RAJES KUMAR, J. - (1.) BY means of present writ petition, the petitioner has challenged the order/award dated 30.5.2002 (published in Gazette dated 21.11.2003), passed by the Presiding Officer, Industrial Tribunal, U.P, Agra, in Case No. 93/97.
(2.) THE brief facts of the case are as follows : - The petitioner is a Private Limited Company incorporated under the Indian Companies Act, 1956. The petitioner's Company is a manufacturer of Leather Tops for the Shoes. It is a Government recognized Export House mainly engaged in exporting the Leather Tops of Shoes. It's registered Office is located at 170 Kucha Chodhary Opposite State Bank Building, Chandani Chowk, Delhi and has a branch office at 164 P.M. Cariappa Road, Babuganj, Agra. In the petition, it is, stated that the company engaged several workers for the preparation of Leather Tops for the Shoes. These Shoe Tops are made on orders received from Foreign Countries. To supervise the manufacturing of these Shoes Topes, few supervisors are also engaged. The working condition and service conditions are governed by the Standing "Orders. These Standing Orders are duly certified by the Competent Authority. Amendments made from time to time are also incorporated. The respondent No. 3, was engaged by the petitioner's company on the post of Cutting Inspector on 1.2.1989. He continued to work till 16.11.1992, and thereafter, he expressed his desire to leave employment. Petitioner's Company had no objection and accepted the oral resignation and he ceased to work from 16.11.1992. The respondent No. 3, had accepted Rs. 6,723.85 as the amount due and issued a receipt for the same. A copy of Experience Certificate was issued to him. The respondent No. 3, again approached the petitioner and expressed his desire to work as Cutting Supervisors/Inspector. Petitioner's Company had no objection as such as per the procedure laid down in the Standing Orders, the respondent No. 3 had applied for job. An appointment letter was issued and he joined the job from 8.12.1992 as a Cutting Supervisor/Inspector. Copy of the appointment letter is Annexure-5 to the writ petition. The appointment letter clearly states the appointment of respondent No. 3, as a Cutting Supervisor on a consolidated salary of Rs. 1850/-. It further says that the service is governed by the Standing Orders of the Company as well as administrative orders enforced from time to time and the services may be terminated on one calendar months notice in writing being given by either or payment of one months salary in lieu of notice. After the appointment, respondent No. 3 was supervising the work of other Leather Cutting Mistri. The work of these Leather Cutting Mistry was to cut Leather as per pattern given to them. The work of the respondent No. 3 was to see whether all Mistries were working according to the pattern given to them and minimum wastage was being caused to the leather in the work. The patterns were prepared as per the specification of the shapes of the Shoes approved by the foreign Companies and this technical work was to be supervised by the respondent No. 3. The respondent No. 3 had to supervise that leather was to be cut according to the patterns approved with minimum wastage. It is time that some time the respondent No. 3 had also done the cutting of the leather along with other Cutting Mistry only to educate them so that there should be minimum wastage in the work. It was not his regular work. The respondent No. 3 is a Bachelor of Arts, degree with Economics, English Literate and Hindi and thereafter, he did his post graduate in Urdu language. Thus, he was an educated employee and was capable to read what he has signed. It is, stated that the respondent No. 3 on his own accord, desired to leave the job for better opportunity and he left the service on 15.3.1997. According to the petitioner, it was not the case of retrenchment and a case of mutual agreement for leaving the service to which, the employer had no objection. It is, further stated that the respondent No. 3 when could not get the job in any other establishment, he again approached the petitioner to get the job which has been refused. The respondent No. 3 was paid all his balance salary, retrenchment allowance as a good gesture. Although, the petitioner's Company was not obliged to pay the leave encashment amount but it was also paid. The total amount was calculated at Rs. 19,555.40 out of which a sum of Rs. 1,700/- advance due against the respondent No. 3 was deducted. The total amount of Rs. 17,855.40 was paid to the respondent No. 3, vide voucher dated 22.3.1997. All the stipulated details were given in the voucher on which respondent No. 3 put his signature after reaching. The voucher receipt is Annexure-7 to the writ petition. It may be mentioned here that the Cheque of Rs. 17855.40 was accepted and got encased. When the respondent No. 3, found that the Company was not interested to take, him back in the job, he filed a case before the Deputy Labour Commissioner, Agra which was referred to the Industrial Tribunal. The reference was made on the question whether the termination of service of Sri Nazim Iqbal son of Sri A.R. Khan, Cutting Mistry from 15.3.1997 by the employer was justified and legal and if no, then for what benefits, he is entitled. The Prescribed Authority, Industrial Tribunal, Agra vide impugned order/award held that verbal order of removal of respondent No. 3 on 15.3.1997 was illegal and he was directed to be reinstated in service. It was further directed that from 15.3.1997, till the date of retrenchment he may be paid complete wages. Heard Sri Avinash Swaroop learned Counsel for the petitioner, Sri Shyam Narain, learned Counsel for the respondent No. 3 and the learned Standing Counsel appearing on behalf of respondent Nos. 1 and 2. Learned Counsel for the petitioner submitted that the present is not the case of retrenchment but a voluntary desire to leave the service which is clearly established from the fact that he has signed the payment voucher and accepted the payment as a full and final settlement without any objection. The respondent No. 3, being a literate person was fully aware where he has put the signature and about its contents. Thus, it is wrong to say that the respondent No. 3 was retrenched. It is, further submitted that the respondent No. 3 was appointed as a Supervisor and thus, was not the workman within the definition of workman under Section 2(s) of the Act. He further submitted that the respondent No. 3 has continuously worked from 1.2.1989 to 15.11.1992 and had left the since on 16.11.1992 and was further employed on 8.12.1992: He submitted that it was the practice of the respondent No. 3 to leave the job to search a better employment and when he could not get, he again approached the Company. This time, the Company refused to give the employment to the respondent No. 3 and thus, the present dispute has been raised. He left the service on his own accord after receiving the entire dues as a full and final settlement. He submitted that the Tribunal has erred in holding that it is a case of retrenchment. In support of his contention, he relied upon various decisions. Learned Counsel for the respondent No. 3, Sri Shyam Narain vehement ally submitted that nomenclature of the respondent No. 3 as he was appointed, as a Supervisor is not sufficient. He submitted that for the purposes of definition of workmen under Section 2(s) of the Industrial Dispute Act, it has to be seen that what was the actual work done by the employee. He submitted that the work done by the employee was as Cutting Mistri and not of a Supervisor and thus, the case of the respondent No. 3 does not fall within the exclusion Clause of definition of workman. He further submitted that the Tribunal has recorded the finding after appreciating the evidences on record that the respondent No. 3 was the workmen and his service was retrenched without following the procedure provided under Section 6-N of the Act. Finding of the Tribunal is the finding of fact and may not be interfered by this Court. Learned Counsel for the respondent No. 3 relied upon various decisions.
(3.) HAVING heard learned Counsel for the parties and perused the impugned orders and documents relied upon. During the course of proceedings, Presiding Officer has recorded the statement of the respondent No. 3 and also the statement of Sri Ravindran, Director of the Company. Respondent No. 3 has also been cross-examined. In the written statement respondent No. 3, stated that he was appointed as Cutting Mistry from 1.2.1989 and was in regular employment and has been removed from the service without issuing any show cause notice and without any basis. In his statement he stated that in the factory he was doing the cutting work by his own hand. The work of the workmen was being looked after by Shri D.K. Singh, and Shri Raghu Vcnna and he has been shown as Supervisor only in the name sake. In the cross-examination dated 12.2.2001 on the query that every day how many pattern was being cut ? He stated that he was not cutting every day and in 10-15 days only 50-60 pattern was being cut while the single workmen cut it only in one day. In written statement, petitioner case was that the respondent No. 3 continuously worked from 1.2.1989 to 15.11.1992 and had left the services on 16.11.1992 and thereafter, further employed on 8.12.1992. He was further appointed as a Supervisor on a consolidated salary of Rs. 1,850/-. He was subsequently left the service on 15.3.1997, voluntarily after receiving the cheque of Rs. 7,855.40/- p. He has signed the voucher for the payment in which complete details of the payment was mentioned and it was also mentioned that it was towards full and final settlement. The voucher was duly signed by him and the cheque has also been got encashed. It was submitted that since his appointment was as Cutting Supervisor., therefore, he was not workman within the definition of Section 2(s) of the Act, in as much as it falls under the exclusion clause. Presiding Officer on a consideration of the entire facts held that merely his designation was shown as Cutting Supervisor is not sufficient to cover his case within the exclusion clause in as much as his nature of work has to be examined and according to the Presiding Officer his nature of work has not of supervisory but it was of workman as he was involved in cutting of the leather. Presiding Officer further held that he was removed from the service without any notice in violation of Section 6-N of the Act and the payment received was only due to his compulsion to survive his family. Presiding Officer accordingly, held that the removal of the respondent No. 3 from the service was not justified and he is liable to be reinstated. Presiding Officer has directed for the payment of entire back wages. Though the Presiding Officer has observed that burden lies upon the respondent No. 3 to prove mat he was not Supervisor and was workman, the Presiding Officer held that the petitioner was not able to produce the record showing the nature of the work done by the respondent No. 3 to establish the work done by him.;