IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1129 of 2009 Judgment Reserved on : 26.11.2009 Date of Decision : 8.1.2010. Indo Farm Equipments Ltd. …Petitioner. Versus Anil Kumar Mehta and another. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Rahul Mahajan, Advocate. For the Respondents : Respondent No.1 in person. None for respondent No.2. Kuldip Singh, Judge The interim award dated 2.3.2009 passed in Reference No. 53 of 2005 titled Anil Kumar Mehta Vs. M/s Indo Farm Equipment Ltd. granting 1/3rd back wages w.e.f. 28.10.2002 till the passing of final award has been challenged in the writ petition. 2. The brief facts are that the appropriate Government under Section 10 of the Industrial Disputes Act, 1947 (for short ‘Act’) had made the following reference to the Labour Court :- “Whether Shri Anil Kumar Mehta S/o Shri Ashwani Kumar Mehta Engineer falls under the category of workman keeping in view his nature of duties as defined under section 2-S of 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes 2 the Industrial Disputes Act, 1947? If so, whether his termination from service w.e.f. 28.10.2002 without holding enquiry and without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits and amount of compensation the above aggrieved workman is entitled to?” The said reference was registered as reference No. 53 of 2005 before respondent No.2. The respondent No.1 filed his statement of claim alongwith interim relief application before respondent No.2 alleging therein that he was employed as an Engineer to perform clerical and technical work on 14.5.2001. He had drawn last wages at Rs.4000/- per month basic and Rs. 3500/- as allowances. The services of the respondent No.1 were illegally terminated on 28.10.2002 without complying Section 25-F of the Act. 3. The petitioner contested the claim as well as interim relief application of respondent No.1. The petitioner contended that respondent No.1 is not a workman under Section 2 (s) of the Act and the petition is not maintainable. The respondent No.1 was employed in managerial capacity who was performing managerial, supervisory and administrative jobs and was independently holding the charge of purchase department. It was pleaded that petitioner was employed on 14.5.2001 on Rs.8000/- per month salary. The respondent No.1 had not completed continuous service of 240 days nor services of respondent No.1 were terminated, therefore, Act is not applicable. The respondent No.1 was gainfully employed and earning Rs. 20,000/- per month in industrial establishment at Baddi and Barotiwala. The petitioner thus prayed for dismissal of the claim 3 petition as well as application for interim relief. The respondent No.1 filed rejoinder and reiterated his stand. 4. It appears, the application filed by respondent No.1 for interim relief remained undecided. A Division Bench of this Court in CWP No. 667 of 2006 on 10.1.2008 directed the respondent No.2 to decide the interim relief application and a time bound direction was given to the respondent No.2. The respondent No.2 on 18.1.2008 dismissed the interim relief application of respondent No.1. The order dated 18.1.2008 was challenged by the respondent No.1 by way of CWP No. 137 of 2008. A learned Single Judge in CWP No. 137 of 2008 on 12.11.2008 held that the Labour Court has erred in law by coming to a conclusion that respondent No.1 was not a workman. Prima-facie respondent No.1 was working as a ‘workman’. The learned Single Judge set-aside the order dated 18.1.2008 of the respondent No.2 and the matter was remanded to respondent No.2 with the direction to re-consider the entire issue whether respondent No.1 is a workman or not in view of the observations made in the judgment dated 12.11.2008 and the law laid down by their Lordships of the Supreme Court. 5. The respondent No.2 vide order dated 2.3.2009 allowed the interim relief application of the respondent No.1 with a direction to petitioner to pay 1/3rd back wages w.e.f. 28.10.2002 till the passing of the award. The order dated 2.3.2009 has been assailed in the writ petition on the grounds that the order is wrong, illegal and unjust. The Labour Court –cum-Industrial Tribunal has failed to take into consideration pleadings, oral and documentary evidence on record. The respondent No.1 has failed to appear in the witness box 4 and produce any witness. The respondent No.1 has failed to prove his case for interim relief. The respondent No.1 is not a workman. The evidence led by the petitioner has been mis-construed and mis- interpreted. The respondent No.2 has failed to exercise jurisdiction vested in it. The granting of interim relief w.e.f. 28.10.2002 is wrong and illegal. At the most, the interim relief could be granted from the date of application which was filed on 29.5.2006 and not from 28.10.2002. The respondent No.1 has led no evidence that he was not employed. The learned counsel for the petitioner has prayed for setting aside the impugned order. The respondent No.1 appeared in person. He has supported the impugned order and has submitted that from the case projected by the petitioner, it has been established that respondent No.1 had been working as a workman with the petitioner and his employment with petitioner was governed by the Act. 6. I have considered the rival contentions of the learned counsel for the parties. The employment of respondent No.1 with the petitioner has not been denied by the petitioner. The case of the petitioner is that respondent No.1 was not a workman under the Act nor his appointment was terminated by the petitioner. The respondent No.1 has led no evidence to prove that he was a workman and his employment was governed under the Act. The respondent No.1 was employed for managerial, supervisory and administrative job with petitioner and, therefore, he was not a workman. In support of this contention, the learned counsel for the petitioner has relied affidavits of Dhian Singh, Suresh Saini and Navneet Saini all dated 27.12.2008. 5 7. Dhian Singh in his affidavit has stated that Anil Kumar Mehta used to work as Engineer in Purchase Department. He was having independent charge of a segment of purchase department. He used to enjoy the implied authority from the Managing Director of the Company. The respondent No.1 apart from discharging the managerial functions was also responsible for sending drawings to the various suppliers and vendors and was also authorized to reject the goods after inspection. The respondent No.1 used to sanction the leave of Dhian Singh. 8. Suresh Saini in his affidavit has also stated on the same lines. Navneet Saini has stated that Anil Kumar Mehta apart from heading and managing a team of 5 – 6 purchase executives was also actively and exclusively involved in approving the purchase prices. In cross-examination, Dhian Singh has stated that he has documents which show that he used to work at the direction of Anil Kumar Mehta. But no such documents were produced. He has also stated that he cannot say that after signing the documents by Anil Kumar Mehta, it was verified by Harish Gupta, Assistant Manager. There is no document on record to show that Anil Kumar Mehta was his controlling authority. Suresh Saini in his cross- examination has admitted that quality control department used to reject and accept the material. Anil Kumar Mehta was not the final authority with the purchase department of the petitioner. The leave applications filed with the affidavit of Dhian Singh, do not indicate that Anil Kumar Mehta actually sanctioned the leave. 9. The nomenclature of the post is not material in order to come to the conclusion whether a person is a workman or not. 6 The actual work performed by a person is the decisive factor to come to the conclusion whether a person is a workman under the Act or not. Dhian Singh and Suresh Saini in their affidavits have stated that respondent No.1 was responsible for sending drawings to various suppliers and vendors. This indicates that prima facie respondent No.1 was performing the duties of a workman. The appointment letter of the respondent No.1 has not been placed on record by the petitioner indicating the actual nature of work assigned to him. Suresh Saini in his cross-examination has stated that Anil Kumar Mehta was not the final authority with the purchase department of the petitioner. 10. The learned counsel for the petitioner has submitted that respondent No.1 has not appeared in the witness box to prove his case, therefore, adverse inference is to be drawn against him. It has also been submitted that petitioner has not proved that he was unemployed. The respondent No.2 has wrongly allowed 1/3rd back wages from the alleged date of termination from 28.10.2002 of respondent No.1 instead of at the most from the date of filing of the application for interim relief which was filed on 29.5.2006. The learned counsel for the petitioner has relied The Management of KSRTC Vs. K. Kempaiah 2001 LLR 226 on the point that interim relief can be granted from the date of application. 11. The respondent No.2 has decided the interim application and has not decided the dispute finally. The respondent No.2 has prima-facie come to the conclusion that respondent No.1 was a workman and is entitled to 1/3rd back wages. The learned Single Judge in the order dated 21.11.2008 has also observed that 7 prima-facie respondent No.1 is a workman. The respondent No.2 vide impugned order has made only interim arrangement which is subject to final outcome of the reference. The learned counsel for the petitioner has failed to point out that the impugned award is based upon no evidence or it is perverse or based upon inadmissible evidence. The respondent No.1 can prove his case from the evidence of petitioner even without appearing as his own witness before respondent No.2. The respondent No.1 in his application for interim relief has pleaded that he was illegally terminated by the petitioner and since then he has not been employed in any industry. It has become difficult for him to meet both ends for lack of funds. He is dependent temporarily on his relatives. The application is supported by an affidavit. It is well known that interim relief application can be disposed of on the basis of affidavits. In the present case respondent No.2 has recorded evidence and respondent No.2 has decided the interim relief application on the basis of material on record. Therefore, it cannot be said that respondent No.1 has stated nothing about his unemployment after his termination. 12. The contention of the learned counsel for the petitioner that interim relief application cannot be allowed from the date of termination of the services and at the most it can be allowed only from the date of application, has no force. In The Management of KSRTC (Supra), it has not been held that Labour Court has no jurisdiction to grant interim relief from the date of termination. In that case, it was held that interim relief can be granted from the date of application. There is no dispute regarding this proposition. The 8 learned counsel for the petitioner has not supported his contention that in no case Labour Court can grant interim relief to the workman from the date of termination. The relief granted by the Labour Court to the respondent No.1 is subject to final decision of the reference. The respondent No.1 has shown prima-facie, balance of convenience and irreparable loss in his favour. 13. The learned counsel for the petitioner has submitted that, in any case, the respondent No.2 should have ordered payment of interim award amount to respondent No.1 subject to his giving undertaking to refund the amount to petitioner in case ultimately reference is answered against him and also subject to some surety. There is substance in this submission of the learned counsel for the petitioner. 14. The petitioner has failed to make out any case on merits. The payment of impugned award amount to respondent No.1 shall be subject to respondent No.1 giving an undertaking and furnishing surety to the satisfaction of respondent No.2 that respondent No.1 shall refund the amount received by him under the impugned award to petitioner in case while answering reference finally the respondent No.1 is not found entitled to the relief granted to him by the impugned award. The petition is dismissed on above terms. Interim order stands vacated. The petitioner is directed to appear before respondent No.2 on 15.2.2010. ( Kuldip Singh ), January 8, 2010. Judge. (GR)