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Judgment
M. Venugopal, J.—The Petitioner has filed the present Writ Petition seeking a relief of Writ of Certiorari in calling for the records of the First Respondent/Labour Court, Madurai relating to the award in I.D. No. 290 of 1996 dated 28.02.2007 passed by the First Respondent and to quash the same.
The Petitioner is a Partnership Firm registered with the Registrar of Firms as per Registration No. 348/81. The Petitioner/ Establishment has been engaged in the business of rendering Security services to the number of establishments including that of the Third Respondent/Company. The Petitioner is an independent establishment doing business of its own and supplying labour force on contract basis.
The Second Respondent (workman) has been appointed initially as a trainee for the purpose of Assistant Sergeant by an order, dated 20.04.1987, subject to the terms and conditions prescribed in the order of appointment. Later, he has been promoted as a SERGEANT by an order dated 13.09.1990. His last consolidated salary has been Rs. 2600/- per month besides House Rent Allowance of Rs. 260/- per month and conveyance allowance at Rs. 300/-. In all, he has been receiving a monthly salary of Rs. 3160 (Three Thousand One Hundred and Sixty Only). The Petitioner/Partnership firm appointed the Second Respondent and as per duties and responsibilities his work involves in (1) supervising of security arrangements, (2) allocation of duties to Security guards, (c) Sanctioning of leave to Security guards besides (4) assessing the progress of Trainees (Temporary/ A probationer) periodically and (5) submission of report to the unit Manager etc. He has been employed as a Supervisor and he has been receiving a monthly salary of more than Rs. 3000/- per month.
The Second Respondent while in employment with the Petitioner committed serious misconducts and acted in a manner unbecoming of supervisory rank besides indulging in acts of subversive of Discipline etc., He has been charge-sheeted for leaving the training ground in the middle of the course without permission. For his refusal to receive the Office Order, he has been charge sheeted.
The Petitioner directed the Second Respondent to submit his explanation in respect of the charges framed against him. However, the Second Respondent has not submitted his explanation. An Enquiry has been conducted and one v. Nagarajan has been appointed as an Enquiry Officer. The Second Respondent has taken part in the Enquiry. The Enquiry has been conducted in accordance with the principles of Natural Justice which is fair and proper.
The Enquiry Officer submitted his findings holding that the Second Respondent has been guilty of the charges framed against him. The Petitioner accepted the findings of the Enquiry Officer. A Show Cause notice has been issued to the Second Respondent by the Petitioner/Partnership concern calling upon him to state as to why he shall not be discharged from service by giving one month notice or one month salary in lieu of the same as per the terms of Appointment. The Second Respondent submitted his explanation on 12.01.1996 which has been considered by the Petitioner carefully. Since there is No. valid reason mentioned in the explanation, the Second Respondent has been dismissed from service by an order dated 24.01.1996 passed by the Petitioner, after providing one month wages in lieu of notice.
The Second Respondent raised an Industrial dispute that as per Section 2-A of the Industrial Dispute Act before the Conciliation officer at Madurai. The said dispute has been raised not only against the Petitioner/Firm but also against the Third Respondent/Company. The said dispute of non employment has been taken on file in I.D. No. 290 of 1996 on the file of the First Respondent/Labour Court, Madurai. The Second Respondent claimed the relief from the Petitioner and the Third Respondent.
According to the Petitioner/Firm, the Second Respondent in the claim statement has taken a wrong plea that he has been appointed only by the Third Respondent/Company and that the Petitioner is a sister concern of the Third Respondent. Moreover, he is only an employee of the Third Respondent and the termination by the Petitioner is unsustainable.
The Petitioner/Firm closed down its business of rendering the security services in the establishment on and from 1.01.96. The Second Respondent attained the age of superannuation on 19.08.2003. As such the First Respondent/Labour Court, Madurai should not have directed the reinstatement of the Second Respondent, while passing the impugned award dated 28.02.2007.
The Petitioner resisted the claim of the Second Respondent and has taken a plea that the Second Respondent is only his employee and further his nature of employment being supervisory in nature. Further, he has been drawing salary exceeding to Rs. 1600/- per month. He is not a workman as per Section 2(S) of the Industrial Disputes Act 1947. Added further, the Petitioner/Firm contended that the dismissal of the Second Respondent has been a valid, proper and legally tenable one. As such dismissal for the proved misconduct has been supported by satisfactory evidence in the Domestic Enquiry conducted thereto. Therefore, the Second Respondent is not entitled to any relief.
The First Respondent/Labour Court examined the Manager of the Petitioner''s establishment as a witness. The Second Respondent examined himself as a witness. On his side Ex.W1 to W27 have been marked as documentary evidence. On the side of Petitioner/Firm Ex.M1 to Ex.M44 have been marked as documentary evidence.
The First Respondent/Labour Court Madurai framed the following points for determination.
Whether the 2nd Respondent is a workman or not as contemplated u/s 2(S) of the Industrial Disputes Act?
Whether the 2nd Respondent was appointed by the 3rd Respondent or the Petitioner?
Whether the enquiry was in accordance with the principles of natural justice?
Whether the punishment was disproportionate? If so, Whether to quash the same? and
Any other relief to which the 2nd Respondent herein is entitled to?
The First Respondent answered the points framed for determination in favour of the Second Respondent (Petitioner in I.D. No. 290 of 1996) and directed the Petitioner/Partnership concern and the Third Respondent /Company to reinstate the Second Respondent with 50% of the Backwages on last drawn basis.
Being dissatisfied with the Award dated 28.02.2007 in I.D. No. 290 of 1996, the Petitioner/Firm has filed the present Writ Petition.
According to the Learned Counsel for the Petitioner/Firm, the award of the First Respondent, dated 28.02.2007 in I.D. No. 290 of 1996 is an arbitrary, illegal and improper one.
It is the contention of the Learned Counsel for the Petitioner that although the Second Respondent has been employed as Supervisor and that he has been the workman because of the contribution under Employees State Insurance Act, which aspect, has not been appreciated by the First Respondent/Labour Court in a proper perspective viz., that he has been employed as a supervisor and has been drawing a monthly salary of Rs. 1600/- and therefore he is not a workman.
Advancing his arguments, the Learned Counsel for the Petitioner submits that the First Respondent/Labour Court findings that the Petitioner has No. authority or competency to initiate the Disciplinary action against the Second Respondent is an erroneous and a perverse one.
Proceeding further, the Learned Counsel for the Petitioner contends that the Second Respondent participated in the Enquiry without any objection whatsoever and therefore it cannot be held that the Petitioner is not the Principal employer and therefore the enquiry conducted is a defective one in the eye of law.
Expatiating his submissions, it is the contention of the Learned Counsel for the Petitioner that the First Respondent/Labour Court after coming to the conclusion that the Domestic Enquiry is defective then, it is not within its jurisdiction to hold that the punishment of dismissal imposed upon the Second Respondent is a disproportionate one. Moreover, the Second Respondent has not let in any evidence to establish that he has not been gainfully employed during his non employment period and wrongfully directed the Petitioner/Partnership Firm and the Third Respondent/Company to pay wages to him on his reinstatement.
The Learned Counsel for the Petitioner projects a legal plea that the Second Respondent attained the age of Superannuation on 19.08.2003 and also the Petitioner closed down the business of offering security services on and from 1.01.96. Therefore, the First Respondent/Labour Court ought not to have directed the reinstatement of the Second Respondent/Workman.
Per contra, it is the contention of the Learned Counsel for the Second Respondent (Petitioner in I.D. No. 290 of 1996) that the First Respondent/Labour Court, Madurai, while passing the impugned award dated 28.02.2007 in I.D. No. 290 of 1996 has taken into account of the over all assessment of the facts and circumstances of the case in a cumulative fasion. Also it has considered the Oral and documentary evidence viz., the evidence of M.W.1, (the Second Respondent/ Petitioner in I.D. No. 290 of 1996) and Exs. W1 to W27 and Exs.M1 to M44 and has come to the right conclusion in allowing the I.D. No. 290 of 1996 partly.
Continuing further, the Learned Counsel for the Second Respondent/Workman submits that the direction issued by the First Respondent/Labour Court in ordering the reinstatement of the Second Respondent by the both Writ Petitioners in W.P. No. 9919 of 2007 and 1393 of 2008 and the direction given to the Writ Petitioners to pay 50% of the wages to the Second Respondent etc. are all well founded one, which are based on available material on record and the same need not be disturbed by this Court at this distance of time sitting in Writ Jurisdiction under Article 226 of constitution of India.
The First Respondent/Labour Court in regard to the first point in I.D. No. 290 of 1996 as to whether the Second Respondent is a Workman as per Section 2(S) of the Industrial Disputes Act has come to the resultant conclusion that the Second Respondent has been appointed originally under the Third Respondent/Company and later he has been remained as a salaried workman under the Writ Petitioner/ Partnership Firm.
As regards the Second Point as to Whether the Second Respondent/Petitioner has been appointed in services by the Third Respondent/ Company or by the Petitioner/Second Respondent Company, the First Respondent/Labour Court has come to a consequent conclusion that the Second Respondent (Petitioner in I.D. No. 290 of 1996) has received the basic salary of Rs. 1520/- in July 1995 as per Ex.W3 salary bills ranging from July 95 to September 95 and for June 1995, the Basic Pay for the Second Respondent/Petitioner is specified as per Rs. 1520/- and therefore the Second Respondent/Petitioner has been considered to be a ''Workman'' as per Industrial Disputes Act 1947. Furthermore, the First Respondent/Labour Court in its award in paragraph 12 also opined that although the Second Respondent/Petitioner has served as supervisor and even after it is taken into account that under the Second Respondent, many persons have worked, yet he is to be a workman and as per the salary list and also as per Ex.M44 dated 20.05.1994, the third Respondent/writ Petitioner in W.P. No. 3093 of 2008 has paid its equal contribution to the Employees State Insurance Corporation, he has been held to be a workman. In short, the First Respondent/Labour Court has conclusively held that the Second Respondent/Employee has received a Salary of less than Rs. 1600/- as basic wage and eventhough he is served as a Supervisor viz., as Assistant Sergeant, he has worked only as a workman and accordingly answered the point 1 and 2.
In regard to the third point as to whether the enquiry conducted against the Second Respondent has been conducted in accordance with the Principles of Natural Justice, the First Respondent/Labour Court has come to a conclusion that the Writ Petitioner has not conducted the enquiry as the principal person, provided employment to the Second Respondent and as such the Domestic Enquiry conducted is defective one and answered in favour of the Second Respondent/Petitioner.
With regard to point No. 4 as to whether the punishment of dismissal imposed upon the Second Respondent/Petitioner is an harsh one? if so, whether it is to be set aside?. the First Respondent/Labour Court has come to a conclusion that the Second Respondent''s dismissal from service is contrary to law. Further the Writ Petitioner has not been the Principal Employer of the Second Respondent/Petitioner. Hence, the punishment of Dismissal from service on the Petitioner is not a legally accepted one.
As regards Point No. 5, to what relief the Second Respondent is entitled to?, the First Respondent/Labour Court has held that the Second Respondent/Petitioner''s dismissal from service is contrary to Law. Therefore, it has directed the reinstatement of the Second Respondent/Workman.
It transpires from the counter filed by the Writ Petitioner in W.P.(MD) No. 9917 of 2007, (the Second Respondent in I.D. No. 290 of 1996) that it is a partnership concern and further that the Writ Petitioner in W.P.(MD) No. 1393 of 2008, (the First Respondent in I.D. No. 290 of 1996) is an establishment incorporated under Indian Companies Act. Furthermore, the Second Respondent/Petitioner has been employed as a SERGEANT by the Writ Petitioner/Second Respondent and the inclusion of the Writ Petitioner in W.P. No. 1393 of 1998 as one of the parties in proceedings in I.D. No. 290 of 1996 is a misjoinder of parties.
The core contention advanced on behalf of the Petitioner/Second Respondent in I.D. No. 290 of 1996 (Partnership concern) is that the Second Respondent(Petitioner in I.D. No. 290 of 1996) has been employed in its concern as ''Incharge'' of a circle and responsible in respect of other duties assigned to him time to time, for overall supervision of Security arrangements of all the posts within circle, allocation of duties for Security Guards, conducting training programmes for new recruits, attending to Security based reports of the units concerned under his charge, and also preparation of various monthly statements and submission of Management Information Reports as and when required. That apart, he is responsible for appraising the progress of the Trainees, temporary and probationary Security people and submission of reports to the Management. In short he has control over the subordinates. He has been drawing a salary of Rs. 3160/- per month.
The substance of the contention of the Writ Petitioner(Partnership Firm) is that the Second Respondent(Petitioner in I.D. No. 290 of 1996) has been employed mainly in a Supervisory Managerial / Administrative capacity and therefore he is not a ''workman'' u/s 2(S) of the Industrial Disputes Act. Consequently, since the Second Respondent/Petitioner is not a ''Workman'' within the ambit of Section 2(S) of the Industrial Disputes Act 1947, the I.D. No. 290 of 1996 filed by him on the file of the First Respondent is per se not maintainable in Law.
Also, the Writ Petitioner/Second Respondent has pleaded in his counter to the fact that it is a distinct concern from that of the Writ Petitioner in W.P. No. 1393 of 2008 and both the Writ Petitioners before this Court are a separate and independent entities one being a partnership concern and other being a Company registered under Indian Companies Act. The memo dated 01.07.1995 has been issued to the Second Respondent setting out in detail the areas for which he is responsible. As a matter of fact, he has been paid a conveyance allowance for his supervisory work of the Security Guards under his control in as much as he is the SERGEANT, who has been deputed by the Writ Petitioner (the Second Respondent in I.D. No. 290 of 1996). The Second Respondent/Petitioner is not entitled to claim any payment of subsistence allowance since he is not an ''Employee'' under the Tamil Nadu Payment of Subsistence Allowance Act 1981, because of the simple fact that he is a supervisory personnel functioning in Managerial /Administrative capacity.
In any event, the action of the Writ Petitioner/Second Respondent concern is a valid and justifiable one.
Ex.M4 dated 20.04.1987 is the communication issued by the partner of the Writ Petitioner(Second Respondent in I.D. No. 290 of 1996) addressed to the Second Respondent (Petitioner in I.D. No. 290 of 1996)intimating that the Second Respondent(Petitioner in I.D. No. 290 of 1996) has been taken as a trainee and Assistant Sergeant in Petitioner''s security wing under the following conditions with effect from 06.04.1987, the same runs as follows:
(1) You have been permitted to undergo training in our factory for a period of six months effective from 06.04.1987. At the expiry of which your period of training shall stand terminated. However, the period of training may be extended, if deemed necessary, at the discretion of the Management for such period as may be determined by the Management.
(2) You will be paid a stipend of Rs. 700/- per mensem during your training with us.
(3) It is specifically understood that the period of your training is liable to be terminated at any time by the Management without notice and/or without assigning any reasons.
(4) You shall undergo your training in our security wing at present/but you may be permitted to undergo training in other section/sections also, at the discretion of the Management.
(5) As you are only a trainee and not a workman of the factory, you are not entitled to any benefit or privilege available to the workmen of the factory. But it is upto to the Management to permit you to avail such of the benefit/privilege available to the workmen of the factory. But it is upto the Management to permit you to avail such of the benefit/privileges which they deem fit in your case and it is specifically understood that your having been permitted to avail any privilege or benefit, that are available to the workmen only,will not confer on you any claim for the same as of right or otherwise and the same will not change your status as trainee.
(6) It should be specifically understood that this letter cannot be construed as a Commitment or Guarantee that you would be absorbed in our Company''s services on satisfactory completion of your training.
(7) However, on successful completion of your training, if your are found suitable for the position, you will be taken on probation on the appropriate grade and scale of pay.
(8)Your aptitude and interest for the job and your performance and behaviour both inside and outside the factory will be closely watched. You are expected to follow the rules of discipline in the factory.
A perusal of Ex.M4 communication dated 20.04.1987 of the Writ Petitioner (in W.P. No. 9919 of 2007) indicates that the Second Respondent/Petitioner in I.D. No. 290 of 1996 has accepted the terms and conditions of the Ex.M4 order by affixing by affixing his signature thereto.
From Ex.M10 letter dated 01.04.1989 of the Writ Petitioner (Partnership concern), addressed to the Second Respondent(Petitioner in I.D. No. 290 of 1996) it is quite evident that the Second Respondent/Petitioner in I.D. No. 290 of 1996 has been appointed as Assistant sergeant in Petitioner''s security wing under the following terms and conditions with effect from 1st April 1999. The terms and conditions are extracted hereunder:
1) You will be paid a salary of Rs. 1040/- per month (Which is inclusive of allowances)
2) You are bound by the Rules and Regulations and Orders and discipline of the Company including those that may be enforced from time to time.
3) The Management in its sole discretion and without assigning any reasons whatsoever shall have the right to transfer you from one job to another or from one department to another or from one division to another of the Company/Companies under the same Management or Companies in whose running and administration the Management has interest.
4) You shall not engage yourself in any outside work over and above your legitimate work in the Company on duty days, on holidays and when you are on leave.
5) You shall at all times during the period of your service, whether or not during the normal stipulated working hours, be prepared and ready if required to carry out any reasonable and lawful orders and duties required of you by your superiors even if it involves working beyond and outside you normal hours of work 6) You will be retired from service on your completion of 35 years of age.
7) The cessation of service can be by either side by giving a months notice in writing to the other or in lieu of notice by payment of a month''s salary as damages by the employees.
8) If and when any information furnished by you in your application regarding your qualification, previous experience, employment, etc. is found to be incorrect or not true, you will be liable for dismissal and such other further action as is deemed fit.
9)You shall not apply for other job outside while in our service without the prior written permission from the Management.
10) We would like you to devote your full attention to the Company''s service and fervently hope that you will not divulge any information which will be detrimental to the interest of the Company.
You shall return the duplicate copy of this order duly signed in token of your having understood and accepted the terms of appointment.
Hereagain, in Ex.M10 Partner of the Petitioner''s concern has signed and the Second Respondent has read and understood the terms and conditions of his appointment order and in token of acceptance has fixed his signature.
The responsibility of the Second Respondent (Petitioner in I.D. No. 290 of 1996), as seen from Ex.M12 dated 01.07.1995 communication of the Petitioner''s concern speaks as follows:
Over all supervision of Security arrangements of all the posts within the circle.
Allocation of duties for Security Guards.
Sanctioning of Leave/Compansatory off/Shift change etc., for Security Guards.
Visiting posts on alternate days.
Maintainance of Fire fighting Equipments, upto date.
Night visit once in a week or ten days.
Conduct of pre-induction and in-service training programme for new recruits.
Maintenance of all records pertaining to the posts, including those of Security personnel (Attendance, Leave Cards, etc.) 9. Rotation of Guards within the circle.
Attending to security based reports of the Units concerned.
Submission of Salary statement and Monthly reports to SLSI office.
Submission of MIS reports as and when required.
Assessing the progress of Trainees/Temporary/Probationer Periodically and submission of report to the Unit Manager.
Attending the shift, in case of shortage of supervisory staff, if any
Any other tasks entrusted by the Unit Manger from time to time.
Ex.M12 communication dated 01.07.1995 of the Petitioner''s concern, has been signed by the Assistant Manager and in the said communication, the Second Respondent/Petitioner is described as Security Sergeant.
As seen from Ex.W3 payslip, the Second Respondent(Petitioner in I.D. No. 290 of 1996) it is candidly clear that the pay slip for July 95 has been issued by the Petitioner Concern (Second Respondent in I.D. No. 290 of 1996) and the Second Respondent/Petitioner''s Basic Wage is mentioned as Rs. 1520/- The H.R.A. is specified as Rs. 304/- and other allowances are mentioned as Rs. 3.51.20/-. In all, the gross salary of the Second Respondent/Petitioner for the month of July 95 is Rs. 2175/-. After deductions, the net salary amount paid is shown as Rs. 1952/-39. In the typed set of papers filed by the Writ Petitioner/Partnership Concern dated 22.11.2007, the Writ Petitioner (Second Respondent in I.D. No. 290 of 1996) in the pay slip cum cover for the month of August 95 in respect of the Second Respondent/Petitioner in I.D. No. 290 of 1996 it is mentioned as Rs. 3680/- being the basic pay, H.R.A is shown as Rs. 368/- and Rs. 110.60 has been mentioned as other allowances. Totally, the gross salary of the Second Respondent(Petitioner in I.D. No. 290 of 1996) is mentioned as Rs. 4158.60/- in the August 1995 payslip. The net amount paid after deduction comes to Rs. 3320/-40. Also, the September 1995 payslip in respect of the Second Respondent/Petitioner in I.D. No. 290 of 1996 issued by the Writ Petitioner/Second Respondent in I.D. No. 290 of 1996 shows that the Basic pay if Rs. 2860, H.R.A. is Rs. 260/- and other allowances are shown as Rs. 78.80/-. In all the Gross salary is shown as Rs. 3198.80/-. The net amount paid to the Second Respondent/Petitioner as per September 95 payslip is Rs. 2913/-41. The important document viz., Ex.W13 dated 24.01.96, order of discharge from service issued to the Second Respondent/Petitioner has been found by the Petitioner/Partnership Concern (Second Respondent in I.D. No. 290 of 1996) that it is not in the interest of the Company or desirable to retain him in service and accordingly discharged him from service with effect from 24.01.1996. Moreover the Second Respondent has been informed that he will be paid one month salary as notice pay which he can collect and also that he can have his accounts settled with the Company on any day during working hours on returning Company''s properties if any, in his position.
In Ex.M1 letter dated 22.05.1995 of one A. Arasappan ''Security Personnel'', addressed to the Security Officer of the Writ Petitioner''s concern, the Second Respondent Petitioner in I.D. No. 290 of 1996) has recommended the said application and forwarded to the Petitioner''s concern by affixing his signature on 22.05.1995. Also the Second Respondent/Petitioner has signed on 27.05.1995 in Ex.M1 and further the applicant Arasappan also signed on 27.05.1995.
In Ex.M2 dated 01.06.1994, the Second Respondent (Petitioner in I.D. No. 290 of 1996) has authorized overtime list of security guards for May 1994.
In Ex.M19, (Leave Records) the Second Respondent (Petitioner in I.D. No. 290 of 1996) has sanctioned leave to Security guards.
In the Confidential Report of one P.Muthukrishnan, Ex.M18, the Second Respondent (Petitioner in I.D. No. 290 of 1996) has written the same.
In Ex.M32 dated 21.08.1995, the letter of Selvapandi given to the Manager, the Second Respondent (Petitioner in I.D. No. 290 of 1996) has made an endorsement on 21.08.1995 stating that the applicant/guard is entitled to get a salary for 22 days etc., 47. In Ex.M34 letter of P.Venkatesan dated 22.11.1992 addressed to Security Officer of the Petitioner''s concern, the Second Respondent(Petitioner in I.D. No. 290 of 1996) has endorsed.
In Ex.M35 dated 23.11.92, the Second Respondent(Petitioner in I.D. No. 290 of 1996) has informed the Manager G. Chinnappan mentioning that the said P.Venkatesan Security Guard has deserted the post.
In Ex.M36 letter dated 02.08.1994, the Second Respondent(Petitioner in I.D. No. 290 of 1996) has informed the Assistant Manager of the Petitioner''s concern about the absence of S. Sankarasubramanian Security guard and further he has informed that the said individual''s act is an aggravated offence of absence over duty.
Ex.M41 is the Assessment Report of Mr. Sonai in respect of one P.Kannan.
The Learned Counsel for the Petitioner/Partnership Concern in support of the contention that the Second Respondent (Petitioner in I.D. No. 290 of 1996) is not a ''Workman'' as per Section 2(S) of the Industrial Disputes Act, 1947 relies on the decision G.S. Khairkar v. Camlin Limited 1997 LAB.I.C 3249 at page 3251 and 3252 wherein at Paragraph 7, it is observed and held hereunder:
The evidence on record shows that the Petitioner was appointed as Assistant Security Officer. The evidence on record also shows that one of the persons amongst the other Asstt. Security supervisors was designated as Security Supervisor. However, the Manager sought to explain this by saying it was a mistake and that was subsequently corrected. The Petitioner chose not to step into the witness box. Therefore all the evidence on record is the evidence of the witness of the Respondent-Company which includes the Administration Manger Shri S.P. Patil and another Assistant Security Supervisor Shri Subbarao Pandurang Patil. The nature of the work done by the Petitioner seems to be posting of the security guards, doing a round of the premises to find whether they are doing the job, filing in the attendance register of himself and Ors. being present at the place where loading of the goods is being done. It has also come on record that in respect of wage settlement the Assistant Security Supervisors are not included in the said settlement and the wage hike or increase is given to them by the Management which is differenct from the settlement arrived at in so far as the workers are concerned. Whether the Petitioner is doing any other work which is clerical in nature is not possible to be said from the material on record. In the absence of any evidence on the part of the Petitioner to displace the evidence led by the employer it cannot be said that the Industrial Court was wrong in reversing the findings of the Labour Court and arriving at a conclusion it has arrived at. Normally, the revisional Court cannot reappreciate the evidence. In the instant case, the Industrial Court has given reasons as to why it has reappreciated the evidence as a wrong test had been applied by the Labour Court. The approach of the Industrial Court cannot be said to the contrary to law. In view of the above, there is No. merit in this writ Petitioner which is accordingly rejected.
He seeks in aid of the decision John Joseph Khokar v. B.S. Bhadange and Ors. 1998 (1) L.L.N 161 at 164
whereby and wherein in Paragraph 7 it is held as follows:
u/s 2(S) an employee who is employed in supervisory capacity and draws wages exceeding Rs. 1600 per month is excluded from being workman. Admittedly, the Petitioner at the relevant time was drawing wages of Rs. 2500 per month obviously exceeding Rs. 1600 per month and, therefore, the crucial question is whether the Petitioner was engaged in supervisory work as mistry with the second Respondent.
Yet another decision Bennet and Company Limited v. Yadesh Kumar (2007 (1) LLN 535 at page 536, 537 and 538) is relied on the side of the Petitioner Concern wherein in Paragraph 11 and 12 it is laid down as follows:
Obviously, the approach of the Labour Court has been contrary to the law laid down by the Supreme Court in a series of judgments. In order to decide whether a person is a workman or not, the dominant and main functions are to be considered. A per can be called a supervisor if he is entrusted with the job of supervising other workmen who work under him. There is No. dispute that the Respondent was not only designated as night supervisor but he was having job of supervision over security guards, chowkidars and sweepers. He used to forward over time claims of the persons working under him after verifying the same. He used to recommend leave the persons working under him. He was in charge of the security of the property of Petitioner and used to supervise the work of security guards, etc. It is not necessary that a supervisor has to be a top cadre management person. A supervisor may occupy a lower position in the organisation chart of the company where in the descending order may be CMD, MD, General Managers, Deputy Managers, Managers, Administrative Officer and supervisor, etc. It has been laid down by the Supreme Court that in order to be a workman a person must be performing one of the functions as specified in Section 2(s) of the Act and it was not sufficient that he was not performing administrative or managerial function. Tribunal also went in wrong in law by observing that strict principles of rules of evidence are required to be followed by the Tribunal. While weighing the material placed before the Tribunal, a Tribunal is not to follow the strict rules of evidence and neither has to arrive at a conclusion by considering the proof beyond reasonable doubt. A Tribunal has to weigh the material placed before it by both sides. All materials which are logically probative for a prudent mind are liable to be considered. There is No. allergy to hearsay evidence provided it has reasonable nexus and credibility."
I come to the conclusion that in this case Respondent was not a workman, he was a supervisor drawing salary of Rs. 1977, i.e., more than the statutory limit so as to take him out of the definition of the workman. Tribunal went wrong in holding that Respondent was workman.
The Learned Counsel for the Petitioner invites attention of this Court to the decision of Hon''ble Supreme Court in Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, wherein, the Hon''ble Supreme Court has held that the initial burden is on the employee to establish that he has not been gainfully employed and thereafter an employer can bring on record materials to rebut the claim of employee and in the present case, the Employee has neither pleaded nor placed any material in that regard etc.,
On the side of the Petitioner heavy reliance is placed on the decision of Hon''ble Supreme Court in Bhagaband Colliery v. Their Workmen 1962 (5) FLR 347 wherein it is held as follows:
Where it is found that the Sirdars were performing supervisory duties with respect to the labour force supplied by them, and even though not expressly employed as such, they would be so treated, if it is proved that the company treated them as such. Consequently they would be workmen as contemplated by the definition of that term."
The commission payable to Sirdars being expressed in terms of money falls within the definition of wages.
However, the Learned Counsel for the Second Respondent (Petitioner in I.D. No. 290 of 1996) cites the decision of Hon''ble Supreme Court in Sharad Kumar Vs. Govt. of NCT of Delhi and Others, wherein it is held that the ''Question whether area sales Manager falls within the definition of "workman" or not has to be decided on the basis of different types of duties discharged by employee etc.''
He also cites on the decision in Kulwant Singh v. Reliance Petrochemicals, Ltd, and Anr. 2000 (3) L.L.N 887 at 888 wherein it is held as follows:
The ''substantial duty'' of the Petitioner was neither managerial nor administrative in nature in the sense in which those terms are understood in the Industrial law. Similarly there is absolutely No. material to show that the Petitioner was doing work of supervisory nature in the sense of supervising the work of other employees. In the light of the evidence and the legal position the finding of the Labour Court that the Petitioner is not a workman within the meaning of Section 2(S) of the Act is perverse and could not be supported. On the evidence available on record it has to be held that the Petitioner clearly falls within the definition of "workman" u/s 2(s) of the Act and that reference of the dispute u/s 10(1)(d) of the Act is valid in law.
In the decision Deccan Chronicle (represented by its Managing Partner T. Venkatram Reddy and G.Pedda Reddy and Ors. 2004 (3) L.L.N 916 it is held that the ''Contribution to Employees State Insurance in the name of workers cannot show Employer-Employee relationship and that the workman has failed to establish that the Petitioner''s Management appointed him as Security Guard etc.
In Bharat Electronics Ltd. and Industrial Tribunal, Karnataka, Bangalore and Anr. 1990 I LLN P. 1004 the Hon''ble Supreme Court has laid down as follows:
Though the definition of word "Wages" as given in Cl.(rr) of Section 2 of the Industrial Disputes Act, 1947, is comprehnsive enough to include such of the allowances as the workman is for the time being entitled, yet, despite such comprehension, the inclusive meaning is subject to a meaningful change if there is anything repugnant in the subject or context.
At this juncture, this Court pertinently points out that the decision in Mcleod and Co. Vs. Sixth Industrial Tribunal, West Bengal and Others, in Paragraph 34, it is held thus
In order to decide the point it is necessary to have a view of the entire definition of "workman" contained in Section 2(S) of the Industrial Disputes Act. Now by the general terms of that definition, "workman" means, inter alia, "any person employed in any industry to do supervisory or clerical work for hire or reward". This shows that because the work is supervisory, therefore it does not necessarily follow that an employee is not a workman. In other words a supervisor can be a workman under this definition. The Industrial Tribunal in this case apparently seems to proceed that the employee has got to be doing only clerical job in order to be a workman. That obviously is not, in my judgment, a true interpretation. A workman can be doing a supervisory work and still remain and be a workman within the definition provided by the Statute.
This Court worth recalls the following decisions to prevent an aberration of Justice and to promote Substantial Cause of Justice.
(a) In Kerala State Coir Corporation Ltd. v. Industrial Tribunal and Ors. 1995 (1) LU 951 it is held as follows:
The word employed in Section 2(s) of the Industrial disputes Act would postulate a master and servant relationship No. matter who supplied the person employed. The test of employment is whether the person employed is under the control and supervision of the employer. Mode of payment whether it was direct or through any other agency does not normally determine the status of the person as workmen. There is No. dispute that 11 persons were rendering security service and it was Kerala State Coir Corporation which alloted the work to the 11 persons and controlled them and decided the nature of work they had to render. The society''s role was only to supply the persons to do the work. In such a situation those persons would be workmen falling within the purview of Section 2(s) of the Industrial Disputes Act.
(b) In Somnath Tulshiram Galande Vs. Presiding Officer, IInd Labour Court and Others, it is held hereunder:
Most of the duties of the Appellant were supervisory and managerial. He had the power to take decisions. He was therefore held not a ''Workman'' within Section 2(s) of the Industrial Disputes Act, 1947
(C) In Pillai G.M. Vs. A.P. Lakhanikar, Judge, III Labour Court and Others, it is held that "To determine whether a person is workman, his main or substantial work will have to be seen. If principal job of employee is to oversee work of employees in lower rung of the hierarchy and has some independent discretion and judgment, he will fall within category of supervisors:
(d) In Rajasthan State Transport Corporation and Ors. v. Ramdhara Indoliya (2006 (3) L.L.N 862 at page 863) it is held that in Paragraph 5 as follows:
In the instant case also, the Respondent, who is also similarly placed as in the other case covered by the Industrial Disputes Act, has failed to approach the Industrial Court, but approached the civil Court, which on the facts and circumstances of the case had No. jurisdiction to entertain and try the suit. Therefore, this judgment Rajasthan State Road Transport Corporation 2005 (3) L.L.N. 1048] (vide supra), rendered by this Court squarely applies to the facts and circumstances of this case. In our view, the Respondent is not entitled to any payment by way of salary or other wages. He is also not entilted to any reinstatement or back-wages. However, if the Respondent has already been paid some amount, the same amount may be recovered from him. We make it clear that the Respondent shall not be entilted to continue in service any further and he shall not be entitled to any wages except to that already paid to him. The Respondent shall be discharged forthwith.
(e) In Grindwell Norton Ltd. Vs. Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court and Another, , it is held as follows:
A perusal of the record, in the instant case, discloses that the 2nd Respondent was inducted into service as an ordinary workman. The nature of promotions or the additional duties assigned to him at subsequent stages can be ascertained, only after the relevant evidence is adduced. In the ordinary course of things, the preliminary issues are those, which can be decided mostly by referring to the relevant provisions of law, without the necessity to lead or examine the evidence. Having regard to the fact that the disputed questions of fact viz., the nature of duties and amount of salary paid to the 2nd Respondent, can be resolved only after both the parties adduce evidence, this Court is of the view that the Labour Court can be required to dispose of the matter finally, but, addressing the issues separately.
(f) In Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, it is held as follows:
The principles as regards jurisdiction of civil Court in relation to dispute between employer and employee are as follows:
(1) Where the dispute arises from general law of contract i.e. where reliefs are claimed on the basis of the general law of contract, a suit filed in civil Court cannot be said to be hot maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946-which can be called ''sister enactments'' to Industrial Disputes Act- and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.
(g) In Tanojkumar B.Chatterji v. Solapur Municipal Corporation, Solapur 2004 (2) L.L.N 566 at page 567 and 568 it is held in Paragraph 5, 7 and 8 as follows:
Now, it is well settled in this branch of law, as in many others, that designations are not dispositive. The Court has to have due regard to the real nature of the duties and functions. In so far as a supervisor is concerned, he or she is one who can bind the employer by taking some kind of decision on his behalf. National Engineering Industries Ltd. v. Shri Kishan Bhageria 1988 (1) L.L.N.675. A supervisor is one who has authority over others to superintend the direct. A supervisor may possess the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them or to adjust their grievances or effectively to recommend such action. The work of a supervisor is distinguished from work which is of a clerical nature by the exercise of independent judgment. The decisions of the Supreme Court as well as of this Court have been considered in a judgment of Sri. Justice Rebello, speaking for this Court, in Union Carbide (India) Ltd. v. D. Samuel and Ors. 1999 (2) L.L.N 165. The Bombay Dyeing and Manufacturing Company Limited. v. R.A. Bidoo and Ors. 1989 (2) L.L.N.483, a Division Bench of this Court held that a supervisor is an overseer. A person can be said to be a supervisor if there are persons working under him over whose work he has to keep a watch. A supervisor is empowered to take corrective steps if a subordinate error in work assigned to him.
On these facts, the Labour Courts held that:
(i) The Petitioner was guiding and controlling the work of his subordinates:
(ii) The Petitioner performed important duties in the matter of sanctioning of leave and writing of Confidential Reports:
(iii) Having regard to the well-settled principles of law laid down on this aspect, the work which was being performed by the Petitioner was of a supervisory nature.
The finding which has been arrived at by the Labour Court and affirmed in revision by the Industrial Court is unexceptionable. The Petitioner was incharge of the Fire Brigade Section and admitted that he was the Head of that Section. He was, in a true sense, required to oversee the work of his subordinates. A duty list was produced on the record of the Industrial Court. Among the duties of the Petitioner are to perform delegently the duties of the Fire Brigade Department, to scrutinise reports received from the officers of the fire station, to supervise the administrative work of the Fire Department, hear grievances of employees, supervise over the attendance of employees, guide employees in the event of a fire, and to take a drill parade of all employees in the fire department. The duty list which was brought on the record is consistent with the material which has emerged in the course of cross-examination of the Petitioner and of the witness of the Respondent. The Petitioner was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
(h) In Ram Sahan Rai Vs. Sachiv Samanaya Prabandhak and Another, wherein it is held as follows:
The status of the employer District Cooperative bank is No. doubt of a Co-operative Society, registered under the U.P. Co-operative Societies Act, 1965 and is constituted under the U.P. Co-operative Land Development Bank Act, 1964. But an examination of different provisions of the rules, bye-laws and Regulations, unequivocally indicate that the State Government exercises all-pervasive control over the bank and its employees and the service conditions of such employees are governed by statutory rules, prescribing entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges and culminating in inflicting of appropriate punishment, after complying with the requirements of giving a show cause and an opportunity of hearing to the delinquent, Employer bank, held is a statutory body and is a State and in the matter of passing an order of dismissal of an employee, where it did not follow the mandatory provisions of the rules and Regulations and the order was passed in gross violation of principle of natural justice, then the third exception to the general principle that contract of personal service cannot ordinarily be specifically enforced, would apply and, therefore, suit filed by employee for declaration that the order of his removal from service was illegal, arbitrary, null and void and without jurisdiction and the same may be set aside and it may be declared that the employee is continuing in service and for all other consequential benefits, is maintainable before Civil Court.
It is the case of the Writ Petitioner (Second Respondent in I.D. No. 290 of 1996) that it is a Partnership concern which has been rendering security services to others. In this connection, this Court aptly points out that a Partnership Firm is not a separate Legal Entity and distinct from partners. The Firm/Concern is only a compendious description of individuals who compose the Firm.
That apart, this Court cites the following decisions to secure the ends of Justice.
(i) In J.D. Electronics, Hyderabad v. E.S.I. Corporation, Hyderabad and Ors. (2004 (2) L.L.J 653 at page 654), it is held hereunder:
Appellant-firm claimed it was a separate entity and had nothing to do with two other establishments. It challenged orders of Respondent-Corporation treating the said firms as run by the same management and having functional integrality among them. Its challenge failed before the E.I. Court and hence the present appeal. The High Court dismissed it. After referring to the tests to determine the said integrality, and decisions, the High Court concluded the other two units were meant to co-ordinate with the business of the Appellant and enable customers to have all services at one place. Further the Appellant did not produce all the records. There was in such circumstances, No. scope to reject the view taken in the impugned order, the High Court said.
(ii) In Jamuna Stores Vs. Regional Director, E.S.I. Corporation, in paragraph 7, it is laid down as follows:
Considering the submissions and also on a perusal of the record, the main ground as sought to be urged in the appeal is as to whether the Appellant and other concern M/S. Jamuna Silks is one and the same. Except the said plea, No. other plea is raised. Though, it has been the case of the Appellant that both the said units are different, except examining PW.1, there is No. other independent evidence brought on record in support of its case as to the separate identity. No. witness was examined from the other unit and any(sic.no) material is produced by the Appellant to show its separate entity. Whereas the two inspectors who have been examined as RWs 1 and 2 reiterated to the fact that there is commonness and interdependency in between the two units and therefore they have to be treated as one. There is also No. dispute as to the fact that some of the partners are common in both the concerns which belong to the same family. It is also the admitted case of PW. 1 that he is looking after the ESI of both the units. In view of the same, heavy burden lies on the Appellant herein to make a distinct identity by cogent evidence and material. Further, as rightly observed by the Tribunal, No. proof is filed to show that they are separate units. The Tribunal has taken into consideration the entire evidence from both the sides and also the checkered events which ultimately leading to demand made by the Corporation for the relevant period and rejected the case of the Appellant. In view of the same, I do not find any question of law much less a substantial question of law to interfere in exercise of powers u/s 82(2) of E.S.I. Act, 1948. Accordingly, the appeal is dismissed. No. order as to costs.
(iii) In John Joseph Khokar v. B.S.Bandange and Ors. 1997 (77) Indian Factories and Labour Reporter 900 it is held that ''The Petitioner supervisor drawing salary more than Rs. 1600/- per month is not a ''Workman'' u/s 2(S) of Industrial Disputes Act 1947 and further it is also observed that
Petitioner''s job is to oversee the work of the workmen under him. In other words, he supervises the work done by the other workmen and the duties and functions of the Petitioner is that of supervisor. In this view of the matter, the finding recorded by the Industrial Court that Petitioner is not workman cannot be faulted being based on proper appreciation of evidence on record and upon pplication of correct principles of law warranting No. interference by this Court in extraordinary jurisdiction.
(iv) In State of Haryana and Others Vs. Bikar Singh, the Hon''ble Supreme Court has held that ''the Jurisdiction of civil Court is not to cover disputes involving rights or obligations created by the Industrial Disputes Act 1947 and that the decree of Civil Court against dismissal of the conductor from service is nullity''
(v) In Vayitri Plantations Limited v. Babu Mathew and Ors. 1993 (67) Indian Factories and Labour Reports it is held that ".The Respondent was working in a managerial position and ex.gratia payment of Rs. 100/- made to him was not part of the original contract of employment and as such the same could not come within Section 2(S)(rr) of the Industrial Disputes Act and further the same was not to be mixed with ''wages'' and it had to be excluded in computing wages.
(vi) In P.Unnikrishnan v. The Chairman (Disciplinary Authority), Dhanalakshmi Bank Ltd. and Ors. 1997 LAB.I.C.3032 at page 3033 it is held as follows:
A contract of personal service cannot be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service, can be continued to be in service against the will and consent of the employer. This rule, however, is subject to three well-recognised expectations: (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India:(ii)where a worker is sought to be reinstated on being dismissed under the Industrial law: and (iii) where a statutory body acts in breach or violation of mandatory provisions of Statute. The Appellant in instant case has No. case that he belongs to either of the above three categories. He is neither a Government Servant nor an industrial employee nor an employee of statutory body in which event, he will not be entitled to a declaration that he continues in service notwithstanding his dismissal. Even if it is found that the termination is illegal, the remedy of the Appellant is to sue for damages for wrongful termination of service in contravention of the conditions of service.
Be that it may, in the instant case on hand, it is quite clear that the Second Respondent(Petitioner in I.D. No. 290 of 1996) has been taken in as a trainee Assistant SERGEANT in Petitioner''s partnership concern as per Ex.M4 letter dated 20.04.1987 (signed by the partner of the Petitioner). Furthermore, as per Ex.M10, communication dated 01.04.1989 of the Petitioner concern, the Second Respondent(Petitioner in I.D. No. 290 of 1996) has been appointed as Assistant SERGEANT in Petitioner''s security wing. A perusal of Ex.M12 letter dated 01.07.1995 of the Petitioner/Concern addressed to the Second Respondent(Petitioner in I.D. No. 290 of 1996) shows that as security sergeant, the Second Respondent (Petitioner in I.D. No. 290 of 1996) has been given the responsibility in respect of 1 to 15 areas mentioned therein. It transpires from Ex.M12 communication of the Petitioner/Concern addressed to the Second Respondent/Petitioner that he is only a Supervisor performing Manageral/Administrative role/Capacity and as such he is not a ''Workman'' within the meaning of Section (2) S of the Industrial Disputes Act 1947. In short, the Second Respondent(Petitioner in I.D. No. 290 of 1996) has the power of Supervisory control over his subordinates and he has been incharge of a circle and also has been drawing a salary of Rs. 3160/- per month. As a matter of fact, the Second Respondent(Petitioner in I.D. No. 290 of 1996) has been appointed as Assistant Sergeant in Petitioner''s concern as per Ex.M10 letter dated 1.4.1989 and he has to supervise the security personnel who have been deputed by the Petitioner''s concern to other establishments. He has received a conveyance allowance for supervising the work of Security guards under his control. The nature of duties as per Ex.M12 letter dated 01.07.95 of the Petitioner''s concern concern shows that the Second Respondent (Petitioner in I.D. No. 290 of 1996) is not a ''Workman''.
Added further, the Second Respondent (Petitioner in I.D. No. 290 of 1996) has been serving only under the Petitioner/concern. In as much as the Second Respondent (Petitioner in I.D. No. 290 of 1996) is not a ''Workman'' and since he has performed his services in a Supervisory, Managerial/Administrative capacity by means of Employment with the Petitioner''s concern, he is certainly not a Workman coming within the ambit of Section 2(S) of Industrial Disputes Act. Further, he has drawn a salary of Rs. 3160/- per month and has been responsible for appraising the progress of trainees Temporary and probationary security people and submission of reports to the Management. Indeed, the Second Respondent while in service, (prior to his discharge) has exercised the power of supervision and control over his subordinates. He has been responsible for overall supervisory of Security arrangements of all the posts within the circle, allocation of duties for security guards, sanctioning of leave etc for security guards. He has to submit reports of the security units concerned under his control and further he has to prepare the various monthly statements and to submit information reports to the Management as and when required.
It is to be noted that only when a person is ''Workman'' coming within the category of Section 2(S) of the Industrial Disputes Act, where wages is not exceeding Rs. 1600/- per month is entitled to maintain the Industrial Dispute before the competent Labour Court/Tribunal. Since the Second Respondent/Employee while in service with the Petitioner/concern has been employed mainly in Supervisory/Managerial/Administrative capacity drawing a salary of Rs. 3160/- per month in the considered view of the this Court, he is not a ''Workman'' within the meaning of Section 2(S) of the Industrial Disputes Act 1947 and as such I.D. No. 290 of 1996 filed by him on the file of First Respondent/Lower Court, Madurai is not maintainable.
Apart from the above, the Second Respondent(Petitioner in I.D. No. 290 of 1996) is not entitled to make a claim for payment of any subsistence allowance in as much as he is not an "Employee" under the Tamil Nadu Payment of Subsistence Allowance Act, 1981. Moreso, he has been a supervisory personal performing his role in a Managerial/Administrative capacity under the Petitioner/Concern. Therefore, the claim of the Second Respondent/Petitioner as regards payment of subsistence allowance to him is untenable in law.
As seen from the appointment order of the Second Respondent (Petitioner in I.D. No. 290 of 1996) M.10, dated 01.04.1989 issued by the Petitioner''s concern to the Second Respondent(Petitioner in I.D. No. 290 of 1996) it is candidly clear that the Second Respondent/Petitioner has been appointed as Assistant Sergeant in Petitioner''s security wing and therefore the employer of the Second Respondent(Petitioner in I.D. No. 290 of 1996) is only the Writ Petitioner/Partnership concern and not the Writ Petitioner in W.P. No. 1393 of 2008 (the Second Respondent in I.D. No. 290 of 1996). Unfortunately, these aspects of the matter including the one as to whether the Second Respondent(Petitioner in I.D. No. 290 of 1996) is a ''Workman'' coming within the purview of Section 2 (S) of the Industrial Disputes Act, 1947 have not been adverted to by the First Respondent/Labour Court in a judicious manner, which has resulted in serious miscarriage of justice in the considered opinion of this Court. In short, the Award of the First Respondent/Labour Court, Madurai in I.D. No. 290 of 1996 dated 28.02.2007 is not in conformity with the principles of Industrial law and the same is a perfunct one as opined by this Court.
For the foregoing reasons, this Court, without delving into the merits of the matter as to whether the Domestic Enquiry conducted by the Petitioner/Partnership Concern against the Second Respondent(Petitioner in I.D. No. 290 of 1996) is a valid one or the same is in accordance with the Principles of Natural Justice, sets aside the Award passed by the First Respondent/Labour Court in I.D. No. 290 of 1996 dated 28.02.2007 to prevent an aberration of justice. Resultantly, the Writ Petition filed by the Writ Petitioner/Partnership Firm is allowed in furtherance of Substantial cause of Justice.
In the result, the Writ Petition is allowed leaving the parties to bear their own costs. Consequently, the award dated 28.02.2007 passed by the First Respondent is set aside by this Court for the reasons assigned in this Writ Petition. The I.D. No. 290 of 1996 filed by the Second Respondent (Petitioner in I.D. No. 290 of 1996) on the file of the First Respondent/Labour Court, Madurai is held to be not maintainable in the eye of Law since the Second Respondent/Workman is not a workman as per Section 2(S) of the Industrial Disputes Act. Accordingly, I.D. No. 290 of 1996 is dismissed. Consequently, connected Miscellaneous Petition is closed.