IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.15302 of 2000 D.Rajendran ..Petitioner Vs. 1. The Presiding Officer, Labour Court, Coimbatore, Coimbatore District. 2. The Management of Coimbatore Popular Spinning Mills Pvt. Ltd., rep. By its Managing Director, Trichy Main Road, Pongalur & P.O., Tiruppur Taluk, Coimbatore District, Pin.:641 667 ..Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records from the first respondent relating to the award in I.D.No.253/95 dated 14.1.2000 and to quash the same and to direct the second respondent to reinstate the petitioner in service with continuity of service and backwages and attendant benefits and award costs. For Petitioner : Mr.S.Ayyathurai For Respondents : Mr.N.Balasubramanian for R2 ORDER The petitioner is a workman. He has come forward to challenge the Award passed by the first respondent labour court in I.D.No.253 of 1995, dated 14.1.2000 and after setting aside the same, seeks for a direction to the second respondent management to reinstate him with continuity of service and backwages. https://hcservices.ecourts.gov.in/hcservices/ 2.By the impugned Award, the first respondent labour court held that the petitioner is not a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947 (for short ID Act) and hence the dispute raised by him is not maintainable against the termination order dated 8.6.1992. Therefore, the petition filed by him under Section 2A(2) was not maintainable and the dispute was dismissed. The writ petition was admitted on 25.9.2000 and notice was ordered to the second respondent. Original records were also called for from the labour court and circulated for perusal by this court. 3.Heard the arguments of Mr.S.Ayyathurai, learned counsel for workman and Mr.N.Balasubramanian, learned counsel for the second respondent. 4.The facts leading to the case are as follows: The petitioner had joined the second respondent as Rovin Tender on 27.5.1979 and worked till 1.7.1984. He was thereafter promoted as a Shift Jobber (Maistry) and was working in that capacity till the end. On 6.10.1991, the Shift Supervisor gave a report to the Factory Manager alleging that the petitioner had failed to oil the simplex machine during the day shift twice a week. On 07.10.1991, a show cause notice was issued to the petitioner. He gave a reply on 09.10.1991. An enquiry notice was given and the enquiry was fixed on 11.3.1992. It was agreed that he will be paid travelling allowance to come from Pongalur to Coimbatore. The petitioner gave an application to change the venue of enquiry from the Headquarters to the factory premises. The said request was rejected. No travelling allowance was paid to the petitioner. Subsequently, on 27.4.1992, the petitioner was set ex parte and the enquiry was completed. 5.On 15.5.1992, he was given a second show cause notice to explain as to why he should not be dismissed from service. Though the petitioner sought for a translated copy of the enquiry proceedings and further extension of time, the same was not given. After several correspondence, the petitioner submitted a reply, dated 27.5.1992 challenging the enquiry findings. The management finally passed an order that he should give an undertaking to the effect that he will do oil work for the simplex machine during day shift twice a week. If he did not give such an undertaking, he will not be allowed to do his work. The petitioner was not allowed to enter the factory with effect from 12.6.1992. It was alleged that he was kidnapped by the management staff on 1.7.1992 and dropped in the Highways proceeding to Athoor. He was admitted in an hospital. A criminal case was also registered against some of the officials of the mills. On 06.11.1992, the petitioner was once again chargesheeted for causing obstruction. When an enquiry notice was given, he raised a dispute on 19.11.1992 before the labour officer, which was finally referred for adjudication by the labour court. His case was numbered as I.D.No.449 of 1992 and notice was sent to the management. https://hcservices.ecourts.gov.in/hcservices/ 6.The petitioner gave a letter stating that since the industrial dispute is pending, further proceedings should be postponed. But, the management rejected his request. In the meanwhile, his counsel withdrew the ID as not pressed with liberty to file a fresh petition. Thereafter, he filed an application before the Assistant Commissioner of Labour. In the meanwhile, the Assistant Commissioner of Labour held that the petitioner was not a workman. But however during the pendency of these proceedings, on 7.4.1993, the second respondent passed a final order and dismissed the petitioner from service. Since the Assistant Commissioner (Labour) refused to conciliate on the ground that the petitioner is not a "workman", he filed a writ petition being W.P.No.144/1995 seeking for a direction to initiate fresh conciliation. During the pendency of the writ proceedings, the petitioner filed a claim statement before the labour court, which took up the case as I.D.No.253 of 1995. On notice, the second respondent management filed a counter statement on 20.11.1995, to which the petitioner filed a reply on 24.1.1996. The second respondent filed an additional counter. Once again a rejoinder was filed by the petitioner as well as an additional counter. 7.Before the first respondent labour court, on behalf of the petitioner, he examined himself as W.W.1 and filed 17 documents. They were marked as Exs.W.1 to W.17. On the side of the second respondent management, Personnel Officer P.L.Ramamurthy was examined as MW1. They had filed 68 documents and they were marked as Exs.M.1 to M.68. The labour court framed five issues for consideration. The first and second issues were to find out whether the petitioner was a workman within the meaning of Section 2(s) of the ID Act and whether the industrial dispute raised by him was maintainable. It is on the basis of evidence both oral and documentary, the labour court gave its findings that the petitioner is not a "workman" within the meaning of Section 2(s) of the ID Act. In paragraphs 8 and 9, the labour court gave its findings which is as follows: "8.....While being cross examined, the petitioner has answered in more than one occasion that his main duty is to supervise the entire work carried o by the workers in the preparatory department and to supervise the work of the workers of the same department and the duty hours are not sufficient to do his main duty of supervisory in nature......... his reply is Ex.M.16 wherein the petitioner has in the third line has clearly stated that the petitioner has been employed as maistry and has been discharging in such capacity 'nkw;ghh;it gzp' 9.....In this petition, in para 4, the petitioner has stated that the present salary of the petitioner is Rs.2850/- and in para 6, it is specifically stated by him that the petitioner's work, as maistry, involved https://hcservices.ecourts.gov.in/hcservices/ only supervisory work and no manual work for himself and, in para 26, it is admitted by him that the major work of maistry was for 7 hours and 50 minutes......... the petitioner again approached the Assistant Commissioner of Labour, Coimbatore u/s.2A (1) of Industrial Dispute Act and the copy of the petition is filed herein as Ex.M.45. Here also the petitioner reiterated the same stand, in para 2, 4 and 6 that the petitioner's work involved mainly supervisory work which was for 7 hours and 50 minutes per day and he was not allotted any other manual work except the supervisory work and his salary is Rs.2550/- per month..........Ex.M.51 wherein also, in para 1 and 4 he has clearly stated tht the petitioner was a jobber and was supervising the department workers and prior to the charges of his designation from jobber (Maistry) as jobber-cum-oiler his work was only supervisory in nature and no manual work was assigned to him. This Ex.M.51 was filed on 26.1.94 and in the reply filed by the respondent under Ex.M.52 on 6.10.94 it is clearly stated that the petitioner was discharging only supervisory duties....." 8.Though an attempt was made to rely upon Ex.M.36 which is a certified standing order applicable to the company, wherein the term “employee” is defined which included all persons employed by the employer, the labour court correctly rejected it by saying that it does not include a non workman to be held as a workman. The labour court also went into the merits of the dispute and found that in the exparte enquiry, materials were let in to hold the workman guilty. 9.Though Mr.S.Ayyathurai, learned counsel for the petitioner tried to argue that as per the oral evidence, he had also performed duties of workman, but the same is not supported by any document produced during enquiry. In the matter of this nature, it is not open to the court to reappreciate the evidence and interfere with the findings of fact recorded by the labour court. The learned counsel for the petitioner also placed reliance upon the judgment of a division bench of this court in M.Ganesan Vs. Management of Tamil Nadu Electricity Board, Chennai and another reported in 2009 (3) LLN 251, wherein it was held that if a person is treated as a "workman" under the certified standing orders, he will also be a workman for the purpose of ID Act. But, in the present case, the labour court had gone into the evidence and found that the petitioner was a supervisor drawing salary exceeding Rs.1600/- and held that the petitioner is not a workman under the ID Act. 10.Reliance placed upon Ganesan's case (cited supra) will not apply to the case of the petitioner as the labour court had rightly https://hcservices.ecourts.gov.in/hcservices/ held that the standing order will apply only to workman within the meaning of the ID Act and not to others in the establishment. Inasmuch as the petitioner was discharging duties which is mainly of supervisory in nature and was drawing salary above Rs.1600/- p.m., this court is not willing to interfere with the findings of fact recorded by the labour court on this issue. 11.In the light of the above, the writ petition will stand dismissed. No costs. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar vvk To 1. The Presiding Officer, Labour Court, Coimbatore, Coimbatore District. 2. The Section Officer, V.R. Section, High Court, Madras. + 1 c.c. to Mr. S. Ayyathurai, Advocate. S.R.No.40514. + 1 c.c. to Mr. N. Balasubramanian, Advocate. S.R.No.40332. W.P.NO.15302 OF 2000 KLT (CO) GSK 16.06.2010. https://hcservices.ecourts.gov.in/hcservices/