:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2512 OF 2009 WRIT PETITION NO. 2512 OF 2009 WRIT PETITION NO. 2512 OF 2009 M/s. Chordia Food Products Limited & Anr. ..Petitioners versus Ashok Babaji Kasal ..Respondent WITH WITH WITH WRIT PETITION NO. 2488 OF 2009 WRIT PETITION NO. 2488 OF 2009 WRIT PETITION NO. 2488 OF 2009 M/s. Chordia Food Products Limited & Anr. ..Petitioners versus Sarjerao Baburao Bodake ..Respondent Mr. S. S. Pakale for the Petitioners. Mr. N. A. Kulkarni for the Respondents. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 16TH MARCH, 2009 DATE : 16TH MARCH, 2009 DATE : 16TH MARCH, 2009 P.C. P.C. P.C. . Rule in both the petitions, returnable forthwith. Heard by consent. 2. The petitioners have challenged the Orders of the Courts below directing the petitioners to reinstate the respondents in the post where they :2: were working with 60% of back wages. The petitioners terminated the services of the respondents in both the petitions. The respondents moved the Labour Court under the MRTU & PULP Act. According to the petitioners, the respondents were employed as Production Supervisor and Store Keeper and they were therefore not workmen within the meaning of section 2(s) of the Industrial Disputes Act. The respondents case was that they were workmen, though designated as Production Supervisor and Store Keeper respectively, in the company. They claimed that they were performing duties of purely clerical in nature and not entrusted with any managerial or supervisory duties. Both the Courts below considered this plea and came to the conclusion that the respondents were workmen on the basis of several decisions of this Court in the following cases: 2005 III CLR 110 Seth Jeejeebhoy Dadabhoy Charity Funds & 3 Ors. vs. Farokh Noshir Dadachanji. SCLJ page 623 (S.C.) Arkal Govind Raj Rao vs. Ciba Geigy of India Ltd., Bombay :3: 2003 I CLR 50 Sadanand Ramesh Samsi vs. Kirloskar Cummins Ltd. & Ors. 1989 II CLR 248 The Bombay Dyeing and Manufacturing Co. Ltd. vs. R. A. Bidoo & Ors. 2000 (86) FLR 345 A. D. Inamdar vs. M/s. Bajaj Tempo Limited & Ors. 1996 II CLR 320 President, Anatha Mahila Ashram, Kolhapur vs. J. G. Ajagaonkar (Smt.) 1995 I CLR 837 S. A. Sarang vs. W. G. Forge & Allied Industries Ltd., Thane & Ors. Mr. Pakale the learned counsel for the petitioner submitted that the findings of the Labour Court and confirmed by the Industrial Court are not clear and are contradictory. However, on a closer examination of the findings, there does not appear to be a real contradiction. It is not as if the Industrial Court has called the duty supervisory and not supervisory in the same breath. The Industrial Court has said :4: that though the duties appear supervisory, it cannot be inferred that the complainants were supervising the work of the other employees or taking any decision of either administration or management. In fact, the learned Industrial Court has relied on the actual nature of duties performed by the respondents to hold that their duties were not supervisory in nature but they were clerical and therefore the learned Industrial Court came to the conclusion that the respondents are workmen covered by Section 2(s) of the I.D. Act. The petitioners have not been in a position to point out any particular duty from which a specific inference to the effect that the respondents were performing managerial duties can be drawn. 3. The learned counsel for the petitioner submitted that once the Court comes to the conclusion that the duties are supervisory in nature it must stop there and conclude that the employee is not a workmen. This submission is not well founded in law. Section 2(s) reads as follows: "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work :5: for hire or reward, whether the terms of employment be express 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 Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); 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 one thousand six hundred rupees per mensem or exercises, 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 nature]. Merely because the duties are found to be supervisory it cannot be said that person is not a workmen. It is only where duties are supervisory and the workmen draws wages exceeding the amount specified therein and performs function which are of a managerial nature that he is not liable to be treated as workmen. However, in the present case the Courts below have come to the conclusion that the duties performed by the respondents are not supervisory in nature but are clerical in nature. :6: This finding is not vitiated by any error of law apparent on the face of the record. 4. It was next contended by Mr. Pakale, that the finding as to back wages is completely unwarranted because the petitioners had not only denied that the respondents were unemployed but had pointed out that the respondents were employed at Mother’s Recipe and Nameeta Agro Foods, respectively. In fact, according to the learned counsel though the respondents have admitted that they are working at some other place. Apparently, neither of the Courts have adverted to this evidence. The Labour Court has without giving any reasons granted back wages to the extent of 60% and the Industrial Court has confirmed the back wages. The submission on behalf of the petitioners is correct that the Courts below were bound to consider the question whether the respondents were gainfully employed after termination of their services by the petitioners. In Kendriya Vidyalaya Sangathan & Anr. Kendriya Vidyalaya Sangathan & Anr. Kendriya Vidyalaya Sangathan & Anr. vs. S. C. Sharma [ 2005 (104) FLR 863], vs. S. C. Sharma [ 2005 (104) FLR 863], vs. S. C. Sharma [ 2005 (104) FLR 863], the Supreme Court observed as follows :- "Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which :7: according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard." In this view of the matter, the findings of the Courts below to the extent that they held that the respondents are workmen and are entitled to reinstatement is upheld. The order to the extent of granting back wages is set aside. The matters are remanded back to the Labour Court for a fresh decision on the question of back wages. Parties shall be entitled to amend their pleadings and lead their evidence as may be advised. The Labour Court to expedite the matters as expeditiously as possible and in any case not later than six months from the date parties first appear before it. Parties are directed to appear before it on 2.4.2009. 5. Rule made absolute in the above terms in both the petitions. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)