Labour Law - In
determining the question as to whether a person is employed in a supervisory
capacity or otherwise, mere designation of the post is not decisive of the
nature of employment.
The question whether a person is employed in a
supervisory capacity or in a clerical/manual work depends whether the main and
principle duties carried out by him are those of a supervisory character or of
a nature carried out by a clerk or a skilled workman. If the main work done is
of clerical nature/skilled manual labour, the mere fact that some supervisory
duties are also carried out incidentally as a small fraction of a work done by
him will not convert his employment into that of a supervisory capacity.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon'ble Mrs. Sangeeta Chandra, J.
Delivered on 15.11.2018
WRIT - C No. - 24467 of 2010
M/s Group 4s Security Services (India) Pvt. Ltd. v. Presiding
Officer, Industrial Tribunal (5) And Another
Counsel for Petitioner :- S. Chatterjee
Counsel for Respondent :- C.S.C., Siddharth,Vatsala
J U D G M E N T
1. This writ petition has been
filed challenging the Award dated 06.12.2008 passed by the Presiding Officer of
the Industrial Tribunal (5) U.P., Meerut (herein after referred to as 'Respondent No. 1') in
Adjudication Case No. 05 of 1995.
2. The petitioners are a private
Company engaged in the business of providing security services to various establishments.
It signed a contract with Modi Rubber Ltd. to secure their premises at Meerut.
It engaged the respondent no. 2-Ram Pal Singh (herein after referred to as the
'Workman') as a Supervisor by a contract dated 09.08.1993 at Rs.1800/- per
month. The services of the workman having not been found satisfactory, were terminated
on 31.05.1996 and he was given one month's salary in lieu of one month's notice
of such termination. Although the services of respondent no. 2 were terminated
on 31.05.1996, he continued to work till 11.06.1996.
3. The workman, after termination
of his services raised an industrial dispute. The conciliation having failed,the
matter was referred for adjudication. The reference was made by the Government
under Section 4-K of the U.P. Industrial Disputes Act, 1947 as to whether the services of the Workman (Ram Pal Singh) have been validly
done away on 31.05.1996, if not, to what relief ?
4. The reference was sent for
adjudication before the Respondent No. 1 (Industrial Tribunal (5) U.P. at
Meerut) and was registered as Adjudication Case No. 05 of 1997.
5. On notice being served, the
petitioner filed preliminary objection with regard to maintainability of the Reference
saying that the date mentioned in the Reference order was not correct as the
respondent no. 2 continued to discharge his duties till 11.06.1996.
6. The Workman filed his written
statement reiterating that his services were illegally terminated but he worked
till 11.06.1996, thus the Reference order was amended on application of
respondent no. 2 by the State Government and the word 'Adesh' was added
before 'Dinank' and the Reference so framed now referred to termination of service
of the Workman by the order dated 31.05.1996.
7. After the amendment in the
Reference order, the petitioners filed their amended Written Statement and pleaded
that there wa no specific date of termination, the Reference order was bad.
8. The respondent no. 2 filed his
reply/objections. A rejoinder affidavit was filed thereafter to the writtenstatement
of the respondent no. 2. The Respondent no. 1 recorded the oral statement of
the Workman that he was being paid Rs.2100/- per month. The Senior Manager of the
petitioners' Company, S.B.Tyagi was examined as the sole witnesses and he
explained the work of a Security Supervisor and insisted that the Reference was
not maintainable as the respondent no. 2 was not a Workman. It has been
submitted in the writ petition that Respondent no. 1 without properly examining
the evidence on record arbitrarily passed the Award dated 06.12.2008 holding
that the termination of the Workman on 31.05.1996 was illegal and directing
payment of compensation of Rs.1,61,200/- as 50% of the back wages for 12 years
when the Workman was kept out of job and Rs.10,000/- for mental agony.
9. In the writ petition, a specific
submission has been made that the Respondent no. 2 was drawing the salary of
Supervisor @ Rs.2100/- per month and he was excluded from the definition of
'Workman' as provided under Section 2(z) of the U.P. Industrial Disputes Act, 1947
which provides that any person getting more than Rs.500/- per month as wages
shall be excluded from the definition of workman and also as per the definition
of 'Workman' provided under Section 2 (s) of the Central Industrial Disputes
Act, 1947 which provides that Supervisor drawing salary of Rs.1600/- or more
will not be covered under the definition of Workman.
10. It has been submitted that,
respondent no. 2 notbeing a Workman, the Reference was not maintainable and the
Award deserves to be set-aside on this ground alone.
11. In the counter affidavit filed
by the respondent no. 2, the allegations made in the writ petition have been specifically
denied as against the material on record. It has been submitted that respondent
no. 2 was actually employed as a Guard/Clerk and he was never assigned the duty
of Supervisor. No documentary evidence was filed by the petitioners' Company to
prove that the respondent no. 2 was performing the duty of Supervisor. Also
there was no insistence by the petitioners' Company for framing of an
additional issue regarding the status of Workman by the Respondent no. 1. On
the question of status of respondent no. 2, he had clearly described the duty
he performed which were that of a Security Guard and not that of a Supervisor.
Moreover the nomenclature is not relevant for deciding the status of an
employee. The appointment letter filed as Annexure-2 to the writ petition has
been specifically denied in paragraph 9 of the counter affidavit and it has
been submitted that the alleged appointment letter clearly mentions it to be 'Revised Contract for
Employment for Guards'. There is no date of execution of
such contract mentioned and also there is no designation of the officer who
signed the Contract on behalf of the employers and it has also been submitted
that the signature of respondent no. 2 is forged on the alleged appointment
letter and it has beenscanned and copied.
12. The respondent no. 2 in his oral
statement had clearly said that although he was given designation of Supervisor
w.e.f. 01.10.1993 the work of Guard/Clerk was being taken from him by the
employer and the finding to this effect has been recorded by the Respondent no.
1 while deciding additional issue no. 8. It has been reiterated that the
provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 have not
been followed by the employer. No retrenchment compensation has been paid and
no prior notice in the prescribed manner has been served. Even no rejoinder
affidavit has been filed by the petitioners to the counter affidavit filed on 12.09.2016.
13. When the matter was taken up on
01.02.2018 it has been argued by the learned counsel for the petitioner that the
respondent no. 2 was employed as a supervisor and his services were duly
dispensed with on 31.5.1996 after giving him one month's notice and all his
dues. A frivolous dispute was raised by him which was referred to the Respondent
no. 1 by the Government with regard to his alleged illegal termination by order
dated 31.5.1996.
14. It has been argued by the
learned counsel for the petitioners that the Respondent No. 2 at the time of
his initial engagement as a supervisor was being paid Rs.1800/- per month which
was much more than the limit of Rs.500/- per month as prescribed under Section
2 (z) (iv) of the U.P. Industrial Disputes Act and he could nothave been
considered a workman. Not only was his designation that of a supervisor, but he
was also performing supervisory work and therefore was being given the salary
of Rs.1800/- per month.
15. It has also been argued by the
learned counsel for the petitioners that subsequently the salary of the respondent
no. 2 was increased to Rs.2100/- per month, and therefore, the Respondent no. 1
was duty bound to consider the maintainability of the Reference filed before the
Industrial Court by the respondent no. 2 alleging himself to be a workman.
16. It has been argued that the
question to be decided by the Respondent no. 1 was whether a person employed as supervisor drawing salary of
Rs.2100/- per month would be a workman "as defined under Section 2 (z) of the
U.P. Industrial Disputes Act, 1947" .
17. An additional ground raised by
the learned counsel for the petitioners for challenging the Award passed by the
Respondent no. 1 is that the respondent no. 2 was due to retire at the age of
58 years as per his contract of appointment and the counsel for the parties has
referred to paragraph 15 of the terms and conditions of the "Revised
Contract for Employment of Guards" filed as Annexure no. 2 to the writ
petition in which the age of superannuation of guards has been mentioned as 58 years.
18. Learned counsel for the
petitioners has submitted that several issues were framed by the Respondent no.
1with regard to alleged illegal termination of the respondent no. 2 by the
order dated 31.5.1996 and the Respondent no. 1 has found that the respondent
no. 2 was continued in service up to 11.6.1996, as the management had itself
assigned duty to the respondent no. 2 till 11.6.1996, but his termination order
has been antedated and his date of termination has been mentioned as 31.5.1996
only because the respondent no. 2 along with other workman had filed a C.P.
Case No. 24 of 1996 on 3.6.1996 praying for equal wages for equal work to all
workmen/guards employed by Modi Rubber Ltd.
19. Learned counsel for the
petitioners has stated that with regard to the finding recorded by the
Respondent no. 1 regarding illegal termination of the respondent no. 2 by an
ante dated termination order dated 31.5.1996, the same could have only been
recorded after giving a specific finding regarding the maintainability of the Reference
as the preliminary objection raised by the employers was with regard to the respondent
no. 2 being engaged as a supervisor and not as a guard/workman.
20. Learned counsel for the
petitioners has also submitted that with regard to the relief that has ultimately
been granted by Respondent no. 1, the same is based on the presumption that the
respondent no. 2 was due to retire at the age of 62 years. The respondent no. 1
has treated his retirement age to be at 62 years and his date of superannuation
as 2008. But in the operativeportion of the Award, the Respondent no. 1 has mentioned
that the respondent no. 2 was illegally kept out of work for 12 years. The
respondent no. 2 was terminated on 31.5.1996 and the age of superannuation being
58 years and respondent no. 2 was due to retire in 2004 itself.
21. It has been argued that there is
an error apparent on the face of the Award in so far as at one place the respondent
no. 1 has mentioned that the respondent no. 2 had to retire at the age of 60
years whereas at another place he has observed that the management has deliberately
kept the respondent no. 2 out of work for 12 years. If one calculates the
duration of the work of actual period when he remained out of work, one find
that it would be only 8 years from 1996 onwards till 2004. Instead, when the
calculation has been done, the respondent no. 1 has observed that the
respondent no. 2 has remained out of job for 12 years and at the rate of Rs.2100/-
per month, he would have got Rs.3,02,400/-, but for his illegal termination on
31.5.1996.
22. It has also been argued that the
Respondent no. 1 has applied the principle of "no work no pay" but
also observed that since the order of termination was illegal and the
respondent no. 2 was deliberately kept out of work by the management itself,
then he was entitled to at least 50% of the back wages and has calculated the
same as Rs. 1,61,200/- and granted Rs. 10,000/- as compensation for mental
agony.
23. Learned counsel for the
respondent on the other hand has pointed out that in the counter affidavit in paragraph
9, there is a specific averment made by the respondent no. 2 that the
"Revised Contract of Employment for Guards" that has been filed along
with the writ petition as Annexure no. 2 is not the actual contract of
appointment that was signed by the respondent no. 2 and it cannot be relied
upon to determine the age of superannuation of the respondent no. 2. As no
pleading has been made in the writ petition by the petitioner indicating the
date of superannuation of the respondent no. 2 and as no rejoinder affidavit
has been filed by the petitioners, even though counter affidavit was served
upon the petitioners in September 2016, the averments made in the counter
affidavit have gone un-controverted. With regard to the submission in the
counter affidavit denying the "Revised Contract of Employment
for Guards" as stated in paragraph 9 in the counter
affidavit, it cannot be said to have been controverted or disputed. It amounts
to an admission on part of the petitioners.
24. Counsel for the respondents has
also brought to the notice of this Court judgment rendered in Ved Prakash Gupta Vs. M/s Delton Cable India Private
Ltd. reported in 1984 (2) SCC. 569 relied
upon by the respondent no. 1 in holding that the respondent no. 2 was indeed a
workman and was not performing any supervisory duty.
25. Having heard the learned
counsel for the parties, this Court has carefully perused the impugned Award. The
Respondent no.1 has considered all submissions made by the employers including
the statement relating to maintainability of the Reference and has framed specific
issues thereon. The findings of fact recorded by the Respondent no. 1 have not
been challenged in the writ petition. Therefore, this Court does not wish to interfere
with the findings of fact recorded in the impugned Award.
26. The Respondent no. 1 has found
that the respondent no. 2 was engaged as a Security Guard only and not as a
Supervisor as designated in the contract of engagement. The contract of
engagement itself stated that it was a contract for engagement of Guards and
not Supervisor. The engagement having been done on 09.08.1993 was for securing
the premises of Modi Rubber Ltd. The respondent no.2 while working as a
Security Guard found that the regular employees of Modi Rubber Ltd. performing
the same duties as him were being given better salary and facilities. The
engagement was in contravention of Contract Labour Regulation and Abolition Act,
1970. The respondent no. 2 along with other workmen instituted C.P. Case No. 24
of 1996 on 03.06.1996. Annoyed by such institution of case by respondent no. 2,
the employers continued to take work from the workman up to 11.06.1996 and
passed an antedated termination of service order dated 31.05.1996. Thetermination
order dated 31.05.1996 being ante-dated was liable to be set-aside.
27. With regard to the issue of
maintainability of Reference and whether the respondent no. 2 was a workman,
although he was being paid Rs.2100/- per month, specific findings have been
recorded on an additional issue no. 8. The duties assigned to the respondent
no. 2 were considered on the basis of oral statement of respondent no. 2 and
the oral statement of Senior Manager of the employer, Shri S.B.Tyagi.
28. Reliance was placed by the
employers on the judgment passed in the case of H.R. Adyanthaya vs Sandoz (India) Ltd. reported in 1994
SCC (5) 737. This Case was distinguished by
the Respondent no. 1 as it related to Medical Representatives who did not come within
the definition of 'Workman' as per the Maharashtra Act. The Industrial Tribunal
had rejected their claim as not maintainable. However, the Hon'ble Supreme
Court looking into the long pendency of the litigation had directed the
Maharashtra Government to refer the dispute raised by all the Medical
Representatives under Section 10(1)(d) of the Industrial Disputes Act and a
direction was issued to the Industrial Tribunal to decide this case afresh
within six months.
29. The Respondent no. 1 after
considering the case law cited by the employers agreed that Medical Representatives
did not come within the definition of 'Workman' as defined in the Maharashtra
Act. However, inthe U.P. Industrial Disputes Act, the definition of 'Workman'
included such person who was also performing Supervisory work provided his pay
did not exceed Rs.500/- per month. In other words if a person was getting more
than Rs.500/- yet he was not doing any supervisory work, he would still be
considered as 'Workman'. The Respondent no. 1 has placed reliance upon M/s. Ved Prakash Gupta vs. M/s. Delton Cable India (P)
Ltd. reported in (1984) 2 SCC, 569; Maganese Ore (India) Ltd. vs. Union
of India & Others reported in 2001 LLR, 1135 and M/s. Star Paper Mills Ltd. Vs.
Labour Court, Dehradun & Others reported in 2005 (105) FLR, 479.
30. The Respondent no. 1 relied
heavily upon Ved Prakash Gupta (supra) where in a similar situation the appellant
was recruited as a Clerk and later promoted as Charge-man (Security) in the
respondent factory which is equivalent to a Security Inspector under the
Security Officer on a total monthly salary of Rs.581/-. Substantial part of his
work consisted of looking after the security of the factory and its property by
deputing watchmen working under him and making entries in registers regarding
the visitors as well as the materials entering or going out of the factory
premises. There being nothing in writing to show what duties were to be carried
out by him, he had to do other items of work such as signing identity cards of
workmen, issuing some small items of stores like torch-cells etc. to his
subordinate watchmenand filling up of application form of other workmen and countersigning
them or recommending advances and loans or for promotion of his subordinates.
He was, however, not empowered to appoint or dismiss any workman.
31. The Hon'ble Supreme Court
considered the question whether the appellant was a workman within Section 2(s)
of the Industrial Disputes Act so that Reference of dispute under Section 10(1)
(c) of the Act relating to dismissal of the appellant was proper ?
32. The Hon'ble Supreme Court,
after analyzing the duties of the workman held that the substantive duty of the
workman was only at the gate of the factory premises. It was neither managerial
nor supervisory in nature and thus in the sense in which those terms are understood
in industrial law. The appellant was clearly falling within the definition of a
workman.
33. In D.P. Maheshwari s. Delhi Administration & Others reported in 1983
(4) SCC, 293, it was observed by the Hon'ble
Supreme Court that the administrative work will not take a person mainly
discharging clerical duties out of the purview of Section 2 (s) of the Central Act.
34. In S.K.Maini vs. M/s. Carona Sahu Company Ltd. reported in (1994)
3 SCC, 510, the Hon'ble Supreme Court in
paragraph 9 has observed thus :-
“9. ….........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 factoris 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.”
35. Such observations of the
Hon'ble Supreme Court have been reiterated in Hussan Mithu Mhasvadkar vs Bombay Iron & Steel Labour Board reported in 2001
(7) SCC, 394 where the Supreme Court has
observed about the status of an employee, his designation and nature of his
duties and the powers conferred upon him as well as the functions assigned to
him. Designation given to an employee is not conclusive to bring him within the
definition of 'Workman'. The pith and substance of him employment must be
clerical before the definition of workman is attracted.
36. There is no difference in the
language of Section 2(s) of the Central Industrial Disputes Act, 1947 and Section
2(z) of the U.P. Industrial Disputes Act, 1947 defining a workman.
37. The Hon'ble Supreme Court of
India in the several cases has held that the language being the same of both the
sections, they are in pari materia, and applied the law settled by the Constitution Bench of the
Hon'ble Supreme Court in the case of Burmah Shell Oil Storage Distribution Company vs. Burmah Shell Management
Staff Association reported in 1971 AIR, 922 to determine
who was a workman in respect ofthe U.P. Industrial Disputes Act, 1947. These
decisions are :-
(a) U.P. State Sugar Corporation Ltd. vs. Om Prakash
Upadhyaya reported in 2002 (10) SCC, 89.
(b) U.P. State Electricity Board vs Shri Shiv Mohan Singh
And Another reported in 2004 (8) SCC, 402.
(c) Muir Mills Unit of NTC U.P. Ltd. vs. Swayam Prakash
Srivastava & Another reported in 2007 (1) SCC, 491.
(d) Pepsico India Holdings (P) Ltd. vs. Krishna Kant
Pandey reported in 2015 (4) SCC, 270.
(e) Triveni Engineering And Industries Ltd. vs. Jaswant
Singh And Another reported in (2010) 9 SCC, 151.
38. In paragraph nos. 44 and 45 in
U.P. State Electricity Board vs Shri Shiv Mohan Singh And Another
(Supra), the Hon'ble Supreme Court has observed thus :-
“44. In this
background, we will examine the position vis-avis the U.P. Industrial Disputes
Act, 1947 and the Industrial Disputes Act, 1947 and the Indian Boilers Act,
1923. In this connection, a reference may be made to Section 2(z) of the U.P.
Industrial Disputes Act, 1947. This definition of the workman is pari materia with
Section 2(s) of the Industrial Disputes Act. Section 2 (z) of the U.P. Industrial
Disputes Act, 1947 reads as under :-
2 (z).
'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 expressed 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 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 otheremployee 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 five
hundred rupees per mensem or exercises, either by the nature of the duties
attached to the office or by reason of the poers vested in him, functions
mainly or a managerial nature.”
45. Since the
definition of “workman” as given in Section 2(z) of the U.P. Industrial Disputes Act, 1947 is pari materia
with that of Section 2 (s) of the Industrial Disputes Act, 1947, therefore, no
useful purpose would be served by reproducing the definition of “workman: as
given in Section 2 (s) of the Industrial Disputes Act, 1947. Our attention was
also invited to Section 6-N of the Industrial Disputes Act, 1947, which lays
down the conditions precedent ro retrenchment of workmen. Section 6-N of the
U.P. Industrial Disputes Act, 1947 reads as under :-
“6-N.
Conditions precedent to retrenchment of workmen---No workman employed in any
industry who has been in continuous service for not less than one year under an
employer shall be retrenched by that employer until --- (a) the workman has
been given one month's notice in writing indicating the reasons for
retrenchment and the period of notice has expired or the workman has been paid
in lieu of such notice wages for the period of the notice : Provided that no
such notice shall be necessary if the retrenchment is under an agreement which
specifies a date for the termination of service; (b) the workman has been paid,
at the time of retrenchment, compensation which shall be equivalent to fifteen
days' average pay for every completed year of service or any part thereof in
excess of six months, and (c) notice in the prescribed manner is served on the
State Government.”
39. It is apparent that the
Hon'ble Supreme Court has included Supervisor within the definition of a
'Workman'. In pursuance of the amendment in the Act in 1956 however, a
Supervisor will only be included if he draws wages in excess of Rs.500/- p.m.
or if he performs managerial functions. Before a person who is doing supervisory
work can be taken out of the definition of workman, he must be shown to be
employed in fact and in substance mainly in a managerial or administrative capacity.
40. In the case of respondent
workman however,evidence was led on behalf of respondent no. 2 and also on
behalf of the employer with regard to the nature of work performed by the
respondent no. 2. The statement of respondent no. 2 and that of Shri S.B.Tyagi,
Senior Manager of the employer were recorded and it was found that although the
respondent no. 2 was given the designation of Security Supervisor, he was
actually doing manual and clerical work.
41. In determining the question as
to whether a person is employed in a supervisory capacity or otherwise, mere designation
of the post is not decisive of the nature of employment. The question whether a
person is employed in a supervisory capacity or in a clerical/manual work depends
whether the main and principle duties carried out by him are those of a
supervisory character or of a nature carried out by a clerk or a skilled
workman. If the main work done is of clerical nature/skilled manual labour, the
mere fact that some supervisory duties are also carried out incidentally as a
small fraction of a work done by him will not convert his employment into that
of a supervisory capacity.
42. This point has been
illustrated in a decision of the Hon'ble Supreme Court in the case of Bankim Chandra Paira & Others vs. Anand Bazar
Patrika & Others reported in AIR 1950 Cal., 129. An employee employed in a main capacity of a supervisor
discharging the duties of allocation of jobs, assignment of work, recommendation
of leave, carrying out of promotionalappraisals, but incidentally discharging
other technical work will not fall within the definition of a workman.
43. The Labour Court while
considering all evidence regarding nature of duties performed by the respondent
no. 2 came to a conclusion that the respondent no. 2 was not working in a
supervisory capacity thus even if he earned more than Rs.500/- per month, he
could not be said to be ousted from the purview of the definition of Workman.
44. Since the question whether an
employee is working in any particular capacity such as technical, managerial and
supervisory is a mixed question of law of fact which has to be decided after
evidence is adduced by recording oral statement and considering all aspects of
the matter, the Labour Court's finding of fact should not ordinarily be disturbed.
In this case the finding of fact recorded by the Labour Court has not been
challenged as perverse by the petitioner. In fact no substantive pleadings have
been made on record to show that the respondent no. 2 was engaged only in a
supervisory capacity.
45. The Hon'ble Supreme Court in
the case of Indian Overseas
Bank vs. I.O.B. Staff Canteen Workers' Union reported
in 2000 (4) SCC, 245 has observed that under Article 226 of the Constitution of
India, the High Court does not exercise appellate jurisdiction. Reappreciation of
evidence is impermissible. Insufficiency of evidence only because another view
is possible can be no ground to interfere with the finding of the IndustrialTribunal.
In paragraph 17 it observed thus :-
“17. The learned Single Judge seems to have undertaken an exercise, impermissible
for him in exercising writ jurisdiction, by liberally re- appreciating the
evidence and drawing conclusions of his own on pure questions of fact, unmindful,
though aware fully, that he is not exercising any appellate jurisdiction over
the awards passed by a Tribunal, presided over by a Judicial Officer. The findings
of fact recorded by a fact-finding authority duly constituted for the purpose
and which ordinarily should be considered to have become final, cannot be
disturbed for the mere reason of having been based on materials or evidence not
sufficient or credible in the opinion of the writ Court to warrant those findings,
at any rate, as long as they are based upon some material which are relevant
for the purpose or even on the ground that there is yet another view which can
be reasonably and possibly be taken. The Division Bench was not only justified
but well merited in its criticism of the order of the learned Single Judge and
in ordering restoration of the Award of the Tribunal. On being taken through the
findings of the Industrial Tribunal as well as the order of the learned Single Judge
and the judgment of the Division Bench, we are of the view that the Industrial
Tribunal had overwhelming materials which constituted ample and sufficient
basis for recording its findings, as it did, and the manner of consideration
undertaken the objectivity of approach adopted and reasonableness of findings
recorded seem to be unexceptionable. The only course, therefore, open to the
Writ Judge was to find out the satisfaction or otherwise of the relevant
criteria laid down by this Court, before sustaining the claim of the canteen
workmen, on the facts found and recorded by the factfinding authority and not
embark upon an exercise of re-assessing the evidence and arriving at findings
of ones own, altogether giving a complete go-bye even to the facts specifically
found by the Tribunal below.”
46. The specific finding of fact
with regard to nature of duties performed by respondent no. 2 has not been shown
to be perverse by the petitioner.
47. It is true that Ved Prakash
Gupta vs. M/s. Delton Cable (Supra) has been held to be no longer good law, in Mukesh Kumar Tripathi vs. Senior Divisional Manager,
L.I.C. reported in 2004 (8) SCC, 387 the fact
remains that the finding recorded by the learned Labour Court having not been
challenged regarding the nature of work performed by the respondent no. 2, this
Court, in writ jurisdiction, cannot interfere with the same.
48. An argument was raised by the
learned counsel for the petitioner that there is an error apparent on the face of
record in the relief as given by Respondent no. 1. TheRespondent no. 1 has
treated the respondent no. 2 as a Security Guard or not as a Security
Supervisor. It has considered the revised contract of employment for Guards which
refers to date of retirement as 58 years. Thus, from the date of termination
dated 31.05.1996 up to the date of Award only eight years had passed and not
twelve. Therefore, the respondent no. 2 could have been given compensation
w.e.f. 1996 onwards only till 2004 @ Rs.2100/- per month. The amount would come
to Rs.2,01,600/- and as per the determination of the Respondent no. 1 he could
have only awarded Rs.1,00,800/- as compensation plus Rs.10,000/- for mental
harassment which would come to Rs.1,10,800/-.
49. It is apparent that in the
interim order granted by this court on 03.05.2010, this Court had directed the petitioner
to deposit of Rs.1,25,000/- with the Labour Court to which the respondent no. 2
could lay claim without furnishing any security. It has not come in the pleadings
of respondent no. 2 that he has not been able to get Rs.1,25,000/- deposited
with the Labour Court and there has been no argument in this regard also at the
time of hearing. The money already received by the Respondent no. 2 in terms of
the interim order of this Court should not be recovered.
50. This Court, therefore, dismisses the writ
petition with no further orders.
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