W.P.(C)/3246/2020 of THOMSON REUTERS INDIA PRIVATE LIMITED Vs LD PRESIDING OFFICER, LABOUR COURT & ANR

Signature Not Verified

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%Date of decision: 30.09.2021

+W.P. (C) 3246/2020 and CM No. 11319/2020

THOMSON REUTERS INDIA PRIVATE LIMITED .... PetitionerThrough:Mr.SandeepPrabhakar,Mr. Shankh Sengupta, Ms. VarunaBhanrale&Mr.SujoySur,Advocates.Through:Mr.SandeepPrabhakar,Mr. Shankh Sengupta, Ms. VarunaBhanrale&Mr.SujoySur,Advocates.

versus

LD. PRESIDING OFFICER, LABOURCOURT & ANR.

..... RespondentsThrough:Mr. Shlok Chandra, Ms. MansieJainandMr.ChandratanayChaube, Advocates for R-1.Mr. Naveen R. Nath, Mr. RahulJain and Mr. Abhimanyu Verma,Advocates for R-2.JainandMr.ChandratanayChaube, Advocates for R-1.Mr. Naveen R. Nath, Mr. RahulJain and Mr. Abhimanyu Verma,Advocates for R-2.

CORAM:HON'BLE MS. JUSTICE JYOTI SINGH

JYOTI SINGH, J.

1.Challenge in the present petition is laid by the Petitioner to anAward dated 20.02.2020 passed by the Learned Labour Court in LIR No.2899/2016 (old ID No. 542/2009), whereby relief of reinstatement withfull back wages has been granted to Respondent No.2/Workman w.e.f.30.11.2006, as per the last drawn salary, including the relief of continuityof service and other consequential benefits.

2.Brief necessitous facts as set out in the petition and necessary foradjudication of the present petition are that Petitioner is Private LimitedCompany incorporated and registered under the Companies Act, 1956,having its registered Office at Mumbai, Maharashtra. Formerly known asReuters India Private Limited, Petitioner is part of multi-nationalThomson Reuters Group of Companies and has several business verticals,of which one such vertical is news and media business, which alsoincludes photography division.

3.On 02.02.1990, Reuters Group’s Branch Office in India issued aletter to Respondent No.2, confirming his employment as Photographer /Dark Room Assistant at its New Delhi office. Subsequently in 1995,Reuters Group incorporated the Petitioner Company and the businesscarried out by the Indian Branch Office of Reuters Group was transferredto the Petitioner. Though Respondent No.2 was initially appointed byReuters Group’s Branch Office in India, however, on account of theinternal restructuring in the organization, he became an employee of thePetitioner Company.

4.Over the years, Respondent No.2 was promoted and the lastdesignation held by him was that of Deputy Chief Photographer (referredto as ‘Senior Photographer 4’ as per Global Role Framework of theThomson Reuters Group) and his annual income was enhanced to Rs.9,52,466/- per annum, effective from 01.04.2005. As per the internaldocument of Thomson Reuters India, referred to as ‘Role Beacon’, whichprovides roles and responsibilities for different positions, RespondentNo.2 was expected to perform supervisory functions in addition to certaintechnical functions. These functions included responsibilities and roles

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such as: (a) ability to deputize for local chief photographer; (b) proactivecoverage of stories and key roles in major assignments; (c) logisticplanning such as commissioning and staffing; (d) leading small team ofstaff photographers and stringers on big story; (e) ability to managestringer networks; (f) ability to play role on pictures desk towardsediting etc.; (g) being fully conversant with all aspects of digitalphotography, picture editing and processing systems and (h) taking onmentoring/tutoring roles, as needed.

5.In keeping with the reputation enjoyed by the Petitioner atinternational level, Respondent No.2 was expected to adhere to thequality standards of the Petitioner. However, his performance deterioratedconsiderably from April, 2006 onwards. Several emails were sent to himto improve his quality of work, including advisories and his work wasreviewed on weekly basis, by Officers at senior levels. In fact, by anemail dated 13.06.2006, Respondent No.2 acknowledged and acceptedthe weak points in his work and also elaborated on the actions undertakenby him to supervise and manage photography assignments of variousstringers across India.

6.By an email dated 23.06.2006, Mr. Paul Barker (Global Desk)flagged two issues with respect to the photographs sent by RespondentNo.2 to the Singapore Desk viz: (a) photographs were sent with little orno photoshop and contained bad colour balance and dust; and (b) resizingwas incorrectly done. This was followed by several emails pointing outthe defects in the pictures sent by Respondent No.2 and suggestingmeasures to correct and improve them. However, the deficiencies andshortcomings in the quality and standard of the photographs taken by

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Respondent No.2 showed no improvement, despite several noticespointing out deficiencies and/or regular counseling/advice by many seniorpersonnel, over several months.

7.Constrained by the inability of Respondent No.2 to improve hisperformance, Petitioner had no option but to terminate his employmentand accordingly two letters, both dated 28.11.2006 were issued,terminating the services of Respondent No.2 and simultaneously settlingall his dues.

8.Respondent No.2 sent legal notice to the Petitioner on 01.05.2007alleging that termination of his services was malafide and punitive and aresult of professional rivalry of Mr. Desmond Boylan, the then ChiefPhotographer. demand for reinstatement was also made. Petitionerresponded to the legal notice vide letter dated 22.06.2007, refuting theallegations and asserting that the termination was on account of poorquality of work of Respondent No.2.

9.In or around October, 2007, Respondent No.2 approached theConciliation Officer, but the disputes could not be resolved amicably.Accordingly, the Deputy Labour Commissioner referred the disputes foradjudication to the Labour Court vide order dated 22.10.2009, with thefollowing Terms of Reference:-

“Whether the services of the workman Sh. Kamal Kishore S/oSh. Kishore Chand Kamboj has been terminated illegallyand/or unjustifiably by the management; and if so, to what sumof money as monetary relief along with consequential benefitsin terms of existing laws and government notification issuedfrom time to time is he entitled and what directions arenecessary in this respect?”

10.By the impugned award dated 20.02.2020, the Learned LabourCourt answered the Reference in favour of Respondent No.2 and awardedthe relief of reinstatement with back wages and consequential benefits.The award was challenged by the Petitioner by way of the present petitionand vide order dated 01.06.2020, operation of the impugned award wasstayed by this Court to the extent it directed reinstatement and full backwages, subject to the Petitioner depositing sum of Rs. 50 Lacs, whichwas directed to be invested in an interest bearing Fixed Deposit Receiptwith Nationalized bank.

11.The expose of facts of the case as set out in the Statement of Claimfiled by Respondent No.2 before the Labour Court, succinctly put, are asfollows:-

(i)Respondent No.2 was employed with the Petitioner / Managementsince June, 1987 as Dark Room Assistant-cum-News Photographer, as aregular employee, duly appointed by South Asia Manager, Reuters. Hislast designation on promotion was Deputy Chief Photographer and lastdrawn wages were around Rs.1,08,000/- per month;

(ii)The nature of his duties were that of Press Photographer and hehad no managerial, administrative or supervisory powers. He rendereddedicated service to the Management for 19 and half years, without anycomplaints and had unblemished service record, till he was illegallyterminated on 28.11.2006;

(iii)The action of termination was malafide, actuated by professionalrivalry of his immediate superior, Mr. Desmond Boylan, from April, 2006when Mr. Boylan was appointed as Chief Photographer. On taking over,Mr. Boylan started accusing Respondent No.2 of under-performance,

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contrary to the outstanding and excellent track record of Respondent No.2as professional Photographer and the fact that he was well acclaimed inthe media circles in India and abroad, particularly within Reuters,worldwide. In fact, the Management, being satisfied with his excellentperformance, had accorded Certificate of Appreciation, on completionof 15 years of service, by Respondent No.2;

(iv)On 28.11.2006, letter was issued by the Management allegingthat the performance of Respondent No.2 had dropped to unacceptablelevels and the photographs taken by him could not be used forcommercial licensing, besides certain other alleged instances, pointing tonon-discharge of his responsibilities in better manner. On 28.11.2006,the Management served upon Respondent No.2, another letter terminatingthe services of Respondent No.2 w.e.f. 30.11.2006;

(v)Before the Labour Court, Respondent No.2 contended that: (a) hisservices were terminated with malafide intent and without any validground(s) or reason(s) and purely on account of professional rivalry of hisimmediate superior; (b) he was not given an opportunity to explain thebaseless allegations made against him in the letter dated 28.11.2006; (c)he had rendered excellent and dedicated service for 19 and half yearsand several photographs taken by him had been published in newspapers,magazines, etc. around the world on the front and prominent pages; (d)he was awarded second prize for Photography for coverage of the KargilWar and had been sent to various countries abroad like Pakistan, Bhutan,Singapore, etc. on professional duties in view of his professionalcompetence; (e) Mr. Boylan had been vindictive towards him due toprofessional rivalry and there was no evidence to substantiate the

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allegations made against him of non/under-performance; (f) Mr. Boylanissued the order of Termination without any jurisdiction to do so as hewas not the Appointing Authority of Respondent No.2, since theappointment was made by South Asia Managing Director of theCompany, which was self-evident from the appointment letter; (f)Respondent No.2 was appointed by Reuters International, whereas theTermination Order was signed by much junior officer of Reuters IndiaPrivate Limited, separate legal entity; (g) termination was illegal andviolative of provisions of the Working Journalist and Other NewspaperEmployees (Conditions of Service) and Miscellaneous Provisions Act,1955 (hereinafter referred to as ‘WJ Act’), which squarely applies toevery News Agency and Newspaper Establishment in India; (h) Section 3of the WJ Act makes the provisions of Industrial Disputes Act, 1947(hereinafter referred to as ‘ID Act’) applicable to Working Journalists andthe termination is thus also violative of Sections 25-F and 25-G of the IDAct.

(vi)Respondent No.2 issued legal notice on 01.05.2007, contestingthe termination on the ground that it was illegal retrenchment underSection 25-F of the ID Act and demanded reinstatement. Managementreplied to the legal notice vide communication dated 22.06.2007 anddeclined to reinstate Respondent No.2.

(vii)When the legal notice did not elicit favourable response,Respondent No.2 approached the Conciliation Officer for initiation ofconciliation proceedings under Section 10(2) of the ID Act. The matterwas referred for Conciliation, which was, however, unsuccessful and

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thereafter the disputes were referred to the Labour Court, by the DeputyLabour Commissioner (SD).

12.Before the Labour Court, Petitioner filed written statement andcontended as under :

(i)The proceedings before the Labour Court were not maintainable asRespondent No.2, being employed in supervisory capacity, drawing amonthly remuneration of more than Rs.1,600/- was not ‘workman’ asdefined under the ID Act;

(ii)On merits, it was contended that Respondent No.2 was employedwith Reuters India Private Limited and being Company of aninternational repute, Photography skills were required to be of extremelyhigh quality and standards and Respondent No.2 was required to performdiligently and efficiently. Work performance of Respondent No.2 in thelast 8 months prior to termination was far below the required levels andthe quality of his work was dropping to unacceptably deficient levels;

(iii)Quality of the work of Respondent No.2 was so bad that most ofhis pictures had to be ‘spiked’, i.e. could not be placed into theCompany’s usable set of pictures for onward commercial licensing. Mr.Paul Barker and Mr. Petar Kujundzic, the two Editors, who monitored theincoming files from India, containing the pictures taken by RespondentNo.2andwroteweeklyreports,communicatedextensivelywithRespondent No.2, pointing out the errors committed and suggestingmethods to rectify them and improve his performance;

(iv)Despite the time to time counseling and advice, through several e-mails, performance of Respondent No.2 did not improve. Petitionerpointed out several alleged deficiencies in the work of Respondent No.2

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before the Labour Court and also stated that Respondent No.2 lackedteam work, which was very essential for conducive work environment,in Company for synergistic output. Respondent No.2 exhibited totaldisregard to the concept of team cohesiveness and overburdened hiscolleagues by not performing his assigned jobs;

(v)The under-performance and other deficiencies in the working ofRespondent No.2 hindered the Company’s operations in India, which hadto compete effectively not only amongst the domestic players but alsoamongst international competitors;

(vi)It was categorically stated that Mr. Desmond Boylan had nopersonal animosity with Respondent No.2. In fact, he was under duty tosupervise the quality of the work of the employees including that ofRespondent No.2, so that the Reuters Group could maintain the sterlingquality of its information, pictures and news. Past performance ofRespondent No.2 may have been excellent, but that could not be ajustification for the under-performance in the last eight months. Therewas no improvement in the work, despite due notice, advice andcounseling to Respondent No. 2;

(vii)It was denied that provisions of the WJ Act or ID Act wereviolated. It was submitted that Respondent No.2 was removed on accountof unsatisfactory quality of work, despite repeated notices and warningsand the dismissal could not be termed as ‘retrenchment’;

(viii) It was stated that until 1995, Reuters Group carried out business inIndia through Branch Office of foreign Company, namely, ReutersInternational. In 1995, Reuters Group incorporated Reuters India PrivateLimited, to which existing business carried out by the Branch Office was

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transferred. Hence, although Respondent No.2 was appointed by ReutersInternational, on account of the internal re-structuring, he became anemployee of Reuters India Private Limited and was on the pay roll of thesaid Company and drawing salary therefrom, on the date of thetermination. Further, in terms of the internal authorization policy of theCompany, Mr. Boylan was authorized to issue the termination letter.

13.After completion of pleadings, Labour Court framed the followingissues on 16.07.2010:-

(1)Whether the claimant is not workman as defined u/s.2(s) of the I.D. Act being working in supervisorycapacity?2(s) of the I.D. Act being working in supervisorycapacity?

(2)As per terms of reference.(3)Relief(3)Relief

14.Before the Labour Court, Respondent No.2 examined himself asWW-1 and filed his evidence by way of affidavit, Ex. WW1/A. Contentsof the Statement of Claim were reiterated in the affidavit. In support ofthe claim, documents exhibited as Ex. WW1/1 to WW1/8 were reliedupon. No other defence witness was produced.

15.In the affidavit-in-evidence, Respondent No.2, testified as WW1.He deposed that he was initially appointed as Dark Room Assistant-cum-News Photographer as regular employee and was working as DeputyChief Photographer at the time of his termination. The nature of dutieswas that of Press Photographer with no element of managerial,administrative or supervisory powers. He deposed that there was no oneworking under him and he had no authority to sanction payment of even

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single rupee on behalf of the Company or authority to appoint or exercisedisciplinary control over his juniors.

16.RespondentNo.2furtherdeposedthathehadrenderedunblemished and dedicated service for 19 and half years, till histermination and several appreciation letters were issued to him from timeto time. He deposed that he was wrongly accused of under-performancewhen Mr. Boylan took over on account of professional rivalry betweenthe two, which was contrary to the record of exemplary performance ofRespondent No.2. He further deposed that the termination was malafide,without any justifiable ground and without any opportunity to explain theallegations levelled. There was no chargesheet and no inquiry beforeissuing the Termination Order. Termination was also in violation ofSections 25-F and 25-G of the ID Act, which is applicable to RespondentNo.2, by virtue of Section 3 of the WJ Act.

17.In the affidavit, Respondent No.2 furnished details of his gainfulemployment between 06.12.2006 to 06.09.2007 with Press Trust of India,between 01.09.2008 to 31.03.2009 with Tribune and thereafter againfrom April 2009 till the date of filing the affidavit, as Chief Photographerwith Press Trust of India at Rs. 50,000/- per month.

18.Respondent No.2 was cross-examined by the Petitioner. Hereiterated his stand in the Statement of Claim and the affidavit-in-evidence. Respondent No.2 stated that it was wrong to suggest that beinga Deputy Chief Photographer, he was not involved in logistic planning,leading small team of photographers or deputizing for the ChiefPhotographer. He deposed that he was not responsible for givingassignments to photographers or handling India Desk, during the absence

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of Chief Photographer. He denied the suggestion that he was assigningwork and chasing the stringers or was required to guide the juniorphotographers in his team. Respondent No.2 admitted receipt of emailsdated12.06.2006,13.06.2006and03.07.2006,allegingthathisperformance required improvement.

19.Petitioner / Management examined Sh. B. Rakesh Kumar as MW-1who filed his evidence by way of affidavit, Ex. MW1/A, and reiteratedthe contents of written statement. The witness relied upon documentsEx. MW1/1 (confirmation letter dated 02.02.2019), objected to by theAuthorised Representative of Respondent No.2, being photocopy andEx. MW1/2. MW-1 was cross-examined at length.

20.In his affidavit-in-evidence, MW-1 deposed that he was employedasManager–HumanResourcesOperationwithThomsonReutersInternational, Group Company of Thomson Reuters India PrivateLimited. He elaborated on his role and responsibility as Manager-HR. Hedeposed that Respondent No.2 as Deputy Chief Photographer wasexpected to perform several supervisory functions in addition to certaintechnical functions, as per the internal document of Thomson ReutersIndia referred to as ‘Role Beacon’. He detailed the functions andresponsibilitiesthat Respondent No.2was required to perform asfollows:-

“a.Ability to deputize for local Chief Photographer as andwhen required.

b.Skill in pro-active coverage of stories and taking key orleading roles in major assignments.

c.Capability to carry out major assignment logisticalplanning, for instance commissioning and staffing.

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Signature Not Verified

d.Capability to lead small team of staff photographersand stringers on big story.

e.Ability to manage stringer networks.

f.Ability to play role on pictures desk towards editingpictures, as needed.

g.Being fully conversant with all aspects of digitalphotography, picture editing and processing systems.

h.Taking on mentoring / tutoring roles, as needed.”

21.MW-1 further deposed that Respondent No.2 was expected toadhere to quality standards of the Petitioner, as the Petitioner is wireservice of international repute. However, his performance deterioratedconsiderably in and after April, 2006. To ensure improvement in thequality of his work, senior personnel of Thomson Reuters Group carriedout an extensive exercise of providing weekly objectives to achieve andalso reviewed his work against the objectives assigned. MW-1 referred tocertain emails which were exchanged between Respondent No.2 andSenior Editors / photographers of Thomson Reuters Group in Singapore,including Mr. Russel Boyce, Chief Photographer, Asia with respect to thedeficiency in his work as also measures to improve the same. The emailswere exhibited as Ex.MW1/MA to MW1/11 and were generally aimed atpointing out to Respondent No.2 the lacunae in the photographs taken byhim and their quality. He further deposed that despite receiving the noticepointing out the deficiencies as well as repeated counselling and advice,RespondentNo.2wasunabletorectifythemandimprovehisperformance. Poor quality of work by Respondent No.2 becamedetrimental to the Photography Division and the Petitioner was left withno option but to terminate his services on account of poor quality of

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composition of photographs, non-usage of photo editing software to get abetter crop of photographs, filing unnecessary photographs, increasing theworkload of the Editing Desk and lack of team work, which was essentialfor conducive work environment.

22.Considering the pleadings and evidence on record, Labour Courtdecided both the issues in favour of Respondent No. 2/workman andagainst the Management/Petitioner herein, relying on the definition of‘working journalist’ under Section 2(f) of the WJ Act, which specificallyincludes ‘news photographer’ in its ambit. Since the Labour Court was ofthe view that Respondent No.2 was amenable to its jurisdiction, itadjudicated on the legality of the impugned termination order and heldthe termination to be illegal and unfair. Having so held, Labour Courtgranted relief of reinstatement with full back wages to Respondent No.2,from the date of termination, as per the last drawn salary along with reliefof continuity of service and other consequential benefits.

CONTENTIONS OF THE PETITIONER

23.The impugned award is illegal and has been passed in totalignorance of the provisions of the ID Act and the WJ Act and withoutlooking into the relevant material placed on record by the Petitioner.Since the issue of the status of Respondent No.2 being workman /working journalist goes to the root of the jurisdiction of the Labour Court,this Court can interfere, within the scope of its jurisdiction under Articles226 and 227 of the Constitution of India and set aside the impugnedAward. On the scope of interference in judicial review, reliance wasplaced on the following judgments:-

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(i)Syed Yakoob v. K.S. Radhakrishnan & Ors., AIR 1964SC 477SC 477

(ii)Municipal Council, Sujanpur v. Surinder Kumar, (2006)5 SCC 1735 SCC 173

(iii)Atlas Cycle (Haryana) Ltd. v. Kitab Singh, (2013) 12SCC 573SCC 573

(iv)General Manager, Electrical Rengali Hydro ElectricProject, Orissa & Ors. v. Girdhari Sahu and Ors., (2019)10 SCC 695Project, Orissa & Ors. v. Girdhari Sahu and Ors., (2019)10 SCC 695

24.Respondent No.2 does not fall within the definition of ‘workman’under Section 2(s) of the ID Act or definition of ‘working journalist’under Section 2(f) of the WJ Act. Labour Court erred in holding thatRespondent No.2 did not perform supervisory functions as Deputy ChiefPhotographer and consequently erred in holding that Respondent No.2was ‘workman’ under the ID Act. Petitioner falls under the definition ofa ‘newspaper establishment’ under Section 2(d) of the WJ Act and thus,ID Act is not applicable to the present case. The correct issue that wasrequired to be framed and determined by the Labour Court was whetherRespondent No.2 was ‘working journalist’ under the WJ Act and not ifhe was ‘workman’ under the ID Act, which was never framed.Therefore if this Court comes to conclusion that the issue required to beframed was whether Respondent No.2 is ‘working journalist’, then theappropriate course of action would be to remand the matter to the LabourCourt and permit the parties to lead additional evidence on the said issue.Reliance was placed on the following judgments in support of the plea toremand the matter:-

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(i)Shanti Devi v. Daropti Devi, (2006) 13 SCC 775

(ii)Daljit Singh Gujral & Ors v. Jagjit Singh Arora & Ors,(2014) 12 SCC 198

(iii)M/s Standard Essential Oil Industries & Anr. v. TheForest Range Officer Kasargod, (2018) 16 SCC 180

25.Assuming for the sake of argument that the ID Act is applicable,Labour Court, while considering the issue whether Respondent No.2 is a‘workman’ under Section 2(s) of the said Act, failed to appreciate that theburden of proof was on Respondent No.2 to establish that he was a‘workman’. Contrary thereto, in the impugned Award, it is observed thatthe ‘workman’ has asserted that he was not having any managerial oradministrative power and merely on this basis, the issue has been decidedin favour of Respondent No.2. Labour Court failed to examine thatRespondent No.2 had not placed any cogent evidence to prove that hewas ‘workman’ under Section 2(s) and unjustifiably put the burden ofproof on the Petitioner to establish that Respondent No.2 was not a‘workman’ and consequently erroneously held that the Managementfailed to establish that the workman was performing supervisoryfunctions. This militates against the fundamental principle of law that aparty which asserts positive fact has to prove by leading evidence andthe opposite party cannot be called upon to prove negative fact.Reliance was placed on the following judgments on the issue of burden ofproof:-

(i)Northcote Nursing Home Private Limited and Others v.Zarine H. Rahina and Others,2001 (3) BomLR 714

(ii)M/s D.C.M. Shri Ram Consolidate Ltd. v. B.K. Gupta,2015 SCC OnLine Del 8210

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26.Respondent No.2 is neither workman under Section 2(s) of the IDAct nor working journalist under Section 2(f) of the WJ Act and thusthe Labour Court had no jurisdiction to entertain the claim of RespondentNo.2andadjudicatetheallegeddisputes.Personsworking in‘supervisory capacity’, receiving more than Rs. 1,600/- per month assalary, are categorically excluded from the definition of ‘workman’ underthe ID Act and WJ Act specifically excludes persons employed insupervisorycapacityperformingmanagerialfunctions.Therefore,Respondent No.2, who was primarily performing supervisory functions asDeputy Chief Photographer and drawing monthly salary of Rs.1,08,000/-, falls outside the ambit of the ID Act and was not amenable tothe jurisdiction of the Labour Court.

27.Insofar as ‘working journalist’ is concerned, without prejudice tothe foregoing, even if this Court was to reframe the issue to assesswhether Respondent No.2 was ‘Working Journalist’ under Section 2(f)of the WJ Act, Respondent No.2 would still not fall under the saiddefinition as he is covered under the exceptions to the definition, beingemployed in supervisory capacity and performing functions mainly of amanagerial nature. Respondent No.2 failed to adduce any evidence todischarge the burden that he was covered under the definition of Section2(f) of the WJ Act, while the Petitioner placed contemporaneousdocumentary evidence to demonstrate that Respondent No.2, as DeputyChief Photographer, held supervisory post, in as much as he supervisedthe work of all stringers and photographers by assigning, allocating anddistributing the work to them and issuing necessary instructions.Respondent No.2 guided, advised and mentored the stringers and juniors,

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on how to create and use photography skills to get the best results. Hemanaged the desk and took independent decisions from the stage ofgenerating ideas, exploring stories, finding correct events/locations,where stringers and photographers were required to be deputed and alsosent pictures selected by him directly to the Senior Editors at the GlobalDesk. Evidence was adduced to show that Respondent No.2 edited,reviewed and checked the work and selected the photographs shot bystringers and photographers for sending to the Global Desk. He had theauthority to reject or spike the photographs that were not up to the markand acted on all these matters for and on behalf of the Petitioner for theIndia Desk. Merely because Respondent No.2’s work was subject toreview by his seniors, or he may not have had the power to hire orterminate the employees or sanction their leaves or take disciplinaryaction, did not dilute the supervisory and managerial nature of hisfunctions. He was clearly thus neither ‘workman’ under Section 2(s) ofthe ID Act nor ‘Working Journalist’ under Section 2(f) of the WJ Act,by virtue of the exceptions provided under the said provisions.

28.TheworkprofileofRespondentNo.2asDeputyChiefPhotographer has been admitted by Respondent No.2 in his cross-examination, where he deposed that he took decisions on when and howto take photographs and was skilled in pro-active coverage of stories andplayed key or leading roles in major assignments, took decisions onwhich images were to be gathered, to meet coverage demands, managedstringer networks, communicated with external agencies to facilitatepicture opportunities and chase stories. Emails were placed on recordbeforetheLabourCourt,whichwerecorrespondencesbetweenW.P. (C) 3246/2020Page 18 of 117

Respondent No.2 and the Global Desk / Chief Photographer, highlightinghis functions, which were clear pointers to the supervisory andmanagerial nature of his job. Reliance was placed on the followingjudgments wherein principles / parameters / tests have been laid down to

determine if an employee performs ‘supervisory’ functions:-

(i)Mcleod and Co. v. Sixth Industrial Tribunal West Bengaland Others, 1958 SCC OnLine Cal 17and Others, 1958 SCC OnLine Cal 17

(ii)Mukesh K. Tripathi v. Sr. Divn. Manager, L.I.C. & Ors.,(2004) 8 SCC 387(2004) 8 SCC 387

(iii)StandingConferenceofPublicEnterprisesv.Government of NCT of Delhi and Ors., 2006 SCC OnLineDel 1378Government of NCT of Delhi and Ors., 2006 SCC OnLineDel 1378

(iv)R. Dial Dced. Thr. Rajan Kumar v. DCM ShriramConsolidated Ltd., (2008) 147 DLT 288Consolidated Ltd., (2008) 147 DLT 288

(v)S.N. Goswami v. Presiding Officer, Labour Court-II andOrs., 2009 SCC OnLine 6664Ors., 2009 SCC OnLine 6664

(vi)Hardwari Lal Sharma v. Pustak Mahal Publishers,2016SCC OnLine Del 5595SCC OnLine Del 5595

29.LabourCourthaserroneouslycometoaconclusionthatRespondent No.2 was not discharging managerial or supervisoryfunctions, overlooking the fact that in law, it is the predominant duty /function performed by workman, which is determinative of his statusand in the present case, Labour Court has itself come to finding that thejob profile of Deputy Chief Photographer was to manage group ofStringers and Photographers. Reliance was placed on the followingjudgments wherein it has been held that it is the pre-dominant or theprimary duty which has to be looked into to determine if the employee isa workman or not:-

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(i)Lloyds Bank Ltd., New Delhi v. Panna Lal Gupta AndOrs, AIR 1967 SC 428Ors, AIR 1967 SC 428

(ii)Burmah Shell Oil Storage & Distribution Co. of IndiaLtd. v. Burmah Shell Management Staff Association &Ors., (1970) 3 SCC 378Ltd. v. Burmah Shell Management Staff Association &Ors., (1970) 3 SCC 378

(iii)S.K. Maini v. Carona Sahu Company Ltd. & Ors., (1994)3 SCC 5103 SCC 510

(iv)R. Varadachari v. Management of Press Trust of India,2003 SCC OnLine Mad 1022003 SCC OnLine Mad 102

(v)Aeroflot Russian Airlines v. Mohan Kumar Sharma AndAnr., 2014 SCC OnLine Del 3580Anr., 2014 SCC OnLine Del 3580

(vi)M/s D.C.M. Shri Ram Consolidate (supra)

(vii)M/s Ircon International Ltd. v. Union of India & Ors.,2015 SCC Online Del 102272015 SCC Online Del 10227

30.It is settled law that if an employee is not workman, then therelationship is governed by the contract of employment under the IndianContract Act, 1872, enabling either party to terminate the contract, inaccordance with the contractual provisions. In any case, in the presentcase, termination is termination simpliciter, in terms of the appointmentletter, with no stigma attached and the termination was effected, afterclearing the dues including the notice pay. Thus, the only remedyavailable to Respondent No.2 was to file suit for damages.

31.Labour Court has erred in holding that Mr. Desmond Boylan hadno authority to terminate the services of Respondent No.2, on the groundthat Manager South Asia, Reuters Group had issued the appointmentletter. Labour Court failed to appreciate that Respondent No.2 wasappointed way back in the year 1990 and subsequently, as brought out inthe pleadings by the Petitioner, employment of Respondent No.2 was

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shifted under the Petitioner, i.e. Reuters India Private Limited (laterrenamed Thomson Reuters India Private Limited), due to internal changesin the Organisational structure. Thus, the Petitioner became the employerand it was an admitted fact that Respondent No.2 was working with thePetitioner Company and drawing salary and emoluments therefrom.Mr. Boylan had the authorization of the Company to terminate theservices of Respondent No.2, which was also ratified by the Board ofDirectors of the Petitioner Company.

32.Labour Court has erroneously held that termination of RespondentNo.2 was an unfair practice, on the ground that no show-cause notice/charge-sheet was issued to Respondent No.2 and no inquiry was heldprior thereto. Petitioner placed on record ample evidence to show thatthere was deficiency in the work of Respondent No.2 and his work wasnot in accordance with the required quality and standards, and that thetermination was an outcome of his repeated and continuous unsatisfactoryand deficient performance and not punitive in nature. Since this was acase of simpliciter and non-stigmatic termination, no chargesheet or showcause notice was required to be issued much less formal domesticinquiry. It is settled position of law that when an employee isforewarned repeatedly to improve his/her work, there is no requirementof further opportunity of hearing. Such termination cannot be termed as‘retrenchment’ warranting compliance with provisions of Sections 25-Fand 25-G of the ID Act, contrary to the observations of the Labour Court.For the said proposition, reliance was placed on the followingjudgments:-

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(i)Maria Thomas Gonsalvies v. Concept Pharmaceuticals(P) Ltd., 2001 SCC OnLine Bom 1193

(ii)Chaitanya Prakash v. H. Omkarappa, (2010) 2 SCC 623

33.Relief of reinstatement granted by the Labour Court is whollyillegal and unwarranted and without taking into consideration criticalfactors, crucial for determining the feasibility of granting reinstatement,such as existence and availability of the vacancy of Deputy ChiefPhotographer at this stage, in the Petitioner Company, as also thealternative employment of Respondent No.2. Admittedly, RespondentNo.2 has been gainfully employed since December, 2006. Moreover, 14years have elapsed since the termination of Respondent No.2 andPetitioner has undergone several structural/reorganisational changes andthere is no vacancy to reinstate Respondent No.2 at the same orcomparable designation. It is settled law that discretionary relief mustbe granted by taking into consideration all attendant circumstances, suchas length of service, nature of employment, availability of vacancy,financial capacity of the employer, delay in raising industrial dispute,closure of an Establishment, etc. For the said proposition, reliance wasplaced on the following judgments:-

(i)U.P. State Brassware Corpn. Ltd. v. Uday NarainPandey, (2006) 1 SCC 479Pandey, (2006) 1 SCC 479

(ii)U.P. State Road Transport Corporation v. Man Singh,(2006) 7 SCC 752(2006) 7 SCC 752

(iii)Sita Ram v. Moti Lal Nehru Farmers Training Institute,(2008) 5 SCC 75(2008) 5 SCC 75

(iv)Uttar Pradesh State Electricity Board v. Laxmi KantGupta,(2009) 16 SCC 562Gupta,(2009) 16 SCC 562

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(v)PVK Distillery Ltd. v. Mahendra Ram, AIR 2009 SC22052205

(vi)Jagbir Singh v. Haryana State Agriculture Mktg. Board,(2009) 15 SCC 327(2009) 15 SCC 327

(vii)Rajasthan State Road Transport Corporation, Jaipur v.Phool Chand, (2018) 18 SCC 299Phool Chand, (2018) 18 SCC 299

(viii) Gopinath & Anr. v. Harischandra & Ors., (2019) 16SCC 245SCC 245

34.Labour Court has failed to apply its mind while granting the reliefof full back wages since 30.11.2006, despite the fact that RespondentNo.2 had consistently admitted that he was gainfully employed.Assuming for the sake of argument that the Labour Court was of the viewthat Respondent No.2 was entitled to the relief of back wages, the LabourCourt ought to have granted the back wages after deducting the earningsof Respondent No.2 in his alternative employments and only thedifferential amount should have been awarded.

CONTENTIONS OF RESPONDENT NO.2

35.Petitioner herein has laid challenge to the Award on the groundthat Respondent No.2 is not ‘workman’ under Section 2(s) of the ID Actand that the termination is termination simpliciter on account ofunsatisfactory work. Challenge is also laid to the relief of reinstatementwith full back wages. However, none of the challenges raised can beexamined by this Court within the scope of judicial review under Article226 of the Constitution of India, 1950, as these are questions of fact andevidence, on which the learned Labour Court is the final arbiter.

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36.Insofar as the status of Respondent No.2 as ‘workman’ isconcerned, Labour Court has elaborately examined the issue, based onpleadings and evidence as well as the documents on record, includingreference to several judgments of the Hon’ble Supreme Court anddifferent High Courts. Findings rendered by the Labour Court ought notto be interfered in writ jurisdiction, more particularly, when thePetitioner has led no evidence to establish that Respondent No.2 wasdischarging managerial functions or had supervisory responsibilities. Afinding that Respondent No.2 is ‘workman’ under Section 2(s) of the IDAct, is finding of fact, based on the nature of duties, which RespondentNo.2 was able to establish through evidence and it is settled law thatfindings of fact rendered by the Industrial Forums are beyond the scopeof interference in judicial review.

37.Learned Labour Court has rightly relied on the provisions of theWJ Act and the definition of ‘working journalist’ under Section 2(f) ofthe said Act and has come to conclusion that Respondent No.2 was a‘working journalist’. close scrutiny of the said provision shows that a‘news photographer’ employed in supervisory capacity is ‘workingjournalist’. Sub-clause (ii) of Section 2(f) makes clear distinctionbetween person undertaking supervisory responsibilities, in contrast to aperson having supervisory functions mainly of ‘managerial nature’.This distinction is also found in the definition of ‘workman’ under the IDAct. However, this provision of Special Law, i.e. WJ Act makes it clearbeyond doubt that ‘news-photographer’ is ‘working journalist’ bylaw, unless it is proved that he discharges managerial functions whileholding supervisory post. Unlike the definition of ‘workman’ under

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Section 2(s) of the ID Act, the WJ Act does not prescribe wage limit forrestricting the definition of ‘working journalist’ even if exercisingsupervisory or managerial functions.

38.Additionally, Section 3 of WJ Act makes it clear that for a‘working journalist’, the provisions of the ID Act will govern theemployment terms and the procedures, except for slight modificationrelating to the period of notice for the purpose of Retrenchment, underSection 25-F of the ID Act. From the scheme of the Special Law, it isevident that the provisions of ID Act were sought to be incorporated inthe WJ Act to provide an inbuilt adjudicatory and safeguardingmechanism in respect of ‘working journalist’, including the manner inwhich their services have to be terminated etc. It is also settled law thata working journalist under Section 2(f) of the WJ Act is also workmanunder Section 2(s) of the ID Act as propounded by this Court inStatesman Ltd. v. Lt. Governor & Ors., 1974 SCC OnLine Del 127;Bombay High Court in Indian Express News Papers (Bombay) Ltd. v.K. Kurunakaran, 1980 Mah LJ 308and Patna High Court in BeharJournals Ltd. Patna v. Ali Hasan and Another, (1959) SCC OnLine

Pat 122.

39.Petitioner did not plead before the Labour Court that RespondentNo.2 was discharging managerial functions. In fact, the pleadings in thewrit petition before this Court also indicate that the case of the Petitionerwas restricted to claiming that Respondent No.2 was dischargingsupervisoryfunctions.RespondentNo.2inhiscross-examinationcategorically denied the suggestion that he was undertaking managerialfunctionsandresponsibilities.AssumingwithoutadmittingthatW.P. (C) 3246/2020Page 25 of 117

Respondent No.2 exercised supervisory functions, yet by virtue ofSection 2(f), he would be deemed to be ‘working journalist’ in theabsence of evidence that he worked in managerial capacity. The bestevidence put forth by the Petitioner was the exchange of emails, with aview to establish the alleged under-performance of Respondent No.2 aswell as his status as supervisor. close perusal of the documents wouldshow that from time to time the officials of the Petitioner were pointingout the alleged deficiencies and shortcomings in the photographs taken byRespondent No.2 and the lack of team spirit. However, in none of theemails was there even whisper that Respondent No.2 was performingany job other than as news photographer and rather the emails are apointer to the fact that the primary and substantive role of RespondentNo.2 was that of photographer. The post in question on whichRespondent No.2 was working at the relevant time essentially entailedknowledge and experience as news photographer working in the fieldand involved no supervisory or managerial responsibilities. Therefore theLabour Court has rightly concluded that Respondent No.2 was ‘workingjournalist’ under Section 2(f) of the WJ Act and consequentially a‘workman’ under Section 2(s) of the ID Act and the award calls for nointerference.

40.It is fundamental and settled law that permanent and regularemployee cannot be terminated by an order simpliciter, if it is punitiveorder. Labour Court has come to clear finding that the termination waspunitive and there is no evidence to prove to the contrary. Thejustification sought to be rendered by the Petitioner that Respondent No.2was terminated for incompetence and deteriorating performance is

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misconceived. ‘workman’ can only be terminated in accordance withthe procedure established by law and not at the whims of theManagement. Respondent No.2 had worked for more than 19 years andhad unblemished and exemplary service record as news photographer.Therewasnopastinstanceofmisconduct,incompetenceormisdemeanor. The allegations of under-performance were made for thefirst time by Mr. Desmond Boylan in 2006 and the termination followedsoon thereafter, in most abrupt manner, without any show cause notice/imputation of charges and / or Domestic Inquiry. complete go-by wasgiven to the procedures under the industrial adjudication mechanism aswell as the Principles of Natural Justice. The following judgments wererelied upon by learned counsel for Respondent No.2:-

(i)D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259(ii)Uptron India Limited v. Shammi Bhan, (1998) 6 SCC 538(iii)Scooter India Limited v. M. Mohd. Yaqub, (2001) 1SCC 61

41.RespondentNo.2hasbeenrightlyawardedthereliefofreinstatement as his termination was found to be illegal and unfair by theLabour Court. The purpose of so holding would be defeated ifRespondent No.2 is not restored to his original position and allowed toreap the fruits of successful litigation. The terms of employment ofRespondent No.2 with the Petitioner entitled him to pension, apart fromterms and conditions which are far superior to those under the WageBoard Settlements, applicable to journalists in India. If the relief ofreinstatement had not been granted, with continuity of back wages,Respondent No.2 would have been deprived of the difference in the

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wages as well as pensionary benefits. In so far as the relief of back wagesis concerned, it is consequential benefit arising out of reinstatementlooking into the fact that the termination was unfair, illegal andunjustified. Labour Court has observed that termination was motivedriven to victimize the workman and an unfair practice on the part of theManagement. In any event, gainful employment by itself is not groundto deny complete back-wages to workman as held by the Hon’bleSupreme Court in S.S. Shetty v. Bharat Nidhi Ltd., AIR 1958 SC 12and by this Court in G.E. Capital Transportation Financial ServicesLtd. v. Tarun Bhargava, (2012) 190 DLT 185.Respondent No.2 hadtruthfully disclosed before the Labour Court that he had remainedemployed in the interregnum period along with the details of the period ofemployment and the salaries drawn under different employers. Therefore,this Court may modify the relief to the extent of awarding the differentialamounts towards back wages by deducting the amounts received duringthe gainful employment and the wages payable by the Petitioner.Reliance was placed on the following judgments:-

(i)Hindustan Tin Works Pvt. Ltd. v. The Employees ofHindustan Tin Works Pvt. Ltd. and Ors., (1979) 2SCC 80Hindustan Tin Works Pvt. Ltd. and Ors., (1979) 2SCC 80

(ii)Surendra Kumar Verma v. Central Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443cum-Labour Court, (1980) 4 SCC 443

(iii)Deepali Gundu Surwase v. Kranti Junior AdhyapakMahavidyalaya, (2013) 10 SCC 324Mahavidyalaya, (2013) 10 SCC 324

(iv)Principal, Delhi College for Arts and Commerce v.Sunita Sharma & Anr., 2013 SCC OnLine Del 391Sunita Sharma & Anr., 2013 SCC OnLine Del 391

(v)Hindustan Times Ltd. v. Arun Kumar, 2016 SCC OnLineDel 2608Del 2608

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42.The argument of the Petitioner that the burden to prove thatRespondent No.2 was ‘workman’ was on Respondent No.2, which hefailed to discharge and the Labour Court has wrongly placed the burdenon the Petitioner, is misplaced. Petitioner had admitted in the pleadingsand has also averred in the writ petition herein that Respondent No.2 isgoverned by the WJ Act. Respondent No.2 had proved that he was a‘working journalist’ under the WJ Act, being news photographer andthus covered under the substantive definition of ‘workman’ under Section2(s) of the ID Act by elaborating on the nature of his duties. Therefore,the onus shifted on the Petitioner to prove that Respondent No.2 wascovered under the ‘exceptions’ to the definition of ‘workman’ and‘working journalist’, which as rightly held by the Labour Court,Petitioner failed to discharge.

43.Petitioner failed to produce any documentary evidence to provethat Respondent No.2 performed supervisory functions. Reliance on theGlobal Role Framework, on closer scrutiny, proved to the contrary. Thedocument defines the work profile of Senior Photographer and is astandard document applicable to the Petitioner-Management and itsprincipal Company, globally. The scope of the job profile indicates thatwhile Senior Photographer has an established network of contactswithin the location of immediate area and is able to manage stringernetworks, but he has no control over the staff in any manner, whatsoever.44.I have heard the learned counsels for the parties and given carefulcogitation to their rival contentions.

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ANALYSIS AND FINDINGS

SCOPE OF INTERFERENCE

45.Scope of judicial review by this Court in the Awards of the LabourCourt, under Article 226 of the Constitution of India, is the first issue thatpronouncedly emanates for consideration. The argument of RespondentNo.2 is that this Court does not sit as Court of Appeal and even if thedecision of an Industrial Forum is erroneous, it is impervious to juralinterference, unless there is jurisdictional error committed by theLabour Court, while the Petitioner argues that the Labour Court has cometo an erroneous finding that Respondent No.2 is amenable to thejurisdiction of the Labour Court and this calls for an interference in theimpugned Award.

46.The aforesaid issue flagged by the parties, can be examined fromtwo different angles. The first part of the objection would in effect relateto the areas in which writ of certiorari can be issued and the second partwould be the limitations in interfering with the findings of LabourCourt, both on facts and law. In so far as the first part is concerned, it issettled law that writs of certiorari are intended to enable the High Courtsto quash the decisions of Subordinate Courts or Tribunals, where they actwholly without jurisdiction or in excess of it or refuse to exercise thejurisdiction vested in them. Writ can also be issued if the SubordinateCourt commits an error apparent on the face of the record, resulting inmanifest injustice. However, as held by the Hon’ble Supreme Court in anumber of judgments that howsoever wide the jurisdiction may be, it doesnot entitle the High Court to sit as Court of Appeal and examine the

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correctness of the decision to come to an alternate view, which accordingto the High Court, is better view.

47.In the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque,AIR 1955 SC 233, the Hon’ble Supreme Court held that patent errorsuch as decision in ignorance or disregard of provision of law can becorrected by writ of certiorari, but not mere wrong decision. It was alsoheld that the Court issuing writ of certiorari acts in exercise ofsupervisory jurisdiction and will not interfere with findings of factreached by the Subordinate Court, even if erroneous.

48.In Syed Yakoob (supra), the SupremeCourtdelineatedthe

contours of writ of certiorari as follows:-

“7.The question about the limits of the jurisdiction of HighCourts in issuing writ of certiorari under Article 226 has beenfrequently considered by this Court and the true legal positionin that behalf is no longer in doubt. writ of certiorari can beissued for correcting errors of jurisdiction committed byinferior courts or tribunals: these are cases where orders arepassed by inferior courts or tribunals without jurisdiction, or isin excess of it, or as result of failure to exercise jurisdiction. Awrit can similarly be issued where in exercise of jurisdictionconferred on it, the Court or Tribunal acts illegally or properly,as for instance, it decides question without giving anopportunity, be heard to the party affected by the order, orwhere the procedure adopted in dealing with the dispute isopposed to principles of natural justice. There is, however, nodoubt that the jurisdiction to issue writ of certiorari is asupervisory jurisdiction and the Court exercising it is notentitled to act as an appellate Court. This limitation necessarilymeans that findings of fact reached by the inferior Court orTribunal as result of the appreciation of evidence cannot bereopened or questioned in writ proceedings. An error of lawwhich is apparent on the face of the record can be corrected bya writ, but not an error of fact, however grave it may appear to

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be. In regard to finding of fact recorded by the Tribunal, awrit of certiorari can be issued if it is shown that in recordingthe said finding, the Tribunal had erroneously refused to admitadmissible and material evidence, or had erroneously admittedinadmissible evidence which has influenced the impugnedfinding. Similarly, if finding of fact is based on no evidence,that would be regarded as an error of law which can becorrected by writ of certiorari. In dealing with this categoryof cases, however, we must always bear in mind that findingof fact recorded by the Tribunal cannot be challenged inproceedings for writ of certiorari on the ground that therelevant and material evidence adduced before the Tribunalwas insufficient or inadequate to sustain the impugned finding.The adequacy or sufficiency of evidence led on point and theinference of fact to be drawn from the said finding are withinthe exclusive jurisdiction of the Tribunal, and the said pointscannot be agitated before writ Court. It is within these limitsthat the jurisdiction conferred on the High Courts under Article226 to issue writ of certiorari can be legitimately exercised(vide Hari Vishnu Kamath v. Syed Ahmad Ishaque [(1955) 1SCR 1104] NagandraNath Bora v. Commissioner of HillsDivisionandAppealsAssam[(1958)SCR1240]andKaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168]8.It is, of course, not easy to define or adequately describewhat an error of law apparent on the face of the record means.What can be corrected by writ has to be an error of law; butit must be such an error of law as can be regarded as onewhich is apparent on the face of the record. Where it is manifestor clear that the conclusion of law recorded by an inferiorCourt or Tribunal is based on an obvious mis-interpretation ofthe relevant statutory provision, or sometimes in ignorance ofit, or may be, even in disregard of it, or is expressly founded onreasons which are wrong in law, the said conclusion can becorrected by writ of certiorari. In all these cases, theimpugned conclusion should be so plainly inconsistent with therelevant statutory provision that no difficulty is experienced bythe High Court in holding that the said error of law is apparent

on the face of the record. It may also be that in some cases, theimpugned error of law may not be obvious or patent on the faceof the record as such and the Court may need an argument todiscover the said error; but there can be no doubt that what canbe corrected by writ of certiorari is an error of law and thesaid error must, on the whole, be of such character as wouldsatisfy the test that it is an error of law apparent on the face ofthe record. If statutory provision is reasonably capable of twoconstructions and one construction has been adopted by theinferior Court or Tribunal, its conclusion may not necessarilyor always be open to correction by writ of certiorari. In ouropinion, it is neither possible nor desirable to attempt either todefine or to describe adequately all cases of errors which canbe appropriately described as errors of law apparent on theface of the record. Whether or not an impugned error is anerror of law and an error of law which is apparent on the faceof the record, must always depend upon the facts andcircumstances of each case and upon the nature and scope ofthe legal provision which is alleged to have been misconstruedor contravened.”

49.From reading of the above judgments, what is discernible is thatamongst others, two pre-requisites must be kept in the backdrop before aninterference is made in an order impugned and writ of certiorari isissued quashing the order viz. (a) Certiorari is not an Appellatejurisdiction; and (b) there must exist an apparent error of law in thejudgment impugned.

50.Insofar as the second part of the preliminary objection isconcerned, the law with respect to scope of interference in the awards ofthe Labour Courts under Articles 226 and 227 of the Constitution of Indiais no longer res integra. The Hon’ble Supreme Court has elaborately andperspicuously explained the scope and ambit of judicial interference inseveral judgements and held and reaffirmed that the Labour Court is the

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final adjudicator on facts and evidence. In this context, I may refer to thejudgment of the Hon’ble Supreme Court in P.G.I. of Medical Education& Research v. Raj Kumar, (2001) 2 SCC 54, relevant para of which isas under:-

“9.The Labour Court being the final court of facts came to aconclusion that payment of 60% wages would comply with therequirement of law. The finding of perversity or beingerroneous or not in accordance with law shall have to berecorded with reasons in order to assail the finding of theTribunal or the Labour Court. It is not for the High Court to gointo the factual aspects of the matter and there is an existinglimitation on the High Court to that effect. In the event, howeverthe finding of fact is based on any misappreciation of evidence,that would be deemed to be an error of law which can becorrected by writ of certiorari. The law is well settled to theeffect that finding of the Labour Court cannot be challenged ina proceeding in writ of certiorari on the ground that therelevant and material evidence adduced before the LabourCourtwasinsufficientorinadequatethough,however,perversity of the order would warrant intervention of the HighCourt. The observation, as above, stands well settled since thedecision of this Court in Syed Yakoob v. K.S. Radhakrishnan[AIR 1964 SC 477 : (1964) 5 SCR 64] .”

51.It is settled law that evidence led before the Trial Courts or theLabour Courts and the findings thereon must be outrageously defyinglogic so as to call for interference by higher Court. In this context, Imay refer to the judgments in Rajinder Kumar Kindra v. DelhiAdministration, (1984) 4 SCC 635; Kuldeep Singh v. Commissionerof Police, (1999) 2 SCC 10; Gamini Bala Koteswara Rao v. State ofAP,(2009) 10 SCC 636; Babu v. State of Kerala,(2010) 9 SCC 189;Dr. Sunil Kumar Sambhudayal Gupta v. State of Maharashtra,

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(2010) 13 SCC 657, SR Tiwari v. Union of India,(2013) 6 SCC 602.InManagement of Madurantakam Cooperative Sugar Mills Ltd. v. S.Viswanathan, (2005) 3 SCC 193and M.P. State Electricity Board v.Jarina Bee, (2003) 6 SCC 141,the Hon’ble Supreme Court expoundedthe law on the extent to which writ court can interfere in the awards ofthe Labour Courts or Industrial Tribunals. The binding principles that canbe culled out are that the Labour Court / Industrial Tribunal is the finalfact-finding authority and unless the findings are perverse or based on noevidence, Writ Court should not interfere. Perversity would pervade thedecision of the Labour Court if relevant material is ignored or irrelevantmaterial is considered. Sufficiency or inadequacy of evidence cannot be aground for interference and nor would Writ Court be justified ininterfering only on the ground that different view was possible on thefacts of the case.

52.Recently, Co-ordinate Bench of this Court in DDA v. MoolChand,(2017) SCC OnLine Del 9249reiterated the principle that theLabour Court is the final fact finding Authority and I quote:-

“28.Relying on the principles enunciated in the above decision,a catena of pronouncements of the Supreme Court, includingManagement of Madurantakam Cooperative Sugar Mills Ltd. v.S. Viswanathan: (2005) 3 SCC 193, P.G.I. of MedicalEducation and Research, Chandigarh v. Raj Kumar (2001) 2SCC 54 and M.P. State Electricity Board v. Jarina Bee: (2003),6 SSC 141, followed, which may be regarded as having laiddown, authoritatively, the following principles:

(i) The Labour Court/Industrial Tribunal is the final factfinding authority.

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(ii) The High Court, in exercise of its powers underArticle 226/227, would not interfere with the findings offact recorded by the Labour Court, unless the saidfindings are perverse, based on no evidence or based onillegal/unacceptable evidence.

(iii)In the event that, for any of these reasons, the HighCourt feels that case for interference is made out, it ismandatory for the High Court to record reasons forinterfering with the findings of fact of the LabourCourts/Industrial Tribunal, before proceeding to do so.

(iv) Adequacy of evidence cannot be looked into, whileexamining, in writ jurisdiction, the evidence of the LabourCourt.

(v) Neither would interference, by the writ court, with thefindings of fact of the Labour Court, be justified on theground that different view might possible be taken onthe said facts.”

53.I may usefully refer to the judgment of this Court in DTC v.Bijender Singh, 2018 SCC Online Del 8852, wherein the Court has alsoelaborately explained on what constitutes ‘perversity’ in decision andthe relevant paras are as under:-

“29. Thereafter,relyingonthewell-knowndecisionsin Management of Madurantakam Cooperative Sugar MillsLtd. v. S. Viswanathan, (2005) 3 SCC 193, P.G.I. of MedicalEducation and Research, Chandigarh v. Raj Kumar, (2001) 2SCC 54 and M.P. State Electricity Board v. Jarina Bee, (2003)6 SSC 141, I had culled out the following principles, regardingthe role of this Court while reviewing, judicially, the award ororder of the Labour Court or Industrial Tribunal.

(i) The Labour Court/Industrial Tribunal is the finalfact finding authority.

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(ii) The High Court, in exercise of its powers underArticle 226/227, would not interfere with the findingsof fact recorded by the Labour Court, unless the saidfindings are perverse, based on no evidence or basedon illegal/unacceptable evidence.

(iii) In the event that, for any of these reasons, the HighCourt feels that case for interference is made out, itis mandatory for the High Court to record reasons forinterfering with the findings of fact of the LabourCourts/Industrial Tribunal, before proceeding to do so.

(iv) Adequacy of evidence cannot be looked into, whileexamining, in writ jurisdiction, the evidence of theLabour Court.

(v) Neither would interference, by the writ court, withthe findings of fact of the Labour Court, be justified onthe ground that different view might possibly betaken on the said facts.

(vi) “Perversity”, for its part, is attributed to ajudicial/quasijudicialdecisionifthedecisionignores/excludesrelevantmaterial,considersirrelevant/inadmissible material, is against the weightof evidence, or so outrageously defies logic as tosuffer from irrationality.

(vii) In examining whether decision is, or is not,perverse, the classic test, of the reasonable man'sconclusion on the facts before the authority concernedwould apply.

(viii) Inadequacy of evidence, or the possibility ofreading the evidence in different manner, would notamount to perversity.

30.MoolChand (supra)wasfollowedbyme,later,in D.T.C. v. Chander Singh. The said decision was carried, inappeal, by the DTC, to the Supreme Court, by way of SLP No.5306/2018,whichwasdismissed,bytheSupreme

Court, vide order dated 9[th]March, 2018, clearly holding that nocase for interference, with the judgment of this Court, existed.”

(Emphasis supplied)

54.It would also be relevant to refer to the judgment of the Hon’bleSupreme Court in Bhuvnesh Kumar Dwivedi v. Hindalco IndustriesLtd., (2014) 11 SCC 85, relevant para of which is as under:-

“22. careful reading of the judgments reveals that the HighCourt can interfere with an order of the Tribunal only on theprocedural level and in cases, where the decision of the lowercourts has been arrived at in gross violation of the legalprinciples. The High Court shall interfere with factual aspectplaced before the Labour Courts only when it is convinced thatthe Labour Court has made patent mistakes in admittingevidence illegally or have made grave errors in law in comingto the conclusion on facts. The High Court granting contraryrelief under Articles 226 and 227 of the Constitution amounts toexceeding its jurisdiction conferred upon it. Therefore, weaccordingly answer Point (i) in favour of the appellant.”

55.Reiterating the limitations on scope of interference, the Hon’bleSupreme Court in the case of Deepali Gundu (supra), in the context ofreinstatement andback wages awarded by the Labour Court held asunder:-

“38.5. The cases in which the competent court or tribunal findsthat the employer has acted in gross violation of the statutoryprovisions and/or the principles of natural justice or is guilty ofvictimising the employee or workman, then the court or tribunalconcerned will be fully justified in directing payment of fullback wages. In such cases, the superior courts should notexercise power under Article 226 or 136 of the Constitution andinterfere with the award passed by the Labour Court, etc.merely because there is possibility of forming differentopinion on the entitlement of the employee/workman to get full

back wages or the employer's obligation to pay the same. Thecourts must always keep in view that in the cases ofwrongful/illegal termination of service, the wrongdoer is theemployer and the sufferer is the employee/workman and there isno justification to give premium to the employer of hiswrongdoings by relieving him of the burden to pay to theemployee/workman his dues in the form of full back wages.”

56.Examined on the touchstone and anvil of the aforementionedjudgments and the settled law, the preliminary point that arises is whetherthe issues raised by the Petitioner can at all be considered and determinedby this Court in the present writ petition. The primordial contention of thePetitioner is that Respondent No.2 is not ‘workman’ under the ID Actand was thus not entitled to approach the Labour Court for redressal ofhis grievances under the industrial disputes resolution mechanism. In myview, determination of the said question is the very foundation of thejurisdiction of the Labour Court as only ‘workman’ as defined underSection 2(s) of the ID Act can seek reference to Labour Court andraise the disputes regarding his service conditions. The issue goes to theroot of the jurisdiction of the Industrial Forum and therefore it is open tothis Court in writ jurisdiction to determine whether or not RespondentNo.2 is ‘workman’ under the ID Act, keeping in view the settledjurisprudence on the writs of certiorari, concerning the nebulous doctrineof error apparent on the face of the Award or the other parameters laiddown by the Hon’ble Supreme Court, subscribing the factors on which awrit Court can interfere. This issue is thus answered in favour of thePetitioner.

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‘WORKMAN’ UNDER SECTION 2(S) OF THE ID ACT

57.Before examining who is ‘workman’ under Section 2(s) of the IDAct, it would be relevant to refer to the provisions of Section 2(s) of theID Act, which read as under:

“2.Definitions.—InthisAct,unlessthereisanythingrepugnant in the subject or context,—

xxxxxxxxx

2 [(s) “workman” means any person (including an apprentice)employed in any industry to do any manual, unskilled, skilled,technical, operational, clerical or supervisory work for hire orreward, whether the terms of employment be express or implied,and for the purposes of any proceeding under this Act inrelation to an industrial dispute, includes any such person whohas been dismissed, discharged or retrenched in connectionwith, or as consequence of, that dispute, or whose dismissal,discharge or retrenchment has led to that dispute, but does notinclude any such person— (i) who is subject to the Air ForceAct, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), orthe Navy Act, 1957 (62 of 1957); or (ii) who is employed in thepolice service or as an officer or other employee of prison; or(iii) who is employed mainly in managerial or administrativecapacity; or (iv) who, being employed in supervisorycapacity, draws wages exceeding 3 [ten thousand rupees] permensem or exercises, either by the nature of the duties attachedto the office or by reason of the powers vested in him, functionsmainly of managerial nature.]”

58.By virtue of an Amendment w.e.f. 29.08.1956, brought about bythe Amending Act 36 of 1956, the definition of ‘workman’ under Section2(s) of the ID Act underwent significant change, inasmuch as‘workman’ now included categories of persons who were employed to do‘supervisory’ and ‘technical’ work, in addition to the earlier categories of

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Signature Not Verified

skilled and unskilled manual or clerical work. Definition of ‘workman’was further amended by Amending Act 46 of 1982, which was broughtinto force with effect from 21.08.1984 and by virtue of this amendment,categories of workmen employed to do ‘operational’ work came to beincluded in the definition along with those doing non-manual unskilledand skilled work.

59.In the case of Burmah Shell (supra), the Hon’ble Supreme Courtwas concerned with question as to whether categories of employeesincluding Transport Engineer could fall under Section 2(s) under thedefinition, as it stood prior to the 1984 Amendment. The primordial issuethat the Hon’ble Supreme Court was required to consider was whether anemployee was required to necessarily fall in one or the other of the fourclasses mentioned in the substantive part of the definition in order to be aworkman or whether it was enough to show that he was excluded by wayof the exceptions. The Hon’ble Supreme Court held that an employee canbe said to be workman, if he is employed to do manual, unskilled,skilled, technical, operational, clerical or supervisory work, for hire orreward. Employees who did not perform any of these jobs were outsidethe scope of the word ‘workman’ under Section 2(s) of the ID Act. TheHon’ble Supreme Court further observed that if every employee of anIndustry was to be workman except those mentioned in the fourexceptions, these four classifications need not have been mentioned in thedefinition and ‘workman’ could have been defined as personemployed in an industry except in cases where he was covered by one ofthe exceptions. Relevant para of the judgment is as follows:-

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“5.For an employee in an industry to be workman underthis definition, it is manifest that he must be employed to doskilled or unskilled manual work, supervisory work, technicalwork or clerical work. If the work done by an employee is not ofsuch nature, he would not be workman. Mr Chari on behalfof the Association, however, put forward the argument that thisdefinition is all comprehensive and contemplates that allpersons employed in an industry must necessarily fall in one ortheotherofthefourclassesmentionedaboveand,consequently, the Court should proceed on the assumption thatevery person is workman; but he may be taken out of thedefinition of “workmen” under the four exceptions contained inthe definition. The two exceptions with which we are primarilyconcerned are Exceptions (iii) and (iv). Under Exception (iii),even workman, who is employed mainly in managerial oradministrativecapacity,goesoutofthedefinitionof“workmen”, while under Exception (iv), persons, who areemployed in supervisory capacity, go out of the definition,provided they either draw wages exceeding Rs 500 per mensemor exercise, by the nature of the duties attached to the office orby reason of the powers vested in them, functions mainly of amanagerial nature.

6.We are unable to accept this submission. In the caseof May and Baker (India) Ltd. v. Workmen [(1961) II LLJ 94]this Court had to consider the correctness of decision of aTribunal which had held that one Mukerjee, an employee in anindustry, was workman under the Act, because he was notemployed in supervisory capacity. The Court held:

“The Tribunal seems to have been led away by the factthat Mukerjee had no supervisory duties and had to workunder the directions of his superior officers. That,however, would not necessarily mean that Mukerjee'sduties were mainly manual or clerical. From what theTribunal itself has found it is clear that Mukerjee's dutieswere mainly neither clerical nor manual. Therefore, asMukerjee was not workman, his case would not be

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covered by the Industrial Disputes Act and the Tribunalwould have no jurisdiction to order his reinstatement.”

In that case, the Court thus held Mukerjee not to be workmanon the ground that his work was neither clerical nor manualwhich was the nature of the work envisaged in the definition tomake an employee workman. It is true that that decision wasgiven on the definition of “workman” as it stood before theamendment of 1956 when the words “supervisory” and“technical” did not occur in the definition. Mr Chari'ssubmission is that the amendment in 1956 introduced the words“supervisory” and “technical” with the object of making thedefinition all-comprehensive; but, on the face of it, it cannot beso. If every employee of an industry was to be workmanexcept those mentioned in the four exceptions, these fourclassifications need not have been mentioned in the definitionand workman could have been defined as person employedin an industry except in cases where he was covered by one ofthe exceptions. The specification of the four types of workobviously is intended to lay down that an employee is to becomea workman only if he is employed to do work of one of thosetypes, while there may be employees who, not doing any suchwork, would be out of the scope of the word “workman”without having to resort to the exceptions. An example, whichappears to be very clear, will be that of person employed incanvassing sales for an industry. He may not be required to doany paper work, nor may he be required to have any technicalknowledge. He may not be supervising the work of any otheremployees, nor would he be doing any skilled or unskilledmanual work. He would still be an employee of the industryand, obviously, such an employee would not be workman,because the work, for which he is employed, is not covered bythe four types mentioned in the definition and not because hewould be taken out of the definition under one of theexceptions.”

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60.This Court in Kirloskar Brothers Ltd. v. Presiding Officer,Labour Court, 1975 SCC OnLine Del 187held that the Trial Courtshould adopt positive approach and see whether the particular employeeis workman and not that whether negatively seen, the employee fallswithin the exceptions under Section 2(s). If he does not fall within theexceptions, then by process of elimination, he is to be held to be aworkman. It was further held that Courts are required to see that personis workman as opposed to what may be called ‘non-workman’ and notwhether he is workman because he is not Manager or one employed inan administrative capacity. Following the principles laid down by theHon’ble Supreme Court in Burmah Shell (supra), this Court held asunder:-

“10.In order to make reference to Labour Court or aTribunal of an industrial dispute the first point that mustengage the attention of the appropriate Government is to decidewhether the complaining employee is “workman”. Even ifreference is made of dispute then the Labour Court or theTribunal must first apply its mind to this problem for unless theemployee concerned is workman the question of adjudicationof an industrial disputes does not arise. In my opinion theapproach has to be positive approach and not negativeapproach. In other words, what has to be seen is whether theparticular employee is workman and not whether theemployee concerned falls within the exceptions mentioned inSection 2(s) and if he does not fall in one of the exceptions thenby process of elimination he is held to be “workman”. Asocial legislation like the Industrial Disputes Act conferscertain rights and obligations upon certain categories ofpersons. Those rights and obligations must be limited to beattracted only in the case of such persons as are covered by thestatute. Certain rights are conferred upon “workman” as

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defined by Section 2(s) of the Act. Therefore, those rights areavailable only to persons who can be called workman and notto all those who are not covered by the exceptions given inSection 2(s). To put in another way what has to be seen iswhether person is workman as opposed to what may becalled “non-workman” and not whether he is workmanbecause he is not Manager or one employed in anadministrative capacity. It is possible that an employee in agivencasemaynotbeemployedinmanagerialandadministrative capacity or in supervisory capacity and yet hemay not be workman. If the approach is that every employeeis “workman” but the benefits of raising an industrial disputeis not available to those who are subject to the Army Act, or theAir Force Act or the Navy (Discipline) Act or who is employedin the police service or as an officer or other employee of aprison or who is employed mainly in managerial oradministrativecapacity;orwhobeingemployedinasupervisory capacity, draws wages exceeding five hundredrupees per mensem or exercises, either by the nature of theduties attached to the office or by reason of the powers vestedin him, functions mainly of managerial nature, then, in myopinion, the approach would be incorrect. The proper approachin law would be to first see whether an employee is workmanand then see whether any of the exceptions are attracted.Reading the definition of the word “workman” I find that it isnecessary that person must be employed in an industry to doany skilled or unskilled manual, supervisory, technical orclerical work for hire or reward. Thus the first thing to find outis whether the employee concerned is employed to do manual orclerical work, be it skilled or unskilled, technical or non-technical. If that be so, then he would be workman even if he isemployed in supervisory capacity unless by virtue of beingemployed, in supervisory capacity his wages exceed Rs. 500/-or his duties or powers convert his employment into one mainlyof managerial nature. On the other hand if manual or clericalwork is only small part of the duties of the person concernedand incidential to his main work, which is not manual or

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clerical then such person would not be workman.In ManagementofMayandBaker (India) Ltd. v. Theirworkmen and Appellants, A.I.R. 1967 S.C. 678 (3), that courtwas concerned with construing Section 2(s) of the IndustrialDisputes Act as it stood before the amendment of 1956. The rulelaid down was similar to the one which I have propoundedabove and I think the rule still holds good despite thesubstitution of clause (s) of Section 2 by the amendment Act, 36of 1956. In the case of May and Baker, referred to above theSupreme Court came to the conclusion that inasmuch as themain work of the employee in that case was that of canvassingand any clerical or manual work that he had to do wasincidental to his main work of canvassing the employee couldnot be regarded as person falling within the ambit of the term“workman”. On good authority, therefore, I hold that theapproach has to be positive, as said by me earlier and notnegative to find out whether an employee would fall within theambit of the term workman.”

61.Constitutional Bench of the Hon’ble Supreme Court in the case ofH.R. Adyanthaya v. Sandoz (India) Ltd.(1994) 5 SCC 737, afterconsidering the judgments in Burma Shell (supra); Western IndiaMatch Company Co. Ltd. v. Workmen(1964) 3 SCR 560; A.Sundarambal v. Govt. of Goa, Daman and Diu (1988) 4 SCC 42andseveral other judgments, held as under:-

“18. Thelegalpositionthatarisesfromthestatutoryprovisions and from the aforesaid survey of the decisions maynow be summarised as follows.

19.Till 29-8-1956 the definition of workman under the IDAct was confined to skilled and unskilled manual or clericalwork and did not include the categories of persons who wereemployed to do ‘supervisory’ and ‘technical’ work. The saidcategories came to be included in the definition w.e.f. 29-8-

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1956 by virtue of the Amending Act 36 of 1956. It is, further, forthe first time that by virtue of the Amending Act 46 of 1982, thecategories of workmen employed to do ‘operational’ work cameto be included in the definition. What is more, it is by virtue ofthis amendment that for the first time those doing non-manualunskilled and skilled work also came to be included in thedefinition with the result that the persons doing skilled andunskilled work whether manual or otherwise, qualified tobecome workmen under the ID Act.

20.The decision in May & Baker case [(1961) 2 LLJ 94 :AIR 1967 SC 678 : (1961) 2 FLR 594] was delivered when thedefinition did not include either ‘technical’ or ‘supervisory’ or‘operational’ categories of workmen. That is why the contentionon behalf of the workmen had to be based on the manual andclerical nature of the work done by the sales representatives inthat case. The Court had also, therefore, to decide the categoryof the sales representative with reference to whether the workdone by him was of clerical or manual nature. The Court'sfinding was that the canvassing for sale was neither clerical normanual, and the clerical work done by him formed smallfraction of his work. Hence, the sales representative was not aworkman.

21.In WIMCO case [(1964) 3 SCR 560 : AIR 1964 SC 472 :(1963) 2 LLJ 459] , the dispute had arisen on 18-8-1961 underthe U.P. Industrial Disputes Act and at the relevant time thedefinition of the workman in that Act was the same as under theCentral Act, i.e., the ID Act which had by virtue of theAmending Act 36 of 1956 added to the categories of workmen,those doing supervisory and technical work. However, theargument advanced before the Court was not on the basis of thesupervisory or technical nature of the work done by theemployees concerned, viz., inspectors, salesmen and retailsalesmen. The argument instead, both before the IndustrialTribunal and this Court was based on the clerical work put inby them, which was found to be 75 per cent of their work. ThisCourt confirmed the finding of the Tribunal that the employees

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concerned were workmen because 75 per cent of their time wasdevoted to the writing work. The incidental question waswhether the sales-office and the factory and the factory-officeformed part of one and the same industrial establishment orwere independent of each other. The Court observed that itwould be unreasonable to say that those who were producingmatches were workmen and those who sold them were not. Inother words, the Court did hold that the work of selling matcheswas as much an operational part of the industrial establishmentas was that of manufacturing.

22.In Burmah Shell case [(1970) 3 SCC 378 : (1971) 2 SCR758 : AIR 1971 SC 922 : (1970) 2 LLJ 590] the workmeninvolved were Sales Engineering Representatives and DistrictSales Representatives. The dispute had arisen on 28-10-1967when the categories of workmen doing supervisory andtechnical work stood included in the definition of workman. TheCourt found that the work done by the Sales EngineeringRepresentatives as well as District Sales Representatives wasneither clerical nor supervisory nor technical. An effort wasmade on behalf of the workmen to contend that the work ofSales Engineering Representatives was technical. The Courtrepelled that contention by pointing out that the amount oftechnical work that they did was ancillary to the chief work ofpromoting sales and the mere fact that they possessed technicalknowledge for such purpose, did not make their work technical.The Court also found that advising and removing complaints soas to promote sales remained outside the scope of the technicalwork. As regards the District Sales Representatives, theargument was that their work was mainly of clerical naturewhich was negatived by the Court by pointing out that theclerical work involved was incidental to their main work ofpromoting sales. What is necessary further to remember in thiscase is that the Court relied upon its earlier decision in May &Baker case [(1961) 2 LLJ 94 : AIR 1967 SC 678 : (1961) 2 FLR594] and pointed out that in order to qualify to be workmanunder the ID Act, person concerned had to satisfy that he fell

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in any of the four categories of manual, clerical, supervisory ortechnical workman.

23.However, the decisions in the later cases, viz., S.K.Verma [(1983) 4 SCC 214 : 1983 SCC (L&S) 510 : (1983) 3SCR 799] , Delton Cable [(1984) 2 SCC 569 : 1984 SCC (L&S)281 : (1984) 3 SCR 169] , and Ciba Geigy [(1985) 3 SCC 371 :1985 SCC (L&S) 808 : 1985 Supp (1) SCR 282] cases did notnotice the earlier decisions in May & Baker [(1961) 2 LLJ 94 :AIR 1967 SC 678 : (1961) 2 FLR 594] , WIMCO [(1964) 3 SCR560 : AIR 1964 SC 472 : (1963) 2 LLJ 459] and BurmahShell [(1970) 3 SCC 378 : (1971) 2 SCR 758 : AIR 1971 SC 922: (1970) 2 LLJ 590] cases and the very same contention, viz., ifa person did not fall within any of the categories of manual,clerical, supervisory or technical, he would qualify to beworkman merely because he is not covered by either of the fourexceptions to the definition, was canvassed and thoughnegatived in earlier decisions, was accepted. Further, in thosecases the Development Officer of the LIC, the SecurityInspector at the gate of the factory and Stenographer-cum-Accountant respectively, were held to be workmen on the factsof those cases. It is the decision of this Court in A. Sundarambalcase [(1988) 4 SCC 42 : 1988 SCC (L&S) 892] which pointedout that the law laid down in May and Baker case [(1961) 2LLJ 94 : AIR 1967 SC 678 : (1961) 2 FLR 594] was still goodand was not in terms disowned.24.We thus have three three-Judge Bench decisions whichhave taken the view that person to be qualified to be aworkman must be doing the work which falls in any of the fourcategories, viz., manual, clerical, supervisory or technical andtwo two-Judge Bench decisions which have by referring to oneor the other of the said three decisions have reiterated the saidlaw. As against this, we have three three-Judge Bench decisionswhich have without referring to the decisions in May &Baker [(1961) 2 LLJ 94 : AIR 1967 SC 678 : (1961) 2 FLR 594], WIMCO [(1964) 3 SCR 560 : AIR 1964 SC 472 : (1963) 2 LLJ459] and Burmah Shell [(1970) 3 SCC 378 : (1971) 2 SCR 758

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: AIR 1971 SC 922 : (1970) 2 LLJ 590] cases have taken theother view which was expressly negatived, viz., if person doesnot fall within the four exceptions to the said definition he is aworkman within the meaning of the ID Act. These decisions arealso based on the facts found in those cases. They have,therefore, to be confined to those facts. Hence the position inlaw as it obtains today is that person to be workman underthe ID Act must be employed to do the work of any of thecategories,viz.,manual,unskilled,skilled,technical,operational, clerical or supervisory. It is not enough that he isnot covered by either of the four exceptions to the definition. Wereiterate the said interpretation.25.What is further necessary to remember is that in none ofthe aforesaid decisions which we have discussed above, theword ‘operational’ or the words ‘skilled’ and ‘unskilled’independentlyof‘manual’ fellforconsideration as theamendment under which they were introduced came intooperation for the first time w.e.f. 21-8-1984 and the disputeinvolved in the aforesaid decisions were of the prior dates.”

62.A bare perusal of the aforesaid judgments and the definition of‘workman’ under Section 2(s) leads to an inevitable conclusion that anemployee would come within the purview of the definition if he: (i) isemployed in any industry; and (ii) performs any manual, unskilled,skilled, technical, operational, clerical or supervisory work.

PREDOMINANT/PRIMARY DUTY IS THE DECIDING FACTOR

63.It is equally well settled that designation or nomenclature/name ofa post is not material while dealing with the question of an employeebeing workman. There is no scintilla of doubt on the proposition of lawargued by learned counsel for the Petitioner that it is the principal /primary / pre-dominant duties that the employee performs, which form

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the criteria to determine his status as workman as held in number ofjudgements. However, in order to avoid prolixity, I may only refer to afew in the present judgment. In S.K. Maini (supra), the Hon’bleSupreme Court held as under:-

“9.After giving our careful consideration to the facts andcircumstances of the case and the submissions made by thelearned counsel for the parties, it appears to us that whether ornot an employee is workman under Section 2(s) of theIndustrial Disputes Act is required to be determined withreference to his principal nature of duties and functions. Suchquestion is required to be determined with reference to the factsand circumstances of the case and materials on record and it isnot possible to lay down any strait-jacket formula which candecide the dispute as to the real nature of duties and functionsbeing performed by an employee in all cases. When anemployee is employed to do the types of work enumerated in thedefinition of workman under Section 2(s), there is hardly anydifficulty in treating him as workman under the appropriateclassification but in the complexity of industrial or commercialorganisations quite large number of employees are oftenrequired to do more than one kind of work. In such cases, itbecomes necessary to determine under which classification theemployee will fall for the purpose of deciding whether he comeswithin the definition of workman or goes out of it. In thisconnection, reference may be made to the decision of this Courtin Burmah Shell Oil Storage and Distribution Co. of IndiaLtd. v. Burmah Shell Management Staff Assn. [(1970) 3 SCC378 : (1971) 2 SCR 758 : (1970) 2 LLJ 590] In All IndiaReserveBankEmployees' Assn. v. ReserveBankofIndia [(1965) 2 LLJ 175 : AIR 1966 SC 305 : (1966) 1 SCR 25]it has been held by this Court that the word ‘supervise’ and itsderivatives are not words of precise import and must often beconstrued in the light of context, for unless controlled, theycover an easily simple oversight and direction as manual workcoupled with the power of inspection and superintendence of

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the manual work of others. It has been rightly contended byboth the learned counsel that the designation of an employee isnot of much importance and what is important is the nature ofduties being performed by the employee. The determinativefactor is the main duties of the employee concerned and notsome works incidentally done. In other words, what is, insubstance, the work which employee does or what in substancehe is employed to do. Viewed from this angle, if the employee ismainly doing supervisory work but incidentally or for fractionof time also does some manual or clerical work, the employeeshould be held to be doing supervisory works. Conversely, if themain work is of manual, clerical or of technical nature, themere fact that some supervisory or other work is also done bythe employee incidentally or only small fraction of workingtime is devoted to some supervisory works, the employee willcome within the purview of ‘workman’ as defined in Section2(s) of the Industrial Disputes Act.”

64.In Hussan Mithu Mhasvadkar v. Bombay Iron & Steel LabourBoard and Anr., (2001) 7 SCC 394,theSupremeCourtheld asfollows:-

“10.No doubt, in deciding about the status of an employee,his designation alone cannot be said to be decisive and whatreally should go into consideration is the nature of his dutiesand the powers conferred upon as well as the functionsassigned to him. Even if the whole undertaking be an industry,those who are not workmen by definition may not be benefitedby the said status. It is the predominant nature of the servicesthat will be the true and proper test. Operations of theGovernment which are pure and simpliciter administrative andof governmental character or incidental thereto cannot becharacterized to be “industrial” in nature, be they performedby department of the Government or by specially constitutedstatutory body to whom anyone or more of such functions aredelegated or entrusted with. When, as in this case, as disclosed

from Section 15 of the Act as also the provisions of the Scheme,the primary duties of an employee and the dominant purpose,aim and object of employment was to carry out only certainspecific statutory duties in the matter of effective enforcementand implementation of the Welfare Scheme in order toameliorate and rehabilitate particular cross section of labour,and, if need be, on the basis of his own decision which calls fora high degree of discretion and exercise of power to prosecutethe violator of the provisions of the Act, Rules and theprovisions of the Scheme, we are unable to accord our approvalto the claim made on behalf of the appellant that he can yet beassigned the status of “workman”, without doing violence tothe language of Section 2(s) and the very purpose and object ofthe ID Act, 1947. That apart, even judging from the nature ofpowers and the manner of its exercise by an Inspector,appointed under the Act, in our view, the appellant cannot beconsidered to be engaged in doing any manual, unskilled,technical, operational, clerical or supervisory work and themere fact that in the course of performing his duties he had toalso maintain, incidentally, records to evidence the dutiesperformed by him, day to day, cannot result in the conversion ofthe post of “Inspector” into any one of those nature noticedabove, without which, as held by Constitution Bench of thisCourt in the decision in H.R. Adyanthaya case [(1994) 5 SCC737 : 1994 SCC (L&S) 1283] the appellant cannot fall withinthe definition of “workman”. The powers of an Inspector andduties and obligations cast upon him as such are identical andakin to law enforcing agency or authority and also on parwith prosecuting agency in the public law field.”

65.It is, therefore, clearly question of fact as to whether an employeeis workman and can be determined only on the basis of the evidence onrecord, which would clearly reflect the principal or predominant nature ofthe actual duties or work performed by the employee.

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BURDEN OF PROOF FOR PROVING‘WORKMAN’ UNDER SECTION 2(s),IDA

66.The burden to prove that an employee is workman, isundoubtedly on the employee, in as much as it is well settled principleof law that the primary burden of proof to establish fact, rests on theperson who asserts it. In this regard, I may refer to the authoritativepronouncement of the Hon’ble Supreme Court in State of Gujarat v.Pratamsingh Narsinh Parmar(2001) 9 SCC 713and Workmen ofNilgiri Cooperative Marketing Society Ltd. v. State of Tamil Nadu(2004) 3 SCC 514. Again in Reserve Bank of India v. S. Mani (2005) 5SCC 100, the Hon’ble Supreme Court held that it is only if the initialburden of proof, which was on the workman, was discharged to someextent that finding can be returned in respect of the defence of theManagement. plea having been set up by the workman, the initialburden is on him to show that he was employed in the capacity that heclaims and only once the onus and burden cast on him is discharged byplacing some material on record, the Management is required to displacethe case set up by the workman by leading positive evidence. In UCOBank v. Presiding Officer, 1999 SCC OnLine Del 657, this Court heldas under:-

“12.Now I shall deal with the second issue relating, to burdenof proof: Principles regarding burden of proof are stipulated inChapter-VII of Indian Evidence Act, 1872 (Sections 101 to114A). General Principle, which is laid down in these Sections,particularly Sections 101 and 102 is that he who asserts musti.e. burden of proof is the obligation to adduce evidence to thesatisfaction of the Tribunal or Court in order to establish theexistence or non-existence of fact contended to by party.

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Burden of proving fact rests on the party who substantiallyasserts the affirmative of the issue and not upon the party whodenies it, for negative is usually incapable of proof. Dealingwith aforesaid Principles contained in Indian Evidence Act. Mr.O.P. Malhotra in his book entitled “The Law of IndustrialDisputes”, Fifth Edition (Volume-I) Page-842 states as under:

“The expression ‘burden of proof’ has two distinct andoften blurred meanings viz. (i) the burden of proof as amatter of law and pleadings. This, burden, as it has beencalled,forestablishingacase,whetherbypreponderance of evidence or beyond reasonabledoubt, and (ii) the burden of proof in the sense ofintroducing evidence. In the Indian Evidence Act. S. 101uses the expression in the former sense while S. 102 usesit in the latter sense. The former type of onus viz. theburden of proof of the facts in issue is usually known asthe general burden of proof or the burden of proof onpleadings. This type of burden of proof has been calledby jurists, the ‘legal burden’. The legal or persuasiveburden is the burden borne by the party who will losethe issue unless he satisfies the Tribunal of the facts tothe appropriate degree of conviction and it is aptlytermed the “Risk of Non Persuasion” by Vigmore. Thephrase “legal burden” was coined by Lord Denningwhile the phrase ‘persuasive burden’ was used by Dr.Glanville Williams Other jurists have referred to it asthe “burden of proof on the pleadings”. This burden isentitled to be called the ‘legal burden’ because itsincident is determined by the substantive law, and theadjective persuasive gives some indication of its realnature. The pleadings do not always indicate whichparty bears the burden, and the answer to somewhatcontroversial question is assumed if it is said to be“fixed”, for the epithet is designed to emphasise the factthat this burden does not shift in the course of trial amatter of words about which there is room for two viewsin the case of issues to which certain rebuttable

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presumptions of law are applicable. The latter type ofonus is called the professional or the tactical burden.The burden of proof in the first sense is fixed at thebeginning of the trial by the state of pleadings and it issettled as question of law, remaining unchanged,throughout the trial exactly where the pleadings place itand never shifts in any circumstances whatsoever. Theburden of proof in the second sense, however, constantlyshifts,asonescaleofevidenceortheotherpreponderates”.

13.The point for consideration is as to whether these rules ofevidence would be applicable even in adjudication proceedingsunder the Industrial Law. This question was decided bySupreme Court in the case of Shankar Chakravarti v. BritanniaBiscuit Co. Ltd., (1979) II LLJ 194 wherein Supreme Courtobserved that though the Adjudicator/Authorities under the Acthave all the trappings of court, they are not hide-bound by thestatutory provisions of the Evidence Act. Section-11(3) of theIndustrial Disputes Act confers on them powers of Civil Courtunder the Code of Civil Procedure only in respect of mattersspecified therein. Such Authorities are created for adjudicationof Industrial disputes between the parties arrayed before them.Their function being of quasi-judicial nature, they have toadjudicate such disputes on the basis of pleadings of the partiesand the evidence adduced before them in accordance with Rulesof natural Justice. Therefore, any party appearing beforeanyone of such Authorities must make claim or demur theclaim of the other side. When there is burden upon the partyto establish fact so as to invite decision in its favour, it hasto lead the evidence. The obligation to lead evidence toestablish an averment made by party is on the party makingthe averment. The test would be who would fail if no evidence isled. Such party, therefore, must seek opportunity to leadevidence.”

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67.In this context, I may also allude to another judgment of this Courtin Standing Conference (supra), relevant paras of which read asunder:-

“8.While answering issue No. 2, i.e. whether the claimantwas workman or not, the Tribunal observed that the claimant,in this statement, has stated that he was foreman but still aworkman. The management had taken the stand that therespondent, being foreman, was working as supervisor andhe was required to supervise the work of other workmen,working under him. The Tribunal refuted the argument andobserved that it was for the management to prove on recordthat the claimant was falling in one of the exceptions asmentioned in Section 2(s) and he was doing the work either ofmanagerial category or of supervisory category and he washaving powers to sanction or recommend leaves. Since therewas no evidence led by the management, the claimant, has to beheld as workman. I consider that the Tribunal misdirecteditself by putting the onus of proving that the respondent was aworkman on the management. The respondent was appointed asa Foreman. foreman, as per dictionary meaning, hassupervisory duties. If the respondent claimed that he was aworkman, the onus to prove that he was workman, was on theRespondent No.2 himself. In AIR 2004 SC 4179 Mukesh K.Tripathi v. Sr. Divisional Manager, LIC and others, SupremeCourt, considering its earlier judgments in AIR 1967 SC678 Management of May and Baker (India) Ltd. v. TheirWorkmen, 1964(3)SCR 560 Western IndiaMatch Co.Ltd. v. Workmen, 1973 SCC 378 and 1994 (5) SCC 737 H.R.Adyanthaya v. Sandoz(India) Ltd., and observed as under:

“The Constitution Bench summarized the legal position thatarose from the statutory provisions and from the decisionsrendered by this Court, stating:

“Till 29.8.1956 the definition of workman under the ID Actwas confined to skilled and unskilled manual or clerical

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work and did not include the categories of persons who wereemployed to do ‘supervisory’ and ‘technical work’. The saidcategories came to be included in the definition w.e.f.29.8.1956 by virtue of the Amending Act 36 of 1956. It is,further, for the first time that by virtue of the Amending Act46 of 1982, the categories of workmen employed to do‘operational’ work came to be included in the definition.What is more, it is by virtue of this amendment that for thefirst time those doing non-manual unskilled and skilled workalso came to be included in the definition with the result thatthe persons doing skilled and unskilled work whethermanual or otherwise, qualified to become workmen underthe ID Act. “(para 16)

“From the perusal of the award dated 28.5.1996 of theTribunal, it does not appear that the Appellant herein hadadduced any evidence whatsoever as regard the nature ofhis duties so as to establish that he had performed anyskilled, unskilled, manual, technical or operational duties.The offer of appointment dated 16/7/1987 read with theScheme clearly proved that he was appointed as anapperentice and not to do any skilled, unskilled, manual,technical or operational job. The onus was on the Appellantto prove that he is workman. He failed to prove the same.Furthermore, the duties and obligations of DevelopmentOfficer or the Corporation by no stretch of imagination canbe held to be performed by an apprentice.” (Para 23)

9.The view taken by the Tribunal that the respondent wasnot shown to be doing any managerial or supervisory duties bythe management, is contrary to the settled law. In fact, it is nowsettled law that in order to be covered under Section 2(s), aworkman has to prove that he was doing one of the categoriesof work as enumerated in Section 2(s) i.e. manual, skilled, semiskilled, clerical, operational, technical or supervisory. In caseof supervisor, the salary must be below Rs. 1600/-. AForeman, in construction of building, does not do anymanual, clerical, skilled or semi skilled work. He essentially

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has to supervise the work of construction at various stages. Aconstruction of building has several steps. The first step isdigging of trenches for laying foundation. The second step islaying foundation and raising superstructure comprising ofwalls, concrete slabs, pillars, laying of RCC roof etc. While theworkforce involved in this entire work are labour, meson, barbenders etc., their work is supervised by the supervisors,foremen, architects. Supervisor and foreman have not to dowork manually, but they have simply to give instructions to thelabours and supervise their work so that work is done properlyand efficiently. Despite being foreman, the respondentclaimed to be workman, so it was obligatory on therespondent to prove that work, as specified under Section 2(s)of the Industrial Disputes Act, was being done by him. Therespondent failed to show that he was doing any manual,skilled, semi skilled, clerical, technical job. He did not specifythe nature of his work. It has also come in evidence that he wasthe only foreman, employed by the management. I, therefore,consider that the order of the Tribunal, putting onus on themanagement to prove that the respondent was workman, is aperverse order.”68.It is thus manifestly clear that in order to be covered under thedefinition of ‘workman’ under Section 2(s) of the ID Act, the employee isrequired to show that the job of the employee falls within one or the othercategories enumerated in the definition and merely showing that theemployee has not performed supervisory or managerial duties does notipso facto make him workman, and the burden of proof clearly lies onthe employee claiming the said status. Once the employee has dischargedthe onus by placing some material on record, Management has to displacethe case by positive evidence. To this extent this Court accepts thecontention of the learned counsel for the Petitioner.

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APPLICABILITY OF IDA / WJA

69.Petitioner concedes that provisions of WJ Act are applicable to thePetitioner organization as it is ‘Newspaper Establishment’ underSection 2(d) of the said Act albeit disputes that Respondent No. 2 is a‘working journalist’ under the WJ Act and thus contests the jurisdictionof the Labour Court to entertain the claim of Respondent No. 2. In thisregard, I may allude to para 26 of the writ petition as follows:-

“26. THAT the Ld. Presiding Officer failed to appreciate thatsince the Petitioner company falls under the definition of a“newspaper establishment” under section 2(d) of the WorkingJournalists Act, the Working Journalists Act and not the ID Actis applicable to the present case. Thus, Respondent No. 2 waswrongly considered as “workman” under the ID Act, when thetrue issue to be determined was whether Respondent No. 2 wasa “working journalist” under the Working Journalists Act. TheImpugned Award is, therefore, erroneous in so far as the Ld.Presiding Officer has failed to apply the correct law.”

70.Per contra, it is the case of Respondent No. 2 that his claim wastenable before the Labour Court as he is ‘working journalist’ andthereby covered by the provisions of the ID Act. To give perspective tothe contentions of the parties, it becomes important and relevant toexamine the provisions of WJ Act in so far as they are applicable to thepresent controversy, which are extracted hereunder for ready reference:-

2.Definitions:- In this Act, Unless the context otherwiserequires:-

“(f) “working journalist” means person whose principalavocation is that of journalist and [who is employed as such,either whole-time or part-time, in, or in relation to, one or more

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newspaper establishments], and includes an editor, leader-writer, news-editor, sub-editor, feature-writer, copy-tester,reporter, correspondent, cartoonist, news-photographer andproof-reader, but does not include any such person who-

(i) is employed mainly in managerial or administrativecapacity; or

(ii) being employed in supervisory capacity, performs,either by the nature of the duties attached to his office orby reason of the powers vested in him, functions mainlyof managerial nature;”

3.Act 14 of 1947 to apply to working journalists .-(1) Theprovisions of the Industrial Disputes Act, 1947 (14 of 1947), asin force for the time being, shall, subject to the modificationspecified in sub-section (2), apply to, or in relation to, workingjournalists as they apply to, or in relation to, workmen withinthe meaning of that Act.

(2) Section 25-F of the aforesaid Act, in its application toworking journalist, shall be construed as if in clause (a)thereof, for the period of notice referred to therein in relation tothe retrenchment of workman, the following periods of noticein relation to the retrenchment of working journalist had beensubstituted, namely:-

(a) six months, in the case of an editor, and

(b) three months, in the case of any other workingjournalist.”

71.WJ Act, 1955 was enacted to regulate certain conditions of serviceof working journalists and other persons employed in NewspaperEstablishments. Section 2(f) defines ‘working journalist’ as personwhose principal avocation is that of journalist and is employed in or inrelation to any Newspaper Establishment and includes certain categories

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such as Editor, etc. mentioned therein, which are merely inclusive andillustrative. Section 3 thereof, provides that provisions of IndustrialDisputes Act, 1947 shall apply to the working journalists, subject tomodifications mentioned in Sub-Section (2) of Section 3. WJ Act of 1955is complete Code, in so far as disputes between the employer andworking journalists are concerned and by virtue of Section 3, the disputeshave to be settled according to the provisions of the ID Act.

72.In Express Newspapers v. Labour Court, 1963 SCC OnLine AP254, Respondent was working as journalist and was dismissed by theExpressNewspapersPvt.Ltd.andreferencewasmadeby theGovernment under the ID Act. This was challenged by the Petitioner /Management on the ground that the Labour Court had no jurisdiction toentertain the matter. The contention was rejected by the Hon’ble SupremeCourt and it was held that all provisions of the ID Act, as if the matter soreferred was specified in Schedule II of the ID Act, would apply and theLabour Court would have the jurisdiction to deal with the matter. To thesame effect are the observations of Division Bench of the Patna HighCourt in Samachar Bharti v. Kedar Nath, AIR 1972 Pat 397.

73.It was vehemently canvassed on behalf of Respondent No.2 that heis working journalist under the WJ Act and therefore ‘workman’. Thesaid plea of Respondent No.2 finds support from the observations of thePatna High Court in Behar Journals (supra) and is accepted by thisCourt. Relevant passage from the judgment is as follows:-

“6.In support of the application the first point urged onbehalf of the petitioner is that respondents No. 2, being sub-editor, was not workman within the meaning of the Industrial

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Disputes Act and as such, there was no dispute between themanagement and the workman with regard to the point inquestion, and the reference was void. The argument, in myopinion, is based on misconception of law. An Act called theWorking Journalists (Conditions of Service) and MiscellaneousProvisions Act, 1955 (Act XLV of 1955), was enacted by theParliament to regulate certain conditions of service of workingjournalistsandotherpersonsemployedinnewspaperestablishments.

“Working journalist” has been defined in S. 2(f) of that Act tomean person whose principal avocation is that of journalistand who is employed as such in, or in relation to, anynewspaper establishment, and includes an editor, leader-writer, news editor, sub-editor, feature-writer, copy-taster,reporter, correspondent, cartoonist, news-photographer andproof-reader, but does not include any such person who (i) isemployed mainly in managerial or administrative capacity, or(ii) being employed in supervisory capacity, performs eitherby the nature of the duties attached to his office or by reason ofthe powers vested in him, functions mainly of managerialnature.

Thus, according to this definition, respondent No. 2, sub-editor, was working journalist. Section 3(1) of that Act laysdown that the provisions' of the Industrial Disputes Act, 1947(XIV of 1947), as in force for the time being, shall, subject tothe modifications specified in sub-s. (2) (with which we are notconcerned in the present case) apply to, or in relation to,working journalists as they apply to, or in relation to, workmenwithin the meaning of that Act. It is, therefore, manifest thatrespondent No. 2 was workman within the meaning of theIndustrial Disputes Act and the reference, therefore, wasperfectly valid. The argument raised on behalf of the petitioneron this point, therefore, fails.”

74.In Bennett Coleman Co. Ltd. v. Mumbai Mazdoor Sabha,(1996) 2 Mah LJ 823, the Bombay High Court referred to the judgment inStatesman (supra) and held as under:

“21. The learned counsel for the petitioners relied upon thejudgmentofHighCourtofDelhiinthecaseof TheManagement of Statesman Ltd. v. Lt. Governor, Delhi reportedin 1975 Lab. I.C. 543. In this case, B.C. Misra, J. speaking forthe Court observed that the modification of the IndustrialDisputes Act in its application to Working Journalists wasindicated by sub-section (2) of section 3 and other provisions ofAct (45 of 1955) but subject to these modifications theIndustrial Disputes Act, 1947 applied mutatis mutandis to theworking journalists. In this case, the High Court of Delhiobserved that the working journalists were entitled to all thebenefits flowing from Industrial Disputes Act subject tomodification indicated by sub-section (2) of section 3 and otherprovisions of Act (45 of 1955) and it was therefore notnecessary to decide whether they were really workmen as such.The said judgment thus contains some observations to the effectthat the question as to whether the working journalists wereworkmen or not was kept open. If any observations are to bespelt out from the said judgment to the effect that the workingjournalists were not workmen within the meaning of section2(s) of the Industrial Disputes Act, 1947, I respectfully disagreewith such observations.”

‘WORKING JOURNALIST’ UNDER WJ ACT

75.The next question that needs examination is as to who is a‘working journalist’ under Section 2(f) of WJ Act. In Management ofRashtradoot, Jaipur v. Rajasthan Working Journalist Union andOrs. (1971) 3 SCC 96, the Hon’ble Supreme Court upheld the findings ofthe Labour Court that the Respondent who was an Editor was workingjournalist under Section 2(f), even when his duties extended to

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appointment of Sub-Editors, giving directions for payment of salaries anddealing with the leave applications of the employees. It was held thatsince it was not denied by the Management that Respondent was workingas an Editor, the other functions imputed to him were in addition to hisfunctions as an Editor. Relevant paras of the judgment are as under:-

“6.The Labour Court after an exhaustive discussion of theevidence, both oral and documentary, produced before it, cameto the conclusion that Shri Dinesh Khare was ‘workingjournalist’ within the definition contained in Section 2(f) of theAct and that he was, therefore, entitled to all the benefitsaccruing thereunder.

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13.It was not denied that Shri Khare had been working as anEditor. The other functions imputed to him were in addition tohis functions as an Editor. The question arises, if on this state ofthe pleadings and evidence as discussed earlier, it can be saidthat the conclusions of the Labour Court are either perverse orbased on no evidence or are otherwise tainted with such aserious legal infirmity that they should be reopened by us underArticle 136 of the Constitution. We are unable to hold that theyare. There is legal evidence on the record both oral anddocumentary, on which the Labour Court could lawfully baseits conclusion. We find no justification for interfering with it.

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15.In the final result the conclusions of Labour Court mustbe held to be unassailable.”

76.In R. Varadachari (supra), the Madras High Court held that theclaimant was not workman / working journalist as he was employed asa Regional Manager exercising full managerial and supervisory control. Itwas found as matter of fact that the claimant was not entrusted with

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supervisory duty incidentally or that his mere designation was RegionalManager but as matter of fact he was controlling the entire Region andexercising all functions of Manager. The Petitioner had himselfadmitted that he was in-charge of the entire Southern Region NewsDivision and the entire administration of Madras Regional Office, itsoperations and all persons employed in the Sothern Region were found tobe under his supervision and control, employed in whatever capacity.

77.In recent judgment in the case of Jagran Prakashan Limitedand Ors. vs. Presiding Officer, Labour Court and Ors., 2020 (9) ADJ44the Allahabad High Court while dealing with the issue of who a‘working journalist’ is, held as under:-

“25. conjoint reading of the aforesaid provisions togetherwith the preamble of the Act shows that it is statute brought 'toregulate certain conditions of service of working journalistsand other persons employed in newspaper establishments', toborrow the precise phraseology of the preamble. The WorkingJournalists Act is, thus, by no means wholesome or acomplete legislation, governing or regulating the entire gamutofserviceconditionsofworkingjournalistsandothernewspaper employees. Section 3 of the Act, under reference,clearly shows that to working journalists, who are otherwisenot workmen within the meaning of the Central Act, theprovisions of the Central Act have been extended by virtue ofsub-Section (1) of Section 3 in the same manner as they apply toworkman, subject to modifications, detailed in sub-Section (2)of Section 3. The effect of Section 3 is that working journalists,as defined under the Working Journalists Act, who are nototherwise workmen, would be treated to be so and extended allbenefits available to workmen under the Central Act, subject tomodifications provided under sub-Section (2) of Section 3.

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28.The question, however, remains whether junior platemaker employed with newspaper establishment is workmanby virtue of Section 3 of the Working Journalists Act, alone. Tothe understanding of this Court, the more pertinent issue wouldbe whether junior plate maker is at all working journalist,and if not, is he still workman, either under the Central Act orthe State Act?

29.A working journalist has been defined under Section 2(f)of the Working Journalists Act, the terms of which have beenextracted above. reading of the definition of the workingjournalist shows that it defines in substance and in generalterms who working journalist is, and then in the later part,furnishes illustrative categories of newspaper employees whowould qualify for working journalists. The categories indicatedare inclusive and illustrative; not exhaustive. There is, in thelast part of the definition, clause, that would exclude anyone,who qualifies under the first part as working journalist fromthat category.

30.Now, what is to be seen is, whether plate makerqualifies as working journalist, under Section 2(f) of theWorking Journalists Act? working journalist is primarilydefined as person whose principal avocation is that of ajournalist, but the word journalist is nowhere defined in thestatute. Therefore, the import and meaning of the word'journalist' has to be understood according to its ordinarymeaning, falling back for its definition on extrinsic sources. TheCambridge International Dictionary of English (published bythe Press Syndicate of the University of Cambridge) defines theword 'journalist' as, "a person who writes news stories orarticles for newspaper or magazine, or broadcasts them onradio or television." The essence of the avocation of journalismis literary or intellectual contribution made to print orelectronic media in the form of news, stories, articles orphotographs and the like, in some form or the other. Thespecific illustrations in the inclusive list of who journalist is,under Section 2(f) of the Working Journalists Act, answer the

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above description of journalist as understood in ordinaryparlance. It is, thus, journalist, employed, as such, with anewspaper establishment, who alone can qualify as workingjournalist under the Act, last mentioned. The illustrativecategories of employees are all functionaries, who are bound bya common thread about their different functions in newspaperestablishment - the common thread being their literary orintellectual contribution to newspaper publication, in one wayortheother.Clearly,therefore,otherfunctionariesoremployees working in the newspaper establishment, who do notqualify for journalist, judged on the essence of their function,would not be working journalist under the Working JournalistsAct.”

78.In Marshal Braganza v. First Labour Court (by S.R. Samant,Presiding Officer) and Another, (1975) SCC OnLine Bom 2, Bombay

High Court held as under:-

“11. ……..It may be that in the narrow sense photography is anart but it is highly developed science.

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In my judgment, the execution of the work of cameramaninvolves special technical knowledge. The nature of the work ofthe cameraman indicates that for the successful creation ofreality in motion picture he depends upon the display of hisimagination and the exercise of artistic faculty and theapplication of technical knowledge as distinguished frommanual dexterity. In reaching this conclusion, I am guided bythe observations made by ther Lordships of the Supreme Courtin the case of Burmah Shell quoted above. I therefore, hold thatthe petitioner would fall within the meaning of the definition ofthe word “workman” as defined in S.2(s) of the Act.”

79.Therefore, whether person is working journalist or not has to beascertained by posing question as to whether the principal avocation of

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person is that of journalist. The word ‘journalist’ is not defined underthe WJ Act and therefore its meaning would have to be understoodaccording to its ordinary meaning as person who authors Newsstories/Newspaper Articles/Magazine Articles or broadcast them onRadio or Television as defined in ‘The Cambridge InternationalDictionary of English’. As held by the Allahabad High Court, the essenceof the avocation is literary or intellectual contribution made to print orelectronic media in the form of stories or articles and the illustrations inSection 2(f) of the WJ Act answer the said description of journalist asunderstood in ordinary parlance. Therefore, to be working journalist,one must be employed as journalist with Newspaper Establishmentand included in the illustrative categories mentioned in Section 2(f) of theWJ Act. It is not enough that he is not covered under the exceptions to thedefinition, which are found in sub-clauses (i) and (ii) of Section 2(f) ofWJ Act. Careful reading of sub-clause (ii) indicates that person isexcluded from the definition of working journalist, if he or she is workingin supervisory capacity and performing functions mainly of amanagerial nature. The sequitur is that if person has supervisory dutieswith no or insignificant managerial responsibilities, he or she would stillbe working journalist.

80.Applying the above principles, this Court finds merit in thecontention of Respondent No.2 that for excluding an employee from thedefinition of working journalist, twin conditions need to be establishedviz.: (i) the employee was working in the supervisory position; and (ii)while holding the supervisory position, he or she was dischargingmanagerial functions. There is also merit in the contention that the

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provisions of the ID Act would be applicable to the present case if it isestablished that Respondent No.2 is working journalist under Section2(f) of the WJ Act.

ISSUE FRAMED BY THE LABOUR COURT

81.Learned counsel for the Petitioner had emphasized that the LabourCourt had wrongly framed the issue and in case it wanted to renderfindings under the WJ Act, the correct or the additional issue framedshould have been whether Respondent No.2 was ‘working journalist’under the WJ Act. It was prayed that the matter should therefore beremanded for framing of correct/additional issue. The contention of thePetitioner deserves to be rejected for many-fold reasons. Firstly, perusalof the Labour Court Award clearly reflects that parties had argued withrespect to the applicability of WJ Act at length and even in the presentwrit petition, there is clear admission that the said Act is applicable.Labour Court has recorded in the Award that the Management had arguedthat the workman is not working journalist as per Section 2(f) of the WJAct. Relevant part is as under:-

“The Management has also argued that the workman-herein isnot “working journalist” as per S. 2(f) of the WorkingJournalist Act, 1955 which is worded thus: …”

82.During the course of arguments, it was not the case of thePetitioner that the observations of the Labour Court are incorrect orcontrary to the arguments addressed and this Court finds no reason todisbelieve the observations made by the Labour Court in this regard. It isnot the case of the Petitioner even today that any objection was taken bythe Petitioner before the Labour Court that no arguments could be

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addressed with respect to the provisions of WJ Act in the absence of anyissue being framed in that regard. More importantly, Petitioner did notchallenge the order when the issue was initially framed by the LabourCourt.

83.Secondly, even before this Court, substantial arguments have beenaddressed on the issue, as to whether Respondent No. 2 is workingjournalist or not, by both sides and detailed pleadings as well as writtensubmissions have been filed, both on facts as well as on law. I may notethat similar issue had come up before Coordinate bench of this Court

in A. Spiegel Verlag Rudolf Augustein Gmbh & Co. KG v. Govt. ofNCT of Delhi & Anr., 2019 SCC OnLine Del 8624and the Court,having heard the arguments on the issue at length, adjudicated the matterinstead of remanding it back to the Labour Court.

84.Thirdly, it is significant to note that the case of the Petitionerbefore the Labour Court was that Respondent No.2 worked in asupervisory capacity. It was not the case of the Petitioner that RespondentNo. 2 performed managerial or administrative functions, which is sinequa non for excluding person from the definition of ‘workingjournalist’. The documents relied upon by the Petitioner before theLabour Court were the e-mails exchanged between the senior officials ofthe Petitioner and Respondent No. 2 as well as compendium named‘Role Beacon’, which according to the Petitioner enumerated the role andresponsibility of senior Photographer 4. perusal of the documents,heavily relied upon by the Petitioner, both before the Labour Court andbefore this Court, does not even remotely suggest that Respondent No. 2was performing functions in managerial capacity and therefore for

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obvious reasons the case set up by the Petitioner was that RespondentNo. 2 performed supervisory roles.

85.The argument of learned counsel for the Petitioner can be looked atfrom another prism. Status of an employee is determined by thepre-dominant duties performed by him during the course of hisemployment. The fundamental and inherent nature of the work performedby an employee cannot undergo change, post termination of his servicesand/or during litigation. In the present case, Respondent No. 2 wasemployed with the Petitioner till 2006, when his services wereterminated. When Respondent No. 2 filed claim before the LabourCourt, his exact nature of employment was known to the Petitioner and inthe written statement, it was open to the Petitioner to plead the nature ofjob that Respondent No.2 was deployed to carry out. It was also open tolead evidence to support the pleadings. Categorical stand, however, wastaken in the written statement that Respondent No. 2 was employed in a‘supervisory capacity’ albeit in the context of ID Act. While it may betrue that no issue was framed on the status of Respondent No. 2 under theWJ Act, but what this Court fails to understand is how the allegedsupervisory nature of job, purportedly supported by e-mails and ‘RoleBeacon’, could change post-2006 and pertinently could the Petitionerimprove upon the emails and ‘Role Beacon’, assuming the issue wasframed with respect to the WJ Act, as contended by the Petitioner.Answer to the said question can only be in the negative. As per the statedcase of the Petitioner, the nature of job of Respondent No. 2 was that of aSupervisor and Supervisor cannot become Manager during the courseof litigation. The words ‘Supervisor’ and ‘Manager’ though may not be

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strictly defined and may appear to be loose expressions, with no rigidfrontiers and it may not be possible to precisely define where supervisionends and management begins, however, the two are not interchangeable.Thus, even if the issue was framed by the Labour Court, Petitioner couldnot have improved upon the e-mails or the Role Beacon which was theonly evidence available with the management in the context of thefunctioning of Respondent No. 2. In this view also, this Court finds noreason to remand the matter back to the Labour Court.

NATURE OF EMPLOYMENT OF RESPONDENT NO. 2

86.Theseminalandsomewhatvexedissuethatarisesforconsideration and which goes to the root of the jurisdiction of the LabourCourt is the nature of employment of Respondent No.2. The entirepleadings of the writ petition are focused on showing that RespondentNo.2 was performing supervisory functions and in order to substantiatethe plea, Petitioner has placed reliance on the Global Role Framework,Role Beacon for Senior Photographer-4 and several emails exchangedbetween Respondent No.2 and his seniors, allegedly reflecting that he ledsmall groups of photographers, assigned tasks to photographers /stringers, reviewed their work and mentored his subordinates. It is morethan evident that it is not the pleaded case of the Petitioner thatRespondent No.2, being employed in supervisory capacity, performedeither by nature of the duties attached to his office or by reason of thepowers vested in him, functions mainly of managerial nature. In thisview of the matter, in my view, taking the best case of the Petitioner thatRespondent No.2 worked in supervisory capacity, even if true, would

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not exclude Respondent No.2 from the definition of ‘working journalist’under Section 2(f) of the WJ Act. Quite apart, it is required to be notedthat despite the stand of the Petitioner, the Labour Court did not view thecase of the Petitioner in narrow or restricted compass of ‘supervisoryfunctions’, but also examined if Respondent No. 2 performed managerialfunctions. It was extensively argued on behalf of the Petitioner thatRespondent No. 2 was not working journalist and therefore the LabourCourt, after noting the meaning and connotation of the nomenclature‘Manager’, analyzed the nature of duties from that perspective as welland came to finding in favour of Respondent No.2. Be it noted thatwhile canvassing the aforesaid argument before the Labour Court,Petitioner never raised any objection that an issue was not framed in thatregard and it bears repetition to state that Petitioner never assailed theorder of the Labour Court, wherein issue was framed under the ID Act.87.While the Petitioner has neither pleaded nor established thatRespondent No.2 was performing managerial functions, yet, in light ofthe judgements mentioned above, it would be necessary to examine ifRespondent No.2 was able to discharge the burden of establishing that hewas ‘working journalist’ under Section 2(f) of the WJ Act. plain andbare reading of Section 2(f) of the WJ Act clearly shows that ‘workingjournalist’ is person whose: (i) principal avocation is of journalist; (ii)who is employed either whole time or part time in or in relation tonewspaper establishment; and (iii) falls in one or more of the categoriesmentioned therein, which are merely illustrative and includes ‘news-photographer’. That Respondent No.2 was employed in ‘newspaperestablishment’ is undisputed. As far as ‘news-photographer’ is concerned,

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the evidence on record is pointer to the fact that the predominant dutiesof Respondent No.2 were that of photographer. Even assuming for thesake of argument in favour of the Petitioner that Respondent No.2 inaddition to his principal duties of photographer coordinated andmentored the work of some juniors/stringers, it is not enough to takeaway the fact that his principal avocation was of photographer. It hasbeen clearly held by the Hon’ble Supreme Court in Burmah Shell(supra) and Ananda Bazar Patrika (P) Ltd. v. Workmen (1970) 3SCC 248as well as in John Joseph Khokar vs. B.S. Bhadange, 1997SCC OnLine Bom 366by the Bombay High Court that it is the primaryduty and the predominant nature of employment, which is decisivefactor, and not any ancillary or additional duties, to determine if anemployee is ‘workman’ or not. Labour Court has rightly relied on thecross-examination of MW-1, wherein specific question was put to thewitness on the predominant duty of Respondent No.2 and the questionand the answer is extracted hereunder for ready reference:-

“Q. Is it true that the predominant duty of the claimant was thatof photographer?

Ans. It is partly true. (Vol. Apart from the role of photographer,claimantwasalsoresponsibleasaDeputyChiefPhotographer.)”

88.Respondent No.2 has clearly deposed in his affidavit that he wasemployed with the Management since June, 1987 as Dark RoomAssistant-cum-News Photographer as regular employee. His lastDesignation was Deputy Chief Photographer and the nature of his duties

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was that of Press Photographer. Relevant part of the affidavit is extractedhereunder:-

“That I was employed with the management since June 1987 asa Dark Room Assistant cum News Photographer as regularemployee. I was appointed by Mr. Michael Neale, South AsiaManager,Reuters.MylastdesignationwasDy.ChiefPhotographer and my last drawn wages was Rs. 1,08,000/- permonth cost to the company. The nature of my duties were that ofa Press Photographer.”

89.Thus, Respondent No. 2 discharged the initial burden of provingthat he was deployed as photographer and the onus shifted on thePetitioner to prove to the contrary. In the cross-examination by theManagement, there is not even suggestion to Respondent No.2 that hisprincipal nature of duties did not involve photography. It would be usefulto allude to the document, heavily relied upon by the Petitioner, i.e. ‘RoleBeacon’, which according to the Petitioner describes and prescribes theroles and responsibilities/accountabilities as well as technical/professionalskills and competencies of Senior Photographer-4. reading of thedocument leaves no doubt that the primary/principal and predominantduties of Respondent No.2 were that of ‘news-photographer’. Relevantportion is as under:-

“Role Purpose

What is the primary purpose of this role? How does itcontribute to the achievement of overall business objectives?

Takes decisions on when and how to photograph and producetop level news, sports, entertainment and feature pictures inline with the principles of accuracy, independence and freedomfrom bias. Skilled in pro-active coverage of stories and takingkey or leading roles in major assignments.

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Major Responsibilities/Accountabilities

Decides which images to gather to meet coverage demands.Capable of major assignment logistical planning e.g. comms,staffing etc. May lead small team of other staff photographsand stringers on big story. In large centres, may play roleon pictures desk, editing pictures copy as needed. Fullyconversant with all aspects of digital photography, pictureeditingandprocessingsystemsincludingPanikonandPhotoshop. Capable of being sent on assignment anywhere inthe world and have the ability to transmit pictures. Able todeputise for local Chief Photographer as and when required.Embraces the principle of telling stories using the most suitablemultimedia opportunities. May take on tutoring or mentoringduties.

Scope and Impact

Financial responsibilities (eg budget, revenue, grosssales etc)Financial responsibilities (eg budget, revenue, grosssales etc)

Business impact and geographic scope of role?Business impact and geographic scope of role?

People management responsibilities? (include typicalteam size)People management responsibilities? (include typicalteam size)

Typically operates within location or across small group oflocations. Has an established network of contacts withinlocation or immediate area. No staff responsibilities but able tomanage stringer networks. Will possess direct injection rights.

Technical/Professional Skills & Competencies

What are the critical skills that successful incumbent wouldpossess; eg. fluent in German, expert at unbiased writing,expert decision maker, working knowledge of risk management,basic awareness of investment banking, expert at mitigatingconflict.

Possesses an excellent eye for picture. Has proven ability toshoot pictures which show originality, flair and imagination

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and demonstrates an ability to use pictures technology tocapture and file images. He/she may have specialism in onearea and is able to writ basic captions as required.”

90.It is significant to note that the Petitioner had in evidence relied onseverale-mailswhichwerecorrespondencesexchangedbetweenRespondent No.2 and the Senior Officers in the hierarchy of thePetitioner. No doubt the purpose and intent of relying on thisdocumentary evidence was primarily to show that Respondent No.2 wasallegedly not working up to the expected standards and his performancewas deteriorating, but close reading of the e-mails, as rightly pointed outby counsel for Respondent No.2, itself shows that the primary andsubstantive role was clearly that of news-photographer. The e-mailsdisclose that the Senior Officers of the Petitioner were pointing out thedeficiencies in his work, i.e. photographs and were critical of his role as aphotographer and no part of the emails even remotely suggests orsupports the case of the Petitioner that Respondent No.2 was performingmanagerial functions. This is clear from the e-mails dated 12.04.2006,12.06.2006, 15.06.2006 etc. wherein the Management is critical about thequality, size and the number of photographs taken by Respondent No.2.Useful it would be in this regard to refer to observation in the judgment inMarshal Braganza (supra), which has been heavily relied upon by theLabour Court. Para 11 has been quoted in the earlier part of the judgment.91.In my view, therefore, Respondent No.2 had discharged the burdenof proving that he was working in the capacity of news-photographerand was therefore ‘working journalist’ under Section 2(f) of the WJAct. It was certainly open to the Management to plead that Respondent

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No.2 fell in the exception to Section 2(f) and prove that he was workingas supervisor and performing functions of managerial nature.However, Petitioner never pleaded that Respondent No.2 was performingmanagerial functions, for the obvious reason that they were conscious ofthe fact that Respondent No. 2 was never deployed in managerialcapacity.

92.Labour Court has delved into the definition of ‘working journalist’which includes ‘news-photographer’ within its ambit. Court has takenpains to distinguish and differentiate between supervisory, managerialand administrative functions, apart from delving at length on thedefinitions of ‘manager’ under various Dictionaries and has rightlyobserved that it is the primary duty and not the designation which is thedetermining factor. Labour Court has also carved out the distinctionbetween an employee discharging supervisory function and the onedischargingsupervisoryfunctioninconjunctionwithmanagerial/administrative functions. Carefully assessing the evidence led by thePetitioner, the Labour Court, after relying on the definition of the term‘Manager’ and ‘managerial functions’ from various Dictionaries as alsorelied upon in various judgements, has undertaken the exercise ofdetermining if Respondent No. 2 performed managerial functions andonly thereafter has come to conclusion that he neither performedsupervisory nor managerial functions. In my view, the Labour Court hasarrived at correct finding, after posing the right question and analyzingthe evidence. Labour Court, after examining the definition of ‘workingjournalist’ and ‘workman’ under the respective Statutes has, in my view,rightly concluded that being workman, Respondent No. 2 was amenable

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to its jurisdiction and the claim of Respondent No. 2 challenging thetermination order and seeking reinstatement with full backwages wasopen to adjudication under the Industrial Disputes Resolution MechanismRegime. This Court thus finds no infirmity with this part of the impugnedAward. Needless to state that since Respondent No. 2 is workingjournalist under Section 2(f) of the WJ Act, provisions of the ID Act wereapplicable to the present case, by virtue of Section 3 of the WJ Act.Therefore, the provisions of the ID Act would be applicable to the presentcase by virtue of Section 3 of the WJ Act.

LEGALITY OF RESPONDENT NO.2’S TERMINATION

93.The next issue that arises for consideration is whether the servicesof Respondent No.2 have been unfairly, unjustifiably and illegallyterminated. There is no dispute that Respondent No.2 joined the servicesof the Petitioner in the year 1987 and was regular employee. There isalso no dispute that the services of Respondent No.2 were abruptlyterminated vide letter dated 28.11.2006. The letter Ex. WW-1/5 reads asfollows:-

“Mr. Kamal KishoreDelhi

28 November 2006

Dear Kamal

1. You are employed with Reuters India Private Limited(Company) as photographer in our Delhi establishment.(Company) as photographer in our Delhi establishment.

2. In accordance with your contract of employment with theCompany, you are required to perform your dutiesdiligently, efficiently and to the satisfaction of yoursuperiors. The nature of activities carried out by ourCompany enjoins upon all its employees (including you) toCompany, you are required to perform your dutiesdiligently, efficiently and to the satisfaction of yoursuperiors. The nature of activities carried out by ourCompany enjoins upon all its employees (including you) to

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perform their duties efficiently and produce work of veryhigh standard.

3. It has been observed that in the last 6 to 8 months, yourwork performance has been far below the required levelswith the quality of your work dropping to unacceptablydeficient levels.work performance has been far below the required levelswith the quality of your work dropping to unacceptablydeficient levels.

The quality of your work dropped so badly that most ofyour pictures had to be "spiked", meaning they could notbe put into the Company's usable set of pictures for onwardcommercial licensing by the Reuters Group.

We from time to time counselled you and advised you toimprove your performance including by way of several e-mails, These e-mails pointed to you specifically thedeficiencies in your performance, with view to giving youspecific feedback and adequate opportunities to improveyour performance (refer our e-mails to you including thosedated 12 April 2006, 26 June 2006, 3 July 2006, 17 July2006, 16 August 2006, and 25 August 2006). The followingare the key deficiencies we brought to your attention in ourvarious communications to you:

a. The quality of composition of your pictures has beenvery poor - to cite some of the many examples: (i) thepictures you provided of the Delhi Municipality's actionagainst the outbreak of dengue looked amateurish (andhad to be spiked), while our competitor's pictures of thesame event were so good that one of them made it to thefront page of newspaper; (ii) the picture you sentabout security arrangements at shopping mall wasbadly composed and looked like men waiting at busstop; (iii) your 3 pictures of the Delhi monsoon werebadly shot and mostly from high position which neverbrings out the impact of the water in the picture, whileour competitors sent one good picture each – both shotfrom ground level and their pictures “told” the storythey were meant to tell.very poor - to cite some of the many examples: (i) thepictures you provided of the Delhi Municipality's actionagainst the outbreak of dengue looked amateurish (andhad to be spiked), while our competitor's pictures of thesame event were so good that one of them made it to thefront page of newspaper; (ii) the picture you sentabout security arrangements at shopping mall wasbadly composed and looked like men waiting at busstop; (iii) your 3 pictures of the Delhi monsoon werebadly shot and mostly from high position which neverbrings out the impact of the water in the picture, whileour competitors sent one good picture each – both shotfrom ground level and their pictures “told” the storythey were meant to tell.

Signature Not Verified

b. You either did not use photo editing software or did noteffectively use photo editing software to get better"crop" of the pictures or enhance their quality. Forexample picture you filed about man sellingballoons would have looked much better if you had acloser crop of it.effectively use photo editing software to get better"crop" of the pictures or enhance their quality. Forexample picture you filed about man sellingballoons would have looked much better if you had acloser crop of it.

c. You filedseveral unnecessary pictureswhichputavoidable workload on the editing desk-by way ofexamples, you sent 5 pictures of the Indian PrimeMinister from the G7 Summit all of which were quitesimilar and uninteresting for commercial use; and yousent the 3 pictures of the Delhi monsoon referred toabove.avoidable workload on the editing desk-by way ofexamples, you sent 5 pictures of the Indian PrimeMinister from the G7 Summit all of which were quitesimilar and uninteresting for commercial use; and yousent the 3 pictures of the Delhi monsoon referred toabove.

d. You lacked team work which is very essential for aconducive work environment in the Company and forsynergistic output. For example, when you allocatedwork to relatively new work colleague, you allocatedtwo events which given the distance and the expectedtrafficconditionswereimpracticalfortheworkcolleague to cover.conducive work environment in the Company and forsynergistic output. For example, when you allocatedwork to relatively new work colleague, you allocatedtwo events which given the distance and the expectedtrafficconditionswereimpracticalfortheworkcolleague to cover.

4. You are aware that our Company has to competeeffectively not only among domestic players but alsointernational players. The Reuters Group has stood forsterling quality of its information, pictures and news, andin order to maintain and better that quality each of itsemployees must work with passion for producing qualityoutput.effectively not only among domestic players but alsointernational players. The Reuters Group has stood forsterling quality of its information, pictures and news, andin order to maintain and better that quality each of itsemployees must work with passion for producing qualityoutput.

5. As you will see we repeatedly brought to your notice thedeficiencies in your performance as stated above (whichare illustrative and not exhaustive). Further, we gave youconstructive and specific feedback and suggestions as tohow to improve the quality of your work; however you havenot improved your performance and continue to producework of unsatisfactory quality.deficiencies in your performance as stated above (whichare illustrative and not exhaustive). Further, we gave youconstructive and specific feedback and suggestions as tohow to improve the quality of your work; however you havenot improved your performance and continue to producework of unsatisfactory quality.

6. You must know that the lacklustre quality of your workmeans the Company is unable to utilise your services tocover important events. In the circumstances, the Companymeans the Company is unable to utilise your services tocover important events. In the circumstances, the Company

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Signature Not Verified

has ended up paying you for services that are practicallyuseless to it .- as the Company finds itself unable to risk itsrepatation for the highest standards by commerciallyoffering for license your pictures which fall way belowthose standards. In addition such situation has foisted onyour colleagues undue burden to cover up for yourdeficiencies.

7. You have been given more than ample feedback, time andopportunity to improve your performance; however, yourperformance has shown no signs of improvement.opportunity to improve your performance; however, yourperformance has shown no signs of improvement.

8. In the circumstances, the Company is left with no choicebut to terminate your employment. We shall be writing toyou separately in this regard.but to terminate your employment. We shall be writing toyou separately in this regard.

Yours Truly

Desmond BoylanChief Photographer, India”

94.The reasons for termination were that the performance ofRespondent No.2 had been far below the required levels in the last 6-8months with the quality of the work dropping to unacceptably deficientlevels. Most of the pictures taken by Respondent No.2 had to be ‘spiked’and there was lack of team work, which was essential for conducivework environment in the company and that despite time-to-timecounseling andadvises,RespondentNo.2failed to improve hisperformance. Respondent No.2 disputed the drop in performance and hadplaced on record documentary evidence to show that his work andperformance had been commended and appreciated until in 2006, whenMr. Desmond was appointed as Chief Photographer and had nurtured ill-will towards Respondent No.2. Allegations of racial and discriminativebehavior towards Respondent No.2 were also made. Assuming that theManagement had issues with the performance of Respondent No.2, his

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Signature Not Verified

services could not be terminated on the ground of unsatisfactory work asRespondent No.2 was regular employee and not probationer. Evenotherwise, the termination order itself indicates that there were allegationsof poor performance etc. made against Respondent No.2 and therefore theorder is not an order of termination simpliciter. Furthermore, it is settledlaw that in the industrial regime, termination on ground of unsatisfactoryservice falls within the ambit of retrenchment. I may, in this regard, referto the judgment in the case of Karnataka State Road TransportCorporation v. M. Boraiah, (1984) 1 SCC 244relevant para of which isas under:-

“13. Once the conclusion is reached that retrenchment as definedin Section 2(oo) of the Disputes Act covers every case oftermination of service except those which have been embodied inthe definition, discharge from employment or termination ofservice of probationer would also amount to retrenchment.Admittedly the requirements of Section 25-F of the Disputes Acthad not been complied with in these cases. Counsel for theappellant did not very appropriately dispute before us that thenecessary consequence of non-compliance of Section 25-F of theDisputes Act in case where it applied made the order oftermination void. The High Court, in our opinion, has, therefore,rightly come to the conclusion that in these cases the order ofretrenchment was bad and consequently it upheld the Award of theLabour Court which set aside those orders and gave appropriaterelief. These appeals are dismissed. There would be one set ofcosts. Consolidated hearing fee is assessed at Rs 5000. Thisamount shall be over and above the deposit made by the appellantsto meet the costs of the respondents.”

95.In Chartered Bank v. Chartered Bank Employees Union,

(1960) 3 SCR 441it was held as under:-

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“8.There is no doubt that an employer cannot dispense withthe services of permanent employee by mere notice and claimthat the Industrial Tribunal has no jurisdiction to inquire intothe circumstances in which such termination of servicesimpliciter took place. Many standing orders have provisionssimilar to para 522(1) of the Bank Award, and the scope of thepower of the employer to act under such provisions has comeup for consideration before Labour Tribunals many time.In Buckingham and Company Ltd., Etc. v. Workers of theCompany, Etc. [1952 LAC 490] the Labour Appellate Tribunalhad occasion to consider this matter relating to discharge bynotice or in lieu thereof by payment of wages for certainperiod without assigning any reason. It was of opinion thateven in case of this kind the requirement of bona fides isessential and if the termination of service is colourableexercise of the power or as result of victimisation or unfairlabour practice the Industrial Tribunal would have thejurisdiction to intervene and set aside such termination. Furtherit held that where the termination of service is capricious,arbitrary or unnecessarily harsh on the part of the employerjudged by normal standards of reasonable man that may becogent evidence of victimisation or unfair labour practice. Weare of opinion that this correctly lays down the scope of thepower of the Tribunal to interfere where service is terminatedsimpliciter under the provisions of contract or of standingorders or of some award like the Bank Award. In order to judgethis, the Tribunal will have to go into all the circumstanceswhich led to the termination simpliciter and an employercannot say that it is not bound to disclose the circumstancesbefore the Tribunal. The form of the order of termination is notconclusive of the true nature of the order, for it is possible thatthe form may be merely camouflage for an order of dismissalfor misconduct. It is therefore always open to the Tribunal to gobehind the form and look at the substance; and if it comes to theconclusion, for example, that though in form the order amountsto termination simpliciter it in reality cloaks dismissal formisconduct it will be open to it to set it aside as colourableexercise of the power.”

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96.The form of the termination order, on plain reading, indicates thatit is punitive order whereby the services of regular employee, who hasrendered uninterrupted, continuous and unblemished service for overnineteen years, have been abruptly terminated. Termination order was notpreceded by any charge sheet, followed by domestic enquiry, affordinga fair chance to Respondent No.2 to explain the allegations made, therebyobliterating the difference between probationer and regular employeeand this is clearly brought out in the cross-examination of MW-1 asunder:-

“Q. Is it true that neither any charge sheet was issued nor anydomestic enquiry was held against the claimant?

Ans. It is correct.

Q. I put it to you that at the time of termination of service ofworkman Sh. Desmond Boylan had no power to appoint orterminate the services of any employee in the company. Whathave you to say?

Ans. I am not aware whether Mr. Desmond Boylan at theparticular point of time had the aforesaid power or not.”

97.In Anoop Sharma v. Public Health Division, Haryana(2010) 5SCC 497it was held by the Hon’ble Supreme Court that even a‘workman’ employed in an industry who has been in continuous servicefor not less than one year cannot be retrenched by the employer untilconditions enumerated in Clauses (a) and (b) of Section 25-F of ID Actare satisfied. Provisions of Section 25-F are mandatory and non-

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compliance renders the retrenchment nullity. Relevant para is as

follows:-

“16. An analysis of the above reproduced provisions showsthat no workman employed in any industry who has been incontinuous service for not less than one year under anemployer can be retrenched by that employer until theconditions enumerated in clauses (a) and (b) of Section 25-F ofthe Act are satisfied. In terms of clause (a), the employer isrequired to give to the workman one month's notice in writingindicating the reasons for retrenchment or pay him wages inlieu of the notice. Clause (b) casts duty upon the employer topay to the workman at the time of retrenchment, compensationequivalent to fifteen days' average pay for every completed yearof continuous service or any part thereof in excess of sixmonths.

17.This Court has repeatedly held that Sections 25-F(a) and(b) of the Act are mandatory and non-compliance therewithrenders the retrenchment of an employee nullity—State ofBombay v. HospitalMazdoorSabha [AIR1960SC610], Bombay Union of Journalists v. State of Bombay [AIR 1964SC 1617 : (1964) 6 SCR 22] , SBI v. N. Sundara Money [(1976)1 SCC 822 : 1976 SCC (L&S) 132] , Santosh Gupta v. StateBank of Patiala [(1980) 3 SCC 340 : 1980 SCC (L&S)409], Mohan Lal v. Bharat Electronics Ltd. [(1981) 3 SCC 225: 1981 SCC (L&S) 478] , L. Robert D'Souza v. SouthernRailway [(1982) 1 SCC 645 : 1982 SCC (L&S) 124] , SurendraKumar Verma v. Central Govt. Industrial Tribunal-cum-LabourCourt [(1980) 4 SCC 443 : 1981 SCC (L&S) 16] , GammonIndia Ltd. v. Niranjan Dass [(1984) 1 SCC 509 : 1984 SCC(L&S) 144] , Gurmail Singh v. State of Punjab [(1991) 1 SCC189 : 1991 SCC (L&S) 147] and Pramod Jha v. State ofBihar [(2003) 4 SCC 619 : 2003 SCC (L&S) 545].

18.This Court has used different expressions for describingtheconsequenceofterminatingaworkman'sservice/employment/engagementbywayofretrenchmentwithout

complying with the mandate of Section 25-F of the Act.Sometimes it has been termed as ab initio void, sometimes asillegal per se, sometimes as nullity and sometimes as non est.Leaving aside the legal semantics, we have no hesitation tohold that termination of service of an employee by way ofretrenchment without complying with the requirement of givingone month's notice or pay in lieu thereof and compensation interms of Sections 25-F(a) and (b) has the effect of rendering theaction of the employer as nullity and the employee is entitled tocontinue in employment as if his service was not terminated.”

98.InManagementofHorticultureDepartmentofDelhiAdministration v. Trilok Chand & Anr., (1999) 82 DLT 747, thisCourt held that if an employee has rendered continuous service of morethan 240 days in the twelve calendar months preceding the date oftermination, he would be considered as workman under Section 2(s) andcannot be terminated without complying with the provisions of the Act.In fact in L. Robert D'Souza v. Executive Engineer, Southern Railwayand Another, (1982) 1 SCC 645which was relied upon by the LabourCourt, the Hon’ble Supreme Court held that even casual or seasonalworkman cannot be retrenched without complying with the requirementsof Section 25F of the Act if he has rendered continuous uninterruptedservice of one year or more. Relevant para of the judgment inManagement of Horticulture Department (supra) is as follows:-“19. First, there is no material placed by the petitioner beforethe Labour Court in support of its contention that the workmenwere appointed as seasonal workers for some specified period.On the other hand, workmen have given the evidence to theeffect that they were appointed for indefinite period and wereperforming regular nature of job. It is also stated that theyworked for more than 240 days in calender year and the total

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period of service was two years or more. In the case of theworkman in C.W. No. 2691 of 1999 the averment of theworkman Sri Trilok Chand was that he as taken intoemployment as mali/beldar with effect from. 1 November 1986and he worked continuously when his services were terminatedwith effect from 29 March 1989 without assigning any validreason. Similar statements are made by other workmen in otherwrit petitions. This version of workmen remained unrebutted.They having worked for more than 240 days continuously, theirtermination, would clearly be violative of S. 25F of the Act.Further such person would clearly come within the definition ofworkman under S. 2(s) of the Act. Similar view has been takenbefore this Court in the case of Municipal Corporation of Delhiv. Sukhvir Singh reported in 1994 (2) L.L.N. 720, on similarfacts.”

99.I may also refer to passage from the judgment of the CoordinateBench in A. Spiegel (supra) which is as follows:-

“70. In view of the above discussion, it cannot be said that thefindings of the learned Labour Court below, or the orderpassed by it as consequence thereof, suffers from any suchinherent illegality, jurisdictional error, or perversity, as wouldjustify interference, therewith, by this Court, in exercise of thelimited jurisdiction conferred, on it, in such cases, by Article226 of the Constitution of India. I find no reason to differ withthe finding, of the Labour Court, to the effect that RespondentNo.2 was, in essence, permanent employee of the petitionerand not ‘freelancer’ and that, having uninterruptedly servedthe petitioner, solely and to the exclusion of all others, for 14years, even without any artificial break, the decision of thepetitionertosummarilyterminateitsrelationshipwithRespondent No.2, by refusing to review the agreement betweenthem beyond 30[th]April, 2012, amounts to “retrenchment”,within the meaning of Section 25-F of the ID Act, read withSection 3 of the Working Journalists Act. The said terminationof employment has, therefore, to be characterised as illegal,

and the learned Labour Court cannot be said to have fallen intoerror in so holding.”

100.Having carefully perused the above judgements, it is palpably clearthat law does not envisage termination of service of even casualemployee, who has rendered continuous service of more than 240 days in12 calendar months, preceding the date of termination, without followingthe procedure of retrenchment under the ID Act, much less dispensingwith the services of regular employee with 19 years of dedicatedservice, without prior blemish, without issuing show causenotice/charge-sheet and/or holding domestic inquiry. It also intriguesthis Court, how the performance of an employee, with 19 years ofservice, suddenly drops to unacceptable levels and I may in this contextrefer to line from judgment of Division Bench of this Court inNarender Prakash Kohli v. UOI, (2015) SCC OnLine Del 9299: “aleopard does not lose his spots overnight, much less turns into jackal”.In view of this, I concur with the finding of the Labour Court thattermination of Respondent No.2 was arbitrary, illegal and unjustified.Thus, the Labour Court has rightly decided both the issues in favour ofRespondent No.2 and against the Petitioner.

RELIEF OF REINSTATEMENT

101.Learned counsel for the Petitioner had ubiquitously articulated thatthe Labour Court has erred in granting the relief of reinstatement toRespondent No.2 with full back wages and continuity of service. Havingperused the Award, this Court finds that in so far as the relief ofreinstatement is concerned, the learned Labour Court has placed heavy

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reliance on the judgment of the Hon’ble Supreme Court in DeepaliGundu (supra),wherein the concept of reinstatement was elaboratelydiscussed and deliberated upon. Relevant paras of the said judgment areas follows:-

“21. The word “reinstatement” has not been defined in theAct and the Rules. As per Shorter Oxford English Dictionary,Vol. 2, 3rd Edn., the word “reinstate” means to reinstall or re-establish (a person or thing in place, station, condition, etc.);to restore to its proper or original state; to reinstate afresh andthe word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word“reinstate” means to reinstall; to re-establish; to place again ina former state, condition or office; to restore to state orposition from which the object or person had been removed andtheword“reinstatement”meansestablishinginformercondition, position or authority (as) reinstatement of deposedprince.Asper Merriam-WebsterDictionary,theword“reinstate” means to place again (as in possession or in aformer position), to restore to previous effective state. Asper Black's Law Dictionary, 6th Edn., “reinstatement” means:

“To reinstall, to re-establish, to place again in formerstate, condition, or office; to restore to state or positionfrom which the object or person had been removed.”

22.The very idea of restoring an employee to the positionwhich he held before dismissal or removal or termination ofservice implies that the employee will be put in the sameposition in which he would have been but for the illegal actiontaken by the employer. The injury suffered by person, who isdismissed or removed or is otherwise terminated from servicecannot easily be measured in terms of money. With the passingof an order which has the effect of severing the employer-employee relationship, the latter's source of income gets driedup. Not only the employee concerned, but his entire familysuffers grave adversities. They are deprived of the source of

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sustenance. The children are deprived of nutritious food and allopportunities of education and advancement in life. At times,the family has to borrow from the relatives and otheracquaintance to avoid starvation. These sufferings continue tillthe competent adjudicatory forum decides on the legality of theaction taken by the employer. The reinstatement of such anemployee, which is preceded by finding of the competentjudicial/quasi-judicial body or court that the action taken by theemployer is ultra vires the relevant statutory provisions or theprinciples of natural justice, entitles the employee to claim fullback wages. If the employer wants to deny back wages to theemployee or contest his entitlement to get consequentialbenefits, then it is for him/her to specifically plead and provethat during the intervening period the employee was gainfullyemployed and was getting the same emoluments. The denial ofback wages to an employee, who has suffered due to an illegalact of the employer would amount to indirectly punishing theemployee concerned and rewarding the employer by relievinghim of the obligation to pay back wages including theemoluments.23.A somewhat similar issue was considered by three-JudgeBenchin HindustanTinWorks(P)Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees,(1979) 2 SCC 80 : 1979 SCC (L&S) 53] in the context oftermination of services of 56 employees by way of retrenchmentdue to alleged non-availability of the raw material necessaryfor utilisation of full installed capacity by the petitioner. Thedisputeraisedbytheemployeesresultedinawardofreinstatement with full back wages. This Court examined theissue at length and held: (SCC pp. 85-86, paras 9 and 11)

“9. It is no more open to debate that in the field ofindustrial jurisprudence declaration can be given thatthe termination of service is bad and the workmancontinues to be in service. The spectre of common lawdoctrine that contract of personal service cannot bespecifically enforced or the doctrine of mitigation of

damages does not haunt in this branch of law. The reliefof reinstatement with continuity of service can be grantedwhere termination of service is found to be invalid. Itwould mean that the employer has taken away illegallythe right to work of the workman contrary to the relevantlaw or in breach of contract and simultaneously deprivedthe workman of his earnings. If thus the employer isfound to be in the wrong as result of which theworkman is directed to be reinstated, the employer couldnot shirk his responsibility of paying the wages which theworkman has been deprived of by the illegal or invalidaction of the employer. Speaking realistically, wheretermination of service is questioned as invalid or illegaland the workman has to go through the gamut oflitigation, his capacity to sustain himself throughout theprotracted litigation is itself such an awesome factor thathe may not survive to see the day when relief is granted.More so in our system where the law's proverbial delayhas become stupefying. If after such protracted timeand energy consuming litigation during which period theworkman just sustains himself, ultimately he is to be toldthat though he will be reinstated, he will be denied theback wages which would be due to him, the workmanwould be subjected to sort of penalty for no fault of hisand it is wholly undeserved. Ordinarily, therefore, aworkman whose service has been illegally terminatedwould be entitled to full back wages except to the extenthe was gainfully employed during the enforced idleness.That is the normal rule. Any other view would be apremium on the unwarranted litigative activity of theemployer. If the employer terminates the service illegallyand the termination is motivated as in this case viz. toresist the workmen's demand for revision of wages, thetermination may well amount to unfair labour practice.In such circumstances reinstatement being the normalrule, it should be followed with full back wages. Articles41 and 43 of the Constitution would assist us in reachinga just conclusion in this respect. By suitable legislation,

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to wit, the U.P. Industrial Disputes Act, 1947, the Statehas endeavoured to secure work to the workmen. Inbreach of the statutory obligation the services wereterminated and the termination is found to be invalid; theworkmen though willing to do the assigned work andearn their livelihood, were kept away therefrom. On topof it they were forced to litigation up to the Apex Courtnow they are being told that something less than full backwages should be awarded to them. If the services werenot terminated the workmen ordinarily would havecontinued to work and would have earned their wages.When it was held that the termination of services wasneither proper nor justified, it would not only show thatthe workmen were always willing to serve but if theyrendered service they would legitimately be entitled tothe wages for the same. If the workmen were alwaysready to work but they were kept away therefrom onaccount of an invalid act of the employer, there is nojustification for not awarding them full back wages whichwere very legitimately due to them.11. In the very nature of things there cannot be astraitjacket formula for awarding relief of back wages.All relevant considerations will enter the verdict. Moreor less, it would be motion addressed to the discretionof the Tribunal. Full back wages would be the normalrule and the party objecting to it must establish thecircumstances necessitating departure. At that stage theTribunal will exercise its discretion keeping in view allthe relevant circumstances. But the discretion must beexercised in judicial and judicious manner. The reasonfor exercising discretion must be cogent and convincingand must appear on the face of the record. When it issaid that something is to be done within the discretion ofthe authority, that something is to be done according tothe rules of reason and justice, according to law and not

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humour. It is not to be arbitrary, vague and fanciful butlegal and regular.”

(emphasis supplied)

After enunciating the abovenoted principles, this Court tookcognizance of the appellant's plea that the company is sufferingloss and, therefore, the workmen should make some sacrificeand modified the award of full back wages by directing that theworkmen shall be entitled to 75% of the back wages.xxxxxxxxx

38.The propositions which can be culled out from theaforementioned judgments are:

38.1. In cases of wrongful termination of service, reinstatementwith continuity of service and back wages is the normal rule.”

102.In view of the conspectus of the aforesaid judgments, be itingeminated that whenever an employee is dismissed, removed orterminated and the action of the employer is found to be illegal, thenormal rule, albeit subject to exceptions, is that the employee should berestored to the position which he or she held before the umbilical cordbroke between the employer and the employee. As noticed by theHon’ble Supreme Court, the word ‘reinstatement’ means to reinstall/re-establish/restore to the earlier position or former state, condition oroffice.

103.A three-Judge Bench of the Hon’ble Supreme Court in HindustanTin Works (supra) while dealing with termination of 56 employees byway of retrenchment observed that in the field of industrial jurisprudence,a declaration can be given that termination of service is bad and workmancontinues to be in service. The spectre of common law doctrine that

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contract of personal service cannot be specifically enforced does nothaunt this branch of law. Relief of reinstatement with continuity ofservice can be granted where termination is found to be invalid, whichwould mean that the employer has taken away illegally the right to workof the workman contrary to law and deprived him of his earnings. If theemployer is found to be in the wrong, reinstatement is inevitable. It wasnot the case of the Petitioner that the said judgement no longer holds thefield.

104.Having so noted, I would be failing in my duty if reference is notmade to subsequent judgment in Madhya Pradesh Administration v.Tribhuban, (2007) 9 SCC 748,wherein the Hon’ble Supreme Court heldthat reinstatement may not always be an automatic consequence of theCourts holding that the termination is illegal. However, this was clearly inthe context of daily wager as compared and contrasted to regularemployee, with long length of service. Relevant paras are as under:-

“6.The question, however, which arises for consideration isas to whether in situation of this nature, the learned SingleJudge and consequently the Division Bench of the Delhi HighCourt should have directed reinstatement of the respondentwith full back wages. Whereas at one point of time, such reliefused to be automatically granted, but keeping in view severalotherfactorsandinparticularthedoctrineofpublicemployment and involvement of the public money, change inthe said trend is now found in the recent decisions of this Court.This Court in large number of decisions in the matter of grantof relief of the kind distinguished between daily wager whodoes not hold post and permanent employee. It may be thatthe definition of “workman” as contained in Section 2(s) of theAct is wide and takes within its embrace all categories ofworkmen specified therein, but the same would not mean thateven for the purpose of grant of relief in an industrial dispute

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referred for adjudication, application of constitutional schemeof equality adumbrated under Articles 14 and 16 of theConstitution of India, in the light of decision of ConstitutionBench of this Court in Secy., State of Karnataka v. Umadevi(3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and other relevantfactors pointed out by the Court in catena of decisions shallnot be taken into consideration.

7.The nature of appointment, whether there existed anysanctioned post or whether the officer concerned had anyauthority to make appointment are relevant factors. (See M.P.Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702 : 2006SCC (L&S) 422] , State of M.P. v. Arjunlal Rajak [(2006) 2SCC 711 : 2006 SCC (L&S) 429] and M.P. State AgroIndustries Development Corpn. Ltd. v. S.C. Pandey [(2006) 2SCC 716 : 2006 SCC (L&S) 434] .)”

105.A year later in Mahboob Deepak v. Nagar Panchayat, Gajraula,(2008) 1 SCC 575the Hon’ble Supreme Court reiterated the principalthat reinstatement cannot be an automatic consequence of holding thetermination to be unfair and also carved out factors which are relevant fordetermining the relief which are as follows:-

“7.The factors which are relevant for determining the same,inter alia, are:

(i) whether in making the appointment, the statutoryrules, if any, had been complied with;

(ii) the period he had worked;

(iii) whether there existed any vacancy; and

(iv) whether he obtained some other employment on thedate of termination or passing of the award.”date of termination or passing of the award.”

106.Recent trend of judgments shows that Courts have been holdingthat reinstatement may not be natural or automatic consequence ofsetting aside of dismissal order. However, reading of the two aforesaid

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judgments and other recent judgments, in my considered view, leads to aninevitable conclusion that for the purpose of grant of relief ofreinstatement, Courts have always understood and appreciated thedifference in the nature of employment of the employee as well as thelength of service. In the present case, Respondent No.2 was regularemployee, with over nineteen years of continuous and unblemishedservice and clearly falls within the axiomatic jurisprudence and legalregime laid down by the Hon’ble Supreme Court in Hindustan TinWorks (supra) and not in the exceptions in the later judgments.

107.Learned counsel for the Petitioner had opposed the relief ofreinstatement, additionally, on the ground that the Labour Court has nottaken into consideration the crucial factor that Respondent No.2 wasterminated more than 13 years ago, during which period the PetitionerCompany had undergone structural / reorganisational changes and thereare no vacancies to reinstate Respondent No.2 at the same or comparabledesignation. It was urged that the Petitioner Company no longer has adesignation such as ‘Deputy Chief Photographer’ or commensurateposition. Learned Counsel for Respondent No.2 has denied the saidposition and categorically stated in the Statement of Objections that thepost exists and no material has been produced by the Petitioner to supportits assertion.

108.This Court cannot accept the aforesaid contention on behalf of thePetitioner for two-fold reasons. Firstly, perusal of the written statementas well as the affidavit-in-evidence filed by the Petitioner before theLabour Court clearly reflects that no such stand was taken before theLabour Court and therefore it does not lie in the mouth of the Petitioner to

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even argue that the Labour Court failed to appreciate this crucial aspect.The averment in the writ petition and the argument on this aspect beforethis Court is an after-thought. Secondly, no material has been placedbefore the Labour Court or even before this Court to substantiate theassertion that there is change in the structural or organisationalhierarchy in the Petitioner Company and / or the post of ‘Deputy ChiefPhotographer’ was abolished, and if so, the details thereof. It wascertainly open to the Petitioner to have pleaded this before the LabourCourt and led evidence, but its failure to do so cannot enure to thedisadvantage of Respondent No.2. Even assuming for the sake ofargument that the Petitioner company does not have post with thenomenclature ‘Deputy Chief Photographer’, nonetheless, RespondentNo.2 can always be reinstated to an equivalent or comparable postinvolving the skills of photography, as it cannot be and has not beendenied by the Petitioner that it continues to be in the business of news andmedia, involving the requirement of Photographers.

RELIEF OF BACK WAGES

109.Insofar as the relief of back wages is concerned, learned counselfor the Petitioner opposed the same inter alia on the grounds that evenassuming that the termination of Respondent No.2 was unlawful, fullback wages cannot be granted as mechanical exercise, since it is nolonger the law that reinstatement and back wages are natural andautomatic consequence of setting aside of termination. It was alsoopposed on the ground that Respondent No.2 has been gainfully

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employed during the period of termination, fact which is admitted byRespondent No.2.

110.Perusal of the Award shows that the Labour Court has heavilyrelied on the judgment of the Hon’ble Supreme Court in Deepali Gundu(supra), in awarding full back wages to Respondent No.2. In DeepaliGundu (supra), the question before the Hon’ble Supreme Court waswhether the Appellant therein was entitled to wages for the period duringwhich she was forcibly kept out of service by the Management of theSchool. The Hon’ble Supreme Court referred to and relied upon severalearlier judgments on the law of back wages and it would be useful toallude to some of them hereinafter.

111.In Hindustan Tin Works (supra), three-Judge Bench of theHon’ble Supreme Court held that if the action of the employer,terminating the employee, is found to be wrongful exercise, as resultof which the workman is directed to be reinstated, the employer cannotshirk his responsibility of paying the wages, which the workman has beendeprived of by the illegal and invalid action of the employer. Ordinarily, aworkman whose services have been illegally terminated would be entitledto full back wages, except to the extent that he was gainfully employedand any other view would be premium on the unwarranted litigativeactivity of the employer.

112.The Hon’ble Supreme Court also referred to another judgment ofthe three-Judge Bench in Surendra Kumar Verma (supra), para 6whereof is relevant and is as follows:-

“6.…Plain common sense dictates that the removal of anorder terminating the services of workmen must ordinarily lead

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to the reinstatement of the services of the workmen. It is as ifthe order has never been, and so it must ordinarily lead to backwages too. But there may be exceptional circumstances whichmake it impossible or wholly inequitable vis-à-vis the employerand workmen to direct reinstatement with full back wages. Forinstance, the industry might have closed down or might be insevere financial doldrums; the workmen concerned might havesecured better or other employment elsewhere and so on. Insuch situations, there is vestige of discretion left in the courtto make appropriate consequential orders. The court may denythe relief of reinstatement where reinstatement is impossiblebecause the industry has closed down. The court may deny therelief of award of full back wages where that would place animpossible burden on the employer. In such and otherexceptional cases the court may mould the relief, but, ordinarilythe relief to be awarded must be reinstatement with full backwages. That relief must be awarded where no specialimpediment in the way of awarding the relief is clearly shown.True, occasional hardship may be caused to an employer butwe must remember that, more often than not, comparatively fargreater hardship is certain to be caused to the workmen if therelief is denied than to the employer if the relief is granted.”

113.The principle laid down in Hindustan Tin Works (supra), wasreiterated in P.G.I. of Medical Education (supra) and the relevant parasare as under:-

“8.While it is true that in the event of failure in compliancewith Section 25-F read with Section 25(b) of the IndustrialDisputes Act, 1947 in the normal course of events the Tribunalis supposed to award the back wages in its entirety but thediscretion is left with the Tribunal in the matter of grant of backwages and it is this discretion, which in Hindustan Tin Works(P) Ltd. case [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : (1979) 1SCR 563] this Court has stated must be exercised in judicialandjudiciousmannerdependinguponthefactsandcircumstances of each case. While, however, recording theguiding principle for the grant of relief of back wages this

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Court in Hindustan case [(1979) 2 SCC 80 : 1979 SCC (L&S)53 : (1979) 1 SCR 563] , itself reduced the back wages to 75%,the reason being the contextual facts and circumstances of thecase under consideration.

9.The Labour Court being the final court of facts came to aconclusion that payment of 60% wages would comply with therequirement of law. The finding of perversity or beingerroneous or not in accordance with law shall have to berecorded with reasons in order to assail the finding of theTribunal or the Labour Court. It is not for the High Court to gointo the factual aspects of the matter and there is an existinglimitation on the High Court to that effect. In the event,however the finding of fact is based on any misappreciation ofevidence, that would be deemed to be an error of law which canbe corrected by writ of certiorari. The law is well settled tothe effect that finding of the Labour Court cannot be challengedin proceeding in writ of certiorari on the ground that therelevant and material evidence adduced before the LabourCourtwasinsufficientorinadequatethough,however,perversity of the order would warrant intervention of the HighCourt. The observation, as above, stands well settled since thedecisionofthisCourtin SyedYakoob v. K.S.Radhakrishnan [AIR 1964 SC 477 : (1964) 5 SCR 64] .

xxxxxxxxx

12.Payment of back wages having discretionary elementinvolved in it has to be dealt with, in the facts andcircumstances of each case and no straight-jacket formula canbe evolved, though, however, there is statutory sanction todirect payment of back wages in its entirety. As regards thedecision of this Court in Hindustan Tin Works (P) Ltd. [(1979)2 SCC 80 : 1979 SCC (L&S) 53 : (1979) 1 SCR 563] be it notedthat though broad guidelines, as regards payment of backwages, have been laid down by this Court but having regard tothe peculiar facts of the matter, this Court directed payment of75% back wages only.

xxxxxx

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14.The issue as raised in the matter of back wages has beendealt with by the Labour Court in the manner as above havingregard to the facts and circumstances of the matter in the issue,upon exercise of its discretion and obviously in manner whichcannot but be judicious in nature. In the event, however, theHigh Court's interference is sought for, there exists anobligation on the part of the High Court to record in thejudgment,thereasoningbeforehoweverdenouncingajudgment of an inferior Tribunal, in the absence of which, thejudgment in our view cannot stand the scrutiny of otherwisebeing reasonable. There ought to be available in the judgmentitself finding about the perversity or the erroneous approachof the Labour Court and it is only upon recording therewith theHigh Court has the authority to interfere. Unfortunately, theHigh Court did not feel it expedient to record any reason farless any appreciable reason before denouncing the judgment.”

114.The Hon’ble Supreme Court thereafter noted the judgment inHaryana Roadways v. Rudhan Singh, (2005) 5 SCC 591,by athree-Judge Bench, wherein the Hon’ble Supreme Court had observedthat there is no rule of thumb that in every case where the Tribunal givesits finding that the termination was in violation of Section 25-F of the IDAct, entire back wages should be awarded. host of factors have to bekept in mind, one of them being the length of service of the workman.Relevant para is as follows:-

“8.There is no rule of thumb that in every case where theIndustrial Tribunal gives finding that the termination ofservice was in violation of Section 25-F of the Act, entire backwages should be awarded. host of factors like the manner andmethod of selection and appointment i.e. whether after properadvertisement of the vacancy or inviting applications from theemployment exchange, nature of appointment, namely, whetherad hoc, short term, daily wage, temporary or permanent incharacter, any special qualification required for the job and the

like should be weighed and balanced in taking decisionregarding award of back wages. One of the important factors,which has to be taken into consideration, is the length ofservice, which the workman had rendered with the employer. Ifthe workman has rendered considerable period of service andhis services are wrongfully terminated, he may be awarded fullor partial back wages keeping in view the fact that at his ageand the qualification possessed by him he may not be in aposition to get another employment. However, where the totallength of service rendered by workman is very small, theaward of back wages for the complete period i.e. from the dateof termination till the date of the award, which our experienceshows is often quite large, would be wholly inappropriate.Another important factor, which requires to be taken intoconsideration is the nature of employment. regular service ofpermanentcharactercannotbecomparedtoshortorintermittent daily-wage employment though it may be for 240days in calendar year.”

115.A year later in U.P. State Brassware (supra), the said principlewas reiterated as under:-

“22. No precise formula can be laid down as to under whatcircumstances payment of entire back wages should be allowed.Indisputably, it depends upon the facts and circumstances ofeach case. It would, however, not be correct to contend that it isautomatic. It should not be granted mechanically only becauseon technical grounds or otherwise an order of termination isfound to be in contravention of the provisions of Section 6-N ofthe U.P. Industrial Disputes Act.”

116.In J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433,Respondent was dismissed on the basis of an enquiry and the LabourCourt, after holding that the enquiry was not fair and proper, set aside thepunishment of dismissal and awarded reinstatement with full back wages.The High Court upheld the Award of the Labour Court. However, on an

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appeal, the Hon’ble Supreme Court did not approve the award of fullback wages. The observations of the Hon’ble Supreme Court with regardto back wages, as noticed in Deepali Gundu (supra), are as follows:-

“17.Thereisalsoamisconceptionthatwheneverreinstatementisdirected,“continuityofservice”and“consequential benefits” should follow, as matter of course.The disastrous effect of granting several promotions as a“consequential benefit” to person who has not worked for 10to 15 years and who does not have the benefit of necessaryexperience for discharging the higher duties and functions ofpromotionalposts,isseldomvisualisedwhilegrantingconsequential benefits automatically. Whenever courts ortribunals direct reinstatement, they should apply their judicialmind to the facts and circumstances to decide whether“continuity of service” and/or “consequential benefits” shouldalso be directed. …

18.Coming back to back wages, even if the court finds itnecessary to award back wages, the question will be whetherback wages should be awarded fully or only partially (and if sothe percentage). That depends upon the facts and circumstancesof each case. Any income received by the employee during therelevant period on account of alternative employment orbusiness is relevant factor to be taken note of while awardingback wages, in addition to the several factors mentionedin Rudhan Singh [(2005) 5 SCC 591 : 2005 SCC (L&S) 716]and Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC(L&S) 250] . Therefore, it is necessary for the employee toplead that he was not gainfully employed from the date of histermination. While an employee cannot be asked to prove thenegative, he has to at least assert on oath that he was neitheremployed nor engaged in any gainful business or venture andthat he did not have any income. Then the burden will shift tothe employer. But there is, however, no obligation on theterminated employee to search for or secure alternativeemployment. Be that as it may.”

Page 105 of 117

117.Finally, relying on several judgments, the Hon’ble Supreme Courtin Deepali Gundu (supra) culled out certain propositions and the samebeing relevant to the present case, are extracted hereunder for readyreference :

“38.The propositions which can be culled out from theaforementioned judgments are:

38.1. In cases of wrongful termination of service, reinstatementwith continuity of service and back wages is the normal rule.

38.2. The aforesaid rule is subject to the rider that whiledeciding the issue of back wages, the adjudicating authority orthe court may take into consideration the length of service ofthe employee/workman, the nature of misconduct, if any, foundproved against the employee/workman, the financial conditionof the employer and similar other factors.

38.3. Ordinarily, an employee or workman whose services areterminated and who is desirous of getting back wages isrequired to either plead or at least make statement before theadjudicating authority or the court of first instance that he/shewas not gainfully employed or was employed on lesser wages. Ifthe employer wants to avoid payment of full back wages, then ithas to plead and also lead cogent evidence to prove that theemployee/workman was gainfully employed and was gettingwages equal to the wages he/she was drawing prior to thetermination of service. This is so because it is settled law thatthe burden of proof of the existence of particular fact lies onthe person who makes positive averment about its existence. Itis always easier to prove positive fact than to prove anegative fact. Therefore, once the employee shows that he wasnot employed, the onus lies on the employer to specificallyplead and prove that the employee was gainfully employed andwas getting the same or substantially similar emoluments.

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38.4. The cases in which the Labour Court/Industrial Tribunalexercises power under Section 11-A of the Industrial DisputesAct, 1947 and finds that even though the enquiry held againstthe employee/workman is consistent with the rules of naturaljustice and/or certified standing orders, if any, but holds thatthe punishment was disproportionate to the misconduct foundproved, then it will have the discretion not to award full backwages. However, if the Labour Court/Industrial Tribunal findsthat the employee or workman is not at all guilty of anymisconduct or that the employer had foisted false charge,then there will be ample justification for award of full backwages.

38.5. The cases in which the competent court or tribunal findsthat the employer has acted in gross violation of the statutoryprovisions and/or the principles of natural justice or is guilty ofvictimising the employee or workman, then the court or tribunalconcerned will be fully justified in directing payment of fullback wages. In such cases, the superior courts should notexercise power under Article 226 or 136 of the Constitution andinterfere with the award passed by the Labour Court, etc.merely because there is possibility of forming differentopinion on the entitlement of the employee/workman to get fullback wages or the employer's obligation to pay the same. Thecourts must always keep in view that in the cases ofwrongful/illegal termination of service, the wrongdoer is theemployer and the sufferer is the employee/workman and there isno justification to give premium to the employer of hiswrongdoings by relieving him of the burden to pay to theemployee/workman his dues in the form of full back wages.

38.6. In number of cases, the superior courts have interferedwith the award of the primary adjudicatory authority on thepremise that finalisation of litigation has taken long timeignoring that in majority of cases the parties are notresponsible for such delays. Lack of infrastructure andmanpower is the principal cause for delay in the disposal ofcases. For this the litigants cannot be blamed or penalised. It

would amount to grave injustice to an employee or workman ifhe is denied back wages simply because there is long lapse oftime between the termination of his service and finality given tothe order of reinstatement. The courts should bear in mind thatin most of these cases, the employer is in an advantageousposition vis-à-vis the employee or workman. He can avail theservices of best legal brain for prolonging the agony of thesufferer i.e. the employee or workman, who can ill-afford theluxury of spending money on lawyer with certain amount offame. Therefore, in such cases it would be prudent to adopt thecoursesuggestedin HindustanTinWorks(P)Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees,(1979) 2 SCC 80 : 1979 SCC (L&S) 53] .

38.7. The observation made in J.K. Synthetics Ltd. v. K.P.Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] that onreinstatement the employee/workman cannot claim continuity ofservice as of right is contrary to the ratio of the judgments ofthree-JudgeBenches[HindustanTinWorks(P)Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] ,[Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16]referred to hereinabove and cannot be treated as good law.This part of the judgment is also against the very concept ofreinstatement of an employee/workman.”

118.The issue of grant of full back wages again came up forconsideration before the Hon’ble Supreme Court in Raj Kumar v.Director of Education, (2016) 6 SCC 541,wherein the Court relied onthe observations and principles propounded by its previous judgment onthe grant of back wages in Deepali Gundu (supra), more particularly,paragraph 22 of the judgment in Deepali Gundu (supra), and directedthe Managing Committee to reinstatement the Appellant thereon on his

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post along with back wages and other consequential benefits. Relevantparas are as follows:-

“56. The termination of the appellant is bad in law for non-compliance with the mandatory provisions of Section 25-F ofthe ID Act and also Section 8(2) of the DSE Act. Further, therespondent School has not produced any evidence on record toshow that the retrenchment of the appellant was necessary ashe had become “surplus”. The termination of the appellant wasordered in the year 2003 and he is unemployed till date. Therespondents have been unable to produce any evidence to showthat he was gainfully employed during that period and thereforehe is entitled to back wages and other consequential benefits inview of the law laid down by this Court in Deepali GunduSurwase v. Kranti Junior Adhyapak Mahavidyalaya [DeepaliGundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya,(2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] wherein it washeld as under: (SCC p. 344, para 22)

“22. The very idea of restoring an employee to theposition which he held before dismissal or removal ortermination of service implies that the employee will beput in the same position in which he would have beenbut for the illegal action taken by the employer. Theinjury suffered by person, who is dismissed orremoved or is otherwise terminated from servicecannot easily be measured in terms of money. With thepassing of an order which has the effect of severing theemployer-employee relationship, the latter's source ofincomegetsdriedup.Notonlytheemployeeconcerned,buthisentirefamilysuffersgraveadversities. They are deprived of the source ofsustenance. The children are deprived of nutritiousfoodandallopportunitiesofeducationandadvancement in life. At times, the family has to borrowfrom the relatives and other acquaintance to avoidstarvation. These sufferings continue till the competentadjudicatory forum decides on the legality of the action

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taken by the employer. The reinstatement of such anemployee, which is preceded by finding of thecompetent judicial/quasi-judicial body or court that theaction taken by the employer is ultra vires the relevantstatutory provisions or the principles of natural justice,entitles the employee to claim full back wages. If theemployer wants to deny back wages to the employee orcontest his entitlement to get consequential benefits,then it is for him/her to specifically plead and provethat during the intervening period the employee wasgainfullyemployedandwasgettingthesameemoluments. The denial of back wages to an employee,who has suffered due to an illegal act of the employerwould amount to indirectly punishing the employeeconcerned and rewarding the employer by relievinghim of the obligation to pay back wages including theemoluments.”57.For the reasons stated supra, we are of the view that theimpugnedjudgmentandorderdated28-7-2008[RajKumar v. Govt. (NCT of Delhi), 2008 SCC OnLine Del 1572]passed by the Delhi High Court is liable to be set aside andaccordinglysetaside,byallowingthisappeal.Theretrenchment of the appellant from his service is bad in law.The respondent Managing Committee is directed to reinstatethe appellant at his post. Consequently, the relief of back wagestill the date of this order is awarded to the appellant, along withall consequential benefits from the date of termination of hisservices. The back wages shall be computed on the basis ofperiodical revision of wages/salary. We further make it clearthat the entire amount due to the appellant must be spread overthe period between the period of retrenchment and the date ofthis decision, which amounts to 13 years, for the reason that theappellant is entitled to the benefit under Section 89 of theIncome Tax Act. The same must be complied with within sixweeks from the date of receipt of the copy of this judgment.”

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119.On reading of the above conspectus of judgments and theprinciples propounded in Deepali Gundu (supra), it is clear that the lawon back wages is no longer res integra. In cases of wrongful termination,reinstatement with back wages is the normal rule, subject of course to acaveat that while deciding the issue of back wages, Courts may take intoconsideration host of factors, such as length of service of the employee,financial condition of the employer, etc. The employee is required toplead that he or she was not gainfully employed or was employed onlesser wages. As observed in Deepali Gundu (supra), in cases where theCompetent Court or Tribunal finds that employer has acted in grossviolation of statutory provisions and/or Principles of Natural Justice, etc.then it shall be fully justified in directing payment of full back wages andin such cases, Superior Courts should not exercise powers under Article226 or Article 136 of the Constitution of India and interfere with theAward, only because there is possibility of forming different opinion.Hon’ble Supreme Court has also struck note of caution that Courts mustalways keep in view that in cases of wrongful termination, wrongdoer isthe employer and sufferer is the employee / workman and there is thus nojustification to give premium to the employer for their wrongdoing byrelieving them of the burden to pay back wages.

120.It would be useful to allude to another significant observation inDeepali Gundu (supra), at the cost of repetition, that in number ofcases, superior Courts have interfered with the award of the PrimaryAdjudicatory Authority on the premise that finalization of litigation hastaken long time. Hon’ble Supreme Court observed that lack ofinfrastructure and manpower is the principle cause for delay in disposal

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of cases and for this the litigants cannot be blamed or penalized. It wouldamount to grave injustice to workman / employee if he is denied backwages simply because there is long lapse of time between terminationand finality to the litigation. Courts should bear in mind that in most ofthese cases, employer is in an advantageous position. Hon’ble SupremeCourt held that the High Court had committed grave error by interferingwith the order passed by the Tribunal for back wages, ignoring that thecharges leveled against the Appellant therein were frivolous and theenquiry was held in gross violation of Principles of Natural Justice.

121.Principles culled out in Deepali Gundu (supra) have beenreiterated and reaffirmed in recent judgments of the Hon’ble SupremeCourt in Raj Kumar (supra) and Rajasthan SRTC (supra) amongstother judgements. No doubt, it cannot be said that in every case, backwages are to be granted as matter of course. Courts have been denyingback wages in cases where the facts of particular case may so require,such as where the employee has been employed as casual employee or adaily wager, or the Establishment has closed, or the award of back wageswould cast an impossible / unbearable financial burden on the employer,or it is shown that the employee has been employed for short span oftime and that too after weighing the pros and cons and balancing theequities. Petitioner has not been able to bring forth any judgment where aregular employee, having worked for nearly two decades, has been deniedback wages, after it was found that the termination was unfair andwrongful.

122.In view of the aforesaid, this Court finds no infirmity with theAward of the Labour Court to the extent it has awarded full back wages

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to Respondent No.2. However, it cannot be ignored that Respondent No.2has conceded that he was gainfully employed during the period oftermination and had also brought forth the said position in the affidavit ofevidence filed before the Labour Court. Labour Court has certainly erredin overlooking this crucial fact of gainful employment and has notfactored the wages earned by Respondent No.2 during the period oftermination by the Petitioner. Relevant part of the affidavit is as under:-

“9.That after the termination of my services, I have beenemployed as under:-

(a) 6.12.06 to 6.9.07 as Dy. Photo Editor at Rs. 65,000/- cost tothe company with P.T.I.

(b) Unemployed w.e.f. 7.9.2007 to August, 2008.

(c) 1.9.2008 to 31.3.2009 @ Rs. 45,000/- (cost to company)with Tribune Newspaper as Chief Photographer.

(d) April, 2009 till now as chief photographer with PTI at Rs.50,000/- (cost to the company). I am not gainfully employedafter the termination of my services by the management. I couldnot get any alternative employment with the same salary andperks at par with the Respondent management. I am, therefore,entitled to be reinstated in service, with continuity of service,full back wages and all other consequential benefits.”

123.While the Petitioner argued that the gainful employment ofRespondent No.2 was sufficient factor to deny him back wages, counselfor Respondent No.2 had urged that the salary received by him from theother sources of employment was far less as compared to the salary thathe had been receiving or would have received from the Petitioner, if hehad not been terminated and therefore the differential amount be awardedtowards back wages. The contention of the Petitioner to this extent, in myview, only deserves to be rejected. No doubt, gainful employment of an

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employee / workman during the period of termination is relevant factorto be taken into consideration while granting the relief of back wages butas held in Deepali Gundu (supra), it is open to the employee to showthat he was paid wages lesser than the wages he is entitled from theemployer who has terminated his services. Petitioner has not pleaded anyof the grounds or factors as brought out in various judgments referred toabovewhichdisentitledRespondentNo.2frombackwages.InHindustan Times (supra), this Court held as under:-

“24. There is no doubt that the question of whether to grantbackwages and if so, to what extent, is matter of discretion -that has to be judiciously exercised, taking into account all theestablished facts and circumstances of the case. Here, themanagement to an extent called upon itself in firstly insistingthattheorderofterminationwasjustifiedandthencontradicting itself in saying that the workman had voluntarily,by conduct abandoned employment. The falsity of its plearegarding not having received leave application or not havingsanctioned it, was exposed before the Labour Court and theSingle Judge. The workman had to fight to vindicate himself,for more than ten years. small amount of Rs. 2000/- permonth was directed to be paid for period of time. Ultimately,hesucceededandobtainedareinstatementorder.Themanagement chose not to utilize his services; instead itapproached this court in writ proceedings. The pendency of itswrit petition culminated in the inability to grant reinstatementbecause the workman attained the age of superannuation; heeven died without securing the relief he sought for. The SingleJudge has actually modified the award and granted HT Ltd.some relief, by directing it to pay limited amount towardsdues for the period the writ petition was pending. In thecircumstances, the question is whether the direction to paybalance back-wages is warranted.

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26.On the question of withholding part of backwagesbecausetheemployeedidnotwork,themanagement'sarguments ring hollow. The appellant obstinately refusedreinstatement even when it was ordered and obtained aninterim order, suspending operation of award. Secondly, theinstances cited where the workman did not obtain employmentrelating to the earlier period; there is something relevant in thearguments on his behalf that having been stigmatized, in way,through the appellant's public advertisement, he felt thatsecuring meaningful employment would have been difficulttask if not an impossible one. The court cannot overlook thatthe respondent was journalist with some experience; he wasdiagnosed with acute diabetes and abcess of liver and at thetime of his termination, had two small children. The subjectivecompulsions, which drove him not to seek employment, howevercannot become the main focus of this proceeding, which willsubstantially,insuchcase,obscuretheimpactoftheappellant's illegal action. As regards the “new rule” this courtwould recollect previous ruling on the “no back-wage withoutwork” “rule” in the following observations from The PrincipalDelhi College of Arts &Commerce v. Sunita Sharma:“9. Counsel for the college had argued that therespondent would gain undue benefit by the dismissal ofthis appeal, since she would be entitled to full arrears ofsalary without working on the post. This Court is ofopinion that the College invited such result, if it can becharacterized as such, upon itself by preferring thisappeal. To compound this, it sought stay of theimpugned judgment, which resulted in the respondentbeing denied work and the entitlement to earn salary.Furthermore, this Court is of opinion that in such cases,there cannot be blanket “no backwage” rule as issought to be urged. An employee denied benefit of workand pay, is as much entitled to restitution in law, as abusinessman whose contract is terminated capriciously.In the latter case, the courts award damages, headwhich often include damages for loss of profit, andrespondent would gain undue benefit by the dismissal ofthis appeal, since she would be entitled to full arrears ofsalary without working on the post. This Court is ofopinion that the College invited such result, if it can becharacterized as such, upon itself by preferring thisappeal. To compound this, it sought stay of theimpugned judgment, which resulted in the respondentbeing denied work and the entitlement to earn salary.Furthermore, this Court is of opinion that in such cases,there cannot be blanket “no backwage” rule as issought to be urged. An employee denied benefit of workand pay, is as much entitled to restitution in law, as abusinessman whose contract is terminated capriciously.In the latter case, the courts award damages, headwhich often include damages for loss of profit, and

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further direct payment of interest. Similarly, tax payerwho is made to pay amounts which cannot be legitimatelyrecovered, is entitled to interest for the duration theamounts are retained by the tax authorities. plaintiffwho sues for illegal termination of contract of service(i.e. managerial cadre official in private enterprise)on proof of illegal termination can succeed in gettingdamages. In the case of public employment, where theemployee is terminated for no justifiable cause, surelyrestitution has to be likewise complete. Therefore, theCourt upholds the impugned judgment and order of thelearned single judge as regards full consequentialbenefits to the respondent.”

124.The judgments relied upon by the learned counsel for the Petitionerwith respect to the relief of reinstatement and back wages, as referred toin para 33 above, would not enure to the advantage of the Petitioner asclearly the judgments are related to employees who were employed asdaily wagers/on temporary basis and for short spells. The cases aretherefore clearly distinguishable from the instant case where RespondentNo. 2 was admittedly regular employee of the Petitioner and had servedthe Petitioner for over 19 years, with an unblemished past record. It bearsrepetition to state that learned counsel for the Petitioner has been unableto point out any judgment where the relief of reinstatement and/or backwages has been denied to an employee similarly placed as RespondentNo. 2 herein. The nature of employment as well as the length of servicehave always been considered as crucial factors by the Courts, for decidingthe relief of reinstatement and back wages.

125.In view of the aforesaid, the Award of the Labour Court ismodified to the limited extent that Respondent No.2 shall be entitled to

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back wages after deducting the salary/emoluments drawn from alternativeemployments for the period subsequent to termination. It is open to thePetitioner to work out the necessary calculations after working out thedifferential amounts and seek necessary assistance for the same fromRespondent No.2.

126.Writ petition is partially allowed in the aforesaid terms. Pendingapplication is disposed of accordingly.127.Vide interim order dated 01.06.2020, this Court had stayed theoperation of the impugned Award, subject to deposit of sum ofRs.50 Lakhs by the Petitioner, which has been invested in an FDR, in aNationalised Bank. Interim order stands vacated. The amount ofRs.50 Lakhs along with interest accrued thereon shall be released toRespondent No.2. In case the amounts outstanding to Respondent No.2are less than Rs.50 Lakhs, then the proportionate amount shall berefunded to the Petitioner by Respondent No.2. Needless to state, in caseRespondent No.2 is entitled to an amount excess of the amounts soreleased, the balance shall be paid by the Petitioner to Respondent No.2.

JYOTI SINGH, J

SEPTEMBER 30, 2021yo/yg/rd

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