13. We are faced by the question as to whether a person is a workman or not could be said to be related to the applicability and interpretation of the Standing Orders along with the issue of whether the orders of transfer and subsequent termination were justified or not. As far as the labour Commissioner is concerned, he is only a ‘Conciliation Officer’ as envisaged under the U.P. Industrial Disputes Act, 1947 and ‘Certifying Officer’ under the Standing Orders. The Standing Orders, particularly Clause ‘W’, vests the Labour Commissioner with the jurisdiction and power to decide on the applicability and interpretation of the Standing Orders. On the other hand, Section 11-C of the U.P. Industrial Disputes Act, 1947 and Section 13A of the Industrial Employment (Standing Orders) Act, 1946 grant the power and jurisdiction to render a decision on the issue of interpretation and application of the Standing Orders to the Labour Court.
14. Without going into the issue as to whether such a power and jurisdiction could be vested on the Labour Commissioner, we may decide the issued raised herein from another angle. The issue of whether or not a person is a ‘workman’ within the meaning of U.P. Industrial Disputes Act, 1947 is a matter to be decided by a competent court, after allowing the parties to lead evidence. Thereafter, on proper appreciation of the materials on record including the oral evidence, a decision could be rendered and the issue could be determined. The enquiry before the Labour Commissioner is of a summary nature and while exercising such a power of summary nature, the Labour Commissioner cannot decide and examine factual matters relating to an issue as to whether or not the person concerned is a workman or not.
15. In the case of Sharad Kumar v. Govt. of NCT of Delhi, reported at (2002) 4 SCC 490, an issue regarding whether or not a person is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 came for consideration before this Court. This Court held that in such a matter the State Government could not arrogate upon itself the power to adjudicate such an issue in as much as the same could be determined by the Industrial Tribunal or the Labour c court on the basis of the materials to be placed before it by the parties. In this instance, the Division Bench has erroneously held that the aforesaid issue is an ancillary issue to the issue of applicability and interpretation of the Standing Order.
16. Whether or not a person is a workman is a matter that relates primarily to facts and circumstances of the case. The same has nothing to do with the application and interpretation of the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue is the nature of job performed by the concerned person, duties and responsibilities vested on him and other such relevant material. In our considered opinion, the Division Bench of the High Court committed a mistake in determining the said issue as an ancillary to that of the applicability and interpretation of the Standing Order. A perusal of the earlier Writ Petition filed by the respondent no. 1 numbered as Writ Petition No. 8630 of 2008 would indicate that what was also challenged in the said writ petition was the order of termination passed against the respondent. The order of termination also could not have been examined and scrutinized as such power and jurisdiction is not vested with the Labour Commissioner.