w w w . L a w y e r S e r v i c e s . i n



M/s. Group 4S Security Services v/s Presiding Officer, Industrial


Company & Directors' Information:- D B GROUP INDIA PRIVATE LIMITED [Active] CIN = U63000MH2006PTC158759

Company & Directors' Information:- C S A V GROUP INDIA PRIVATE LIMITED [Not available for efiling] CIN = U72900DL2004PTC124999

Company & Directors' Information:- SECURITY CO LTD [Active] CIN = L65929WB1948PLC016992

Company & Directors' Information:- V N A SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74920DL1998PTC091780

Company & Directors' Information:- G SECURITY (INDIA) PRIVATE LIMITED [Active] CIN = U74920MH2004PTC150235

Company & Directors' Information:- S R SECURITY PRIVATE LIMITED [Active] CIN = U74920MH2005PTC152956

Company & Directors' Information:- S R SECURITY PRIVATE LIMITED [Active] CIN = U74110MH2005PTC152956

Company & Directors' Information:- J S SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74920HR2008PTC037747

Company & Directors' Information:- B D SECURITY PRIVATE LIMITED [Active] CIN = U74920JK2006PTC002638

Company & Directors' Information:- G S S GROUP PRIVATE LIMITED [Strike Off] CIN = U01212KL1995PTC009575

Company & Directors' Information:- R. P. S. S. SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U93090UP2017PTC092692

Company & Directors' Information:- D C GROUP PVT LTD [Active] CIN = U51109WB1981PTC033553

Company & Directors' Information:- G I SECURITY PRIVATE LIMITED [Active] CIN = U74140WB1993PTC057724

Company & Directors' Information:- L K SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U93030UP2015PTC068449

Company & Directors' Information:- AT GROUP INDIA LIMITED [Active] CIN = U74999MH2013PLC247209

Company & Directors' Information:- R & L GROUP LIMITED [Strike Off] CIN = U01403HR2012PLC046635

Company & Directors' Information:- S. B. SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74999UP2016PTC086112

Company & Directors' Information:- R M G SECURITY PRIVATE LIMITED [Strike Off] CIN = U74910TN1997PTC038969

Company & Directors' Information:- G D A SECURITY PVT LTD [Active] CIN = U74899DL1973PTC006424

Company & Directors' Information:- H K SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74920MH2002PTC136385

Company & Directors' Information:- A G SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74900MH2013PTC239505

Company & Directors' Information:- P G SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U24232DL2005PTC132138

Company & Directors' Information:- M & D SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120DL2008PTC173377

Company & Directors' Information:- J S D SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920DL2009PTC197167

Company & Directors' Information:- M. SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920WB2000PTC092218

Company & Directors' Information:- INDUSTRIAL SECURITY SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U51109UP1986PTC007713

Company & Directors' Information:- D & G SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U93000WB2011PTC165782

Company & Directors' Information:- D AND R SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920JH2013PTC001793

Company & Directors' Information:- S M SECURITY PRIVATE LIMITED [Strike Off] CIN = U74899DL1996PTC007805

Company & Directors' Information:- J AND J SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920DL2004PTC128735

Company & Directors' Information:- J A INDUSTRIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U51900MH2000PTC126803

Company & Directors' Information:- E-1 SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74910OR2012PTC014996

Company & Directors' Information:- J S S SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920PB2005PTC028528

Company & Directors' Information:- W B SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920RJ2012PTC040905

Company & Directors' Information:- R. D. SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920PN2010PTC135994

Company & Directors' Information:- K N R SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U93000MH2010PTC204385

Company & Directors' Information:- S P SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U93000PN2014PTC150722

Company & Directors' Information:- G T I SECURITY PRIVATE LIMITED [Active] CIN = U74999MH2013PTC251541

Company & Directors' Information:- J. B. C. SECURITY PRIVATE LIMITED [Active] CIN = U74999MH2017PTC302126

Company & Directors' Information:- R P SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC046112

Company & Directors' Information:- S. P. S. S. SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74120UP2016PTC076893

Company & Directors' Information:- H N S SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74900TG2013PTC089837

Company & Directors' Information:- P. S. SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74920UP2008PTC035914

Company & Directors' Information:- B J U SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920UP2010PTC039772

Company & Directors' Information:- S A SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U93000UP2014PTC062073

Company & Directors' Information:- B. R. S. SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U93030UP2013PTC059573

Company & Directors' Information:- B & I SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74900WB2013PTC190717

Company & Directors' Information:- R L SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74999JK2015PTC004376

Company & Directors' Information:- S R S SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U95000DL2000PTC106902

Company & Directors' Information:- G G SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U00000DL2001PTC109868

Company & Directors' Information:- M R S SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140DL2013PTC247541

Company & Directors' Information:- S M SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999DL2004PTC125744

Company & Directors' Information:- T & E SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999DL2011PTC220586

Company & Directors' Information:- AT SECURITY PRIVATE LIMITED [Strike Off] CIN = U74999DL2012PTC234962

Company & Directors' Information:- R SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U93000DL2011PTC213180

Company & Directors' Information:- L N T SECURITY PRIVATE LIMITED [Strike Off] CIN = U74899DL2001PTC109776

Company & Directors' Information:- A.N.D SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74900DL2009PTC193787

Company & Directors' Information:- VERSUS SECURITY PRIVATE LIMITED [Strike Off] CIN = U74900DL2009PTC195274

Company & Directors' Information:- M K G SECURITY SERVICES PRIVATE LIMITED [Under Process of Striking Off] CIN = U74920DL2005PTC141445

Company & Directors' Information:- A V SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U74920DL2008PTC181601

Company & Directors' Information:- R-4 SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2001PTC113509

Company & Directors' Information:- S O L SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920DL2002PTC115968

Company & Directors' Information:- V AND A SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2004PTC125411

Company & Directors' Information:- H S SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920DL2004PTC127249

Company & Directors' Information:- T F SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2005PTC143337

Company & Directors' Information:- M P S SECURITY PRIVATE LIMITED [Under Process of Striking Off] CIN = U74920DL2007PTC169952

Company & Directors' Information:- V M SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2008PTC185522

Company & Directors' Information:- N K SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2009PTC191230

Company & Directors' Information:- M H SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2013PTC255582

Company & Directors' Information:- A R R INDUSTRIAL SERVICES PRIVATE LIMITED [Active] CIN = U74140HR2013PTC050555

Company & Directors' Information:- P & D SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920HR2013PTC048169

Company & Directors' Information:- P T SECURITY SERVICES PRIVATE LIMITED [Active] CIN = U67120KA2013PTC070724

Company & Directors' Information:- H S R SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920KA2012PTC064955

Company & Directors' Information:- M AND G SECURITY PRIVATE LIMITED [Active] CIN = U74920HR2020PTC087465

Company & Directors' Information:- SECURITY & SERVICES (INDIA) PVT LTD [Strike Off] CIN = U74140WB1977PTC030902

Company & Directors' Information:- B H INDUSTRIAL SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL1990PTC039278

Company & Directors' Information:- I S S SECURITY PRIVATE LIMITED [Strike Off] CIN = U74920DL2000PTC103574

Company & Directors' Information:- N R V SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920CH2007PTC030824

Company & Directors' Information:- S V M SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U93090DL2006PTC153793

Company & Directors' Information:- R A R SECURITY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2006PTC154147

    Writ - C No. 24467 of 2010

    Decided On, 15 November 2018

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MRS. JUSTICE SANGEETA CHANDRA

    For the Petitioner: S. Chatterjee, Advocate. For the Respondents: Siddharth, C.S.C, Vatsala, Advocate.



Judgment Text

Sangeeta Chandra, J.

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 written statement 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 not being 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 been scanned 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 not have 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. 1 with 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 operative portion 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 ante-dated termination of service order dated 31.05.1996. The termination 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, in the 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 watchmen and 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 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."

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 of the 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 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 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 promotional appraisals, 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. Re-appreciation of evidence is impermissible. Insufficiency of evidence only because another view is possible can be no ground to interfere with the finding of the Industrial Tribunal. 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 reasona

Please Login To View The Full Judgment!

bly 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 fact-finding 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. The Respondent 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.
O R