Management of S & S PowerS & S Power Switchgear LtdPorur, Chennai -600 116 v. The presiding OfficerPrincipal Labour CourtChennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2008CORAMTHE HONOURABLE Mr.JUSTICE S. NAGAMUTHUW.P.No.16819 of 1999andW.P.M.P.No.1791 of 2007Management of S & S PowerS & S Power Switchgear LtdPorur, Chennai -600 116 .. Petitioner-Vs.-1.The presiding OfficerPrincipal Labour CourtChennai.2.Thiru.S.Arulrajan .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a Writ of certiorarified Mandamus callingfor the records of the first respondent in ID No.162 of 1993 andquash its award dated 15.05.1999.For Petitioner : Mr.P.John for M/s.T.S.Gopalan & Co. For R.2 : Mr.G.ThyagarajanORDERThough the miscellaneous petition is listed today, by consentof the learned counsel for both sides, the writ petition itself istaken up for final disposal.2.Claiming himself to be a workman, the second respondentherein has raised an industrial dispute against the petitioner hereinbefore the first respondent challenging the order of termination of https://hcservices.ecourts.gov.in/hcservices/ his service. The first respondent has conducted an enquiry inI.D.No.162 of 1993 and after full fledged trial, passed an awarddated 14.05.1999 thereby directing the petitioner herein to reinstatethe second respondent in service with 50% of the backwages,continuity of service and other attendant benefits.Challenging thesaid award, the petitioner has come forward with this writ petitionseeking to quash the same.3.The facts leading to the writ petition are as follows:-Admittedly, the second respondent was appointed by thepetitioner on 15.03.1984 as Maintenance Engineer and afterconfirmation, he was later on promoted as Senior Engineer on01.07.1990 and thereafter, as per Ex.W.13, the termination orderissued by the petitioner, he was discharged from service on29.06.1992. Before the first respondent, the second respondent wasexamined as P.W.1 and 15 documents were marked as Exs.W.1 to W.15 andon the side of the petitioner one Mr.V.R.Elumalai was examined asM.W.1 and as many as 21 documents were marked as Exs.M.1- M.21.4.It was contended by the petitioner Management before thefirst respondent that the second respondent was not a workman.According to the petitioner, the second respondent was employed in asupervisory capacity and therefore, he would not fall within theambit of the definition of workman under Section 2(s) of theIndustrial Disputes Act. But on appreciating the oral as well asdocumentary evidence adduced on either side, the first respondent hasheld that the second respondent is only a workman and the nature ofhis work is not supervisory in nature. It is on the said conclusionthe first respondent has ordered for the reinstatement of the secondrespondent with 50% back wages and other benefits.5.In this writ petition, the petitioner contends that thesecond respondent is not a workman and the finding given by the firstrespondent is not correct. It is further contended by the petitionerthat the first respondent has failed to appreciate both the oral andthe documentary evidence in a proper perspective manner. It is alsocontended that the first respondent has wrongly approached the caseas if the burden of proof is on the petitioner to prove that thesecond respondent is not a workman. In conclusion, the contention ofthe petitioner is that the proper appreciation of evidence availableon record would go to prove that the second respondent is not aworkman and therefore, the award of the first respondent is liable tobe quashed.6.Per contra, the learned counsel for the second respondentwould submit that the second respondent was only a workman and hewould further submit that the evidence adduced on both sides moreparticularly certain admissions made during cross examination wouldprove that the second respondent is a workman. He would further https://hcservices.ecourts.gov.in/hcservices/ contend that the first respondent has not over looked the evidenceadduced by the parties and the finding of the first respondent isabsolutely correct and it cannot be termed as perverse. Therefore,according to the second respondent, the writ petition is liable to bedismissed. 7.From the rival stand taken by the parties, the followingquestions arise for consideration:-"(i) Whether this Court under Article 226of the Constitution of India can have judicialreview of the findings of the first respondent byre-appreciating the evidence.(ii) Whether the finding of the firstrespondent is perverse or patently erroneous onthe face of the record.8.The scope of judicial review of the award of the Labour Courtcame to be dealt with by the Hon’ble Supreme Court in Sonepat Co-operative Sugal Mills Ltd., v. Ajit Singh (2005 (3) SCC 232). Inparagraph Nos.21 and 22 of the said judgment, the Hon’ble SupremeCourt has held as follows:-"21.It is not trite that the issue as towhether an employee answers the description of aworkman or not has to be determined on the basisof a conclusive evidence. The said question, thus,would require full consideration of all aspects ofthe matter.22.The jurisdiction of the Industrial Courtto make an award in the dispute would depend upona finding as to whether the employee concerned isa workman or not. When such an issue is raised,the same being a jurisdiction al one, the findingsof the Labour Court in that behalf would besubject to judicial review."9.As held by the Hon’ble Supreme Court in the said judgment,since the first respondent has given a finding that the secondrespondent is a workman and since the first respondent gotjurisdiction to decide the further issue, only on the said finding,in my considered opinion, this Court under Article 226 of theConstitution of India has to necessarily judicially review the awardof the first respondent.10.In Ahamadabad Municipal Corporation v. Virendra KumarJayantibhai Patel (1997 96) SCC 650), while dealing with a similarquestion regarding the scope of judicial review, the Hon’ble Supreme https://hcservices.ecourts.gov.in/hcservices/ Court has issued the following guide lines:-"High Courts under Article 226 of theConstitution are entitled to issue directions,writs and orders for correcting the record of theinferior courts or the tribunal. It is true thatthe High Court while exercising its jurisdictionunder Article 226, cannot convert itself into acourt of appeal and assess the sufficiency oradequacy of the evidence in support of the findingof fact reached by the competent courts or thetribunals, but this does not debar the High Courtfrom its power to enquire whether there is anyevidence in support of a finding recorded by theinferior court or tribunal. There is a differencebetween a finding based on sufficiency or adequacyof evidence and a finding based on no evidence. Ifthe finding of fact recorded by the Tribunal isbased on no evidence, such a finding would sufferfrom error of law apparent on the face of record.On an examination it is found that theearlier the award of the Tribunal and circularsissued in pursuance thereof by the Corporationwere not applicable to the case of the respondentand if these materials are excluded, the findingof the Tribunal that the respondent is a workmanentitled to permanent status in the service of theCorporation is rendered without any evidence andexposed to the vice of error apparent on the faceof the record. Therefore, the High Court fell intoerror in dismissing the writ petition holding thatthe finding of fact recorded by the Tribunal doesnot call for interference." 11.As held by the Hon’ble Supreme Court in cases where there isabsolutely no evidence and still a finding has been given then, thisCourt can set aside the award. If a finding has been given by theLabour Court on evidence taking a particular view, though there isanother view possible, this Court cannot interfere with the saidfinding given by the Labour Court by adopting the latter view. 12.In Anand Regional Co-operative Oil Seedsgrowers’ Union Ltd.,v. Shaileshkumar Harshdbhai Shah (2006(6) SCC 548), in spite ofdetermination of the question as to whether a person employed in anindustry is a workman or not, the Hon’ble Supreme Court has held asfollows:-"For determining the question as towhether a person employed in an industry is a https://hcservices.ecourts.gov.in/hcservices/ workman or not, not only the nature of workperformed by him but also the terms of theappointment in the job performed are relevantconsiderations.Supervision contemplates direction andcontrol. While determining the nature of the workperformed by an employee, the essence of thematter should call for consideration. An undueimportance need not be given for the designationof an employee or the name assigned to the classto which he belongs. For the said purpose, it isnecessary to prove that there were some personsworking under him whose work was required to besupervised. Being in charge of the section aloneand that too a small one and relating to qualitycontrol would not answer the test. A personindisputably carries on supervisory work if hehas power of control or supervision in regard torecruitment, promotion etc. The work involvesexercise of tact and independence.The respondent in his evidence stated thathe was the Head of the Department and there wasno officer superior to him except the ManagingDirector. Although he stated that as a senior hegave guidance, he did not state that he wasauthorised to initiate any departmentalproceedings against his subordinates. Therefore,judging by the standard stated herein, therespondent did not come within the purview of theexclusionary clause of the definition ofworkman." 13.Now keeping in mind, the above principles stated in thejudgments cited supra, let me analyse the facts of the case. As heldby the Hon’ble Supreme Court in Sonepat Co-operative Sugal MillsLtd., v. Ajit Singh (cited supra), since the question as to whetheran employee is a workman or not, pertains to the jurisdiction of theLabour Court, this Court can review the impugned order judicially. Inthis case, the second respondent was examined as P.W.1 and he hasdeposed that he is only a workman and there was another person in therank of Deputy Manager who was only supervising the work of thepetitioner and others. He has further deposed that leave for theworkmen including the petitioner was sanctioned by the DeputyManager. Further, he has denied that he was in a position to recruitworkmen and also to take disciplinary action. On the side of thepetitioner, one Mr.V.R.Elumalai was examined as M.W.1 and he hasstated that during the relevant point of time, he was working as anEngineer in the petitioner Industry. He has further stated that the https://hcservices.ecourts.gov.in/hcservices/ second respondent was then working as Senior Engineer under whomseven Engineers were working. He has further stated that the secondrespondent used to grant leave for the employees and he has alsoconducted interviews for recruiting new workmen. But, he has admittedthat there is no document available to establish that it was thesecond respondent who granted leave to the other workmen and as perEx.M.10, leave was sanctioned only by the Deputy Manager. The saiddocument shows that the petitioner had only forwarded the said leaveapplication of a workman. According to Ex.M.17, the petitioner hadrecommended for disciplinary proceedings against a workman. But M.W.1has admitted that the second respondent had no power to initiate anydisciplinary proceedings. When confronted with Ex.M.15, M.W.1 hasadmitted that according to the entries found in Ex.M.9 there weredeductions from the salary of the petitioner towards E.S.I. He hasfurther admitted that bonus was also given to the petitioner. Duringre-examination, M.W.1 has stated that the post of Deputy Manager wascreated only in the year 1989 and thus it was suggested that prior to1989, it was only the second respondent who was in charge of theSupervisor of the entire Section. But in further cross examination,the said witness has admitted that prior to 1989, the Senior Managerwas in full in charge of the entire Section. 14.The first respondent has extensively considered the oral anddocumentary evidences produced by either side. Based on the same,after having an elaborate discussion, in respect of the acceptabilityof these evidences, the first respondent has come to the conclusionthat the second respondent was a workman and on that basis, the firstrespondent has passed the award.15.Thus, it is not the case where the first respondent LabourCourt has come to the conclusion that the second respondent is aworkman without any evidence. As stated above, there is oral evidenceof P.W.1 and M.W.1 and several documents produced on either side.Therefore, as held by the Hon’ble Supreme Court in AhmedabadMunicipal Corporation v. Virendra Kumar Jayanthibhai Patel (citedsupra), since the Labour Court has come to the conclusion that thesecond respondent is a workman on the basis of the evidence adducedon either side, this Court cannot take a different view under theguise of judicial review. It is to be remembered that as held by theHon’ble Supreme Court in the said judgment, in a case where such aconclusion has been arrived at without any evidence, then this Courtcan reappreciate the entire evidence and take a different view.Therefore, as held by the Hon’ble Supreme Court, in the case on hand,since the conclusion that the second respondent is a workman has beenarrived at on the basis of the evidence, it is beyond thejurisdiction of this Court to take a different view under the guiseof judicial review.16.The learned counsel for the petitioner would submit that inthis case, the Labour Court has not considered the oral evidence of https://hcservices.ecourts.gov.in/hcservices/ M.W.1 and the entire approach of the Labour Court was as if theburden was on the petitioner to prove that the second respondent isnot a workman. Therefore, according to the learned counsel, thisCourt has to re-appreciate the evidence which were omitted to beappreciated by the Labour Court and then to give a finding. I am notable to persuade myself to countenance the said argument of thelearned counsel for the petitioner for the simple reason that aperusal of the award of the Labour Court would go to show that theLabour Court has duly considered the evidence of P.W.1 and M.W.1 andall the relevant documents exhibited on either side.17.The learned counsel for the petitioner would further submitthat from the documents produced on the side of the Managementincluding the initial order of appointment it can be safely held thatthe second respondent is not a workman. At this juncture, this Courthas to keep in mind the law laid down by the Hon’ble Supreme Court inAnand Regional Co-operative Oil Seedsgrowers’ Union Ltd., v.Shaileshkumar Harshdbhai Shah (cited supra) wherein, the Hon’bleSupreme Court has held that for determining the question as towhether a person employed in an industry is a workman or not, notonly the nature of work performed by him but also the terms of theappointment in the job performed are relevant considerations.18.The Hon’ble Supreme Court has further held that it isnecessary to prove that there were some persons working under himwhose work was required to be supervised. Being in charge of theSection alone and that too a small one and relating to qualitycontrol would not answer the test. Considering the principles evolvedin the said judgnent, if the findings of the Labour Court areanalysed, the Labour Court has considered extensively the evidence ofM.W.1 where he has admitted that apart from the petitioner there wasanother officer in the cadre of Deputy Manager who was only in chargeof the supervision of the section. The Labour Court has also acceptedthe admission made by M.W.1 to the effect that leave to the otherworkmen was granted only by the Deputy Manager which is evidenced byEx.M.10. The Labour Court has also considered the admission made byM.W.1 that deductions were made by the salary of the secondrespondent towards E.S.I. Having appreciated all the above facts, theLabour Court has taken the view that the second respondent was not inthe capacity of a supervisor and therefore, has held that the secondrespondent is a workman. The contention of the learned counsel thatthe Labour Court has approached the petitioner as if the burden toprove that the second respondent was not a workman, was on thepetitioner is not correct. A perusal of the judgment of the LabourCourt would go to show that the Labour Court has correctly approachedthe issues. The order of the Labour Court cannot be considered asperverse. Thus, I do not find any error apparent on the face of thejudgment of the Labour Court so as to set aside the same. https://hcservices.ecourts.gov.in/hcservices/

19.In view of the above, I do not find any merit in the writpetition and accordingly the same is dismissed. No costs.Consequently, connected miscellaneous petitions are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjbmToThe presiding OfficerPrincipal Labour CourtChennai.1 CC To Mr.G.Thyagarajan, Advocate, SR NO.331161 CC To M/s.T.S.Gopalan & Co., Advocate, SR NO.33019Pre Delivery Order made in W.P.No.16819 of 1999ssv(co)pmk/9.07.08