MANU/SC/0007/2015

Equivalent Citation: 2015I AD (S.C .) 603, 2015(2) ALJ 280, 2015(5)ALLMR(SC )434, 2015 (2) AWC 2061 (SC ), 2015(I)C LR560,
2015(2)ESC 226(SC ), [2015(144)FLR607], 2015LabIC 2245, 2015(1)LLN1(SC ), 2015(1)SC ALE77, (2015)4SC C 270, (2015)1SC C (LS)701, 2015 (1) SC J
207, 2015(2)SC T37(SC ), 2015(1)SLJ347(SC ), 2015(2)SLR86(SC ), (2015)1UPLBEC 1

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 28 of 2015 (Arising out of Special Leave Petition (C) No. 32616 of
2013)
Decided On: 06.01.2015
Appellants: Pepsico India Holding Pvt. Ltd.
Vs.
Respondent: Krishna Kant Pandey
Hon'ble Judges/Coram:
M.Y. Eqbal and S.K. Singh, JJ.
For Respondents/Defendant: Kavin Gulati, Sr. Adv., Avi Tandon and Rohit Sthalekar,
Advs. for T. Mahipal, Adv.
Case Note:
Labour and industrial - Termination - Workman - Determination thereof -
Section 2(z) of Uttar Pradesh Industrial Disputes Act, 1947 - Tribunal held
that challenge to termination was not maintainable as Respondent was not
workman under Section 2(z) of Act - However, High court set aside same -
Hence, present appeal - Whether High court rightly held that Respondent did
not come under definition of workman under Section 2(z) of Act - Held, order
of Tribunal would show that Respondent-workman accepted different works
assigned to him which were purely of supervisory and managerial nature -
Details of managerial/supervisory works assigned to Respondent had been
analyzed by Tribunal which finally came to conclusion that Respondent was
not workman within meaning of Section 2(z) of Act - High Court proceeded
initially on basis that Appellant had entered into service on technical post and
from there he was promoted to different posts - High Court committed grave
error in holding that although he was not covered under definition of
workman as defined under Section 2(z) of Act he would be classified as
workman - High Court further exceeded its jurisdiction in advising
Government to make amendment in Section 2(z) of Act and to exclude some
clauses - Order passed by High Court could not be sustained in law and liable
to be set aside - Appeal allowed. [paras 16 and 17]
Case Category:
LABOUR MATTERS - DISMISSAL
JUDGMENT
M.Y. Eqbal, J.
1. 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

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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. 13 th 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. 9 th October, 2003 to 17 th
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 8 th 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 reinstatement 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

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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 v. Ashalata S. Guram MANU/SC/0531/1986 : (1986) 4 SCC 447,Birla
Corpn. Ltd. v. Rajeshwar Mahato and Ors. MANU/SC/2393/2000 : (2001) 10 SCC
611 and S.K. Mani v. Carona Sahu Co. Limited and Ors. MANU/SC/0429/1994 :
(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 U.P. Electric Supply Co., Ltd. v. The
Workmen of S.N. Choudhary Contractors and Anr. MANU/SC/0224/1960 : (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 JharkhandMANU/SC/0941/2013 : (2014)
1 SCC 536, and Bhogpur Coop Sugar Mills Ltd. v. Harmesh Kumar
MANU/SC/8648/2006 : (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:

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 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 v. Mahesh Chander AIR-SC-1462 and Shri Verma Role Offer
Storage and Distribution Co. of India Ltd. v. Vermashel Management Staff
Association and Ors. MANU/SC/0373/1970 : (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 v.
Mahesh Chander and Vermashel Air Storage and Distribution Co. of India Ltd.,
v. Vermashel Management Staff Association (supra) that the work of the
Applicant was similar to fuelling 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.

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 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.
1 1 . 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".

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 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 v. 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 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

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 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.
1 4 . In the case of Birla Corpn. Ltd. v. Rajeshwar Mahato and Ors.
MANU/SC/2393/2000 : (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 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

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 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 v. I.O.B. Staff Canteen Workers' Union
and Anr. MANU/SC/0272/2000 : (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 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.
1 6 . 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.

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1 8 . 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.
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