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Judgment
Veerender Singh Siradhana, J.—The Industrial Tribunal, Jaipur (for short, ''Tribunal'') vide award dated 13th May, 1998, allowed the complaint of the respondent-workman with a direction to the petitioners to reinstate and accord back wages while declaring the termination of the employment of the respondent-workman as illegal and void. Aggrieved of the award dated 13th May, 1998, the petitioners have instituted the instant writ proceedings seeking an appropriate writ, order or direction to quash and set aside the impugned award, and further, to dismiss the complaint of the respondent-workman with costs.
Briefly, the skeletal material facts necessary for appreciation of the controversy raised needs to be first noticed. The Wires and Fabrics (SA) Limited, Jaipur, a registered Company, (hereinafter referred to as the ''employer'', for short), terminated the services of the respondent-workman vide order dated 6th July, 1989 (Annexure-6), who was appointed as Store Clerk on 2nd October, 1972. The termination of the employment of the respondent-workman was preceded by a domestic enquiry for non-compliance of the order of transfer dated 16th August, 1988, on promotion, to Kolkata. The respondent-workman was relieved on 20th August, 1988, but avoided compliance of the transfer order on account of personal problems and expressed his inability to join at the transferred place. Treating the non-compliance of the order of transfer, on promotion, to be insubordination; a charge sheet was issued to the respondent-workman followed by an inquiry leading to termination of the employment. The respondent-workman challenged the termination of employment by a complaint under Section 33-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act of 1947'', for short), before the Tribunal, for infraction of the provisions of Section 33(2)(b) of the Act of 1947.
The Tribunal taking into consideration the contents of the complaint, response filed on behalf of the employer, evidence adduced and upon hearing the representatives of the contesting parties, passed the impugned award of which the petitioner-employer is aggrieved of.
Mr. S.C. Goyal, the learned counsel appearing on behalf of the petitioner-employer, reiterating the pleaded facts and grounds of the writ application strenuously argued that the respondent-workman being Store Incharge was a member of the staff of the petitioners'' organization and was transferred to Kolkata on 16th August, 1998, on promotion. However, the respondent-workman expressed his inability to join at the transferred place, an act of insubordination, and therefore, a domestic inquiry was conducted serving a charge sheet on the respondent-workman leading to termination of his employment vide order dated 6th July, 1989 (Annexure-6).
According to the learned counsel, the Tribunal committed a gross error of law in holding the respondent-workman as ''workman'' as well as ''concerned workman'' as contemplated under Section 33(2)(b) of the Act of 1947.
Assailing the determination in holding the respondent-workman within the definition of ''workman'' as defined under Section 2(s) of the Act of 1947, the learned counsel submits that the findings arrived at by the Tribunal relying upon a document dated 8th February, 1983 (Annexure-12), is bad in the eye of law for the termination of the employment of the respondent-workman was made in the year 1989 and a cheque of Rs. 20,475/- was released to him, as is evident from the order of termination (Annexure-6). Further, nature of job of the respondent-workman was supervisory in nature, which finds support from the statements of the witnesses recorded during the inquiry. The inquiry was held to be fair and proper by the Tribunal. Moreover, the job performance of the respondent-workman did not relate to production of the factory rather it was store purchases, and therefore, the respondent-workman was a member of the staff and not a ''workman''. It is the nature of duties, which is the criteria to determine the job whether it was of supervision or not.
The finding arrived at by the Tribunal treating the respondent-workman as ''concerned workman'', has been assailed for its perversity since the dispute raised by the Union did not admit the respondent-workman as its member nor he was member of any other Union, as is evident from the cross-examination of the respondent-workman (Annexure-9). Moreover, not even an iota of evidence or any other material was placed on record before the Tribunal to indicate the nature of pending dispute and the persons affected by the dispute as well as the issues involved in the dispute pending. Be that as it may, the fact remains that the respondent-workman was neither a member of the Union that raised the dispute nor of any other Union. The fact of pending of a dispute with reference to bonus and that too, without ascertainment of the year to which the bonus dispute relates; the respondent-workman cannot be said to be a ''concerned workman''.
The Tribunal having held the inquiry against the respondent-workman as perfectly legal and valid, recorded a perverse finding while sustaining the challenge to the transfer order for in violation of Rule 19 of the Model Standing Orders, as the transfer was effected without the consent of the respondent-workman, and in the result, holding the transfer as invalid. The finding has also been assailed for its perversity since the respondent-workman, being a member of staff, was governed by the Service Rules for Staff, Officers and Managers. Rule 5 permitted transfer of an employee and the relevant rules were laid before the Tribunal. The service rules being contrary to the provisions of Model Standing Orders, and therefore, treating the transfer order as invalid, is a finding patently perverse for the finding is not legally tenable, is further urged.
Furthermore, there was no inquiry before the Tribunal on the issue whether the termination is justified or not. The termination was based on the misconduct and disobedience for the respondent-workman did not carry out the transfer order, and therefore, the Tribunal grossly erred in holding the transfer as invalid for violation of the Model Standing Orders.
Admittedly, the respondent-workman, just after two months of the termination of the employment from the petitioner organization got himself enrolled as an Advocate on 25th November, 1989, and practiced law in association with Shri U.N. Bhandari, Senior Advocate, as is evident from communication dated 22nd May, 1998, and continues till date; the facts are uncontroverted. The learned counsel would further submit that even if the termination is found to be illegal by the Tribunal, reinstatement and back wages are not automatic, but the Tribunal has ordered reinstatement with back wages for mere asking without any application of mind.
It is submitted that the scope of inquiry under Section 33-A of the Act of 1947 is very limited and even in the event of conclusion of infraction of Section 33(2)(b), the termination cannot be set aside unless there is an enquiry on the question of validity of enquiry held and termination order passed. Moreover, in the instant case at hand, the finding of the Tribunal is contrary in the face of the fact that domestic inquiry was held to be fair and proper. The transfer order was neither malafide nor it is a case of victimization. The respondent-workman has misused the provisions of Act of 1947, as a tool to amass wealth on technical grounds. To reinforce his submissions, the learned counsel placed reliance on the opinions in the case of Delhi Cloth and General Mills Co. Ltd. Vs. Shri Rameshwar Dyal and Another, AIR 1961 SC 689 : (1960) 2 LLJ 712 : (1961) 2 SCR 590 ; Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, AIR 1971 SC 922 : (1971) 22 FLR 11 : (1970) 2 LLJ 590 : (1970) 3 SCC 378 : (1971) 2 SCR 758 ; The Pali Electricity Co. Ltd. Vs. Industrial Tribunal and Another, AIR 1958 Raj 175 : (1959) 1 LLJ 282 ; Metropolitan Transport Corporation Vs. V. Venkatesan, AIR 2010 SC 206 : (2009) 122 FLR 939 : (2009) 11 JT 96 : (2009) 4 LLJ 305 : (2009) 11 SCALE 50 : (2009) 9 SCC 601 : (2009) 2 SCC(L&S) 719 : (2009) 12 SCR 583 : (2010) 3 SLJ 207 : (2009) 5 SLR 775 : (2009) 8 UJ 3975 ; Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, AIR 1978 SC 995 : (1978) 36 FLR 383 : (1978) LabIC 693 : (1978) 2 LLJ 1 : (1978) 2 SCC 144 : (1978) 3 SCR 370 , and Kimti Lal, Workman, Panipat Coop. Sugar Mills Ltd. Vs. State of Haryana and Others, (1994) 2 LLJ 1062 : (1994) 106 PLR 116 .
In response to the notice of the writ application, the respondent-workman has filed his counter affidavit raising preliminary objections and heavily relying upon the opinions of the various High Courts as well as the Hon''ble Supreme Court for the writ application is one of ''certiorari'' and the jurisdiction of the High Court is very limited and matter is not open to be examined as an appeal against the impugned award/order, with reference to question of sufficiency and adequacy of evidence in support of a reasoned finding of fact arrived at by the Industrial Tribunal.
Reiterating the stand in the complaint filed by the respondent-workman before the Tribunal under Section 33-A of the Act of 1947, and the findings arrived at by the Tribunal on the basis of appreciation of pleaded facts, evidence adduced, and the materials available on record, it is submitted that the transfer of the respondent-workman was in violation of the Model Standing Orders, as would be evident from a bare perusal of the text of Order 29, which contemplates either consent of the workman or if there is a specific provision to that effect, in the letter of appointment, and further subject to reasonable notice to the workman as well as reasonable joining time where the transfer involves moving from one State to another. Moreover, the findings arrived at by the Tribunal are based on proper appreciation of the evidence and calls for no interference by this Court while exercising the writ jurisdiction under Article 226 and 227 of the Constitution.
Learned Senior Counsel, Mr. U.N. Bhandari, appearing on behalf of the respondent-workman, asserted that the respondent-workman was not engaged in any work of purchase of materials on behalf of the Company at his level. The issue of wages @ Rs. 1,600/- per month is absolutely insignificant and is not at all relevant once it has been concluded that the nature of the duties was not supervisory or mandatory, which is first and foremost factor for determination of the issue. According to the learned counsel, the finding arrived at by the Tribunal to the effect that the respondent-workman is a ''concerned workman'', is perfectly legal and valid, in view of the fact that the bonus, which was a subject matter of dispute before the Tribunal, was a dispute with which the respondent-workman was very much concerned as he was accorded bonus at the rate at which other workmen were being paid, as would be evident from the materials available on record.
The Model Standing Orders govern the terms and conditions in view of the provisions of the Industrial Employment Standing Orders Act, 1946, the terms and conditions of the respondent-workman were governed by the Model Standing Orders as no certified standing orders of the establishment have been in existence. In support of his submissions, the learned counsel has placed reliance on the opinion of the Supreme Court in the case of Hari Vishnu Kamath v. Ahmad Ishaque and Ors.: AIR 1995 SC 233 ; Syed Yakoob Vs. K.S. Radhakrishnan and Others, AIR 1964 SC 477 : (1964) 5 SCR 64 ; Mohd. Yunus Vs. Mohd. Mustaqim and Others, AIR 1984 SC 38 : (1983) 2 SCALE 1013 : (1983) 4 SCC 566 : (1984) 1 SCR 211 : (1984) 16 UJ 132 ; Mani Nariman Daruwala alias Bharucha (Deceased) through Lrs. and Others Vs. Phiroz N. Bhatena and Others, AIR 1991 SC 1494(1) : AIR 1991 SC 1494 : (1991) 5 JT 357 : (1991) 1 SCALE 885 : (1991) 3 SCC 141 : (1991) 2 UJ 277 ; Khimji Vidhu Vs. Premier High School, AIR 2000 SC 3495 : (1999) 9 SCC 264 : (2000) AIRSCW 2333 ; Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Ltd., AIR 2014 SC 2258 : (2014) AIRSCW 3157 : (2014) 6 JT 190 : (2014) 3 LLJ 478 : (2014) 6 SCALE 119 ; Manorma Verma (Smt.) v. State of Bihar and Ors.: 1994 Supp (3) SCC 671 ; S.M. Saiyad Vs. Baroda Municipal Corporation Baroda, AIR 1984 SC 1829 : (1985) 50 FLR 81 : (1984) LabIC 1446 : (1984) 2 SCALE 312 : (1984) 1 SCC 378 Supp : (1984) SCC 378 Supp : (1985) 17 UJ 45 ; Shambhu Nath Goyal Vs. Bank of Baroda and Others, AIR 1984 SC 289 : (1983) 2 LLJ 415 : (1983) 2 SCALE 931 : (1983) 4 SCC 491 : (1984) 1 SCR 85 : (1983) 2 SLJ 607 , and Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, AIR 1984 SC 1805 : (1984) 49 FLR 424 : (1986) LabIC 374 : (1984) 2 LLJ 517 : (1984) 2 SCALE 428 : (1984) 4 SCC 635 : (1985) 1 SCR 866 : (1984) 2 SLJ 492 : (1985) 17 UJ 465 .
I have heard the learned counsel for the parties, and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
The Tribunal while adjudicating upon the issues as to (i) whether the respondent-workman is a ''workman''? And (ii) whether he is ''concerned workman'', under the provisions of Section 33(2)(b) of the Act of 1947, relied upon the document Annexure-12 dated 8th February, 1983. The Tribunal held that even if, the nature of duties of the respondent-workman is supervisory but owning to the fact that his salary was less than Rs. 1,600/- per month, he has been held to be a ''workman''. It is not in dispute that termination was effected vide order dated 6th July, 1989 (Annexure-6) and the respondent-workman was receiving a total salary of Rs. 1,967/- in the pay scale of Rs. 1000-2000, as would be evident from the communication dated 6th August, 1988 (Annexure-13), and was paid an amount of Rs. 20,475/-. The nature of the job was supervisory and the inquiry has been held to be fair and proper by the Tribunal. The Hon''ble Supreme Court in the case of Burmash Shell Oil Storage and Distribution Company of India Limited (supra) held that the Court should proceed on the assertion that every person is a ''workman'', but persons, who are employed in a managerial or administrative capacity, go out of within the definition of ''workman'', so also, persons who are employed in a supervisory capacity, go out of the definition, provided they either draw wages exceeding Rs. 500/- per mensem or exercise, by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature. The Hon''ble Supreme Court in the case aforesaid held, thus:--
"6. In order to decide whether the decision of the Tribunal with respect to the various categories is correct, it is necessary to consider the definition of "workman" in the Act as amended by Industrial Disputes Amendment Act 36 of 1956. That definition is reproduced below:--
"4. (s) "workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or
(ii) who is employed in the police service or as an officer or other employee of a prison or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, 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 nature.
For an employee in an industry to be workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature, he would not be a workman. Mr. Chari on behalf of the Association, however, put forward the argument that this definition is all comprehensive and contemplates that all persons employed in an industry must necessarily fall in one or the other of the four classes mentioned above and, consequently, the Court should proceed on the assumption that every person is a workman; but he may be taken out of the definition of ''workman'' under the four exceptions contained in the definition. The two exceptions with which we are primarily concerned are exceptions (iii) and (iv). Under exception (iii). even a workman, who is employed mainly in a managerial or administrative capacity, goes out of the definition of ''workman'' while under exception (iv), persons, who are employed in a supervisory capacity, go out of the definition, provided they either draw wages exceeding Rs. 500/- per mensem or exercise, by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature."
Thus, the finding arrived at by the Tribunal holding the respondent-workman as ''workman'' is perverse in view of the materials available on record.
As admitted by the respondent-workman, in his cross-examination (Annexure-5), he was not a member of the Union or any other Union. Furthermore, there was no material before the Tribunal to draw an inference with reference to the nature of pending dispute. Be that as it may, the alleged bonus dispute must have been with reference to a particular year. Whether the respondent-workman was connected with the dispute pending could not be determined for non-availability of evidence and material on record. The Division Bench of this Court in the case of The Pali Electricity Company Ltd. (supra), held that for the purpose of jurisdiction to entertain a complaint under Section 33-A, read with Section 33(1)(a), it must be shown that the matter which was brought before it on complaint is connected with the dispute which is pending before it. While dealing with somewhat similar controversy, the Division Bench in the case aforesaid, held thus:--
"5. Now Section 33(1)(a) applies only in regard to any matter connected with the dispute pending before the Court or Tribunal. If the matter is not connected with the dispute pending before the Court or Tribunal, other sub-sections of Section 33 apply. To give jurisdiction, therefore, to the Tribunal to entertain a complaint under Section 33A, read with Section 33(1)(a), it had to be shown in this case that the matter which was brought before it on complaint by Nathuram was connected with the dispute which was pending before it. This aspect of the matter has not been considered by the Tribunal at all in its judgment and the reason seems to be that the words ''''in regard to any matter connected with the dispute" appeared in Section 33(1)(a) for the first time by the amendment Act No. 36 of 1954 and perhaps that amendment was not brought to the notice of the Tribunal. It is to be found Only in the latest edition of the Act and that may explain why the Tribunal overlooked it. We have, therefore, to see whether the complaint of Nathuram in this case was with regard to a matter connected with a dispute which was pending before the Tribunal. Now the dispute which was pending before the Tribunal was this. "Whether the workmen of the Pali Electricity Co. Ltd., are entitled to get bonus for the years 1953-54 and 1954-55, and if so, what should be the quantity of such bonus?" The question is whether the deduction from the wages of Nathnram by the applicant can be said to be connected in any way with the dispute which was pending before the Tribunal. It was urged by learned counsel for Nathuram that bonus is connected with wages in the sense that the quantum of bonus may depend on the quantum of wages. Even if that is so, we are of opinion that there can be no connection between the bonus for the years 1953-54 and 1954-55 and the wages for the year 1956-57. All that could be said would be that wages for the years 1953-54 and 1954-55 might be connected in some way with the bonus for those years; but any dispute as to the wages for the year 1956-57 would, in our opinion, have no connection whatsoever with the dispute as to bonus for the years 1953-54 and 1954-55. Therefore, this complaint made by Nathuram cannot be said to be in regard to any matter connected with the dispute. It follows, therefore, that no such complaint as was made by Nathuram could be made under Section 33A of the Act before the Industrial Tribunal hearing the dispute, because there was in this case no contravention of Section 33(1)(a) on account of the absence of any connection between the complaint of Nathuram and the dispute before the Tribunal. We may add that we say nothing about the merits of the dispute between Nathurarn and the applicant and Nathuram may pursue his remedy, it any, before the proper authority."
Therefore, the finding arrived at by the Tribunal holding the respondent-workman as the ''concerned workman'' cannot be sustained in absence of any evidence and material in support thereof.
On the question of back wages, the Hon''ble Supreme Court in the case of Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, AIR 2005 SC 768 : (2005) 1 ESC 125 : (2005) 104 FLR 863 : (2005) 1 JT 336 : (2005) 2 LLJ 153 : (2005) 2 SCC 363 : (2005) SCC(L&S) 270 : (2005) 1 SCR 374 : (2005) 2 SLJ 261 , held that the employee has to show that he was not gainfully employed and the initial burden is on him. Dealing with somewhat controversy in the case of Metropolitan Transport Corporation (supra), the Hon''ble Supreme Court repelling the contention that the respondent-workman therein had no professional earnings as an advocate except conducting his own case, observed that reasonable deductions needs to be made while determining the back wages to which respondent may be entitled and did interfere with the determination made under Section 33-C(2) of the Act of 1947. The Tribunal failed to take into consideration the change in legal approach as compared to seventies and eighties wherein a direction for reinstatement with full back wages used to follow as a matter of course in the event dismissal or discharge was found invalid. There has been a clear shift in the approach as to grant of relief of reinstatement and back wages. Such a relief is not automatic and may be wholly inappropriate in a given fact situation. It is difficult to accept to the argument of the learned Senior Council that the respondent-workman had no professional earnings.
As contemplated by Section 33(1) of the Act of 1947, the employer cannot alter the conditions of service or punish the employee in respect of any misconduct connected with the dispute pending before the Authority "save with the express permission in writing of the authority before which the proceedings is pending." At this stage, it will be relevant to consider the text of Section 33(2), which reads thus:--
"33(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman:--
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
A glance of the phrase "not connected with the dispute", would reveal that the employer is permitted to alter the conditions of service of the workman or to punish him for misconduct "not connected with the dispute", subject to fulfillment of twin conditions i.e. (a) the workman has to be paid wages for one month, and (b) an application has to be made by the employee to the authority before which the proceeding is pending "for approval of the action taken by the employer". Section 33 is intended to afford a protection to the ''workman concerned'' during the course of an industrial dispute against harassment and victimization by the employer, and also restricts the management from acting in a manner, which may further exacerbate the already strained relation between the parties. Proviso to Section 33(2)(b) contemplates prohibition against the passing of an order of discharge or dismissal "unless the workman has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
Non-compliance to the mandate of proviso to Section 33(2)(b) has its answer under the provisions of Section 33-A, which provides for an "instant remedy" to an employee aggrieved by the contravention of Section 33 of the Act of 1947. Thus, mere infraction of the provisions of Section 33 of the Act of 1947 would not mean a direction for reinstatement as a consequence. It only permits the workman to avail of the remedy instantly without going for reference as contemplated under Section 10 of the Act of 1947. Section 31 prescribes the consequence that the employer may have to suffer for violation of the mandate of Section 33 of the Act of 1947.
In the case of Hari Vishnu Kamath (supra), the Hon''ble Supreme Court while considering the arguments with reference to the grounds for issue of ''certiorari'' held that for a writ of ''certiorari'' something more than mere error must be in existence and it may be one, which must be manifest on the face of record. However, what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.
A writ of ''certiorari'' would also be maintainable for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. So also, a writ of ''certiorari'' would lie, if a question is adjudicated upon without giving an opportunity of hearing to the affected party as has been held in the case of Syed Yakoob (supra).
In the case of Mohd. Yunus (supra), the Hon''ble Apex Court of the land held that a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal, and review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. The view has been reiterated in the case of Mani Nariman Daruwala Alias Bharucha (Deceased) through Lrs. and Ors. (supra), and Khimji Vidhu (supra) as well as in the case of Bhuvnesh Kumar Dwivedi (supra), relying upon the case of Syed Yakoob (supra).
The Hon''ble Apex Court of the land in the case of Manorma Verma (supra), interfered in the matter for not allowing back wages once it was concluded that the termination was illegal. However, there has been a complete change in the approach of the Hon''ble Supreme Court while considering the issue of back wages, as would be evident from the observations made in the case of Metropolitan Transport Corporation (supra). In the case of Shambhu Nath Goyal (supra), the Hon''ble Supreme Court dealt with the issue of grant of full back wages in the singular facts of that case where there was no material on record to show that the workman was gainfully employed anywhere and the management raised the grievance for the first time only in the High Court whereas in the instant case at hand, the respondent-workman admitted the fact that soon after his dismissal, he was enrolled as an advocate and was practicing law, therefore, there was initial burden on the respondent-workman, which he failed to discharge.
In the case of Rajinder Kumar Kindra (supra), the employee was considered not to be in gainful employment for he helped his father-in-law, who owned a coal-depot for the purpose of maintaining his family and it was in those singular facts, the Hon''ble Supreme Court held that the employee was not gainfully employed, and further, there was no evidence on record to show gainful employment of the employee in absence from service. The facts of the case at hand are altogether different and distinguishable from the case referred to and relied upon.
Be that as it may, in the instant case at hand, the respondent-workman cannot be treated to be a ''workman'' and/or ''concerned workman'', and therefore, the application under Section 33-A of the Act of 1947, was not competent. It is also evident from the finding recorded by the Tribunal that the respondent-workman disobeyed the transfer order. There was nothing malafide on the part of the employer in transferring the respondent-workman, is the findings arrived at by the Tribunal. The respondent-workman cannot be treated as ''workman'' as defined under Section 2(s) of the Act of 1947, in view of the evidence and materials available on record, having regard to the nature of the duties, which were supervisory and/or managerial in nature. The respondent-workman admitted the fact of his registration as an advocate with the Bar Council of Rajasthan, but did not bring on record the relevant material to sustain the claim for back wages as the initial burden was upon him. Thus, the award made along with the back wages is bad on that count as well. The Tribunal has concluded that even if, the nature of job of the respondent-workman was supervisory, but for his wages were less than Rs. 1,600/-, he has been held to be within the ambit of ''workman'' as defined under Section 2(s) of the Act of 1947. The domestic inquiry conducted by the employer was held to be fair and proper, and there was no malafide or bias in making the transfer order of the respondent-workman to Kolkata on promotion.
For the reasons and discussions herein above, the writ petition succeeds and is hereby allowed.
In the result, the impugned award passed by the Industrial Tribunal, Jaipur, dated 30th May, 1998, is hereby quashed and set aside, and the complaint filed under Section 33-A of the Act of 1947, is dismissed.
However, in the facts and circumstances of the case, there shall be no order as to costs.