JUDGMENT
Amitava Lala, J.
1. In this writ petition award of the learned Judge, Third Industrial Tribunal, West Bengal dated 29th August, 2003 has been challenged by the employer. Such award was published by an office order of the Deputy Secretary, Government of West Bengal dated 10th September, 2003. The issues before the Tribunal were as follows :
(1) Whether the termination of service of Shri Subir Guhathakurta w.e.f. 19.09.96 is justified?
(2) To what relief, if any, is he entitled?
2. From the penultimate paragraph of the judgment in support of the award I find that the learned Judge held that the respondent No. 3/employee is able to establish his case and on the other hand the employer has failed to discharge its onus that the employee was working in managerial or supervisory capacity in the company. It has been decided that the employee is entitled to all reliefs claimed. He is entitled to be reinstated in service with full back wages and other consequential benefits from the date of termination.
3. Therefore, it is apparent that a preliminary issue arose as to whether the employee comes within the definition of workmen of the Industrial Disputes Act, 1947 or whether he was holding the post of managerial nature or not additionally with the dispute as regards merit. It is reflected from the judgment of the Third Industrial Tribunal that no issue was settled about such preliminary point. However, power of the Industrial Tribunal in this State under Rule 20D of the West Bengal Industrial Disputes Rules, 1958 can be applied in considering such preliminary point as incidental or additional or subsidiary issue without enlarging the scope of the points referred for adjudication on the merits and also without adding any number. Hence no mistake has been committed by the learned Judge in considering such issue.
4. The employee contended through his Counsel before the Tribunal that whether the employee was working as supervisory or managerial capacity is for the employer to prove.
5. Mr. Partha Sarathi Sengupta, learned Senior Counsel, as appearing in this case contended on behalf of the petitioner/employer that from the judgment it is apparent that in so many places the employee stated “I was instructed to …” or “I was directed it…”. Such evidences cannot be proved in negative by the petitioner/management on the plea that the onus is lying upon them to prove whether the employee was working as supervisor or manager. The petitioner/management will only prove affirmatively in accordance with law whether such person was working as supervisor or manager.
6. I find that on behalf of the petitioner/management five witnesses were produced for the purpose of examination out of which the evidence of O.P.W. 1 has been expunged for his non-appearance. On the other hand, the employee himself was examined as P.W. 1. An independent witness, Sri Tapan Kumar Ganguly, was examined as P.W. 2 for the purpose of production of conciliation file on behalf of the Assistant Labour Commissioner. It is undisputed that the employee was holding the post of Zonal Manager (Pharma Division) of the petitioner company with a monthly salary of Rs. 10,000/- at the time of termination of his employment on 19th September, 1996. The termination was caused due to loss of confidence, for making false report and false claiming of expenses. He was an appointee by the then Chief Executive. From the body of the judgment it transpires that O.P.W. 2, a Senior District Manager stated that expenses incurred by MSRs during the tour programme was sanctioned by the Regional Sales Manager after certification by District Manager, The District Manager sanctioned leave of the MSRs. The District Manager also recommended the loan application of MSRs. He also used to assess their performance once a year and also recommended their promotion. The respondent herein, being the then General Manager, recommended his loan application and assessed his performance. He further stated that the respondent was doing the managerial work of the company. The other witness, on behalf of the management, gave evidence in the same tune that the respondent was doing managerial function as Zonal Manager. From the exhibits, on behalf of the petitioner company, it appears that a Memorandum of Settlement was signed by this respondent/employee as witness. He verified and approved the report. He assessed and analysed field work of MSRs. As a Zonal Manager he assessed the reason for deviation in retailing and took corrective measures. He also made suggestions to the higher authorities. He sanctioned L.T. applications. He certified tour programmes of MSRs. He recommended for promotion to the post of S.T.O. after assessing the performance of respective F.S.O. He assessed performance of the field staffs.
7. In spite of the same the learned Judge observed that he had no control over the employees of the division. The company has failed to establish that he has taken any independent decision for the job assigned to him etc. and ultimately held that supervisory or managerial work of the respondent/employee is not established by the management.
8. Mr. Sengupta contended that such finding is a perverse finding not only on the analysis of the facts and circumstances but also on the analysis of the question of law relying upon a judgment reported in 1988 (2) LLJ 429 (S.C.) S.K. Verma v. Mahesh Chandra and Anr. As pointed out, I find that such judgment is declared per incuriam by a Five Judges Bench of the Supreme Court reported in 1995 (1) LLJ 303, H.R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. etc. etc. Therefore, the learned Judge committed grave error in relying upon such judgment and arrived at a perverse finding. In further, the learned Judge himself held that principal duty of the respondent/employee appears to organize and develop the business of the company in the area allotted to him but failed to draw correct inference. He assessed the performance of the MSRs for development of the business and suggestions were given to the higher authority for taking decision on this count. Even thereafter it is very difficult to accept the analysis of the learned Judge that as because he was not taking decision by himself he is neither administrative nor managerial Staff. Explanations are without any foundation and illusory in nature. Ample evidences were given by the management to prove that the nature of work of the respondent/employee is not like a workman under the definition of Industrial Disputes Act, 1947. In , S.K. Maini v. Carona Sahu Company Limited and Ors., it was held that a manager or an administrative officer is generally invested with the power of supervision in contradistinction the to stereotype work of a clerk. An employee discharging managerial duties and functions may not, as a matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set-up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfil the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the shop manager with reference to the admitted terms and conditions of service, it is evident that he was not a workman under Section 2(s) of the Industrial Disputes Act.
9. Therefore, ratio of the aforesaid judgment on the basis of the facts therein has to be tested by the Tribunal in the light of the facts and circumstances available before it to come to a definite finding as to whether the respondent/ employee is “workman” or not. There is no scope of taking decision with an undue haste.
10. Normally the Writ Court does not interfere with the finding of the fact. But the ratio of the Division Bench judgment of our High Court reported in 1974 CLJ 251, Collector of Customs, Calcutta and Ors. v. Biswanath Mukherjee has to be remembered. The ratio has been laid down as follows :
“It is, however, equally well settled that even in a writ petition under Article 226, the Court is entitled to interfere with the finding of the Tribunal on any question of fact which the Tribunal is competent to decide, if the Court is satisfied that the finding of the Tribunal is perverse and the find of the Tribunal is considered to be perverse, if-
(a) The Tribunal has come to the finding on no evidence.
(b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials.
(c) The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion.
(d) The Tribunal has come to the conclusion by considering material which is irrelevant or by considering material which is partly relevant and partly irrelevant.
(e) The Tribunal has disabled itself in reaching a fair decision by some considerations extraneous to the evidence and the merits of the case.
(f) The Tribunal has based the finding upon conjectures, surmises and suspicion.
(g) The Tribunal has based the finding upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found.
(h) If the Tribunal in conducting their enquiry has acted in flagrant disregard of the rules of procedure or has violated the principles of natural justice, where no particular procedure is prescribed.
(i) In any of the above cases and in any other case where the Court, in the particular facts of the case, considers the finding of the Tribunal to be perverse and where the Court is of the opinion that justice of the case so requires, the Court is entitled to interfere and set aside the finding of the Tribunal on any question of fact. In such cases, the Court holds that there is an error of law on any of the above grounds” .
11. In 76 C.W.N. 342, Baldev Singh v. Indian Explosives Limited and Ors., it has been held by a Division Bench of this High Court in a dispute whether one is workman or not is a jurisdictional question. Therefore, if the Tribunal comes to a wrong decision on the evidence adduced by the parties this High Court should interfere with the conclusion of the Tribunal.
12.I fail to get any reply from the respondent/employee. The learned Counsel only harped upon the benefit under Section 17B of the Industrial Disputes Act by filing affidavit instead of making formal application. Such point had been resolved earlier. In spite of the same an appeal was preferred from such order. Several adjournments were sought for on the ground of engaging a senior lawyer after having subsistence allowance. On a number of occasions adjournments were granted. Ultimately, on 14th September, 2004 on the basis of the previous understanding learned Counsel did not want to proceed with the submission in merit taking the fictitious plea about engagement of his senior. Ultimately, when this Court directed to proceed with this matter he wanted to obtain leave to retire from the matter which was accordingly granted. On 24th November, 2004 the learned Counsel appearing for the management contended that the appeal is dismissed and therefore, there is no necessity of keeping the main matter pending any more but to pass the final order.
13. Therefore taking into totality of the matter I am of the view that judgment and order passed by the Tribunal cannot be sustained. Accordingly, the same is set aside. Consequently, the office order/notification being dated 10th September, 2003 stands quashed. However, no order is passed to costs.
14. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.