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CIVIL APPEAL NO. 28 OF 2015 [Arising out of Special Leave Petition (C) No.32616 of 2013] M/s. Pepsico India Holding Pvt. Ltd. … Appellant(s) versus Krishna Kant Pandey …Respondent(s)

‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 28 OF 2015
[Arising out of Special Leave Petition (C) No.32616 of 2013]
M/s. Pepsico India Holding Pvt. Ltd. … Appellant(s)

versus

Krishna Kant Pandey …Respondent(s)
J U D G M E N T
M.Y.EQBAL,J.
Leave granted.
2. This appeal by special leave is directed against judgment and order
dated 23.5.2013 of the High Court of Allahabad at Lucknow Bench whereby
learned Single Judge classifying the respondent as ‘workman’ allowed the
writ petition preferred by him, quashed the order dated August 24, 2007
passed by the Industrial Tribunal II, State of Uttar Pradesh, Lucknow (in
short, ‘the Tribunal’) and directed the Tribunal to decide respondent’s
Case No.84/2004 on merit.

3. The factual matrix of the case is that the respondent was appointed on
the post of Operator/Technician Grade III for six months on probation basis
w.e.f. 13th of March, 1995 against the salary of Rs. 2600/- per month.
Having been found his services satisfactory, he was confirmed w.e.f. 13th
September, 1995 and was also awarded one increment w.e.f. 1st of February,
1996. Earlier, he was appointed in the Plant of Jainpur (Kanpur Dehat)
from where he was transferred to Sathariya Plant, District Jaunpur, U.P. on
30th of August, 1996 on the revised pay scale i.e. Rs. 5450/-. Pursuant
to the subsequent transfer order, he was posted at Lucknow in the month of
June, 1997 and till 2000 he was awarded annual increments at the rate of
Rs.490/-. Subsequently, he was promoted to the post of Line Supervisor in
the pay scale of Rs.7716/- and thereafter to the post of Fleet Executive.

4. It is the case of the respondent that being posted as a Fleet
Executive, he was to discharge the mechanical work and that being so, he
was called as skilled workman. It is stated that no other staff was posted
in his subordination. The respondent also pointed out the conduct of the
employer transferring him from one place to another and also compelling him
to resign from the post or to be on long leave. On being asked to proceed
on leave, respondent remained on leave w.e.f. 9th October, 2003 to 17th
October, 2003. When he turned up, he was not permitted to join for want of
instructions of the superior authorities. Thereafter, respondent wrote a
letter on 8th November, 2003 to the Vice President seeking guidance for
further action, upon which the employer became unhappy and terminated his
services on 14th of November, 2003 by giving one month’s salary in lieu of
notice prior to termination.

5. Aggrieved by the said termination, respondent preferred a reference
before the Conciliation Officer, Lucknow alleging that he is a ‘workman’
within the meaning of the Uttar Pradesh Industrial Disputes Act, 1947
(hereinafter referred to as the ‘Act’) and termination of his services by
the Company is contrary to Section 6 of the Act. The appellant Company
pleaded that the respondent did not satisfy the criteria of a workman as
defined under Section 2(z) of the Act. The Industrial Tribunal dismissed
the reference stating that the respondent is not a workman under Section
2(z) of the Act and, therefore, no challenge to the termination is
maintainable before the Tribunal.

6. Respondent, being aggrieved, moved the High Court by way of a writ
petition challenging the order of the Tribunal and also for his re-
instatement to the post of Fleet Executive with continuity of service and
for payment of full back wages. In reply, the appellant pleaded that the
order of termination is in accordance with the provisions of the Act.
After hearing learned counsel on either side, learned Single Judge of the
High Court allowed writ petition of the respondent, quashed order of the
Tribunal and directed it to proceed with the adjudication of the
respondent’s case on merit. Hence, the present appeal by special leave by
the appellant-Company.

7. Mr. C.U. Singh, learned counsel appearing for the appellant, assailed
the order passed by the High Court on various grounds inter alia, the High
Court has exceeded its jurisdiction conferred upon it under Article 226 of
the Constitution of India by reversing the finding recorded by the
Tribunal. Learned counsel submitted that the High Court has committed grave
error in issuing suo motu directions to the executive to amend a relevant
provision of Section 2(z) of the U.P. Industrial Disputes Act (in short,
‘State Act’). According to the learned counsel, issuing such direction by
the High Court amounts to issue a direction to the legislature to enact a
law in a particular manner. Learned counsel submitted that the High Court
cannot mandate the executive to introduce or enact a legislation, howsoever
necessary or desirable. Learned counsel drew our attention to the
provisions of Section 2(z) of the said Act which defines ‘workman’ and
submitted that the High Court has failed to appreciate that the nature of
duties and responsibilities entrusted upon the respondent are not manual,
skilled or unskilled or technical services, but manual, managerial and
supervisory. In the capacity of Fleet Executive, respondent was required
to monitor each and every vehicle of the Fleet and ensure that the
necessary repair proceedings were carried out. Learned counsel further
submitted that the High Court has misdirected itself in considering the
relevant facts and pleadings which were not even placed before the
Industrial Tribunal. Lastly, it was contended that the High Court in
exercise of its jurisdiction under Article 226 of the Constitution ought
not re-appreciate or re-weigh evidence and disturb the finding of facts
recorded by the Tribunal based on appreciation of evidence. Learned
counsel relied upon the judgment of this Court in the case of Chandavarkar
Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447, Birla Corpn. Ltd..
vs. Rajeshwar Mahato and Others, (2001) 10 SCC 611 and S.K. Mani vs.
M/s. Carona Sahu Company Limited and Ors., (1994) 3 SCC 510.

8. Mr. Kavin Gulati, learned senior counsel appearing for the respondent
firstly contended that before conciliation, the appellant raised an
objection with regard to the jurisdiction of the Tribunal and the matter
was finally referred to the Labour Court for adjudication on a limited
question as to whether the termination of services of the respondent was
justified. According to the learned counsel, the appellant-management
cannot raise the question of jurisdiction of the Labour Court. Learned
counsel referred to Rule 12 of the Industrial Disputes Rules in support of
his contention and relied upon the decision of this Court in the case of
M/s. U.P. Electric Supply Co., Ltd. vs. The Workmen of M/s. S.N. Choudhary
Contractors and Anr., (1960) 3 SCR page 189. Mr. Gulati, learned senior
counsel also relied upon the decision of this Court in the case of TISCO
Ltd. v. State of Jharkhand, (2014) 1 SCC 536, and Bhogpur Coop Sugar Mills
Ltd. vs. Harmesh Kumar, (2006) 13 SCC 28, for the proposition that the
Labour Court has limited jurisdiction to adjudicate the disputes referred
to it and not to enter into any other question that may be raised in the
reference.

9. We have heard learned counsel for both the parties and considered the
relevant facts and the law applicable thereto. The admitted facts are that
at the relevant time, the respondent was working as a Fleet Supervisor and
drawing a salary of Rs. 7716/-. Initially, he was appointed as a
technician Grade-III in 1995 on the salary of Rs. 2600/- per month and
after getting increment his salary was increased. By giving one month’s
salary, in lieu of the notice, his services were terminated.

10. It appears that the appellant raised a preliminary objection before
the Labour Court that the respondent was not a Labour as defined under
Section 2(z) of the said Act and the Deputy Labour Commissioner, Lucknow,
who had referred the present case, was not competent for this purpose. The
Labour Court recorded the evidence adduced by both the appellant and the
respondent and discussed the evidence, and elaborately considered the case
of the parties. The Labour Court finally recorded finding that the
respondent is not a workman within the meaning of Section 2(z) of the Act.
Paras 13 to 15 of the order are reproduced hereinbelow:-
“13. The statement of the Applicant is that although he was given the post
in the name of Fleet Executive and he was posted at the warehouse at
Lucknow, however practically he was doing the work of skilled manual and as
such he fall within the definition as given in Section 2(z) of the
Industrial Disputes Act, 1947. According to him his main work was to
remove the technical defects at 100% from the fleet. His other works which
have been mentioned by the management in their written statement, were
secondary. It has also been stated that the written statement of the
management is not on affidavit, therefore the same cannot be relied upon.
He was executing all his work in accordance with the directions of the
higher officials. He was not having any right of doing the work as per his
own wishes. He has stated in his statement that no staff was working
under him. He used to do the work himself for keeping the vehicles 100%
free/available from technical deformities and removed the difficulties of
the vehicles. It has also been stated that there is a difference in the
statement of witnesses of the management EW-1 and EW-2 regarding the repair
of the work of the company and the same cannot be relied upon. It has
been stated while relying upon the legal arrangement given by the Hon’ble
Supreme Court in S.K. Verma Vs. Mahesh Chander (AIR- SC-1462) and Shri
Verma Role Offer Storage and Distribution Co. of India Ltd. Vs. Vermashel
Management Staff Association and others (1970) 3 SCC 378 that any personnel
fall within the definition of labour or not, it depends upon the fact that
what is the nature of the main works being done by him. The same cannot be
assessed with the name of the post. If the concerned person is doing the
work of manual skilled unskilled work, then he is in the definition of
labour, as the main work of the Applicant was to repair the vehicles, which
he used to do from his own hands. No other person was working under him
and he was not having the right to take decision by himself. Therefore, he
falls within the definition of Labour. It has been stated while referring
the S.K. Verma Vs. Mahesh Chander and Vermashel Air Storage and
Distribution Co. of India Ltd., Vs. Vermashel Management Staff Association
(supra) that the work of the Applicant was similar to fupelling
superintendent, which has been considered by the Hon’ble Apex Court as
labour, because his work was manual and not supervisory. Therefore he
falls within the definition of labour and the termination of service made
by the management is retrenchment, which has been done in violation of the
provisions of Section 60N of the U.P. Industrial Disputes Act, 1947.
Therefore his termination of service is improper and illegal. On this
basis he may be reinstated in service alongwith salary for leave period.

14. It has been argued on behalf of Management that out of the works
executed by the Applicant on the post of Fleet Executive, the details of
the paid work are mentioned in their written statement. The same has been
admitted by the Applicant in his arguments. In this manner, the details
regarding the main work out of the works on the post of Fleet Executive
being done by him is proved. All these works are supervisory in nature.
The major work of repair of the vehicle used to be done from outside. The
work of washing and cleaning of the vehicles was done by driver. The
Applicant has never done any type of repairing work and neither anybody has
seen the Applicant while doing such work. In this manner mainly the
Applicant was doing the work of supervisory nature. Therefore does not
fall within the definition of labour. His services have been terminated
under the terms. In this manner the order of termination of his service is
proper and legal. He is not entitled to get any relief.

15. The main question in this industrial dispute is whether the Applicant
K.K. Pandey is a labour, as claimed by him, as this claim has been made by
him and as such onus to prove the same lies on him. According to para 11
and 12 of his written statement he was having only one responsibility on
the post of fleet executive that he was to ensure the availability of the
vehicles free from technical deformities. According to the written
statement for this work nobody was working under him and he used to do the
work of repair with his own hands. He has reiterated this fact in his
statement also. In this regard except his statement has not produced any
evidence to confirm the same. On the other hand he has admitted in his
arguments as regards the details of different works mentioned by the
management in para No.1 of their written statement. According to it out of
his works, there is a detail of 15 main works. In this manner the
statement made by the Applicant regarding his main work remained rebutted.
The statement of the Applicant regarding the post of Fleet Executive on the
basis of which he is claiming himself as labour is not liable to be
believed.”
11. On the basis of the findings based on elaborate discussions and
analyzing the evidence, the Labour Court came to the conclusion that at the
relevant time the respondent was working as a Fleet Executive which is
supervisory in nature and does not fall within the definition of ‘labour’
as defined under Section 2(z) of the Act. Hence, he is not entitled to any
relief. The respondent challenged the aforesaid award passed by the Labour
Court in a writ petition before the High Court. After considering the
definition contained in Section 2(z) of the Act and the nature of work
assigned to the respondent, the High Court arrived at a conclusion that the
nature of work prevalent on the date of termination was as that of a
workman. Curiously enough, though the respondent did not come under the
definition of workman under Section 2(z) of the Act, the High Court
proceeded on the basis that the U.P. Industrial Disputes Act was enacted in
1947 and although the respondent cannot be held to be a workman under the
said definition, held that he shall have to be classified as a workman and
directed the Government to make amendment in Section 2(z) of the Act
excluding some of the clauses. For better appreciation, relevant portion
of the order is quoted hereinbelow:-
“There is one more exclusion clause in section 2(z) of the Act i.e. Clause
(iv) which excludes the employee who being employed in supervisory capacity
draws wages exceeding Rs. 500/- per mensem or exercise, 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 in nature. It is very much
obvious that by nature of duties assigned to the petitioner, it cannot be
said that he was attached to the office or mainly managerial function was
vested with him.
So far as another condition for exclusion from the definition of
“workman” viz drawing wages exceeding Rs. 500/- per mensem is concerned, it
is not in dispute that the petitioner on the date of retrenchment had been
getting more Rs. 500/- mensem. This clause is a part of original form of
the definition of “workman” as is provided under section 2 (z) of the Act.
The U. P. Industrial Disputes Act was enacted in 1947. The petitioner was
retrenched from service in 2003. The date of his initial appointment is on
13th of March, 1995. By passage of time the GDP growth had been increased
in number of times from 1947 to 2003. Therefore, the enhancement in income
was a natural corollary, in the light of which, I am of the view that this
clause has become unworkable and redundant. Now every workman working in
the Industry definitely would have been getting more than Rs. 500/- per
mensem and if this clause is permitted to be prevailed no workman shall be
governed under the definition of “workman”. Therefore, I am of the view
that this clause has lost its significance and if the employee is covered
under the definition of “workman” as is defined under Section 2 (z) of the
U. P. Industrial Disputes Act and further is not covered under the
exclusion clause except clause (iv), he shall be classified as “workman”.
The clause (iv) of section 2 (z) shall not come in the way of his
categorization as “workman”.
It is advisable to the State Government to consider to make an
amendment in section 2 (z) of the U. P. Industrial Disputes Act, 1947 in
general and to exclude the class (iv) from the exclusion in particular.
Since the present petitioner has been classified by this court, as
above, under the definition of “workman” the order impugned dated 24th of
August, 2007 passed by the Industrial Tribunal II, State of U. P., Lucknow
is hereby quashed with the direction to the Tribunal to proceed with the
adjudication case No. 82/2004 to adjudicate upon it on merit.”

12. Considering the entire facts of the case and the findings recorded by
the Labour Court, prima facie we are of the view that the High Court has
exceeded in exercise of its jurisdiction under Articles 226 and 227 of the
Constitution of India in interfering with the finding of facts recorded by
the Labour Court. It is well settled that the High Court in the guise of
exercising its jurisdiction normally should not interfere under Article 227
of the Constitution and convert itself into a court of appeal.

13. While discussing the power of the High Court under Articles 226 and
227 of the Constitution interfering with the facts recorded by the courts
or the tribunal, this Court in the case of Chandavarkar S.R. Rao vs.
Ashalata S. Guram, (supra) held as under :-
“17. In case of finding of facts, the court should not interfere in
exercise of its jurisdiction under Article 227 of the Constitution.
Reference may be made to the observations of this Court in Bathutmal
Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High
Court could not in the guise of exercising its jurisdiction under Article
227 convert itself into a court of appeal when the legislature has not
conferred a right of appeal. The High Court [pic]was not competent to
correct errors of facts by examining the evidence and reappreciating.
Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was,
observed at p. 1301 of the report as follows: (SCC p. 864, para 7)
“The special civil application preferred by the appellant was admittedly an
application under Article 227 and it is, therefore, material only to
consider the scope and ambit of the jurisdiction of the High Court under
that article. Did the High Court have jurisdiction in an application under
Article 227 to disturb the findings of fact reached by the District Court?
It is well settled by the decision of this Court in Waryam Singh v.
Amarnath that the
… power of superintendence conferred by Article 227 is, as pointed out by
Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised
most sparingly and only in appropriate cases in order to keep the
subordinate courts within the bounds of their authority and not for
correcting mere errors.
This statement of law was quoted with approval in the subsequent decision
of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was
pointed out by Sinha, J., as he then was, speaking on behalf of the court
in that case:
It is thus, clear that the powers of judicial interference under Article
227 of the Constitution with orders of judicial or quasi-judicial nature,
are not greater than the power under Article 226 of the Constitution. Under
Article 226 the power of interference may extend to quashing an impugned
order on the ground of a mistake apparent on the face of the record. But
under Article 227 of the Constitution, the power of interference is limited
to seeing that the tribunal functions within the limits of its authority.”
14. In the case of Birla Corpn. Ltd.. vs. Rajeshwar Mahato and Others,
(2001) 10 SCC, the question of validity of termination of services of the
respondent by the appellant-Corporation was referred to the Industrial
Tribunal. On evidence, the Industrial Tribunal found that the duties of
the respondent were mainly managerial or administrative. The Tribunal held
that the respondent was not a workman and the reference was therefore not
maintainable against the decision of the Tribunal. The Tribunal relying on
Section 2(s)(iv) (as amended in West Bengal W.B.) held that as the
respondent was drawing salary less than Rs.1600/- per month, he had to be
regarded as a workman. The Corporation moved this Court against the order
of the High Court. This Court while setting aside the decision of the High
Court held as under :-

“4. It was not in dispute that at the time of the termination of services
of Respondent 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 was 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.”
11. As we have also noticed hereinabove, the Tribunal had given a
categorical finding to the effect that Respondent 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 Respondent 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 1 as a workman if the finding of the Tribunal
with regard to the nature of the duties performed by him, as 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 [pic]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 Respondent 1. The decision of the
High Court is set aside and the writ petition filed therein by the
respondent stands dismissed.”
15. In the case of Indian Overseas Bank vs. I.O.B. Staff Canteen
Workers’ Union and Another, (2000) 4 SCC 245, this Court considered a
similar question with regard to the power of the High Court under Article
226 against the findings recorded by the Industrial Tribunal. Reversing
the decision of the Single Judge and restoring the fact finding decision of
the Tribunal this, Court held :-

“17. The learned Single Judge seems to have undertaken an exercise,
impermissible for him in exercising writ jurisdiction, by liberally
reappreciating the evidence and drawing conclusions of his own on pure
questions of fact, unmindful, though aware fully, that he is not exercising
any appellate jurisdiction over the awards passed by a tribunal, presided
over by a judicial officer. The findings of fact recorded by a fact-finding
authority duly [pic]constituted for the purpose and which ordinarily should
be considered to have become final, cannot be disturbed for the mere reason
of having been based on materials or evidence not sufficient or credible in
the opinion of the writ court to warrant those findings, at any rate, as
long as they are based upon some material which are relevant for the
purpose or even on the ground that there is yet another view which can
reasonably and possibly be taken. The Division Bench was not only justified
but well merited in its criticism of the order of the learned Single Judge
and in ordering restoration of the award of the Tribunal. On being taken
through the findings of the Industrial Tribunal as well as the order of the
learned Single Judge and the judgment of the Division Bench, we are of the
view that the Industrial Tribunal had overwhelming materials which
constituted ample and sufficient basis for recording its findings, as it
did, and the manner of consideration undertaken, the objectivity of
approach adopted and reasonableness of findings recorded seem to be
unexceptionable. The only course, therefore, open to the writ Judge was to
find out the satisfaction or otherwise of the relevant criteria laid down
by this Court, before sustaining the claim of the canteen workmen, on the
facts found and recorded by the fact-finding authority and not embark upon
an exercise of reassessing the evidence and arriving at findings of one’s
own, altogether giving a complete go-by even to the facts specifically
found by the Tribunal below.”
16. The order of the Tribunal would show that the respondent-workman
accepted different works assigned to him which were purely of supervisory
and managerial nature. The details of 15 managerial/supervisory works
assigned to the respondent have been analyzed by the Tribunal which finally
came to the conclusion that the respondent is not a workman within the
meaning of Section 2(z) of the Act.

17. In exercise of its writ jurisdiction, the High Court proceeded
initially on the basis that the appellant had entered into service on the
post of Operator/Technician Grade-III, which is a technical post and from
there he was promoted to different posts including Fleet Executive. The
High Court committed grave error in holding that although he is not covered
under the definition of workman as defined under Section 2(z) of the Act he
shall be classified as a workman. The High Court further exceeded its
jurisdiction in advising the Government to make an amendment in Section
2(z) of the Act and to exclude some clauses. The order passed by the High
Court cannot be sustained in law.

18. We, therefore, allow this appeal and set aside the order of the High
Court and restore the order passed by the Tribunal. However, we give
liberty to the respondent to move the appropriate forum to challenge, in
accordance with law, the order of termination passed by the appellant.
……………………………..J.
(M.Y. Eqbal)

……………………………..J.
(Shiva Kirti Singh)
New Delhi
January 06, 2015

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