IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2008 CORAM THE HONOURABLE Mr.JUSTICE S. NAGAMUTHU W.P.No.16819 of 1999 and W.P.M.P.No.1791 of 2007 Management of S & S Power S & S Power Switchgear Ltd Porur, Chennai -600 116 .. Petitioner -Vs.- 1.The presiding Officer Principal Labour Court Chennai. 2.Thiru.S.Arulrajan .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified Mandamus calling for the records of the first respondent in ID No.162 of 1993 and quash its award dated 15.05.1999. For Petitioner : Mr.P.John for M/s.T.S.Gopalan & Co. For R.2 : Mr.G.Thyagarajan ORDER Though the miscellaneous petition is listed today, by consent of the learned counsel for both sides, the writ petition itself is taken up for final disposal. 2.Claiming himself to be a workman, the second respondent herein has raised an industrial dispute against the petitioner herein before the first respondent challenging the order of termination of https://hcservices.ecourts.gov.in/hcservices/ his service. The first respondent has conducted an enquiry in I.D.No.162 of 1993 and after full fledged trial, passed an award dated 14.05.1999 thereby directing the petitioner herein to reinstate the second respondent in service with 50% of the backwages, continuity of service and other attendant benefits. Challenging the said award, the petitioner has come forward with this writ petition seeking to quash the same. 3.The facts leading to the writ petition are as follows:- Admittedly, the second respondent was appointed by the petitioner on 15.03.1984 as Maintenance Engineer and after confirmation, he was later on promoted as Senior Engineer on 01.07.1990 and thereafter, as per Ex.W.13, the termination order issued by the petitioner, he was discharged from service on 29.06.1992. Before the first respondent, the second respondent was examined as P.W.1 and 15 documents were marked as Exs.W.1 to W.15 and on the side of the petitioner one Mr.V.R.Elumalai was examined as M.W.1 and as many as 21 documents were marked as Exs.M.1- M.21. 4.It was contended by the petitioner Management before the first respondent that the second respondent was not a workman. According to the petitioner, the second respondent was employed in a supervisory capacity and therefore, he would not fall within the ambit of the definition of workman under Section 2(s) of the Industrial Disputes Act. But on appreciating the oral as well as documentary evidence adduced on either side, the first respondent has held that the second respondent is only a workman and the nature of his work is not supervisory in nature. It is on the said conclusion the first respondent has ordered for the reinstatement of the second respondent with 50% back wages and other benefits. 5.In this writ petition, the petitioner contends that the second respondent is not a workman and the finding given by the first respondent is not correct. It is further contended by the petitioner that the first respondent has failed to appreciate both the oral and the documentary evidence in a proper perspective manner. It is also contended that the first respondent has wrongly approached the case as if the burden of proof is on the petitioner to prove that the second respondent is not a workman. In conclusion, the contention of the petitioner is that the proper appreciation of evidence available on record would go to prove that the second respondent is not a workman and therefore, the award of the first respondent is liable to be quashed. 6.Per contra, the learned counsel for the second respondent would submit that the second respondent was only a workman and he would further submit that the evidence adduced on both sides more particularly certain admissions made during cross examination would prove that the second respondent is a workman. He would further https://hcservices.ecourts.gov.in/hcservices/ contend that the first respondent has not over looked the evidence adduced by the parties and the finding of the first respondent is absolutely correct and it cannot be termed as perverse. Therefore, according to the second respondent, the writ petition is liable to be dismissed. 7.From the rival stand taken by the parties, the following questions arise for consideration:- "(i) Whether this Court under Article 226 of the Constitution of India can have judicial review of the findings of the first respondent by re-appreciating the evidence. (ii) Whether the finding of the first respondent is perverse or patently erroneous on the face of the record. 8.The scope of judicial review of the award of the Labour Court came to be dealt with by the Hon’ble Supreme Court in Sonepat Co- operative Sugal Mills Ltd., v. Ajit Singh (2005 (3) SCC 232). In paragraph Nos.21 and 22 of the said judgment, the Hon’ble Supreme Court has held as follows:- "21.It is not trite that the issue as to whether an employee answers the description of a workman or not has to be determined on the basis of a conclusive evidence. The said question, thus, would require full consideration of all aspects of the matter. 22.The jurisdiction of the Industrial Court to make an award in the dispute would depend upon a finding as to whether the employee concerned is a workman or not. When such an issue is raised, the same being a jurisdiction al one, the findings of the Labour Court in that behalf would be subject to judicial review." 9.As held by the Hon’ble Supreme Court in the said judgment, since the first respondent has given a finding that the second respondent is a workman and since the first respondent got jurisdiction to decide the further issue, only on the said finding, in my considered opinion, this Court under Article 226 of the Constitution of India has to necessarily judicially review the award of the first respondent. 10.In Ahamadabad Municipal Corporation v. Virendra Kumar Jayantibhai Patel (1997 96) SCC 650), while dealing with a similar question regarding the scope of judicial review, the Hon’ble Supreme https://hcservices.ecourts.gov.in/hcservices/ Court has issued the following guide lines:- "High Courts under Article 226 of the Constitution are entitled to issue directions, writs and orders for correcting the record of the inferior courts or the tribunal. It is true that the High Court while exercising its jurisdiction under Article 226, cannot convert itself into a court of appeal and assess the sufficiency or adequacy of the evidence in support of the finding of fact reached by the competent courts or the tribunals, but this does not debar the High Court from its power to enquire whether there is any evidence in support of a finding recorded by the inferior court or tribunal. There is a difference between a finding based on sufficiency or adequacy of evidence and a finding based on no evidence. If the finding of fact recorded by the Tribunal is based on no evidence, such a finding would suffer from error of law apparent on the face of record. On an examination it is found that the earlier the award of the Tribunal and circulars issued in pursuance thereof by the Corporation were not applicable to the case of the respondent and if these materials are excluded, the finding of the Tribunal that the respondent is a workman entitled to permanent status in the service of the Corporation is rendered without any evidence and exposed to the vice of error apparent on the face of the record. Therefore, the High Court fell into error in dismissing the writ petition holding that the finding of fact recorded by the Tribunal does not call for interference." 11.As held by the Hon’ble Supreme Court in cases where there is absolutely no evidence and still a finding has been given then, this Court can set aside the award. If a finding has been given by the Labour Court on evidence taking a particular view, though there is another view possible, this Court cannot interfere with the said finding given by the Labour Court by adopting the latter view. 12.In Anand Regional Co-operative Oil Seedsgrowers’ Union Ltd., v. Shaileshkumar Harshdbhai Shah (2006(6) SCC 548), in spite of determination of the question as to whether a person employed in an industry is a workman or not, the Hon’ble Supreme Court has held as follows:- "For determining the question as to whether a person employed in an industry is a https://hcservices.ecourts.gov.in/hcservices/ workman or not, not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee or the name assigned to the class to which he belongs. For the said purpose, it is necessary to prove that there were some persons working under him whose work was required to be supervised. Being in charge of the section alone and that too a small one and relating to quality control would not answer the test. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion etc. The work involves exercise of tact and independence. The respondent in his evidence stated that he was the Head of the Department and there was no officer superior to him except the Managing Director. Although he stated that as a senior he gave guidance, he did not state that he was authorised to initiate any departmental proceedings against his subordinates. Therefore, judging by the standard stated herein, the respondent did not come within the purview of the exclusionary clause of the definition of workman." 13.Now keeping in mind, the above principles stated in the judgments cited supra, let me analyse the facts of the case. As held by the Hon’ble Supreme Court in Sonepat Co-operative Sugal Mills Ltd., v. Ajit Singh (cited supra), since the question as to whether an employee is a workman or not, pertains to the jurisdiction of the Labour Court, this Court can review the impugned order judicially. In this case, the second respondent was examined as P.W.1 and he has deposed that he is only a workman and there was another person in the rank of Deputy Manager who was only supervising the work of the petitioner and others. He has further deposed that leave for the workmen including the petitioner was sanctioned by the Deputy Manager. Further, he has denied that he was in a position to recruit workmen and also to take disciplinary action. On the side of the petitioner, one Mr.V.R.Elumalai was examined as M.W.1 and he has stated that during the relevant point of time, he was working as an Engineer in the petitioner Industry. He has further stated that the https://hcservices.ecourts.gov.in/hcservices/ second respondent was then working as Senior Engineer under whom seven Engineers were working. He has further stated that the second respondent used to grant leave for the employees and he has also conducted interviews for recruiting new workmen. But, he has admitted that there is no document available to establish that it was the second respondent who granted leave to the other workmen and as per Ex.M.10, leave was sanctioned only by the Deputy Manager. The said document shows that the petitioner had only forwarded the said leave application of a workman. According to Ex.M.17, the petitioner had recommended for disciplinary proceedings against a workman. But M.W.1 has admitted that the second respondent had no power to initiate any disciplinary proceedings. When confronted with Ex.M.15, M.W.1 has admitted that according to the entries found in Ex.M.9 there were deductions from the salary of the petitioner towards E.S.I. He has further admitted that bonus was also given to the petitioner. During re-examination, M.W.1 has stated that the post of Deputy Manager was created only in the year 1989 and thus it was suggested that prior to 1989, it was only the second respondent who was in charge of the Supervisor of the entire Section. But in further cross examination, the said witness has admitted that prior to 1989, the Senior Manager was in full in charge of the entire Section. 14.The first respondent has extensively considered the oral and documentary evidences produced by either side. Based on the same, after having an elaborate discussion, in respect of the acceptability of these evidences, the first respondent has come to the conclusion that the second respondent was a workman and on that basis, the first respondent has passed the award. 15.Thus, it is not the case where the first respondent Labour Court has come to the conclusion that the second respondent is a workman without any evidence. As stated above, there is oral evidence of P.W.1 and M.W.1 and several documents produced on either side. Therefore, as held by the Hon’ble Supreme Court in Ahmedabad Municipal Corporation v. Virendra Kumar Jayanthibhai Patel (cited supra), since the Labour Court has come to the conclusion that the second respondent is a workman on the basis of the evidence adduced on either side, this Court cannot take a different view under the guise of judicial review. It is to be remembered that as held by the Hon’ble Supreme Court in the said judgment, in a case where such a conclusion has been arrived at without any evidence, then this Court can reappreciate the entire evidence and take a different view. Therefore, as held by the Hon’ble Supreme Court, in the case on hand, since the conclusion that the second respondent is a workman has been arrived at on the basis of the evidence, it is beyond the jurisdiction of this Court to take a different view under the guise of judicial review. 16.The learned counsel for the petitioner would submit that in this case, the Labour Court has not considered the oral evidence of https://hcservices.ecourts.gov.in/hcservices/ M.W.1 and the entire approach of the Labour Court was as if the burden was on the petitioner to prove that the second respondent is not a workman. Therefore, according to the learned counsel, this Court has to re-appreciate the evidence which were omitted to be appreciated by the Labour Court and then to give a finding. I am not able to persuade myself to countenance the said argument of the learned counsel for the petitioner for the simple reason that a perusal of the award of the Labour Court would go to show that the Labour Court has duly considered the evidence of P.W.1 and M.W.1 and all the relevant documents exhibited on either side. 17.The learned counsel for the petitioner would further submit that from the documents produced on the side of the Management including the initial order of appointment it can be safely held that the second respondent is not a workman. At this juncture, this Court has to keep in mind the law laid down by the Hon’ble Supreme Court in Anand Regional Co-operative Oil Seedsgrowers’ Union Ltd., v. Shaileshkumar Harshdbhai Shah (cited supra) wherein, the Hon’ble Supreme Court has held that for determining the question as to whether a person employed in an industry is a workman or not, not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations. 18.The Hon’ble Supreme Court has further held that it is necessary to prove that there were some persons working under him whose work was required to be supervised. Being in charge of the Section alone and that too a small one and relating to quality control would not answer the test. Considering the principles evolved in the said judgnent, if the findings of the Labour Court are analysed, the Labour Court has considered extensively the evidence of M.W.1 where he has admitted that apart from the petitioner there was another officer in the cadre of Deputy Manager who was only in charge of the supervision of the section. The Labour Court has also accepted the admission made by M.W.1 to the effect that leave to the other workmen was granted only by the Deputy Manager which is evidenced by Ex.M.10. The Labour Court has also considered the admission made by M.W.1 that deductions were made by the salary of the second respondent towards E.S.I. Having appreciated all the above facts, the Labour Court has taken the view that the second respondent was not in the capacity of a supervisor and therefore, has held that the second respondent is a workman. The contention of the learned counsel that the Labour Court has approached the petitioner as if the burden to prove that the second respondent was not a workman, was on the petitioner is not correct. A perusal of the judgment of the Labour Court would go to show that the Labour Court has correctly approached the issues. The order of the Labour Court cannot be considered as perverse. Thus, I do not find any error apparent on the face of the judgment of the Labour Court so as to set aside the same. https://hcservices.ecourts.gov.in/hcservices/ 19.In view of the above, I do not find any merit in the writ petition and accordingly the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jbm To The presiding Officer Principal Labour Court Chennai. 1 CC To Mr.G.Thyagarajan, Advocate, SR NO.33116 1 CC To M/s.T.S.Gopalan & Co., Advocate, SR NO.33019 Pre Delivery Order made in W.P.No.16819 of 1999 ssv(co) pmk/9.07.08 https://hcservices.ecourts.gov.in/hcservices/