TaxTMI 
TaxTMI 
TaxTMI 
2007 (5) TMI 613
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....an advance staff notice was also taken out by the Company. The same incorporated the text of the advertisement which was to follow. The relevant part from the advertisement which pertains to the duties required to be performed by the selected candidates was as follows:- "The selected candidate will advise the Corporate personal Department and through it various establishments of the Company on all matters relating to Labour Laws; operate various applications and claims and appear selectively before Labour authorities such as Conciliation Officers, Labour Courts and Industrial Tribunals. An important aspect of the job will be to assist the I.R. Manager in developing the framework for settlements and in dealing with Unions. This is a challenging job with a span of advice extending to three factories, four branches and fifteen u-country depots. The prospects for a results-oriented man are excellent. Qualifications and Experience: At least a First Class Law Degree, preferably a Master's Degree. Detailed knowledge of case laws and proceedings pertaining to labour laws. Three to five years experience of litigation before Labour Courts, Industrial Tribunals and other authorities....
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....gal in as much as it was against the provisions of Articles 14 and 21 of the Constitution of India, 1950 (in short the 'Constitution') and was void as ultra vires Section 23 of the Indian Contract Act, 1872 (in short the 'Contract Act'). He sought the prayer of reinstatement in service with full back wages with continuity of service and all other attendant benefits. Reference was made under Section 10(1) of the Act. 9. In the reference, the respondent-Company filed its written statement on 8.8.1985. In the written statement the Company disputed the stand that the appellant was a workman within the meaning of Section 2(s) of the Act. It was denied that the termination of his services was illegal for alleged non-compliance of provisions of Section 25N of the Industrial Disputes Act, 1947 or that it violated any provisions of Constitution or of Section 23 of the Contract Act. 10. Both parties led evidence in the reference before the Labour Court. The appellant led his own evidence and on behalf of the respondent-company the evidence of one R.P. Bharucha who was then the Director of the Family Products Division of the Company, who had been the Central Personal Manger ....
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....nt subsequently filed Civil Appeal No.170 of 2000 which also impugned the same judgment and order passed by the learned Single Judge. 14. The appellant's main contention before the High Court was that he was a qualified legal person and the nature of his duties, work and functions were to advise the management of the company which required knowledge of law and the matters arising out of the affairs of the company. It was submitted that the petitioner must be said to be employed to do technical work within the meaning of Part 1 of Section 2(s) of the Act. It was further the stand that the Act was amended in 1984 de- linking the words "skilled" and "unskilled" from the word "manual" and by adding the word "operational". It was, therefore, pleaded that the finding that the appellant was doing managerial or administrative work is not correct. Learned Single Judge did not accept the contention and the Division Bench also did not accept the contention. 15. In support of the appeal learned counsel for the appellant submitted as follows: 16. The amendment of the expression 'workman' under Section 2(s) clearly brought the appellant within the ambit of the said expression. The....
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....ork is concerned, the Division Bench of the High Court took note of several aspects as reflected in para 29 of the judgment. The same reads as follows: "In the evidence adduced on behalf of the Company, its Director Shri Rustam Padam Bharucha deposed that the duties of the appellant were to represent the Company in Conciliation proceedings, before Government authorities under the Factories Act. E.S.I. Act, P.F. Act, Contract Labour (Regulation & Abolition) Act, to represent the management as an Enquiry officer or as the management's Representative in domestic enquiries, to guide and advise the management's representative in domestic enquiries, to advise him about the line of cross-examination in such enquiries, advise about the quantum of punishment to be inflicted in disciplinary proceedings. To give advise on queries raised by the management pertaining to the interpretation of statutes or settlement with the Unions or regarding enquiries raised by Government authorities to brief witnesses, to prepare drafts for the perusal of Counsel to brief Counsel on facts as well as law to be present in Court when the arguments were taking place in judicial matters related to the Com....
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....passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the respondent on furnishing the security. In the premise the appeal must fail and is dismissed. There will, however, be no order as to costs." 23. In the present case, we find that for determining the nature of amendment, the question is whether it affects the legal rights of individual workers in the context that if they fall within the definition then they would be entitled to claim several benefits conferred by the Act. The amendment should be also one which would touch upon their substantive rights. Unless there is a clear provision to the effect that it is retrospective or such retrospectivity can be implied by necessary implication or intendment, it must be held to be prospective. We find no such clear provision or anything to suggest by necessary implication or intendment either in the amending Act or in the amendment itself. The amendment cannot be said to be one which affects procedure. In so far as the amendment substantially changes the scope of the definition of the term "workman" it cannot be said to be merely declaratory or clarificatory. In this regard we f....
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....being punishable for an offence, which he could not have envisaged on the date of dismissal. This would be violative of Article 20(1) of the Constitution. 26. In Burmah Shell's case (supra) it was held as follows: In this connection, we may take notice of the argument advanced by Mr. Chari on behalf of the Association that, whenever a technical man is employed in an industry, it must be held that he is employed to do technical work irrespective of the manner in which and the occasions on which the technical knowledge of that person is actually brought into use. The general proposition put forward by him was that, if a technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and not supervisory work. He elaborated this submission by urging that, if we hold the supervisory work done by a technician as not amounting to his being employed to do technical work, the result would be that only those persons would be held to be employed on technical work who actually do manual work themselves. According to him this would result in making the word "technical" redundans in the definition of 'workman' even though it was later ....