1 HVN 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. 3929 OF 1997 Shri. Terence D. Philips, 301, Siddharth Towers, Fatimanagar, Hadapsar, Pune 13. ... Petitioner Versus 1. M/s. Poona Bottling Co. Ltd. 410/1, 411/2, Bombay Pune Road, Pune 12. 2. Member, Industrial Court, Pune. Having his office at PMT Building No. 1, First Floor, Swargate, Pune 42. ... Respondents Mr. K.S. Bapat for the Petitioner. Mr.P.K. Rele with Mr. V.N. Tayade and P.P. Rele i/by Mr. Piyush Shah for R. No. 1. CORAM: CORAM: CORAM: SMT. NISHITA MHATRE, J. SMT. NISHITA MHATRE, J. SMT. NISHITA MHATRE, J. DATED: 16TH SEPTEMBER, 2008 DATED: 16TH SEPTEMBER, 2008 DATED: 16TH SEPTEMBER, 2008 ORAL JUDGMENT 1. By this Petition, the Petitioner challenges the order of the Industrial Court in Revision Application (ULP) No. 51 of 1996. The Industrial Court has allowed the Revision Application filed by the company and dismissed the complaint filed by the workmen. The Industrial Court has held that the Petitioner is not a workman within the meaning of Section 3(5) of MRTU & PULP Act read with Section 2(s) of the Industrial Disputes Act. 2 2. The brief facts involved in the present case are as follows : . The Petitioner was employed from January, 1986 with the Respondent Company as a City Sales Executive. His services were terminated on 30.05.1991. Aggrieved by the action of the Respondent company, the Petitioner filed a complaint being Complaint (ULP) No. 153 of 1991 before the Labour Court at Pune. A preliminary issue was framed by the Labour Court as to whether the Petitioner was a workman as defined under Section 2(s) of the Industrial Disputes Act. After considering the evidence on record, both oral and documentary, the labour Court concluded that the Petitioner was a workman as contemplated by the provisions of Section 2(s) of the Industrial Disputes Act. Being dissatisfied with this finding of the Labour Court, the Respondent Company filed Revision Application (ULP) No. 51 of 1996. The Industrial Court has reversed the findings of the labour Court by considering the documentary and oral evidence on record. It is this order of the Industrial Court which has been challenged in the present petition. Undisputedly the Petitioner was initially appointed as Sales Promotion Officer when he joined the services on 1.1.1986. He was later promoted in the year 1990 to the post of City Sales 3 Executive. The question therefore, would be whether the petitioner was performing the work which was of a manual, unskilled, skilled, technical, operational or clerical nature. Admittedly the salary paid to the Petitioner was over Rs.1600/-. 3. Mr. Bapat on behalf of the Petitioner criticizes the judgment of the Industrial Court by contending that there are no cogent reasons which are discernible from the judgment which would indicate why it was necessary to reverse the findings recorded by the Labour Court. He submits by relying on the judgment of the Division Bench of this Court in the case of Pipe Arts India Pvt. Ltd. Pipe Arts India Pvt. Ltd. Pipe Arts India Pvt. Ltd. Sanaswadi, Taluka Shirur Versus Gangadhar Nathuji Sanaswadi, Taluka Shirur Versus Gangadhar Nathuji Sanaswadi, Taluka Shirur Versus Gangadhar Nathuji Golamare, Pune, 2008 II CLR Golamare, Pune, 2008 II CLR Golamare, Pune, 2008 II CLR 228 that the canons of judicial propriety require that court should pass reasoned orders even while dealing with applications for interlocutory prayers, no matter how briefly or precisely. According to him the impugned order does not contain any reasons for interfering with the order passed by the Labour Court. He then submits that the jurisdiction which can be exercised by the Industrial Court under Section 44 of the MRTU & PULP Act is limited to the extent of revisional jurisdiction; the Industrial Court cannot sit in appeal over the judgment of the Labour Court. It is only when the order is perverse or there is an error 4 apparent on the face of the record that the Industrial Court can interfere with the findings of the Labour Court. He places reliance on the judgment of the Division Bench of this Court in the case of Vithal Gatlu Marathe Vs. Maharashtra State case of Vithal Gatlu Marathe Vs. Maharashtra State case of Vithal Gatlu Marathe Vs. Maharashtra State Road Transport Corporation and Ors. 1995 1 CLR 854. Road Transport Corporation and Ors. 1995 1 CLR 854. Road Transport Corporation and Ors. 1995 1 CLR 854. He also places reliance on the judgment of the Supreme Court in the case of Maharashtra State Road Supreme Court in the case of Maharashtra State Road Supreme Court in the case of Maharashtra State Road Transport Corporation Versus Hussainkhan Hafij Transport Corporation Versus Hussainkhan Hafij Transport Corporation Versus Hussainkhan Hafij Pathan and Anr. in Writ Petition No. 3925 of 1997 decided on 12th August, 2008 as also in the case of Motor Industries Co. Ltd. Nashik Vs. Popat Motor Industries Co. Ltd. Nashik Vs. Popat Motor Industries Co. Ltd. Nashik Vs. Popat Murlidhar Patil and Anr. 2008 II CLR 1063 in Murlidhar Patil and Anr. 2008 II CLR 1063 in Murlidhar Patil and Anr. 2008 II CLR 1063 in support of the abovesaid proposition. According to Mr. Bapat, if it is found that the judgment of the Labour Court is defective, then the only option which the Industrial Court has is to remand the matter to the Labour Court for being decided afresh. He urges that in the event this court finds that the reasons given by the Labour Court for holding the Petitioner to be workman are not substantial, then the matter should be remanded to the Labour Court for a fresh decision in the matter. 4. Mr. Rele on behalf of the employer has argued that the Industrial Court has considered each document produced by the Respondent Company on record and has concluded that the Petitioner is not 5 a workman. He submits that a possible view has been taken by the Industrial Court since it found that the findings of the Labour Court are perverse. According to learned counsel, unless the workman proves that he fits in the category of being a person who is employed to carry out functions of skilled, unskilled, manual, supervisory, technical or clerical nature, the petitioner cannot be considered to be a workman. He points out by relying on the judgment of the Supreme Court in the case of H.R. Adyanthaya etc. Versus Sandoz (India) case of H.R. Adyanthaya etc. Versus Sandoz (India) case of H.R. Adyanthaya etc. Versus Sandoz (India) Ltd. 1994 II CLR 552 that it is not sufficient for Ltd. 1994 II CLR 552 that it is not sufficient for Ltd. 1994 II CLR 552 that it is not sufficient for the person to prove that he is not carrying out any managerial or administrative work or the work of supervisory nature and drawing wages beyond Rs.1600/-. The person claiming to be a workman, must positively prove that he falls within the aforesaid categories. The learned counsel then relies on the judgment in the case of Mukund Staff & Officers’ Association Versus Mukund Limited, 2007 III CLR 296 in which a learned Single Judge of this court has held that the burden while considering whether the person is a workman is on the person claiming to be one. It is not for the employer to prove in the negative. This judgment according to Mr. Rele has been confirmed by the Division Bench in its order dated 17.4.2008 in Appeal No. 699 of 2007. The learned counsel has taken me through each 6 document which was filed before the Labour Court in support of his arguments that the work performed by the Petitioner was of Sales Promotion and that in any event, the Petitioner was not covered by the definition of workman. According to him, the sales promotion employees are covered by the provisions of the Sales Promotion Employees (Conditions of service) Act, 1976 as held by the Supreme Court in the case of H.R. Adyanthaya (supra). He further submits that the documents indicate that the nature of the work carried out by the Petitioner was not clerical but was supervisory or administrative in nature. 5. I have perused the documents which were produced before the Labour Court. In my opinion, neither the Labour Court nor Industrial Court has considered the documents in their true perspective. There is no discussion whatsoever by either of the courts below as to the nature of the documents on record and what weightage should be given to the each document while considering whether the Petitioner is a workman. The contention of the respondents that the petitioner is Sales Promotion employee has also not been considered by the Labour Court. If this contention has been raised in the written statement, it was necessary for the Labour Court to advert to this contention and to discuss it before deciding 7 that the Petitioner was a workman. As held in the judgment of Pipe Arts India Pvt. Ltd. (supra) providing of adequate reasons in the orders is the essence in judicial proceedings as every litigant who approaches the court is entitled to know the reasons for acceptance or rejection of his case. In the present case, neither the Labour Court nor the Industrial Court has analysed the documents or given any reasons for either accepting or rejecting the same. 6. The question which remains is whether the Industrial Court after concluding that the Labour Court had erred in holding that the Petitioner was a workman ought to have remanded the matter to the Labour Court for a fresh decision. This aspect has been considered in the case of Motor Industries Co. Ltd. (supra) by the learned Single Judge of this Court. In Para 9 of the judgment the learned Judge has observed thus : "9. So far as the facts of the present case is concerned, it is not in dispute that the concerned workman was subjected to four charges. The management led its evidence by examining certain witnesses before the Labour Court. On going through the order of 8 the Labour Court, one can get an impression that the critical analysis of the evidence has not been made by the Labour Court in its judgement. For example, the Labour Court has stated at one place that the witnesses of management have supported the charges without analysing the evidence of the witnesses. Merely by recording of the arguments or submissions of parties, it cannot be said that the evidence is appreciated. Considering the said aspect, I agree with the learned counsel for the first respondent that the evidence has not been appreciated or no proper analysis of the evidence has been done by the Labour Court. It is required to be noted that the Labour Court is assigned with the important duty of assessing the evidence in a proper manner as the finding of fact given by the fact finding authority or Court is to be treated as final and such finding of fact cannot be disturbed normally in a revision unless specific power is available with the revisional authority in this behalf. However, in my view, it was equally not open to the revisional Court to undertake the exercise of appreciating the evidence on its own as if it is a court of appeal. The 9 revisional Court has considered the oral evidence in greater detail. In fact, the oral evidence has also been narrated in the judgment of the revisional Court and on the basis of the said evidence, the revisional Court has given its own finding of fact. To say that the finding of the Labour Court is perverse or particular important piece of evidence is ignored or that the finding is such that no reasonable person or authority can reach to a conclusion is a different thing as the said aspect would fall within the realm of error of law. But to appreciate or reappreciate the evidence as a whole by examining the entire evidence like in court of appeal is not permissible so far as revisional Court is concerned. Even learned counsel for the first respondent has also fairly submitted that the revisional Court cannot reappreciate the evidence or upset the finding of fact. His argument was limited to an extent that since the Labour Court has not analysed the evidence at all, the revisional Court had no option but to consider the evidence on its own and to give its own finding. However, in my view, the revisional Court is not required to give finding of fact by appreciating evidence. 10 If the Labour Court has not appreciated the evidence at all or has not given proper finding on the basis of available evidence on record, the revisional Court should have remitted the matter asking the Labour Court to analyse the evidence in its proper perspective and to give finding of fact on the basis of appreciation of evidence which is to be done in a greater detail by Labour Court as a fact finding Court. Instead, the revisional Court has undertaken the exercise of going through the entire evidence and has given its own finding on the basis of such evidence by holding that on the basis of record no misconduct is proved regarding any of the charges levelled against the employee. As pointed out earlier, the Labour Court has also failed to discharge its duty by analysing the evidence in a detailed manner before giving any finding of fact." . I am in respectful agreement with the view taken in the matter. 7. It is now well settled that the Industrial Court can examine the orders of the Labour Court in a revision application to certain extent. The 11 Revisional Court does not exercise appellate powers. The jurisdiction is limited to consider whether the findings of the Labour Court are based on the evidence on record and whether the findings can be said to be perverse. It is only if there is an error of law or findings are perverse that the Industrial Court should interfere with the orders passed by the Labur Court. The jurisdiction of the Industrial Court in revision in fact has been held to be akin to the jurisdiction of the High Court under Article 227 of the Constitution of India. In this case, there is no doubt that the Industrial Court has exceeded the jurisdiction conferred upon it under Section 44 of the M.R.T.U. & P.U.L.P. Act by considering the evidence afresh. The Industrial Court should have remanded the matter to the Labour Court as required under the Law. 8. In view of the above, the orders of the Labour Court and Industrial Court are hereby set aside. The matter is remanded to the Labour Court for being decided afresh. The Labour Court will dispose of the Complaint within one year from today. Rule made absolute accordingly.