ORDER
1. The respondent No. 1 was an employee of the appellant-Corporation. By notice dated 1st September, 1985, respondent No. 1’s services were terminated by giving him one month’s notice.
2. Industrial dispute was raised and the two questions which were adjudicated by the Tribunal were :
(1) Whether termination of services of the respondent was valid?; and
(2) What relief was he entitled to ?
3. It was contended by the appellant before the Tribunal that respondent No. 1 was not workman within the meaning of that expression occurring in Section 2(s) of the Industrial Disputes Act, 1947. The case of the appellant was that respondent No. 1 was in charge of one of the three shifts of the work in the mill.
4. It was not in dispute that at the time of the termination of services of respondent No. 1 he was receiving Rs. 1185/-per month by way of salary. The Tribunal recorded the evidence as well as took into consideration documentary evidence which were produced by the parties. On the basis of the evidence which was adduced before it, the Tribunal observed that:
The main duties of Shri Rajeshwar Mahato were both supervisory and administrative in nature.
In the instant case Shri Mahato’s functions were mainly of a managerial nature. He had control as well as supervision over the work of the jute mill workers working under him.
5. The Tribunal then referred to the evidence both oral and documentary. It dealt with the evidence of the O.P.W. 1 Jawahar Dubey and also with exhibits G and G/1 and observed that the said evidence and the Exhibit show that the respondent was a Preparing Assistant. While stating that the Tribunal would not go merely on the basis of the designation attached to an employee, and it was concerned with finding out as to what were the main duties performed by him, the Tribunal then referred to the evidence of the respondent himself as well as the other evidence and first observed that the respondent was really a supervisory staff and then ultimately it came to the conclusion that:
From the above, it is clear that Shri Rajeshwar Mahato functioned in a managerial or administrative capacity also.
In the light of the above discussion I hold that Shri Rajeshwar Mahato was not a work¬man. This point is decided accordingly.
6. Having come to the aforesaid conclusion, the Tribunal held that the Government Order of Reference was not maintainable in law.
7. The decision of the Tribunal was challenged by respondent No. 1 by filing a petition under Article 226 of the Constitution before the High Court. The Single Judge of the High Court referred to the definition of the word “workman” according to Section 2(s) of the Industrial Disputes Act, 1947. It also took note of the fact that the said definition had been amended and in place of Rs. 500/- the figure of Rs. 1600/- had been substituted in relation to persons working in the supervisory capacity. This amendment was a State amendment and the Single Judge held that the State amendment would be applicable and as the respondent was drawing less than Rs. 1600/- per month he had to be regarded as a workman.
8. The Single Judge did not make any observation with regard to the finding of the Tribunal to the effect that the respondent was mainly working in a managerial or administrative capacity. In appeal, the Division Bench also, while upholding the decision of the Single Judge did not make any observation with regard to the basis of the decision of the Tribunal, namely, that the respondent was not a workman inasmuch as he was mainly carrying on the duties which were administrative or managerial in nature.
9. Section 2(s) of the Industrial Disputes Act reads as under:
(s) “Workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed 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.
10. It is clear from a bare perusal of the said clause that if a person is employed mainly in a managerial or administrative capacity then under Sub-clause (iii) of Section 2(s) he would not be regarded as a workman. If an employee is working in a supervisory capacity then under Sub-clause (iv) he would not be a workman if his wages exceed Rs. 1600/- per mensem. The said Sub-clause, inter alia, provides that if his functions are mainly of managerial nature, by reason of the powers vested in him, then such an employee would also not be regarded as a workman.
11. As we have also noticed hereinabove, the Tribunal had given a categorical finding to the effect that respondent No. 1’s function was mainly of managerial nature. His duties were both supervisory and administrative and therefore he was regarded as not being a workman. Though the Tribunal did not specifically state so, it is evident that it is because of Section 2(s)(iii) that the respondent No. 1 was regarded as not being a workman.
12. Neither the Single Judge nor the Division Bench of the High Court, as we have already noticed, referred to this aspect of the matter. Even assuming that the West Bengal Amendment was applicable, that would still not help to hold respondent No. 1 as a workman if the finding of the Tribunal with regard to the nature of the duties performed by him which was arrived at by the Tribunal is not set aside as being frivolous or without any evidence. As long as the finding of the Tribunal stands, namely, that the respondent was an employee mainly in a managerial or administrative capacity, the Award of the Tribunal could not have been set aside. As we have already observed the Single Judge or even the Division Bench could have come to the conclusion that the finding so arrived at by the Tribunal was either frivolous or not based on any evidence. But this aspect of the case was completely overlooked by the High Court. The emphasis of the Single Judge as well as the Division Bench was only with regard to applicability of the amendment of the State of West Bengal to Section 2(s) of the Industrial Disputes Act. In our opinion, therefore, the High Court erred in allowing on this ground the writ petition filed by the respondent No. 1. The decision of the High Court is set aside and the writ petition filed therein by the respondent stands dismissed.
13. During the pendency of this appeal, as a gesture of guilt, the appellant had offered to pay to the respondent No. 1 a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) by way of full and final settlement. Even though no settlement has been arrived at between the parties, the learned senior Counsel for the appellant has been gracious enough to State that the appellant will still abide by the commitment which had been made earlier and the said sum of Rupees Two lakhs would be paid to respondent No. 1, on the said respondent’s vacating the premises occupied by him which belong to the appellant-Corporation and had been allotted to the respondent by virtue of his employment. We further make it clear that if any other amount is due to the respondent upto the date of termination by the letter dated 1st September, 1985 by way of bonus, leave encashment or otherwise, the same would be paid to him.
14. The appeal is disposed of in the aforesaid terms.
