ASSEMLY OF GOD HOSPITAL AND RESEARCH CENTRE Vs. 1ST INDUSTRIAL TRIBUNAL WEST BENGAL

LAWS(CAL)-2002-1-46

HIGH COURT OF CALCUTTA

Decided on January 09,2002

Assemly Of God Hospital And Research Centre Appellant

VERSUS

1St Industrial Tribunal West Bengal Respondents

JUDGEMENT

D.K. Seth, J. - (1.) Submission of the petitioner/employer: The award of the learned Industrial Tribunal passed in Case No. VII-166 of 1998 contained in annexure P-11 has since been challenged. Learned counsel for the petitioner-employer raises three questions. The first question was that the alleged workman was not a "workman", within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (1947 Act), in view of the nature of the work, particularly, the dominant part was that of a supervisor and that he was receiving salary exceeding the ceiling as contemplated in the said section. Therefore, the learned Tribunal had no jurisdiction to pass the award. The second question was that even on the merits the award is perverse. There were materials to show that the petitioner was a supervisor, particularly, the documentary evidence, which was sought to be by-passed by the learned Tribunal relying on oral evidence and, therefore, the finding that even on the merits the charges could not be proved, cannot be sustained. The third question was that in case it is found that the findings are sustainable even then no order of reinstatement could have been passed in view of the loss of confidence of the employer on the employee. Therefore, the order of reinstatement cannot be sustained. Learned counsel for the petitioner had elaborated his submissions and referred to certain decisions in support of the respective submissions to which reference would be made at the appropriate stage.
(2.) Submission of the respondent/workman: Mr. Saptangshu Basu, learned counsel for the workman, points out, relying on the decision recorded in the award, that there is no perversity. On the other hand, there is no material to bring home the charges. As such the findings cannot be interfered with. He, secondly, contended that the material that was produced before the learned Tribunal, does not show that the dominant nature of the work performed by the workman was that of a supervisor ; on the other hand, it is a work of a workman. One or two instances will not make the workman a supervisor. He had pointed out from various materials that the workman had no opportunity to take any decision, which would bind the management. The third contention was that until and unless it was shown before the learned Tribunal that there was a strained relationship, the question of consideration of payment of compensation in lieu of reinstatement would not arise. There was nothing before the learned Tribunal to contend that the relation was so strained that the direction for reinstatement would be unreasonable. This question cannot be raised at this stage for the first time before this court. He has also referred to and relied upon some decisions to which reference would be made at the appropriate stage. He had also sought to distinguish decisions cited by learned counsel for the petitioner. I have heard respective counsel at length.
(3.) Extent of the jurisdiction : When the award of the learned Tribunal is challenged in the writ jurisdiction, the jurisdiction that is exercised by the High Court is of revisional in nature. It does not sit on appeal over the decision of the learned Tribunal. It has to examine whether the learned Tribunal has acted within its jurisdiction or there is any infraction in the exercise of its jurisdiction. So far as the question of fact or findings of fact are concerned this court cannot interfere with the same until and unless it is shown that the same are perverse. Therefore, in the facts and circumstances of the present case, this court is required to examine the award and the materials placed before the learned Tribunal having regard to the constraint and the confinement within which the jurisdiction of this court can be exercised.;

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