# H.R. ADYANTHAYA v. SANDOZ (INDIA) LTD

- **Citation:** [1994] Supp. 2 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1994-08-11
- **Bench:** Kuldip Singh, P.B. Sawant, S. Mohan, G.N. Ray, N.P. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-r-adyanthaya-v-sandoz-india-ltd-12314
- **Pages:** 25

## Headnote

Labour Law : Industrial Disputes Act, 1947.
A
B
Section 2(S }-Workman-Nature of work-Must be any of seven
C
categories-Not covered by exceptions-Medical representative-Held : Not.
workman.
Maharashtra Recognition of Trade Unions & Prevention of unfair
Labour Practices Act, 1971.
Section 3(18}-Workman-Medical representative-Held : Not work·
man.
The question that fell for consideration in these matters was whether
D
the 'medical representatives' as they are commonly known; are workmen
according to the definition of ''workman" under Section 2(s) of the In· E
dustrial Disputes Act. 1947.
On behalf of the appellants, it was contended that the definition of
workman under the ID Act includes all employees except those covered by
the four exceptions to the said definition; and that the medical repre· F
sentatives perform the duties of skilled and technical nature and, there·
fore, they are workmen;
In W.P. 5259 of 1980 ou behalf of the petitioner, it was contended
that the Sales Promotion Employees (Conditions of Service ) Act, 1976
(The 'SPE Act"}, as it was originally enacted, made a distinction between G
employees drawing wages not exceeding Rs. 750 per mensem and those
drawing wages above this amount which is violative of Article 14 of the
Constitution.
In C.A. No. 818 of 1992 the dispute arose out of transfers of the H
573
574
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A appellants effected on 16th February, 1988. The complaint was made to the
Industrial Court under the Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act, 1971 (the "Maharashtra Act"),
On behalf of the appellants, it was contended that the Medical representatives are workmen within the Maharashtra Act.
B
Dismissing the appeals, this Court
Held : 1. A person to be a workman under th Industrial Disputes
Act, 1947, as amended, (the "ID Act") must be employed to do the work of
any of the categories, viz., manual, unskilled, skilled, technical, operationC al, clerical or supervisory. It is not enough that he is not covered by either
of the four exceptions to the definition. [589-D]
May & Baker (India) Ltd. v. B Their workmen, (1962) LIJ 94; Western
India Match Co. Ltd. v. Their Workmen, (1964] 3 SCR 560 andBwma Shell
Oil Storage & Distribution Co. of India v. Bunna Shell Management Staff
D Association & Ors., (1971] 2 SCR 758, approved.
E
S.K. Venna v. Mahesh Chandra &Anr, (1983] 3 SCR 799; VedPrakash
Gupta v. Delton Cable India (P} Ltd., [1984] 3SCR169 andArkal Govind
Raj Rao v. Ciba Geigy of India Ltd., Bombay, [1985] Supp.I SCR 282, held
inapplicable.
2. The word "skilled' in the context in which it is used will n11t Include
the work of a medical representative. As regards the 'technical' nature of
their work, it bas been expressly rejected by this Court in 'Bwma Shelf
case. Hence medical representatives are not workmen within the meaning
F
of Section 2(s) of the I.D. Act. (592-E, D]
I .
G
. 3. It is permissible to classify workmen on the basis of their income
although the work that they do is of same nature. The protective umbrella
need not cover all the workmen doing the particular type of work. It can
extend to them in stages. (593-H; 594-A]
4. The medical representatives are not workmen within the meaning
of the Maharashtra Act and the complaint made to the Industrial Court
under Act was not maintainable. (596-F]
M/s. Kasturi and Sons (Pvt.) Ltd. v. Shri N. Salivateeswaran & Anr.,
H
(1959] SCR 1, held inapplicable.
H.R.ADYANTHAYAv. SANDOZ[SAWANT,J.).
575
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal A
No. 235 of 1983.
From the Judgment and Order dated 18.07.1980 of the Industrial
Court at Bombay in Complaint (ULP) No. 66/78
With W.P. (C) No. 5259/80, C.A. No. 242/90, C.A. No. 818/92 and B
S.L.P. (C) No. 5641/83.
Shekhar Naphade, Mrs. Urmila Sirur, Soli J. Sorabjee, P.K. Rele,
H.S. Parihar, Kuldip Parihar, N.N. Goswamy, R.P. Srivastava, Arvind Kr.
Sharma, C.V.S. Rao, A.S. Bhasme, Jitendra Sharma, A.K. Sanghi, R.F.
Nariman,

## Text

_Characters 0–39,997 of 60,777. This is a partial read: ask again with offset=39997 for what follows._

H.R. ADYANTHAYA
v.
SANDOZ (INDIA) LTD.
AUGUST 11, 1994
[KULDIP SINGH, P.B. SAWANT, S. MOHAN, G.N. RAY
AND N.P. SINGH, JJ.]
Labour Law : Industrial Disputes Act, 1947.
A
B
Section 2(S }-Workman-Nature of work-Must be any of seven
C
categories-Not covered by exceptions-Medical representative-Held : Not.
workman.
Maharashtra Recognition of Trade Unions & Prevention of unfair
Labour Practices Act, 1971.
Section 3(18}-Workman-Medical representative-Held : Not work·
man.
The question that fell for consideration in these matters was whether
D
the 'medical representatives' as they are commonly known; are workmen
according to the definition of ''workman" under Section 2(s) of the In· E
dustrial Disputes Act. 1947.
On behalf of the appellants, it was contended that the definition of
workman under the ID Act includes all employees except those covered by
the four exceptions to the said definition; and that the medical repre· F
sentatives perform the duties of skilled and technical nature and, there·
fore, they are workmen;
In W.P. 5259 of 1980 ou behalf of the petitioner, it was contended
that the Sales Promotion Employees (Conditions of Service ) Act, 1976
(The 'SPE Act"}, as it was originally enacted, made a distinction between G
employees drawing wages not exceeding Rs. 750 per mensem and those
drawing wages above this amount which is violative of Article 14 of the
Constitution.
In C.A. No. 818 of 1992 the dispute arose out of transfers of the H
573
574
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A appellants effected on 16th February, 1988. The complaint was made to the
Industrial Court under the Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act, 1971 (the "Maharashtra Act"),
On behalf of the appellants, it was contended that the Medical representatives are workmen within the Maharashtra Act.
B
Dismissing the appeals, this Court
Held : 1. A person to be a workman under th Industrial Disputes
Act, 1947, as amended, (the "ID Act") must be employed to do the work of
any of the categories, viz., manual, unskilled, skilled, technical, operationC al, clerical or supervisory. It is not enough that he is not covered by either
of the four exceptions to the definition. [589-D]
May & Baker (India) Ltd. v. B Their workmen, (1962) LIJ 94; Western
India Match Co. Ltd. v. Their Workmen, (1964] 3 SCR 560 andBwma Shell
Oil Storage & Distribution Co. of India v. Bunna Shell Management Staff
D Association & Ors., (1971] 2 SCR 758, approved.
E
S.K. Venna v. Mahesh Chandra &Anr, (1983] 3 SCR 799; VedPrakash
Gupta v. Delton Cable India (P} Ltd., [1984] 3SCR169 andArkal Govind
Raj Rao v. Ciba Geigy of India Ltd., Bombay, [1985] Supp.I SCR 282, held
inapplicable.
2. The word "skilled' in the context in which it is used will n11t Include
the work of a medical representative. As regards the 'technical' nature of
their work, it bas been expressly rejected by this Court in 'Bwma Shelf
case. Hence medical representatives are not workmen within the meaning
F
of Section 2(s) of the I.D. Act. (592-E, D]
I .
G
. 3. It is permissible to classify workmen on the basis of their income
although the work that they do is of same nature. The protective umbrella
need not cover all the workmen doing the particular type of work. It can
extend to them in stages. (593-H; 594-A]
4. The medical representatives are not workmen within the meaning
of the Maharashtra Act and the complaint made to the Industrial Court
under Act was not maintainable. (596-F]
M/s. Kasturi and Sons (Pvt.) Ltd. v. Shri N. Salivateeswaran & Anr.,
H
(1959] SCR 1, held inapplicable.
H.R.ADYANTHAYAv. SANDOZ[SAWANT,J.).
575
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal A
No. 235 of 1983.
From the Judgment and Order dated 18.07.1980 of the Industrial
Court at Bombay in Complaint (ULP) No. 66/78
With W.P. (C) No. 5259/80, C.A. No. 242/90, C.A. No. 818/92 and B
S.L.P. (C) No. 5641/83.
Shekhar Naphade, Mrs. Urmila Sirur, Soli J. Sorabjee, P.K. Rele,
H.S. Parihar, Kuldip Parihar, N.N. Goswamy, R.P. Srivastava, Arvind Kr.
Sharma, C.V.S. Rao, A.S. Bhasme, Jitendra Sharma, A.K. Sanghi, R.F.
Nariman, P.H. Parekh, Ms. Prerna Kohli, P. Gaur, B.K. Pal, Ms. Gunwant C
Dara, Ashok Desai, J.P Carna, LR. Singh and Mukul Mudgal for the
appearing parties.
The Judgment of the Court was delivered by
SAWANT, J. The question that falls for consideration in these mat- D
ters is whether the 'medical representatives' as they are commonly known,
are workmen according to the definition orworkman" under section 2(s)
of the Industrial Disputes Act, 1947 (the ID 'Act'). The definition under
this section has undergone changes since its first enactment. It is necessary
to keep in mind the said changes since the decisions of the Court delivered E
on the point from time to time are based on the definition, as it stood at
the relevant time. The definition, as it stood originally when the ID Act
came into force w.e.f. 1.4.1947, read as follows :
'(s) "workman' means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or F
clerical work for hire or reward and includes, for the purposes of
any proceeding under this Act in relation to an industrial dispute,
but does not include any person employed in the naval, military,
or air service of the Crown.'
It was amended by Amending Act 36 of 1956 which came into force G
from 29th August, 1956 to read as follows :
'(s) 'workman" means any person (including an apprentice)
employed in any industry to do any skilled or unskilled manual,
supervisory technical or clerical work for hire or reward, whether
the terms of employment be express or implied, and for the purposes H
576
A
B
•
SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.
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 Army Act, 1950, or the Air Force Act,
1950, or the Navy (Discipline )Act, 1934; or
(ii) who is employed in the police service or as an officer or other
employee of a prison; or
C
(iii) who is employed mainly in a managerial or administrative
capacity; or
(iv) who, being employed in a supervisory capacity, draws wages
exceeding five hundred rupees per mensem or exercises, either by
the nature of the duties attached to the office or by reason of the
D
powers vested in him, functions mainly of a managerial nature."
The change brought about by this Amendment was that the persons
employed to do 'supervisory" and "technical' work were also included in
the definition for the first time by this Amendment, although those who
were employed in a supervisory capacity were so included in the definition
E provided their monthly wage did not exceed Rs.500. The definition of
'workman' was further amended by Amending Act 46 of 1982 which was
brought into force w.e.f. 21.8.1984. It read as :
F
G
"(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, discharge<! 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);
H
or
H.R.ADYANTIIAYAv. SANDOZ[SAWANT,J.]
577
(ii) who is employed in the police service or as an officer or other A
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
B
exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or
by reason of the powers vested in him, functions mainly of a
managerial nature."
The first change brought about by thls ame11dment was that whereas
C
earlier only those who were doing unskilled or skilled manual work were
included in the said definition, now those who did any unskilled or skilled
work, whether manual or not, came to be included in it. The second and
the most important change that was brought about was that those persons
who were employed to do "operational" work were also brought within the D
fold of the said definition.
We are not referring to the other changes which the definition of
"workman" underwent, after its enactment in 1947 since they are not
relevant for our purpose.
What is further necessary to remember is that the Ame11ding Act 46
of 1982 simultaneously brought about a change in the definition of "wages"
under Section 2 (rr) of the ID Act and for the first time included the
following in the said definition :
"(iv) any commission payable on the promotion of sales or business
or both;
11
It is also instructive to point out, in thls connection, that along with
E
F
the change in the definition of "wages", the definition of'industry" under
Section 2 G) has also been amended. The relevant part of the amended G
defmition reads as follows :
"G) "industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such
workmen are employed by such employer directly or by or through
any agency, including a contractor) for the production, snpply of H
A
B
c
D
E
578
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
distribution of goods or services with a view to satisfy human wants
or wishes (not being wants or \vishes which are merely spiritual or
religious in nature), whether or not, -
(i) any capital has been invested for the purpose of carrying on
such activity; or
(ii) such activity is carried on with a motive to make any gain or
profit, and includes -
(a) any activity of the Dock Labour Board established under
Section 5-A of the Dock Workers (Regulation of Employment)
Act, 1948 (9 of 1948);
(b) any activity relating to the promotion of sales or business or
both carried on by an establishment,
but does not include -
x x x x x x x x x x x x x x x x
It will be seen that by the amended definition of 'industry', an activity
relating to the promotion of sales or business of both, carried on by any
establishment is for the first time sought to be brought within the said
definition. However, the amended definition of "industry' has not till date
come into force.
In the light of the amended definitions of 'workman', and 'wages',
and that of 'industry' which has not yet become operative, we may now
refer to the decisions of this Court on the subject.
•
2. A three-judge bench of the Court in May & Baker (India Ltd. v.
Their Workmen, (1961) 2 LLJ 94} had to deal directly with the question as
to whether the medical representative of the company; who was discharged
from service, was a workman under the ID Act and the order of the
G reinstatement passed by the Industrial Tribunal was, therefore, valid. The
Court referred to the undisputed nature of the duties of the employee, and
found that his main work was that of canvassing sales. Any clerical or
manual work that he had to do, was incidental to the said main work, and
could not take more than a small fraction of the time for which he had to
H work. Jn the circumstances, the Court held that the Tribunal's conclusion
•
H.R.ADYANTIIAYAv. SANDOZ[SAWANT,J.]
579
that the employee was a workman under the ID Act, was incorrect. The A
Court also observed that the Tribunal in that case seemed to have been led
away by the fact that the employee had no supervisory duties and had to
work under the direction of his superior officers. The Court held that
would not necessarily mean that the employee's duties were mainly manual
or clerical. The Court.held that from what the Tribunal itself had found, it B
was clear that the employee's duties were mainly neither clerical nor
manual and, therefore, he was not a workman. Hence the Court set aside
the Tribunal's direction for reinstating the employee.
It is thus obvious from the decision that the contention on behalf of
the workman before the Industrial Tribunal as well as before this Court C
was that the employee was doing either manual or clerical work, and that
not only he had no supervisory duties but he was doing his work under the
direction of his superiors and, therefore, he was a workman within the
meaning of the definition of workman as it stood then. The dispute in
question had arisen prior to 6th January, 1956. The definition of 'workman' D
at the relevant time included only those persons who were employed to do
any skilled or unskilled manual or clerical work. Hence the relevant contention on behalf of the workman which was negatived by this Court. An
'inference from this decision is also possible, viz., that if the employees'
work was mainly manual or clerical, he would have, even as the definition
stood then, been covered by it.
E
The next decision is also of the same three-Judge Bench in Western
India Match Co. Ltd. v. Their Workmen, [1964] 3 SCR 560. The dispute
there was whether the workmen employed by the sales-office of the company were entitled to production bonu_s as were those employed in the
F
factory and the factory-office. The incidental question which arose in this
case was whether the sales-office was entirely independent of the factory
or was a department of the one and the same unit of production, and
whether inspectors, salesmen and retail salesmen of the sales-office were
workmen within the meaning of the U.P. Industrial Disputes Act. The G
'workman' was defined under the Act to mean "any person .......... to do any
manual, supervisory, technical or clerical work for hire or reward ... " which
definition was the same as under as under the Central Act, viz., the ID Act.
This dispute was referred by the State Government for adjudication to the
Industrial Tribunal on 18th August, 1961. The Tribunal had accepted the
ovidence of the workmen that the writing work of the inspectors, salesmen H
580
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
'
A and retail salesmen took 75 per cent of the time. This Court accepted the
B
said finding. On the question whether the sales office and the factory and
factory-office formed one and the same unit of the industrial establishment,
the Court held that all those growing or making articles as well as those
transporting them and also those ultimately completing the process by
bringing them to the ultimate consumer, were engaged in the activity of
producing wealth. It would, therefore, be unreasonable to say that those
who made the matches were "producing" and those who "sold" them were
not. The functional integrality, interdependence or community of financial
control and management; community of manpower and of its control,
recruitment and discipline; the manner in which the employer has orC ganised the different activities; whether he has treated them as independent
of one another or as interconnected and interdependent, are some of the
tests to find out whether the two units are part of one and the same
establishment. The Court further held that the difference in the rules and
practice in connection with their recruitment, control and discipline, in the
D standing orders applicable to them, and in the maintenance of their muster
rolls made no difference to the situation. So also the fact that the sales-office was playing rent to the factory for the area occupied by it. It would
thus appear that this decision mainly turned on the nature of the work done
by the said salesmen, viz., 75 per cent clerical work. We have referred to
the other aspect, viz., the integrality of the sales-office and the other parts
E of the establishment to emphasise that sales is as much an essential part of
an undertaking which is established for the manufacture and sale of a
product. It must be mentioned that there is no reference in this decision
to the earlier decision of the same Bench in May & Baker case (supra).
F
In Bunnah Shell Oil storage & Distribution Co. Of India v. Bunnah
Shall Management Staff Association & Ors., [1971) 2 SCR 758; AIR 1971
SC 922, the dispute, among others, was whether the Sales Engineering
Representatives and District Sales Representatives employed in the company were workmen within the meaning of the ID Act. The dispute had
arisen prior to 29th October, 1967. The argument on behalf of the workmen
G was that the definition of the "workman" (which at the relevant time also
included persons doing supervisory and technical work) was all comprehensive and contemplated that all persons employed in an industry must
necessarily fall in one or other of the four classes mentioned in the main
body of the definition, viz., those doing skilled or unskilled manual work,
H supervisory work, technical work or clerical _work, and consequently the
H.R.ADYANTHAYA v. SANDOZ[SAWANT, J.]
581
Court should proceed on the assumption that every person is a workman A
unless he fell under one of the four exceptions to the definition. The Court
rejected this contention. The Court referred to its earlier decision in May
& Baker case (supra) and pointed out that the Court had held that since
duties of the employees there were not mainly manual or clerical the
employee was not a workman. The Court also- pointed out that although B
that decision was based on the definition as it stood then, when the words
"supervisory" and "technical" did not occur there, if every employee of an
industry was to be a workman except those mentioned in the four exceptions, the four classifications, viz., manual, supervisory, technical and clerical need not have been mentioned in the definition, and the workman could
have been defined so as to include every person employed in an industry
except where he was covered by one of the exceptions. The specification
of the four types of work, according to the Court, was obviously intended
to lay down that an employee was to be a workman only if he was employed
to do work of one of those types. There may be employees who do not do
any such work and hence would be out of the scope of the definition. The
Court then gave an example of such workman who would be outside the
definition of workman even if he did not fall in any of the exceptions.
Coincidentally, the example given was that of a person employed in canvassing sales for an industry. According to the Court, he may not be
required to do any paper work nor may he be required to have any
technical knowledge . He may not be supervising the work of any other
employees, nor would he be doing any skilled or unskilled manual work.
Even if he is an employee of the industry, he would not be a workman
because the work for which he is employed is not covered by the four types
mentioned in the definition and not because he would be taken out of the
definition being under one of the exceptions. The Court then referred to
a case where employees are employed to do work of more than one of the
types mentioned in the definition, and pointed out that in such cases the
principle was well-settled that·a person must be held to be employed to do
c
D'
E
F
that work which is the main work he is required to do, even though he may
be incidentally doing several types of work. Referring in this connection to G
the May & Baker case (supra), the Court pointed out at that case, it was
'noticed that the employees' duties were mainly neither Clerical nor manual
although his duties did involve some clerical and manual work and hence
he was held not to be a workman. The Court then referred to the nature
of duties of Sales Engineering Representatives and the District Sales H
582
SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.
A
Representatives with whom, among others, the Court was concerned there.
B
c
With regard to the Sales Engineering Representative, the Court approved
of the finding of the Tribunal that he was not employed on a supervisory
work, but found fault with the Tribunal for not proceeding further to
examine whether he was employed on any other work of such a type that
he could be brought within the definition of workman. The Court then itself
examined the said question. Since there was no suggestion at all that he
was employed on clerical or manual work and all that was canvassed was
that he was doing technical work, the Court found that the amount of
technical work that he did was of ancillary nature to his chief duty of
promoting sales and giving advice. The mere fact that he was required to
have technical knowledge for such a purpose did not make his work
technical. According to the Court the work of advising and removing
complaints so as to promote sales remains outside the scope of technical
work. Consequently, the Tribunal's finding that the Sales Engineering
Representative was workman was set aside. Referring to the District Sales
D Representatives, the Court held that they were not doing clerical work, and
that they were principally employed for the purpose of promoting sales of
the company. Their main work was canvassing and obtaining orders. In that
connection, of course they had to carry on some correspondence, but that
correspondence was incidental to the main work of pushing sales of the
E
F
company. In connection with promotion of sales, they had to make recommendations for selection of agents and dealers; extension or curtailment of
credit facilities to agents, dealers and customers; investments of capital and
revenue in the shape of facilities at agent's preipises or retail outlets; and
selection of suitable· sites for retail outlets to maximise sales and negotiations for terms of new sites. On these facts, the Court held that the work
they were doing was neither manual nor clerical nor technical nor supervisory, and further added that the work of canvassing and promoting sales
could not be included in any of the said four classifications and the decision
given by the Tribunal that they were not workmen was valid.
In S.K Venna v. Mahesh Chandra & Anr., [1983) 3 SCR 799, the
G dispute was whether Development Officers of the Life Insurance Corporation of India (LIC) were workmen. The dispute arose on account of the
dismissal of the appellant-Development Officer w.e.f. 8th February, 1969.
The Court noticed that the change in the definition of workman brought
about by the Amending Act 36 of 1956 which, as stated above, 'lldded to
H
the originally enacted definition, two more categories of employees, viz.,
H.R.ADYANTHAYA v. SANDOZ [SAWANT.J.]
583
those doing "supervisory" and "technical" work. The three-judge bench of A
this Court did not refer to the earlier decisions in May & Baker, WIMCO
and Bunnah Shall cases (supra). The Bench only referred to the decision
of this Court in Workmen of Indian Standards Institution v. Management of
Indian Standards Institution, [1976] 2 SCR 138 where which considering
whether ISi was an "industry of not, it was held that since the ID Act was
a legislation intended to bring about peace and harmony between management and labour in an "industry", the test must be so applied as to give the
widest possible connotation to the term "industry" and, therefore, a broad
and liberal and not a rigid and doctrinaire approach should be adopted to
determine \Vhether a particular concern \Vas an industry or not. The Court,
therefore, held that to decide the question whether the Development
Officers in the UC were workmen or not, it should adopt a pragmatic and
not a pedantic approach and consider the broad question as to on which
side of the line the workman fell, viz., labour or management, and then to
consider \vhether there \Vere any goods reasons for moving them over from
B
c
one side to the other. The Court then noticed that the LIC Staff RegulaD
tions classified the staff into four categories, viz., (i) Officers, (ii) Development Officers, (iii) Supervisors and Clerical staff, and (iv) Subordinate
staff. The Court pointed out that Development Officers were classified
separately both from Officers on the one hand and Supervisor and Clerical
Staff on the other and that they as well as class III and Class IV Staff other
then Superintendents were placed on par inasmuch as their appointing and
disciplinary authority was the Divisional Manager whereas that of Officers,
E
was Zonal Manager. The Court also referred to their scales of pay and
pointed out that the appellation 'Development Officer' was no more than
a glorified designation. The Court then referred to the nature of duties of
the Development Officers and pointed out that a Development Officer was
to be a whole-time employee and that his operations were to be restricted
to a defined area and that he was liable to be transferred. He had not
authority whatsoever to bind the Corporation in any way. His principal duty
appeared to be to organise and develop the business of the Corporation in
F
the area allotted to him, and for that purpose, to recruit active and reliable G
agents, to train them, to canvass new business and to render post-sale
service to policy- holders. He was expected to assist and inspire the agents.
Even so, he had not the authority either to appoint them of to take
disciplinary action against them. He did not even supervise the work of the
agents though he was required to train them and assist them. He was to H
584
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A be a friend, philosopher and guide of the agents working within his jurisdiction and no more. He was expected to "stimulate and excite" the agents
to work while exercising no administrative control over them. The agents
were not his subordinates. He had no subordinate staff working under him.
The Court, therefore, held that it was clear that the Development Officer
B could not by any, stretch of imagination· be said to be engaged in any
administrative or managerial work and, therefore, he was a workman within
the meaning of the ID Act. Accordingly, the order of the Industrial
Tribunal and the judgment of the High Court holding that he was not a
workman was set aside. As has been pointed out above, this decision did
not refer to the earlier three decision in May & Baker, WIMCO andBunna
C Shell cases (supra) and obviously proceeded on 'the basis· that if an
employee did not' come within the four exceptions to the definition, he
should be held to be a workman. This basis was in terms considered and
rejected in Bunnah Shell case (supra) by a coordinate bench of threejudges. Further no finding is given by the Court whether the development
D Officer was doing clerical or technical work. He was admittedly not doing
manual work. We may h.ave, therefore, to treat this decision as per incuriam.
Ved Prakash Gupta v. Delton Cable India (P) Ltd., [1984] 3 SCR 169
was decided by the same three-judge Bench which decided the S.K Venna
E case (supra). The question there was whether the Security Inspector at the
gate of the factory was a workman within the meaning of the ID Act. The
dispute had arisen on account of his dismissal from service on 13th September, 1979. The Court referred to the nature of duties performed by the
employee and found that a substantial part of the work of the employee
p
consisted of looking after the security of the factory and its property by
deputing the watch working under him to work at the factory gate or
sending them to watch-tower or around the factory or to accompany
visitors to the factory and making entries in the visitors' register and also
making entries regarding the material entering in and going out of the
premises of the factory. No written list of duties was given to the employee.
G The appellant was also doing other items or work such as signing identity
cards of workmen, issuing some small items of stores like-calls to his
subordinate watchmen and filling up application forms of other workmen
and counter-signing them or recommending advances and loans or for
promotion of his subordinates. He could not appoint or dismiss any
H workman or order any enquiry against any workman. He was working
H.R. ADY ANTIIA YA v. SANDOZ [SAW ANT, J.]
585
under the Security Officer and various other heads of departments of the A
management. He was also performing the duties of a chowkidar when one
of the chowkidars left the place temporarily for taking tea etc. He was also
accompanying Accounts Branch people as a guard whenever they carried
money. On these facts, the Court held that. the substantial duty of the
employee was that of a security inspector at the gate of the factory and it B
was neither managerial nor supenisory in nature in the sense in which
those terms were understood in industrial law. The Court, therefore, held
that he was workman under the ID Act. This decision also did not refer to
the earlier decisions in May & Baker, WJMCO and Bunnah Shell cases
(supra) and instead followed the ratio of th earlier decision in S.K Venna
case (supra). What is further, the decision turned on the facts of the case.
C
inArka/ Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay, (1985]
Supp. 1 SCR .282, the employee was first appointed as Stenographer-cumAccountant and later as Assistant. His services were terminated on 10th
October, 1982 whkh formed the subject matter· of an industrial dispute. D
One of the preliminary peints raised on behalf of the employer before the
Laliour Court was whether he was a workman within the meaning of the
ID Act. The Court accepted the finding of the Labour Court that primarily
the duties of the employee were of a clerical nature and held that he was
a workman. The Court also referred to the earlier decisions in S.K Venna
and Delton Cable cases, (supra).
E
Miss A. Sundarambal v. Government of Goa, Dam~n & Diu & Ors.,
(1988] 4 SCC 42 was a case of a teacher in a school conducted by a private
society. Her services were terminated on 25th April, 1975 which gave rise
to the industrial dispute. Two questions raised were whether the school
was an industry and whether the teacher was a workman under the ID Act.
We are not concerned With the first question in this case. While answering
F
the second question, the Court considered the meaning of the words
"skilled or unskilled manual, supervisory, technical, or clerical work" in the
definition of workman under the ID Act and held that if an employee is G
not a person engaged in doing work falling in any of the said categories,
he would not be a workman at all even though he is employed in an
industry. For this purpose, the Court relied on May & Baker case (supra)
(
and further held. that a teacher employed by educational institutions
whether they are imparting primary, secondary, graduate or post-graduate
education, cannot be called a workman. Imparting of education which is H
586
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A the main function of a teacher cannot be considered as unskilled or skilled
manual or supervisory or technical or clerical work. The clerical work a
teacher does is only incidental to his principle work of teaching. The Court
did not accept the suggestion that having regard to the object of the ID
Act, all employees in an industry except those falling under the four
B
c
exceptions to the definition should be treated as workmen. The Court held
that to accept the said argument would render the words "to do any skilled
or unskilled manual, supervisory, technical or clerical work" meaningless.
The Court held that a liberal construction as suggested would have been
possible only in the absence of the said words. The Court, therefore, upheld
the decision of the High Court that the appellant was not a workman
though the school was an industry. It is thus obvious from this decision
given as late as in 1988 that the Court reiterated the earlier decision in May
& Baker case (supra) and insisted that before a person could qualify to be
a workman within the meaning of the ID Act, he had to satisfy that he did
work of any of the four types mentioned in the main body of the definition
D and that it was not enough that he did not fall within any of the four
exceptions in the definition.
E
F
A still later decision of a two-judge Bench of this Court in T.P.
Srivastava v. National Tpbacco Co. of India Ltd. & Ors., [1992] 1 SCC 281
by referring to the decision in Burmah Shell case (supra) has also reiterated
the law laid down in May & Baker case (supra). There the employee
concerned was a Section Salesman of the company whose services were
terminated w.e.f. 12th July, 1973. The Court held that in order to come
within the definition of workman under the ID Act the employee ha.d to
be employed to do the work of one of the types referred to in the main
body of the definition. The Court also referred to the Sales Promotion
Employees (Conditions of Service) Act, 1976 and pointed out that the
provisions of that Act were not made applicable to the employees of the
company. The Court further pointed out that the object of the said Act
would show that persons employed for sales promotion normally would not
come. within the definition of workman under the ID Act. The Court
G accordingly upheld the decision of the Labour Court that the employee was
not a workman within the meaning of the ID Act.
3. The legal position that arises from the statutory provisions and
from the aforesaid survey of the decisions may be summerised as follows :
H
Till 29th August, 1956 the definition of workman under the ID Act
H.R. ADYAN1HA YA v. SANDOZ [SAW ANT, J.]
587
was confined to skilled and unskilled manual or clerical work and did not A
include the categories of person who were employed 'to do '"supervisory"
and "technical" work. The said categories came to be included in the
definition w.e.f. 29th August, 1956 by virtue of the Amending Act 36 of
1956. It is, further, for the first time that by virtue of the Amending Act 46
of 1982, the categories of workmen employed to do "operational" work B
came to be included in the definition. What is more, it is by virtue of this
Amendment that for the first time those doing non-manual unskilled and
skilled work also came to be included in the definition with the result that
the persons doing skilled and unskilled work whether manual or otherwise,
qualified to become workman under the ID Act.
The decision in May & Baker case (supra) was delivered when the
definition did not include either
11technica1
11 or
11supervisorf
1 or
11operationc
al" categories of workmen. That is why the contention on behalf of the
workmen had to be based on the manual and clerical nature of the work
done by the sales representatives in that case. The Court had also, thereD
fore, to decide the category of the sales representative with reference to
whether the work done by him was of a clerical or manual nature. The
Court's finding was that the canvassing for sale was neither clerical nor
manual, and the clerical work done by him formed a small fraction of his
work. Hence, the sales representative was not a workman.
E
In WIMCO case (supra), the dispute had arisen on 18th August,1961
under the U .P. Industrial Disputes Act and at the relevant time the
definition of the workman in that Act was the same as under the Central
Act, i.e., the ID Act which had by virtue. of the Amending Act 36 of 1956
added to the categories of workmen, those doing supervisory and technical F
work. However, the argument advanced before the court was not on the
I
basis of the supervisory or technical nature of the work done by the
concerned employees, viz., inspectors, salesmen and retail sales men. The
argument instead, both before the Industrial Tribunal and this Court was
based on the clerical work put in by them, which was found to be 75 per G
cent of their work. This Court confirmed the finding of the Tribunal that
the employees concerned were workmen because 75 per cent of their time
was devoted to the writing work. The incidental question was whether the
sales-office and the factory and the factory-office formed part of one and
the same industrial establishment or were independent of each other. The
Court observed that it would be unreasonable to say that those who were H
588
SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.
A
producing matches were workmen and those who sold them were not. In
other words, the Court did hold that the work of selling matches was as
much an operational part of the industrial establishment as was that of
manufacturing.
B
In Bunnah Shell case (supra) the workmen involved were Sales
Engineering Representatives and District Sales Representatives. The dispute had arisen on 28th October, 1967 when the categories of workmen
doing supervisory and technical work stood included in the definition of
workman. The Court found that the work done by the Sales Engineering
Representatives as well as District Sales Representatives was neither cleric cal nor supervisory nor technical. An effort was made on behalf of the
workmen to contend that the work of Sales Engineering Representatives
was technical. The Court repelled that contention by pointing out that the
amount of technical work that they did was ancillary to the chief work of
promoting sales and the mere fact that they possessed technical knowledge
D for such purpose; did not make their work technical. The Court also found
that advising and removing complaints so as to promote Sales remained
outside the scope of the technical work. ·As regards the District Sales
Representatives, the argument was that their work was mainly of clerical
nature which was negatived by the Court by pointing out that the clerical.
work involved was incidental to their main work of promoting sales. What
E is necessary further to remember in this case is that the Court relied upon
its earlier decision in May & Baker case (supra) and pointed out that in
order to qualify to be a, workman under the ID Act, a person concerned
had to satisfy that he fell in any of the four categories of manual, clerical,
supervisory or technical workman.
·
"
F
However, the decisions in the later cases, viz., S.K Venna, Delton
Cable and Ciba Geigy case (supra) did not notice the earlier decisions in
May & Baker, WIMCO and Bunnah Shell cases (supra) and the very same
contention, viz,. if a person did not fall within any of the categories of
manual, cleriCaI, supervisory or technical, he would qualify to be workman
G merely because he is not covered by either of the four exceptions to the
definition, was canvassed and though negatived in earlier decisions, was
accepted. Further, in those case the Development Officer of the UC, the
Security Inspector at the gate of the factory and Stenographer-cum-Accountant respectively, were held to be workmen on the fact of those cases.
H It is the decision of this Court in A. Sundannaba/ case (supra) which
H.R. WYANTIIAYAv. SANDOZ[SAWANT.J.]
589
pointed out that the law laid down in May Baker case was still good and A
was not in terms disowned.
We thus have 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 B
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 Bunnalt
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 C
definition he is a workman within the meaning of the ID Act. These
decisions are also based on the facts found in those cases.