1 Spb/- IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL SIDE JURISDICTION APPEAL NO. 302 OF 2006 IN WRIT PETITION NO. 327 OF 2006 Bombay Mercantile Co-operative .. Appellant. Bank Ltd., (Org.Petitioner) a Scheduled Bank having its registered address at: 89 Mohammedali Road, Mumbai-003. V/s. Anand Uttam Ponde .. Respondent. 30 Dnyanyog, Vazira Naka, (Org.Respondent) Borivli (W), Mumbai-091 --- Mr. P.K. Rele, Sr. Advocate with Vinod Tayade i/by Piyush Shah for the Appellant. None for the Respondent. --- CORAM: D.K.DESHMUKH AND V.R.KINGAONKAR,JJ. DATED: 01st APRIL, 2010 JUDGMENT : (Per V.R.Kingaonkar, J.) 1. This Appeal is directed against the judgment rendered by the learned single Judge in Writ Petition 2 No. 327 of 2006 dated 13th March, 2006 whereby the petition was dismissed and the judgment and order of the Central Government Labour Court No.1 was confirmed. 2. The facts relevant for disposal of this Appeal are that the respondent filed application under section 33 (c)(2) of the Industrial Disputes Act, 1947 (for short the IDA Act ) against the appellant bank. The respondent alleged that he was employed by the appellant bank as a workman. He was initially appointed as cashier-cum-clerk and thereafter, promoted as junior officer on 01.12.1988. He asserted that he had no managerial or administrative powers. He contended that he was dismissed by the appellant bank after holding departmental enquiry, which was commenced after his suspension. He contended that the suspension order as well as the departmental enquiry were illegal. According to him, the appellant bank did not pay him subsistence allowance or the medical allowance, bonus, leave fare concessions for the period between 3 1997 to 1998. So he sought recovery of Rs. 4,24,854.50/- from the appellant bank. 3. The appellant bank resisted the application on various grounds. The appellant bank raised a preliminary objection as regards maintainability of the application under section 33(c)(2) of the Industrial Disputes Act for the reasons that the respondent could not be treated as workman and therefore, was not covered under the relevant provisions of the Industrial Disputes Act. The appellant bank urged, therefore, that the labour court should not entertain the application and the proceedings should be terminated on finding about its non-maintainability. By order dated 20th November, 2005, the labour court, rejected the preliminary objection, holding that the respondent is a workman and, therefore, his application was maintainable. That order was challenged by way of filing writ petition no. 327 of 2006. The learned single Judge dismissed the said writ petition by the impugned order. Hence, the Appeal. 4 4. We have heard the learned counsel appearing for the appellant bank. None appeared for the respondent. 5. The learned counsel appearing for the appellant bank submitted that the material placed on record clearly shows that the respondent was working in managerial position being Junior Officer and was required to supervise cash transactions as well as other work. He would submit that the learned single Judge did not consider the fact that the relevant material was not referred to and analyzed by the Presiding Officer of the Labour Court. The learned counsel would submit that in spite of lack of consideration of the relevant material by the labour court, the learned single Judge held that the material was duly considered by the labour court and therefore, the findings given in paragraph 13 of the order of the labour court, could not be regarded as perverse. That being the sole reason, which is factually incorrect, the learned counsel 5 would submit that the impugned judgment is liable to be set aside. 6. Perusal of the order dated 28th November, 2005 of the Central Govt. Labour Court would make it amply clear that he did not appreciate the material that was placed on record and the rival contentions in the context of the nature of duties which the respondent was required to perform. The respondent was subjected to cross-examination on his affidavit. He admitted that he was charge-sheeted for not apprising the loan proposals as required under the procedure. He further admits that he was working in the loan department and was assigned duty to make recommendations of the loan proposals. He admits that there were three clerks, working under his supervision. He further admits that his duties included, signing of vouchers, cheques, loan disbursal vouchers, sanction letters, financial-cum- liability reports, lien cancellation memos. He admits unequivocally that he used to visit the factories for inspection purpose with a view to 6 prepare a report regarding eligibility for grant of loans. In clear words, he admits that the documents confronted to him were signed by him which reflected the nature of his duties. Those documents were placed on record by the appellant bank vide Exh. `E . 7. We have noticed that the order dated 28th November, 2005 of the Central Government Labour Court does not refer to any of such documents relied upon by the appellant bank. When the documentary evidence was placed on record, it was necessary to appreciate the same in order to locate the nature of duties which the respondent was required to perform. In any case, when, as a matter of fact, the Central Labour Court failed to consider such documentary evidence and held that the respondent was a  workman within the meaning of section 2(s) of the Act, it goes without saying that the observation of the learned single Judge that the relevant material was considered by the Central Labour Court is incorrect. The learned single Judge 7 observed : I am of the view that that once the material before the trial court has been considered and the finding is given in para 13 of the said order, it cannot be said that the said finding is perverse and/or requires interference in writ jurisdiction under Article 226 of the Constitution of India. The learned counsel for the petitioner has also contended that even apart from the finding that the respondent employee was not carrying out supervisory work and was not discharging the managerial functions, still the tribunal must consider the evidence and managerial and come to a positive finding that he is a workman before holding that he is a workman under the provisions of Industrial Disputes Act, 1947. I am of the opinion that once a finding is given that the present workman is not carrying out material and/ or supervisory work on the basis of the material and evidence available and hold that in view of the fact that he is not carrying out supervisory work, he is a `workman . 8 8. The above observations go to indicate that the learned single Judge did not consider the fact that the documentary evidence adduced on behalf of the appellant bank was not referred to and analyzed by the Central Labour Court. In the case of H.R.Adyanthya & Ors. vs. Sandoz (India) Ltd., & Ors. (1994 II CLR 552 SC), the Constitution Bench stated : A  workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprentices Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. This legal position ought to have been examined by the Central Labour Court in view of the documentary evidence as well as oral evidence and particularly, having regard to the nature of duties of the respondent. We find that the Central Labour Court did not evaluate such evidence in appropriate manner. The learned single Judge seems to have overlooked the relevant aspects of the matter. The learned Counsel submitted that this Court may decide 9 the question, whether the respondent is a workman or not as per the available material. We decline to accept the request for two reasons. First, this appeal is against Judgment delivered in the exercise of writ jurisdiction in which reappreciation of the evidence can not be done. Secondly, the respondent is found absent at the hearing. So, it may amount to exparte decision on the relevant issue which the Labour Court has decided in his favour but without proper consideration of the material. 9. In view of the forgoing discussion, we are inclined to hold that both the judgments impugned are unsustainable. It follows that it is necessary to remit the matter to the Central Labour Court for de novo consideration of the relevant material and recording finding on the issue whether the respondent is a `workman within the meaning of section 2(s) of the Industrial Disputes Act or that he is not a workman. Accordingly, the appeal is allowed. Both the impugned judgments are set aside. The matter is remitted to the Central Labour Court to give finding 10 on question -whether the respondent is a workman or not, on the basis of material on the record and on de-novo consideration thereof,after hearing both the sides. The Central Government Labour Court shall decide the matter afresh within a period of six months asfar as possible. No costs. (D.K.DESHMUKH,J.) (V.R.KINGAONKAR,J.)