Calcutta High Court (Appellete Side)
Sumanto Banerjee vs Ranbaxy Laboratories Limited & ... on 23 December, 2022
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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
RESERVED ON: 15.12.2022
DELIVERED ON:23.12.2022
CORAM:
THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
F.M.A. NO. 2276 OF 2016
WITH
F.M.A. NO. 1388 OF 2014
SUMANTO BANERJEE
VERSUS
RANBAXY LABORATORIES LIMITED & OTHERS
WITH
RANBAXY LABORATORIES LIMITED & OTHERS
VERSUS
THE STATE OF WEST BENGAL & OTHERS
Appearance:-
Mr. Supriyo Bose, Advocate.
Mr. Soma Roy Chowdhury, Advocate.
........For the Appellant
(in FMA No. 2276 of 2016)
&
Respondent No. 3 in
(FMA No. 1388 of 2014)
Page 1 of 30
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Mr. Soumya Majumdar, Advocate.
Ms. Victor Chatterjee, Advocate.
.....For the Appellant
(in FMA No. 1388 of 2014)
JUDGMENT
(Judgment of the Court was delivered by T.S.SIVAGNANAM, J.)
1. These appeals have been preferred against the order dated 08.10.2013
in WP No. 10138 (W) of 2011. The said writ petition was filed by the
management of Ranbaxy Laboratories Limited presently known as Sun
Pharmaceuticals Industries Limited. The challenge in the said writ petition
was to an award passed by the second Labour Court, Calcutta in Case No.
21 of 2005 filed under Section 10(1B)(d) of the Industrial Disputes Act. 1947
(the Act). The said dispute was raised by the employee Mr. Sumanto
Banerjee challenging the order of termination passed by the management
dated 09.07.2005. The Labour Court by award dated 28.04.2011 held the
order of termination to be bad in law, set aside the same and directed
reinstatement of the workmen however restricted the back wages only to
50%. The writ petitioner, who shall herein after referred to as management,
being aggrieved by such award challenged the same by filing the said writ
petition. The employee appears to have been satisfied with the award and no
challenge was made by him, though 50% of the back wages was denied. The
learned Single Bench by the impugned order allowed the writ petition in part
while affirming the award of the Labour Court directing reinstatement of the
workmen set aside that portion of the award which granted 50% back wages
to the workmen. Thus, the management being aggrieved by the order passed
by the learned Single Bench in confirming the award passed by the Labour
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Court directing reinstatement has filed the appeal in FMA No. 1388 of 2014
and the employee being aggrieved by the denial of 50% back wages has filed
the appeal in FMA No. 2276 of 2016. Since both the appellants are aggrieved
by the order passed in the writ petition the appeals were heard together and
are being disposed of by this common judgment and order.
2. We have heard Mr. Soumya Majumder assisted by Mr. Victor
Chatterjee, the learned advocate appearing for the management and Mr.
Supriyo Bose assisted by Ms. Sona Roy Chowdhury, learned advocate
appearing for the employee/ workman.
3. The employee was appointed as medical service representative by the
management by letter of appointment dated 08.11.1993. The letter of
appointment mentioned about the nature of duties and responsibilities of
the workman apart from the scale of pay and other allowances and other
conditions of service. It is not disputed by the management that the
employee was sincere in the discharge of his duties and was termed as a
star performer. By letter dated 27.09.2002, the management in appreciation
of his good performance promoted him as the District Manager with effect
from 01.10.2002. The said promotion order also contained the details of the
revised salary allowances and other conditions of service. The employee also
signed a confidentiality agreement dated 01.10.2002. According to the
management, the employee was on unauthorized leave for 58 days. By letter
dated 18.05.2005, he was informed by the management that it has been
decided to re-designate him as a Uro Executive with immediate effect and he
will operate from Gauhati as his head-quarters, he was given 10 days
joining time to take up the new assignment. Subsequently by
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communication dated June 02, 2005, he was informed that he was
transferred from Calcutta to Gauhati as Uro Executive and 10 days joining
time was given to him to take up the new assignment. The employee was
advised to report to Gauhati not later than 13.06.2005 for further
instructions, he was warned that in the event of failing to report to Gauhati,
it would be assumed that he is not interested to serve the management and
that he has abandoned the job on his own accord and his name will be
struck of the rolls of the company without further reference to him. It is a
matter of fact that he did not join duty at Gauhati. The management by
letter dated 28.06.2005 extended date for joining duty at Gauhati till
04.07.2005. The said letter also contained a similar warning as contained in
the letter dated 2nd June, 2005. According to the management, the employee
was unauthorisedly absent and it disobeyed the order of transfer and owing
to such reasons, by letter dated 04.07.2005, he was informed by the
management that it has been decided to terminate his services with
immediate effect as per the terms and conditions of his employment vide
letter dated 27.09.2005 and he is being paid one month's salary in lieu of
the notice period, he was advised to hand over the company's property to
the regional manager at Gauhati and obtain no-dues certificate from the
stockiest and send the same to the branch officer to enable them to settle
the full and final accounts. The employee raised industrial dispute which
commenced with the conciliation proceedings. However, the conciliation
failed and certificate was issued by the conciliation officer. It is thereafter
the workman raised the industrial dispute under Section 10(1B)(d) of the
Act. The Labour Court framed the following four issues for consideration:-
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(i) Whether the application under Section 10(1B)(d) of the Act is
maintainable under the Rules and the Act?
(ii) Whether the applicant is a workman under Section 2(s) of the Act?
(iii) Does the Labour Court have territorial jurisdiction over the matter?
(iv) Whether the termination of service of the applicant by the company
is justified? If so, to what relief is the applicant entitled to?
4. In the claim petition filed by the workman, he had contended that his
job profile is basically that of salesman/sales worker he has no authority to
bind the medical representatives of the company in any manner as he was
employed to do the canvassing and promoting sales of the products of the
management and the company had posted him as District Manager with a
design to keep the post out of the purview of trade union or the Industrial
Disputes Act by using the word "manager" which is meaningless in the
context of his job profile. It is further stated that he does not do any
managerial work, he has to work with six other medical representatives
jointly in the different territories assigned to them by the management. He
can neither appoint any person or dismiss any person nor take any
disciplinary action against any person. The job is only to inspire the sales
person to work to achieve sales target as set out by the management. Even
for allotment of promotional materials, he has no decision making power
thereby he does not play any part in strategic planning both in corporate as
well as regional level. That he was a implementer of the company's policies
and has no decision making powers in any official matter of the
management rather he is supposed to carry out the chartered activities by
the management along with other medical representatives and therefore he
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has no administrative control over any of the medical representatives.
Further it was contended that he does not have any power to sanction leave
of the medical representatives nor he approves their leave nor he is
empowered to impose any pay cut on the medical representative. Therefore,
the nomenclature "manager" is nothing but a decoration. It was further
stated that he had been discharging his official duties with utmost sincerity
and diligence but unfortunately he sustained fracture in his ankle in the CN
Baghbazar which had rendered him incapable of doing his duties for 58
days from 26.02.2005 to 24.04.2005, he resumed duty on 25.04.2005 after
availing medical leave for the days of absence and submitted leave
application form to the management on 25.04.2005 and at that point of
time, the trouble started, he was restrained to join his duties after the
completion of the medical leave. Various other instances have been referred
to by the workman to justify his case that he was not permitted to join the
duty and carry on his activities as a sales promotion personnel. While so on
18.05.2005,a letter was given transferring him from Calcutta to Gauhati as
Uro Executive which is a downgraded position with lesser salary and
emoluments. By letter dated 25.05.2005 in response to the order of transfer
stated it was stated that it is a degradation from the existing category of the
job having lesser remuneration which will prejudice him financially as well
as socially. By another letter dated 02.06.2005 received on 04.06.2005 the
management directed him to join duty in Gauhati for which the workman
sent a reply dated 06.06.2005 reiterating the contention raised by him in
the earlier letter. However once again the time for joining at Gauhati was
extended up till 04.07.2005 for which a reply was sent. While so the
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termination letter was served on 09.07.2005. Further it was contended that
the termination of his employment was illegal and arbitrary and in violation
of the basic principles of law, no show cause notice or charge sheet had
been served on him and no disciplinary proceedings were drawn against him
nor he was compensated for his wrongful termination from service. With the
above pleadings, prayer was made to pass an award of reinstatement in the
management with the same status and payment of his entire back wages
including consequential benefits payable to him.
5. The management filed their written statement contending that the
employee is not a workman within the meaning of Section 2(s) of the Act, he
was promoted as the District Manager and was discharging duties of
supervisory nature and he is not entitled to invoke the provisions of the
Section 10(1B)(d) of the Act. Since the employee is not a workman the
Labour Court has no jurisdiction to adjudicate the matter. It was further
contended that the post of District Manager is administrative and
managerial post, he is required to plan and execute the policy of the
company for the purpose of achieving the sales target, he approves the
expenses statement of medical service representatives, he used issue charge
sheet/show cause notice to the medical sales representatives and his job is
to inspire the sales person to the work to achieve the sales target and
therefore it is a managerial post. The employee had remained absent from
duty, the absence was unauthorised and the allegations that he sustained
fracture was denied. With regard to the transfer to Gauhati as Uro
Executive, it was stated that such order was passed as per exigency of
business of the company and the contention that he had been downgraded
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was denied. Further it was stated that in-spite of time having been extended
to join Gauhati, the workmen failed to obey the orders of the management
which amounts to insubordination. Therefore, the management prayed for
dismissal of the claim petition.
6. The workmen filed a reply statement by placing reliance on the
Industrial Disputes (West Bengal Amendment Act, 1986) (West Bengal Act
33 of 1986) by which in Section 2 of the Principal Act in clause (s) after the
words "or supervisory work" the words "or any work for the promotion of
sales" was inserted. Therefore, it was contended that the nature of duties
discharged by him will clearly show that he is a workman. Further it was
reiterated that he only implements the company's policies, he has no
authority to apprise the medical sales representatives, he has no authority
to sanction leave or approve the expenses, or issue charge sheet or show
cause notice. Further the management did not pay one month's salary. The
employee examined himself as the PW1 and he was cross examined by the
management and on the side of the management, the personal manager was
examined asOPW1 who was also cross examined. The Labour Court on
going through the oral and documentary evidence held that the nature of
duties discharged by the employee was essentially involving sales promotion
and therefore would fall within the definition of Section 2(s) of the Act. With
regard to the jurisdiction of the Labour Court, it was held that it had
jurisdiction to adjudicate the dispute. With regard to the back wages, the
Labour Court held that the workman has not pleaded that he was without
any employment after the termination of his services and that the initial
burden is on him to show that he was not gainfully employed. After making
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such an observation, the Labour Court pointed out that the workman had
been employed in the management for more than 12 years and considering
the facts that he was a permanent employee and the management had
downgraded his post with lesser wages, the Labour Court held that award of
50% back wages will meet the ends of justice. Accordingly, the Labour Court
held that the workman is entitled to reinstatement in service with 50% back
wages with effect from 04.07.2005 till the actual reinstatement in service.
7. The learned Single Bench had held that the management did not
produce any evidence to show that he was working as a manager and that
he was not a person who is entitled to sanction leave and but the power only
to recommend leave and to recommend expenses claimed and he was not
the final authority discharging managerial functions. Further the learned
Single Bench held that there has been violation of Section 25F of the Act
and therefore the order of termination was vitiated. Further the learned
Single Bench held that since the cause of action arose wholly in Calcutta,
the Labour Court had jurisdiction to adjudicate the dispute. With regard to
the award of 50% back wages, the learned Single Bench held that the
workmen did not produce any evidence that he was not gainfully employed
after termination from service and in the absence of any evidence, the
workman is not entitled to any back wages.
8. Mr. Majumdar learned advocate appearing for the management
submitted that the learned Single Bench applied the wrong test by holding
that the testimony of the workmen who was examined as PW1 was not
challenged in the cross examination and applying such a negative test was
incorrect. Further the court misconstrued the appraisal forms of the medical
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sales representatives. Further the learned Single Bench laid much emphasis
on the deposition of OPW1 wherein he had referred to the applicant as the
workman without appreciating with such expression was obviously for the
purpose of identifying the case and did not amount to admission of the
status of the applicant. Further it was contended that the learned Single
Bench wrongly shifted the onus of proof as regards the status of the
workman and erroneously held that it is for the management to show that
he was attached to an office with supervisory and managerial duties.
Further merely because the provisions of workman compensation act were
made applicable, it will not make the applicant a workman as the definition
of workman is different from the one given in the Industrial Disputes Act.
Further the learned Single Bench failed to appreciate the documents which
were exhibited which clearly showed that he had discharged the duties and
functions of managerial in nature. Further the learned Single Bench failed to
consider that the workman cannot approve the expenses of medical
representatives cannot make the appraisal of medical representatives and
cannot recommend leave of medical representatives. Thus, the learned
Single Bench ought to have appreciated the totality of the evidence on record
in a proper perspective and having not done so the conclusion arrived is
perverse. The learned advocate placed reliance on the decision of the Hon'ble
Supreme Court in Mukesh K Tripathi Versus Senior Divisional Manager,
LIC and Others 1 for the proposition that a workman within the meaning of
Section 2(s) of the Act must not only establish that he is not covered by the
provisions of the apprentice Act but must further establish that he is
(2004) 8 SCC 387
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employed in the establishment for the purpose of doing any work
contemplated in the definition. Reliance was placed on the decision of the
Hon'ble Supreme Court in Sonepat Cooperative Sugar Mills Limited
Versus Ajit Singh 2 for the proposition that the job of the employee
concerned must fall within one or other category as contained in Section 2(s)
of the Act and the issue had to be decided based on the evidence placed by
the management before the Labour Court. With regard to the effect of not
cross examining PW1 on certain issues, reliance was placed on the decision
of the Hon'ble Division Bench of this Court in A.E.G. Carapiet Versus A.Y.
Derderian 3 and referred to paragraph 4 of the said decision. With regard to
the proposition that payment of back wages is discretionary reliance was
placed on the decision of the Hon'ble Supreme Court in U.P. State
Brassware Corporation Limited and Another Versus Uday Narain
Pandey 4. With the above submission, learned advocate prayed for allowing
the appeal and setting aside the award passed by the Labour Court in its
entirety.
9. Mr. Bose learned advocate appearing for the workman contended that
the Labour Court had carefully considered the oral and documentary
evidence placed before it and rightly concluded that the workman was not
discharging any managerial or administrative work and he was engaged in
sales promotion and would be covered within the definition of workman as
amended by the West Bengal Amendment Act. It is further submitted that
the Labour Court had jurisdiction to adjudicate the dispute as entire cause
(2005) 3 SCC 232
(1960) SCC Online Calcutta Page 44 (DB)
(2006) 1 SCC 479
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of action arose in Calcutta as held by the Labour Court and affirmed by the
learned writ court. It is further submitted that the order of termination is
vitiated on account of violation of Section 25F of the Act. It is further
submitted that the allegation of in subordination made by the management
is not tenable as the workman soon after receiving the order of transfer by
re-designating his post as Uro Executive submitted an appeal dated
25.05.2005 for re consideration of the decision transferring and re-
designating him as Uro Executive. In the said appeal the workmen pointed
out that his re-designation as Uro Executive is a demotion and the same has
been done without assigning any reasons whatsoever and such demotion
has resulted in reduction of his pay package. Apart from that, the personal
difficulties faced by the workmen were also mentioned in the said appeal.
Subsequently after receiving the letter of the management dated 2nd June,
2005, the workman submitted another representation on 06.06.2005
praying that the order of transfer and re-designation may be withdrawn and
that he has no intention to abandon his job as all along he has been star
performer as the District Manager and would like to continue his
performance. By referring to the appeal petitions, Mr. Bose would contend
that it is not a case of in-subordination and it had been clearly stated that
he has no intention to abandon the job and requested the management for
re-consideration of the order of transfer and re-designation. Though the
appeal petitions were received by the management they were not acted upon
nor the workman was informed as to why the order of transfer and re-
designation cannot be withdrawn or modified. Therefore, it is submitted that
considering the evidence available on record, the Labour Court rightly
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directed re-instatement of the workmen but however restricted the back
wages to 50% which portion of the award the writ petitioner has not
challenged and however the learned Writ Court has set aside the same
without considering the factual position and more importantly that denial of
50% of back wages itself is a sufficient punishment for the workman and
denial of the entire back wages is harsh. Mr. Bose also placed reliance on
the decision in the case of Mukesh Tripathi and Sonepat Cooperative
Sugar Mills to support the contention that the Labour Court and the
learned Single Bench rightly held that the workman would squarely fall
within the definition of Section 2(s) of the Act. Reliance was also placed on
the decision of the Hon'ble Supreme Court in Hindustan Tin Works
Private Limited Versus Its Employees 5, National Insurance Company
Private Limited Versus Jugal Kishore and Others 6. With the above
submissions learned advocate prayed for sustaining the award passed by
the Labour Court.
10. The question as to whether an employee is a "workman" as defined
under Section 2(s) of the Act has to be determined with reference to his
principal nature of duties and functions. Such question has to be
determined with reference to the facts and circumstances of the case and
the materials on record. It is not possible to lay down any strait jacket
formula which can be determinative of the real nature of duties and
functions being performed by an employee in all cases. In any case, where
an employee is employed to do any type of work enumerated in the definition
(1979) 2 SCC 80
AIR 1988 SC 719
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of "workman", there is hardly any difficulty in treating him as a "workman"
under the appropriate classification. The designation of an employee is not
of much importance and what is important is the nature of duties performed
by him. The determinative factor is the main duties of the concerned
employee and not some work incidentally done. In other words, what is in
substance, the work which employee does or what is in substance, he is
employed to do. Thus, the Court must ascertain what are the primary and
basic duties of the employee concerned and if he is incidentally asked to do
some work, may not be necessarily in tune with basic duties, these
additional duties cannot change the character and status of the employee
concerned. In other words, the dominant purpose of employment must be
first taken in to consideration and the gloss of some additional duties must
be rejected while determining the status and character of an employee.
Therefore a distinction has to be made between the principal work of an
employee and the actual duties involved in doing the principal work. Thus,
in determining the status of the employee, his designation is not decisive,
but the nature of duties and functions assigned to such employee. The
question whether the employee is a workman or not, is not a pure question
of law, it is mixed question of facts and law. The Labour Court first has to
address itself to the various duties assigned to the employee and then come
to a conclusion of law as to whether, in the light of the duties assigned to
him the employee would be a workman or not. The findings on the issue can
be interfered with only if it is shown to be vitiated by error of law on the face
of the record, that is manifest error or obvious error or where any other
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ground warranting issue of a writ of certiorari, such as perversity, lack of
jurisdiction or violation of the principles of natural justice.
11. The Hon'ble Supreme Court in Burmah Shell Oil Storage and
Distribution Co. of India Ltd. Versus Burmah Shell Management Staff
Association7, while summing up the principles, held that a person who is
doing manual, clerical and technical work will come within definition of
"workman" if incidentally he does some supervisory work also. In
determining as to whether certain categories of employees would fall in the
definition of workman or not or in order to exclude a man from the definition
of industry, the employee has specifically to plead and prove the fact that
the employee concerned worked mainly and principally in supervisory
capacity or in managerial or administrative capacity and was drawing wages
exceeding Rs. 1600/-
12. Sub-Clause (iii) of Section 2(s) of the Act excludes the persons working
n "Managerial or administrative capacity" from the purview of the definition
of "Workman", even though they may satisfy other ingredients of the
definition. The Act does not define "Managerial or Administrative capacity"
and they are to be interpreted in their ordinary sense. The mere designation
by which a person is designated is not conclusive of his status as a
Manager, the Labour Court is required to consider the nature of duties
assigned to the person concerned. In order to take an employee only of the
definition of a "workman", it is necessary to show that he is employed, in
fact and substance, mainly in a managerial or administrative capacity, due
emphasis being applied to the word "mainly".
(1970) 2 LLJ 590 (SC)
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13. In Management of Chem Crown (India) Ltd. Versus PO, Additional
Labour Court 8 it was held that an employee designated as Manager
(Research and development) and entrusted with the job of promoting and
projecting company's image etc. was held to be a "workman". In Dolphin
laboratories Ltd. Versus Labour Court9, it was held, Medical
Representatives who answer to the definition of "sales promotion employees"
within the meaning of Section 2(d) read with Section 6(2) of the Sales
Promotion Employees (Conditions of Services) Act, 1976, fall within the
definition of "Workman" under Section 2(s) of the ID Act except when they
are engaged in supervisory or managerial or administrative capacity. This
would mean that the employee should be empowered to take independent
decisions and authorised to act within the limits of his authority without
sanction of his superior officers.
14. Bearing the above legal principle in mind, we are required to consider
as to whether the employee in the case on hand would answer to the
definition of "workman" under Section 2(s) of the Act. The workman
examined himself as PW1. In the chief examination the workman had stated
about his duties and functions in the post of District Manager that he had to
visit different medical practitioners with his team for the purpose of sales
promotion. The team would visit different chemist shops for receiving orders
and they would visit the stockists for placing the orders and in turn
stockists cater the orders to the chemists. It has been stated that he had no
authority to control his teammates; he had no authority to take action
(2000) 2 LLJ 410 (Mad)
(2001) 2 LLJ 559 (Raj.) (DB)
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against any absentee teammate; he is not empowered to participate in
company's decision making policy; he is not empowered to sanction leave of
his teammates and that he performed the work in the territory of Andaman
and Nicobar Island every alternate month and he has assigned duties singly
for sales promotion in the territory of Andaman and Nicobar and in the
company this type of duties are assigned to sales representatives as well as
District Managers. The workman has also spoken about sustaining a
fracture of his ankle on 26.02.2005, as a result of which he could not join
duty for 58 days and on 25.04.2005 he submitted the medical papers and
resumed duties and though he was allowed to join, he was informed that his
services were transferred as URO Executive at Gauhati , North-East Region
and against this transfer/ re-designation order he preferred an appeal by
letter dated 25.05.2005 and followed by another appeal dated 06.06.2005
which were all delivered to the appropriate officer of the management.
Further, PW1 has stated that for the purpose of sales promotion, he had to
undergo field work and scope of duty and the nature of duties to be
discharged by him is not mentioned in his appointment letter. Further, he
had stated that managerial duties are assigned from the designation of the
Regional Manager and that he had no authority to initiate any disciplinary
action against any team member and only the Regional Manager is
empowered to take disciplinary action against any of that team members
and the job performance is also assessed and supervised by the Regional
Manager. Further, he has stated on 4th July, 2005 his services were
terminated and the letter of termination did not assign any reason
whatsoever, the management did not pay any compensation for such
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sudden termination, no show-cause notice was issued nor any charge-sheet
was served on him prior to termination and the management did not pay his
terminal benefits. With regard to the jurisdictional aspect the workman
stated that he received the appointment letter from Calcutta office and
served at Calcutta office till his termination and a letter of termination was
received by him in Calcutta. PW1 further had stated about how the tour
programme is drawn and that the Regional Manager used to approve the
tour programme and after obtaining his approval their team worked jointly
to achieve the sales according to the tour programme. In the cross-
examination, no suggestion was put to PW1 with regard to his evidence
regarding his nature of duties and responsibilities discharged by him but
the cross-examination was only on the appraisal forms filled by him in
respect of the Medical Representatives. In the cross-examination with regard
to the leave applications of the Medical Representatives, the PW1 has stated
that he recommended such applications. On the side of the management the
Personal Manager was examined as OPW1. In the cross-examination, OPW1
has admitted that the entitlements and terminal dues of the workman has
not been given because he did not comply with Paragraph 2 of the
termination letter by which he was directed to hand over the company's
property to the Regional Manager, Gauhati. It is submitted by Mr. Bose that
question of handing over of any property does not arise as the workman did
not report in the Gauhati office. OPW1 has further admitted that the
management did not issue any charge-sheet against the workman before
issuing the termination letter. Further, he has stated that they did not
initiate or institute any disciplinary proceedings against the workman. The
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other aspects with regard to non production of document to show that the
District Manager supervises the job of Medical Sales Representatives, OPW1
has merely denied the suggestion by stating that it is "not a fact". Similar
such replies have been given in the cross-examination on certain other
aspects. Further, OPW1 has admitted that the company did not produce any
documentary evidence to show that the workman had taken any disciplinary
action during his service tenure against a co-employee. Further, he has
admitted that no document was filed by the company to show that the
workman has power to dismiss an employee. In the further cross-
examination OPW1 had stated that the next promotion post after medical
service representative is District Manager. From the above, it is clear that
the statement given by PW1, with regard to the nature of the duties and
functions assigned to him in the post of District Manager remains
unassailed as there was no cross-examination on the said aspect. Mr.
Mazumder placed reliance on the decision in A.E.G. Carapiet. In the said
decision, it has been held that whenever the opponent has declined to avail
himself of the opportunity to put his essential and material case in cross-
examination, it must follow that he believed that testimony given could not
be disputed at all. This decision would lend support to our reasoning that
the management having not disputed or rebutted the evidence of PW1, it
should be taken that the said portion of evidence could not be disputed by
the management. The workman's specific case is that though his
designation was District Manager, that job profile was Sales Promotion
which would squarely fall within the amendment made to Section 2(s) of the
Act by way of West Bengal Amendment. The evidence of PW1 was clear and
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cogent which remained unassailed. Thus, the burden of proof was on the
management to show through oral or documentary evidence or both that the
work profile of a District Manager was managerial and administrative and
there was a world of difference between the nature of duties exercised by the
District Manager, nature of duties and functions discharged by a Medical
Representative was distinct and different from that of the duties and
functions discharged by a District Manager. The documents which were
pressed into service by the management are employee's performance
appraisal report, recommending leave and recommendation for payment of
bills. The evidence of PW1 is that he is not the authority who will be entitled
to appraise the performance of a Medical Service Representative and it is
only the Regional Manager. This evidence has remained unassailed. That
apart, on perusal of the said document exhibited as P4, we find that the
reviewing authorities are the Regional Manager and Sales Manager/ GMS
and the workman was only an appraiser. Thus the said document does not
show that the workman was the final authority insofar as the appraisal of
the performance of the service of the Medical Representatives. With regard to
the sanction of leave, it is seen from the sample of document marked as
Exhibit P5 that the workman has only recommended the leave and it is the
Regional office which has got power to sanction leave. Therefore, this
document also does not in any manner show that the primary duties of
workman were either administrative or managerial. Further, from the
fortnightly expense report, it is seen that there was no prior approval of the
expenses and the workman only recommended those expenses to be
approved. Thus, these documents exhibited on the side of the management
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does in no manner assist the case of the management to take the workman
outside the purview of the definition of "workman" under Section 2(s) more
particularly, as amended by the West Bengal Amendment Act. On perusal of
the award passed by the Labour Court, we find that the Labour Court has
analyzed evidence and held that the job profile clearly shows that the
employee was a workman and not discharging any managerial or
administrative work. The law on the subject which had been culled out
above shows that the test to be applied is what is the predominant nature of
the duties and functions of an employee which will be the determinative
factor as to whether he is a workman or not. Further, it has been held that
mere designation of a person is not conclusive of his status as a Manager
and the Labour Court has to come to a conclusion based on evidence
available before it, which in our view had been rightly done by the Labour
Court in the case on hand. Therefore, the learned Writ Court rightly
approved the award passed by the Labour Court on the said aspect. The
workman's case is that he could not report for duty for 58 days as he
sustained a fracture in his ankle. There is a vague denial made by the
management denying the very medical condition of the workman which is a
palpable lie as could be seen from various email communications wherein
the concerned officers of the management have wished him speedy recovery.
Therefore, the absence of 58 days could not have been treated as
unauthorized. That apart, after the completion of the medical leave, he
reported for duty on 25.04.2005 along with the requisite medical certificates
and submitted the requisite forms which were accepted and he was allowed
to join and thereafter only the order of transfer-cum- re-designation had
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been served on the workman. Therefore, the management cannot state that
the absence of the workman was unauthorized.
15. The next aspect is whether re-designation as Uro-Executive and
consequent transfer to Gauhati was justified and whether it tantamounts to
a demotion. It is specific case of the workman that the post of Uro-Executive
is the post which is below than the post of District Manager and that he was
downgraded in a most arbitrary manner and as a result of such down
gradation, it has affected him financially as the salary that he would be
receiving as Uro-Executive will be lesser than the salary payable to the post
of District Manager. This evidence remained unassailed. Nothing prevented
the management from producing record to show that the pay and allowance
for both the posts were identical. No such attempt was made by the
management which will go to show that the case as pleaded by the workmen
is correct and acceptable to the management. The performance of the
workmen has not been in doubt and this is evident from the letter dated
27.09.2002 by which the management stated that in appreciation of his
good performance he is promoted as District Manager with effect from
01.10.2002. Therefore, the manner in which the workmen discharged his
duties and functions is not disputed by the management and it has been
appreciated. Therefore, the transfer to Gauhati is punitive. The management
has not taken any specific stand as to why a star performer should be
shifted to Gauhati in a downgraded post. The bald averment of the
management in their written statement is that it was done as per the
exigency of business of the company. To say the least this is absolutely a
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vague averment and remained unsubstantiated which will lead us to the
conclusion that the transfer was punitive and with a view to victimize the
workman for reasons best known to the management. Having held that the
employee was a workman, it is the mandatory that the management adheres
to the procedure under Section 25F of the Act. It is not in dispute that the
management did not comply with the provisions of Section 25F of the Act. If
that is so, the order of termination is a nullity and the consequences would
be that the workman has to be re-instated with back wages. Thus, we are of
the clear view that the finding rendered by the Labour Court on the
correctness of the order of termination is proper and valid and rightly
upheld by the learned writ court.
16. The next aspect to be considered is whether the Labour Court was
justified in restricting the back wages to 50% and whether the learned writ
court was justified in totally denying the back wages. In Bhuvnesh Kumar
Dwivedi Versus Hindalco Industries Limited 10, the Hon'ble Supreme
Court referred to the decision in General Manager, Haryana Roadways
Versus Rudhan Singh 11 wherein it was held that there is no rule of thumb
that in every case where the Industrial Tribunal gives a finding, the
termination of service was in violation of the Section 25F of the Act entire
back wages should be awarded. A host of factors like the manner and
selection and appointment etc., the nature of appointment, any special
qualifications required for the job and similar matters should be weighed
and balanced in taking the decision regarding award of back wages. It was
(2004) 11 SC 85
(2005) 5 SCC 591
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further held that one of the important factors which has to be taken into
consideration, is the length of service which the workman had rendered with
the employer. If the workman has rendered a considerable period of service
and his services are wrongfully terminated, he may be awarded full or
partial back wages keeping in view the fact that at his age and the
qualification possessed by him he may not be in a position, to get another
employment. In Deepali Gundu Surwase Versus Kranti Junior
Adhyapak Mahavidyalaya (D.ED) and Others 12, it was held that merely
because the workman did not aver in his plaint of not being employed is not
seen sufficient since the burden of proof that the workmen is gainfully
employed post termination of his services is on the management and
accordingly directed grant of full back wages. In J.K. Synthetics Limited
Versus K.P. Agrawal and Another 13 in Kendriya Vidyalaya Sangathan
Versus S.C. Sharma 14, it was held by the Hon'ble Supreme Court that
when the question of determining the entitlement of person to back wages is
concerned the employee has to show that he was not gainfully employed.
The initial burden is on him. After he places materials in that regard, the
employee can bring on record materials to controvert the claim. In J.K.
Synthetics Limited Versus K.P. Agrawal and Another 15 it was held that
even if the court finds it necessary to award back wages, the question will be
whether back wages should be award fully or only partially would depends
upon the facts and circumstances of each case. Any income received by the
employee during the relevant period on account of an alternate employment
(2013) 10 SCC 324
(2007) 2 SCC 433
(2005) 2 SCC 363
(2007) 2 SCC 433
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or business is a relevant factor to be taken note of while awarding the back
wages. Further it has been held that there is no precise formula which can
be laid down as to under what circumstances, payment of entire back wages
should be allowed and it depends upon the facts and circumstances of each
case. However, award of back wages is not automatic and it should not be
granted mechanically only because on technical ground or otherwise the
order of termination was found to be illegal and while granting relief
application of mind on the part of the industrial court is imperative.
17. Bearing in mind the above legal principles, if we consider the
reasoning given by the tribunal, it is seen that the tribunal noticed that the
workman nowhere in his written statement has pleaded that he is out of
employment after the termination from services. Further the learned
tribunal has noted that nowhere in his evidence he has stated that he is
unemployed after termination. After having noted this undisputed factual
position, learned tribunal has referred to the decision of the Hon'ble
Supreme Court in U.P. State Brassware Corporation Limited and
Another Versus Uday Narain Pandey 16 wherein the Hon'ble Supreme
Court took note of the decision in Kendriya Vidyalaya Sangathan and
directed payment of 25% of back wages though in the said case the
employee was a daily wage earner. After noting the observations on the
Hon'ble Supreme Court the Labour Court examined the facts leading to the
termination of the workman. The Labour Court noted that the workman was
employed in the management for more than 12 years and 7 months and he
was a permanent employee of the company, it noted that the management
(2006) 108 FLR 201 (UP)
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had lowered down his post with lesser wages by way of re-designation and
transfer, he was asked to report in a lower category than the post held by
him. However, the Labour Court failed to take into consideration the two
appeal petitions given by the management requesting for re-consideration of
the re-designation cum transfer order. The management's stand is that the
after the receipt of the representation the time for joining at Gauhati was
extended. However, there is not a whisper from the management as to
whether the representation was accepted or did not merit consideration. The
specific averments made by the workman that he has been transferred by
downgrading his post remained uncontroverted. Ultimately, the Labour
Court awarded 50% back wages. The learned writ court taking note of the
factual position that the workman has not pleaded and proved that he was
out of employment denied back wages in its entirety. As mentioned earlier,
the learned writ court was exercising jurisdiction under Article 226 of the
Constitution of India and the scope of judicial review has now been well
settled by catena of decisions of the Hon'ble Supreme Court.
18. At this juncture, it may be beneficial to refer to the decision in Syed
Yakoob Versus K.S. Radhakrishnan and Others 17
The question about the' limits of the jurisdiction of High
Courts in issuing a writ of certiorari Under Article 226
has been frequently considered by this Court and the
true legal position in that behalf is no longer in doubt.
A writ of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or tribunals:
these are cases where orders are passed by inferior
courts or tribunals without jurisdiction, or is in excess
of it, or as a result of failure to exercise jurisdiction. A
writ can similarly be issued where in exercise of
AIR 1964 SC 47
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jurisdiction conferred on it, the court or tribunal acts
illegally or improperly, as for instance, it decides a
question without giving an opportunity to be heard to
the party affected by the order, or where the procedure
adopted in dealing with the dispute is opposed to
principles of natural justice. There is, however, no
doubt that the jurisdiction to issue a writ of certiorari is
a supervisory jurisdiction and the court exercising it is
not entitled to act as an appellate court. This limitation
necessarily means that findings of fact reached by the
inferior court or tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the
face of the record can be corrected by a writ, but not
an error of fact, however grave it may appear to be. In
regard to a finding of fact recorded by the tribunal, a
writ of certiorari can be issued if it is shown that in
recording the said finding, the tribunal had
erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence,
that would be regarded as an error of law which can
be corrected by a writ of certiorari. In dealing with this
category of cases, however, we must always bear in
mind that a finding of fact recorded by the tribunal
cannot be challenged in proceedings for a writ of
certiorari on the ground that the relevant and material
evidence adduced before the tribunal was insufficient
or inadequate to sustain the impugned finding. The
adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding
are within the exclusive jurisdiction of the tribunal, and
the said points cannot be agitated before a writ court.
It is within these limits that the jurisdiction conferred
on the High Courts Under Article 226 to issue a writ of
certiorari can be legitimately exercised.
19. In Sawarn Singh and Others Versus State of Punjab 18 the
Hon'ble Supreme Court reiterated the limitations of jurisdiction indicated
Sayed Yacoob in the following terms:
(1976) 2 SCC 868
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"13. In regard to a finding of fact recorded by an
inferior tribunal, a writ of certiorari can be issued only
if in recording such a finding, the tribunal has acted on
evidence which is legally inadmissible, or has refused
to admit admissible evidence, or if the finding is not
supported by any evidence at all, because in such
cases the error amounts to an error of law. The writ
jurisdiction extends only to cases where orders are
passed by inferior courts or tribunals in excess of their
jurisdiction or as a result of their refusal to exercise
jurisdiction vested in them or they act illegally or
improperly in the exercise of their jurisdiction causing
grave miscarriage of justice"
20. In Harjinder Singh Versus Punjab State Warehousing
Corporation 19, it was held that while exercising jurisdiction under Article
226 and/or 227 of the Constitution of India, the High Courts are duty
bound to keep in mind that the industrial disputes act and other similar
legislative instruments are social welfare legislations and the same are
required to be interpreted keeping in view the goal set out in the preamble of
the Constitution and provisions can be read in part 4 thereof in general and
Articles 38, 39(a)(b),43 and 43A in particular which mandate that the state
should secure the social order for the promotion of welfare of the people,
ensure equality between men and women and equitable distribution of
materials resources of the company to sub serve the common goal and also
ensure that the workers get their dues. The learned writ court in our view
has not pointed out as to how and under what manner there was an any
error of law which was apparent on the face of the award. Further the
learned writ court has not recorded any finding that the Labour Court had
erroneously refused to admit admissible and material evidence or had
(2010) 3 SCC 192
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erroneously admitted inadmissible evidence which has influenced the
impugned findings. Further, the learned writ court has not made any
observation that the finding of fact rendered by the Labour Court is based
on no evidence. By now it is well settled that adequacy and sufficiency of
evidence laid down on a point and the inference of the fact to be drawn from
the said findings are within the exclusive jurisdiction of the Labour Court
and the said points cannot be agitated before the learned writ court. The
Labour Court has assigned reasons as to why it was convinced to grant 50%
back wages to the workman. The workman was a permanent employee, had
worked with the management for more than 12 years and 7 months, he was
a star performer which was recognized by the management in writing and
there is no adverse material was produced by the management against the
workman. Thus, the Labour Court having held that the termination was
illegal and also taking note of the fact that the workman did not specifically
plead and prove that he had no employment after termination, restricted the
back wages to be 50%. In our view, the exercise of the jurisdiction by the
tribunal cannot be faulted not to be termed to be perverse. Therefore, the
learned writ court erred in setting aside that portion of the award.
21. In the result, FMA No. 1388 of 2014 is dismissed and FMA No. 2276
of 2016 is allowed and the award of Labour Court stands restored. The
management is directed to re-instate the workman in Kolkata with
continuity of service and pay 50% back wages from the date of termination
till the date of re-instatement after adjusting the amount paid as last drawn
wages under Section 17B of the Act during the pendency of the proceedings
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before this Court. This, order and direction shall be complied by the
management within a period of three weeks from the date of receipt of the
server copy of this order.
(T.S. SIVAGNANAM, J.)
I agree
(HIRANMAY BHATTACHARYYA, J.)
(P.A - PRAMITA/SACHIN)
