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‘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  

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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.   

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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.  

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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.  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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:-

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“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.

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     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 :-

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“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  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  

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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  

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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  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  

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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  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  

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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  

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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)

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……………………………..J. (Shiva Kirti Singh)

New Delhi January 06, 2015

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