whether the employer is falling under the definition of section 2(j) i.e ‘Industry’? (II) Whether the action of the respondent accepting the resignation with effect from 20.09.2019 is illegal? (III) Whether the workman is entitled for reinstatement along with other consequential benefits? 4. At the end learned Labour Court came to the conclusion that the employer-Trust is falling under the definition of ‘industries’ and resignation which was accepted with affect from 20.09.2019 is illegal and therefore, the workman is entitled for reinstatement without back wages. The learned Labour Court allowed the reference partly vide judgement dated 18.03.2023 which has been challenged by the employee and employer by separate petitions and the same is subject matter for consideration before this Court. 5. Heard learned advocate Mr.Vimal Purohit for the petitioner-employer and Mr.Jeet Rajyaguru for the respondent-workman. 5.1. Learned advocate Mr.Vimal Purohit submits that though specific contention was raised with regard to the jurisdictional aspect by the learned Labour Court as the respondent does not fall under the definition of section 2(s) of the Act i.e workman, however, learned Labour Court did not frame any point for consideration and determine the said issue. Learned advocate Mr.Vimal Purohit submits that the employee was appointed as a supervisor and undisputedly, as per his own pleading he was drawing a salary of Rs.38,351/- per month which exceeds the amount of Rs.10,000/-, therefore, does not fall under the definition of workman under section 2(s) of the Act, 1947. Learned advocate Mr.Vimal Purohit submits that learned Labour Court would not have jurisdiction to entertain such reference however, learned Labour Court without adjudicating on the said issued has casually recorded the finding that respondent workmen is falling under the definition of section 2(s) of the I.D. Act. Learned advocate Mr.Vimal Purohit submits that it is duty of the learned Labour Court to determine the nature of work and thereafter, to ascertain whether such person is a workman or not. Learned advocate Mr.Vimal Purohit further submits that bare contention that employee did not perform managerial or supervisory duty does not ipso facto mean that person is a workman. Learned advocate Mr.Vimal Purohit submits that it is duty of the learned Labour Court to determine the nature of work and thereafter, to ascertain whether such person is a workman or not. Learned advocate Mr.Vimal Purohit further submits that bare contention that employee did not perform managerial or supervisory duty does not ipso facto mean that person is a workman. Learned advocate Mr.Vimal Purohit further reliese on the definition under section 2(s) of the Act, 1947 and has submitted that the petitioner was not doing manual, skilled, unskilled, technical, operational, clerical or supervisory work. 5.2. Learned advocate Mr.Vimal Purohit submits that onus lies on the employee to prove that he is a workman as the same was disputed by the employee. Learned advocate Mr.Vimal Purohit submits that as there was no point for determination regarding the disputed questions of workman, no evidence was led by the either side and no adjudication took place on the said critical issue and therefore, there is no finding given by the learned Labour Court on the nature of the work and the duty assigned to the workman. 5.3. Learned advocate Mr.Vimal Purohit relied on the chief examination below Exh.11 of the workman wherein, he specifically stated that he is employee since 01.01.1991 and he was assigned the duty as Estate Supervisor. As per his own admission he was having the responsibility including administering the rental income and ensuring that there is no encroachment on the property. Learned advocate Mr.Vimal Purohit submits that, in fact, from his own evidence it comes on the record that he was performing administrative and executive functions however, by overlooking the critical admissions learned Labour Court has passed award in the favour of the workman. Learned advocate Mr.Vimal Purohit submits that there are number judgements in which it is held that even if the resignation was given with a future affect then also the same is valid from the date of communication. Learned advocate Mr.Vimal Purohit further submits that after tendering the letter of withdrawal of resignation, the retirement dues were accepted by the employee without objection and the same were retained until the final disposal of the reference by learned Court. Learned advocate Mr.Vimal Purohit further submits that after tendering the letter of withdrawal of resignation, the retirement dues were accepted by the employee without objection and the same were retained until the final disposal of the reference by learned Court. Learned advocate Mr.Vimal Purohit submits that acceptance of the retirement dues, without any objection in the pleadings or averments in the plaint and without framing any issues regarding the retirement dues, without employees consent leads to the conclusion that the employee waves his right to pursue the withdrawal of the resignation. 5.4. Learned advocate Mr.Vimal Purohit submits that the resignation was accepted within a week of the date of communication of voluntary resignation and though it is contended in the withdrawal communication that it was draft resignation however, on the record no such evidence was led showing the intention of such draft letter. Learned advocate Mr.Vimal Purohit submits that resignation would commence from the date mentioned in the letter of resignation or prospective date of resignation when it is accepted and the retirement dues were paid and thereafter, the charge was also handed over to the other person without any protest and after more than 4 months of the date of receipt of the benefits, by an afterthought, the reference was made. Learned advocate Mr.Vimal Purohit has relied on the cross-examination of the employee wherein it is specifically admitted that before letter on withdrawal of resignation could be considered the workman had also received the retirement dues and benefits and despite being disputed the resignation the said amount has not been returned to the Trust. It is further admitted in the cross-examination that without objection on 16.07.2019 the charge was handed over to other employee. Learned advocate Mr.Vimal Purohit further submits that workman was admittedly engaged in the money lending activity as side business without having any license and therefore, show cause notice was issued to the workman and on receiving the said notice the resignation was tendered to see that no departmental proceedings be initiated. 5.5. Learned advocate Mr.Vimal Purohit submits that Learned Labour Court has also committed error in holding that the Trust was engaged in systematic activity and therefore, it classified under the definition of industries as per section 2(j) of the Act, 1947. 5.5. Learned advocate Mr.Vimal Purohit submits that Learned Labour Court has also committed error in holding that the Trust was engaged in systematic activity and therefore, it classified under the definition of industries as per section 2(j) of the Act, 1947. Learned advocate Mr.Vimal Purohit submits that no cogent evidence were placed before the learned Court to show that any systematic activities were going on and therefore, also the impugned judgement deserves to be interfered with. Learned advocate Mr.Vimal Purohit further submits that the employer, being a temple Trust, is not an industry or a commercial entity but rather a non-profit organization solely dedicated to religious, spiritual and charitable activities. Its prime focus is on the management of religious rituals, temple maintenance and providing services to devotees. The said activities were undertaken with an object of spiritual service oriented with no commercial interest and therefore, the basic test which is laid down in the judgement of the Apex Court in the case of Bangalore water supply & Sewerage Vs. R.Rajappa & Ors. reported in 1978 (2) SCC 213 was not satisfied, on that ground also the award deserves to be set aside. 5.6. The learned advocate Mr.Vimal Purohit further submits that the petition which is filed by the workman claiming back wages is also required to be dismissed as there is no automatic rule that back wages be granted upon setting aside the termination order. Merely setting aside the termination order does not entitle the workman to have the back wages unless it is proved that workman was not gainfully employed during the relevant period of time. Learned advocate Mr.Vimal Purohit submits that for not granting the back wages learned Labour Court has relied on the resignation and held that workman was gainfully employed and therefore, he tendered resignation. Learned advocate Mr.Vimal Purohit submits that in absence of discharging the onus to show that he was not gainfully employed and he could not secure a job, the workman is not entitled for the back wages and therefore also, the petition filed by the workman being SCA No.11070 of 2023 also requires to be dismissed. Learned advocate Mr.Vimal Purohit further submits that award passed by the learned Labour Court deserves to be set aside and petition filed by the employer requires to be allowed. 6. Learned advocate Mr.Vimal Purohit further submits that award passed by the learned Labour Court deserves to be set aside and petition filed by the employer requires to be allowed. 6. On the other hand it was submitted by Learned advocate Mr.Jeet Rajyaguru for the workman who is the petitioner in SCA No. 11070 of 2023 that initial appointment of the workman was from June, 1988 and thereafter, his service were regularized from 01.01.1991. Learned advocate Mr.Jeet Rajyaguru submits that it is evidence from the material place on the record that at the relevant point of time that is on 01.11.1988 the settlement was arrived between the Union and the respondent-Trust. It transpires from the aforesaid settlement that though it is pleaded that respondent is a charitable trust however, settlement took place under the provisions of the I.D. Act, 1947. Therefore, Trust is amenable to the provisions of the Act, 1947. It is further submitted that the petitioner workman was Estate Supervisor and he was drawing the salary of approximately Rs.38,351/- per month and his work is only to look after rented and lease property given by the respondent to some third party and has to collect the rent from the person occupying the premises. Beyond that, no powers are assigned to the petitioner. In the event of non payment of rent his duty is to inform the department. Under the nature of this work and duty performed by the petitioner it clearly falls under the definition of section 2(s) of the Act, 1947. Learned advocate Mr.Jeet Rajyaguru further submits that the Trust has a man power, own their own properties i.e hotels, malls and restaurants and those properties are given on rent or on lease basis to the third parties. Therefore, entire activity of the Trust cannot be termed as charitable trust and is clearly falling under the three test which is specified by the Apex Court in Bangalore water supply & Sewerage Vs. R.Rajappa & Ors. (supra) as the same are systematic activities organized by the co-operation between the employer and employee and for production and distribution of goods and services calculated to satisfy the human wants and wishes. 6.1. The absence of profit motive or gainful objective is irrelevant with the venture of public, joint or private sector. The true focus is only on functional and decisive test nature of activity with special emphasis on employer-employee relation. 6.1. The absence of profit motive or gainful objective is irrelevant with the venture of public, joint or private sector. The true focus is only on functional and decisive test nature of activity with special emphasis on employer-employee relation. In absence of any rebuttal evidence the learned courts below has held that respondent Trust is falling under the definition of section 2(j) of the Act and therefore, no interference is required on that ground. 6.2. Learned advocate Mr.Jeet Rajyaguru submits that the resignation was tendered stating that his son was in the last year of BCA and petitioner having family responsibility and therefore, prospective resignation was given on 11.07.2019 to be effective in the month of September, 2019. On 16.07.2019 the Trust accepted the resignation of the petitioner with effect from 20.09.2019 and vide communication dated 20.07.2019 the resignation came to be withdrawn by stating few reasons to the respondent Trust. On 16.09.2019 an office order came to be passed and petitioner was relieved from the services and was directed to collect the gratuity and leave salary etc, from the Accounts Department. The said communication was addressed though they were having the knowledge of the withdrawal of his resignation communication dated 20.07.2019 i.e before prospective date and in view of the above withdrawal of resignation, the relieving from the service would amount to retrenchment and same is under the violation of the Act, 1947. 6.3. Learned advocate Mr.Jeet Rajyaguru submits that once it was disclosed before the learned Labour Court that he is unemployed and despite having made efforts to get the job he remained unsuccessful then burden would be shifted on the respondents to come up with a specific case or evidence of earning of the workman. In absence of the same, learned Labour Court has committed error in not awarding back wages and therefore, the award passed by the learned Labour Court qua non granting back wages deserves to be set aside and the petition filed by the workman being SCA No. 11070 of 2023 requires to be allowed. Learned advocate Mr.Jeet Rajyaguru submits that so far as the petition filed by the Trust is concerned, the same deserves to be dismissed as no jurisdictional error as claimed by the Trust is committed and therefore, the same cannot be interfered with. 7. Learned advocate Mr.Jeet Rajyaguru submits that so far as the petition filed by the Trust is concerned, the same deserves to be dismissed as no jurisdictional error as claimed by the Trust is committed and therefore, the same cannot be interfered with. 7. On giving thoughtful consideration of the submissions made by the learned advocates for the respective parties, following points are required to be considered: (I) Whether the employer-Trust is falling under the definition of ‘industries’ i.e under section 2(j) of the Act, 1947? (II) Whether the respondent-employee is falling under the definition of workman under section 2(s) of the Act, 1947? (III) Whether the resignation which was given and subsequently withdrawn is illegal, invalid and arbitrary? 7.1. So far as first issue that whether the Trust is falling under the definition of ‘industry’ is concerned learned Labour Court has relied on the decision rendered by the Apex Court in Bangalore Water Supply and Sewerage Board (supra), more particularly, paragraph 161 and held that the petitioner trust is falling under the three test which are specified. For convenience, paragraph 161 is produced hereinbelow: “"161. 'Industry as defined in Sec. 2(j) and explained in Banerji's case has a wide import. (a) Where (i) systematic activity, (ii)organized by cooperation between employer and employee (the direct and substantial element is chimerical); (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious, but inclusive of material things or services geared to celestial bliss e.g. making, on a large prasad or food), prima facie there is 'industry' in that enterprise. (b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. (c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer employee relations. (d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking. II. Although Section 2(j) uses words of the widest. amplitude in its two limbs, their meaning cannot be magnified to overreach itself. (a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service, calling and the like. II. Although Section 2(j) uses words of the widest. amplitude in its two limbs, their meaning cannot be magnified to overreach itself. (a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service, calling and the like. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be 'industry' provided the nature of the activity, viz. the employer employee basis. Bears resemblance to what we find in trade or business. This takes into the fold of 'industry' undertakings, callings and services, adventures' analogous to the carrying on of trade or business'. All features, other than the methodology of carrying on the activity viz. in organizing the cooperation between employer and employee, may be dissimilar. It does not, matter, if on the employment terms there is analogy. III. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more. (a) The consequences are (i) professions, (ii) clubs (iii) educational institutions (iv) cooperatives, (v) research institutes (vi) charitable projects and (vii) other kindred adventures, if they fulfill the triple tests listed in (supra), cannot be exempted from the scope of Section 2(j). (b) a restricted category of, professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and going by the dominant nature criterion, substantively no employees are entertained employees but in minimal matters, marginal are hired without destroying the non- employee character of the unit. (b) a restricted category of, professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and going by the dominant nature criterion, substantively no employees are entertained employees but in minimal matters, marginal are hired without destroying the non- employee character of the unit. (c) If, in a pious or altruistic mission, many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre on asramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master servant and institution is not servants, manual relationship, industry an are technical, or then the even if stray hired. Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project. IV. The dominant nature test: (a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case or some departments are not 'productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status. (b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone), qualify for exemption, not the welfare activities of economic adventures undertaken by Government or statutory bodies. (c) Even in departments discharging sovereign functions if there are units which are industries and they are substantially severable, then they can be considered to come within sec. 2(j). (d) Constitutionally and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby. (c) Even in departments discharging sovereign functions if there are units which are industries and they are substantially severable, then they can be considered to come within sec. 2(j). (d) Constitutionally and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby. V. We overrule Safdarjung ( AIR 1970 SC 1407 ), Solicitors' case ( AIR 1962 SC 1080 ), Gymkhana ( AIR 1968 SC 554 ), Delhi University ( AIR 1963 SC 1873 ), Dhanrajgirji Hospital ( AIR 1975 SC 2032 ) and other rulings whose ratio runs counter to the principles enunciated above, and Hospital Mazdoor Sabha ( AIR 1960 SC 610 ) is hereby rehabilitated."” 7.2. The evidence which was led to show that petitioner Trust is falling under the definition of industry is that the evidence recorded below Exh.11 of the workman wherein, he category stated that the Trust is running a guest-house, restaurants and taking the charges from the persons who are using the same. This evidence is not challenged or rebutted during the cross-examination to show that there is no any systematic activities, as claimed by the workman, is going on. In absence of any rebuttal evidence, learned Labour Court has not committed any error in concluding that that absence of profit motive and gainful objective is irrelevant in the public, joint, private or other sector to show that they are not industry. In view of the same this Court is of the view that learned Labour Court is justified in holding that petitioner Trust is falling under the definition of section 2(j) of the Act, i.e industries. 7.3. So far as second issue is concerned it appears that the learned Labour Court did not frame any point for determination though dispute was raised by the Trust in his written statement that respondent-workman does not fall under the category of section 2(s) of the Act, 1947. In absence of framing of issues, no adjudication was made by the learned Labour Court to arrive at a conclusion that respondent is a workman. When it is disputed by the present petitioner proper course for the Labour Court to frame the issue as to question whether employee was workmen and thereafter on jurisdictional aspects formal order was required to be passed after considering the evidence of the same. When it is disputed by the present petitioner proper course for the Labour Court to frame the issue as to question whether employee was workmen and thereafter on jurisdictional aspects formal order was required to be passed after considering the evidence of the same. Learned Labour Court appears to have overlooked the aforesaid critical aspect and proceeded on the assumption that the employee was workman and learned Labour Court has jurisdiction to examine the same on merits. Admittedly, the respondent-workman was working as an Estate Supervisor and getting the salary of Rs.38,3851/-. At this stage section 2(s) of the Act, 1947 is required to be referred which is reproduced hereinbelow: "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-[Substituted by Act 46 of 1982, Section 2, for Cl. (s) (w.e.f. 21.8.1984).] (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.” 7.4. 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. The nature of duty performed by the petitioner when he was in the employment of the respondent - establishment is also narrated. 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 section refers to the term supervisory twice in this Sub Section. However, 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.10,000/- 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.10,000/- 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. 7.5. Keeping the definition in mind and the nature of duties and functions performed by the workmen, if one examines then the responsibility of the workmen as stated in the chief-examination included administering the rental income, ensuring that no encroachment is made on the property is made by any person which prima facie shows that he was performing executive and administrative functions. At this stage the judgement of Apex Court in the case of Sonepat Cooperative Sugar Mills Lts Vs.Ajit Singh reported in 2005 3 SCC 232 is to be considered which is reproduced hereinbelow: “15.A bare perusal of the aforementioned provision clearly indicates that a person would come within the purview of the said definition if he : (i) is employed in any industry; and (ii) performs any manual, unskilled, skilled, technical, operational, clerical or supervisory work. 16.Thus, a person who performs one or the other jobs mentioned in the aforementioned provisions only would come within the purview of 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 regard 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 concerned employee 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. 17.In Miss A. Sundarambal vs. Government of Goa, Daman and Dieu and Others [ (1988) 4 SCC 42 ], teachers serving in an educational institution being not found to be performing any duty within the aforementioned category has been held not to be workmen. Similarly, an advertising manager, a chemist employed in a sugar mill, gate sergeant in charge of watch and ward staff in a tannery, a welfare officer in a commercial educational institution have also not been held to be workmen. The Respondent had not been performing any stereotype job. His job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the Appellant as also represent it before various courts/authorities. He would also discharge a quasi-judicial functions as an Enquiry Officer in departmental enquiries against the workmen. Such a job, in our considered opinion, would not make him a workman. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the Appellant as also represent it before various courts/authorities. He would also discharge a quasi-judicial functions as an Enquiry Officer in departmental enquiries against the workmen. Such a job, in our considered opinion, would not make him a workman. 18.In S.K. Verma (supra), this Court without taking into consideration the earlier binding precedents and in particular the decision of May & Baker (India) Ltd. vs. Workmen [ AIR 1967 SC 678 ] arrived at a conclusion that an employee who does not perform any supervisory or managerial nature of duties, would be a workman. S.K. Verma (supra) was held to have been rendered per incuriam by a Constitution Bench of this Court in H.R. Adyanthaya (supra). 19.The question came up for consideration recently before this Court in Mukesh K. Tripathi vs. Senior Divisional Manager, LIC and Others [ (2004) 8 SCC 387 ], wherein it was held : "21.Once the ratio of May and Baker (supra) and other decisions following the same had been reiterated despite observations made to the effect that S.K. Verma (supra) and other decisions following the same were rendered on the facts of that case, we are of the opinion that this Court had approved the reasonings of May and Baker (supra) and subsequent decisions in preference to S.K. Verma (supra). 22.The Constitution Bench further took notice of the subsequent amendment in the definition of 'workman' and held that even the Legislature impliedly did not accept the said interpretation of this Court in S.K. Verma (supra) and other decisions. 23.It may be true, as has been submitted by Ms. Jaisingh, that S.K. Verma (supra) has not been expressly overruled in H.R. Adyanthaya (supra) but once the said decision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law. This Court is bound by the decision of the Constitution Bench. This court opined : 34."The definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a 'workman' defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise. This court opined : 34."The definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a 'workman' defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise. 36.A 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprentices Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute." 20.The said decision has been followed by this Court in U.P. State Electricity Board vs. Shiv Mohan Singh. 21.It is now trite that the issue as to whether an employee answers the description of a workman or not has to be determined on the basis of a conclusive evidence. The said question, thus, would require full consideration of all aspects of the matter. 22.The jurisdiction of the Industrial Court to make an award in the dispute would depend upon a finding as to whether the concerned employee is a workman or not. When such an issue is raised, the same being a jurisdictional one, the findings of the Labour Court in that behalf would be subject to judicial review. 23.The High Court furthermore applied wrong legal tests in following S.K. Verma (supra) in upholding the views of the Labour Court which itself approached the matter from a wrong angle. The Labour Court as also the High Court also posed a wrong question unto themselves and, thus, misdirected themselves in law. 24.In Cholan Roadways Limited Vs. 23.The High Court furthermore applied wrong legal tests in following S.K. Verma (supra) in upholding the views of the Labour Court which itself approached the matter from a wrong angle. The Labour Court as also the High Court also posed a wrong question unto themselves and, thus, misdirected themselves in law. 24.In Cholan Roadways Limited Vs. G. Thirugnanasambandam [ 2004 (10) SCALE 578 ], this Court held: "34In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out."” 25.In this view of the matter, the impugned award and the judgments are not legally sustainable.” 7.6. This Court is of the view that in absence of determining issue with regard to the workmen learned Labour Court has committed grave error in concluding the resignation was illegal and therefore, the workmen is entitled for reinstatement. The critical issue which leads to the jurisdictional aspect is required to be decided by the learned Labour Court after considering the evidence on record and therefore, judgement and award passed by the Learned Labour Court in Reference (T) No.199 of 2019 dated 18.03.2023 requires to be quashed on the said ground. 7.7. The critical issue which leads to the jurisdictional aspect is required to be decided by the learned Labour Court after considering the evidence on record and therefore, judgement and award passed by the Learned Labour Court in Reference (T) No.199 of 2019 dated 18.03.2023 requires to be quashed on the said ground. 7.7. In the opinion of this Court reference is required to be remanded back to the learned Labour Court to decide the issue that whether employees can be termed as workman after framing issues and taking the evidence afresh and thereafter, same shall be decided on merits by the learned Labour Court as well. As this Court is remanding back the matter to the learned Labour Court with regard to deciding the jurisdictional issue the third issue regarding resignation is required to be kept open before the learned Labour Court to decide the same after deciding the jurisdictional aspect regarding issue of workman. 8. In view of the same, the petition being SCA No.9611 of 2023 is succeeded in part and judgement and order dated 18.03.2023 in Reference (T) No.199 of 2019 is set aside. The reference is remitted back and learned Labour Court is directed to frame issue as whether the employee respondent herein is a workman within the meaning of Act, 1947 and the same shall be decided as expeditiously as possible within a period of 6 months from the date of receipt of this order and depending upon the same decision learned Labour Court shall proceed further with the matter regarding the resignation and other issues if any raised. Rule made absolute to the above extent. 9. All the contentions regarding the resignation are kept open reserving liberty to the parties to urge and plead before the learned Labour Court. 10. Resultantly, SCA No.11070 of 2023 filed by the employee is also disposed of, in view of the order passed in SCA No.9611 of 2023. Rule is discharged accordingly. ORDER IN C.A. NO.1 OF 2024 IN SCA NO.9611 OF 2023 In view of the order passed in SCA No. 9611 of 2023 and SCA No. 11070 of 2023, this application is disposed of.