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CASE NO.:

Appeal (civil) 2622 of 2002

PETITIONER:

SHARAD KUMAR

Vs.

RESPONDENT:

GOVT. OF NCT OF DELHI & ORS.

DATE OF JUDGMENT: 11/04/2002

BENCH:

D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

This appeal filed by the employee is directed against

the order dated 10.7.2000 of the Delhi High Court

declining to interfere with the order of the Government of

National Capital Territory of Delhi (NCT of Delhi) refusing

to refer the dispute raised by the appellant to the

Industrial Tribunal/Labour Court on the sole ground that

he is not a 'workman' within the meaning of section 2(s) of

the Industrial Disputes Act, 1947 (hereinafter referred to

as 'the Act').

The factual backdrop of the case relevant for

appreciating the questions raised in the case may be

stated thus :

The appellant was holding the post of 'Area Sales

Executive' when his service was terminated vide the order

dated 20.12.1995. The order was communicated to him on

28.12.1995. No show cause notice was served nor any

enquiry was held before the order terminating appellant's

service was passed. However, one month's salary was sent

to him alongwith the termination letter. The appellant

questioned the legality and validity of the order of

termination of service. The matter was taken up for

conciliation. The Conciliation Officer submitted a failure

report to the State Government on 23.10.1996. On receipt

of the conciliation Officer's report the State Government

declined to refer the dispute to the Industrial Tribunal or

the Labour Court for adjudication vide order dated

14.7.1998. The relevant portion of the order reads :

"All the documents filed and

submissions of the parties and the

report of the Conciliation Officer have

been perused and it is found that this

is not a fit case for reference to

Industrial Tribunal or Labour Court of

Delhi for adjudication for the reasons

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given below:

"Admittedly the applicant was

designated as Area Sales Executive and

performing the duties of Area Sales

Executive, as such he is not covered by

the definition of "Workman" as defined

under Section 2(s) of the Industrial

Disputes Act, 1947."

Feeling aggrieved by the said order the appellant filed

the writ petition before the High Court of Delhi which was

dismissed by order dated 10.7.2000. The said order is

under challenge in this appeal.

The relevant portion of the impugned order reads

as follows:

"The only reason why the Respondent

refused to make a reference was that

the petitioner who is working as an

Area Sales Executive is not a workman

within the meaning of Section 2(s) of

the Industrial Disputes Act, 1947.

Learned counsel for the petitioner

submits that whether he is a workman

or not should be decided by the Labour

Court.

A reading of Section 2 (s) of the

Industrial Disputes Act makes it quite

clear that an officer appointed as an

Area Sales Executive cannot be

considered to be a Workman within the

meaning of Section 2(s) of the Act.

Dismissed"

From the order passed by the State Government and

the Order of the High Court it is clear that the sole reason

for declining to refer the dispute relating to

discharge/termination of the appellant's service for

adjudication to the Industrial Tribunal or Labour Court is

that he is not a 'workman' within the meaning of section

2(s) of the Act. To put it differently since the appellant

was holding the post of Area Sales Executive at the time of

termination of service he was not a workman as defined in

section 2(s) of the Act. The order of refusal of reference of

the dispute was passed by the respondent in exercise of

the power under section 10(1) read with section 12(5) of

the Act.

The question that arises for consideration is whether

on the facts and circumstances of the case the State

Government was right in rejecting the appellant's request

for a reference and thereby nipping the proceeding at the

threshold. Is it a just and proper exercise of the

jurisdiction vested under the statute ?

Shri S. Prasad learned counsel appearing for the

appellant strenuously contended that the State

Government committed error in declining to refer the

dispute to the Industrial Tribunal/Labour Court for

adjudication merely going by the designation of the post

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held by the appellant. According to him the appellant was

performing multifarious duties which came within the

purview of definition of the expression workman in section

2(s) of the Act and the nature of his duties did not come

within any of the exceptions provided in the said section.

Sri Prasad also contended that the question whether the

appellant was a workman within the meaning of section

2(s) or not involves inquiry into facts which could not be

finally decided by the State Government while exercising

the power under Section 10(1) of the Act. Sri Prasad

further submitted that the State Government should have

referred the mater to the Industrial Tribunal/Labour Court

for adjudication of the dispute including the question

whether the respondent was a 'workman' within the

meaning of section 2(s) of the Act.

Per contra Shri V.R. Reddy learned senior counsel

appearing for the employer M/s Usha International Ltd.,

contended that in the facts and circumstances of the case

the State Government was right in refusing to refer the

dispute to the Industrial Tribunal/ Labour Court for

adjudication. According to Shri Reddy, on the materials

produced by the appellant himself in the conciliation

proceeding it is clear that he did not come within any of

the categories of employees mentioned in the first part of

section 2(s) of the Act, and therefore, he was not a

'workman' as defined in section 2(s).

Shri B.A. Mohanty, learned senior counsel appearing

for the Government of National Capital Territory of Delhi,

respondent No.1 herein, supported the order of the State

Government refusing to refer the dispute to the Industrial

Tribunal/Labour Court. He contended that under section

10(1) of the Act it was for the appropriate Government to

take a decision whether the dispute raised was an

'industrial dispute' as defined in Section 2(k) of the Act for

which it was necessary to ascertain whether the dispute

was between the employer and workman. According to

Shri Mohanty it was absolutely necessary for the

Government to satisfy itself whether the appellant was a

workman within the meaning of section 2(s) of the Act, and

that was done by the authority in the case. Therefore, the

order did not call for any interference by the High Court

and the writ petition filed by the appellant was rightly

dismissed.

It will be convenient to quote certain relevant

provisions of the Act at the outset :

Section 2(k)- "industrial dispute"

means any dispute or difference

between employers and employers, or

between employers and workmen, or

between workmen and workmen,

which is connected with the

employment or non-employment or the

terms of employment or with the

condition of labour, of any person."

In Section 2(s) 'workman' is defined as follows:

"workman" means any person

(including an apprentice) employed in

any industry to do any manual,

unskilled, skilled, technical,

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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 one thousand

six hundred rupees per mensem

or exercise , 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 10(1) under which the order under

challenge was passed reads as under:

Reference of disputes to Boards,

Courts or Tribunals

10. (1) Where the appropriate

Government is of opinion that any

industrial dispute exists or is

apprehended, it may at any time, by

order in writing-

(a) refer the dispute to a Board for

promoting a settlement thereof;

or

(b) refer any mater appearing to be

connected with or relevant to the

dispute to a Court for inquiry;

or

(c) refer the dispute or any matter

appearing to be connected with,

or relevant to, the dispute, if it

relates to any matter specified in

the Second Schedule, to a

Labour Court for adjudication;or

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(d) refer the dispute or any matter

appearing to be connected with,

or relevant to, the dispute,

whether it relates to any matter

specified in the Second Schedule

or the Third Schedule, to a

Tribunal for adjudication:

The provisos to the Section are not relevant

for the case in hand.

Section 12 of the Act provides the duties of the

Conciliation Officer.

In sub-section 4 thereof it is laid down that if no

such settlement is arrived at, the conciliation officer shall,

as soon as practicable after the close of the investigation,

send to the appropriate Government a full report setting

forth the steps taken by him for ascertaining the facts and

circumstances relating to the dispute and for bringing

about a settlement thereof, together with a full statement

of such facts and circumstances, and the reason on

account of which, in his opinion, a settlement could not be

arrived at.

Sub-section(5) of Section 12 in which power is vested

in the appropriate Government to make a reference reads

as follows:

"If, on a consideration of the report

referred to in sub-section (4), the

appropriate Government is satisfied

that there is a case for reference to a

Board Labour Court, Tribunal or

National Tribunal, it may make such

reference. Where the appropriate

Government does not make such a

reference it shall record and

communicate to the parties concerned

its reasons therefor.

It was not disputed before us that the jurisdiction

vested in the appropriate Government to make a reference

or refuse to do so is administrative in nature and depends

on the opinion formed by it on perusal of the report and

the materials received from the Conciliation Officer. The

question on answer of which the decision in this case

depends is what is the scope and extent of the power to

be exercised by the appropriate government in such a

matter ?

On a fair reading of the provisions in section 2(s) of

the Act it is clear that 'workman' means any person

employed in any industry to do any manual, unskilled,

skilled, technical, operational, clerical or supervisory work

for hire or reward including any such person who has been

dismissed, discharged or retrenched.

The latter part of the section excludes 4 classes of

employees including a person employed mainly in a

managerial or administrative capacity, or a person

employed in a supervisory capacity drawing wages

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exceeding Rs.1600/- per month or exercises functions

mainly of a managerial nature. It has to be taken as an

accepted principle that in order to come within the

meaning of the expression 'workman' in section 2(s) the

person has to be discharging any one of the types of the

works enumerated in the first portion of the section. If the

person does not come within the first portion of the

section then it is not necessary to consider the further

question whether he comes within any of the classes of

workmen excluded under the latter part of the section. The

question whether the person concerned comes within the

first part of the section depends upon the nature of duties

assigned to him and/or discharged by him. The duties of

the employee may be spelt out in the service rules or

regulations or standing order or the appointment order or

in any other material in which the duties assigned to him

may be found. When the employee is assigned a particular

type of duty and has been discharging the same till date of

the dispute then there may not be any difficulty in coming

to a conclusion whether he is a workman within the

meaning of section 2(s). If on the other hand the nature of

duties discharged by the employees is multifarious then

the further question that may arise for consideration is

which of them is his principal duty and which are the

ancillary duties performed by him. In such a case

determination of the question is not easy at the stage when

the State Government is exercising the administrative

jurisdiction vested in it for the limited purpose of satisfying

itself whether the dispute raised is an industrial dispute

within the meaning of section 2(k) of the Act. While

deciding the question, designation of the employee is not of

much importance and certainly not conclusive in the

matter as to whether or not he is a workman under section

2(s) of the Act.

At this stage we may refer to certain decisions in

which the question has been considered by this Court as

well as by the High Court.

In Management of M/s May and Baker (India) Ltd.

vs. Their Workmen AIR 1967 SC 678 a Bench of three

learned Judge of this Court construed the provision of

section 2(s) (as it stood before the Amendment of 1956) in

order to ascertain whether the manual or clerical work

done was merely of an incidental nature and whether the

employee was not a workman as defined under the section.

The Court made the following observations:

"9. The company's case is that

Mukerjee was discharged with effect

from April 1, 1954. At that time the

definition of the word "workman"

under Section 2(s) of the Industrial

Disputes Act did not include employees

like Mukerjee who was a

representative. A "workman" was then

defined as any person employed in any

industry to do any skilled or unskilled

manual or clerical work for hire or

reward. Therefore, doing manual or

clerical work was necessary before a

person could be called a workman.

This definition came for consideration

before industrial tribunals and it was

consistently held that the designation

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of the employee was not of great

moment and what was of importance

was the nature of his duties. If the

nature of the duties is manual or

clerical then the person must be held

to be a workman. On the other hand if

manual or clerical work is only a small

part of the duties of the person

concerned and incidental to his main

work which is not manual or clerical,

then such a person would not be

workman. It has, therefore, to be seen

in each case from the nature of the

duties whether a person employed is a

workman or not, under the definition

of that word as it existed before the

amendment of 1956. The nature of the

duties of Mukerjee is not in dispute in

this case and the only question,

therefore, is whether looking to the

nature of the duties it can be said that

Mukerjee was a workman within the

meaning of Section 2(s) as it stood at

the relevant time. We find from the

nature of the duties assigned to

Mukerjee that his main work was that

of canvassing and any clerical of

manual work that he had to do was

incidental to his main work of

canvassing and could not take more

than a small fraction of the time for

which he had to work. In the

circumstances the tribunal's

conclusion that Mukerjee was a

workman is incorrect. The tribunal

seems to have been led away by the

fact that Mukerjee had no supervisory

duties and had to work under the

directions of his superior officers. That,

however, would not necessarily mean

that Mukerjee's duties were mainly

manual or clerical. From what the

tribunal itself has found it is clear that

Mukerjee's duties were mainly neither

clerical nor manual. Therefore, as

Mukerjee was not a workman his case

would not be covered by the

Industrial Disputes Act and the

Tribunal would have no jurisdiction to

order his reinstatement. We, therefore,

set aside the order of the tribunal

directing reinstatement of Mukerjee

along with other reliefs.

(Emphasis supplied)

A similar question came up for consideration before

a Bench of three learned Judges of this Court in Burmah

Shell Oil Storage and Distribution Company of India Ltd.

vs. The Burma Shell Management Staff Association and

others 1970(3) SCC 378, wherein it was held, inter alia

that if a person is mainly doing supervisory work and

incidentally or for a fraction of the time also does some

clerical work, it would have to be held that he is employed

in a supervisory capacity, and conversely, if the main work

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done is of clerical nature the mere fact that some

supervisory duties are also carried out incidentally or as a

small fraction of the work done by him will not convert his

employment as a clerk into one in supervisory capacity.

This Court considering several classes of employees

including sales engineering representative and district

sales representative, held on the materials placed before

the Industrial Tribunal that both these classes of

employees do not come within the meaning of the

expression 'workman' in section 2(s). It is relevant to note

here that this Court was considering the validity of an

interim award passed by the Industrial Tribunal,

Maharashtra, Bombay in the case.

Taking note of the above mentioned two three Judge

Bench decisions and other cases decided by this Court a

Constitution Bench in the case of H.R. Adyanthaya and

others vs. Sandoz (India) Ltd. and others 1994(5)SCC 737

made the following observations:

"23. However, the decisions in the

later cases, viz., S.K. Verma, Delton

Cable, and Ciba Geigy cases did not

notice the earlier decisions in May &

Baker, WIMCO and Burmah Shell

cases and the very same contention

viz., if a person did not fall within any

of the categories of manual, clerical,

supervisory or technical, he would

qualify to be workman 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 cases the

Development Officer of the LIC, the

Security Inspector at the gate of the

factory and Stenographer-cum-

Accountant respectively, were held to

be workmen on the facts of those

cases. It is the decision of this Court in

A. Sundarambal case which pointed

out that the law laid down in May and

Baker case was still good and was not

in terms disowned.

24. 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 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 ID

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Act. These decisions are also based on

the facts found in those cases. They

have, therefore, to be confined to those

facts. Hence the position in law as it

obtains today is that a person to be a

workman under the ID 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".

(Emphasis supplied)

In Nirmal Singh vs. State of Punjab and others 1984

(Suppl) SCC 407 this Court construing the provisions of

section 2(s) and 12(5) of the Act for determining the

question whether a Branch Manager of a cooperative bank

is a workman observed as follows:

"3. The grievance made by Shri N.D.

Garg, who appears on behalf of the

appellant, that the Labour

Commissioner ought to have given

reasons in support of his decision, is

justified. All that the Labour

Commissioner has stated in the order

is that the post held by the appellant

did not fall "within the category of

workman". This, really, is the

conclusion to which the Labour

Commissioner came but no reasons

are given to justify that conclusion. We

are of the opinion that the Labour

Commissioner ought to have given

reasons why he came to the conclusion

that the appellant is not a "workman"

within the meaning of the Section 2(s)

of the Industrial Disputes Act, 1947.

This Court while allowing the appeal directed the

respondent No.2 the Labour Commissioner, Chandigarh to

make a reference under Section 12 of the Act.

In the case of Telco Convoy Drivers Mazdoor Sangh

and another vs. State of Bihar and others 1989 (3) SCC

271 this Court construing the provision of s.10(1) held as

follows:

"13. Attractive though the contention

is, we regret, we are unable to accept

the same. It is now well settled that,

while exercising power under Section

10(1) of the Act, the function of the

appropriate government is an

administrative function and not a

judicial or quasi-judicial function, and

that in performing this administrative

function the government cannot delve

into the merits of the dispute and take

upon itself the determination of the lis,

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which would certainly be in excess of

the power conferred on it by Section 10

of the Act. See Ram Avtar Sharma vs.

State of Haryana (1985 (3) SCC 189;

M.P. Irrigation Karamchari Sangh vs.

State of M.P. (1985) 2 SCC 103;

Shambhu Nath Goyal vs. Bank of

Baroda, Jullundur (1978) 2 SCC 353.

14. Applying the principle laid down by

this Court in the above decisions, there

can be no doubt that the government

was not justified in deciding the

dispute. Where, as in the instant case,

the dispute is whether the persons

raising the dispute are workmen or

not, the same cannot be decided by the

Government in exercise of its

administrative function under Section

10(1) of the Act. As has been held in

M.P. Irrigation Karamchari Sangh case,

there may be exceptional cases in

which the State Government may, on a

proper examination of the demand,

come to a conclusion that the demands

are either perverse or frivolous and do

not merit a reference. Further, the

government should be very slow to

attempt an examination of the demand

with a view to declining reference and

courts will always be vigilant whenever

the government attempts to usurp the

powers of the Tribunal for adjudication

of valid disputes, and that to allow the

government to do so would be to

render Section 10 and Section 12 (5) of

the Act nugatory."

(Emphasis supplied)

In M.P. Irrigation Karamchari Sangh vs. State of

M.P. and others 1985 (2) SCC 103 taking note of the

decision in the case of Bombay Union of Journalists v.

State of Bombay AIR 1964 SC 1617, wherein it was held

that appropriate Government is precluded from

considering even prima facie the merits of the dispute

when it decides the question as to whether its power to

make a reference should be exercised under Section 10(1)

read with Section 12(5), or not, this Court held that the

Court had made it clear in the same judgment that it was a

province of the Industrial Tribunal to decide the disputed

questions of facts. This Court made the following

observations:

"5.. Therefore, while conceding a

very limited jurisdiction to the State

Government to examine patent

frivolousness of the demands, it is to

be understood as a rule, that

adjudication of demands made by

workmen should be left to the Tribunal

to decide. Section 10 permits

appropriate Government to determine

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whether dispute 'exists or is

apprehended' and then refer it for

adjudication on merits. The

demarcated functions are (1) reference,

(2) adjudication. When a reference is

rejected on the specious plea that the

Government cannot bear the additional

burden, it constitutes adjudication and

thereby usurpation of the power of a

quasi-judicial Tribunal by an

administrative authority namely the

appropriate Government. In our

opinion, the reasons given by the State

Government to decline reference are

beyond the powers of the Government

under the relevant sections of the

Industrial Disputes Act. What the State

Government has done in this case is

not a prima facie examination of the

merits of the question involved. To say

that granting of dearness allowance

equal to that of the employees of the

Central Government would cost

additional financial burden on the

Government is to make a unilateral

decision without necessary evidence

and without giving an opportunity to

the workmen to rebut this conclusion.

This virtually amounts to a final

adjudication of the demand itself. The

demand can never be characterized as

either perverse or frivolous. The

conclusion so arrived at robs the

employees of an opportunity to place

evidence before the Tribunal and to

substantiate the reasonableness of the

demand."

(Emphasis supplied)

In S.K. Maini Vs. M/s Carona Sahu Company

limited and others (1994) 3 SCC 510 this Court

interpreting section (2)(iv) made the following observations:

"9. After giving our careful

consideration to the facts and

circumstances of the case and the

submissions made by the learned

counsel for the parties, it appears to

us that whether or not an employee is

a workman under Section 2(s) of the

Industrial Disputes Act is required to

be determined with reference to his

principal nature of duties and

functions. Such question is required to

be determined with reference to the

facts and circumstances of the case

and materials on record and it is not

possible to lay down any strait-jacket

formula which can decide the dispute

as to the real nature of duties and

functions being performed by an

employee in all cases. When an

employee is employed to do the types of

work enumerated in the definition of

workman under Section 2(s), there is

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hardly any difficulty in treating him as

a workman under the appropriate

classification but in the complexity of

industrial or commercial organizations

quite a large number of employees are

often required to do more than one

kind of work. In such cases, it

becomes necessary to determine under

which classification the employee will

fall for the purpose of deciding

whether he comes within the definition

of workman or goes out of it. In this

connection, reference may be made to

the decision of this Court in Burmah

Shell Oil Storage and Distribution Co.

of India Ltd. vs. Burmah Shell

Management Staff Assn. In All India

Reserve Bank Employees' Assn. vs.

Reserve Bank of India it has been held

by this Court that the word 'supervise'

and its derivatives are not words of

precise import and must often be

construed in the light of context, for

unless controlled they cover an easily

simple oversight and direction as

manual work coupled with the power

of inspection and superintendence of

the manual work of others. It has been

rightly contended by both the learned

counsel that the designation of an

employee is not of much importance

and what is important is the nature of

duties being performed by the

employee. The determinative factor is

the main duties of the employee

concerned and not some works

incidentally done. In other words, what

is, in substance, the work which

employee does or what in substance he

is employed to do. Viewed from this

angle, if the employee is mainly doing

supervisory work but incidentally or for

a fraction of time also does some

manual or clerical work, the employee

should be held to be doing supervisory

works. Conversely, if the main work is

of manual, clerical or of technical

nature, the mere fact that some

supervisory or other work is also done

by the employee incidentally or only a

small fraction of working time is

devoted to some supervisory works, the

employee will come within the purview

of 'workman' as defined in Section 2(s)

of the Industrial Disputes Act".

(Emphasis supplied)

The Rajasthan High Court in the case of S.L.Soni vs.

Rajasthan Mineral Development Corporation Ltd., Jaipur,

(1986) LAB I.C. 468, S.C. Agrawal, J. (as he then was)

considering the question whether an Assistant Manager

(Accounts) came within the meaning of expression

'workman' under section 2(s) of the Act accepted the

contention raised on behalf of the petitioner therein that

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the question could not be agitated before the High Court

under Article 226 of the Constitution and the appropriate

remedy for the petitioner was to seek a reference under

Section 10 of the Industrial Disputes Act, made the

following observations:

"In my view the aforesaid contention

urged by Shri Rangrajan must be

accepted. In the present case there is

a dispute between the parties as to

whether the petitioner was a workman

under section 2(s) of the Act at the time

of the passing of the impugned order

terminating his services. The said

question involves determination of

facts with regard to the nature of the

duties that were being discharged by

the petitioner while functioning as

Assistant Manager (Accounts). Such a

determination can only be made on the

basis of evidence. The said question

cannot be properly adjudicated in

these proceedings under Article 226 of

the Constitution and the appropriate

remedy that was available for the

petitioner was to raise an industrial

dispute and have it referred for

adjudication under Section 10 of the

Act. The first contention urged by Shri

Singhvi cannot, therefore, be

accepted."

(Emphasis supplied)

Testing the case in hand on the touchstone of the

principles laid down in the decided cases we have no

hesitation to hold that the High Court was clearly in error

in confirming the order of rejection of reference passed by

the State Government merely taking note of the

designation of the post held by the respondent i.e. Area

Sales Executive. As noted earlier determination of this

question depends on the types of duties assigned to or

discharged by the employee and not merely on the

designation of the post held by him. We do not find that

the State Government or even the High Court has made

any attempt to go into the different types of duties

discharged by the respondent with a view to ascertain

whether he came within the meaning of section 2(s) of the

Act. The State Government, as noted earlier, merely

considered the designation of the post held by him which

is extraneous to the matters relevant for the purpose.

From the appointment order dated 21/22 April 1983 in

which are enumerated certain duties which the appellant

may be required to discharge it cannot be held therefrom

that he did not come within the first portion of the section

2(s) of the Act. We are of the view that determination of

the question requires examination of factual matters for

which materials including oral evidence will have to be

considered. In such a matter the State Government could

not arrogate on to itself the power to adjudicate on the

question and hold that the respondent was not a workman

within the meaning of section 2(s) of the Act, thereby

terminating the proceedings prematurely. Such a matter

should be decided by the Industrial Tribunal or Labour

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Court on the basis of the materials to be placed before it by

the parties. Thus the rejection order passed by the State

Government is clearly erroneous and the order passed by

the High Court maintaining the same is unsustainable.

Accordingly, the appeal is allowed. The order dated

10th July, 2000 of the High Court in Civil Writ Petition

No.3561/2000 is set aside. The Government of National

Capital Territory of Delhi, respondent No.1 herein, is

directed to refer the dispute raised by the appellant

including the question whether the appellant is a workman

under the Act, to the Industrial Tribunal/Labour Court for

adjudication. The appellant shall be entitled to receive from

the respondents a sum of Rs.20,000/- (Rupees twenty

thousand only) towards cost and hearing fee of the case.

J.

(D.P.MOHAPATRA)

..J.

(BRIJESH KUMAR)

April 11, 2002