IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6208 of 2009 THE INDIAN EXPRESS LTD. . Versus THE STATE OF BIHAR & ANR . For the Petitioner: S.D. Sanjay, Adv. Goutam Kejriwal, Adv. Arjun Kumar, Adv. For the State : A.A.G.8 Kamla Kant Upadhyaya, Adv. ----------- 4/ 14/01/2011 Heard learned counsel for the petitioner and the respondent No.2. The petitioner Management questions the award of the Industrial Tribunal, Patna in Reference Case No.1/05 directing reinstatement of the workmen with full back-wages and consequential benefits. A reference was made under the Industrial Disputes Act whether the termination of services of respondent No.2, a Business Executive from 27th of March, 2002 was justified or not. Learned counsel for the petitioner submits that the petitioner at the very inception raised an objection that the respondent was not a ‘workman’ and was drawing a consolidated salary of Rs.2,400/- on the date of his appointment. After confirmation he was promoted as Assistant Manager. The duties performed by him were purely managerial and supervisory and therefore he cannot claim the benefit of a ‘workman’ - 2 - under the Act. Documentary evidence was produced with regard to the nature of the work being performed by the respondent. Two management witnesses deposed of the nature of work of the respondent that it was managerial and supervisory. The onus was therefore on the respondent to prove that he fulfilled the requirements of a workman by demonstrating that his works were clerical in nature and that he did not perform the managerial or supervisory works. The workman led no documentary evidence at all in respect of his status and work. Learned counsel for the respondent No.2 submitted that he was a workman since his duty was only to collect advertisements. The Industrial Tribunal from the discussion contained in the order appears to have erred by placing the onus upon the Management to prove that the respondent was not a workman. Once the Management had questioned the status of the petitioner based on documentary and oral evidence, it was for the respondent to rebut the same by leading proper evidence to satisfy the Tribunal on basis of the materials with regard to the nature of duties being performed by him that it was not managerial and supervisory but purely clerical. From the evidence of Management Witness No.1 available on the record it is more than apparent that - 3 - the respondent was discharging managerial and supervisory works. Employees reported to him, contract works were executed by him; he received reports of works completed, supervised the works of others, granted approval, dealt in money transactions on behalf of the Management at his discretion. Payments were made by him. He sanctioned leave, decided market strategy including decisions for giving articles in advertisements etc. The Industrial Tribunal more by process of raising questions against the Management itself, rather than discussing the evidence led by the Management and rebutting the same arrived at the conclusion that because the questions being raised by the Court with regard to nature of work of the respondent no.2 Management remain unanswered, it has arrived at a precocious finding that the respondent was a workman, without dealing with the documentary evidence led by the Management and the two witnesses of the Management to the contrary. The Court finds the award dated 26.2.2009 to be unsustainable. It is accordingly set aside. The writ application is allowed. KC ( Navin Sinha, J.)