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Wednesday, January 7, 2015

CIVIL APPEAL NO. 28 OF 2015 [Arising out of Special Leave Petition (C) No.32616 of 2013] M/s. Pepsico India Holding Pvt. Ltd. ... Appellant(s) versus Krishna Kant Pandey ...Respondent(s)

                                                                'REPORTABLE'


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 28  OF 2015
        [Arising out of Special Leave Petition (C) No.32616 of 2013]


M/s. Pepsico India Holding Pvt. Ltd.               ... Appellant(s)

                                   versus

Krishna Kant Pandey                            ...Respondent(s)


                               J U D G M E N T


M.Y.EQBAL,J.


Leave granted.


2.    This appeal by special leave is directed against  judgment  and  order
dated 23.5.2013 of the High Court of  Allahabad  at  Lucknow  Bench  whereby
learned Single Judge classifying the respondent  as  'workman'  allowed  the
writ petition preferred by him, quashed the  order  dated  August  24,  2007
passed by the Industrial Tribunal II, State of Uttar  Pradesh,  Lucknow  (in
short, 'the Tribunal') and directed  the  Tribunal  to  decide  respondent's
Case No.84/2004 on merit.

3.  The factual matrix of the case is that the respondent was  appointed  on
the post of Operator/Technician Grade III for six months on probation  basis
w.e.f. 13th of March, 1995 against the  salary  of  Rs.  2600/-  per  month.
Having been found his services satisfactory, he was  confirmed  w.e.f.  13th
September, 1995 and was also awarded one increment w.e.f. 1st  of  February,
1996.  Earlier, he was appointed in the  Plant  of  Jainpur  (Kanpur  Dehat)
from where he was transferred to Sathariya Plant, District Jaunpur, U.P.  on
30th of August, 1996 on the revised pay scale i.e.  Rs.  5450/-.    Pursuant
to the subsequent transfer order, he was posted at Lucknow in the  month  of
June, 1997 and till 2000 he was awarded annual increments  at  the  rate  of
Rs.490/-. Subsequently, he was promoted to the post of  Line  Supervisor  in
the pay scale of Rs.7716/- and thereafter to the post of Fleet Executive.

4.    It is the case  of  the  respondent  that  being  posted  as  a  Fleet
Executive, he was to discharge the mechanical work and  that  being  so,  he
was called as skilled workman.  It is stated that no other staff was  posted
in his subordination.  The respondent also pointed out the  conduct  of  the
employer transferring him from one place to another and also compelling  him
to resign from the post or to be on long leave.  On being asked  to  proceed
on leave, respondent remained on leave w.e.f.  9th  October,  2003  to  17th
October, 2003. When he turned up, he was not permitted to join for  want  of
instructions of the superior authorities.  Thereafter,  respondent  wrote  a
letter on 8th November, 2003 to the  Vice  President  seeking  guidance  for
further action, upon which the employer became unhappy  and  terminated  his
services on 14th of November, 2003 by giving one month's salary in  lieu  of
notice prior to termination.

5.    Aggrieved by the said termination, respondent  preferred  a  reference
before the Conciliation Officer, Lucknow alleging that  he  is  a  'workman'
within the meaning of  the  Uttar  Pradesh  Industrial  Disputes  Act,  1947
(hereinafter referred to as the 'Act') and termination of  his  services  by
the Company is contrary to Section 6 of  the  Act.   The  appellant  Company
pleaded that the respondent did not satisfy the criteria  of  a  workman  as
defined under Section 2(z) of the Act.  The  Industrial  Tribunal  dismissed
the reference stating that the respondent is not  a  workman  under  Section
2(z) of  the  Act  and,  therefore,  no  challenge  to  the  termination  is
maintainable before the Tribunal.

6.    Respondent, being aggrieved, moved the High Court by  way  of  a  writ
petition challenging the  order  of  the  Tribunal  and  also  for  his  re-
instatement to the post of Fleet Executive with continuity  of  service  and
for payment of full back wages.   In reply, the appellant pleaded  that  the
order of termination is in  accordance  with  the  provisions  of  the  Act.
After hearing learned counsel on either side, learned Single  Judge  of  the
High Court allowed writ petition of the respondent,  quashed  order  of  the
Tribunal  and  directed  it  to  proceed  with  the  adjudication   of   the
respondent's case on merit.  Hence, the present appeal by special  leave  by
the appellant-Company.

7.    Mr. C.U. Singh, learned counsel appearing for the appellant,  assailed
the order passed by the High Court on various grounds inter alia,  the  High
Court has exceeded its jurisdiction conferred upon it under Article  226  of
the  Constitution  of  India  by  reversing  the  finding  recorded  by  the
Tribunal. Learned counsel submitted that the High Court has committed  grave
error in issuing suo motu directions to the executive to  amend  a  relevant
provision of Section 2(z) of the U.P. Industrial  Disputes  Act  (in  short,
'State Act').  According to the learned counsel, issuing such  direction  by
the High Court amounts to issue a direction to the legislature  to  enact  a
law in a particular manner.  Learned counsel submitted that the  High  Court
cannot mandate the executive to introduce or enact a legislation,  howsoever
necessary  or  desirable.   Learned  counsel  drew  our  attention  to   the
provisions of Section 2(z) of the  said  Act  which  defines  'workman'  and
submitted that the High Court has failed to appreciate that  the  nature  of
duties and responsibilities entrusted upon the respondent  are  not  manual,
skilled or unskilled or  technical  services,  but  manual,  managerial  and
supervisory.  In the capacity of Fleet Executive,  respondent  was  required
to monitor each  and  every  vehicle  of  the  Fleet  and  ensure  that  the
necessary repair proceedings were  carried  out.   Learned  counsel  further
submitted that the High Court has  misdirected  itself  in  considering  the
relevant  facts  and  pleadings  which  were  not  even  placed  before  the
Industrial Tribunal.  Lastly, it  was  contended  that  the  High  Court  in
exercise of its jurisdiction under Article 226  of  the  Constitution  ought
not re-appreciate or re-weigh evidence and  disturb  the  finding  of  facts
recorded by  the  Tribunal  based  on  appreciation  of  evidence.   Learned
counsel relied upon the judgment of this Court in the case of   Chandavarkar
Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447, Birla  Corpn.  Ltd..
vs.  Rajeshwar Mahato and Others, (2001) 10  SCC  611  and  S.K.  Mani   vs.
M/s. Carona Sahu Company Limited and Ors., (1994) 3 SCC 510.

8.    Mr. Kavin Gulati, learned senior counsel appearing for the  respondent
firstly  contended  that  before   conciliation,  the  appellant  raised  an
objection with regard to the jurisdiction of the  Tribunal  and  the  matter
was finally referred to the Labour  Court  for  adjudication  on  a  limited
question as to whether the termination of services  of  the  respondent  was
justified.  According  to  the  learned  counsel,  the  appellant-management
cannot raise the question of jurisdiction  of  the  Labour  Court.   Learned
counsel referred to Rule 12 of the Industrial Disputes Rules in  support  of
his contention and relied upon the decision of this Court  in  the  case  of
M/s. U.P. Electric Supply Co., Ltd. vs. The Workmen of M/s.  S.N.  Choudhary
Contractors and  Anr., (1960) 3 SCR page 189.  Mr.  Gulati,  learned  senior
counsel also relied upon the decision of this Court in  the  case  of  TISCO
Ltd. v. State of Jharkhand, (2014) 1 SCC 536, and Bhogpur Coop  Sugar  Mills
Ltd. vs. Harmesh Kumar, (2006) 13 SCC  28,  for  the  proposition  that  the
Labour Court has limited jurisdiction to adjudicate the  disputes   referred
to it and not to enter into any other question that may  be  raised  in  the
reference.

9.    We have heard learned counsel for both the parties and considered  the
relevant facts and the law applicable thereto. The admitted facts  are  that
at the relevant time, the respondent was working as a Fleet  Supervisor  and
drawing  a  salary  of  Rs.  7716/-.   Initially,  he  was  appointed  as  a
technician Grade-III in 1995 on the salary  of  Rs.  2600/-  per  month  and
after getting increment his salary was increased.   By  giving  one  month's
salary, in lieu of the notice, his services were terminated.

10.   It appears that the appellant raised a  preliminary  objection  before
the Labour Court that the respondent was  not  a  Labour  as  defined  under
Section 2(z) of the said Act and the Deputy  Labour  Commissioner,  Lucknow,
who had referred the present case, was not competent for this purpose.   The
Labour Court recorded the evidence adduced by both  the  appellant  and  the
respondent and discussed the evidence, and elaborately considered  the  case
of the  parties.   The  Labour  Court  finally  recorded  finding  that  the
respondent is not a workman within the meaning of Section 2(z) of  the  Act.
Paras 13 to 15 of the order are reproduced hereinbelow:-
"13. The statement of the Applicant is that although he was given  the  post
in the name of Fleet Executive  and  he  was  posted  at  the  warehouse  at
Lucknow, however practically he was doing the work of skilled manual and  as
such he fall  within  the  definition  as  given  in  Section  2(z)  of  the
Industrial Disputes Act, 1947.  According  to  him  his  main  work  was  to
remove the technical defects at 100% from the fleet.  His other works  which
have been mentioned by the  management  in  their  written  statement,  were
secondary.  It has also been  stated  that  the  written  statement  of  the
management is not on affidavit, therefore the same cannot  be  relied  upon.
He was executing all his work in  accordance  with  the  directions  of  the
higher officials.  He was not having any right of doing the work as per  his
own wishes.  He has stated in his  statement  that  no  staff   was  working
under  him.  He used to do the work  himself for keeping the  vehicles  100%
free/available from technical deformities and removed  the  difficulties  of
the vehicles.  It has also been stated that there is  a  difference  in  the
statement of witnesses of the management EW-1 and EW-2 regarding the  repair
of the work of the company and the same  cannot  be  relied  upon.   It  has
been stated while relying upon the legal arrangement given  by  the  Hon'ble
Supreme Court in S.K. Verma Vs.  Mahesh  Chander  (AIR-  SC-1462)  and  Shri
Verma Role Offer Storage and Distribution Co. of India  Ltd.  Vs.  Vermashel
Management Staff Association and others (1970) 3 SCC 378 that any  personnel
fall within the definition of labour or not, it depends upon the  fact  that
what is the nature of the main works being done by him.  The same cannot  be
assessed with the name of the post.  If the concerned person  is  doing  the
work of manual skilled unskilled work, then  he  is  in  the  definition  of
labour, as the main work of the Applicant was to repair the vehicles,  which
he used to do from his own hands.  No other person  was  working  under  him
and he was not having the right to take decision by himself.  Therefore,  he
falls within the definition of Labour.  It has been stated  while  referring
the  S.K.  Verma  Vs.  Mahesh  Chander  and  Vermashel   Air   Storage   and
Distribution Co. of India Ltd., Vs. Vermashel Management  Staff  Association
(supra)  that  the  work  of  the  Applicant  was   similar   to   fupelling
superintendent, which has been considered  by  the  Hon'ble  Apex  Court  as
labour, because his work was  manual  and  not  supervisory.   Therefore  he
falls within the definition of labour and the termination  of  service  made
by the management is retrenchment, which has been  done in violation of  the
provisions of Section  60N  of  the  U.P.  Industrial  Disputes  Act,  1947.
Therefore his termination of service  is  improper  and  illegal.   On  this
basis he may be reinstated in service alongwith salary for leave period.

14.   It has been argued on behalf of  Management  that  out  of  the  works
executed by the Applicant on the post of Fleet  Executive,  the  details  of
the paid work are mentioned in their written statement.  The same  has  been
admitted by the Applicant in his arguments.  In  this  manner,  the  details
regarding the main work out of the works on  the  post  of  Fleet  Executive
being done by him is proved.  All these works  are  supervisory  in  nature.
The major work of repair of the vehicle used to be done from  outside.   The
work of washing and cleaning of the  vehicles  was  done   by  driver.   The
Applicant has never done any type of repairing work and neither anybody  has
seen the Applicant while  doing  such  work.   In  this  manner  mainly  the
Applicant was doing the work of  supervisory  nature.   Therefore  does  not
fall within the definition of labour.  His services   have  been  terminated
under the terms.  In this manner the order of termination of his service  is
proper and legal.  He is not entitled to get any relief.

15.   The main question in this industrial dispute is whether the  Applicant
K.K. Pandey is a labour, as claimed by him, as this claim has been  made  by
him and as such onus to prove the same lies on him.  According  to  para  11
and 12 of his written statement he was having  only  one  responsibility  on
the post of fleet executive that he was to ensure the  availability  of  the
vehicles  free  from  technical  deformities.   According   to  the  written
statement for this work nobody was working under him and he used to  do  the
work of repair with his own hands.  He  has  reiterated  this  fact  in  his
statement also.  In this regard except his statement has  not  produced  any
evidence to confirm the same.  On the other hand  he  has  admitted  in  his
arguments as regards  the  details  of  different  works  mentioned  by  the
management in para No.1 of their written statement.  According to it out  of
his works, there is  a  detail  of  15  main  works.   In  this  manner  the
statement made by the Applicant regarding his main work  remained  rebutted.
The statement of the Applicant regarding the post of Fleet Executive on  the
basis of which he is  claiming  himself  as  labour  is  not  liable  to  be
believed."


11.   On the basis of  the  findings  based  on  elaborate  discussions  and
analyzing the evidence, the Labour Court came to the conclusion that at  the
relevant time the respondent was working  as  a  Fleet  Executive  which  is
supervisory in nature and does not fall within the  definition  of  'labour'
as defined under Section 2(z) of the Act.  Hence, he is not entitled to  any
relief.  The respondent challenged the aforesaid award passed by the  Labour
Court in a writ petition before  the  High  Court.   After  considering  the
definition contained in Section 2(z) of the  Act  and  the  nature  of  work
assigned to the respondent, the High Court arrived at a conclusion that  the
nature of work prevalent on the  date  of  termination  was  as  that  of  a
workman.  Curiously enough, though the respondent did  not  come  under  the
definition of workman  under  Section  2(z)  of  the  Act,  the  High  Court
proceeded on the basis that the U.P. Industrial Disputes Act was enacted  in
1947 and although the respondent cannot be held to be a  workman  under  the
said definition, held that he shall have to be classified as a  workman  and
directed the Government to  make  amendment  in  Section  2(z)  of  the  Act
excluding some of the clauses.  For better appreciation,   relevant  portion
of the order is quoted hereinbelow:-
 "There is one more exclusion clause in section 2(z) of the Act i.e.  Clause
(iv) which excludes the employee who being employed in supervisory  capacity
draws wages exceeding Rs. 500/-  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 in nature. It is  very  much
obvious that by nature of duties assigned to the petitioner,  it  cannot  be
said that he was attached to the office or mainly  managerial  function  was
vested with him.
      So far as another condition  for  exclusion  from  the  definition  of
"workman" viz drawing wages exceeding Rs. 500/- per mensem is concerned,  it
is not in dispute that the petitioner on the date of retrenchment  had  been
getting more Rs. 500/- mensem. This clause is a part  of  original  form  of
the definition of "workman" as is provided under section 2 (z) of  the  Act.
The U. P. Industrial Disputes Act was enacted in 1947.  The  petitioner  was
retrenched from service in 2003. The date of his initial appointment  is  on
13th of March, 1995. By passage of time the GDP growth  had  been  increased
in number of times from 1947 to 2003. Therefore, the enhancement  in  income
was a natural corollary, in the light of which, I am of the view  that  this
clause has become unworkable and redundant. Now  every  workman  working  in
the Industry definitely would have been getting  more  than  Rs.  500/-  per
mensem and if this clause is permitted to be prevailed no workman  shall  be
governed under the definition of "workman". Therefore,  I  am  of  the  view
that this clause has lost its significance and if the  employee  is  covered
under the definition of "workman" as is defined under Section 2 (z)  of  the
U. P.  Industrial  Disputes  Act  and  further  is  not  covered  under  the
exclusion clause except clause (iv), he shall be  classified  as  "workman".
The clause (iv) of  section  2  (z)  shall  not  come  in  the  way  of  his
categorization as "workman".
     It is advisable  to  the  State  Government  to  consider  to  make  an
amendment in section 2 (z) of the U. P. Industrial  Disputes  Act,  1947  in
general and to exclude the class (iv) from the exclusion in particular.
      Since the present petitioner has been classified  by  this  court,  as
above, under the definition of "workman" the order impugned  dated  24th  of
August, 2007 passed by the Industrial Tribunal II, State of U.  P.,  Lucknow
is hereby quashed with the direction to the Tribunal  to  proceed  with  the
adjudication case No. 82/2004 to adjudicate upon it on merit."

12.   Considering the entire facts of the case and the findings recorded  by
the Labour Court, prima facie we are of the view that  the  High  Court  has
exceeded in exercise of its jurisdiction under Articles 226 and 227  of  the
Constitution of India in interfering with the finding of facts  recorded  by
the Labour Court.  It is well settled that the High Court in  the  guise  of
exercising its jurisdiction normally should not interfere under Article  227
of the Constitution and convert itself into a court of appeal.

13.   While discussing the power of the High Court under  Articles  226  and
227 of the Constitution interfering with the facts recorded  by  the  courts
or the tribunal, this Court  in  the  case  of  Chandavarkar  S.R.  Rao  vs.
Ashalata S. Guram, (supra) held as under :-
"17. In case of  finding  of  facts,  the  court  should  not  interfere  in
exercise  of  its  jurisdiction  under  Article  227  of  the  Constitution.
Reference may be made  to  the  observations  of  this  Court  in  Bathutmal
Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the  High
Court could not in the guise of exercising its  jurisdiction  under  Article
227 convert itself into a court of  appeal  when  the  legislature  has  not
conferred a right of appeal.  The  High  Court  [pic]was  not  competent  to
correct errors of  facts  by  examining  the  evidence  and  reappreciating.
Speaking for the Court, Bhagwati, J. as the learned Chief Justice then  was,
observed at p. 1301 of the report as follows: (SCC p. 864, para 7)
"The special civil application preferred by the appellant was admittedly  an
application under Article  227  and  it  is,  therefore,  material  only  to
consider the scope and ambit of the jurisdiction of  the  High  Court  under
that article. Did the High Court have jurisdiction in an  application  under
Article 227 to disturb the findings of fact reached by the  District  Court?
It is well settled by  the  decision  of  this  Court  in  Waryam  Singh  v.
Amarnath that the
... power of superintendence conferred by Article 227 is, as pointed out  by
Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to  be  exercised
most  sparingly  and  only  in  appropriate  cases  in  order  to  keep  the
subordinate courts  within  the  bounds  of  their  authority  and  not  for
correcting mere errors.
This statement of law was quoted with approval in  the  subsequent  decision
of this Court in Nagendra Nath Bose v. Commr. of Hills Division and  it  was
pointed out by Sinha, J., as he then was, speaking on behalf  of  the  court
in that case:
It is thus, clear that the powers of  judicial  interference  under  Article
227 of the Constitution with orders of judicial  or  quasi-judicial  nature,
are not greater than the power under Article 226 of the Constitution.  Under
Article 226 the power of interference may extend  to  quashing  an  impugned
order on the ground of a mistake apparent on the face  of  the  record.  But
under Article 227 of the Constitution, the power of interference is  limited
to seeing that the tribunal functions within the limits of its authority."


14.   In the case of  Birla Corpn. Ltd.. vs.  Rajeshwar Mahato  and  Others,
(2001) 10 SCC, the question of validity of termination of  services  of  the
respondent by the  appellant-Corporation  was  referred  to  the  Industrial
Tribunal.  On evidence, the Industrial Tribunal found  that  the  duties  of
the respondent were mainly managerial or administrative.  The Tribunal  held
that the respondent was not a workman and the reference  was  therefore  not
maintainable against the decision of the Tribunal.  The Tribunal relying  on
Section 2(s)(iv)  (as  amended  in  West  Bengal  W.B.)  held  that  as  the
respondent was drawing salary less than Rs.1600/- per month, he  had  to  be
regarded as a workman.  The Corporation moved this Court against  the  order
of the High Court.  This Court while setting aside the decision of the  High
Court held as under :-

"4. It was not in dispute that at the time of the  termination  of  services
of Respondent 1, he was receiving Rs 1185 per month by way  of  salary.  The
Tribunal  recorded  the  evidence  as  well  as  took   into   consideration
documentary evidence which was produced by the parties. On the basis of  the
evidence which was adduced before it, the Tribunal observed that:
"The main  duties  of  Shri  Rajeshwar  Mahato  were  both  supervisory  and
administrative in nature.
In the instant case, Shri Mahato's functions were  mainly  of  a  managerial
nature. He had control as well as supervision over  the  work  of  the  jute
mill workers working under him."
11.  As  we  have  also  noticed  hereinabove,  the  Tribunal  had  given  a
categorical finding to the effect that Respondent 1's  function  was  mainly
of managerial nature. His duties were both  supervisory  and  administrative
and therefore he was regarded as not being a workman.  Though  the  Tribunal
did not specifically state so, it is evident that it is because  of  Section
2(s)(iii) that Respondent 1 was regarded as not being a workman.
12. Neither the Single Judge nor the Division Bench of the  High  Court,  as
we have already noticed,  referred  to  this  aspect  of  the  matter.  Even
assuming that the West Bengal amendment was  applicable,  that  would  still
not help to hold Respondent 1 as a workman if the finding  of  the  Tribunal
with regard to the nature of the duties performed by him, as arrived  at  by
the Tribunal, is not set aside as being frivolous or without  any  evidence.
As long as the finding of the Tribunal stands, namely, that  the  respondent
was an employee mainly in  a  managerial  or  administrative  capacity,  the
award of the Tribunal could not have been set  aside.  As  we  have  already
observed the Single Judge or even the Division Bench could have come to  the
conclusion that the finding  so  arrived  at  by  the  Tribunal  was  either
frivolous or not based on any evidence. But this  aspect  of  the  case  was
completely overlooked by the High Court. The emphasis of  the  Single  Judge
as well as the Division [pic]Bench was only with regard to applicability  of
the amendment of the State of West Bengal to Section 2(s) of the  Industrial
Disputes Act. In our opinion, therefore, the High Court  erred  in  allowing
on this ground the writ petition filed by Respondent 1. The decision of  the
High Court is  set  aside  and  the  writ  petition  filed  therein  by  the
respondent stands dismissed."


15.   In the case  of  Indian  Overseas  Bank   vs.   I.O.B.  Staff  Canteen
Workers' Union and Another, (2000)  4  SCC  245,  this  Court  considered  a
similar question with regard to the power of the High  Court  under  Article
226 against the findings recorded by  the  Industrial  Tribunal.   Reversing
the decision of the Single Judge and restoring the fact finding decision  of
the Tribunal this, Court held :-

"17. The  learned  Single  Judge  seems  to  have  undertaken  an  exercise,
impermissible  for  him  in  exercising  writ  jurisdiction,  by   liberally
reappreciating 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 [pic]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
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 fact-finding authority and not  embark  upon
an exercise of reassessing the evidence and arriving at  findings  of  one's
own, altogether giving a complete  go-by  even  to  the  facts  specifically
found by the Tribunal below."


16.   The order of the  Tribunal  would  show  that  the  respondent-workman
accepted different works assigned to him which were  purely  of  supervisory
and managerial nature.   The  details  of  15  managerial/supervisory  works
assigned to the respondent have been analyzed by the Tribunal which  finally
came to the conclusion that the respondent  is  not  a  workman  within  the
meaning of Section 2(z) of the Act.

17.   In exercise  of  its  writ  jurisdiction,  the  High  Court  proceeded
initially on the basis that the appellant had entered into  service  on  the
post of Operator/Technician Grade-III, which is a technical  post  and  from
there he was promoted to different  posts  including  Fleet  Executive.  The
High Court committed grave error in holding that although he is not  covered
under the definition of workman as defined under Section 2(z) of the Act  he
shall be classified as a workman.   The  High  Court  further  exceeded  its
jurisdiction in advising the Government to  make  an  amendment  in  Section
2(z) of the Act and to exclude some clauses. The order passed  by  the  High
Court cannot be sustained in law.

18.   We, therefore, allow this appeal and set aside the order of  the  High
Court and restore the order  passed  by  the  Tribunal.   However,  we  give
liberty to the respondent to move the appropriate  forum  to  challenge,  in
accordance with law, the order of termination passed by the appellant.


                                       ...................................J.
                                                                (M.Y. Eqbal)



                                       ...................................J.
                                                         (Shiva Kirti Singh)
New Delhi
January 06, 2015

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